Opinion
A165366
03-26-2024
THE PEOPLE, Plaintiff and Respondent, v. DENNIS LAGAHIT, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. FCR353297
LANGHORNE WILSON, J.
The jury found defendant Dennis Lagahit guilty of nine offenses he committed against his girlfriend and found true several enhancements. The trial court sentenced him to a total of seventeen years and eight months. On appeal, Lagahit contends the court (1) erred by excluding evidence of his girlfriend's suicide attempts under Evidence Code section 352; (2) abused its discretion in restricting voir dire; (3) violated Penal Code section 654 by imposing punishment for more than one offense based on the same course of conduct; (4) erred under section 1385 in declining to strike two enhancements; and (5) miscalculated the number of presentence custody credits to which he is entitled.
Undesignated statutory references are to the Penal Code.
We remand for the trial court to recalculate Lagahit's custody credits. In all other respects, we affirm.
I. BACKGROUND
Lagahit was charged by consolidated information with eleven counts for two separate incidents that occurred in 2020 involving his girlfriend, V.A. For the first incident on August 6, he was charged with two counts of injuring a spouse, cohabitant, fiancé, girlfriend, or child's parent (§ 273.5, subd. (a); counts eight and eleven); assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count nine); and assault with a deadly weapon (§ 245, subd. (a)(1); count ten). For an incident that occurred on November 23, he was charged with first degree burglary, person present (§ 459; count one); assault with a semiautomatic firearm (§ 245, subd. (b); count two); false imprisonment of a hostage (§ 210.5; count three); false imprisonment by violence (§ 236; count four); injuring a spouse, cohabitant, fiancé, girlfriend, or child's parent (§ 273.5, subd. (a); count five); possession of a firearm by a felon (§ 29800, subd. (a)(1); count six); and disobeying a criminal protective order (§ 166, subd. (c)(1); count seven). The information further alleged for the first five counts that Lagahit personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1)) and for the first six counts an on bail enhancement (§ 12022.1). It also alleged for the first five counts and counts eight and nine that Lagahit personally inflicted great bodily injury. (§ 12022.7, subd. (e).)
Before trial, the prosecution dismissed count nine for assault likely to produce great bodily injury (§ 245, subd. (a)(4)) and renumbered counts ten through twelve as counts nine through eleven. During trial, the prosecution dismissed count ten (formerly count eleven) for injuring a spouse, cohabitant, fiancé, girlfriend, or child's parent. (§ 273.5, subd. (a).) The jury found Lagahit guilty of all remaining counts for the August 6 and November 23 incidents. It also found true all enhancements except for the great bodily injury enhancement for count eight. The trial court sentenced Lagahit to an aggregate term of seventeen years, eight months in state prison.
The consolidated information states that counts eight through ten are for offenses Lagahit committed on August 7, 2020. The information was amended to list the date of those offenses as August 6, 2020. The eleventh count (formerly count twelve) concerns a third incident that is not relevant to this appeal, as the jury acquitted Lagahit of that charge.
The following is a summary of the trial evidence, which we set out to provide context to the claims raised on appeal.
A. The August 6 Incident
On August 6, 2020, V.A. and Lagahit began arguing in V.A.'s car in their apartment complex's parking lot. Lagahit got out of V.A.'s car and into his car.
A neighbor, V.L., heard people arguing. She went outside and saw a car "pushed" into a wall and another car behind it. A man she did not recognize got out of the rear car. There was "a little back-and-forth" between the man and a woman. He then got in his car and was "kind of . . . tapping" the woman with it. "It was like kind of trying to scare her first and stop, and kind of nudge her out the way" because she was in front of the car repeatedly hitting its hood. V.L. called 911 and told the dispatcher that the man was "running his car into his woman's car" and "beating her up." Another neighbor said she saw a man pulling V.A.'s hair and punching her before driving away in a blue Oldsmobile, a description that matched Lagahit's car.
The responding officer found V.A. by her car. She had a cut lip, a bloody nose, and swelling around her eye. Lagahit denied hitting V.A.; rather, he drove his car "at her car" because he wanted to damage her vehicle out of "spite[]." He was served with a criminal protective order the following month prohibiting him from contacting V.A.
B. The November 23 Burglary and Assault
After the August 6 incident, Lagahit and V.A. continued living together until he was arrested on November 21, 2020. He stayed with a friend when he was released the following day.
