Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA103151, Jerry E. Johnson, Judge.
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Guillermo Rodriguez appeals from a judgment of conviction entered after a jury found him guilty of arson of property of another (Pen. Code, § 451, subd. (d); count 1), possession of flammable material (§ 453, subd. (a); count 2), and assault with a deadly weapon (§ 245, subd. (a)(1); counts 3 and 4). With respect to all counts, the jury found true the allegation that the offenses were gang-related (§ 186.22, subd. (b)(1)(A), (b)(1)(B)).
All statutory references are to the Penal Code.
The trial court sentenced defendant to a total state prison term of nine years. On count 3, the base term, the court imposed the midterm of three years, plus five years for the gang enhancement. On counts 1 and 2, the court imposed concurrent terms of eight months each (one-third the midterm of 24 months). On count 4, the court imposed a consecutive term of one year (one-third the midterm of three years). The court gave defendant a total of 148 days of presentence credits, consisting of 130 days of actual custody credits and 18 days of conduct credits.
Defendant challenges the trial court’s discharge of a juror, denial of a continuance for cellular telephone expert testimony, instruction to the jury with respect to count 4, and award of presentence credits. He also contends the evidence is insufficient to support his conviction for assault with a deadly weapon or, in the alternative, his conviction for arson. We reverse the judgment as to the sentence. In all other respects, we affirm the judgment.
FACTS
A. Prosecution
On May 26, 2008, E.E. and his brother, Ernesto, lived on West 151st Street in Compton with their family. E.E. was 14 years old. Ernesto was 20 years old. E.E. was standing on the front porch around 11:20 p.m. when he saw a black Nissan and a black Acura drive eastbound by his house with their headlights turned off. E.E. recognized the vehicles because he previously had seen them drive by his house. He also had seen them while driving around the neighborhood.
Although it was dark, E.E. could see the drivers. A lamp post directly across the street from his house enabled E.E. to have a clear view of defendant, who was driving the Nissan and had his window rolled down halfway. E.E. could not see the passenger. Miguel B. (Miguel) was driving the Acura and his brother, Eric, was the passenger.
E.E. recognized defendant because defendant had talked with Ernesto earlier that afternoon in front of their house. E.E. had also seen defendant three other times in the neighborhood. E.E. knew defendant as “Felon” but did not know if he was a gang member.
E.E. was scared. He went into his house and told Ernesto that defendant and Miguel were outside. Ernesto and E.E. went out to the front porch. The Nissan and Acura had made U-turns and were headed west.
Ernesto also saw defendant driving the Nissan but could not see the passenger. He saw that Miguel and Eric were in the Acura.
Ernesto recognized defendant because on about ten occasions previously, Ernesto had encountered defendant. Once defendant threatened Ernesto with a bat, saying he was “Felon” from 155. Ernesto recognized Miguel and Eric because previously, he had had altercations with them and other members of the Compton Varrio 155 gang. In the first altercation, Eric and other gang members harassed Ernesto about hanging out with African-Americans, referring to them by a racially charged derogatory term. Shortly before the incident, defendant made a similar accusatory statement to Ernesto while Ernesto was playing basketball with some African-Americans.
Defendant stopped the Nissan in front of E.E. and Ernesto’s house and he threw a bottle with a fire-lit rag, sometimes referred to as a Molotov cocktail or a fire bomb, toward the house. Ernesto saw through the windshield that defendant was looking toward him and E.E. when he threw the bottle. Defendant was about 21 feet from the front door at the back of the front porch.
The bottle hit a tree standing about 15 feet away from E.E. and Ernesto. The tree caught on fire. E.E. could feel the heat from the fire. Ernesto believed defendant was aiming at the front door but the tree was in the way. E.E. and his sister-in-law sprayed water from a hose onto the burning tree. The Nissan and the Acura drove away.
The incident was reported to the police. After the police came to investigate, E.E. and Ernesto pointed out the Acura as it passed by their house. The police stopped the Acura. E.E. and Ernesto identified the Acura driver as Miguel.
During the investigation the following day, E.E. identified defendant from a photographic lineup as the person who threw the bottle, and E.E. was certain about his identification. From another photographic lineup, E.E. also identified the Acura passenger as Eric. Similarly, Ernesto identified defendant as the bottle-thrower and was “a hundred percent” sure of his identification. Ernesto also identified Eric.
Fire Captain Vincent Capelle investigated the scene. He observed that the tree had a char pattern approximately four feet from the ground and another char pattern at the base of the tree. He found the Molotov cocktail at the base of the tree. Captain Capelle described a Molotov cocktail as an “incendiary device that is commonly used to accelerate a fire, have a fire take place and for it to grow quickly.”
