Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. INF053348 Harold W. Hopp, Judge.
Laurel M. Nelson, 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, Garrett Beaumont and Gil Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant chased down his ex-girlfriend’s new boyfriend at the Spotlight 29 Casino in Riverside County and stabbed him in the neck with a knife. Defendant was convicted of assault by means of force likely to cause great bodily injury with the special allegation that he personally used a deadly and dangerous weapon during the commission of the crime found true. Defendant claims on appeal:
1. Insufficient evidence supported his conviction for assault by means of force likely to cause great bodily injury and the special allegation that he personally used a deadly or dangerous weapon during the commission of the crime.
2. His prior conviction of assault with a deadly weapon did not qualify as a serious or violent felony conviction.
3. He was erroneously sentenced to a three-year consecutive term based on a great bodily injury enhancement that was never found true by the jury.
4. His custody credits must be calculated under Penal Code section 4019, not Penal Code section 2933.1.
I
PROCEDURAL BACKGROUND
A Riverside County Superior Court jury found defendant guilty of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) and found true the allegation that he personally used a deadly or dangerous weapon, to wit, a knife (§ 12022, subd. (b)(1)). Defendant was found not guilty of attempted murder (§§ 664/187). The trial court determined that defendant was the person in the section 969B packet, and the jury found true that defendant had served two prior prison terms (§ 667.5, subd. (b)) and suffered two previous serious or violent felony convictions (§§ 667, subds. (c) and (e)(1), 1170.12, subd. (c)(1)). Prior to sentencing, the trial court struck one of defendant’s prior serious or violent felony convictions.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was sentenced to the second-strike sentence of eight years for assault with a deadly weapon, plus three years for a great bodily injury enhancement pursuant to section 12022.7, subdivision (a). In addition, the trial court imposed a two year consecutive sentence for the two prison priors. Defendant was sentenced to a total prison term of 13 years.
II
FACTUAL BACKGROUND
A few months prior to February 1, 2006, Karen Stillwell and defendant arrived at a camping area near the Spotlight 29 Casino in Riverside County (the casino). They asked Eddie Ramirez, who had a tent set up in the area, if they could set up camp nearby. Defendant and Stillwell did not have a tent, so Ramirez allowed them to stay with him for three or four days, until they got one. Defendant and Stillwell eventually set up their own tent nearby.
Defendant and Stillwell constantly argued. At some point, Stillwell went to Ramirez’s tent and asked to stay because she was afraid that defendant was going to hurt her. Defendant went to Ramirez’s tent and told him and Stillwell they would suffer “consequences” if she stayed with him. About 10 minutes later, a tree nearby was set on fire. Defendant was not seen setting the fire. After this, defendant left threatening signs around the camp regarding his getting Stillwell back and also threatening Ramirez. Defendant had drawn daggers dripping with blood on the signs.
Stillwell had returned to living with defendant during this time but went back to Ramirez complaining that defendant had bit her ear.
Ramirez and Stillwell, who were “dating, ” went to the casino on February 1, 2006. Ramirez saw defendant in the casino, and he and Stillwell avoided him.
Later, Stillwell and Ramirez were walking between some slot machines. Suddenly, Ramirez felt a stabbing at his neck. Ramirez got a “side glimpse” of the blade of a knife and saw defendant. Ramirez started bleeding “a lot.” Ramirez made no statements or movements toward defendant prior to the stabbing. Ramirez saw defendant go after Stillwell. Stillwell was trying to push defendant away when a security officer arrived to help her.
Jose Garcia was employed as a public safety officer at the casino. About 9:00 p.m., he was patrolling the casino floor.
During Garcia’s testimony, surveillance video that was taken from that night was shown to the jury.
That night, defendant walked into the casino and sat at a slot machine. Ramirez and Stillwell walked by defendant, and he looked back at them. Defendant exited the casino and went to the parking lot. Defendant reentered the casino about 45 minutes later.
Defendant passed by Ramirez and Stillwell. He appeared to reach into his jacket and then ran after them. It appeared to Agent Garcia that defendant ran up to Ramirez and punched him in the face or neck area. Ramirez did not say or do anything to defendant before defendant punched him.
Garcia ran to defendant. Defendant appeared to be trying to punch Stillwell. Stillwell held her hands up trying to defend herself. Garcia tackled defendant. Defendant did not struggle.
