Opinion
E066037
02-08-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALBERTO VALENCIA, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1401220) OPINION APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. Affirmed with directions. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jose Alberto Valencia appeals his conviction for assault with a deadly weapon and assault by means of force likely to cause great bodily injury. He contends that his conviction for the latter offense must be reversed because it is included within the former offense. He also contends that his conviction on both counts must be reversed because the prosecutor's rebuttal argument improperly misstated the burden of proof. We reject both arguments. However, we agree with both parties that defendant is entitled to one additional day of presentencing custody credit.
PROCEDURAL HISTORY
An information charged defendant with one count of assault with a deadly weapon other than a firearm (Pen. Code, § 245, subd. (a)(1); count 1) and one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2). The information further alleged that defendant caused great bodily injury to a person other than an accomplice (§ 12022.7, subd. (a)) in the commission of counts 1 and 2. Andrew T. was the victim alleged in both counts.
All further statutory citations refer to the Penal Code unless another code is specified.
A jury convicted defendant on both counts and found the enhancing allegations true as to both counts. The court sentenced defendant to the middle term of three years on count 1, with a consecutive three-year term for the enhancement. It imposed and stayed the sentence on count 2, pursuant to section 654.
In pertinent part, section 654, subdivision (a), provides: "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."
Defendant filed a timely notice of appeal.
FACTS
On the evening of October 15, 2013, Andrew T. was in the front yard of his family's home with his brother-in-law Erik P., sometimes known as Eddie. They heard a loud screeching noise and turned to see a dark colored Honda driving rapidly out of the driveway of a house across the street. The car pulled up next to Andrew's yard, and someone threw a beer can out the car's window. Andrew picked up the beer can and walked toward the car, which pulled over at the end of the block. Andrew, who was "fed up" with people throwing or otherwise depositing trash in his neighborhood, walked up to the driver's side of the car and asked if the driver had thrown the can. Defendant, who was driving the car, replied, "So what if I did?" Andrew felt that a fight might ensue. He turned to see where Erik was. While Andrew was turned away, defendant hit him with what Andrew described as a heavy metal solid object. Andrew did not see what the object was. Erik described it as a flashlight. A 12-inch metal Mag-Lite flashlight was later found nearby. The blow caused Andrew to lose consciousness and fall to the ground. Even after he was on the ground, defendant and his brother hit and kicked him.
Many of the witnesses to these events share the same surname. For simplicity, we will refer to most of them by their given names only. No disrespect is intended.
The evidence was conflicting as to whether defendant was the driver or the passenger and as to whether it was the driver or the passenger who struck Andrew. However, Andrew's neighbors, Johnny and Joseph Bradley, whom defendant and his brother Adrian had been visiting immediately before the incident, told police that defendant was the driver and Adrian was the passenger. Police testimony confirmed that the car was registered to defendant. Defendant does not challenge the sufficiency of the evidence identifying him as the driver and as the person who struck Andrew.
Erik joined in the fray and briefly fought with both defendant and his brother. Johnny Bradley attempted to break up the fight. Several of Andrew's brothers and sisters, all of whom lived in the family home, came outside when they heard the commotion. His sister Patricia and his brother Carlos attempted to pull defendant or his brother away from Andrew. Defendant and his brother got back into the car and drove off. Andrew's brother Carlos ran after the car, but lost sight of it within a couple of blocks.
Erik, along with Andrew's sisters Maria and Bianca, got into a truck and drove in the direction they believed the Honda might have gone. They happened to see it parked in front of a Circle K store two or three blocks from their house. The three approached the car, and defendant and his brother got out. Maria asked defendant why he beat up her brother. He replied that he was sorry, but that Andrew had it coming. Bianca wrote down the Honda's license number and called the police.
Defendant was arrested and charged several months later.
Because there are no issues pertaining to defendant's arrest or his actions after the incident, we will omit a description of that evidence.
Andrew suffered a fracture to the orbit below his left eye and a subarachnoid hemorrhage. His head injuries were consistent with being struck by a metal object and also with being kicked or punched in the head. Both injuries could have resulted from a blow behind his left ear, as Andrew described. He also suffered a concussion and damage to his left ear, which resulted in hearing loss, a constant ringing in his ear, and difficulties with balance, all of which could be permanent. Part of his left ear was severed. He had extensive bruising to his arm and elbow. At the time of the trial, he still suffered pain in his arm and wrist, which he likened to having arthritis.
