People v. Ortez CA2/2 ( 2022 )

Filed 12/30/22 P. v. Ortez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B311885
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA451111)
v.
ORDER MODIFYING
FRANCISCO ANTONIO ORTEZ, OPINION AND DENYING
REHEARING
Defendant and Appellant.
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on December 9,
2022, be modified as follows:
On page 14, before the first paragraph, the following two
paragraphs are added:
The People urge that the absence of jury findings as now
required by Assembly Bill No. 567 is harmless error because
appellant’s criminal history is undisputed and is part of the
record, and because “it is evident beyond a reasonable doubt that
the jury would have found that Lodge was a particularly
vulnerable victim.” But the evidence supporting the
characterization of the victim as “particularly
vulnerable”⎯consisting of an eyewitness’s description of the
victim as “mentally disabled” based on her observation that he
was yelling and moving in an abnormal manner, and the fact that
he was at the store with an assistant⎯was neither undisputed
nor established beyond a reasonable doubt. The People’s
argument also ignores that the third factor the trial court cited—
namely, appellant’s “leadership” capacity—was not found by the
jury, admitted by the defendant, or otherwise not subject to
debate.
Along similar lines, the People urge that any
noncompliance with Assembly Bill No. 124 is harmless because
the record does not show that appellant does not fall into any of
the categories of mitigating circumstances. However, this
argument ignores that the record is silent because appellant had
no reason to develop evidence on these categories because
Assembly Bill No. 124 did not yet exist at that time. Thus, while
we agree with the People that sentencing errors can sometimes
be harmless, we disagree that the errors in this case were
harmless.
2
This modification does not change the judgment.
Respondent’s petition for rehearing is denied.
NOT TO BE PUBLISHED.
LUI, P. J. HOFFSTADT, J. BENKE, J.*
*Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, Division One, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
3
Filed 12/9/22 P. v. Ortez CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE 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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B311885
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA451111)
v.
FRANCISCO ANTONIO ORTEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Eleanor J. Hunter, Judge. Affirmed in part,
vacated in part, and remanded with directions.
Caneel C. Fraser, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and Idan Ivri,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Francisco Antonio Ortez appeals the judgment following a
jury trial in which he was convicted of battery with infliction of
serious bodily injury (Pen. Code,1 § 243, subd. (d); count 4) and
possession of a firearm by a felon (§ 29800, subd. (a)(1); count 5).
Appellant waived a jury trial on the prior conviction allegations
and the trial court found the prior serious felony and strike
conviction allegations true.2 The court denied appellant’s request
to dismiss the strike, and declined to exercise its discretion to
strike the prior serious felony conviction for purposes of the five-
year enhancement under section 667, subdivision (a)(1).
Appellant was sentenced to state prison for an aggregate
term of 14 years 4 months, consisting of the upper term of four
years on count 4, doubled to eight years pursuant to the Three
Strikes law (§§ 1170.12, subd. (b) & 667, subds. (b)–(j)), plus five
years for the section 667, subdivision (a)(1) enhancement, and
eight months on count 5, doubled to 16 months pursuant to the
Three Strikes law.
Appellant contends the trial court violated his federal
constitutional rights to due process and his rights under the
Sixth Amendment by impliedly finding that count 4 constituted a
serious felony and imposing the five-year enhancement under
section 667, subdivision (a). We disagree. For purposes of
imposition of the enhancement under section 667, subdivision
(a)(1), the jury’s finding that appellant inflicted serious bodily
1 Undesignated statutory references are to the Penal Code.
2The prior serious felony and strike conviction allegations
were based on a 2009 conviction for violation of section 245,
subdivision (a)(2) in Los Angeles Superior Court case No.
BA345489.