Garcia heard people around him yelling that defendant had a knife. He observed a knife on the floor underneath a chair by a slot machine near where he tackled defendant. It was a black-handled folding knife. No fingerprints were found on the knife. Later tests revealed blood on the blade of the knife.
Ramirez was treated at the hospital by Dr. Mark Hoffman. Ramirez had a one-inch wound to his neck that went through the skin. Dr. Hoffman indicated that injuries to the neck were the most serious because the carotid artery supplied blood to the brain from the heart; the jugular vein carried the blood from the brain to the heart. If one of the veins were injured or cut, a victim could bleed to death within one minute. Dr. Hoffman recommended that a CT scan be performed to determine the extent of Ramirez’s injury. He was concerned because the stab wound was very near the carotid artery and jugular vein, which are only one inch under the skin.
The CT scan revealed that there was swelling on top of the jugular vein. The wound was not a life-threatening injury based on the CT scan. Dr. Hoffman used two stitches to close the wound. The injury was consistent with either being stabbed or slashed with a knife.
Riverside County Sheriff’s Sergeant Herman Lopez spoke with Ramirez two days after the incident. Ramirez’s statement to him was consistent with his trial testimony. When Ramirez sat down for the interview, he moaned, and throughout the interview he kept holding his neck where the injury was.
Defendant presented no evidence on his behalf.
III
INSUFFICIENT EVIDENCE
Defendant makes two insufficient evidence claims. First, he contends that insufficient evidence was presented to support his conviction of assault with force by means likely to cause great bodily injury. Second, he claims that the evidence supporting the enhancement that he personally used a deadly and dangerous weapon in the commission of the assault was also not supported by the evidence.
A. Standard of Review
Our review of any claim of insufficiency of the evidence is limited. “‘“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence i.e., evidence that is credible and of solid value from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.”’” (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Further, before we may set aside a judgment for insufficiency of evidence, it must clearly appear that there is no hypothesis under which we could find sufficient evidence. (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (Ibid.) This standard of review applies even “when the conviction rests primarily on circumstantial evidence.” (People v. Kraft, supra, 23 Cal.4th at p. 1053.)
B. Assault by Force Likely to Cause Great Bodily Injury
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) A person violates section 245, subdivision (a)(1) by committing an assault upon the person of another with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1); People v. Winters (2001) 93 Cal.App.4th 273, 275.) The prosecutor proceeded on the theory that the assault was committed by means of force likely to cause great bodily injury.
“[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted. [Citations.]” (People v. Muir (1966) 244 Cal.App.2d 598, 604.) “Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. [Citations.]” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) “While... the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.” (Muir, at p. 604.)
“While it is true that ‘when the evidence shows that a blow has been struck or a physical injury actually inflicted, the nature and extent of the injury is a relevant and often controlling factor in determining whether the force used was of a felonious character’ [citations], an injury is not an element of the crime, and the extent of any injury is not determinative. ‘The crime... like other assaults, may be committed without infliction of any physical injury, and even though no blow is actually struck. [Citation.] The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it.’ [Citations.]” (People v. Covino (1980) 100 Cal.App.3d 660, 667.) “The focus is on the force actually exerted by the defendant, not the amount of force that could have been used. [Citation]” (People v. McDaniel (2008) 159 Cal.App.4th 736, 748.)
Here, defendant had a knife in his hand and punched at Ramirez’s neck. The stab wound was deep enough to penetrate through the skin and require stitches. The location of the injury was most troublesome, as the doctor noted that the jugular and carotid arteries lay just one inch below the skin; if cut, a person could bleed to death in one minute. The jugular vein did show some signs of swelling.
Although the injuries sustained were not life threatening, the evidence supported that defendant used force. He is seen on the videotape running to defendant and then punching with what appears to be full force. Had the knife gone just a little deeper, it would have cut the jugular or carotid artery, and Ramirez could have instantly bled to death. Based on the foregoing, his conviction of assault by means of force likely to cause great bodily injury was supported by the evidence.
Defendant relies on the fact that the injury actually sustained by Ramirez was mild. This is not dispositive. The fact of the matter is that defendant punched Ramirez in the neck with a knife. There was some injury to the jugular vein. It was sheer luck that Ramirez did not receive a life-threatening injury.