Captain Capelle explained that a Molotov cocktail “creates a large fire from the vapors that occur with the splashing particle of the gasoline-particles of the accelerant that comes from the breaking of the glass.” In Captain Capelle’s opinion, the Molotov cocktail hit the higher point on the tree first and then fell to the base of the tree. He opined that an act of arson, using the Molotov cocktail, caused the tree to be burned.
Los Angeles Sheriff’s Deputy Telly Johnson arrested defendant the day after the incident. Defendant told Deputy Johnson he was an active member of the Compton Varrio 155 gang and his gang moniker was “Felon.”
Los Angeles Sheriff’s Deputy Carlos Herrera was the People’s gang expert witness. Deputy Herrera testified that the Compton Varrio 155 gang was a Hispanic gang, and E.E. and Ernesto’s house was within the gang’s territory. According to Deputy Herrera, defendant was a self-admitted member of the gang and his gang moniker was “Felon.” Miguel and Eric were also members of the Compton Varrio 155 gang. In response to a hypothetical question based on the evidence presented, Deputy Herrera opined that the offenses were gang-related.
B. Defense
Martha Zamudio (Zamudio), Carmen Fuentes (Fuentes) and Gloria Lopez (Lopez) testified to establish an alibi defense.
Zamudio, defendant’s aunt, testified that defendant was at her house on May 26, 2008, until around 7:00 or 7:30 p.m. She did not know where defendant was between 8:00 p.m. and midnight.
Fuentes, defendant’s neighbor, saw defendant come home at 8:00 p.m. She did not know whether defendant left his house later that evening.
Lopez, defendant’s mother, testified that defendant returned home around 8:00 p.m. and went to his room. She did not see or hear defendant leave after that time. Lopez testified that she never told the investigating detective, fire captain or prosecutor that defendant was at home during that time.
C. Rebuttal
Los Angeles Sheriff’s Detective Richard Sanchez testified that from defendant’s cellular telephone records for calls between 8:00 p.m. and midnight on May 26, Detective Sanchez determined the telephone made and received between five to eight telephone calls. Based upon the application of the triangulation concept, the detective determined that defendant’s cellular telephone “was moving around” from one location to another, in that the telephone was using cellular signals from five different cellular towers. At 9:20 p.m., the telephone used different cellular towers between Compton and Gardena and, at 10:52 p.m., the telephone used towers between Compton and Rosemead. Detective Sanchez explained that if defendant’s cellular telephone had been stationary at a single location, such as defendant’s house, the telephone would not have used multiple cellular towers.
DISCUSSION
A. Discharge of Juror No. 1
Defendant contends that the trial court made an error prejudicial to defendant, in that the court discharged Juror No. 1 based upon the court’s finding that she was impermissibly biased by information she gleaned in the hallway during trial. We disagree.
On the third day of trial, the trial court informed all counsel that Juror No. 1 had apparently talked with two women “on the defense side of the case, ” and one of the women said she was defendant’s aunt, but the juror reported that the conversation had nothing to do with the case. The prosecutor moved to have the juror removed and replaced with an alternate. The trial court declined to act on the motion until the court had asked the juror about the content of the conversation.
Out of the presence of the other jurors and the audience, the prosecutor asked Juror No. 1 about the circumstances and content of the juror’s conversation. Juror No. 1 stated that she was sitting outside the courtroom, reading a magazine. Three women sat down. While they were chatting, the subject of kachina dolls came up. When one of the women could not remember the name of the dolls, Juror No. 1 said, “Oh, kachina dolls.” Later, they were talking about Viagra. Juror No. 1 told the court, “So we were kind of laughing and talking about that.”
Juror No. 1 explained to the court that she returned to reading her magazine. Then she saw a woman sitting with defendant and his family across the hallway. Juror No. 1 continued as follows:
“So apparently they were talking about, ‘Are we going to go inside?’ And they said, ‘Well, no, I can’t go in, I’m a witness. I have to wait out here.’
“And then the woman in the middle, she said, ‘Well, I’m the boy’s auntie, I’m going in.’
“But, you know, she looked African-American, and I know mixed families and everything like this, but there had been no interchange between them before that, and it was just something-And then so when they said, ‘I’m the boy’s auntie, I’m going in, ’ I said, ‘Oh, Lord, I’ve had a conversation with them, let me ask the question.’”