LEGAL ANALYSIS
1.
THE PROSECUTOR'S ARGUMENT WAS NOT IMPROPER
Defendant contends that in two respects the prosecutor's rebuttal argument misstated the burden of proof, allowing the jury to believe that it could find him guilty based on a standard less than proof beyond a reasonable doubt. He concedes that his trial attorney failed to object and therefore failed to preserve the issue for review. However, he contends that his attorney's failure to object deprived him of his constitutional right to the effective assistance of trial counsel, to his prejudice. We conclude that the prosecutor's argument was not improper. Accordingly, we reject the claim of ineffective assistance of counsel.
The Prosecutor Did Not Misstate the Law
Defendant contends that the prosecutor misstated the law concerning the burden of proof. He bases that contention on the following excerpt from the prosecutor's rebuttal argument:
As we discuss below, the excerpt defendant relies upon omits significant portions of the prosecutor's rebuttal argument on the subject of reasonable doubt.
"What is reasonable doubt? . . . The easiest way for me to explain what reasonable doubt is, is by telling you what it isn't. And it's basically that you have an abiding conviction that the evidence and the facts are true before you make that finding. So does uncertainty automatically mean reasonable doubt? No. It's not uncertainty because you're never going to be absolutely certain 100 percent. There may be some doubt, but if, only if, that doubt is reasonable, that's when you decide, oh, okay, I'm not convinced.
Defendant's brief replaces the word "before" with "beyond."
"And is it reasonable based on the testimony you heard . . . that the defendant never touched Andrew? Absolutely not. And that's where your common sense, your logic, your evaluation of the credibility of the witnesses that took that stand, that's where that comes in.
"Reasonable doubt doesn't mean we want more. I don't need to put all the evidence in. There's probably a lot more out there that we can put together and bring here that could explain other details of what happened, but I don't need to do that. Because if what actually happened is enough based on the evidence you heard, it's enough. . . ."
Based upon this excerpt, defendant contends that the prosecutor suggested to the jury that her burden of proof was satisfied "unless it was reasonable to believe that [defendant] was innocent." Defendant relies on People v. Centeno (2014) 60 Cal.4th 659 (Centeno), in which the California Supreme Court held that it is error for the prosecutor to suggest that a reasonable account of the evidence satisfies the prosecutor's burden of proof. (Id. at pp. 672, 673.) However, defendant misrepresents both the prosecutor's argument and the holding of Centeno.
Centeno states the applicable law as follows: "Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citations].'" (Centeno, supra, 60 Cal.4th at p. 666.) For example, "[I]t is error for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (Id. at p. 672, italics omitted.) However, it is not improper for the prosecutor to ask the jury to "'"decide what is reasonable to believe versus unreasonable to believe" and to "accept the reasonable and reject the unreasonable."' [Citation.]" (Id. at p. 672, citing and quoting People v. Romero (2008) 44 Cal.4th 386, 416.)
The court then addressed the issue as follows: "The prosecutor told the jury that in reaching its decision it must reject impossible and unreasonable inferences, and only consider reasonable possibilities. She stated that 'your decision has to be in the middle. It has to be based on reason. It has to be a reasonable account. . . . [Y]ou need to look at the entire picture, not one piece of evidence, not one witness . . . to determine if the case has been proven beyond a reasonable doubt.'
"She then asked the jury to consider the following: 'Is it reasonable to believe that a shy, scared child who can't even name the body parts made up an embarrassing, humiliating sexual abuse, came and testified to this in a room full of strangers or the defendant abused Jane Doe. That is what is reasonable, that he abused her. [¶] Is it reasonable to believe that Jane Doe is lying to set-up the defendant for no reason or is the defendant guilty?' (Italics added.) She continued: 'Is it reasonable to believe that there is an innocent explanation for a grown man laying on a seven year old? No, that is not reasonable. Is it reasonable to believe that there is an innocent explanation for the defendant taking his penis out of his pants when he's on top of a seven-year-old child? No, that is not reasonable. Is it reasonable to believe that the defendant is being set-up in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or he['s] good for it? That is what is reasonable. He's good for it.' (Italics added.)" (Centeno, 60 Cal.4th at pp. 671-672.)
