People v. Hernandez CA2/8

Filed 5/2/16 P. v. Hernandez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B262379

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA078689) v.

FRANCISCO JAVIER HERNANDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, David B. Gelfound, Judge. Affirmed.

Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Francisco Javier Hernandez, also known as Javier Francisco Hernandez, challenges the judgment of conviction. We affirm. FACTS Prior to November 2, 2013, a court ordered defendant to refrain from possessing any firearm. On November 2, 2013, officers lawfully stopped defendant for driving with a modified exhaust. Defendant tried to flee. Several officers assisted in arresting defendant. Their version and defendant’s version of the ensuing events are described in detail below. 1. The Events According to Police On November 2, 2013, Officers Andre Silva and Katherine O’Brien were driving in a marked police vehicle and observed defendant driving a vehicle with a modified exhaust. Shortly after the officers activated their red lights and siren, defendant stopped. When he approached the driver side door of defendant’s vehicle, Officer Silva noticed an open beer bottle. Officer Silva asked defendant for his license and registration, and defendant did not answer or comply. When Silva asked defendant to exit the vehicle, defendant shouted aggressively, initially refusing to exit. Defendant eventually exited, but he refused to turn around when Silva requested it. Defendant said, “I’m not giving you my back” and attempted to flee. Silva was able to stop defendant, but was not able to control him. Silva pushed defendant onto the hood of defendant’s vehicle. Defendant bit Silva’s arm, causing Silva to suffer a crushing, burning sensation. Defendant and Silva continued to struggle. Silva pushed defendant’s face to the ground, and defendant punched Silva multiple times. Officer O’Brien called for backup. When defendant tried to reach into his sweatshirt pocket, O’Brien tried to grab defendant’s arm to stop him from reaching into his pocket. Officers Silva and O’Brien later learned that defendant had an illegal, fully loaded firearm in his pocket. In the continued struggle between defendant and Officer Silva, defendant “wrapped his hand and his fingers around the back of [Silva’s] head and ear and began to