Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA269725, Michael Johnson, Judge.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
PERLUSS, P. J.
This case comes before us on appeal for a second time, following our remand for resentencing. (People v. Moore (July 26, 2006, B184718) [nonpub. opn.].) Leander C. Moore was charged by information with assault by means of force likely to produce great bodily injury (count one) and battery causing serious bodily injury (count two) (Pen. Code, §§ 245, subd. (a)(1), 243, subd. (d)). It was also specially alleged Moore had personally inflicted great bodily injury in committing each offense (§ 12022.7, subd. (a)), had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served two separate prison terms for felonies (§ 667.5, subd. (b)).
Statutory references are to the Penal Code.
The trial evidence was that Moore and Ezekiel Duran were roommates at a half-way house in Los Angeles. During a heated argument, Moore struck Duran causing him to fall to his knees. Moore continued to hit Duran until Moore was restrained by a counselor. Duran suffered a fractured cheekbone, bruises and cuts that required stitches to close. (People v. Moore, supra, B184718.)
A jury convicted Moore of both counts and found true the great bodily injury enhancements. In a bifurcated proceeding the trial court found true the additional sentencing enhancements. The trial court dismissed the aggravated assault count as a lesser included offense and sentenced Moore to an aggregate state prison term of 16 years, consisting of the middle term of three years for felony battery doubled pursuant to the Three Strikes law, plus three years for the great bodily injury enhancement, five years for the prior serious felony enhancement and two years for the prior prison term enhancements. The court awarded 387 days of presentence custody credits, limiting Moore’s conduct credits pursuant to section 2933.1. (People v. Moore, supra, B184718.)
Moore appealed, contending his conviction for battery causing serious bodily injury cannot be enhanced for personally inflicting bodily injury. We concluded the trial court had imposed an unauthorized sentence that must be corrected on remand. (See People v. Smith (2001) 24 Cal.4th 849, 854.) The court improperly dismissed count one for aggravated assault as a lesser included offense and mistakenly imposed the section 12022.7 enhancement on count two for aggravated battery. We also suggested that the court ensure it properly imposes the section 2933.1’s limit on presentence worktime credits when Moore is resentenced. (People v. Moore, supra, B184718.)
At Moore’s second hearing on January 30, 2007, the trial court sentenced Moore as a second strike offender to an aggregate term of 16 years: six years or double the three-year middle term for aggravated assault (count two), plus three years for the section 12022.7, subdivision (a) enhancement, plus five years for the section 667, subdivision (a) prior serious felony enhancement, plus two years for the section 667.5, subdivision (b) prior prison term enhancements. Sentencing on count two for aggravated battery was stayed under section 654.
The trial court calculated that as of January 30, 2007 Moore had earned presentence custody credit of 951 days (901 days actual and 216 days of conduct credit); he had properly received 387 days (337 actual days and 50 days of conduct credit) as of July 15, 2005 when he was originally sentenced. The court confirmed its earlier order Moore was to pay a $20 security assessment and a $3,200 restitution fine. A parole revocation fine was reimposed and suspended pursuant to section 1202.45.
We appointed counsel to represent Moore on appeal. After examination of the record counsel filed an “Opening Brief” in which no issues were raised. On August 6, 2007 we advised Moore he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date.
We have examined the entire record and are satisfied Moore’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.