The court went on to observe that many parts of the prosecutor's argument were unobjectionable: "It is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory. (See, e.g., CALCRIM Nos. 224, 226.) It is permissible to urge that a jury may be convinced beyond a reasonable doubt even in the face of conflicting, incomplete, or partially inaccurate accounts. (See, e.g., CALCRIM Nos. 226, 300.) It is certainly proper to urge that the jury consider all the evidence before it. (§ 1096; CALCRIM No. 220.)
"Here, the prosecutor's argument began with what the jury could consider: reasonably possible interpretations to be drawn from the evidence. While this is an acceptable explanation of the jury's starting point, it is only the beginning. Setting aside the incredible and unreasonable, the jury evaluates the evidence it deems worthy of consideration. It determines just what that evidence establishes and how much confidence it has in that determination. The standard of proof is a measure of the jury's level of confidence. It is not sufficient that the jury simply believe that a conclusion is reasonable. It must be convinced that all necessary facts have been proven beyond a reasonable doubt. [Citation.] The prosecutor, however, left the jury with the impression that so long as her interpretation of the evidence was reasonable, the People had met their burden." (Centeno, supra, 60 Cal.4th at p. 672.)
After further analysis, the court concluded by saying that in that case, the prosecutor did not simply urge the jury to accept the reasonable and reject the unreasonable. "Rather, she confounded the concept of rejecting unreasonable inferences with the standard of proof beyond a reasonable doubt. She repeatedly suggested that the jury could find defendant guilty based on a 'reasonable' account of the evidence. These remarks clearly diluted the People's burden." (Centeno, supra, 60 Cal.4th at p. 673.)
Defendant's argument rests on the following portion of the prosecutor's rebuttal argument: The prosecutor first told the jury that "'uncertainty'" does not "'automatically mean reasonable doubt,'" and that "'[t]here may be some doubt, but if, only if, that doubt is reasonable, that's when you decide, oh, okay, I'm not convinced.'" While this statement might not have been objectionable in isolation, defendant continues, the argument became misleading when the prosecutor went on to say, "And is it reasonable based on the testimony you heard . . . that the defendant never touched Andrew? Absolutely not." (Italics omitted.)
Defendant likens the foregoing excerpt from the argument to a sentence in the prosecutor's argument in Centeno, which defendant contends the Supreme Court found improper: "'Is it reasonable to believe that there is an innocent explanation for a grown man laying on a seven year old? No, that is not reasonable.'" (Centeno, supra, 60 Cal.4th at p. 671.) However, it is clear from the context that the portions of the argument the court found to be improper in Centeno were the portions it italicized, as shown above. (Id. at pp. 671-672.) The sentence defendant relies upon is not italicized in the opinion. Accordingly, defendant's attempt to persuade us that the sentence he quotes is comparable to the portion of the argument found to be improper in Centeno is based on a misreading of Centeno.
Moreover, in order to demonstrate that a prosecutor's argument is improper, the defendant must show that, in the context of the whole argument and instructions, there was a reasonable likelihood that the jury understood or applied the complained-of comments in an improper or erroneous manner. (Centeno, supra, 60 Cal.4th at p. 667.) Here, defendant quotes only selective portions of the prosecutor's remarks. Her full rebuttal argument pertaining to the standard of proof is as follows:
"What is reasonable doubt? [We talked about this, and] the easiest way for me to explain what reasonable doubt is by telling you what it isn't. And it's basically that you have an abiding conviction that the evidence and the facts are true before you make that finding. So does uncertainty automatically mean reasonable doubt? No. It's not uncertainty because you're never going to be absolutely certain 100 percent. There may be some doubt, but if, only if, that doubt is reasonable, that's when you decide, oh, okay, I'm not convinced.
Portions of the text contained within square brackets were omitted from defendant's recitation of the prosecutor's argument.
"And is it reasonable based on the testimony you heard [by Erik and by Andrew and by everybody else] that the defendant never touched Andrew? Absolutely not. And that's where your common sense, your logic, your evaluation of the credibility of the witnesses that took that stand, that's where that comes in. [So you're the evaluator of the evidence. You can see through all of that.]
"[Incomplete information. Does it matter that you don't know the answers to everything? No, it doesn't. Unfortunately in the real world, unlike the movies, unlike 'Law & Order,' and shows like that, we don't know the answers to everything. It's very difficult to do that.]