C. Personal Use of a Deadly or Dangerous Weapon
Defendant claims the evidence was insufficient that he personally used a knife during the commission of the assault by means of force likely to cause great bodily injury. Defendant does not contest the elements of the crime of personal use of a deadly or dangerous weapon; rather, he argues that the evidence does not show he possessed a knife during the commission of the crime.
The evidence more than supports that the knife found in the casino was used to stab Ramirez. Ramirez testified that he felt a “stab” at his neck, saw the blade of a knife, and saw defendant at the same time. The knife was found on the casino floor near where defendant was tackled. Persons around the scene yelled that defendant had a knife, and defendant did not object to this testimony. The knife had blood on it. Dr. Hoffman indicated that Ramirez’s wound was consistent with a stabbing or slashing wound caused by a knife. Finally, defendant left threatening messages for Ramirez and Stillwell; on those messages he drew daggers dripping with blood.
This was strong evidence that defendant used a knife to stab Ramirez to support the allegation that he personally used a dangerous or deadly weapon during the commission of the crime. Defendant’s convictions were supported by the evidence.
IV
PRIOR CONVICTION OF ASSAULT WTH A DEADLY WEAPON (A BEER BOTTLE) DOES NOT QUALIFY AS A STRIKE
Defendant contends that his prior conviction of assault with a deadly weapon does not qualify as a strike. He argues that, based on the documents presented to support the prior conviction, it is unclear whether he pled guilty to assault with a deadly weapon or assault with force likely to cause great bodily injury, the later not qualifying as a strike. In addition, he claims that only those weapons that are inherently intended to be used as weapons qualify under section 1192.7, subdivision (c), as strikes.
A. Additional Factual Background
The prior conviction was alleged in the first amended information in this case as “ASSULT WITH DEADLY WEAPON” suffered on September 9, 1996. Prior to trial, defendant expressed his belief that the assault with a deadly weapon conviction suffered in 1996 was not a strike. The People argued that any crime involving the use of a weapon (which was a beer bottle in that case) is considered a strike. Defendant additionally argued that he was not advised at the time of the taking of the plea in 1996 that it would qualify as a strike, which, at the time, it did not. The trial court did not dismiss the prior.
Defendant had a jury trial on the truth of the two prior convictions: assault with a deadly weapon suffered in 1996 and a prior armed robbery suffered in Iowa. The jury was advised that it was alleged that defendant had a prior conviction for assault with a deadly weapon in violation of section 245, subdivision (a)(1). The People admitted the section 969(b) packet for both priors to prove the truth of the prior convictions.
According to the felony complaint for the 1996 assault, defendant was charged with “assault upon RAMONE DELGADO, with a deadly weapon other than a firearm, to wit: a BEER BOTTLE, and by means of force likely to produce great bodily injury.” Defendant apparently entered a plea to the charge. On the plea document, defendant stated he was pleading guilty to “PC 245(a)(1) – ADW.” The abstract of judgment stated that he was convicted of “Assault with Dea.” According to the transcript of the plea, the court stated to defendant, “Is it true... that on or about August the 21st of this year... you did, in fact, assault one Ramone Delgado with a deadly weapon, to wit, a beer bottle, by means of force likely to produce great bodily injury?” Defendant responded “Yes.”
Defense counsel sought to have defendant testify at the trial on the priors that his counsel never advised him that by admitting the crime of assault with a deadly weapon, it would later qualify as a strike. The trial court felt that this was not a jury determination and excluded the evidence; it was up to the trial court to determine whether it qualified as a strike. The trial court found that defendant was the person identified in the records as having suffered the prior convictions. The jury found the prior convictions true.
After the jury trial, defendant brought a motion to strike one or both of the prior convictions. Defendant argued as to the assault with a deadly weapon charge that defendant specifically told his attorney that he would enter a plea as long as it was not a strike. The law changed, and it subsequently qualified as a strike.
The trial court addressed the assault with a deadly weapon charge. It was true that defendant was never advised that his prior was a strike because the law changed and it qualified only after he pled guilty. The law allowed for such changes when it came to strikes. The trial court dismissed defendant’s Iowa strike; it refused to strike the assault with a deadly weapon prior. Defendant’s sentence was doubled due to the prior conviction.