The court asked Juror No. 1 whether she had shared the information with anyone else. Juror No. 1 said that she told the bailiff but did not tell any other juror. Defense counsel declined to question the juror but argued that Juror No. 1’s account of the hallway incident “did not rise to the level of impropriety.” Then he submitted the matter to the court.
The trial court granted the prosecutor’s motion and discharged Juror No. 1. The court explained to counsel that being privy to the hallway conversation gave Juror No. 1 information about the relationship of the woman to defendant as being a member of his family and, as a result, the juror had been influenced in a manner that the court could not correct. The court said that the People’s case relied on evidence of racial bias against African-Americans by defendant and the gang in which he was a member. The court noted that Juror No. 1 was neither an African-American nor a Hispanic person, but there was “a likelihood” that the information she was exposed to in the hallway would have some persuasive effect on Juror No. 1 “against the evidence” the People had presented.
For example, the People presented evidence that the first event leading up to the fire bombing occurred when Ernesto was playing basketball with African-Americans. Hispanics who were Compton Vario 155 gang members repeatedly passed by and asked Ernesto why he was hanging around with African-Americans. The gang members used a racially-charged derogatory name to refer to African-Americans.
Defendant asserts that the only question before the court “was whether, innocently overhearing a woman who she thought looked African-American, who was sitting with [defendant], say to someone else, ‘I’m the boy’s auntie, ’ constituted juror misconduct that presumably would deprive the People of a fair trial.” Defendant contends that the trial court’s discharge of Juror No. 1 was reversible error, in that the right to a fair trial belonged to him, not the People, and there was no showing that, as a result of the incident, Juror No. 1 was actually biased against the People.
A trial court has discretion to discharge a juror upon good cause shown that the juror is unable to perform his or her duty. (§ 1089; People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) “We review a trial court’s decision to discharge a juror under an abuse of discretion standard, and will uphold such decision if the record supports the juror’s disqualification as a demonstrable reality.” (People v. Wilson (2008) 43 Cal.4th 1, 26; accord, Barnwell, supra, at pp. 1052-1053.) “Many cases have considered the exercise of this trial court discretion” to discharge a juror on the basis of good cause, but “[f]ew have found abuse” of the discretion. (People v. Halsey (1993) 12 Cal.App.4th 885, 892.)
We consider the evidence as well as the trial court’s stated reasons for discharging the juror. (People v. Barnwell, supra, 41 Cal.4th at p. 1053.) We defer to the trial court to the extent the trial judge’s first hand observations of the juror in question and assessment of the juror’s credibility enter into the decision to discharge the juror. (See People v. Wilson (2008) 44 Cal.4th 758, 832; Barnwell, supra, 41 Cal.4th at pp. 1052-1053.) A trial court’s finding of bias “is based, to a significant extent, on ‘“first-hand observations made in open court, ”’ which that court itself is best positioned to interpret. [Citation.]” (People v. Ault (2004) 33 Cal.4th 1250, 1267.)
As previously noted, we will uphold the trial court’s decision “if the record supports the juror’s disqualification as a demonstrable reality.” (People v. Wilson, supra, 43 Cal.4th at p. 26.) The demonstrable reality test requires “a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias [or another basis for disqualification] was established.” (People v. Barnwell, supra, 41 Cal.4th at pp. 1052-1053; accord, Wilson, supra, at p. 26.)
The record reveals evidence sufficient to show a demonstrable reality that there could be no assurance that Juror No. 1 would be unaffected by the hallway contact and able to limit her consideration only to an unbiased view of the evidence presented at trial in order to decide defendant’s guilt or innocence. Whether characterized as the right of a defendant or the People, a verdict by impartial jurors based only on the evidence presented at trial is constitutionally required. (U.S. Const., 6th & 14th Amends.; see also, Cal. Const., art. I, §§ 7 & 15; Turner v. Louisiana (1965) 379 U.S. 466, 472-473 [85 S.Ct. 546, 13 L.Ed.2d 424]; People v. Nesler (1997) 16 Cal.4th 561, 578.)
The California Supreme Court, however, has “rejected the notion that ‘the [P]eople’s right to due process of law must be the exact equivalent to a criminal defendant’s right to due process.’ [Citation.]” (People v. Ault, supra, 33 Cal.4th at p. 1269.)
