Filed 12/3/14 P. v. Lopez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039405
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. EE907220)

             v.

MIGUEL LOPEZ,

         Defendant and Appellant.



         Defendant swung a hatchet within one foot of victim and said “I’m going to kill
you.” A jury convicted him of assault with a deadly weapon (Pen. Code § 245,
subd. (a)(1)).1 On appeal, defendant asserts the evidence was insufficient to support his
conviction. In addition, defendant argues the court abused its discretion when answering
questions posed by the jury, and his counsel was ineffective for failing to object to the
court’s answers.
                                  STATEMENT OF THE FACTS AND CASE
         In July 2009, defendant was at the home of Zoila Rivas, where he rented a room.
Adan Bermudez and his girlfriend, Charlotte Reyes and Reyes’s baby granddaughter
went to the home to visit Rivas. Bermudez did not know defendant well, but had seen
him previously at the Home Depot when defendant was seeking work.


         1
             All further statutory references are to the Penal Code.
        Bermudez ate food in the kitchen for an hour and a half with defendant, who drank
tequila. Bermudez told defendant, “[Y]ou are drunk. You should go to sleep.”
Defendant told Bermudez he was fine.
        Bermudez left the kitchen and sat on the couch, holding Reyes’s baby
granddaughter. At the time, Reyes was sitting next to him, and Rivas was sitting on a bed
to Bermudez’s right. Defendant came out of the kitchen, and took a hatchet from inside
his pants, raised it, and threatened Bermudez stating, “I’m going to kill you.” At the
time, defendant was three feet away from Bermudez, and swung the hatchet three times.
Bermudez was not hit by the swings, but the hatchet came within one foot of him and the
baby.
        Bermudez stood up and tried to calm defendant down. Defendant raised the
hatchet again, and tried to strike Bermudez with it. Bermudez grabbed defendant’s right
hand, and the two struggled, falling to the ground. During this altercation, defendant
slashed Bermudez’s hand with the hatchet. Bermudez eventually took the hatchet from
defendant. Bermudez then told Reyes he was going to call the police.
        Bermudez left the house so as not to have another altercation with defendant, and
took the hatchet with him. Defendant followed him out of the house, stating, “I’m going
to finish you.” Bermudez attempted to protect himself by hiding between two cars, while
defendant threw rocks at him.
        When police arrived at the house, they found defendant and Bermudez in the
street, and Bermudez was holding the hatchet. Sunnyvale Police Officer Hastings drew
his gun, and ordered Bermudez to drop the hatchet. Bermudez complied, and Officer
Hastings holstered his gun.
        At the time, defendant was hunched over and appeared intoxicated to the Officer.
Defendant tried to grab the hatchet. Officer Hastings grabbed defendant’s right arm,
pulled him to the ground and handcuffed him. Four other officers at the scene tried to

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subdue defendant. Defendant was rolling on the ground and was combative with the
officers. The officers eventually restrained defendant’s ankles and legs.
       Defendant was charged by information with assault with a deadly weapon (Pen.
Code § 245, subd. (a)(1)),2 and resisting a peace officer (§ 148, subd. (a)(1)). Following
a jury trial, defendant was convicted of assault with a deadly weapon, and acquitted of
resisting a peace officer.
       Defendant was sentenced to the lower term of two years in prison, and was
credited with time served in state hospitals prior to trial. Defendant was released
following the sentencing hearing.
       Defendant filed a timely notice of appeal.
                                        DISCUSSION
        Defendant asserts on appeal that the evidence presented at trial was insufficient to
support his conviction for assault with a deadly weapon. In addition, defendant argues
the court erred in answering the jury’s questions, and that his counsel was ineffective for
failing to object to the court’s answers.
       Sufficiency of the Evidence
       When considering a challenge to the sufficiency of the evidence to support a
criminal conviction or enhancement, we determine whether there is substantial evidence.
Substantial evidence is reasonable, credible, and of solid value such that a reasonable
trier of fact could make the necessary findings beyond a reasonable doubt. In making this
determination, we do not reweigh the evidence, resolve conflicts in the evidence, or
reevaluate the credibility of witnesses. Rather, we review the whole record in the light
most favorable to the judgment, we draw all reasonable inferences from the evidence that

