Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF057792, David B. Downing, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Chandra E. Appell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant and Appellant Jaime Aranda Escobar pled guilty to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and possession of a switchblade (§ 653k). Defendant also admitted that he personally used a deadly weapon (§ 12022, subd. (b)(1)) and he personally inflicted great bodily injury (§ 12022.7, subd. (a)). He contends the trial court did not understand its discretion to strike the great bodily injury enhancement and that the enhancement for the personal use of a deadly weapon should have been stricken rather than stayed. We modify the judgment to strike the deadly weapon enhancement and otherwise affirm.
Unless otherwise indicated, further statutory references are to the Penal Code.
BACKGROUND
During an altercation at a nightclub on March 10, 2007, defendant stabbed the victim multiple times with a butterfly knife.
The probation officer’s report recommended imposing the midterm and then suspending the sentence and placing defendant on probation. At sentencing, the trial court did not find the case unusual so as to overcome defendant’s presumptive ineligibility for probation for inflicting great bodily injury. (§ 1203, subd. (e)(3).) However, the trial court reviewed several mitigating factors and stated that but for the great bodily injury enhancement the trial court “would not send [defendant] to prison.”
The assault with a deadly weapon count was set as the principal count and the low term of two years was imposed because of the lack of a prior criminal record. The trial court stayed the personal use of a deadly weapon enhancement. The trial court imposed the great bodily injury enhancement term of three years consecutive, stating “[i]t is imposed because if ever there was great bodily injury, this case shows that there was. Five stab wounds and a collapsed lung is clearly, clearly great bodily injury.” A concurrent sentence of 90 days was imposed for the switchblade possession count. The sentencing minute order states the “Court Orders Enhancement(s) AG-12022(b)(1) PC in count 1 Stricken.” A court security fee was not imposed. The abstract of judgment does not include the court security fee or the stayed deadly weapon enhancement.
During argument regarding sentencing, the People indicated that the deadly weapon enhancement should be stayed because the weapon use was attached to an assault with a deadly weapon count. The trial court responded “I was going to stay it. I was going to ask you that. I thought about that, and I’ll stay it in any case. So the minimum will be five. I can’t see a way around it. Anything else?”
DISCUSSION
A. Standard of Review
Sentencing decisions are reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Defendants bear a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) “ ‘In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
B. Great Bodily Injury Enhancement
Defendant contends that the trial court’s statement during sentencing that “ ‘the minimum will be five. I can’t see any way around it,’ ” indicates that the trial court did not understand its discretion to strike the great bodily injury enhancement and impose a two-year sentence.
“It is well established that, as a general matter, a court has discretion under section 1385, subdivision (c), to dismiss or strike an enhancement, or to ‘strike the additional punishment for that enhancement in the furtherance of justice.’ ” (People v. Meloney (2003) 30 Cal.4th 1145, 1155, fn. omitted.) “[I]n the absence of any affirmative indication in the record that the trial court committed error or would have exercised discretion under section 1385... if it believed it had such discretion, relief on appeal is not appropriate....” (People v. Fuhrman (1997) 16 Cal.4th 930, 945.)
The record does not affirmatively indicate that the trial court was unaware of its discretion to strike the great bodily injury enhancement under section 1385. While the trial court found factors in mitigation sufficient to impose the lower term, the trial court specifically stated that it was imposing the great bodily injury enhancement “because if ever there was great bodily injury, this case shows that there was. Five stab wounds and a collapsed lung is clearly, clearly great bodily injury.” Thus, in context, the trial court’s statement about not seeing any way around a five-year sentence indicates that the court did not find any reason justifying the use of its discretion to reduce the sentence beyond the lower term plus the enhancement for very clear and substantial infliction of great bodily injury.
C. Deadly Weapon Enhancement
The trial court orally pronounced that the deadly weapon enhancement would be stayed, but the minute order states that it was stricken. “Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) “The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.” (Id. at pp. 387–388.)
Defendant contends that, because mandatory enhancements must be imposed if not stricken, the trial court erred in staying rather than striking the enhancement for personally using a deadly weapon. The People agree that the enhancement should have been stricken, but do so on the grounds that the enhancement was part of the assault with a deadly weapon count. Both parties are correct.
Mandatory enhancements must be imposed unless stricken. (See People v. Langston (2004) 33 Cal.4th 1237, 1241.) Penal Code section 12022, subdivision (b)(1), provides that “[a]ny person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.” “A conviction under section 245, subdivision (a)(1) cannot be enhanced pursuant to section 12022, subdivision (b). [Citation.]” (People v. Summersville (1995) 34 Cal.App.4th 1062, 1070.)
Section 12022, subdivision (b)(1), uses mandatory language, thus the sentencing enhancement must be imposed or stricken. The record indicates the trial court did not intend to impose the punishment mandated by the enhancement. Furthermore, because the use of a deadly weapon is an element of section 245, subdivision (a)(1), section 12022, subdivision (b)(1), does not apply. Accordingly, the personal use of a deadly weapon enhancement should have been stricken.
D. Court Security Fee
Although not raised by the parties, we note that the trial court did not impose court security fees. Section 1465.8, subdivision (a)(1), provides that “a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense....” (Italics added.) This language is mandatory. “Section 1465.8’s legislative history supports the conclusion the Legislature intended to impose the court security fee to all convictions after its operative date.” (People v. Alford (2007) 42 Cal.4th 749, 754, italics added.) Where no fee is imposed at all the judgment should be modified on appeal to include the fee. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328.) Accordingly, the judgment should be modified to include two $20 court security fees; one for each of the two counts of which defendant was convicted.
DISPOSITION
The judgment is modified to strike the deadly weapon enhancement (§12022, subd. (b)(1)) and include the imposition of two $20 court security fees (§ 1465.8). The court is directed to amend the abstract of judgment to include the court security fees, and then forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GAUT J., KING J.