Opinion
E065348
01-09-2018
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL VARGAS RUIZ, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1500513) OPINION APPEAL from the Superior Court of Riverside County. Randall D. White, Judge. Affirmed with directions. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Gabriel Vargas Ruiz appeals his conviction for assault with a deadly weapon and criminal threats. We reject all of his contentions, with the exception of his contentions concerning imposition of a consecutive one-year term of imprisonment for a sentence enhancement on a subordinate count and an erroneous award of presentence conduct credits.
PROCEDURAL HISTORY
Defendant was charged with three offenses arising out of a single incident on March 24, 2015: Attempted robbery (count 1; Pen. Code, §§ 664, 211); assault with a deadly weapon, a knife (count 2; § 245, subd. (a)(1)); and criminal threats (count 3; § 422, subd. (a)). The information alleged that defendant personally used a knife in the commission of counts 1 and 3, within the meaning of section 12022, subdivision (b)(1). The information also alleged that defendant had a prior serious and violent felony conviction, for assault with a deadly weapon, within the meaning of section 667, subdivisions (a), (c) and (e)(1), and section 1170.12, subdivision (c)(1). Finally, the information alleged that defendant had served a prior felony prison term, within the meaning of section 667.5, subdivision (b), and that the current offenses constituted a violation of his probation in a prior case.
All further statutory citations refer to the Penal Code unless another code is specified.
The jury deadlocked on count 1 and found defendant guilty on counts 2 and 3. The jury also found the weapon use allegation true as to count 3. The court declared a mistrial as to count 1 and dismissed it. Defendant waived jury trial on the prior conviction allegations, and the court found the allegations true, with the exception of the section 667.5 allegation, which the court dismissed on motion of the prosecution. The court also found defendant in violation of his probation.
The court sentenced defendant to a total prison term of 13 years four months in the current case, and a consecutive term of one year eight months on the probation violation. Defendant filed a timely notice of appeal from the conviction in the current case. He did not appeal the probation violation.
FACTS
On March 24, 2015, A.H. was conducting business at a bank in Indio. He asked to use the restroom, but was told there was not one available to him. He walked across the street to a fast food restaurant and used their restroom. As he walked back to the bank, defendant approached him and asked for a cigarette. Mr. H. said that he was a Christian and did not smoke. Defendant became upset and used "bad words" that Mr. H. declined to repeat. Defendant then asked for money. Mr. H. replied, "Work. Find a job. Get a job if you want your money." He was offended that defendant's request was "demanding," rather than humble. They began to argue loudly, continuing for about three minutes. Defendant then pulled out an open switch blade knife and said, "Give me your money." Defendant was holding the knife in his right hand but covering it with his left hand, as though he was trying to hide it. Defendant was standing three or four feet away from Mr. H. He threatened to kill Mr. H. They had moved a short distance from where they first encountered each other, toward a palm tree. Defendant did not make any attempt to stab or slash Mr. H. However, when defendant first pulled out the knife, he said "something like" "he want[ed] to kill" Mr. H. He then pulled out a cell phone and said "they" were going to come and kill Mr. H. Defendant was acting very aggressively and Mr. H. believed that the threat was real. He was "quite a bit" frightened.
Mr. H. testified both that defendant asked him for money both before and after he pulled out the knife, and that he said it only once, immediately after he pulled out the knife.
At that point, Mr. H. went toward his car, saying he had a gun or perhaps just that he had some kind of weapon. Mr. H. called 911, and defendant walked away. Police apprehended defendant shortly afterwards and found a knife in his pocket.
LEGAL ANALYSIS
1.
THE EVIDENCE SUPPORTS THE ASSAULT CONVICTION
Assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Defendant contends that to sustain a conviction for assault with a deadly weapon, the evidence must show that he "did an act with (a deadly weapon . . .) that by its nature would directly and probably result in the application of force to a person." (CALCRIM No. 875.) An assault, he contends, occurs "'whenever "'[t]he next movement would, at least to all appearance, complete the battery.'" [Citations.]'" (People v. Chance (2008) 44 Cal.4th 1164, 1170 (Chance).) Because Mr. H. testified that defendant merely held the knife near his waist, covering it with his left hand, and neither waved it nor made any attempt to stab at Mr. H. with it, defendant contends that there was no evidence of an imminent or incipient battery, and therefore no evidence of an assault. He contends that "merely holding a knife in one's hand is not an assault."
