Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA070517, Rafael A. Ongkeko, Judge.
Law Offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P.J.
I. INTRODUCTION
Defendant, Valodia Balabekyan, tried to murder his family members. Defendant appeals from his conviction of: four counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187, subd. (a)) (counts 1 through 4); a single count of possession of a silencer (§ 12520) (count 5); one count of first degree burglary of an inhabited residence (§§ 459, 667.5, subd. (c)(21)) (count 6); four counts of firearm assault (§ 245, subd. (a)(2)) (counts 7 through 10); and one count of deadly weapon assault. (§ 245, subd. (a)(1)) (count 11).) Additionally, the jury found: as to each attempted murder count, defendant personally used a firearm (§ 12022.53, subds. (b), (c) & (d)); as to each firearm assault count, defendant personally used a revolver (§ 12022.5, subd. (a)); except as to the silencer and first degree burglary counts, defendant inflicted great bodily injury (§ 12022.7, subd. (a); as to count 3, one of the attempted murder counts, defendant used a deadly weapon (§ 12022, subd. (b)(1); and as to the first degree burglary count, a person was present in the residence during the commission of the offense. (§ 667.5, subd. (c)(21).)
All further statutory references are to the Penal Code except where otherwise noted.
Defendant was sentenced for willful, deliberate, and premeditated murder on counts 1 through 4 to consecutive terms of life with the possibility of parole plus 25 years to life pursuant to section 12022.53, subdivision (d).) As to count 3, defendant received an additional one-year consecutive sentence for the deadly weapon use. (§ 12022, subd. (b)(1).) Defendant also received a concurrent three-year term for silencer possession as to count 5. As to count 6, defendant received a six-year term for first degree burglary but the sentence was stayed pursuant to section 654, subdivision (a). As to counts 7 through 11, the firearm and deadly weapon assault charges, defendant received 4 year terms. As to the firearm assault counts, defendant received an additional 10 years for use of the revolver and 3 years for great bodily injury. As to the deadly weapon assault charge, defendant received three years for great bodily injury infliction. All of the counts 7 through 11 sentences were stayed pursuant to section 654, subdivision (a). Defendant received credit for 476 days of presentence custody plus 71 days conduct credit (§ 2933.1) for a total presentence custody credit of 547 days. Defendant was ordered to pay: $2,341.90 in victim restitution; a $10,000 restitution fine (§ 1202.4, subd. (b)(1)); a $10,000 parole revocation restitution fine (§ 1202.45); a $20 court security fee “for each conviction” (for a total of $220) (§ 1465.8); a $10 crime prevention programs fine (§ 1202.5, subd. (a)), “plus penalty assessments for the burglary conviction”; a $2 state court surcharge; and a $3 state court construction penalty.
Defendant raises two sentencing arguments. Defendant contends the section 12022, subdivision (b)(1) enhancement imposed in count 3 should have been stricken and the sentence on count 7 must be stayed under section 654, subdivision (a). We have raised several other sentencing and abstract of judgment issues.
II. DISCUSSION
A. The Section 12022, Subdivision (b)(1) One-Year Enhancement
Defendant contends the trial court improperly imposed a one-year section 12022, subdivision (b)(1) personal knife use enhancement as to count 3—the willful, deliberate, and premeditated attempted murder of Aram Hakobyan. Defendant asserts that pursuant to section 12022.53, subdivision (j), the one-year enhancement should have been stricken or stayed. Section 12022.53 sets forth enhancements for firearm use in the commission of specified felonies. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124.) Section 12022.53, subdivision (j) states in part, “When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment for that enhancement pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another enhancement provides for a greater penalty or a longer term of imprisonment.” Our Supreme Court has held that after a trial court imposes the firearm enhancement with the longest term of imprisonment, any remaining firearm enhancements found true for the same crime must be imposed and then stayed. (People v. Gonzalez, supra, 43 Cal.4th at pp. 1123, 1130; accord, People v. Ybarra (2008) 166 Cal.App.4th 1069, 1094.) Section 12022.53 subdivision (j) prevents multiple punishments for the same firearm use or discharge. (People v. Chiu (2003) 113 Cal.App.4th 1260, 1264.) Here, defendant assaulted the victim, Mr. Hakobyan, first with a knife and then with a handgun. The section 12022, subdivision (b)(1) one-year enhancement was directed at defendant’s knife use, not his firearm use. Therefore the section 12022, subdivision (b)(1) enhancement was properly imposed. (People v. Chiu, supra, 113 Cal.App.4th at pp. 1264-1265.)
