People v. Mendoza CA2/6

Filed 12/2/15 P. v. Mendoza CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B260443 (Super. Ct. No. TA132530-01) Plaintiff and Respondent, (Los Angeles County)

v.

ALBERTO MENDOZA, JR.,

Defendant and Appellant.

Alberto Mendoza, Jr. appeals a judgment following conviction of making a criminal threat, with findings that he suffered a prior serious felony and strike conviction, and served two prior prison terms. (Pen. Code, §§ 422, subd. (a), 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).)1 We affirm. FACTUAL AND PROCEDURAL HISTORY Jorge Rodriguez lived on Elizabeth Avenue in Lynwood. His home was surrounded by a fence with a locked gate across the driveway. Rodriguez parked his vehicle inside the fence, next to his home. Mendoza lived in an apartment across the street. One day in September 2013, Rodriguez was leaving his driveway to drive to his employment as a FedEx delivery person. Mendoza stood on the sidewalk next to the driveway and gave Rodriguez a "mad-dog" stare. Rodriguez asked Mendoza, "Hey,

1 Further statutory references are to the Penal Code unless otherwise stated.

how is it going?" Mendoza then walked in front of Rodriguez's vehicle and flagged him to stop. Mendoza threw up his hands and stated in a hostile voice, "Hey, man, you're saying, 'What's up? What's up?'" Rodriquez asked Mendoza if he was seeking employment with FedEx and, if so, described the application process. Mendoza then stepped away from the vehicle and no longer seemed hostile. On several occasions following his initial interaction with Mendoza, Rodriguez saw him standing across the street. Mendoza would stare at Rodriguez and shout, "Hey," in a hostile voice. One day in February 2014, as Rodriguez unlocked the gate across the driveway, Mendoza walked quickly toward him. Mendoza stood a few inches from Rodriguez's face and stated, "[E]very time I say 'What's up?' to you, it's like I want to do something to you." Mendoza had one hand under his shirt and swung his other hand back and forth. Mendoza then repeated, "Yeah, I can't get it out of my head. Every time I say, 'What's up?' to you, I want to do something to you." Believing that Mendoza was threatening him, Rodriguez punched him. The two men wrestled to the ground as Rodriguez shouted for his mother to call the police. Rodriguez was on top of Mendoza, who was no longer resisting. Rodriguez allowed Mendoza to stand and ordered him to leave. Mendoza came toward Rodriguez again, but Rodriguez pushed him away and shouted, "Get out of here." Before he walked away, Mendoza said, "No, no. I'm going to catch you slipping. If you do this, I'm going to catch you slipping." Rodriguez suffered bruises from the incident; he believed that Mendoza intended to harm him. The Charged Incident In the late evening of March 13, 2014, Rodriguez returned home from work. His father opened the gate and Rodriguez drove inside. As he left his vehicle, Mendoza shouted, "Hey, my nigga. . . . Hey, I want to talk to you. I want to talk to you." Rodriguez walked toward the gate but did not open it. In a hostile voice, Mendoza stated that he wanted Rodriguez to walk outside the gate: "I want you to come out here. I want you to come out here right now. I want to fight you. I want to get at you." Mendoza