The premise of defendant's argument—that he "merely" held a knife in his hand—is incorrect. Rather, Mr. H. testified that during a heated argument, defendant pulled a knife, demanded that Mr. H. give him money, said he wanted to kill him and threatened to have someone come and kill him, all while standing three to four feet away from Mr. H. As we discuss, this is substantial evidence that supports the conclusion that defendant committed an assault with the knife.
Substantial evidence is evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Medina (2009) 46 Cal.4th 913, 919.) In reviewing a claim of insufficient evidence, we view the evidence in the light most favorable to the prosecution and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (Ibid.) The testimony of any witness, even if uncorroborated, is substantial evidence, unless it is physically impossible or inherently improbable. (People v. Panah (2005) 35 Cal.4th 395, 489.) This is true even if the testimony is contradicted or is inconsistent or even false in other respects. (People v. White (2014) 230 Cal.App.4th 305, 319, fn. 14.)
The crime of assault requires both an attempt to commit a battery and the present ability to do so. (§ 240; Chance, supra, 44 Cal.4th at p. 1169.) In Chance, the court reiterated that unlike other attempted crimes, which generally require specific intent, assault is a general intent crime. For that reason, "[a]ssault requires an act that is closer to the accomplishment of injury than is required for other attempts. . . . When discussing the intent requirement, we have characterized assault as 'unlawful conduct immediately antecedent to battery.' [Citations.]" (Chance, at p. 1167.) In this context, however, "immediate" does not mean "instantaneously." It simply means that the defendant "must have the ability to inflict injury on the present occasion." (Id. at p. 1168.) Thus, the "present ability" element of assault is satisfied when a defendant has attained "'the means and location to strike immediately,'" even if one or more additional actions might be required to complete the battery or if the attempt is thwarted by the victim's actions or another circumstance. (Id. at pp. 1168, 1174-1175, fn. 11.)
Here, as noted above, defendant stood three to four feet away from Mr. H., holding a knife, demanding money, saying he wanted to kill Mr. H. and threatening to have him killed. Rational jurors unquestionably could conclude that he had the present ability to injure Mr. H. with the knife and that he would have done so if Mr. H. had not run away to his car at that point.
2.
THE EVIDENCE SUPPORTS THE DEADLY WEAPON
USE ENHANCEMENT ON COUNT 3
Defendant contends that the evidence does not support the conclusion that he used a deadly weapon in the commission of criminal threats. We review such a contention under the same standard described above in footnote 3. (People v. Wilson (2008) 44 Cal.4th 758, 806.)
"Use" of a deadly weapon in the commission of an offense is broadly construed to further the legislative intent of deterring the use of such weapons. (People v. Masbruch (1996) 13 Cal.4th 1001, 1007.) Accordingly, "use" includes any intentional display of a deadly weapon that facilitates the commission of the offense. (Id. at pp. 1008-1009.) The commission of the crime of criminal threats requires the willful threat "to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety." (§ 422, subd. (a).) The intentional display of a deadly weapon can facilitate the commission of the offense by conveying to the victim "a gravity of purpose and an immediate prospect of execution of the threat." (Ibid.) The weapon need not be displayed continuously during the commission of an offense or series of offenses. It is sufficient if the initial display of the weapon facilitated the commission of the offense because it caused the victim not to resist or put the victim in a state of fear required as an element of the offense. (People v. Masbruch, at pp. 1007-1009.)
Defendant contends that the evidence does not show that he used the knife "during" the commission of the offense because he did not begin to threaten Mr. H. until he began talking on his cellphone. He contends that because dialing a phone requires the use of both hands, he must have put the knife away.