B. Abstract of Judgment Problems
First, defendant argues the sentence on count 7, firearm assault, must be stayed under section 654, subdivision (a). Defendant reasons counts 1, attempted murder, and 7, assault with a firearm, constituted a single act committed during an indivisible course of conduct. We agree with the Attorney General that the trial court orally stayed count 7 in compliance with section 654, subdivision (a), but the abstract of judgment incorrectly notes it was imposed. The oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471.) The abstract of judgment must therefore be corrected to state that the sentence under count 7 is stayed pursuant to section 654, subdivision (a). Second, the abstract of judgment omits the extent of the sentences orally imposed as to count 6 and counts 8 through 11 but stayed pursuant to section 654, subdivision (a). Thus, the abstract of judgment must also be corrected to show the duration of the stayed sentences as to count 6 (6 years) and counts 8 through 11 (4 years each).
C. The Section 1202.5, Subdivision (a), Crime Prevention Programs Fine
We asked the parties to brief the question whether the $10 section 1202.5, subdivision (a) crime prevention programs fine is subject to additional assessments, surcharges, or penalties. The trial court orally imposed the section 1202.5, subdivision (a) fine, a $2 section 1465.7, subdivision (a) state surcharge, and a $3 Government Code section 70372, subdivision (a)(1) state court construction penalty. A $34 figure appears on the abstract of judgment. However, in addition, the trial court should have imposed the: $10 section 1464, subdivision (a)(1) penalty assessment; $7 Government Code section 76000, subdivision (a)(1) penalty assessment; $2 Government Code section 76000.5, subdivision (a)(1) penalty assessment; Government Code section 76104.6, subdivision (a)(1) $1 deoxyribonucleic acid penalty; and Government Code section 76104.7, subdivision (a) $1 deoxyribonucleic acid state-only penalty. Section 1202.5, subdivision (a) requires an ability to pay finding be made. The trial court expressly stated the fines were to be paid out of defendant’s prison earnings. As defendant has an abundance of time to earn money while in prison in order to pay the section 1202.5, subdivision (a) fine and assessments, penalties, and state surcharge, no remand is necessary in order for the court to make another ability to pay determination.
D. Presentence Custody Credit
As noted above, defendant received credit for 476 days in presentence custody plus 71 days of conduct credit for a total presentence custody credit of 547 days. We asked the parties to brief the question of whether defendant should have been credited with one additional day of actual presentence custody. The failure to award a proper amount of credits is a jurisdictional error that may be raised at any time. (People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15; People v. Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) Defendant received an incorrect award of presentence credits. (§ 2900.5.) He should have received 477 days of actual custody credit and 71 days of conduct credit (§ 2933.1) for a total of 548 days. This calculation includes defendant’s custody from his arrest on July 31, 2007, to his sentencing on November 18, 2008, and recognizes that 2008 was a leap year. The trial court is to personally insure the abstract of judgment is corrected to accurately reflect the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified as follows. The additional penalty assessments, penalties, and the surcharge discussed in the body of the opinion are to be added to the Penal Code section 1202.5, subdivision (a) fine and defendant is to receive 477 days of actual presentence custody credit and 71 days of conduct credit for a total presentence custody credit of 548 days. The abstract of judgment is to be modified as discussed in part II(B) of the body of the opinion. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J. MOSK, J.