People v. Lievsay CA3

Filed 12/30/13 P. v. Lievsay CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Trinity)

THE PEOPLE, C069963

Plaintiff and Respondent, (Super. Ct. No. 10F088B)

v.

CHIPPICHANAS LIEVSAY,

Defendant and Appellant.

Defendant Chippichanas Lievsay appeals from the judgment imposed following his convictions for battery causing serious bodily injury (Pen. Code, § 243, subd. (d)),1 a serious felony under section 1192.7, subdivision (c); failure to appear (§ 1320, subd. (b)); and attempt to obstruct an officer in the performance of his duties (§ 69). Defendant contends: (1) the trial court erred in sentencing him under the Three Strikes law, as a battery with serious bodily injury is not the same as a felony causing great bodily injury and therefore, it is not a serious felony; (2) he is entitled to additional presentence conduct credits; and (3) the abstract must be corrected to reflect the correct imposition of

1 Undesignated statutory references are to the Penal Code.

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the court security fees and criminal conviction assessments. We find no merit to defendant’s claim that battery with serious bodily injury is not a serious felony; however, we agree he is entitled to 24 days of additional presentence conduct credit and the abstract must be corrected to reflect the imposition of $160 in court security fees and $120 in criminal conviction assessments. As modified, the judgment is affirmed. BACKGROUND Trinity County Sheriff’s Deputy Jeramy Ammon went on a mountain bike ride with his brother-in-law. On the ride, Ammon saw defendant and James Chappell heading towards them. Chappell intentionally slammed his bike into Ammon’s bike and both bikes fell to the ground. Chappell stood with his fists clenched and his chest puffed out and Ammon asked him what his problem was. Ammon tried to pick up his backpack and each time he leaned forward, Chappell would move as though he was going to hit Ammon. Meanwhile, defendant walked up behind Ammon with his fists clenched and chest out and asked, “What’s up, motherfucker?” To minimize the threat of attack, Ammon triangulated Chappell and defendant; he pushed defendant with his left hand and stepped back placing defendant and Chappell in front and to the side of him. As Ammon backed away, defendant charged Ammon with both hands swinging. After a few swings, defendant punched Ammon in the jaw. Defendant swung a few more times and then made a roundhouse kick toward Ammon’s thigh. Ammon blocked the kick with his hand. His hand hurt immediately. He tried to put defendant in a control hold, but his fingers did not function properly and he could not grip with his left hand. Defendant continued kicking and punching at Ammon. Eventually Reserve Deputy Bruce Black broke up the fight and defendant was placed under arrest. Ammon looked at his hand and discovered his ring finger was bent and swollen and almost overlapping his pinky finger. Doctors treated Ammon at the emergency room for a broken finger and advised Ammon it was in his best interest to have the finger surgically repaired. A metal plate was inserted in his finger. For two and one-half