Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA272338, Curtis B. Rappe, Judge. Affirmed as modified.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph Lee and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MANELLA, J.
RELEVANT PROCEDURAL HISTORY
On August 25, 2005, an information was filed charging appellant Javier Quinones in count 1 with the attempted willful, deliberate, and premeditated murder of Mike Guerrero (Pen. Code, §§ 187, subd. (a), 664), and in count 2 with the second degree robbery of Guerrero (§ 211). The information alleged under each count that appellant personally used a firearm (§12022.53, subds. (b), (c), (d)), and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Appellant pleaded not guilty to the charges and denied the special allegations.
All further statutory citations are to the Penal Code.
The information was subsequently amended on matters not relevant here.
Trial was by jury. On February 23, 2006, the jury found appellant guilty as charged, and also found true the special allegations, with the exception of the allegations under count 2 that appellant discharged a firearm causing great bodily injury to Guerrero (§ 12022.53, subds. (c), (d)). Under count 1, the trial court sentenced appellant to 15 years to life imprisonment, plus a consecutive term of 25 years for appellant’s discharge of a firearm causing great bodily injury (§12022.53, subd. (d). Under count 2, the trial court sentenced appellant to three years imprisonment, plus ten years for personal use of a firearm (§ 12022.53, subd. (b), and ten years for committing a gang-related offense (§ 186.22, subd. (b)(1)). The term of imprisonment for count 2 was stayed (§ 654).
FACTS
A. Prosecution Evidence
The principal prosecution witnesses were Edith Guardado, Jennifer Rodriquez, and Ana Aguirre; in addition, the jury viewed a videotape of the underlying incident taken by a security camera. Guardado testified that near midnight on October 3, 2004, she was driving her “extended cab” pickup truck after picking up her teenage daughter at a party. Also in the truck’s back seats were Guerrero and two female friends of Guardado’s daughter, including Rodriquez.
Guardado stopped at a gas station, and Guerrero went to pump gas into the truck. Shortly thereafter, Guardado saw appellant speak with Guerrero, who was standing on the driver’s side of the truck, where the gas pump nozzle was attached to the truck. Appellant cursed and told Guerrero, “[S]ay fuck White Fence” and “[S]ay it like you mean it.” After Guerrero complied, appellant searched Guerrero’s pockets, and Guardado noticed that appellant had pointed a gun at Guerrero. Guardado heard Guerrero say, “Not right now, I’m with my family,” and appellant answer, “I don’t give a fuck who you’re with.” When Guardado asked appellant to leave Guerrero alone, appellant hit Guerrero’s head with the gun, and responded, “I can smoke him.”
Guardado testified that Guerrero is the nephew of her sister’s boyfriend.
Without removing the nozzle from the truck, Guerrero walked around the front of the truck to its passenger side, followed by appellant. Guardado then heard a gunshot. Guerrero said, “I have been hit, I have been shot,” jumped into the truck, and held his stomach. As Guardado accelerated out of the gas station, a second gunshot shattered a window in her truck.
Rodriguez testified that when the truck stopped at the gas station, Guerrero left it to pump gas. She saw appellant yelling at Guerrero to say “fuck White Fence” -- which she knew to be the name of a street gang -- and saw him take things from Guerrero’s pockets According to Rodriguez, appellant had a small tattoo resembling “E6” beneath his left eye. After Guerrero repeated what appellant told him to say, Guerrero ran around the front of the truck, followed by appellant. When appellant was in front of the truck and Guerrero was entering it, Rodriguez heard a gunshot. She heard a second gunshot as the truck drove away, and she saw that Guerrero was bleeding.
Aguirre testified that appellant is a friend of her husband, who belongs to the Evergreen gang, and that appellant himself is “affiliated” with the gang. Shortly after midnight on October 3, 2004, she was driving her minivan, accompanied by appellant and her three children. In need of gas, she entered a gas station in White Fence territory. She knew that members of the White Fence gang often hung out at the gas station, and asked appellant -- for his protection -- not to get out of the minivan. As she pumped gas into the minivan, she noticed a truck on the other side of the pump and saw appellant talking to someone. Seconds later, she heard shots. She hurriedly replaced the pump nozzle and returned to the van, where she saw appellant put a gun into his waistband as he entered the minivan. He said, “I’m sorry, they snapped.” Aguirre then drove appellant to his home.