       2
         The parties stipulated that for the charge of assault with a deadly weapon, the
prosecution would rely only on the evidence of defendant’s swinging the hatchet at
Bermudez while he was on the couch holding the baby, and not defendant’s slash of
Bermudez’s hand with the hatchet.
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support it, and we presume the existence of every fact the trier of fact could reasonably
deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v.
Johnson (1980) 26 Cal.3d 557, 578.)
       Section 245, subdivision (a)(1) prohibits “an assault upon the person of another
with a deadly weapon or instrument other than a firearm . . . .” “Since 1872, the Penal
Code has defined assault as ‘an unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.’ (Pen. Code, § 240.)” (People v.
Chance (2008) 44 Cal.4th 1164, 1167 (Chance), fn. omitted.) “ ‘The “violent injury”
here mentioned is not synonymous with “bodily harm,” but includes any wrongful act
committed by means of physical force against the person of another. . . .’ [Citation.]”
(People v. Rocha (1971) 3 Cal.3d 893, 899-900, fn. 12 (Rocha).) “ ‘In other words, force
against the person is enough, it need not be violent or severe, it need not cause bodily
harm or even pain, and it need not leave any mark.’ [Citation.]” (Id. at p. 899, fn. 12.)
       The present ability element “is satisfied when ‘a defendant has attained the means
and location to strike immediately.’ [Citations.] In this context, however, ‘immediately’
does not mean ‘instantaneously.’ It simply means that the defendant must have the
ability to inflict injury on the present occasion.” (Chance, supra, 44 Cal.4th at p. 1168,
fn. omitted.) “[A]ssault with a deadly weapon is a general intent crime.” (Rocha, supra,
3 Cal.3d at p. 899.) “[T]he criminal intent which is required for assault with a deadly
weapon . . . is the general intent to willfully commit an act the direct, natural and
probable consequences of which if successfully completed would be the injury to
another.” (Ibid.) “The pivotal question is whether the defendant intended to commit an
act likely to result in . . . physical force, not whether he or she intended a specific harm.”
(People v. Colantuono (1994) 7 Cal.4th 206, 218 (Colantuono), fn. omitted.)
       The evidence at trial amply supports defendant’s conviction of assault with a
deadly weapon. Specifically, Bermudez testified defendant removed a hatchet from his

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pants and raised it, telling Bermudez, “I’m going to kill you.” Defendant swung the
hatchet three times, and Bermudez covered himself and the baby for protection. Neither
Bermudez nor the baby was hit with the hatchet, but the hatchet came within one foot of
them. Swinging a hatchet causing it to come within one foot of a person, while
threatening to kill the person, clearly constitutes an assault with a deadly weapon under
section 245, subdivision (a)(1). Here, defendant “willfully committed an act [swing a
hatchet at Bermudez and the baby] that by its nature will probably and directly result in
injury to another, i.e., a battery.” (Colantuono, supra, 7 Cal.4th at p. 214.)
       We find defendant’s conviction for assault with a deadly weapon is supported by
substantial evidence.
       Jury Questions
       Defendant asserts the court erred in answering the jury’s questions during
deliberations, because it referred the jury to instructions previously given rather than
answering the questions directly.3
       During deliberations, the jury presented the following note with questions to the
trial court: “Clarification of the legal definition of assault & if these scenarios are
defined as assault. [¶] Scenario 1: Is holding hatchett [sic] above head & makes [sic] a
downward move to victim within striking distance but never intended to hit the victim. Is
this considered assault? [¶] Scenario 2: Is holding hatchett [sic] above head & waving it
but not intentionally moving the hatchett [sic] toward victim considered assault? If he is
waiving the hatchet standing 1-2 ft from victim?”