2
injury qualified as a jury finding of infliction of great bodily
injury. We therefore find no error in the trial court’s imposition
of the five-year enhancement under section 667, subdivision
(a)(1). However, we agree with appellant that Senate Bill
No. 567 and Assembly Bill No. 124, amending section 1170,
subdivision (b) to limit imposition of the upper term and to
require imposition of a low term sentence under certain
circumstances, apply retroactively to this case and require
remand to the trial court for resentencing. Finally, we agree with
the parties that, on remand, appellant is entitled to correction of
his presentence custody credits.
FACTUAL BACKGROUND
On October 9, 2016, Joshua Lodge and his home assistant
Eva went to a grocery store on Slauson Avenue in Los Angeles.
Eva went shopping inside the store and Lodge waited outside
smoking a cigarette. While he was waiting, Lodge saw appellant
point a chrome .357 revolver at two boys nearby. Lodge was
unarmed but tried to intervene and yelled at appellant to leave
the boys alone. Appellant then turned and brandished the gun at
Lodge. Swearing, appellant told Lodge he was in a gang and
threatened to “pop” him. He walked over to Lodge and asked,
“ ‘Do you have a problem with me?’ ” Lodge responded, “ ‘No. I’m
not from a gang.’ ” Lodge asked appellant to leave him alone and
told him he wanted nothing to do with him.
Afraid that appellant was going to shoot him, Lodge walked
inside the store to find help. The security guard simply told him
to go back outside. Lodge left the store, but then reentered to
find Eva. Appellant handed his gun to his companion and
followed Lodge into the store. Appellant asked Lodge, “ ‘What
the fuck did you say?’ ” Lodge responded loudly, “ ‘You’re fucking
3
with the kids.’ ” Appellant then punched Lodge on the side of his
head, knocking him out. Lodge fell to the floor and remained
unconscious for five to 10 minutes.
After hitting Lodge, appellant walked quickly out of the
store. He and his companion joined another person waiting in a
van and drove away.
When Lodge regained consciousness on the floor inside the
store, he had a lump on his head where appellant had struck him.
DISCUSSION
I. The Trial Court Did Not Err in Imposing the
Five-year Enhancement Under Section 667,
Subdivision (a)(1)
Appellant contends the trial court improperly imposed the
five-year enhancement under section 667, subdivision (a)(1)
because, in the absence of a finding by the jury that he inflicted
great bodily injury, the current offense does not qualify as a
serious felony. We disagree. In order to convict appellant under
section 243, subdivision (d) as charged in count 4⎯battery with
infliction of serious bodily injury⎯the jury was required to find
that appellant inflicted serious bodily injury. For purposes of
imposing the section 667, subdivision (a)(1) enhancement, that
finding is equivalent to a finding of great bodily injury. (People v.
Sloan (2007) 42 Cal.4th 110, 117 (Sloan); People v. Johnson
(2016) 244 Cal.App.4th 384, 391–392 (Johnson).)
A. Applicable legal principles
Section 667, subdivision (a)(1) provides for the imposition of
a five-year sentence enhancement for a prior serious felony
conviction where the current conviction is also a serious felony.
(People v. Arnett (2006) 139 Cal.App.4th 1609, 1613 (Arnett).)
Subdivision (a)(4) of section 667 defines “serious felony” to mean
4
any “serious felony listed in subdivision (c) of Section 1192.7.”
Section 1192.7, subdivision (c) in turn identifies 42 offenses as
serious felonies, including “any felony in which the defendant
personally inflicts great bodily injury on any person, other than
an accomplice.” (§ 1192.7, subd. (c)(8).) For an offense
specifically enumerated as a serious felony in section 1192.7,
subdivision (c), “the question whether that conviction qualifies as
a serious felony is entirely legal.” (People v. Kelii (1999) 21
Cal.4th 452, 456.) On the other hand, to the extent imposition of
the section 667, subdivision (a)(1) enhancement turns on a
factual inquiry as to whether the conduct underlying the crime
qualifies the offense as a serious felony, any such facts must be
tried to the same fact finder which decided the defendant’s guilt
of the charged crime. (§ 969f, subd. (a); Apprendi v. New Jersey
(2000) 530 U.S. 466, 490; People v. Gallardo (2017) 4 Cal.5th 120,
123, 134; Arnett, at p. 1613; People v. Bautista (2005) 125
Cal.App.4th 646, 655.)