Even if we assume that saying "something like he want[ed] to kill" Mr. H. while holding a knife is not sufficient to constitute a criminal threat, the evidence does not, contrary to defendant's contentions, compel the conclusion that he was not still holding the knife when he threatened to have someone else come and kill Mr. H. It is entirely speculative that defendant put the knife away to use the cellphone. It is possible that he did not actually dial the phone, but merely spoke into it as though he was talking to someone, while still holding the knife. Moreover, even if the threats did not commence until after the knife was put away, Mr. H. was well aware that defendant had a knife. Mr. H. testified that he took the threats seriously and was frightened. This is substantial evidence that defendant used the knife to instill the fear that is an element of the offense of criminal threats.
3.
THE COURT WAS NOT REQUIRED TO INSTRUCT
THE JURY ON BRANDISHING A WEAPON
Defendant contends that the trial court was required to instruct the jury on brandishing a weapon as a lesser related offense to assault with a deadly weapon. He contends, alternatively, that under the accusatory pleadings test, brandishing was actually a lesser included offense because it was alleged by virtue of the personal use allegation and argued as such by the prosecutor or that the prosecutor implicitly consented to such an instruction.
Section 417, subdivision (a)(1), provides: "Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days."
We adopt, with minor modifications, the Attorney General's cogent response to this argument:
"[Defendant] contends [that] the trial court erred by failing to instruct the jury on brandishing, in violation of section 417, as a lesser related offense of count 2, assault with a deadly weapon. He recognizes binding authority that prevents a trial court from instructing on a lesser related offense where, as here, the prosecutor did not agree to the instruction, but argues that the wording of the personal use of a deadly weapon allegation instruction and the manner in which the prosecutor argued the evidence establishing the enhancement, somehow acted as an implicit waiver of the prosecutor's consent. . . . As the trial court recognized, [defendant] was not entitled to an instruction on brandishing as a lesser related offense of assault with a deadly weapon. [Defendant]'s attempt to circumvent this clearly established precedent by claiming the jury instruction and the prosecutor's argument constituted a forfeiture of the prosecutor's ability to refuse to consent to the instruction has no support and is meritless.
We have omitted citations to the record as cited to in the respondent's brief.
"A. Proceedings below
"Prior to trial, counsel for [defendant] requested instructions on lesser included offenses of the charged offenses, including brandishing, in violation of section 417. The trial court inquired whether brandishing was a lesser included offense. [Defendant]'s counsel acknowledged it was not but [stated] that it might be a lesser related offense. The trial court indicated that [defendant] was not entitled to instructions on lesser related offenses. . . . Counsel for [defendant] indicated he would provide authority to the court to support the giving of instructions on lesser related offenses. . . .
"After the evidence was presented, counsel for [defendant] [asked] the trial court [to] instruct the jury on brandishing, as a lesser related offense of assault with a deadly weapon, citing People v. Steele (2000) 83 Cal.App.4th 212, 219 and People v. Geiger (1984) 35 Cal.3d 510. Counsel claimed [that] an instruction on brandishing was supported by the evidence. . . . The trial court pointed out that People v. Birks (1998) 19 Cal.4th 108 and People v. Hall (2001) 200 Cal.App.4th 778, held that a trial court cannot give instructions on lesser related offenses unless the prosecutor agrees. [In this case,] [t]he prosecutor explicitly told the trial court she did not agree to an instruction on brandishing and did not believe the instruction should be given. . . . The trial court indicated [that] it would not give an instruction on brandishing. . . .
"[¶] . . . [¶]
"B. [Defendant] was not entitled to an instruction on a lesser related offense.
"In Steele, supra, [83 Cal.App.4th 212,] the defendant [claimed] that the trial court erred by refusing to instruct on brandishing a firearm as a lesser included offense to the charged crime of assault with a firearm. The court cited Birks, supra, [19 Cal.4th] at [page] 136, [footnote] 19, and noted that 'a trial court is no longer able to instruct on lesser related offenses, absent the stipulation of both parties, or a party's failure to object to the instruction.' (Steele, [at p. 217].) The court also pointed out that 'it has long been held that brandishing is a lesser related offense, rather than a lesser included' offense of assault with a deadly weapon, because it is possible to assault a person with a weapon without exhibiting the weapon in a rude, threatening or angry manner. (Id. at p. 218.) The court held [that] the trial court did not err by refusing to instruct the jury on brandishing. (Id. at p. 221.)