"[Some witnesses can be wrong about some things. Certain details may be off. It doesn't matter. Because what matters is that you get the one or two things that matter the most that really explain whether or not this happened. Those have to be right. Those details have to be right. And in this case, again, it's undisputed as to Erik and from Andrew that the defendant came out of that car and struck Andrew.]
"[There's going to be disputes or conflicts in evidence. Of course there's going to be. It's a trial. If the defense attorney agreed to everything, we would never have a dispute or conflict or a trial. There's always going to be disputes and conflicts in evidence. We're always going to disagree on certain things. The defendant denying a crime is not a reasonable doubt. Every day people deny the fact that they committed a crime. That's why we have trials. That's why we have you. That's why we have jurors making those calls.]
"Reasonable doubt doesn't mean we want more. I don't need to put all the evidence in. There's probably a lot more out there that we can put together and bring here that could explain other details of what happened, but I don't need to do that. Because if what actually happened is enough based on the evidence you heard, it's enough."
Defendant ends this paragraphs with an ellipsis. However, this is the end of the paragraph as set forth in the reporter's transcript.
It is noteworthy that, in contrast to Centeno, supra, 60 Cal.4th 659, no portion of this argument states or implies that the jury could legitimately convict defendant if it believed that the prosecution's evidence was reasonable. (Id. at pp. 672-673.) Even the brief excerpt selected by defendant contains no such implication. Rather, it is a fair comment that the defense theory is unreasonable, based upon the evidence. (Id. at p. 673.) Furthermore, the jury received the standard instructions on burden of proof and reasonable doubt. Accordingly, there was no misstatement of the law, and there is no basis for concluding that it is reasonably likely that the jury understood or applied the comment in an improper or erroneous manner. (Id. at p. 667.)
Neither the Prosecutor's Visual Aid nor Her Argument Based upon It Was Improper
Defendant also contends that the prosecutor's use of a visual aid to explain reasonable doubt was improper. During her rebuttal, the prosecutor displayed to the jury a slide entitled "Reasonable Doubt ? A.C." The slide contained a line labeled "absolute certainty" and a line below that labeled "reasonable doubt." While displaying the slide to the jury, the prosecutor stated, "Now, this is not to scale. There's no . . . measurement between absolute certainty or reasonable doubt, but that's to say that there's a difference. Because the only way you would be absolutely certain of what had happened is if you were there watching. But that would make you a witness." Defendant contends that the visual aid, combined with the prosecutor's comments regarding it, unduly risked misleading the jury about the burden of proof.
Although courts have often warned against the use of visual aids to explain the concept of reasonable doubt, our Supreme Court recently reiterated that it did not categorically disapprove the use of reasonable doubt analogies or diagrams in argument. Rather, courts are to assess each such claim of error on a case-by-case basis. (Centeno, supra, 60 Cal.4th at pp. 662, 667.)
In Centeno, supra, 60 Cal.4th 659, the court disapproved the prosecutor's use of a map of California and a hypothetical situation in which witnesses testified incorrectly as to certain details concerning the state—for example, that San Diego is in the northern part of the state—and correctly as to others. Despite the inaccuracies, the prosecutor argued, jurors could still conclude, beyond a reasonable doubt, that the map was indeed a representation of California. (Id. at pp. 665-666.) After reviewing other cases in which similar representations of an "iconic image" such as the shape of California or the Statue of Liberty to demonstrate the process of proving guilt beyond a reasonable doubt, the court held that such methods draw on jurors' own knowledge rather than the evidence presented at trial. Further, the images used are "immediately recognizable and irrefutable." Additionally, such images "trivialize the deliberative process, essentially turning it into a game that encourages the jurors to guess or jump to a conclusion." (Id. at p. 669; see id. pp. 667-671.)
The visual aid used in this case is quite different from the one in question in Centeno, supra, 60 Cal.4th 659. It is more similar to the one at issue in People v. Medina (1995) 11 Cal.4th 694. In that case, during jury selection, the prosecutor displayed a diagram that "simply showed two horizontal lines, one labeled '100 percent certainty' and a second line beneath it labeled 'beyond a reasonable doubt.' The prosecutor then asked some jurors who were ultimately selected to serve not to 'hold' him to the 100 percent standard, but only to the 'lower' standard. At one point, the prosecutor indicated that a conviction could be sustained if the juror can simply 'cross this black line . . . in your head, of course . . . .'" (Medina, at p. 744.) The defendant complained that the chart implied that the prosecutor's burden was only 50 percent certainty and that the chart might have created the false impression that the jurors could draw an arbitrary line in deciding whether the prosecutor had carried his burden of proof. (Id. at pp. 744-745.) The court did not decide whether the chart constituted error, but held that because it was used only during voir dire, any error could not have been prejudicial because the instructions later given to the jury would have served to "dilute any confusion or uncertainty" that might have been created by the use of the diagram. (Id. at p. 745.)
