The People v. Herrera CA2/3

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following. At the time of the incident, defendant Herrera and his wife Tina had been married for more than 25 years, although they had been separated for six years. They had four children, ages 25, 20, 17 and 13. Herrera worked as a handyman and a gardener. He carried his gardening tools around in his car, including a machete, a hatchet and a knife. Tina testified that on September 8, 2010, Herrera came to her house to visit the children. Tina did not want him there and they argued on the front porch. She told him to leave, but he refused. During the argument, Herrera placed a knife and a hatchet at his feet and said to Tina, “Do you want me to whack you?” When Tina said she was going to call the police, Herrera said he would wait for them to arrive. Tina went into the house and called the police. Two police officers arrived, arrested Herrera and took possession of the knife and hatchet. Tina told Deputy Henry Saenz that Herrera “said he was going to whack her, and she took whack as kill.” Tina said Herrera had previously gone to…