A couple of days later, on November 23, V.A.'s neighbor heard "banging against the wall or the ground" and a man and a woman arguing in the apartment above her, which was V.A. and Lagahit's apartment. The man was "threatening" the woman and calling her a "bitch" while the woman was crying. "You could tell she was scared." The sounds persisted for over ten minutes before the neighbor contacted one of the apartment complex's managers. Around that point, the noises got louder, and the neighbor kept hearing "something being thrown on the floor or . . . against the wall."
When the manager arrived, she heard the man yell "why are you doing this" while the woman screamed "stop" and "help." The walls were "rattling." Another manager heard the man shout "fucking bitch." After about a minute, the first manager called the police. The noises continued until the police arrived 15 minutes later.
When the police got to V.A.'s apartment, they heard "wrestling" and a man "talking angrily" to a woman, who was "whimpering." The officers knocked on the door, and the man responded, "don't come in here or I'll kill her." The man said the woman was making him "beg" for his "underwear" and had ruined his life. One of the officers opened the door slightly and saw the man holding the woman in a headlock and pressing a gun to her neck. He identified the man as Lagahit. Officers tried to persuade Lagahit to exit the apartment for approximately an hour before he finally relented.
V.A. had several lacerations, "profound" swelling of her left eye, which was "almost swollen shut completely," swelling on the left side of her face, and swelling between her scalp and skull. The doctor who treated her said her injuries were "most likely" caused by trauma. A photograph showed a circular mark on V.A.'s neck where the officer had seen Lagahit pressing a gun to her.
C. Lagahit's Defense for the November 23 Incident
Lagahit testified at trial that about a year before the November 23 incident, he witnessed V.A. cut her own wrists with a knife. This was why, after seeing some texts from V.A., he went to their apartment on November 23, as he was worried she would hurt herself again. When he knocked on the door and V.A. did not respond, he forced the door open. He saw her sitting on the couch crying and holding a gun. When she refused to give him the gun, he reached for it, but V.A. pulled it away, causing him to fall to the couch. He was "pretty sure" she accidentally hit herself with the gun when she pulled it back. He "immediately" grabbed her arms. She "struggled," they fell to the ground, and she let go of the gun "at least a minute or so" later. The police arrived "not even a minute or so after [he had] gained possession of the gun."
After police arrived, Lagahit said he kept telling V.A. she could leave, but she refused because she was scared he would be killed. Lagahit denied pointing a gun at her.
II. DISCUSSION
A. Exclusion of Evidence of V.A.'s Suicide Attempts
Lagahit first argues the trial court abused its discretion in excluding additional evidence of V.A.'s suicide attempts. We conclude that any error was harmless.
As mentioned, Lagahit testified that he witnessed V.A. attempt suicide to support his claim he entered her apartment on November 23 to check on her, not to assault her. The doctor that treated V.A. after her suicide attempt corroborated that she had deep lacerations to one of her wrists. Lagahit's friend also testified that Lagahit called her crying about the suicide attempt. In addition to this testimony, defense counsel sought to admit testimony from V.A.'s father regarding her history of suicide attempts. The trial court excluded the father's testimony, reasoning that "[u]nder [Evidence Code section] 352, it's an undue consumption of time. That's information already testified to, and I don't think it's disputed that she made this attempt to commit suicide."
The court has discretion to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Such rulings are reviewed for abuse of discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)
Lagahit contends it was error for the trial court to exclude V.A.'s father's testimony because it would corroborate his version of events and bolster his credibility, and the testimony would be brief. He also notes that because the court rejected defense counsel's request for an Evidence Code section 402 hearing, the court could not have known the substance of the father's testimony and how long it would take. (See People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 209, fn. 6 [purpose of Evidence Code section 402 hearing is to decide preliminary questions of fact upon which admissibility of evidence depends].) We need not decide, however, whether the trial court erred in excluding this evidence, because even if we assume the trial court abused its discretion in excluding the evidence, any such error was harmless. (See People v. Buenrostro (2018) 6 Cal.5th 367, 395.)
Lagahit also suggests V.A.'s medical records would support his version of events before and after the police arrived on November 23, because evidence of her mental health issues would "corroborate his explanation for his actions and motivation." However, the trial court ruled the records were inadmissible "until a proper foundation [was] laid." Lagahit does not cite any portion of the record showing that defense counsel even attempted to admit the records during trial, and the medical records are not before us. We therefore focus our analysis on the court's exclusion of V.A.'s father's testimony.
