People v. Muscat CA3

Filed 12/27/21 P. v. Muscat CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C092912

Plaintiff and Respondent, (Super. Ct. Nos. 18CF00378,18CF06664) v.

RYAN EDGAR WAYNE MUSCAT,

Defendant and Appellant.

Defendant Ryan Edgar Wayne Muscat appeals a judgment entered following his conviction by jury of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4))1 with a special allegation that defendant inflicted great bodily injury (§ 12022.7, subd. (a)) and his no contest plea to two counts of battery by gassing correctional officers (§ 243.9, subd. (a)). Both cases also had true findings that defendant

1 Further undesignated statutory references are to the Penal Code.

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had been previously convicted of a serious felony (§ 667, subd. (a)(1)) and had suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12). Defendant’s sole argument on appeal is that he is entitled to remand for resentencing because the trial court misunderstood its sentencing discretion and his attorney rendered ineffective assistance of counsel by not informing the court that it had the ability to strike the prior strike in the jury conviction case. As we shall explain, we disagree and will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND Defendant received a jury trial in case No. 18CF00378 (the jury case) to resolve the allegations he committed battery with serious bodily injury (§ 243, subd. (d); count 1); assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4); count 2); and a special allegation that defendant inflicted great bodily injury while committing count 2 (§ 12022.7, subd. (a)). The jury found defendant not guilty of count 1 (including its lesser included offense of battery), guilty of count 2, and found true the special allegation that defendant had personally inflicted great bodily harm. Thereafter, in a bifurcated proceeding, the trial court determined the enhancement allegations that defendant had been previously convicted of a serious felony (§ 667, subd. (a)(1)) and had suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12) were true. Defendant pleaded no contest in case No. 18CF06664 (the plea case) to two counts of battery by gassing of correctional officers (§ 243.9, subd. (a)) and admitted that he had suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike (§§ 667, subds. (b)-(i), 1170.12). In exchange, the People dismissed a pending felony case and a pending misdemeanor case with a Harvey2 waiver. The stipulated factual basis for the