B. Analysis
A prior conviction qualifies as a strike if it is listed as a serious felony under section 1192.7, subdivision (c). Section 1192.7, subdivision (c)(31) provides that “assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of section 245” is a serious felony. “[A]ssault with a deadly weapon... in violation of Section 245” counts as a serious felony for this purpose, without regard to whether the defendant personally used the deadly weapon. (§ 1192.7, subd. (c)(31); see also People v. Luna (2003) 113 Cal.App.4th 395, 398, disapproved on other grounds in People v. Delgado (2008) 43 Cal.4th 1059, 1070, fn. 4.) Assault “by any means of force likely to produce great bodily injury” does not count as a serious felony unless it also involves the use of a deadly weapon or results in the personal infliction of great bodily injury. (People v. Banuelos (2005) 130 Cal.App.4th 601, 605.) Any assault with a deadly weapon is a strike. (People v. Delgado, supra, 43 Cal.4th at p. 1067, fn. 3.)
In deciding whether the prior conviction constituted a serious or violent felony, we look to the entire record of the prior conviction to consider its nature. (People v. Guerrero (1988) 44 Cal.3d 343, 355.) We apply the substantial evidence standard of review. (People v. Delgado, supra, 43 Cal.4th at p. 1067.)
In the plea transcript, defendant specifically stated that he was pleading to assault with a deadly weapon. The trial court asked, “I’ll grant the request to withdraw the previously entered plea of not guilty and ask you at this time, [defendant], as to Count 1, a violation of 245(a)(1) of the Penal Code, assault with a deadly weapon, a felony, what is your plea?” Defendant responded, “Guilty.” Moreover, the trial court stated, “Is it true, [defendant] that on or about August the 21st of this year that you did, in fact, assault one Ramone Delgado with a deadly weapon, to wit, a beer bottle, by means of force likely to produce great bodily injury?” Defendant responded, “Yes.”
Further, the abstract of judgment, listed the crime as “Assault with Dea, ” which supports that he was convicted of assault with a deadly weapon. It is reasonable to assume that if it involved great bodily injury, it would have notated “GBI.” Sufficient evidence was presented that defendant’s prior conviction qualified as a serious felony under section 1192.7, subdivision (c)(31).
Defendant also contends that section 1192.7, subdivision (c)(31) should be read to apply only to those weapons that are made for the express purpose of inflicting injury, such as firearms, dirks and daggers, and special types of knifes, and not those instruments that can be used in a manner to constitute a deadly weapon.
In 2000 the voters adopted Proposition 21. “... Proposition 21 amended section 1192.7 subdivision (c), by adding 14 felonies to the statutory ‘serious felony’ list.” (People v. Winters, supra, 93 Cal.App.4th at p. 276.) This included assault with a deadly weapon. (§ 1192.7, subd. (c)(31).)
“The provisions of the Penal Code ‘are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.’ [Citation.] Consistent with this principle, we first examine the language of the code section to determine whether the words used unequivocally express the intent of the voters who passed the initiative measure that included the statute. [Citations.] If the statutory language is clear and unambiguous, we generally must apply the statute according to its terms without resort to other indicia of the voters’ intent. [Citation.] If the words are clear, a court may not alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. [Citation.]” (People v. Winters, supra, 93 Cal.App.4th at p. 277.) “‘Where the statute is clear, courts will not “interpret away clear language in favor of an ambiguity that does not exist.” [Citation.]’ [Citation.]” (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268.)
Here, section 1192.7, subdivision (c)(31) clearly states that a serious felony will be found if the defendant is convicted of assault with a deadly weapon in violation of section 245. (See Williams v. Superior Court (2001) 92 Cal.App.4th 612, 623-624 [finding the language of section 1192.7, subdivision (c)(31) clear and unambiguous]; accord, People v. Winters, supra, 93 Cal.App.4th at p. 277.) “A ‘deadly weapon’ within the meaning of Penal Code section 245, subdivision (a) 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.” (In re Jose R. (1982) 137 Cal.App.3d 269, 275-276.) “[I]t is generally presumed that... the electorate by the initiative process are deemed to be aware of laws in effect at the time they enact new laws and have enacted the new laws in light of existing laws having direct bearing upon them [citation].” (Williams, at p. 624.) Based on the plain meaning of the statute, the use of a beer bottle in a manner that constitutes a deadly weapon constitutes a serious felony. We see nothing in the statutory language that “a deadly weapon” is restricted to firearms, machine guns or other inherently dangerous weapons.