Great bodily injury is defined to mean “a significant or
substantial physical injury.” (§ 12022.7, subd. (f).) “ ‘It is an
injury that is greater than minor or moderate harm’ ” (People v.
Wyatt (2012) 55 Cal.4th 694, 702), but it “need not be so grave as
to cause the victim ‘ “permanent,” “prolonged,” or “protracted” ’
bodily damage” (People v. Cross (2008) 45 Cal.4th 58, 64).
Indeed, “some physical pain or damage, such as lacerations,
bruises, or abrasions is sufficient for a finding of ‘great bodily
injury.’ ” (People v. Washington (2012) 210 Cal.App.4th 1042,
1047.) Similarly, section 243, subdivision (f)(4) defines “serious
bodily injury” to mean “ ‘a serious impairment of physical
condition, including, but not limited to, the following: loss of
consciousness; concussion; bone fracture; protracted loss or
5
impairment of function of any bodily member or organ; a wound
requiring extensive suturing; and serious disfigurement.’ ”
(People v. Wade (2012) 204 Cal.App.4th 1142, 1147–1148.)
“California courts have long held that ‘serious bodily
injury,’ as used in section 243, and ‘great bodily injury,’ as used in
section 12022.7, are essentially equivalent.” (Johnson, supra, 244
Cal.App.4th at p. 391; People v. Santana (2013) 56 Cal.4th 999,
1008 [terms “serious bodily injury” and “great bodily injury” are
essentially equivalent, having substantially the same meaning];
Sloan, supra, 42 Cal.4th at p. 117; People v. Burroughs (1984) 35
Cal.3d 824, 831, overruled on another ground in People v.
Blakeley (2000) 23 Cal.4th 82, 89; People v. Wade, supra, 204
Cal.App.4th at p. 1149; People v. Bueno (2006) 143 Cal.App.4th
1503, 1508, fn. 5; Arnett, supra, 139 Cal.App.4th at p. 1613;
People v. Chaffer (2003) 111 Cal.App.4th 1037, 1042; People v.
Hawkins (2003) 108 Cal.App.4th 527, 531 (Hawkins II); People v.
Beltran (2000) 82 Cal.App.4th 693, 696; People v. Hawkins (1993)
15 Cal.App.4th 1373, 1375, 1376 (Hawkins I); People v. Moore
(1992) 10 Cal.App.4th 1868, 1871 (Moore); People v. Otterstein
(1987) 189 Cal.App.3d 1548, 1550; People v. Corning (1983) 146
Cal.App.3d 83, 90; People v. Kent (1979) 96 Cal.App.3d 130, 136.)
Indeed, great bodily injury has been held to be “an element of the
crime of battery under section 243, subdivision (d)” for purposes
of enhancing a felony battery conviction under section 12022.7
(Hawkins I, at p. 1375; Johnson, at p. 391), and for purposes of
imposing the enhancement under section 667, subdivision (a)
(Moore, at p. 1871; Arnett, at pp. 1613–1614).
6
B. For purposes of imposition of the enhancement under
section 667, subdivision (a)(1), the jury’s finding that
appellant inflicted serious bodily injury qualified as a jury
finding of infliction of great bodily injury.
Appellant contends the trial court erred and violated his
constitutional rights by imposing the five-year enhancement
under section 667, subdivision (a)(1) because the jury did not
make a factual finding that his current offense was a serious
felony. The argument fails.
The information alleged in count 4 that appellant
committed battery in violation of section 243, subdivision (d),
which resulted in the infliction of serious bodily injury on Lodge.
