People v. Ware CA2/2

Filed 10/20/15 P. v. Ware CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B260633

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. Edmund Willcox Clarke, Jr., Judge. Affirmed.

Esther K. Hong, 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, Assistant Attorney General, Jonathan J. Kline and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.

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This case is before us again following resentencing. In our prior unpublished opinion, filed on January 28, 2014 (B246050), we ordered a great bodily injury enhancement stricken and remanded the case for resentencing. The trial court imposed the same 16-year sentence by treating a different count as the principal count and selecting the upper term over the previously imposed midterm. Appellant Marcus Leroy Ware contends this was error. We disagree and affirm. BACKGROUND Facts Briefly, after threatening the victim in a liquor store, appellant waited for the victim outside and hit him on the head with a thick stick, causing the victim to lose consciousness. While the victim was on the ground, appellant kicked his face, causing injuries that required surgery. Appellant was charged with two counts: 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 count 2, it was alleged that appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)). It was further alleged as to both counts that appellant had suffered a prior serious or violent felony conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The jury found appellant guilty as charged. Appellant admitted the prior conviction allegation in a bifurcated proceeding. First Sentencing Hearing The trial court sentenced appellant to a total of 16 years in state prison. On count 1, the principal count, the trial court imposed the upper term of four years, doubled to eight years pursuant to the “Three Strikes” law, plus five years for the prior conviction pursuant to section 667, subdivision (a), plus three years for a great bodily injury enhancement pursuant to section 12022.7, subdivision (a). On count 2, the trial court imposed the midterm of three years, to be served concurrently with the sentence imposed