"Our Supreme Court has stated, 'A defendant has no right to instructions on lesser related offenses, even if he or she requests the instruction and it would have been supported by substantial evidence, because California law does not permit a court to instruct concerning an uncharged lesser related crime unless agreed to by both parties. [Citations omitted.]' (People v. Hall, supra, 200 Cal.App.4th at p. 781.)
"'"'[T]here is no federal constitutional right of a defendant to compel the giving of lesser-related-offense instructions. [Citation.]' [Citation.]" (People v. Foster (2010) 50 Cal.4th 1301, 1344; see also People v. Kraft [(2000)] 23 Cal.4th [978,] 1064 [defendant not entitled to instruction on lesser related offense even if supported by evidence].)' (Hall, supra, [200 Cal.App.4th ] at p. 783.)
"Notwithstanding the unanimity and weight of the authority contrary to his claim, [defendant] argues that the wording of the jury instruction on the personal use enhancement and the prosecutor's argument regarding the personal use of a weapon enhancement constituted implied consent or a forfeiture of the prosecutor's ability to refuse to agree to the instruction of the jury on a lesser related offense. . . . However, the prosecutor expressly refused to consent to an instruction on the lesser related offense of brandishing. . . . Although [defendant] understandably claims he is not [asking] this court to overrule the California Supreme Court's decision in Birks, that is exactly what he is asking this court to do.
Alternatively, he is raising the argument in the hope that the California Supreme Court will grant review to revisit the issue. We, of course, are bound to follow existing Supreme Court's precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
"The wording of the instruction on [the enhancement for] personal use of a deadly weapon, alleged as to counts one and three, included 'Someone personally uses a deadly or dangerous weapon if he does any of the following: displays the weapon in a menacing manner.' . . . Regarding the enhancement, the prosecutor argued that [defendant] personally used the knife in the commission of the attempted robbery and used it to attempt to rob the victim. 'That's what he did. He pulled out the knife. That's what Mr. [H.] said. Did he use it in a menacing fashion? Yeah. He pulled it out and pointed it at him and held it up. He said, "Give me your money."' [In his briefing, defendant cited] no authority for his proposition that despite an express refusal to allow the jury to be instructed on a lesser related offense, a prosecutor forfeits his or her right under California law by arguing the facts of a personal use of a weapon enhancement alleged as to two unrelated counts. . . ." (Italics omitted.)
Prior to oral argument, defendant alerted us to the California Supreme Court's recent opinion in People v. Hicks (Dec. 28, 2017, S232218) ___ Cal.5th ___ (Hicks). He contended that Hicks supports his argument. In that case, the defendant was charged with both murder (§ 187, subd. (a)) and the lesser related offense of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), as well as other offenses arising out of an incident in which defendant caused a collision while driving under the influence, resulting in the death of a passenger in the other car. (Hicks, at pp. *2-*5.) The jury was unable to reach a verdict on the murder charge, but convicted him of gross vehicular manslaughter while intoxicated. (Hicks, at p. *3.) On retrial on the murder charge, the defendant requested an instruction informing the jury that he had already been convicted of the lesser related offense and that it was not required to make an all-or-nothing choice between convicting him of murder and completely acquitting him. The trial court declined to give the requested instruction. (Hicks, at p. *8.)
Although the California Supreme Court briefly discussed People v. Birks (1998) 19 Cal.4th 108, to explain the difference in treatment between lesser included offenses and lesser related offenses, the issue before it had nothing to do with the argument defendant makes in this case, i.e., that by arguing for an enhancement that includes elements of a lesser related offense, the prosecutor waives the right to refuse to stipulate to allowing the jury to consider the lesser related offense as an alternative to the charged offense. (Hicks, at pp. *8-*13.) Rather, the court held that where a defendant has previously been convicted of a lesser related offense and is being retried after a mistrial on the greater offense, the defendant is not entitled to the instruction the defendant requested in that case. It also held that a trial court "does not err" if it gives an instruction to the effect that the jury may not speculate about whether the defendant may have been or may yet be held criminally liable for his conduct in some other segment of the proceedings. (Hicks, at p. *2, italics omitted.) Accordingly, Hicks does not support defendant's argument in this case.