A juror’s “inadvertent exposure to out-of-court information... gives rise to a presumption of prejudice” which “falls within the general category of ‘juror misconduct.’” (People v. Nesler, supra, 16 Cal.4th at p. 579; accord, People v. Ramos (2004) 34 Cal.4th 494, 519.) Such exposure runs afoul of the defendant’s 6th and 14th Amendment rights to trial by a jury in which every juror is unbiased and impartial. (Nesler, supra, at p. 578.) Thus, there is a presumption that the talking in the hallway reported by Juror No. 1 prejudiced the juror sufficiently to disqualify her. (Id. at p. 579.) When offered the opportunity by the trial court, counsel for defendant declined to question Juror No. 1 and, therefore, did not elicit from her or otherwise offer any information to rebut the presumption. The trial court therefore did not err in discharging Juror No. 1.
B. Continuance Denial
Defendant contends that reversal is required due to the trial court’s denial of a continuance to allow him to obtain a cellular telephone expert to rebut testimony by the People’s expert contradicting defendant’s alibi defense. We disagree.
Defendant’s mother, Lopez, testified that on May 26, 2008, defendant was at home at 8:00 p.m., and she did not see or hear him leave his room after that time. On cross-examination, Lopez testified that defendant had a cellular telephone that only he used.
To rebut her alibi testimony, the prosecutor proffered defendant’s cellular telephone records which, the prosecutor explained, had been “triangulated to determine that... [defendant] was not in fact at his residence, or at least his cell phone wasn’t.” The prosecutor provided the court with a report detailing the meaning of the records and related proposed expert testimony. Defense counsel objected and requested a continuance to obtain an expert for the defense. The trial court declined to rule on the request until the next morning, at which time defense counsel was to inform the court about the likelihood of obtaining an expert and to have an opportunity to argue for a continuance. The court recessed the trial until the next morning.
The next morning was Thursday and the following weekend would be a three-day holiday weekend. When the trial proceedings resumed, the trial court confirmed that defense counsel would have to identify an expert and make an offer of proof that the expert would actually be able to rebut the People’s expert witness. Defense counsel recounted his unsuccessful efforts to obtain an expert as yet but said he hoped to get the name of an expert by the afternoon session.
Since the People’s expert, Detective Sanchez, was already present, the court allowed the prosecutor to present his testimony.
After the testimony, defense counsel suggested a recess until Tuesday “to deal with this issue.” The court reiterated that, if defense counsel could make an offer of proof that Detective Sanchez’s opinions could be disputed or if counsel had an expert that could dispute the opinions, then the court would be willing to give counsel a chance to get the expert in to testify. The court recessed until 2:00 p.m.
In the afternoon when proceedings resumed, defense counsel informed the court that he was “unable to make an offer of proof to rebut the People’s expert’s testimony” and again requested a continuance until Tuesday. The court asked if counsel had any indication that any expert opinion existed which could rebut Detective Sanchez’s testimony. Defense counsel responded that he had such an indication as to “at least one of the points, ” but not as to the triangulation testimony.
The trial court noted that it had given defense counsel some time to determine if there was “some possibility of rebutting testimony, ” but the court had not heard “any real concrete evidence” that there was such a possibility. Defense counsel informed the court that such evidence “might be out there. There might be an expert. I don’t have that at this point.” He said that he did not know if such an expert existed, but if there were such an expert, he did not “think that expert would be immediately available.” Defense counsel concluded by submitting the matter to the court. The court found that defendant had no witnesses to call on surrebuttal and denied the request for continuance.
The trial concluded and the matter was submitted to the jury later that day. On the next day, Friday, the jury deliberated and reached its verdict.
We review the denial of a motion for a midtrial continuance for abuse of discretion (People v. Sakarias (2000) 22 Cal.4th 596, 646), that is, to determine whether the trial court’s decision “‘exceeds the bounds of reason, all circumstances being considered’” (People v. Froehlig (1991) 1 Cal.App.4th 260, 265). The trial court has discretion to grant a continuance upon a showing of good cause. (§ 1050, subd. (e); People v. Jenkins (2000) 22 Cal.4th 900, 1037.) When determining whether to grant or deny a midtrial continuance with respect to presenting a witness, the trial judge must consider the benefit the moving party expects, “‘the likelihood that such benefit will result, [and] the burden on other witnesses, jurors and the court....’” (People v. Zapien (1993) 4 Cal.4th 929, 972.) If the moving party fails to demonstrate “that a continuance would be useful in producing specific relevant mitigating evidence within a reasonable time, ” a trial court’s denial of the continuance does not constitute an abuse of discretion. (Jenkins, supra, at pp. 1037-1038.) Denial of a defendant’s motion for continuance does not require reversal if there is no showing of an abuse of discretion and prejudice to the defendant. (People v. Samayoa (1997) 15 Cal.4th 795, 840.)
