Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA051175 Darlene E. Schempp, Judge.
Alan Mason, 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, Assistant Attorney General, Steve E. Mercer and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
James Nickerson appeals from a criminal judgment of conviction and sentence on four counts after court trial. Nickerson contends, the People agree, and we now find that concurrent terms imposed on two assaults with a firearm should have been stayed under Penal Code section 654. The trial court is directed to issue a corrected abstract of judgment reflecting the proper sentence; and adjusting his custody credits. In all other respects, the judgment is affirmed.
FACTS
On November 12, 2005, Christopher Ames met Nickerson to sell him marijuana. During the course of the transaction, Nickerson handed Ames less money than Ames had been expecting, and Ames protested. Nickerson responded to Ames’ protests by pulling out a handgun, shooting Ames in the chest, and then clubbing Ames in the head with the weapon, before running away with some of the marijuana. Los Angeles Police Detective Thomas Townsend investigated the shooting. On January 4, 2006, Detective Townsend interviewed Nickerson by phone. Nickerson admitted that he had shot Ames, but claimed the gun had discharged accidentally. Nickerson agreed to see Detective Townsend the next day.
In May 2007, the People filed an information charging Nickerson with the following counts: count 1, second degree robbery, with firearm allegations under Penal Code section 12022.53, subdivisions (b) [personal use], (c) [discharge], and (d) [discharge causing great bodily injury]; count 2, assault with a firearm (based on the clubbing), with a firearm allegation under section 12022.5 [personal use], and an infliction of great bodily injury (GBI) allegation under section 12022.7, subdivision (a); count 3, assault with a firearm (based on the shooting), with an infliction of GBI allegation under section 12022.7, subdivision (a); and count 4, possession of a firearm by a felon.
All further section references are to the Penal Code. The People later dismissed the allegation under section 12022.53, subdivision (d).
The information additionally alleged that Nickerson had suffered a prior burglary conviction which qualified as both a strike and as a prior serious felony conviction, and that he had three prior convictions for which he had served prison terms. (§ 667, subds. (b)-(i), § 1170.12, subds. (a)-(d), § 667, subd. (a)(1), § 667.5, subd. (b).)
At a court trial in December 2008, the People presented evidence establishing the facts summarized above. Nickerson did not present defense evidence; his trial counsel argued that there was reasonable doubt whether Nickerson had intentionally shot Ames.
On December 19, 2008, the trial court found Nickerson guilty as charged in counts 2, 3, and 4, and found true the ancillary firearm and GBI allegations. The court found the prior conviction allegations to be true. The court took count 1 under submission to mull over the question whether Nickerson could be guilty of robbery for taking an illegal substance, i.e. marijuana. On December 22, 2008, the trial court found Nickerson guilty of second degree robbery, with firearm findings pursuant to section 12022.53, subdivisions (b) [personal use], and (c) [discharge].
On January 14, 2009, the trial court sentenced Nickerson to an aggregate term of 24 years in state prison as follows: on count 1 (robbery): 2 years, doubled to 4 years for the strike, plus 20 years for the firearm enhancement under section 12022.53, subdivision (c); on count 2 (assault with a firearm/clubbing): 10 years concurrent; on count 3 (assault with a firearm/shooting): 7 years concurrent; and on count 4 (possession of a firearm by a felon): 2 years, 8 months concurrent.
DISCUSSION
I. Section 654
Nickerson contends, the People concede, and we find that the concurrent terms imposed on counts 2 and 3 (the assaults with a firearm) should have been stayed instead under section 654. As the People recognize, Nickerson’s assault crimes were committed to effectuate the robbery, implicating section 654. (See, e.g., People v. Medina (1972) 26 Cal.App.3d 809, 824.)
II. Custody Credits
At the time of sentencing, Nickerson’s defense counsel advised the trial court that Nickerson was entitled to four days of actual custody credit, and the trial court’s minute order, and the abstract of judgment, reflect four days of actual custody credit. On appeal, Nickerson contends he is more correctly entitled to nine days of actual custody credit. The People respond that Nickerson has shown no more than a “conflict in the record,” which means we “should reject his [custody credit] contention.” We are satisfied that the record discloses enough information to show that Nickerson did, in fact, surrender himself into police custody on January 5, 2006, and that he posted bond on January 13, 2006. Given his 24-year sentence, we will not begrudge Nickerson the additional five days of custody credits which he has shown are his, and will direct the trial court to grant Nickerson nine days of custody credits, rather than the four currently noted. The People concede that Nickerson is entitled to one day of good time/work time credit if this court finds he is entitled to the additional actual time credit. Since we find him so entitled, we also award him one additional day of conduct credit. At the same time it corrects the abstract of judgment to reflect the stayed terms discussed above, the court is directed to grant Nickerson these additional days of custody credit.
DISPOSITION
The trial court is directed to issue a corrected abstract of judgment which reflects an aggregate sentence of 24 years, with the corrections noted in this opinion. In all other respects, the judgment is affirmed.
We concur: FLIER, J., MOHR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.