The chart in this case was even more innocuous than the one used in Medina. It merely reflected that reasonable doubt is a lesser degree of certainty than absolute certainty, a concept that is both simple and correct. The prosecutor's remarks which accompanied her display of the chart—that it was "not to scale" and that there is "no . . . measurement between absolute certainty or reasonable doubt" but merely a difference between the two, with absolute certainty being the greater degree of certainty—is equally correct and could in no way confuse jurors into believing either that there is some measure by which to determine reasonable doubt or that something less than reasonable doubt was required. Accordingly, there was no error and consequently no deficiency in trial counsel's failure to object to it.
2.
UNDER THE STATUTORY ELEMENTS TEST, ASSAULT BY MEANS OF FORCE
LIKELY TO PRODUCE GREAT BODILY INJURY IS NOT NECESSARILY
INCLUDED IN ASSAULT WITH A DEADLY WEAPON
Defendant contends that he could not be convicted on both counts of assault because count 2, assault by means of force likely to result in great bodily injury, is necessarily included within count 1, assault with a deadly weapon other than a firearm. Defendant relies primarily on In re Jonathan R. (2016) 3 Cal.App.5th 963 (Jonathan R.), which holds that assault by means of force likely to produce great bodily injury is a necessarily included offense with respect to assault with a deadly weapon. We disagree, and conclude that defendant was properly convicted on both counts.
As a general rule, a defendant can be convicted of multiple charged offenses. (§ 954.) The California Supreme Court has "'repeatedly held that the same act can support multiple charges and multiple convictions. "Unless one offense is necessarily included in the other [citation], multiple convictions can be based upon a single criminal act or an indivisible course of criminal conduct (§ 954)." [Citation.]'" (People v. White (2017) 2 Cal.5th 349, 353-354.) In determining whether a defendant may be convicted of multiple charged offenses, courts apply the statutory elements test. (People v. Reed (2006) 38 Cal.4th 1224, 1231.) Under the elements test, if the statutory elements of one offense include all of the statutory elements of another offense, the latter is necessarily included in the former. (Id. at p. 1227.)
As relevant here, section 954 provides: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts . . . . The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged. . . ."
Under section 954, a separate conviction is permissible for each completed charged offense, even if the defendant had the same intent and objective in committing the multiple crimes and even if the defendant committed the crimes at or near the same time. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1474-1477 (Johnson).) For example, in Johnson, the court held that a defendant could properly be charged with and convicted of multiple counts of spousal abuse based on acts occurring during a single event where the victim suffered multiple injuries caused by distinct applications of force, because the crime is complete upon the willful and direct application of physical force upon the victim resulting in injury. (Ibid.) Similarly, counts 1 and 2 in this case were based on different acts committed during a single incident. The prosecutor stated in her rebuttal argument that count 1 was based on defendant's use of the flashlight to strike Andrew, while count 2 was based on the assault on Andrew using hands and feet to beat and kick him. The jury instructions as well informed the jury that in order to convict defendant on count 1, it must find that he used a deadly weapon, but that to convict him on count 2, it must find only that he used force likely to result in great bodily injury. Accordingly, the issue is whether, as defendant contends, count 2 is necessarily included in count 1.
The record contradicts defendant's assertion that he was charged with two counts that arose from "the single act of knocking Andrew to the ground." --------
In Jonathan R., supra, 3 Cal.App.5th 963, a wardship petition under Welfare and Institutions Code section 602, subdivision (a), alleged that the minor committed assault with a deadly weapon and that he committed assault by means of force likely to result in great bodily injury. The petition alleged the use of a knife as to both counts. The incident giving rise to both counts was a brawl, during which the minor stabbed another person in the abdomen. (Jonathan R., at p. 967.) The court held that the petition could not be sustained as to both counts because assault with a deadly weapon necessarily includes assault by means of force likely to produce great bodily injury. The court reasoned that an object, other than an inherently deadly weapon, becomes a deadly weapon within the meaning of Penal Code section 245, subdivision (a)(1), only if it is used in a manner likely to produce death or great bodily injury. Accordingly, the court concluded, assault by the use of a deadly weapon necessarily incorporates assault by means likely to result in death or great bodily injury. (Jonathan R., at pp. 971-974.)