For all of these reasons, defendant's argument fails.
4.
DEFENDANT WAS NOT ENTITLED TO A SELF-DEFENSE
INSTRUCTION AS TO COUNT 3
Defendant contends that the trial court should have instructed the jury on self-defense as to count 3, criminal threats. He requested the instruction, although it is not clear as to what count or counts, and he contends that substantial evidence warranted the instruction as to count 3. He contends that the evidence supports the theory that Mr. H.'s behavior of haranguing him for having the temerity to ask for a cigarette or for money in an insufficiently humble manner could reasonably have caused him to believe that Mr. H. was crazy and posed a threat to his physical safety when Mr. H. said he was going to retrieve a gun or other weapon from his car.
A trial court must instruct on general principles of law that are closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case, including defenses on which the defendant relies or which are not inconsistent with the defendant's theory of the case, if there is substantial evidence to support the instruction. (People v. Boyer (2006) 38 Cal.4th 412, 468-469, superseded by statute on another point; People v. Breverman (1998) 19 Cal.4th 142, 162, 172.) We review de novo a claim that a trial court should have given an instruction. (People v. Manriquez (2005) 37 Cal.4th 547, 584.)
We are not aware of any authority that self-defense is a defense to a charge of criminal threats. Assuming, however, for the sake of argument, that one may utter threats as a form of self-defense to a perceived impending assault, the evidence does not support defendant's argument that the instruction was warranted in this case.
It is well established that self-defense, which applies when a defendant reasonably believes that his safety is endangered, "may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified." (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) Here, the jury found that defendant assaulted Mr. H. with a knife. Thus, Mr. H. was entitled to use reasonable physical force to defend himself and was certainly entitled to threaten to get a weapon for self-defense in an attempt to cause defendant to abandon his assault. Because defendant created the circumstances that justified Mr. H.'s response, defendant had no right to self-defense. Moreover, the evidence shows that defendant began uttering threats to kill Mr. H. or to have him killed before Mr. H. ran to his car and said that he was going to get a gun. Consequently, there is no factual basis for a self-defense instruction.
5.
NO UNANIMITY INSTRUCTION WAS WARRANTED AS TO COUNT 3
A defendant has a state and federal constitutional right to a unanimous jury verdict. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) When a conviction on a single count could be based on two or more discrete criminal events, either the prosecutor must elect to rely on one such event or the court must instruct the jury that it must unanimously agree on which event forms the basis for its guilty verdict. (Ibid.)
Defendant contends that he was entitled to a unanimity instruction on count 3 because the evidence showed that he had engaged in two separate acts of criminal threats—once while he and Mr. H. were "in close proximity" and once after Mr. H. ran to his car. He states that the prosecutor argued to the jury that it could base a guilty verdict on count 3 on either scenario.
We disagree that the prosecutor argued for two possible scenarios for conviction on count 3. The prosecutor stated that defendant threatened to kill Mr. H. and that when Mr. H. started to walk away, defendant changed his threat to have someone else kill him, but the thrust of her argument was not that either scenario independently constituted a criminal threat. Rather, it was that defendant was reasonably in sustained fear that one threat or the other would be carried out.
In any event, as the Attorney General points out, the evidence showed that defendant's threat to kill Mr. H. himself and the threat to have someone else come and kill him constituted a single transaction. A unanimity instruction is not required "'when the acts alleged are so closely connected as to form part of one transaction' and 'the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.' [Citation.]" (People v. Ervine (2009) 47 Cal.4th 745, 788.) Here, Mr. H.'s testimony suggested the entire incident, from the time defendant pulled the knife until Mr. H. called 911 and defendant walked away, lasted only a few seconds. The prosecution did not argue that the jury could distinguish between the two types of threats and rely on either one for a conviction, and defendant did not offer different defenses to the personal threat and to the threat to get someone else to kill Mr. H. Accordingly, no unanimity instruction was required.
6.
