People v. Solis CA2/4

Filed 10/17/14 P. v. Solis CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B250189

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA071623) v.

SAMMY BRICENO SOLIS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel B. Feldstern, Judge. Affirmed as modified, remanded with directions. Catherine White, 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, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION Sammy Briceno Solis appeals from a judgment and sentence, following his conviction for attempted murder. He contends the trial court erred in denying his request for an instruction on assault with a deadly weapon, because it was a lesser included offense of attempted murder. Under People v. Wolcott (1983) 34 Cal.3d 92 (Wolcott), assault with a deadly weapon was not a lesser included offense of the attempted murder charged in the information. As Wolcott controls, the trial court did not err. Appellant also contends the abstract of judgment should be amended to reflect the jury’s verdict that the attempted murder was not willful, deliberate and premeditated. The People concede the error. Accordingly, we will order the abstract of judgment modified, and as modified, affirm.

PROCEDURAL HISTORY A jury convicted appellant of the attempted murder of Ronald Varela 1 (Pen. Code, §§ 664, 187, subd. (a)). It found true the allegation that appellant personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)), and that he personally inflicted great bodily injury (GBI) upon Varela (§ 12022.7, subd. (a)). The jury found untrue the allegation that the attempted murder was willful, deliberate, and premeditated. Appellant admitted he had served two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced appellant to state prison for 13 years, consisting of the upper term of nine years for attempted murder, plus one year for the weapon enhancement, plus three years for the GBI enhancement. Appellant timely filed a notice of appeal.