V
GREAT BODILY INJURY ENHANCEMENT
Defendant contends, and the People concede, that he was sentenced on a great bodily injury enhancement pursuant to section 12022.7 that was never found true by the jury.
An allegation that defendant personally used a dangerous or deadly weapon within the meaning of section 12022, subdivision (b)(1) was charged in the information. The People chose to proceed on the theory that the violation of section 245, subdivision (a)(1) was by means of force likely to cause great bodily injury with the separate allegation that defendant personally used a deadly and dangerous weapon. The jury only returned a verdict on the allegation that he personally used a dangerous and deadly weapon, and no great bodily injury allegation was included in the verdict forms or found to be true.
Inexplicably, at sentencing, the trial court sentenced defendant to a consecutive three-year term on a “section 12022.7” enhancement. The trial court did not sentence him on the personal use of a dangerous and deadly weapon. (See People v. McGee (1993) 15 Cal.App.4th 107, 110, 117 [defendant could not be sentenced on the personal use of deadly weapon enhancement when it was inextricably involved in causing the great bodily injury that resulted in conviction of assault by means of force likely to cause great bodily injury].) We agree with defendant that the sentence for the great bodily injury enhancement should not have been imposed, and we will order that it be stricken.
VI
CUSTODY CREDITS AND COURT SECURITY FEE
Defendant contends that if we strike the great bodily injury enhancement, his custody credits must be recalculated under section 4019. Although the People agree that defendant is entitled to credits under section 4019, rather than section 2933.1, they argue that we should remand to the trial court to have it recalculate the credits. The People also oppose defendant’s claim that the abstract of judgment should be modified to reflect a $20 court security fee (the fee the trial court imposed at the time of sentencing) and contends it should remain $30, as that was the mandatory fee under section 1465.8, subdivision (a)(1) at the time of his sentencing.
Defendant’s custody credits were calculated by the probation department under section 2933.1, presumably based on the erroneous belief that he had been convicted of a great bodily injury enhancement. Section 2933.1 only applies if the current crimes involved the personal infliction of great bodily injury or use of a firearm. (§§ 667.5, subd. (c); 2933.1, subd. (a).) The probation department calculated the credits as 1, 381 days of actual custody credits, plus 207 days of conduct credit under section 2933.1, for a total of 1, 588 days of custody credits. The custody credits do not appear on the abstract of judgment.
Although the People contend that the case should be remanded for the trial court and probation department to calculate the appropriate credits, they do not dispute the number of actual custody credits awarded. We see no reason to remand the case and expend judicial resources in order for the trial court to perform a simple mathematical equation.
Defendant’s actual credits were 1, 381 days. At time of sentencing on November 13, 2009, section 4019 provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019, as amended by Stats. 1982, ch. 1234, § 7, p. 4553.) Defendant concedes that he is subject to this calculation. Based on that calculation, defendant is entitled to 690 days of total conduct credit (1, 381 divided by four and multiplied by two), an additional 483 days.
As for the security fee imposed under section 1465.8, subdivision (a)(1), the trial court stated it was imposing a $20 fee. The minute order states that the court fee under section 1465.8, subdivision (a)(1) was imposed as $30. The abstract of judgment states the fee imposed was $30.
Defendant committed his crime on February 1, 2006, and was convicted on August 8, 2007. Effective July 28, 2009, section 1465.8 was amended to increase the court security fee from $20 to $30. The imposition of the fee applies to the date of conviction. (People v. Alford (2007) 42 Cal.4th 749, 754.) Hence, when defendant was convicted, he was subject to the $20 security fee.
As such, we will order that the minute order and abstract of judgment be amended to conform with the oral pronouncement, which correctly stated the court security fee of $20.
VII
DISPOSITION
The three-year sentence on the section 12022.7 great bodily injury enhancement is stricken. The judgment is modified to award defendant 483 additional days of conduct credit under section 4019, so that defendant’s credits are 1, 381 actual custody days and 690 conduct credit days, for a total of 2, 071 days. The judgment is further modified to reflect that the that the security fee imposed under section 1465.8 is $20. The superior court clerk is ordered to amend the sentencing minute order of November 13, 2009, and the abstract of judgment to conform to this opinion and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RAMIREZ P.J., CODRINGTON J.