Review of a trial court's exercise of discretion under Evidence Code section 352 is based on the harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Alcala (1992) 4 Cal.4th 742, 790- 791, 797.) The trial court's judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of error." (Watson, at p. 836.)" 'In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complaints affected the result.'" (People v. Beltran (2013) 56 Cal.4th 935, 956.)
Lagahit contends that because the excluded evidence was "critical" to his defense, we review the trial court's error under the more stringent harmless error review applicable to constitutional errors. (See Chapman v. California (1967) 386 U.S. 18, 24.) But "[b]ecause the trial court merely rejected some evidence concerning a defense, and did not preclude defendant from presenting a defense, any error is one of state law and is properly reviewed under People v. Watson, supra, 46 Cal.2d at page 836." (People v. McNeal (2009) 46 Cal.4th 1183, 1203.)
There is no reasonable probability the exclusion of V.A.'s father's testimony affected the result. The evidence supporting Lagahit's guilt in this case was strong: testimony from multiple disinterested witnesses that they heard a violent encounter lasting for over 25 minutes between a hostile man and a scared woman, testimony from a responding officer that Lagahit had V.A. in a headlock and a gun to her neck, testimony that V.A. had extensive injuries and a mark on her neck where Lagahit was seen pressing a gun to her, and testimony and an audio recording showing Lagahit made numerous comments during and after the incident indicating he was motivated by anger at V.A. This evidence was inconsistent with Lagahit's testimony, which tended to show he had a brief struggle with V.A. that ended before the police arrived.
V.A.'s father's testimony regarding her history of suicide attempts may have supported Lagahit's version of events, but it would not have had the sufficient weight to overcome the evidence against him, especially considering there already was evidence that corroborated his testimony about V.A.'s recent suicide attempt. By finding him guilty, the jury necessarily rejected Lagahit's contention he entered V.A.'s apartment and struggled with her out of concern for her well-being. It is not likely the jury would have reached a different result merely because there was other evidence to corroborate Lagahit's testimony that V.A. had previously attempted suicide.
In weighing the relatively strong evidence supporting the judgment against the comparatively weak evidence supporting a different outcome, we conclude that there is no reasonable probability the errors of which Lagahit complains affected the result. (See People v. Beltran, supra, 56 Cal.4th at p. 956.)
B. Limitation on Voir Dire
Lagahit next contends the trial court violated his Sixth Amendment right to an impartial jury when it precluded him from questioning prospective jurors about suicide and mental health during voir dire. We conclude he has not met his burden to show reversible error.
1. Additional background
Shortly before jury selection, defense counsel indicated she wanted to voir dire the jury on "[m]ental health things, like [V.A.'s] prior suicide attempt." The trial court asked "specifically what you're attempting to introduce with regard to [V.A.'s] mental health issues." Counsel responded, "It will be medical records." However, the court had not received V.A.'s medical records, and counsel did not know their contents. The court acknowledged the records may be relevant but said "we have a whole jury here ready to go." The court then noted that Lagahit's sister was to testify that V.A. appeared "depressed" the day before the November 23 incident. It instructed defense counsel to share the sister's statement with the prosecution because "we may be able to rule on . . . whether or not mental health can be addressed pertaining to at least one date of the charged offenses."
Later in the hearing, the court proceeded to its "tentative" decision regarding V.A.'s "mental health status on November 23, 2020." The prosecution objected to "the broadness of [V.A.'s] mental health" because how she appeared or behaved on November 23 "has nothing to do with an underlying diagnosis," and such questioning would be prejudicial and confuse the jury. Additionally, while Lagahit's sister would testify that V.A. appeared "despondent" and "intoxicated" the previous day, she was not qualified to discuss V.A.'s mental health. The court asked defense counsel what she "want[ed] to voir dire the jury on specifically." Defense counsel said she wanted to question prospective jurors on their "experience with mental health, like depression, things of that nature. That's the extent of my questions regarding that."
The trial court concluded that because "we don't know if [V.A.] was actually diagnosed with depression, because we don't have her records [but] we know she appeared despondent and upset," the parties could voir dire the jury on how alcohol or someone's "emotional state" affected their ability to perceive and recollect and their behavior, but not on "depression or mental health or anything of that nature." "We're not going to indoctrinate the jury." Voir dire occurred shortly thereafter. It does not appear from the record that V.A.'s medical records were ever admitted as evidence.
