People v. Ware CA2/2

Filed 1/28/14 P. v. Ware CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B246050

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA393397) v.

MARCUS LEROY WARE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. John S. Fisher, Judge. Affirmed and remanded for resentencing.

Esther K. Hong, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General and Susan Sullivan Pithey, Deputy Attorney General, for Plaintiff and Respondent.

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Marcus Leroy Ware appeals from the judgment entered upon his conviction by jury of battery with serious bodily injury (Pen. Code, § 243, subd. (d), count 1), 1 and assault with a deadly weapon (§ 245, subd. (a)(1), count 2). As to the assault count, the jury found true the allegation that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). In a bifurcated proceeding, appellant admitted a prior conviction of a serious or violent felony (§§ 1170.12, subds. (a)-(d); 667, subds. (a)(1), (b)-(i); 667.5, subd. (b)). The trial court sentenced appellant to a total term of 16 years in state prison. On count 1, the trial court imposed the upper term of four years doubled pursuant to the “Three Strikes” Law, plus three years pursuant to section 12022.7, subdivision (a), plus five years for appellant’s prior conviction pursuant to section 667, subdivision (a). On count 2, the trial court imposed the midterm of three years to be served concurrently with the count 1 term, and imposed but stayed the section 12022.7 sentence pursuant to section 654. The trial court awarded appellant 378 days of presentence custody credit. Appellant contends the great bodily injury enhancement on count 1 should be stricken, and the sentence on count 2 should be stayed pursuant to section 654. The section 12022.7, subdivision (a) enhancement on count 1 must be stricken and the matter remanded for resentencing consistent with this opinion. We otherwise affirm the judgment. FACTS Shortly before noon on January 16, 2012, David Smith and Virgil Spencer went to a liquor store on 4th Avenue and Venice Boulevard. While they were inside the liquor store, appellant entered the store carrying a thick stick, approximately two feet in length. Appellant was Spencer’s nephew by marriage and had threatened Spencer in the past. Appellant approached Spencer and said, “What’s up, mother fucker? What’s up now? This is 60’s. This is 60’s.” Spencer understood the term “60’s” to refer to a gang. Smith jumped between appellant and Spencer and told appellant to “back it off.” Appellant