People v. Chavez CA2/2

Filed 9/3/15 P. v. Chavez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B257515

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA092359) v.

DANIEL CHAVEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark C. Kim, Judge. Affirmed in part and reversed in part. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez and Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.

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In this appeal from his convictions for attempted murder, assault with a firearm, robbery and multiple assaults with a semiautomatic firearm, Daniel Chavez (defendant) challenges the sentence imposed on two of the enhancements making up his prison sentence of 72 years and 8 months to life, disputes the trial court’s calculation of his 1 custody credits, and asks us to review the sealed transcripts from the in camera Pitchess hearing the trial court conducted. We find that the Pitchess hearing was properly conducted, agree that the trial court’s calculation of custody credits is two days too short, and conclude that the trial court’s intent regarding the sentence to be imposed on the two enhancements is unclear and necessitates a remand for clarification. FACTUAL AND PROCEDURAL BACKGROUND The charges in this case stem from two incidents, just days apart. In the first incident, defendant—a member of the Westside Wilmas street gang— approached a stranger at a church carnival from behind, placed him in a headlock, asked him where he was from (a common inquiry by gang members), and shot him through the neck before the stranger could answer. The stranger lived. In the second incident, defendant walked into a MetroPCS store, pulled out and cocked a semiautomatic pistol, gestured the pistol at two customers in the store, and aimed it at the sales clerk while demanding money. The clerk emptied the register and gave defendant $800 in cash. After defendant left, the clerk and customers saw defendant approach a nearby house; after a standoff with a SWAT team, defendant emerged from the same house. The house contained cash, two guns, and ammunition. For the first incident, the People charged defendant with (1) attempted 2 premeditated murder (Pen. Code, §§ 664, 187, subd. (a)) , and (2) assault with a firearm (§ 245, subd. (a)). The People further alleged that, as to the attempted murder, defendant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53,