People v. Melendez CA5

Filed 6/14/21 P. v. Melendez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F080602 Plaintiff and Respondent, (Super. Ct. No. BF162648A) v.

HENRY ERNESTO MELENDEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo- Henry Ernesto Melendez appeals from the trial court’s resentencing after remand to allow the trial court to exercise its discretion under Penal Code sections 12022.5,

* Before Franson, Acting P.J., Smith, J. and Snauffer, J.

subdivision (c) and 12022.53, subdivision (h) to strike or dismiss either one or more of the firearm enhancements.1 Melendez’s appellate counsel has filed a brief that raises no issues for appeal and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having conducted that review, we affirm the judgment. SUMMARY OF THE CASE AND FACTS On December 14, 2015, Daniel Cervantes brought home an eight-pound bag of marijuana from the marijuana collective where he worked. Early the following morning, two masked men broke into the home while the Cervantes family slept. The noise woke Cervantes, who grabbed a handgun from his nightstand when he saw the men run down the main hallway past his bedroom door. Concerned for himself and his family, he fired several shots as the men ran by his bedroom. Cervantes then grabbed a rifle and followed the men down the hallway. One of the intruders, Melendez, stepped out of the bathroom and pointed something at Cervantes. Cervantes opened fire and Melendez fled back into the bathroom and closed the door. Cervantes’s next door neighbor was awakened by the sound of breaking glass. He looked out the window and saw Melendez climb out of the Cervantes’ bathroom window and take off on foot. The neighbor called 911 and police responded to the scene immediately and spotted Melendez walking a short distance from the Cervantes home. Melendez had a gun in his hand and was wearing gloves and a bulletproof vest. He had been shot and was transported to the hospital where he was treated for several gunshot wounds. Later, at the hospital, Melendez told a detective he broke into the house looking for money and cocaine. Melendez identified his crime partner as a man he knew only by