It was further alleged that this offense constituted a serious
felony within the meaning of section 1192.7, subdivision (c), and
that appellant had suffered a prior conviction of a serious felony,
thus making him subject to the enhancement under section 667,
subdivision (a)(1). The evidence at trial established that
appellant hit Lodge on the side of his head, causing Lodge to lose
consciousness for five to 10 minutes. Afterward, Lodge had a
lump on his head. The jury was instructed that to convict on
count 4⎯battery causing serious bodily injury in violation of
section 243, subdivision (d)⎯it must find beyond a reasonable
doubt that Lodge suffered serious bodily injury, including a loss
of consciousness, as a result of the force used by appellant. The
jury did find appellant guilty on count 4, and therefore
indisputably found he inflicted serious bodily injury on Lodge.
In Arnett, as in this case, the defendant was convicted of
battery with serious bodily injury in violation of section 243,
subdivision (d). (Arnett, supra, 139 Cal.App.4th at p. 1611.) Like
appellant, Arnett argued that in the absence of a separate jury
7
finding on great bodily injury, the imposition of the five-year
enhancement under section 667, subdivision (a)(1) was
unauthorized. (Id. at p. 1613.) The Court of Appeal rejected the
argument, holding that the terms “great bodily injury” and
“serious bodily injury” have “substantially the same meaning”
and are legally indistinguishable for purposes of imposing the
enhancement under section 667, subdivision (a)(1).3 (Id. at
pp. 1613–1614.)
Similarly, in Moore, the Court of Appeal upheld the
imposition of a section 667, subdivision (a)(1) serious felony
enhancement for a felony battery committed by means of serious
bodily injury under section 243, subdivision (d) “because the term
‘serious bodily injury’ is essentially equivalent to and
synonymous with the term ‘great bodily injury,’ as required by
Penal Code section 1192.7, subdivision (c)(8).” (Moore, supra, 10
Cal.App.4th at p. 1870.) The court reasoned: “A felony battery
. . . is defined as an offense in which ‘serious bodily injury is
inflicted on the person.’ [Citation.] Our Supreme Court has held
3 Arnett also rejected the defendant’s argument on the
ground that his waiver of the right to a jury trial on the prior
conviction allegations operated to waive his right to “a jury
determination of whether his current offense was a serious felony
for purposes of section 667, subdivision (a).” (Arnett, supra, 139
Cal.App.4th at p. 1614, citing People v. Yarbrough (1997) 57
Cal.App.4th 469, 477–478, People v. Equarte (1986) 42 Cal.3d
456, 467.) Respondent makes the same argument here, but in
light of our conclusion that the jury’s express finding of serious
bodily injury established appellant’s battery conviction as a
serious felony, we need not address it.
8
that the term ‘serious bodily injury,’ as intended in section 243,
subdivision (d), is ‘essentially equivalent’ with the element of
‘great bodily injury’ presented in other criminal statutes.
[Citations.] Other courts, in comparing the ‘serious bodily injury’
element of felony battery to the ‘great bodily injury’ requirement
of another enhancement statute [citation], have held that the two
terms are ‘substantially similar’ [citation] and ‘essentially
equivalent’ [citation]. Nothing indicates the Legislature intended
that these two terms should have separate and distinct meanings
with regard to a ‘serious felony’ sentence enhancement, and we
perceive no reason to make any distinction between the two
terms.” (Id. at p. 1871; Johnson, supra, 244 Cal.App.4th at
pp. 391–392; see People v. Hernandez (1998) 19 Cal.4th 835, 837
[language of § 1192.7, subd. (c)(8) “would seem to cover”
conviction for battery with serious bodily injury under § 243,
subd. (d)], disapproved on another ground in People v. Seel (2004)
34 Cal.4th 535, 550, fn. 6.)
Appellant relies on People v. Taylor (2004) 118 Cal.App.4th
11 (Taylor) to contend that “serious bodily injury” and “great
bodily injury” have distinct definitions, and the jury’s finding on
the former does not constitute a finding on the latter. However,
Taylor, which “was limited to the particular facts of that case,” is
distinguishable. (People v. Cabrera (2018) 21 Cal.App.5th 470,
478; see also Taylor, at p. 22 [“On the Particular Facts of This
Case, the Trial Court Erred in Treating Taylor’s Conviction for
Battery with Serious Bodily Injury as Equivalent to a Finding of
Great Bodily Injury”].)