Defendant has failed to show that the denial of his motion for continuance was an abuse of discretion or prejudicial to him. Despite the court affording defense counsel opportunities to do so by recessing overnight and then recessing again the next day between the morning and afternoon sessions, defense counsel was unable to represent to the court that he had obtained an expert or that there was a “likelihood” of obtaining “specific relevant mitigating evidence” contradicting Detective Sanchez’s opinions based upon the triangulation concept. Defense counsel could only offer speculation that a rebuttal expert or rebuttal evidence even existed. As to whether any such evidence could be produced “within a reasonable time, ” defense counsel said that he did not think any expert would be immediately available. Thus, defense counsel was unable to demonstrate to the court that any relevant mitigating evidence could be produced within a reasonable time or at all. In addition, at the time defense counsel requested the continuance, the presentation of evidence at trial was almost completed and, in fact, closing arguments were completed and the case was submitted to the jury by the end of the day on Thursday. Under the circumstances, granting a continuance until the following Tuesday would have imposed an unreasonable burden on the court, the jurors, and probably, Detective Sanchez. The trial court’s denial of a continuance until Tuesday did not constitute an abuse of discretion. (People v. Jenkins, supra, 22 Cal.4th at pp. 1037-1038; People v. Zapien, supra, 4 Cal.4th at p. 972.)
In any event, error in denying the continuance, if any, was harmless and does not require reversal. To obtain a reversal, a defendant must show he was prejudiced by the court’s error, in that, in the absence of the error, he would probably have obtained a more favorable result. (People v. Panah (2005) 35 Cal.4th 395, 423; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1549.) The overwhelming evidence of defendant’s guilt shows that, even if the court had granted the continuance, it was not reasonably probable defendant would have obtained a more favorable result. Both victims knew defendant prior to the firebombing incident. Both victims unequivocally identified defendant as the perpetrator. As a result, defendant’s alibi was not credible, even without expert testimony regarding the cellular telephone movement. There being no showing of an abuse of discretion or prejudice to defendant with respect to the trial court’s denial of the continuance, reversal is not required. (People v. Samayoa, supra, 15 Cal.4th at p. 840.)
C. Jury Instruction on Count 4
Defendant was charged with the same offense in counts 3 and 4: the crime of assault with a deadly weapon, in violation of section 245(a)(1). The only difference was the name of the victim. The jury instruction the court gave was a slightly modified version of CALCRIM No. 875, which sets out the elements of assault with a deadly weapon. The opening sentence mentioned count 3, but not count 4, as follows: “The defendant is charged [in Count 3] with assault with a deadly weapon [in violation of... section 245].”
Defendant claims the trial court failed to instruct the jury on count 4, assault with a deadly weapon upon Ernesto, and the failure constituted structural error requiring reversal. In such circumstance, according to defendant, the nature of the structural error is instructional error which withdraws from jury consideration all of the elements of the offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1312-1315.) Defendant does not dispute the sufficiency of the jury instruction given as to count 3, assault with a deadly weapon on E.E.
Whether or not the instruction expressly referred to count 4 does not alter the fact that the trial court instructed the jury on all of the elements of the crime of assault with a deadly weapon in violation of section 245. Thus, the instruction satisfied the trial court’s obligation to instruct the jury on the general principles of law governing the case with respect to each crime charged in counts 3 and 4. (People v. Cummings, supra, 4 Cal.4th at p. 1311.)
The test for instructional error is “whether there is a ‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel. [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277.) “It is well established that the instruction ‘may not be judged in artificial isolation, ’ but must be considered in the context of the instructions as a whole and the trial record. [Citation.]” (Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 116 L.Ed.2d 385].)
The jury had access to the information which charged defendant with assault with a deadly weapon of E.E. in count 3 and of Ernesto in count 4. The jury also used the verdict forms for counts 3 and 4 which repeated the charges. In light of the trial record and the instructions given, there is no reasonable likelihood that the jury misapplied the law in reaching its verdict as to count 4. (People v. Dieguez, supra, 89 Cal.App.4th at pp. 276-277.) There was no instructional error requiring reversal.
D. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence as to counts 1, arson, and counts 3 and 4, assault with a deadly weapon. In essence, he argues that the evidence is insufficient to convict him of assault with a deadly weapon (counts 3 and 4), but if the evidence is determined to be sufficient as to that offense, then it necessarily is insufficient for conviction of arson (count 1).