2. Analysis
" 'There is no constitutional right to voir dire per se. Nor is there any constitutional right to conduct voir dire in a particular manner. [Citation.] Rather, the voir dire process serves as a means of implementing the defendant's Sixth Amendment right to an impartial jury.'" (People v. Landry (2016) 2 Cal.5th 52, 83 (Landry).) Accordingly, counsel's "[e]xamination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause." (Code Civ. Proc., § 223, subd. (d).) "A challenge for cause may be based on the prospective juror's response when informed of facts or circumstances likely to be present in the case being tried." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 46-47.)
Further, a trial court has "wide latitude" in the conduct of voir dire, including with respect to the questions to be asked and their format. (Landry, supra, 2 Cal.5th at p. 83; see Code Civ. Proc., § 223.) The court abuses its discretion if" '" 'the questioning is not reasonably sufficient to test the jury for bias or partiality.'" '" (Landry, at p. 83.) But "[i]t is not the purpose of voir dire to' "educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law." '" (Ibid.)
Based on the record before us, the challenged voir dire restriction was not an abuse of discretion, as it appears aimed at preventing defense counsel from implanting in the minds of the jurors the idea that V.A. was suffering from depression or other mental health issues at the time of the November 23 incident. This was not unreasonable considering there was no evidence that V.A. had diagnosed mental health issues. Defense counsel's proposed questions concerning prospective jurors' experiences with depression and mental health therefore placed "unnecessary emphasis" on those topics. (See Barton v. Owen (1977) 71 Cal.App.3d 484, 508 [no abuse of discretion in malpractice case where plaintiff's proposed question concerning malpractice insurance would likely cause jury to conclude defendant was insured]; Code Civ. Proc., § 223, subd. (b)(3) [improper voir dire question is one that, "as its dominant purpose, attempts to precondition the prospective jurors to a particular result or indoctrinate the jury"].)
Lagahit insists the limitation the trial court stated prior to voir dire prevented him from identifying jurors who would be biased in favor of V.A. or whose views on suicide or mental health were "incompatible" with his claim that he acted out of concern for V.A. because of her prior suicide attempt. To be sure, a person who cannot be impartial in deciding whether a defendant had the required criminal intent based on facts likely to be proven at trial is arguably subject to being excused for cause. (See People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 46-47; People v. Cash (2002) 28 Cal.4th 703, 720.) But the record does not reveal that Lagahit proposed questions likely to elicit information relevant to a challenge for cause without preconditioning or indoctrinating the jury, or that the court foreclosed such questioning with respect to Lagahit's defense. (See People v. Kronemyer (1987) 189 Cal.App.3d 314, 337, overruled on another point in People v. Whitmer (2014) 59 Cal.4th 733, 739 [no prejudice where defense could have obtained relevant information within confines of trial court's voir dire limitations]; People v. Butler (1980) 104 Cal.App.3d 868, 876 [no error where counsel "failed to indicate to the court how a particular question could lend to a challenge for cause"].)
Moreover, our review is hindered by an incomplete record. As the People point out, Lagahit has failed to provide a record of the voir dire. Without such record, we cannot determine the limitations the trial court actually imposed at the voir dire and whether the voir dire questioning as a whole was unreasonable. (See People v. Holt (1997) 15 Cal.4th 619, 661 [entire voir dire must be considered in determining whether voir dire was adequate].) Likewise, we cannot evaluate whether any error was prejudicial to Lagahit. (Code Civ. Proc., § 223, subd. (g).) Reversal is only required where the voir dire was so inadequate "that the reviewing court can say that the resulting trial was fundamentally unfair." (Holt, at p. 661.) Based on the incomplete record alone, Lagahit has failed to show reversible error. (See Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)
In sum, because Lagahit has the burden of establishing the trial court prejudicially erred in restricting voir dire questioning, we will not reverse judgment based on the limited record before us.
C. Multiple Punishments
Lagahit contends the trial court violated section 654 when it sentenced him to consecutive terms for (1) burglary and assault with a firearm (counts one and two, respectively); (2) assault with a firearm and possession of a firearm (counts two and six, respectively); and (3) infliction of corporal injury and assault with a deadly weapon (counts eight and nine, respectively). We disagree there was error.
