Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FMB008421, William Jefferson Powell IV, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
Defendant and appellant Thomas James Tomasello was charged with assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 1), making criminal threats (§ 422, count 2), and battery (§ 242, count 3). It was also alleged in count 1 that he personally caused great bodily injury to the victim (§ 12022.7, subd. (a)), and in counts 1 and 2 that he personally used a firearm (§ 12022.5, subd. (a)). On the People’s motion, count 3 was later dismissed. A jury found defendant guilty of count 1 and found the enhancement allegations true. The jury found defendant not guilty on count 2. The trial court sentenced him to a total state prison term of nine years.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant contends that: (1) the stipulation that the injury to the victim’s foot constituted great bodily injury was the functional equivalent of an admission to the section 12022.7 enhancement; thus, the stipulation needed to be accompanied by Boykin/Tahl advisements; and (2) he is entitled to an additional day of presentence custody credit. The People concede, and we agree, that defendant is entitled to another day of presentence custody credit. Otherwise, we affirm.
Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).
FACTUAL BACKGROUND
Both defendant and the victim were romantically involved with the same woman. One night, defendant went to confront the woman at her house, and the victim was there. The woman refused to open the door, so defendant broke through it. Defendant saw the victim, left, and then returned a few minutes later with a rifle. Defendant pointed the rifle at the victim and told him to come outside. The victim did not move, and defendant fired the rifle. A bullet ricocheted off the ground and hit the victim’s foot, causing bleeding and pain. Defendant fired another shot into the leg of the computer desk about a foot away from where the victim was standing.
ANALYSIS
I. The Stipulation that the Victim’s Injury Constituted Great Bodily Injury Was Not the Equivalent of an Admission to a Section 12022.7 Enhancement
Defendant contends that because the stipulation by the parties that the injury to the victim’s foot constituted great bodily injury was the functional equivalent of an admission to the section 12022.7 enhancement, it had to be accompanied by Boykin/Tahl advisements and waivers, i.e., regarding the constitutional rights to silence, confrontation, and jury trial. (See People v. Adams (1993) 6 Cal.4th 570, 573 (Adams).) Because the court failed to advise him of his Boykin/Tahl rights, defendant argues that the enhancement must be stricken. Defendant is mistaken.
A. Background
During trial, the court read to the jury the following stipulation regarding the great bodily injury enhancement: “Stipulation. Parties have agreed and hereby stipulate that during the course of the events at issue in this trial, [the victim] suffered a gunshot wound to his right foot from the Mini-14 rifle belonging to [defendant], and recovered at the scene, and that this injury was of sufficient severity to qualify as great bodily injury within the meaning of Penal Code Section 12022.7[, subdivision] (a). [¶] That is the agreement of the parties.”
B. The Stipulation Did Not Admit Every Element Necessary to Impose the Enhancement
It is well settled that before a defendant pleads guilty to a crime, the trial court must advise the defendant of, and the defendant must waive, his or her Boykin/Tahl rights. (Tahl, supra, 1 Cal.3d at p. 132.) Likewise, before a defendant admits to the truth of an enhancement allegation, the trial court must advise the defendant of, and the defendant must waive, his or her Boykin/Tahl rights. (In re Yurko (1974) 10 Cal.3d 857, 863 (Yurko).) However, when a defendant stipulates to one or more evidentiary facts, but not to all of the facts necessary to find the enhancement allegation true and impose the penalty, the Boykin-Tahl and Yurko advisements and waivers are not required. (Adams, supra, 6 Cal.4th at p. 583.)
Here, the question is whether defendant functionally admitted the truth of the great bodily injury enhancement by admitting every element of that enhancement in the stipulation. Section 12022.7, subdivision (a) provides: “(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.” Thus, it is clear from the statutory language that the great bodily injury allegation has two elements that must be proven: (1) great bodily injury; and (2) the defendant personally inflicted that great bodily injury. In the stipulation here, defendant admitted that the victim’s foot injury constituted great bodily injury, and that defendant’s rifle, which was found at the scene, was the weapon used to inflict the injury. The stipulation clearly did not state that defendant was the person who personally inflicted the injury. Accordingly, during his closing argument, the prosecutor explained as follows: “The injury that was suffered by [the victim] has been stipulated as being great bodily injury. Therefore, all you need to do is draw the determination that the injury was, in fact, personally inflicted by [defendant].” In other words, before the enhanced penalty authorized by section 12022.7 could be imposed, the People had to still prove that defendant personally inflicted the injury. Thus, because the stipulation did not admit to every element of the great bodily injury allegation, it was not the equivalent of an admission to the section 12022.7 enhancement. As such, the Boykin/Tahl advisements and waivers were not required. (Adams, supra, 6 Cal.4th at p. 583.)
In his reply brief, defendant cites the following footnote from Adams: “When a defendant stipulates to the existence of a fact in controversy, however, the jury is instructed that it must regard the fact as conclusively proved. (See CALJIC No. 1.02.) Therefore, while the jury or court must still find the allegation is true, we presume that the instruction will be followed, that the jury will consider the facts conclusively proved, and that the jury will find the allegation true.” (Adams, supra, 6 Cal.4th at p. 580, fn. 7, italics added by defendant.) He then claims no one contended that anyone but him fired the gun, and that “[t]he only issue in the case was whether [he] was justified in firing the gun, not whether he fired it.” The record belies defendant’s claim. At trial, defendant testified on his own behalf and said that he was holding the rifle and pointing it at the ground. He then said the gun discharged, and when asked if his finger was on the trigger at the time it discharged, he replied, “I could not state for a positive fact that it was not. I also don’t believe that it was.” He further testified that he did not remember whether or not he pulled the trigger. During closing arguments, defense counsel argued that the gun accidentally discharged while defendant and the victim were struggling.
Moreover, defendant neglected to quote the rest of the footnote in Adams, which states: “That being the case, when the stipulation admits every element of the enhancement that is necessary to imposition of the additional penalty, for purposes of Boykin-Tahl analysis we see no meaningful distinction between an admission of the truth of an enhancement allegation and an admission of all of the elements necessary to imposition of the additional punishment authorized by the enhancement.” (Adams, supra, 6 Cal.4th at p. 580, fn. 7, italics added.) Thus, as discussed ante, the stipulation must admit every element of the enhancement for the Boykin/Tahl advisements and waivers to apply.
II. Defendant Is Entitled to an Additional Day of Presentence Custody Credit
Defendant contends, and the People concede, that he was entitled to an additional day of presentence custody credit. The record shows that defendant was in custody between and including August 8, 2006 and September 3, 2006, and September 25, 2007, and the date of the sentencing hearing, February 1, 2008. Thus, he was in custody for a total of 157 days and was entitled to 157 days of actual credit against his prison term. (§ 2900.5.) The trial court, however, awarded defendant 156 days of actual credit under section 2900.5. Defendant is entitled to an additional day of presentence custody credit. Therefore, we shall order the trial court to correct the minute order dated February 1, 2008, to reflect an aggregate award of 180 days of custody credits, consisting of 157 days actual and 23 days good conduct.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the minute order dated February 1, 2008, to reflect an aggregate award of 180 days of custody credits, consisting of 157 days actual and 23 days good conduct. The court shall prepare a new abstract of judgment to reflect the modification and provide a copy to the Department of Corrections and Rehabilitation.
We concur: MCKINSTER J., MILLER J.