Opinion
NOT TO BE PUBLISHED
Superior Court of Ventura County No. VA 100090 Dewey L. Falcone, Judge
Laurie Buchanan Serafino, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Eric E. Reynolds, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Miguel Amaya appeals from the judgment entered following his conviction by a jury of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) He was sentenced to prison for the middle term of three years.
All statutory references are to the Penal Code.
Appellant contends that the evidence is insufficient to show that the alleged deadly weapon - a drinking glass - qualified as a deadly weapon. Appellant also contends that the trial court (1) erroneously included allegations of aggravating circumstances in the verdict form, and (2) miscalculated his presentence conduct credit. We accept respondent's concession that the second contention is meritorious. In all other respects, we affirm.
Facts
From a distance of approximately seven feet, appellant threw a 12-ounce drinking glass at the face of his mother, Maria Ana Pineda. He threw it "hard" and "with anger." The glass was "thick" with a half-inch thick base. It hit the top left portion of Pineda's head and then hit a wall, where it shattered. Pineda had a bump on her head where she had been struck by the glass. The bump did not go away and continued to hurt her for approximately one month.
Sufficiency of the Evidence
Appellant contends that the evidence is insufficient to show that the drinking glass qualified as a deadly weapon. We "review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that 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. [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
"As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citations.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.]" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) "[W]hether the victim in fact suffers any harm is immaterial. [Citation.]" (Id., at p. 1028.) A 12-ounce drinking glass is not deadly per se. But substantial evidence supports the jury's finding that, based on the relevant facts, the drinking glass here qualified as a deadly weapon. The glass was heavy: it was "thick" with a half-inch thick base. Appellant threw it at Pineda's face from a distance of approximately seven feet. The glass was thrown hard enough to injure Pineda and cause it to shatter against a wall. Pineda sustained a bump on her head that hurt her for approximately one month. Had the glass hit her in the eye, she could have suffered a permanent loss of vision. (See People v. McWilliams (1948) 87 Cal.App.2d 550, 551, disapproved on other grounds in In re Wright (1967) 65 Cal.2d 650, 654-655, fn. 3 ["Defendant was convicted of the offenses of assault with a deadly weapon and mayhem, upon proof of the commission of a single act, namely, the throwing of a heavy water glass which struck the complaining witness, Davis, in the face, and destroyed the sight of his left eye"].) Thus, the jury reasonably concluded that the glass was used in a manner likely to produce great bodily injury.
The Verdict Form: Inclusion of Aggravating Circumstances
The information and verdict form alleged four circumstances in aggravation pursuant to rule 4.421 of the California Rules of Court: (1) the cime "involved great violence, great bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness"; (2) the victim "was particularly vulnerable"; (3) appellant "was armed with or used a glass cup at the time of the commission of the crime"; and (4) appellant "engaged in violent conduct, to wit: assault, that indicates a serious danger to society." The jury found the allegations true.
In submitting the allegations to the jury for decision, the trial court relied on Barragan v. Superior Court (2007) 148 Cal.App.4th 1478. The Barragan court held that a prosecutor may amend the information to allege aggravating circumstances for purposes of sentencing. (Id., at pp. 1482-1484.)
In People v. Superior Court (Brooks) (2007) 159 Cal.App.4th 1, decided after appellant's trial, the court disagreed with Barragan. The Brooks court held that a prosecutor is not authorized to allege aggravating circumstances in the information. (Id., at pp. 6-8.) It relied on People v. Sandoval (2007) 41 Cal.4th 825, also decided after the trial.
Based on Brooks, appellant contends that the trial court erred in including the aggravating circumstances in the verdict form. We need not resolve this issue because, even if the trial court had erred, the error would have been harmless. The purpose of alleging the aggravating circumstances was "to comply with the Cunningham holding that precludes an aggravating fact (other than a prior conviction) from being used to impose the upper term unless the fact has been submitted to a jury and proved beyond a reasonable doubt." (Barragan v. Superior Court, supra, 148 Cal.App.4th at pp. 1483-1484.) Appellant did not receive an upper term sentence. The trial court imposed the three-year middle term for the assault with a deadly weapon. Thus, the jury's true findings on the aggravating circumstances allegations did not affect appellant's sentence.
Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856].
Appellant contends: "Allowing the jury to decide the sentencing factors biased the jury. It told the jury that appellant was violent, a serious danger to the community, vicious and cruel. It implied that the allegations were true. Due process was denied." (AOB 20) We disagree. Nothing in the jury instructions or verdict form implied that the aggravating circumstances allegations were true.
Moreover, the jury was instructed to consider the allegations after, not before, a finding of guilt: "If you should find him guilty of the charged crime or the lesser crime, there are certain special allegations that you read and you will make a determination whether or not those allegations are true or not true. If you reach a verdict in any additional allegation, complete the verdict form for that allegation." We presume that the jury followed this instruction and did not consider the allegations until after it had found appellant guilty of assault with a deadly weapon. (People v. Wilson (2008) 43 Cal.4th 1, 29.) The allegations, therefore, could not have affected jury deliberations on the issue of guilt.
Appellant argues that the trial court should "have bifurcated the sentencing factors from the trial on the assault with a deadly weapon charge . . . ." Appellant waived this issue because he failed to move for bifurcation in the trial court. (See People v. Saunders (1993) 5 Cal.4th 580, 589-590.) Even if he had moved for bifurcation, the trial court would not have erred had it denied the motion. Bifurcation was unnecessary because the same evidence admissible on the aggravating circumstances allegations was also admissible on the charged offense of assault with a deadly weapon.
Presentence Conduct Credit
Pursuant to section 2933.1, subdivision (c), the trial court awarded conduct credits equal to only 15 percent (19 days) of his actual presentence custody credit of 129 days. Section 2933.1 applies only if the defendant has been convicted of a felony offense listed in subdivision (c) of section 667.5. (§ 2933.1, subd. (a).) Assault with a deadly weapon is not so listed. Respondent concedes that the applicable statute is section 4019, pursuant to which appellant is entitled to 64 days of conduct credit. We accept the concession.
"[W]e take the number of actual custody days [129] and divide by 4 (discarding any remainder), which leaves [32]. We then multiply the result by 2 . . ., resulting in a total of [64] days of conduct credit. To arrive at the total amount of credit to which [appellant] is entitled (custody plus conduct), we add the custody credit ([129] days) to the conduct credit ([64] days), giving us a total of [193] days . . . ." (In re Marquez (2003) 30 Cal.4th 14, 26.)
Disposition
The judgment is modified to award appellant 64 (instead of 19) days of presentence conduct credit, increasing the total presentence credit (actual custody plus conduct) from 148 days to 193 days. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: GILBERT, P.J., COFFEE, J.