1. Section 654
Section 654 states: "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." "Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry." (People v. Corpening (2016) 2 Cal.5th 307, 311.) First, the trial court considers "if the different crimes were completed by a 'single physical act.'" (Ibid.) While making this determination, the court is mindful that a" 'defendant's intent and objective, not the temporal proximity of his offenses[,] determine whether [a] transaction is indivisible.'" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
If the trial court concludes more than one act occurred or that each conviction shared common acts, it reviews "whether a defendant's criminal conduct reflects a single intent or objective." (People v. Corpening, supra, 2 Cal.5th at p. 310; People v. Clair (2011) 197 Cal.App.4th 949, 959.) If the trial court finds the defendant"' "harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, [the defendant] may be punished for each statutory violation committed in pursuit of each objective." '" (Clair, at p. 959.) On review of the trial court's findings, we" 'presume the existence of every fact the . . . court could reasonably deduce from the evidence'" and the court's" 'findings will not be reversed on appeal if there is any substantial evidence to support them.'" (People v. Latten (2021) 63 Cal.App.5th 574, 577.)
2. Burglary and Assault with a Firearm Offenses
Lagahit first contends that imposition of consecutive sentences for his convictions for the November 23 burglary and assault with a firearm violates section 654 because he carried out those offenses with the same intent and objective. We conclude the record supports the trial court's implied finding that each offense had a separate objective. (See People v. Islas (2012) 210 Cal.App.4th 116, 129.)
"Burglary consists of entry into a house or other specified structure with the intent to commit a felony." (People v. Centers (1999) 73 Cal.App.4th 84, 98.) The parties do not dispute that Lagahit's intent upon entering V.A.'s apartment on November 23 was to assault her. However, the record indicates the factual basis for Lagahit's assault with a firearm conviction was that he held V.A. hostage when the police arrived-approximately 25 minutes after his initial entry-by holding a gun to her head and threatening to kill her if the police entered the apartment. In closing argument, the prosecution stated that Lagahit's intent at this point was to "protect himself" from the officers.
People v. Nichols (1994) 29 Cal.App.4th 1651 is instructive. There, the defendant hijacked the victim's tractor trailer, held him hostage for two hours, then let him go after looking at his driver's license and threatening to come to his house and kill him if he talked. (Id. at p. 1654.) The defendant was convicted of robbery, kidnapping for robbery, and attempting to dissuade a witness, and the trial court imposed consecutive sentences for his offenses. (Id. at pp. 1654, 1657.) On appeal, he argued section 654 applied to his kidnapping and dissuasion convictions because he'd committed them for the sole objective of stealing the victim's vehicle. (Id. at pp. 1656-1657.) The appellate court affirmed his sentence, concluding the record contained substantial evidence that defendant kidnapped the victim for the purpose of stealing his vehicle but dissuaded the victim for the purpose of avoiding detection. (Id. at pp. 1657-1658.)
Likewise, there is substantial evidence in this case of two distinct objectives. The record demonstrates that Lagahit intended to enter V.A.'s apartment to assault her, an objective he accomplished. The evidence further indicates that when the police arrived, Lagahit developed a different objective to avoid capture, leading him to hold V.A. at gunpoint and threaten to kill her. Thus, there is substantial evidence supporting a finding of separate efforts to assault V.A. that had distinct objectives. (See People v. Vidaurri (1980) 103 Cal.App.3d 450, 465 [acts not part of the defendant's original plan or committed in response to "unforeseen" events are separately punishable].)
In comparison, the cases Lagahit relies on concern multiple punishments for burglary and the commission of the underlying intended felony, offenses that are necessarily committed with the same intent and objective. (See, e.g., In re Dowding (1961) 188 Cal.App.2d 418, 423; People v. Centers, supra, 73 Cal.App.4th at p. 98.) But consecutive sentences for burglary and assault are permissible where, as here, there is evidence that the crimes were "not incident to a single intent and objective." (People v. McGahuey (1981) 121 Cal.App.3d 524, 529.)
3. Assault with a Firearm and Possession of a Firearm Offenses
The trial court also imposed consecutive sentences for Lagahit's convictions for assault with a firearm and possession of a firearm, reasoning that the possession offense was "a separate offense, him being a felon in possession of a gun." Lagahit argues the trial court should have stayed his sentence for the possession offense under section 654 because "possession of the firearm was inextricably intertwined with the assault," and thus "it was part of an indivisible course of conduct." We disagree.
