People v. Hernandez CA 2/3

Filed 2/11/16 P. v. Hernandez CA 2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B261366

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA427381) v.

FRANCISCO HERNANDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Henry Hall, Judge. Affirmed.

Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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Appellant Francisco Hernandez appeals from a final judgment of conviction following a jury trial. He was sentenced to prison for three years following his conviction for assault with a deadly weapon and the court finding true that he suffered a prior felony conviction. (Pen. Code, § 245, subd. (a)(1), Pen. Code, § 667.5, subd. (b).) We affirm. FACTUAL AND PROCEDURAL SUMMARY On July 19, 2014, Aldo Tuna was working as a security guard at a shopping center located at 5520 Santa Monica Boulevard, Los Angeles, CA. At around 2:45 p.m., an employee of the El Pollo Loco, which was located in that shopping center, asked Tuna to respond to a disturbance at the restaurant. A person in the restaurant was disturbing a customer by asking for money. As Tuna entered the restaurant, he saw appellant seated at a table and speaking incoherently. When Tuna asked appellant to stop asking customers for money, appellant responded with an expletive and told Tuna to get out of the restaurant. Appellant then reached out and swung his hand near Tuna’s stomach. Appellant had a knife in his hand. Tuna backed up out of the way of the knife. At that point, appellant got up from the table and walked to the bathroom and locked himself in. Tuna called the police, who ultimately took appellant into custody. Upon patting down appellant, the officers discovered a small folding knife. Tuna confirmed that it was the knife that appellant had swung at him. On December 8, 2014, a jury convicted defendant of assault with a deadly weapon other than a firearm. In a bifurcated proceeding, the trial judge found true beyond a reasonable doubt that the defendant had suffered a prior conviction as alleged in the information.1 On January 5, 2015, the court sentenced appellant to prison as previously indicated. A timely appeal was filed.