People v. Acuna CA3

Filed 5/28/14 P. v. Acuna CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C072848

Plaintiff and Respondent, (Super. Ct. No. SF117622A)

v.

JULIANO VITO ACUNA,

Defendant and Appellant.

A jury convicted defendant Juliano Vito Acuna of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1))1 and found he personally inflicted great bodily injury (GBI) (former § 12022.7, subd. (a)). In bifurcated proceedings, defendant admitted a strike prior for a 2009 robbery. (§§ 667, subd. (b)-(i); 1170.12.) The court sentenced defendant to state prison for an aggregate term of seven

1 Undesignated section references are to the Penal Code.

1

years, that is, the low term of two years, doubled for the strike prior, plus three years for the enhancement. Defendant appeals. He contends the trial court was unaware of its ability to strike the GBI enhancement, requiring remand for resentencing. He also contends counsel rendered ineffective assistance in failing to properly advise the trial court of its sentencing option to strike the enhancement. We reject defendant’s contentions. FACTS On May 24, 2011, while the 18-year-old defendant was housed at a juvenile facility for his robbery conviction, he physically assaulted a much smaller, fellow ward, 15-year-old Z.V., after an outside recreation program had ended. The two were in a group and had been ordered to line up single file and return to the dorm area. As they walked forward, defendant approached Z.V. from behind and struck him in the jaw with a closed fist. Z.V. lost consciousness and fell to the ground. Besides losing consciousness, Z.V. suffered a head wound requiring four stitches and several chipped teeth which required dental crowns. He also had pain in his collarbone. Z.V. remained in the medical facility for a week and suffered headaches for several days. Defendant was examined and found to have redness on his knuckles. The youth correctional counselor who had watched the wards outside did not observe any problems between defendant and Z.V. before the attack. In a group counseling session several hours before the assault, defendant had given an example of intimidation, claiming Z.V. had said something to defendant. Defendant then laughed, as did the other wards, with the exception of Z.V. Z.V. denied he had said anything to defendant. The counselor did not interpret defendant’s comments as being a threat to Z.V. or that Z.V. had threatened defendant. Defendant claimed self-defense. Defendant asserted that approximately five hours after the group counseling session, Z.V. threatened to kill defendant and had a “prison- made shank.” Later, after the recreation program had ended and the group had lined up