To determine the sufficiency of evidence for conviction of a crime, we review the entire record to evaluate “‘whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.’” (People v. Crittenden (1994) 9 Cal.4th 83, 139.) We affirm the judgment if, viewing the evidence in the light most favorable to the People, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Frye (1998) 18 Cal.4th 894, 953.)
The elements of an assault with a deadly weapon are as follows: (1) the defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person, (2) he was aware of facts that would lead a reasonable person to realize such nature of the deadly weapon, (3) he did the act willfully, and (4) had the present ability to apply force with the deadly weapon. (§§ 240, 245; People v. Williams (2001) 26 Cal.4th 779, 784-799; CALCRIM No. 875.)
Defendant does not challenge the finding that a Molotov cocktail is a deadly weapon. He also does not dispute the findings that he actually hurled the burning weapon into the yard and it hit the tree. Defendant refers to and gives a detailed interpretation of evidence presented at trial to arrive at his conclusions that he was aiming at the tree rather than E.E. or Ernesto and, under the circumstances, he did not have the physical ability to hurl the 40-ounce Molotov cocktail with any expectation of hitting or injuring E.E. and/or Ernesto.
Whether defendant aimed at the tree or at E.E. and/or Ernesto is irrelevant. Assault with a deadly weapon is a general intent crime. (People v. Valdez (2002) 27 Cal.4th 778, 787; People v. Colantuono (1994) 7 Cal.4th 206, 214-215.) Evidence of the defendant’s intent to use physical force against a particular person and evidence of whether or not the defendant knew his act would probably result in force being applied to a person are irrelevant to the determination of whether the defendant committed the crime. (People v. Craig (1991) 227 Cal.App.3d 644, 650.) “‘[T]he use of the described force [i.e., hurling the Molotov cocktail] is what counts, not the intent with which same is employed.’ [Citation.] [T]he offensive or dangerous character of the defendant’s conduct, by virtue of its nature, contemplates” a wrongful act committed by means of physical force against another person. (People v. Colantuono, supra, 7 Cal.4th at pp. 214-215.)
“‘A crime is characterized as a “general intent” crime when the required mental state entails only an intent to do the act that causes the harm; a crime is characterized as a “specific intent” crime when the required mental state entails an intent to cause the resulting harm.’ [Citation.]” (People v. Atkins (2001) 25 Cal.4th 76, 86.)
Defendant’s assertions regarding evidence of whether, given the facts, defendant actually possessed the physical ability or strength to hit E.E. or Ernesto with the Molotov cocktail are also irrelevant. The element of “present ability” does not mean certain success or even a high probability of success in applying physical force to a person. (People v. Craig, supra, 227 Cal.App.3d at p. 650.) The element requires only that a defendant had the means and location to inflict injury during the time of the incident. (People v. Chance (2008) 44 Cal.4th 1164, 1168, 1172.) Evidence that a defendant aimed a deadly weapon in the direction in which a person was standing is sufficient for the purposes of proving “present ability.” (See People v. Griggs (1989) 216 Cal.App.3d 734, 742-743.) “[A]n assault may be committed even if the defendant is several steps away from actually inflicting injury, or if the victim is in a protected position.” (Chance, supra, at p. 1168.) Thus, defendant’s claim that E.E. and Ernesto could have avoided injury by moving out of the path of the weapon is likewise irrelevant. “‘The fact [a] victim takes effective steps to avoid injury has never been held to negate... “present ability.”’ [Citations.]” (Id. at p. 1174; see also Craig, supra, at pp. 649-650 [external circumstances rendering it impossible to inflict injury by the weapon used are irrelevant].)
The record reveals evidence that defendant purposely hurled the Molotov cocktail toward the front yard, he was sufficiently close for the weapon to land in the yard, and E.E. and Ernesto were standing in the front yard. Accordingly, substantial evidence supports the jury’s verdicts on the charges of assault with a deadly weapon in counts 3 and 4. (People v. Chance, supra, 44 Cal.4th at pp. 1168, 1172; People v. Colantuono, supra, 7 Cal.4th at pp. 214-215.)
We see no merit in defendant’s contention that, if substantial evidence supports his convictions for assaults with a deadly weapon, then the evidence is insufficient to support his conviction for arson (count 1). As is the case with the offense of assault with a deadly weapon, arson is a general intent crime. (People v. Atkins, supra, 25 Cal.4th at p. 84.) A person commits arson “when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.” (§ 451.) The only intent required is “a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property. [Citations.]” (Atkins, supra, at p. 89.)
