Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Jon Kapetan, Judge, Super. Ct. No. F08901490.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Poochigian, J.
STATEMENT OF THE CASE
Appellant, Abel Cruz Estrada, was charged in an information filed on August 22, 2008, with two counts of assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1), counts 1 & 2), attempted carjacking (§§ 664 & 215, subd. (a), count 3), felony vandalism (§ 594, subd. (a), count 4), and felony street gang terrorism (§ 186.22, subd. (a), count 5). Counts 1 and 2 further alleged enhancements for causing great bodily injury (§ 12022.7, subd. (a)) and for committing the underlying felonies for the purpose of a criminal street gang (§ 186.22, subd. (b)(1)).
Unless otherwise stated, all statutory references are to the Penal Code.
On September 24, 2009, Estrada entered into a plea agreement in which he would admit count 1 and both enhancements in exchange for dismissal of the remaining allegations and an indicated prison sentence of 12 years. Estrada executed an advisement of rights and plea waiver form acknowledging the terms of the agreement and the consequences of his change of plea. Estrada waived his constitutional rights pursuant to Boykin/Tahl. The parties stipulated to a factual basis for the plea. Estrada pled no contest to count 1. He also admitted the gang and great bodily injury enhancements. The remaining allegations were dismissed.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
On February 29, 2008, at 8:14 p.m., police officers were dispatched to the Ott & Pots Liquor Store on South Clovis Avenue in Fresno. Estrada and codefendant Ronald Sanchez stomped on the victim’s face and kicked him. When a witness tried to break up the fight, Estrada and Sanchez began barking and yelling “Bulldogs.” The victim was bleeding from his mouth. On the way to the hospital, the victim stopped breathing three times. The victim received eight stitches to his mouth.
On May 4, 2010, Estrada’s trial counsel argued that his client should receive halftime credits. The prosecutor argued that the defendants stomped on and beat the victim repeatedly, were active gang members, and they should serve 85 percent of their sentences. The court sentenced Estrada to prison for two years on count 1 and a consecutive term of 10 years for the gang enhancement. The court stated that Estrada’s sentence for the great bodily injury enhancement was stayed pursuant to section 1170.1, subdivision (f). Estrada would receive custody credits of 796 days of actual time served plus conduct credits of 119 days for total credits of 915 days.
The prosecutor asked if the court was striking only the punishment for the great bodily injury. The court replied: “You are correct. I’m imposing but striking the punishment on the [section] 12022.7(a).” On appeal, Estrada contends he was entitled to a determination by the trial court as to whether it would strike the great bodily injury enhancement and grant him greater custody credits pursuant to section 4019, rather than the more restrictive custody credits scheme under section 2933.1. We find no error and will affirm the judgment.
DISCUSSION
The great bodily injury enhancement (§ 12022.7, subd. (a)) is a violent felony under section 667.5, subdivision (c)(8). Defendants convicted of violent felonies can receive conduct credits of no more than 15 percent of their incarceration time pursuant to section 2933.1, subdivision (a). Estrada contends the trial court struck his sentence on the great body injury enhancement. Estrada argues the court did not expressly rule on his argument that he was entitled to greater custody credits pursuant to section 4019. Estrada seeks remand to the trial court for it to exercise its discretion as to whether the court will strike the great bodily injury enhancement in its entirety, thus allowing him to receive enhanced custody credits pursuant to section 4019.
Estrada relies on People v. Jones (2010) 188 Cal.App.4th 165, review granted December 15, 2010, S187135 (Jones). Although Jones has some factual similarities to this case, review has been granted by the Supreme Court and it is no longer citable authority. The Jones decision rationale rested, in part, on whether the trial court there understood its sentencing discretion to strike a prior serious felony allegation so that a defendant could receive custody credits pursuant to section 4019.
The briefing in this case was completed before the Supreme Court granted review in Jones. Estrada’s appellate counsel sent a letter to this court on January 3, 2011, acknowledging that the Supreme Court granted review in Jones, but urging us to follow the reasoning in Jones.
We do not need to reach the question of whether we agree with the reasoning of Jones because we conclude the trial court understood its sentencing discretion in the instant action. Both defense attorneys argued that Estrada should receive greater custody credits. The prosecutor argued otherwise. Defense counsel sought to have the court strike the great bodily injury enhancement in its entirety, not just the sentence imposed for that enhancement. The trial court stated it was imposing the great bodily injury enhancement, but staying Estrada’s punishment. In the context of the earlier oral argument, it is clear that the trial court was aware of its discretion to strike the great bodily injury in its entirety. The court chose not to do so.
A codefendant was sentenced at the same hearing.
Section 2933.1 limits custody credits to 15 percent of the actual time in custody for defendants who have committed violent felonies, including felonies leading to great bodily injury. (In re Pacheco (2007) 155 Cal.App.4th 1439, 1443 (Pacheco).) In Pacheco, as with the instant action, the trial court struck the sentence for the great bodily injury enhancement, but did not strike the enhancement in its entirety. (Id. at pp. 1442, 1445.) The court in Pacheco found that where the striking of only the sentence to the enhancement occurs, prison authorities properly applied section 2933.1 in calculating the defendant’s custody credits.
We find Pacheco controlling and apply its holding here. Estrada is not entitled to additional custody credits or a hearing by the trial court to determine whether to strike the great bodily injury enhancement in its entirety. We do note an omission in the abstract of judgment, which fails to list the great bodily injury enhancement pursuant to section 12022.7, subdivision (a), and that this enhancement was stayed. This appears to be clerical error. We will treat it as such, and remand for the trial court to amend the abstract of judgment.
The minute order accurately reflects the trial court’s holding with regard to staying Estrada’s sentence for the great bodily injury enhancement.
DISPOSITION
The judgment is affirmed. The case is remanded for the trial court to prepare an amended abstract of judgment showing the great bodily injury enhancement pursuant to section 12022.7, subdivision (a), and that the court struck only appellant’s sentence for this enhancement.