"[S]ection 654 has been found not to apply when the weapon possession preceded the assault." (People v. Wynn (2010) 184 Cal.App.4th 1210, 1217.) In People v. Jones (2002) 103 Cal.App.4th 1139, for example, the defendant was a passenger in a car that stopped at the victim's house, left, and then returned 15 minutes later, at which point the defendant fired several shots at the house. (Id. at pp. 1141-1142.) The evidence was sufficient to support an inference the defendant possessed the firearm before and separate from the offense of shooting at an inhabited building: "It strains reason to assume that [the defendant] did not have possession for some period of time before firing shots at the . . . home." (Id. at p. 1147.) The court therefore affirmed the trial court's imposition of sentence for both offenses. (Id. at pp. 1142, 1149.)
As in Jones, there is substantial evidence that Lagahit possessed a firearm before and apart from his offense of assault with a firearm. Lagahit admitted that the gun police recovered from his and V.A.'s apartment on November 23 was his and that he kept it in "the house in the bedroom closet." Thus, the trial court could reasonably conclude that Lagahit had at least constructive possession of a gun (see People v. Blakely (2014) 225 Cal.App.4th 1042, 1052) that was"' "distinctly antecedent and separate from" '" the offense of assault with a firearm (People v. Wynn, supra, 184 Cal.App.4th at p. 1218).
The cases Lagahit cites are distinguishable because there was no evidence in those cases that the defendant had possession of a firearm for any purpose other than the commission of the offense in which the weapon was used. (See, e.g., People v. Cruz (1978) 83 Cal.App.3d 308, 333, superseded by statute on other grounds as stated in People v. Levell (1988) 201 Cal.App.3d 749, 751 [The "prosecution failed to prove that defendant's possession of the handgun was 'antecedent and separate' from his use in the assaults"]; People v. Jurado (1972) 25 Cal.App.3d 1027, 1033 ["There was no evidence defendant possessed the gun before or after the burglary."].)
Lagahit also argues that at the time of the November 23 incident, he had not been to the apartment where he kept his gun for "several days," and thus he did not have "possession or control" of the gun prior to his commission of assault with a firearm. He clarifies in his reply that he cannot be said to have had "antecedent" possession of the gun under these circumstances because he was charged with possessing the gun on November 23, 2020. However, "[t]he application of section 654 does not depend on the allegations of the charging instrument, but on what was proven at trial." (People v. Assad (2010) 189 Cal.App.4th 187, 200.) Here, there was substantial evidence that Lagahit possessed a gun before the November 23 incident, evidence the prosecution highlighted in closing argument. The defense was aware that the prosecution may try to prove Lagahit possessed the gun prior to November 23. Additionally, the information charged him with possession of a firearm "on or about" November 23. Lagahit testified that the last time he was in the apartment before the incident was November 21, which is arguably "on or about November 23." Thus, the trial court did not err in imposing consecutive sentences for the assault with a firearm and possession of a firearm offenses.
4. Infliction of Corporal Injury and Assault with a Deadly Weapon Offenses
Lastly, Lagahit argues the court erred under section 654 by imposing consecutive sentences for his convictions for infliction of corporal injury and assault with a deadly weapon, offenses he committed during the August 6 incident, because he harbored the same intent and objective for those offenses to harm V.A. We conclude there is substantial evidence to support the trial court's implied finding of independent acts.
People v. Trotter (1992) 7 Cal.App.4th 363 demonstrates the circumstances in which consecutive assaults are subject to multiple punishments, even if near in time. There, the appellate court rejected the defendant's contention that he should not have been separately punished for two assaults based on two gunshots he fired at police officers approximately one minute apart, because both shots were part of a single course of conduct and incidental to one objective. (Id. at p. 366.) The court found that the assaults were "volitional and calculated, and were separated by periods of time during which reflection was possible. None was spontaneous or uncontrollable. '[D]efendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.'" (Id. at p. 368, quoting People v. Harrison, supra, 48 Cal.3d at p. 338.)
Here, the record indicates that on August 6, Lagahit hit V.A. in the parking lot of their apartment complex. He then got into his car and started "kind of nudg[ing]" V.A. out of the way with it. He drove the car towards her three or four times. The court thus had sufficient evidence from which to determine that Lagahit performed four or five separate volitional acts, with enough time after each infliction of injury or assault to reflect on his actions before choosing to drive his car toward V.A. again. (See People v. Trotter, supra, 7 Cal.App.4th at p. 368.) In light of this evidence, the court reasonably could conclude that Lagahit committed independent crimes. (See People v. Felix (2001) 92 Cal.App.4th 905, 915.)
