People v. Vacca

Opinion

YEGAN, J.

Larry Jack Vacca appeals from the judgment entered following a jury trial that resulted in his conviction of assault with a firearm on a peace officer in which he personally used a firearm (Pen. Code, §§ 245, subd. (d)(1), 12022.5).

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He contends: “I. The trial court erred by failing to exercise its discretion as to whether to impose the firearm use enhancement^] [^Q II. The trial court erred in selecting the upper terms for the substantive offense and the enhancement[.] [*]D III. The trial court erred in its determination of the presentence custody credits[.]” We affirm.

On June 14, 1994, Ventura County Deputy Sheriff Joe Evans was sitting . in his parked vehicle in a residential area when he heard what sounded like a gunshot. He saw a woman cringing in a telephone booth and appellant walking down the street. Deputy Evans drove near appellant and called out: “Sheriff’s Department, come here." Appellant fled and Deputy Evans pursued him on foot. Appellant ran up a driveway, turned, and fired a shot in the direction of Deputy Evans. Deputy Evans radioed for assistance and appellant was apprehended. A .38-caliber handgun was found approximately 15 feet from appellant.

At the sentencing hearing, the trial court had before it appellant’s probation report which stated: “People vs Thomas (1993) 4 Cal.4th 206 [14 Cal.Rptr.2d 174, 841 P.2d 159] states that the Court is without authority to strike the gun use enhancement." The report also stated that appellant denied shooting at Deputy Evans. Appellant claimed the gun went off when he was climbing a fence.

[807]

In arguing for the maximum sentence, the prosecutor said: “The [Legislature has deemed it appropriate that even though a firearm is an element in the 245, that people who do crimes like Mr. Vacca

can be

punished consecutively for the use and the crime.” (Italics added.)

The trial court imposed the maximum sentence stating: “The Court finds the following factors to be circumstances in aggravation. That the defendant, while having a significant history of substance abuse and having been involved in a drug program, was under the influence of alcohol and drugs at the time this occurred; and he shot a gun twice in the neighborhood; that he has an extensive criminal record, which is becoming more serious; that he was on probation at the time that the offense was committed; and his prior performance on probation has been unsatisfactory. [<fl] The Court finds no factors in mitigation and sentences the defendant to the aggravated [term] of eight years. Ordered to run consecutively to that is five years for the use of a firearm. You can commit a 245 with a firearm without even discharging the weapon. [*][] I’m satisfied that he aimed the gun [directly] at the officer and fired it. His offer of the gun going off when climbing through a fence is totally inconsistent with everything that has been testified to in this case. [<fl] That five-year term is to run consecutive to the eight years, for a total unstayed term in prison of thirteen years.” The trial court awarded appellant 139 days of actual custody credit and 68 days of conduct credit for a total of 207 days of precommitment credit.