Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA065302, Teri Schwartz, Judge.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ALDRICH, J.
Kucher Gukasi appeals from the judgment entered following resentencing in Los Angeles County Superior Court Case No. GA065302. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We take judicial notice of this court’s opinion in case No. B201312 (Evid. Code, § 451, subd. (a)). The summary of the facts has been taken from that opinion.
The facts are not in dispute. On April 9, 2006, Gukasi and another man, Seroj Khachadourian, became involved in an altercation. During the encounter, Gukasi cut Khachadourian on the hand with a knife.
2. Procedural history.
Following a jury trial, Gukasi was found guilty of assault with a deadly weapon or by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), during which he personally inflicted great bodily injury (§ 12022.7, subd. (a)), and an attempt to make a criminal threat (§§ 664/422). It was further found that he had previously suffered three felony convictions (§ 667, subd. (d)), and two serious felony convictions (§ 667, subd. (a)). The trial court, relying on the prior felony convictions, sentenced Gukasi as though he had suffered three strikes (§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). In total, the trial court imposed a sentence of 38 years to life in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal in case No. B201312 (People v. Gukasi (June 18, 2009) [nonpub. opn.]), it was determined that not all of Gukasi’s prior felony convictions amounted to strikes. The jury found true the allegations Gukasi had previously suffered convictions for unlawfully causing a fire that caused great bodily injury (§ 452, subd. (a)), causing a fire that caused an inhabited structure or inhabited property to burn (§ 452, subd. (b)) and making criminal threats (§ 422). All three crimes were alleged as, and found to be, serious felonies within the meaning of section 667, subdivision (a), and strikes pursuant to the Three Strikes law. However, convictions for section 452 do not amount to serious or violent felonies within the meaning of section 667, subdivision (a) or the Three Strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). (See §§ 667.5, subd. (c) & 1192.7, subd. (c).) Only Gukasi’s prior conviction for making criminal threats in violation of section 422 amounted to a serious felony within the meaning of section 667, subdivision (a) and a strike within the meaning of the Three Strikes law. (See § 1192.7, subd. (c)(38)). Accordingly, the appellate court vacated Gukasi’s sentence and remanded the matter for resentencing consistent with its opinion.
On remand, the trial court noted that it had been “instructed to vacate findings on the priors.” It was the court’s recollection that it had sentenced Gukasi “treating those offenses as serious felonies.” The court continued, “And then that case went up on appeal and was sent back with an order that those felony convictions actually were not strikes. They were not deemed serious felonies because there was a statute that took them outside the definition of serious felony, even though there was great bodily injury in that case.... [¶] So..., I will strike the true findings as to that case. And this case now is to be resentenced as a second strike instead of a third strike.”
After hearing argument by the parties, the trial court indicated that it “believe[d] that the prior criminal history of Mr. Gukasi [was] significant. And the case which was the subject of the strike prior that is not really a strike prior... can be considered as a factor in aggravation tending to show a significant prior criminal history. Also one involving the threat of great bodily injury. And that’s a conviction where [the court indicated it] believe[d] he did go to state prison. [¶] So for that reason, [the trial court stated it did] believe there [were] factors in aggravation outweighing any factor in mitigation in this matter.... [In addition, Gukasi] was on parole at the time of [this] crime....”
The trial court sentenced Gukasi to the upper term of four years for his conviction of assault with a deadly weapon or by force likely to produce great bodily injury (§ 245), then doubled the term to eight years pursuant to the Three Strikes law. With regard to the allegation he personally inflicted great bodily injury during the offense (§ 12022.7), the trial court imposed an enhancement of three years. As to count 2, the attempt to make a criminal threat (§§ 664/422), the trial court indicated that it “involve[d] the same set of facts; the same victim; [and] the same course of conduct.” The trial court imposed the middle term of one year in prison, doubled it to two years pursuant to the Three Strikes law, ran the sentence concurrently with that imposed for count 1, then stayed the term pursuant to section 654. For Gukasi’s prior serious felony conviction, making a criminal threat, the trial court imposed a consecutive five-year term. In total, the trial court sentenced Gukasi to 16 years in state prison.
The trial court awarded Gukasi credit for 1, 321 days actually served and 198 days, or 15 percent, of good time/work time for a total of 1, 519 days.
Gukasi filed a timely notice of appeal on November 30, 2009.
This court appointed counsel to represent Gukasi on appeal on February 18, 2010.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed April 23, 2010, the clerk of this court advised Gukasi to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.