People v. Kim CA2/4

Filed 5/17/16 P. v. Kim CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B259869

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA399650) v.

DAVID KIM,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Monica Bachner, Judge. Affirmed as modified. Libby A. Ryan, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Lance E. Winters, Assistant Attorneys General, Steven D. Matthews and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent. ______________________________

David Kim appeals from the judgment after his jury conviction of battery with serious bodily injury. (Pen. Code, § 243, subd. (d).)1 He argues that the trial court erred in imposing an additional five-year term under section 667 and limiting his conduct credits to 15 percent under section 2933.1. We conclude the five-year term was properly imposed because the prosecution proved that appellant’s conduct caused his current offense to become a serious felony under section 1192.7. However, as charged and proven, appellant’s offense did not qualify as a violent felony under section 667.5, and the limitation imposed on his conduct credits was therefore improper. We modify the judgment to award appellant 806 days of conduct credits and a total of 1612 days of presentence custody credits.

FACTUAL AND PROCEDURAL SUMMARY The victim, Peter Chung, and appellant were residents at a Christian fellowship center that provided in-patient alcohol abuse treatment. On May 7, 2012, Chung ran into appellant and three other men in the smoking area of the center. Appellant confronted Chung, approaching and asking him, “What are you looking at?” and “You want to take it outside?” The other three men stood up. Center administrators sent everyone to their rooms. An hour and a half later, Chung returned to the smoking area, and again saw appellant and the other three men. Appellant again asked Chung what he was looking at, and one of the men added, “You mess with him, you mess with all of us.” Another man punched Chung, who fell back. All four men then beat and kicked Chung while he was on the ground. According to Chung, at some point appellant used an object that looked like a pipe to hit Chung on the head and to break his arm. Chung sustained fractures to his right arm and leg, as well as his ribs and orbital bones. He was hospitalized for two weeks, during which he underwent surgery on his arm, leg, and left eye. He wore a cast on his leg for eight months and on his arm for four