In sum, the trial court did not err in imposing consecutive sentences for his offenses of burglary, assault with a firearm, possession of a firearm, infliction of corporal injury, and assault with a deadly weapon.
D. Section 1385
Lagahit argues remand is required for the trial court to exercise its discretion under section 1385 to determine whether to strike or dismiss one of two enhancements for which it imposed a sentence. We disagree.
1. Additional Background
Senate Bill No. 81 (2021-2022 Reg. Sess.) "amended section 1385 to specify mitigating circumstances that the trial court should consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice." (People v. Lipscomb (2022) 87 Cal.App.5th 9, 16.) Specifically, section 1385, subdivision (c) now provides that "[n]otwithstanding any other law," a sentencing court "shall dismiss" a sentence enhancement "if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute." (§ 1385, subd. (c)(1).) Section 1385, subdivision (c)(2) further provides, "In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety."
As relevant to this appeal, section 1385, subdivision (c)(2)'s list of mitigating circumstances includes:
"(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
"(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed. . . . [¶]…[¶]
"(I) Though a firearm was used in the current offense, it was inoperable or unloaded." (§ 1385, subd. (c)(2)(B), (C), & (I).)
As previously noted, the jury found true the personal firearm enhancement for the first five counts against Lagahit (§ 12022.5, subd. (a)(1)), the on bail enhancement for the first six counts (§ 12022.1), and the great bodily injury enhancement for the first five counts and counts eight and nine (§ 12022.7, subd. (e)).
The trial court sentenced Lagahit on May 16, 2022, almost five months after Senate Bill No. 81 took effect. The court said it was going to stay "some of the enhancements pursuant to [section] 1385(c)(2), as it would trigger a sentence over 20 years." Accordingly, the court imposed the mid-term of four years for the great bodily enhancement for count two, the principal term, and dismissed the firearm enhancement for that count under subdivision (c)(3)(I) of section 1385, because "it was an inoperable firearm." The court also noted that if it imposed the firearm enhancement, it would constitute "use of multiple enhancements" under subdivision (c)(3)(B) of section 1385. The court then imposed consecutive terms for counts one and three, and dismissed the enhancements for those counts under section 1385, subdivision (c)(3)(B) and (I). The court stayed the sentences for counts four and five under section 654. For one of the on bail enhancements, the court imposed a consecutive term of two years.
In sum, the trial court imposed sentences for two enhancements-the great bodily injury enhancement for count two (§ 12022.7, subd. (e)) and one of the on bail enhancements (§ 12022.1)-and dismissed the remaining enhancements, resulting in a total sentence of seventeen years and eight months.
2. Analysis
In arguing that remand for resentencing is required, Lagahit appears to make two claims of error. First, he suggests public safety is the only ground to decline to dismiss an enhancement. We disagree with this construction of section 1385, subdivision (c). Subdivision (c)(1) provides that an enhancement shall be dismissed only "if it is in the furtherance of justice to do so," a broad concept that encompasses the court's exercise of discretion based on the full range of relevant factors. A specific concern of public safety is mentioned in section 1385, subdivision (c)(2), which provides that a mitigating circumstance weighs greatly in favor of dismissal "unless the court finds that dismissal of the enhancement would endanger public safety." Together, these subdivisions provide that section 1385 "does not preclude a trial court from determining that countervailing factors-other than the likelihood of physical or other serious danger to others-may nonetheless neutralize even the great weight of the mitigating circumstances, such that dismissal of the enhancement is not in furtherance of justice." (People v. Ortiz (2023) 87 Cal.App.5th 1087, 1098, review granted Apr. 12, 2023, S278894; accord, People v. Ponder (2023) 96 Cal.App.5th 1042, 1052, review granted Jan. 10, 2024, S282925.)
People v. Walker (2022) 86 Cal.App.5th 386 concluded that proof of a mitigating circumstance in section 1385, subdivision (c)(2) created a rebuttable presumption favoring dismissal, which can only be overcome by a finding that dismissal would endanger public safety. (Walker, at pp. 396- 398.) The California Supreme Court is currently reviewing the issue. In the meantime, we agree with our colleagues in Division 2 of this court that the plain language of the statute and its legislative history compels the conclusion the trial court retains discretion to dismiss an enhancement for reasons other than public safety. (People v. Ponder, supra, 96 Cal.App.5th at p. 1052.) Had the Legislature intended to create a rebuttable presumption, it could have easily done so. (Id. at p. 1051.)
