People v. Rojo CA2/4

Filed 5/5/16 P. v. Rojo CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B260791

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA133784) v.

JESUS RUBEN ROJO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Higa, Judge. Affirmed as modified. Joy A. Maulitz, 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.

A jury convicted defendant Jesus Ruben Rojo of assault likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4), count 1)1, assault on a peace officer (§ 245, subd. (c), count 2), and four counts of making criminal threats (§ 422, counts 3-6). The jury also found true an allegation that defendant personally used a deadly or dangerous weapon while making the criminal threats (§ 12022, subd. (b)(1)); no such enhancement was alleged or found true as to either of the assault counts. When sentencing defendant, however, the trial court imposed an additional year in prison for use of a deadly weapon in connection with count 2. Defendant contends and the Attorney General concedes the imposition of the enhancement on count 2 was error. We agree. Accordingly, we strike the one-year sentence enhancement for use of a deadly weapon on count 2 and affirm the judgment as modified. BACKGROUND During the early morning hours of February 4, 2014, defendant punched his 76- year-old mother in the face, grabbed her by the hair, and took her cell phone. Defendant’s mother ran out of the house and alerted a neighbor, who telephoned law enforcement. When uniformed sheriff’s deputies arrived on the scene, defendant yelled comments like “I’m gonna kill him, I’m gonna kill you” and “I’m gonna fucking kill you.” Defendant also brandished a machete at the deputies, all of whom testified that they were fearful of him. After one of the deputies fired “stun bags” at defendant, he retreated into the house and shut the door. The deputies used a battering ram in an attempt to open the door. The second time the battering ram struck the door, defendant lunged out and struck the ram and possibly one of the deputies’ arms with the machete. The affected deputy’s arm was scratched and he fell off the porch. Defendant lunged out of a nearby window and thrust the machete at the deputy’s face. Eventually, the deputies entered the house and managed to subdue and arrest defendant.