People v. Lopez CA2/2

Filed 12/22/14 P. v. Lopez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B252103

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA086456) v.

HERMAN LOPEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Scott T. Millington, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner, Executive Director, Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Herman Lopez of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b))1 (count 1) and making criminal threats (§ 422, subd. (a)) (count 2).2 With respect to both counts, the jury found that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a). Defendant admitted having suffered six prior convictions for which he served prison terms within the meaning of section 667.5, subdivision (b). In count 1, the trial court sentenced defendant to the midterm of six years on the substantive offense, four years for the firearm enhancement, and five years for five of the prior prison terms for a total sentence of 15 years in that count.3 In count 2, the court imposed a concurrent sentence of two years (the midterm) for the substantive offense and four years for the firearm enhancement for a total sentence of six years in that count. Defendant appeals on the ground that the trial court erred when it failed to stay execution of sentence in count 2 pursuant to section 654. FACTS Carlos Deleon was staying at a motel in Inglewood when, at 4:00 a.m., he heard someone hitting a door very hard and the sound of a breaking window. He opened his door and saw defendant standing outside the room next door holding a gun. Defendant was screaming, “Get out motherfucker, get out.” Frightened, Deleon closed his door and unsuccessfully tried to call 911. He heard a soft knock at his door and assumed it was Mike, his next-door neighbor, calling at his door to ask for help. Instead, defendant stood there and said to Deleon in Spanish, “You are going to die today, whore.” Defendant had the gun “on his hands” and was raising it up. Defendant raised the gun to the level of