In Taylor, the jury convicted the defendant of one count of
battery with serious bodily injury (§ 243, subd. (d)) but found
three great bodily injury enhancement allegations not true.
9
(Taylor, supra, 118 Cal.App.4th at pp. 17–18.) The trial court
imposed a five-year enhancement under section 667, subdivision
(a)(1), finding the battery conviction under section 243,
subdivision (d) to be a serious felony for purposes of the
enhancement. (Id. at p. 22.) The Court of Appeal reversed
imposition of the enhancement on the ground that the trial court
had “violated [defendant’s] statutory and constitutional rights to
jury trial by treating the jury’s finding of ‘serious bodily injury’ as
legally equivalent to a finding of ‘great bodily injury’ despite the
jury’s express finding that [defendant] did not inflict ‘great bodily
injury.’ ” (Id. at p. 20.) While acknowledging that courts have
treated “serious bodily injury” and “great bodily injury” as “being
‘essentially equivalent’ ” or “having ‘substantially the same
meaning,’ ” the Taylor court held that under the particular
circumstances of that case, “the trial court was not at liberty to
make what amounted to a legal determination that [defendant]
had in fact inflicted great bodily injury” when the jury found he
had not. (Id. at p. 27.) In such circumstances, the court held,
“[W]e cannot apply the usual assumption that the two terms have
essentially the same meaning.” (Id. at p. 26.)
In contrast to Taylor, there is no indication in the record
before us that the usual assumption that great bodily injury and
serious bodily injury are equivalent should not apply. No great
bodily injury enhancement was alleged, and the jury did not
make a not-guilty finding on great bodily injury. Taylor itself
limited its application, and its narrow ruling does not apply to
the instant case.
Where “conduct constituting serious bodily injury falls
within a statutory provision referring to conduct constituting
great bodily injury . . . , it is appropriate to rely on the abundant
10
case law finding the concepts (and conduct) essentially
equivalent.” (Johnson, supra, 244 Cal.App.4th at p. 392.)
Although the meanings of “great bodily injury” and “serious
bodily injury” differ in jury instructions, the terms are
indistinguishable for purposes of the definition of a serious felony
under section 1192.7, subdivision (c)(8) or 667, subdivision (a)(1).
(Johnson, supra, 244 Cal.App.4th at p. 391, citing Moore, supra,
10 Cal.App.4th at p. 1870.) In this case, when the jury convicted
appellant on count 4, its explicit finding of serious bodily injury
was equivalent to a finding of great bodily injury under section
1192.7, subdivision (c)(8). The jury’s finding thus made
appellant’s offense a serious felony under section 667, subdivision
(a)(4), and subject to the five-year enhancement under
subdivision (a)(1).
II. Senate Bill No. 567 and Assembly Bill No. 124
Apply Retroactively and Require Remand to
the Trial Court for Resentencing
Appellant contends that because the enactment of Senate
Bill No. 567 and Assembly Bill No. 1244 made ameliorative
4 Three bills amending section 1170⎯Senate Bill No. 567,
Assembly Bill No. 124, and Assembly Bill No. 1540⎯were
enacted and signed into law on the same date. (Stats. 2021,
ch. 731, § 1.3 (Sen. Bill No. 567), eff. Jan. 1, 2022; Stats. 2021,
ch. 695, § 5 (Assem. Bill No. 124), eff. Jan. 1, 2022; Stats. 2021,
ch. 719, § 2 (Assem. Bill No. 1540), eff. Jan. 1, 2022.) Senate Bill
No. 567 incorporated the amendments proposed by Assembly Bill
Nos. 124 and 1540, and provided that if all three bills amending
section 1170 were enacted and became effective on or before
January 1, 2022, and Senate Bill No. 567 were enacted last, then
section 1.3 of Senate Bill No. 567 would become operative. (Stats.