In the context of section 451, the word “‘[m]aliciously’ imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” (§ 450, subd. (e).) “‘The word “willfully, ” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.’” (People v. Atkins, supra, 25 Cal.4th at p. 85.)
Thus, proof that defendant specifically intended to set the tree on fire is not required. Substantial evidence is needed to support only a finding that defendant “willfully and maliciously” threw a burning fire bomb and the thrown fire bomb caused property to be burned. There is substantial evidence that defendant threw the fire bomb toward the front porch of E.E. and Ernesto’s home at least to annoy them, whether or not defendant intended to injure them. That defendant acted willfully is shown by evidence that some preparation went into the burning fire bomb, defendant positioned his vehicle on the street near the front of the house and hurled the fire bomb toward the front of the house. We conclude that substantial evidence supports the jury’s verdict finding defendant guilty of the crime of arson (count 1). (People v. Atkins, supra, 25 Cal.4th at p. 89.)
E. Conduct Credit
Defendant contends, and the People agree, that he is entitled to more presentence custody credits than he was awarded at the time of sentencing. The trial court awarded total credits of 148 days, consisting of 130 actual days of custody credits and 18 days of conduct credits, which was equal to 15 percent of his custody credits. Defendant asserts that conduct credits should not be limited to 15 percent, but should be 64 days, the full amount permitted pursuant to section 4019. We agree as to the increased amount, but based upon an analysis which differs slightly from the parties’ analyses.
Section 4019 sets forth the criteria and formula for awarding presentence conduct credits for willingness to work and good behavior. (People v. Thomas (1999) 21 Cal.4th 1122, 1125.) Pursuant to section 2933.1, subdivision (a), however, for a defendant convicted of any “violent felony” listed in section 667.5, subdivision (c), worktime credit is limited to no more than 15 percent of the total worktime that would otherwise be included in the award of presentence credits. Section 667.5, subdivision (c)(10), lists “[a]rson, in violation of subdivision (a) [causing great bodily injury] or (b) [causing an inhabited structure or property to burn] of Section 451.”
Section 2933.1, however, does not apply to defendant. He was convicted of arson, as defined in section 451, subdivision (d) [burning personal property or causing it to be burned], which is not listed as a “violent felony.” None of the other offenses for which defendant was convicted is listed as a “violent felony.” Thus, the 15 percent limitation on worktime credit does not apply when calculating defendant’s presentence credits. The trial court erred in applying the 15 percent limitation specified in section 2933.1.
The trial court has a duty to award the correct amount of conduct credits. (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 9.) Having established that the trial court erred in the formula it used to calculate the amount of conduct credits, we shall re-calculate the number of presentence credits to arrive at the correct amount.
Defendant asserts that the calculation should be made using the formula in the former version of section 4019, which was explained in People v. Kimbell (2008) 168 Cal.App.4th 904 at pages 908 to 909, as follows: “Under Penal Code section 4019, a defendant receives two days of conduct credit for each four-day block of time served. ‘The proper method of calculating presentence custody credits is to divide by four the number of actual presentence days in custody, discounting any remainder. That whole-number quotient is then multiplied by two to arrive at the number of good/work credits. Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits. [Citations.]’ [Citation.]” (Accord, People v. Madison (1993) 17 Cal.App.4th 783, 786-787.)
There is a question as to whether the applicable version of section 4019 is the “original version” which was in effect prior to that date, including at the time defendant was sentenced in May 2009, or the subsequent version which became effective on January 25, 2010 (“January 2010 version”). The issue of the retroactivity of the January 2010 version under such factual circumstances as applicable to defendant is pending before the Supreme Court. With respect to defendant, however, the calculation is the same under both the original version and the January 2010 version and, therefore, we need not decide the retroactivity issue.
See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Eusebio (2010) 185 Cal.App.4th 990, review granted September 22, 2010, S184957; People v. Keating (2010) 185 Cal.App.4th 364, review granted September 22, 2010, S184354.
The January 2010 version changed the formula to give two days of credit for each four-day period in custody (§ 4019, subds. (b)(1), (c)(1)) in general, but to leave the formula as in the original version, that is, to give two days of credit for each six-day period in custody, for calculation of credit for any prisoner who “is required to register as a sex offender pursuant to... Section 290 [et seq.], was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5.” (§ 4019, subds. (b)(2), (c)(2).) Defendant is a prisoner who is being “committed for a serious felony, as defined in Section 1192.7.” (§ 4019, subds. (b)(2), (c)(2).) He was convicted of arson (§ 1192.7, subd. (c)(14)) and assault with a deadly weapon in violation of section 245 (§ 1192.7, subd. (c)(31)). As a result, calculation of defendant’s presentence custody credits by applying the January 2010 version would be according to the same formula applicable under the original version.
