People v. Lopez CA6

Filed 12/3/14 P. v. Lopez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039405 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. EE907220)

v.

MIGUEL LOPEZ,

Defendant and Appellant.

Defendant swung a hatchet within one foot of victim and said “I’m going to kill you.” A jury convicted him of assault with a deadly weapon (Pen. Code § 245, subd. (a)(1)).1 On appeal, defendant asserts the evidence was insufficient to support his conviction. In addition, defendant argues the court abused its discretion when answering questions posed by the jury, and his counsel was ineffective for failing to object to the court’s answers. STATEMENT OF THE FACTS AND CASE In July 2009, defendant was at the home of Zoila Rivas, where he rented a room. Adan Bermudez and his girlfriend, Charlotte Reyes and Reyes’s baby granddaughter went to the home to visit Rivas. Bermudez did not know defendant well, but had seen him previously at the Home Depot when defendant was seeking work.

1 All further statutory references are to the Penal Code.

Bermudez ate food in the kitchen for an hour and a half with defendant, who drank tequila. Bermudez told defendant, “[Y]ou are drunk. You should go to sleep.” Defendant told Bermudez he was fine. Bermudez left the kitchen and sat on the couch, holding Reyes’s baby granddaughter. At the time, Reyes was sitting next to him, and Rivas was sitting on a bed to Bermudez’s right. Defendant came out of the kitchen, and took a hatchet from inside his pants, raised it, and threatened Bermudez stating, “I’m going to kill you.” At the time, defendant was three feet away from Bermudez, and swung the hatchet three times. Bermudez was not hit by the swings, but the hatchet came within one foot of him and the baby. Bermudez stood up and tried to calm defendant down. Defendant raised the hatchet again, and tried to strike Bermudez with it. Bermudez grabbed defendant’s right hand, and the two struggled, falling to the ground. During this altercation, defendant slashed Bermudez’s hand with the hatchet. Bermudez eventually took the hatchet from defendant. Bermudez then told Reyes he was going to call the police. Bermudez left the house so as not to have another altercation with defendant, and took the hatchet with him. Defendant followed him out of the house, stating, “I’m going to finish you.” Bermudez attempted to protect himself by hiding between two cars, while defendant threw rocks at him. When police arrived at the house, they found defendant and Bermudez in the street, and Bermudez was holding the hatchet. Sunnyvale Police Officer Hastings drew his gun, and ordered Bermudez to drop the hatchet. Bermudez complied, and Officer Hastings holstered his gun. At the time, defendant was hunched over and appeared intoxicated to the Officer. Defendant tried to grab the hatchet. Officer Hastings grabbed defendant’s right arm, pulled him to the ground and handcuffed him. Four other officers at the scene tried to