       3
          The Attorney General asserts defendant forfeited the issue on appeal, because he
did not object to the court’s answers at the time they were given in the trial court. In
anticipation of this argument, defendant asserts his counsel was ineffective for failing to
object to the court’s answers. We need not consider these issues, because we find the
court’s answers to the jury’s questions were proper in this case.
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       The trial court responded as follows: “It is up to the jury alone to decide what
happened, and to apply the law as I instruct you to the facts as you find them. I refer you
to CALCRIM 875, which defines the legal elements of the crime of assault with a deadly
weapon.”
       The duty of a trial judge to answer the jury’s questions during deliberations is set
forth in section 1138 provides in relevant part: “After the jury have retired for
deliberation, . . . if they desire to be informed on any point of law arising in the case, they
must require the officer to conduct them into court. Upon being brought into court, the
information required must be given . . . .”
       Our Supreme Court discussed the trial court’s duty under section 1138 in People v.
Beardslee (1991) 53 Cal.3d 68, 97, stating: “The court has a primary duty to help the
jury understand the legal principles it is asked to apply. [Citation.] This does not mean
the court must always elaborate on the standard instructions. Where the original
instructions are themselves full and complete, the court has discretion under section 1138
to determine what additional explanations are sufficient to satisfy the jury’s request for
information. [Citation.] Indeed, comments diverging from the standard are often risky.
[Citation.]”
       The court in People v. Moore (1996) 44 Cal.App.4th 1323, addressed this point
further, and explained that the trial court is not required to elaborate “on the standard
instructions in every instance. When the original instructions are full and complete, the
trial court has discretion to determine what additional explanations are sufficient to
satisfy the jury’s request for information. [Citation.] Jury questions can present a court
with particularly vexing challenges. The urgency to respond with alacrity must be
weighed against the need for precision in drafting replies that are accurate, responsive,
and balanced. When a question shows the jury has focused on a particular issue, or is
leaning in a certain direction, the court must not appear to be an advocate, either

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endorsing or redirecting the jury’s inclination. Although comments diverging from the
standard should be embarked on with care, a trial court must do more than figuratively
throw up its hands and tell the jury it cannot help. It must consider how it can best aid
the jury and decide whether further explanation is desirable, or whether the reiteration of
previously given instructions will suffice. [Citation.]” (Moore, supra, at p. 1331, citing
People v. Beardslee, supra, 53 Cal.3d at p. 97.)
       Here, the record shows the court considered the jury’s questions, and properly
answered them, fulfilling its duty under section 1138. In answering the questions of
whether particular factual scenarios constituted an assault, the court properly referred the
jury to CALCRIM No. 875, which defines assault with a deadly weapon as follows:
“1. The defendant did an act with a deadly weapon other than a firearm that by its nature
would directly and probably result in the application of force to a person; [¶] 2. The
defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts
that would lead a reasonable person to realize that his act by its nature would directly and
probably result in the application of force to someone; [¶] AND [¶] 4. When the
defendant acted, he had the present ability to apply force with a deadly weapon other than
a firearm to a person. [¶] Someone commits an act willfully when he or she does it
willing or on purpose.”
       Here, the questions posed by the jury presented two distinct issues. The first was
seeking a clarification of the legal definition of assault. To this the court responded by
directing the jury to CALCRIM No. 875, the previously given instruction defining the
elements required for an assault with a deadly weapon. The second portion of questions
asked the court whether two separate factual scenarios from the case constituted an
assault. These questions presented an abdication of the jury’s role as fact finder,
improperly shifting the responsibility to the court. The court properly directed the jury to
the instruction defining assault with a deadly weapon.

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       The record shows that the court considered the jury’s questions, and how to assist
them in their inquiries. Moreover, the court’s answer was a proper statement of the law,
and did not diverge from the standard jury instructions in this case. (People v. Beardslee,
supra, 53 Cal.3d at p. 97.) The court did not err in answering the jury’s questions, and
adequately fulfilled its duty under section 1138.
                                       DISPOSITION
       The judgment is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




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