2021, ch. 731, § 3.)
11
changes to the laws under which appellant was sentenced, his
case must be remanded to the trial court for resentencing. The
People agree that these amendments apply retroactively but
argue they do not support a remand for resentencing in this case.
We disagree.
As relevant here, Senate Bill No. 567 amended section
1170, subdivision (b) in two ways: First, it limits the trial court’s
discretion and authority to impose the highest of three statutory
terms of imprisonment by making the middle term the
presumptive term except when circumstances in aggravation
justify imposition of the upper term, and “the facts underlying
those circumstances have been stipulated to by the defendant, or
have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.” (§ 1170, subd. (b)(1) & (2).)
Second, if any of certain specified circumstances was “a
contributing factor in the commission of the offense,” the trial
court must impose the lower term unless the court finds
aggravating circumstances outweigh the mitigating
circumstances such that imposition of the lower term would be
contrary to the interests of justice. (§ 1170, subd. (b)(6).)
These amendments apply retroactively to sentences that
are not yet final on appeal. (People v. Garcia (2022) 76
Cal.App.5th 887, 902 (Garcia); People v. Flores (2022) 73
Cal.App.5th 1032, 1039 [“The People correctly concede the
amended version of section 1170, subdivision (b) that became
effective on January 1, 2022, applies retroactively in this case as
an ameliorative change in the law applicable to all nonfinal
convictions on appeal”].)
Here, the trial court explained its sentencing choice on
count 4 as follows: “And the reason the court is selecting the high
12
term is that that victim was incredibly vulnerable. I still see the
video of him just being knocked out cold by Mr. Ortez.” Based on
its review of the probation officer’s report, the court stated, “[T]he
defendant actually has been around the criminal system for a
long time, since he was 16, it looks like,” and his “criminal
activity is certainly escalating.” Finally, the court noted that
appellant “held a position of leadership during [the] attack.” In
the trial court’s view, these factors⎯appellant’s criminal history,
his “leadership capacity,” and the vulnerability of the
victim⎯combined to warrant the four-year upper term.
The trial court’s reliance on appellant’s criminal history
(other than the strike offense) was not based on a certified record
of conviction or any admission by appellant. Similarly, the other
factors in aggravation⎯namely the trial court’s determination
that the crime involved a particularly vulnerable victim and its
characterization of appellant as occupying a position of
leadership in the commission of the offense⎯were never found
true beyond a reasonable doubt by the jury or stipulated by
appellant.
Appellant’s four-year upper term sentence on count 4 is
therefore inconsistent with the amendments to section 1170,
subdivision (b) because there is no indication in the record that
the aggravating circumstances were proved to the court or found
by the jury beyond a reasonable doubt, admitted by appellant, or
were circumstances relating to appellant’s prior convictions based
on a certified record of convictions. (§ 1170, subd. (b)(1)–(3).)
Furthermore, based on the newly added provisions in section
1170, subdivision (b)(6), defense counsel may be able to argue
factors in mitigation that would require imposition of the lower
term.
13
We thus conclude that the sentence must be vacated and
the matter remanded for resentencing in accordance with the
amendments to section 1170. (People v. Jones (2022) 79
Cal.App.5th 37, 45.) On remand, the trial court may revisit all
its sentencing choices in light of the new legislation. (People v.
Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is
stricken on review, on remand for resentencing ‘a full
resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed
circumstances’ ”]; People v. Valenzuela (2019) 7 Cal.5th 415, 424–
425 [“the full resentencing rule allows a court to revisit all prior
sentencing decisions when resentencing a defendant”]; Garcia,
supra, 76 Cal.App.5th at p. 902.) We take no position on the
choices available to the trial court.