The court also held that the same analysis applies when a defendant is convicted of using an instrument which is a "deadly weapon as a matter of law," such as a dirk or a blackjack. "While no jury finding of force likely to produce great bodily injury is required in these circumstances," Jonathan R. says, "those instruments are declared 'deadly' weapons as a matter of law precisely because they 'are weapons in the strict sense of the word and are "dangerous or deadly" to others in the ordinary use for which they are designed.' [Citation.] Use of these weapons necessarily involves the use of force likely to produce death or serious injury." (Jonathan R., supra, 3 Cal.5th at pp. 973-974, fn. 5.) Defendant adopts this argument.
Jonathan R. relies on People v. Aguilar (1997) 16 Cal.4th 1023 (Aguilar) to reach that conclusion. (Jonathan R., supra, 3 Cal.App.5th at pp. 972-974.) In Aguilar, the principal issue was whether hands and feet could qualify as deadly weapons for purposes of former section 245, subdivision (a). The court concluded that they could not, in that "weapon" means an instrument extrinsic to the human body. (Aguilar, at pp. 1029-1034.) The court also considered whether the defendant had been convicted on an erroneous legal theory because the prosecutor argued to the jury that the defendant had committed assault with a deadly weapon by engaging in a brawl in which he beat and kicked the victim. The court held that because an instrument, other than the few items that are considered inherently deadly weapons, becomes a deadly weapon for purposes of the assault statute only if it is used in a manner likely to produce great bodily injury, assault with a deadly weapon using such an instrument necessarily incorporates assault by means of force likely to produce great bodily injury. (Aguilar, at pp. 1028-1029.) However, the court concluded that assault with a weapon that is inherently deadly does not include an element of force likely to produce great bodily injury. The court stated: "We observe that, despite the identity of the jury's reasoning processes under either the 'deadly weapon' clause or the 'force likely' clause in this case [i.e., where use of an instrument other than an inherently dangerous weapon was alleged], our holding does not reduce the former clause to surplusage. There remain assaults involving weapons that are deadly per se, such as dirks and blackjacks, in which the prosecutor may argue for, and the jury convict of, aggravated assault based on the mere character of the weapon." (Id. at p. 1037, fn. 10, italics added.) This is directly contrary to Jonathan R.'s conclusion that assault with a deadly weapon always involves the use of force likely to produce death or serious injury. (Jonathan R., at pp. 973-974, fn. 5.) We, of course, are bound by Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) Accordingly, we conclude that because assault with a deadly weapon can be committed without the use or threat of force likely to produce great bodily injury, assault by means of force likely to produce great bodily injury is not a necessarily included offense. Defendant's conviction on both counts is therefore valid.
3.
DEFENDANT IS ENTITLED TO ONE ADDITIONAL DAY'S CREDIT FOR
PRETRIAL TIME SERVED
A defendant is entitled to credit against a term of imprisonment for all days spent in custody before sentence is imposed. (§ 2900.5, subd. (a).) At sentencing, the trial court must calculate the number of actual days spent in custody and order the abstract of judgment to reflect them. (§ 2900.5, subd. (d).) Here, the court gave defendant credit for 37 days in actual custody. Defendant contends that he is entitled to one or more additional days. He states that the record shows that he was arrested on April 20, 2014, but does not show when he was released on bail.
Defendant was arrested on April 20, 2014. According to the probation report, he posted bail and was released on April 21, 2014. He remained free until he was convicted, on April 5, 2016. He was sentenced on May 11, 2016. The period between April 5 and May 11, 2016, comprises 36 days. Defendant is entitled to credit for April 20 and April 21, 2014, as well, for a total of 38 days. We will direct the trial court to issue an amended abstract of judgment and amended sentencing minutes. (People v. Jones (2000) 82 Cal.App.4th 485, 493-494.)
DISPOSITION
The judgment is modified to reflect credit for 38 days of actual presentence custody. The clerk of the superior court is directed to issue an amended abstract of judgment and sentencing minutes reflecting the modification and to provide a copy of both to the parties and to the Department of Rehabilitation and Corrections within 30 days following the finality of this opinion. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.