People v. Hernandez CA2/8

Filed 10/4/16 P. v. Hernandez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B261486

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA061681) v.

CHRISTIAN HERNANDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Frank M. Tavelman, Judge. Affirmed.

Thien Houng Tran, 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, Victoria B. Wilson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Christian Hernandez appeals from his conviction of assault with a deadly weapon. He contends: (1) he was denied due process and a fair trial by the trial court’s response to a jury question during deliberations; and (2) it was error to deny his motion for new trial brought on those same grounds. We affirm. PROCEDURAL BACKGROUND Defendant was charged by information with attempted premeditated murder and assault with a deadly weapon of Michael Massari. Enhancements for personal infliction of great bodily injury (Pen. Code, § 12022.7. subd. (a)), use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)), and a prior conviction (Pen. Code, § 667.5, subd. (b)) were also alleged.1 After the jury reported that it was hopelessly deadlocked on attempted murder the trial court declared a mistrial as to that count.2 But the jury convicted defendant of assault with a deadly weapon (count 2) and found true the great bodily injury and deadly weapon enhancements. On December 1, 2014, after it denied defendant’s motion for new trial and to continue the sentencing hearing, the trial court struck the deadly weapon enhancement (§ 12022, subd. (b)) and sentenced defendant to eight years in prison on count 2, comprised of the four-year high term, plus a consecutive three years for the great bodily injury enhancement (§ 12022.7, subd. (a)), plus a consecutive one year for the prior conviction enhancement (§ 667.5, subd. (b)). Defendant timely appealed.