III. Appellant Is Entitled to Correction of His
Presentence Custody Credits
Appellant contends the trial court miscalculated his
presentence custody and conduct credits. Respondent agrees, as
do we.
The record contains no oral statement of credits by the trial
court, but the abstract of judgment indicates the court awarded a
total of 2,396 days of credit, consisting of 1,996 days of actual
presentence custody and 400 days of conduct credit.
Section 4019 provides that a defendant who has not refused
to perform labor and has complied with the rules and regulations
of confinement is entitled to an award of credit calculated by
deeming a term of four days to have been served for every two
days spent in actual custody. (§ 4019, subd. (f).) Under this
formula, appellant should have received 1,996 days of conduct
14
credit in addition to his 1,996 days of custody credit, for a total of
3,992 days of presentence credit.
The 15 percent limitation on conduct credits for a violent
felony conviction based on infliction of great bodily injury does
not apply in this case. Under section 2933.1, subdivisions (a) and
(c), a defendant convicted of a violent felony as defined in section
667.5, subdivision (c) is ineligible for conduct credits in excess of
15 percent of the number of days in actual custody. Section
667.5, subdivision (c)(8) defines a violent felony as “[a]ny felony
in which the defendant inflicts great bodily injury on a person
other than an accomplice.” But in order to qualify as a violent
felony, section 667.5, subdivision (c)(8) contains the additional
requirement that the “great bodily injury allegation was ‘charged
and proved as provided for in Section 12022.7.’ ” (Hawkins II,
supra, 108 Cal.App.4th at p. 530.)
Although the jury’s conviction on count 4 of battery with
infliction of serious bodily injury constituted a finding that
appellant inflicted great bodily injury for purposes of the prior
serious felony enhancement under section 667, subdivision (a)(1),
it was not the equivalent of a violent felony finding under section
667.5, subdivision (c)(8) where great bodily injury was not
charged and proven under section 12022.7. (Hawkins II, supra,
108 Cal.App.4th at p. 532.) Nor could it have been so charged
because section 12022.7, “by its own terms does not apply to
crimes in which infliction of great bodily injury is an element of
the offense unless the crime is committed under circumstances
involving domestic violence.” (Hawkins II, at p. 531; § 12022.7,
subds. (e), (g).) Since “the ‘great bodily injury’ contemplated by
section 12022.7 is substantially the same as the ‘serious bodily
injury’ element of section 243, subdivision (d) [citation], the
15
section 12022.7 enhancement cannot be applied to the crime of
battery with serious bodily injury unless it involves domestic
violence.” (Hawkins II, at p. 531.)
As the court in Hawkins II concluded, “The serious bodily
injury inflicted by one who violates section 243, subdivision (d),
may be no less dangerous to society or damaging to the victim
than the infliction of great bodily injury committed by those
whose crimes are covered by section 12022.7. The Legislature
has made clear, however, that it is capable of distinguishing
between such crimes when defining them as either serious or
violent felonies. (Compare § 667.5, subd. (c)(8) [identifying as a
violent felony ‘[a]ny felony in which the defendant inflicts great
bodily injury . . . which has been charged and proved as provided
for in Section 12022.7’] with § 1192.7, subd. (c)(8) [defining as a
serious felony ‘any felony in which the defendant personally
inflicts great bodily injury’].) Section 2933.1’s 15 percent custody
credit limitation only applies to those crimes defined as violent
felonies under section 667.5. Battery with serious bodily injury
cannot be so defined unless it is committed under circumstances
involving domestic violence, so the limitation cannot be applied
here.” (Hawkins II, supra, 108 Cal.App.4th at pp. 531–532.)
16
DISPOSITION
The judgment of conviction is affirmed. The sentence is
vacated, and the matter is remanded to the superior court with
directions to conduct a new sentencing hearing under Penal Code
section 1170 as amended by Senate Bill No. 567 and Assembly
Bill No. 124.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
HOFFSTADT, J.
BENKE, J.*
*Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, Division One, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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