Second, Lagahit argues the trial court failed to consider the mitigating factor under section 1385, subdivision (c)(2)(B) of multiple enhancements in declining to dismiss two of the enhancements or was unaware that this factor applied to those enhancements. We are not persuaded. To begin with, "[w]e cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of [its sentencing] discretion." (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.) The record here indicates the court was aware of its obligation to accord great weight to the mitigating circumstances under section 1385, subdivision (c)(2). It specifically mentioned three of the applicable mitigating circumstances, including the multiple enhancements factor. Based on this record, we presume the court understood the scope of its discretion under section 1385.
Moreover, we cannot conclude the court failed to consider any of the mitigating circumstances it was required to consider under section 1385 simply because it did not expressly mention those factors when declining to dismiss an enhancement. Section 1385 contains no requirement that a trial court articulate any findings or rulings in dismissing or refusing to dismiss an enhancement. (§ 1385, subd. (c); see In re Large (2007) 41 Cal.4th 538, 550 [noting the express findings requirement of section 1385, former subdivision (a) only if a strike is dismissed].) Therefore, absent evidence to the contrary, we presume the court correctly followed the law and considered the relevant statutory factors. (See People v. Ramirez (2021) 10 Cal.5th 983, 1042; People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Lagahit also points out that the trial court dismissed some of the enhancements based on certain mitigating factors under section 1385, subdivision (c)(2). To the extent he is suggesting the trial court abused its discretion by not also dismissing the great bodily injury enhancement and the on bail enhancement, we disagree. "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) In dismissing some of the enhancements, the court noted that imposing sentences for those enhancements would result in a sentence of over 20 years, which is a mitigating circumstance under section 1385, subdivision (c)(2)(C). That mitigating circumstance no longer applied after the court dismissed those enhancements. For the other two enhancements, the court could have reasonably concluded that the aggravating factors-which included "the extreme nature of violence"-outweighed the remaining mitigating circumstance under section 1385, subdivision (c)(2)(B) of multiple enhancements. Lagahit has not shown the trial court abused its discretion in concluding the aggravating circumstances "collectively outweighed the mitigating factor." (People v. Ortiz, supra, 87 Cal.App.5th at p. 1098.)
Lagahit therefore has not shown error.
E. Presentence Custody and Conduct Credits
Finally, Lagahit argues he is entitled to additional presentence credits because the probation officer miscalculated the number of days he spent in custody prior to sentencing. At sentencing, he was awarded 633 total days of presentence custody credits under sections 2900.5 and 2933.1. The 633 days was ostensibly based on the probation report, which stated that Lagahit was entitled to custody credits from August 8, 2020 to August 10, 2020, October 13, 2020 to October 30, 2020, and November 23, 2020 to January 25, 2022. However, it appears the probation officer either miscalculated the number of actual days Lagahit spent in custody or listed the wrong custodial dates, because the probation report lists the number of days actually served as eight for the October 13, 2020 to October 30, 2020 period that Lagahit was purportedly in custody. Lagahit is entitled to credit for all days spent in presentence custody (§ 2900.5), plus conduct credits totaling up to 15 percent of his actual period of confinement (§§ 2933.1, subd. (a); 667.5, subd. (c)(21)).
The People appear to disagree that the probation officer incorrectly listed the number of days Lagahit actually served as opposed to his custodial dates, as it cites portions of the record indicating he was released from custody on October 26, 2020, not October 30, 2020. An appellate court may resolve presentence credit calculation issues if doing so will serve the interests of judicial economy. (People v. Jones (2000) 82 Cal.App.4th 485, 493, disagreed with on other grounds by People v. Frazer (2003) 106 Cal.App.4th 1105, 1115.) However, because the custodial dates in the probation report are inconsistent with the clerk's transcript, we conclude a remand is appropriate for the trial court to verify the dates Lagahit was in custody and the time served to be applied in this case. (See In re Antwon R. (2001) 87 Cal.App.4th 348, 353 [remand appropriate for trial court to calculate custody credit where record does not provide enough information to calculate credit on appeal].) Accordingly, we remand the matter for the court to recalculate the correct amount of custody credit and to issue an updated abstract of judgment reflecting this change.
III. DISPOSITION
The matter is remanded to the trial court to calculate the amount of presentence custody credits to which Lagahit is entitled, and to include the recalculated custody credits in an amended abstract of judgment. The court is directed to forward the new abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
WE CONCUR: Humes, P. J., Banke, J.