The applicable formula for calculation of defendant’s conduct credits is to divide the number of actual days in custody by four, excluding any remainder, and to multiply the result by two. The total of defendant’s actual days in custody is 130. The result of dividing 130 by 4 is 32.5. Excluding the remainder, the result is 32, which when multiplied by two equals 64. Thus, the number of conduct credits to be awarded to defendant is 64. The total presentence credits is the sum of the actual custody days-130-plus the conduct credits-64, for total credits equal to 194. The judgment must be modified to correct the presentence credits accordingly.
F. Other Sentencing Errors
The sole sentencing issue raised by the parties was the conduct credit correction. In the process of addressing the issue, however, we became aware of some discrepancies between the court’s pronouncement of sentence at the sentencing hearing, the related minute order, and the abstract of judgment. Most notably, we found no disposition for three of the four gang enhancements (§ 186.22, subd. (b)(1)(A)) which the jury found true. Section 1170.1, subdivision (d), requires a trial court to impose an additional term for an enhancement found true, to run consecutive to the terms selected for the related offense of which the defendant was convicted. Alternatively, where the enhancement is a section 186.22 gang enhancement, subdivision (g) of that section provides that a trial court “may strike the additional punishment for the enhancements... where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.” (Italics added.) This is consistent with the general authority granted to a trial court under section 1385, subdivisions (a) and (c), to strike an enhancement or the punishment for it “in the furtherance of justice, ” provided that the court sets forth the reasons “in an order entered upon the minutes.” (See also Cal. Rules of Court, rules 4.428, 4.433(c)(2) & (5).) Stating the reasons, in a written order, why striking the punishment for an enhancement is in the furtherance of justice is mandatory and not subject to harmless error analysis. (See People v. Bonnetta (2009) 46 Cal.4th 143, 146, 149-150; People v. Torres (2008) 163 Cal.App.4th 1420, 1433, fn. 7.)
Section 186.22 provides, in pertinent part: “(b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall... in addition and consecutive to the punishment prescribed for the felony... be punished as follows: [¶] (A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court’s discretion. [¶] (B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years. [¶]... [¶] (3) The court shall select the sentence enhancement which, in the court’s discretion, best serves the interests of justice and shall state the reasons for its choice on the record at the time of the sentencing in accordance with the provisions of subdivision (d) of Section 1170.1.”
Section 1170.1, subdivision (d), in pertinent part provides: “When the court imposes a prison sentence for a felony pursuant to Section 1170..., the court shall also impose, in addition and consecutive to the offense of which the person has been convicted, the additional terms provided for any applicable enhancements. If an enhancement is punishable by one of three terms, the court shall, in its discretion, impose the term that best serves the interest of justice, and state the reasons for its sentence choice on the record at the time of sentencing.”
For the gang enhancements charged with counts 1, 2 and 4, the record is silent as to selection of any sentencing alternative by the trial court. Therefore, the sentence is unauthorized by law. (§ 1170.1, subd. (d); Cal. Rules of Court, rule 4.433(c)(2) & (5); People v. Serrato (1973) 9 Cal.3d 753, 763; Wilson v. Superior Court (1980) 108 Cal.App.3d 816, 818-819.) An unauthorized sentence is subject to correction whenever the error comes to the attention of a reviewing court (In re Ricky H. (1981) 30 Cal.3d 176, 191) and, thus, provides “a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 354).
The sentence here is unauthorized due to the court’s failure to select and impose a sentencing alternative as to each of the gang enhancements. Such sentencing decisions are within the discretion of the trial court, not a reviewing court. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 530-531.) Accordingly, we must reverse the sentence and remand the matter to the trial court for resentencing. (See People v. Bonnetta, supra, 46 Cal.4th at p. 153.) Other discrepancies and the conduct credit should also be corrected at that time, so that the trial court’s oral pronouncement of sentence, the associated minute order and the abstract of judgment are consistent with applicable law and with each other.
Discrepancies pertained to (1) designation of whether the sentence for each of the counts 1, 2 and 4 was consecutive to, or concurrent with, the sentence imposed on another count, (2) designation of the count to which each enhancement term (or other disposition) applied, and (3) indication that defendant was convicted by a jury (and not by a plea).
DISPOSITION
The judgment is reversed as to the sentence and remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.