SECTION 654 DOES NOT APPLY
Defendant contends that section 654 precludes imposition of unstayed sentences on both count 2 and count 3 because the assault and the threats were committed in furtherance of a single criminal objective, i.e., the failed robbery attempt. We disagree.
Section 654, subdivision (a), provides, in pertinent part, that an "act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The statute literally applies only where such punishment arises out of multiple statutory violations produced by the same act or omission. (People v. Harrison (1989) 48 Cal.3d 321, 335.) However, because the statute is intended to ensure that defendant receives punishment commensurate with his culpability, the courts have interpreted its protection to extend to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time. (Ibid.) It is the defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible, however. (Ibid.) If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. (Ibid.) If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (Ibid.) Whether section 654 applies is a factual question for the trial court, and the trial court's factual determination, express or implied, must be upheld on appeal if it is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Here, the evidence supports the conclusion that if an attempted robbery took place, the assault was the means of committing it. Even if the initial threat to kill Mr. H. was also part of an attempted robbery, however, defendant made the subsequent threats to have him killed only after Mr. H. had walked away and the robbery attempt had come to an end. The trial court could therefore properly conclude that the assault and threats had separate objectives. Section 654 does not bar multiple punishments for crimes committed in furtherance of separate objectives during "an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison, supra, 48 Cal.3d at p. 335.)
7.
THE TERM IMPOSED FOR THE WEAPON USE
ENHANCEMENT WAS NOT AUTHORIZED
Defendant contends that he received an unauthorized sentence when the trial court imposed a one-year term for the weapon use enhancement alleged as to the subordinate count, count 3, instead of one-third of the middle term. The Attorney General concurs, as do we.
A claim that a sentence is unauthorized may be raised for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354.) A sentence is unauthorized if it could not lawfully be imposed under any circumstance in the particular case. (Ibid.) A consecutive term imposed on a subordinate count "shall consist of one-third of the middle term of imprisonment" prescribed for the particular felony. (§ 1170.1, subd. (a).) This applies as well to enhancements imposed on a subordinate count. (Ibid.) The term for a weapon use enhancement pursuant to section 12022, subdivision (b), is one year in state prison. Therefore, the term imposed in this case should have been four months, not one year.
8.
DEFENDANT IS ENTITLED TO 318 DAYS OF IN CUSTODY CREDIT
Defendant contends that the trial court erroneously applied section 2933.1 to credit him with only 158 days of good conduct credits in addition to the 319 days for actual time served. He contends that he was entitled to 318 days of credit for good conduct pursuant to section 4019. Again, the Attorney General concurs, as do we.
Section 4019 provides that, with certain exceptions, a defendant is entitled to credit for work and good conduct while in custody awaiting trial. Under the version of section 4019 in effect on the date of defendant's offenses, March 24, 2015, he was entitled to two days of good conduct credit for every two days spent in presentence custody. (Former § 4019, subds. (a)(1), (c), (f); Stats. 2014, ch. 612, § 6, eff. Jan. 1, 2015.) Under that statute, defendant was entitled to 318 days of good conduct credit in addition to the 319 days of actual time served in custody. The trial court, however, erroneously awarded lesser credits pursuant to section 2933.1.
Section 2933.1 applies only to defendants convicted of violent felonies listed in section 667.5, subdivision (c). (§ 2933.1, subd. (a).) Neither a violation of section 245, subdivision (a)(1), nor a violation of section 422, subdivision (a), is among the offenses listed in section 667.5, subdivision (c), unless it was found true that the defendant personally inflicted great bodily injury on any person other than an accomplice or personally used a firearm. (§ 667.5, subd. (c)(1)-(23); see § 667.5, subd. (c)(8).) There was no such finding in this case, of course, and section 2933.1 does not apply.
DISPOSITION
The judgment is affirmed. Upon the issuance of the remittitur, the clerk of the Superior Court of Riverside County is directed to issue an amended abstract of judgment that reflects a term of four months imposed on the section 12022, subdivision (b)(1) enhancement on count 3, for a total term of 12 years eight months, and an award of 318 days of presentence conduct credits pursuant to section 4019. The clerk shall deliver a copy to the parties and to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.