Guerrero, who also testified at trial, stated that he belonged to the White Fence gang. According to Guerrero, on October 3, 2004, someone gave him a ride after a party, but he did not know the identify of the person. His head was spinning because he was on drugs and had been drinking alcohol. When the car stopped at a gas station, he began pumping gas. A man then approached him and demanded money. Although the man held a gun, he did not point it at Guerrero. Guerrero was unsure whether the man hit him, and he denied that the man told him to say, “Fuck White Fence.” Guerrero, fearing for his life, ran away from the man, and he was shot twice. He suffered wounds to his chest and right forearm.
Guerrero denied that appellant was the man who approached him at the gas station. He also denied that his trial testimony conflicted with statements he had previously made to police investigators. He acknowledged that at the time of trial he was in custody in county jail, but stated he did not fear being labeled a “snitch.”
Los Angeles Police Department (LAPD) officer Mario Morales, a gang expert, testified that the Evergreen and White Fence gangs are “deadly rivals” who claim adjoining territories. He was aware of at least ten clashes between the gangs involving gunshots. In 2004, appellant told Morales that he belonged to the Evergreen gang, whose members sometimes display an “EG” tattoo. Morales opined that an Evergreen gang member who humiliates, robs, and shoots a White Fence gang member in White Fence territory benefits himself and the Evergreen gang by showing it is the stronger gang. He also testified that anyone labeled a “snitch” by a gang risked retribution from the gang.
LAPD officer Francisco Macias testified that he spoke to Guerrero at a hospital after 1:00 a.m. on October 3, 2004. Guerrero told Macias he had been pumping gas for a female friend when a male Hispanic pointed a gun at him and asked for money. The man had an “EG” tattooed on his left cheek. When Guerrero denied having any money, the man searched Guerrero’s pockets and took two dollars. Guerrero ran to the truck, and heard two shots. After he jumped into the truck, he saw that he had been shot. LAPD detective Marc Phillips, who showed a photographic lineup to Guerrero at the hospital, testified that Guerrero did not identify appellant in the lineup.
Glen Bancroft, an employee of the Los Angeles District Attorney’s Bureau of Investigation, testified that he spoke to Guerrero in a lockup shortly before Guerrero’s trial testimony. According to Bancroft, Guerrero stated that he knew the people in the vehicle with him on October 4, 2004, and that he had been robbed at the gas station. Guerrero also stated that he first met appellant in elementary school, and that appellant had approached him while Guerrero was in custody.
B. Defense Evidence
Appellant presented no evidence.
DISCUSSION
Appellant contends that the evidence was insufficient to support the jury’s determinations that (1) he engaged in attempted murder, and (2) the attempted murder was deliberate and premeditated. He also contends that (3) his sentence for attempted murder constitutes cruel and unusual punishment, (4) the trial court improperly imposed a gun use enhancement on his sentence for robbery, and (5) his custody credits were miscalculated.
A. Substantial Evidence
We begin with appellant’s contentions regarding the sufficiency of the evidence. “‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
1. Attempted Murder
Appellant contends that his conviction for attempted murder fails for want of substantial evidence that he intended to kill Guerrero. We disagree. Generally, “[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) As our Supreme Court explained in People v. Smith (2005) 37 Cal.4th 733, 739 (Smith), the requisite intent is essentially identical to the state of mind denominated as “express malice.” To establish this element of the offense, the prosecution was obliged to show that “the assailant ‘“‘ either desire[s] the result [i.e., death] or knows[s], to a substantial certainty, that the result will occur. [Citation.]”’ [Citations.]” (Ibid.)
Two principles govern this showing. (Smith, supra, 37 Cal.4th at p. 740.) First, motive, although not an element of attempted murder, “is often probative of intent to kill.” (Id. at pp. 740-741.) Second, evidence of motive aside, absent direct evidence of the defendant’s intent, express malice may be inferred from the defendant’s conduct and the circumstances of the crime. (Id. at p. 741.) “These principles, taken together, reflect that the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of intent to kill.” (Id. at p. 742.)
Instructive applications of these principles are found in Smith and People v. Lashley (1991) 1 Cal.App.4th 938 (Lashley). In Smith, a woman drove with her boyfriend and infant to a friend’s house, where they immediately encountered the defendant, who had threatened to “‘slap the shit out of’” the woman when they last spoke nine months earlier. (Smith, supra, 37 Cal.4th at pp. 736-737.) The defendant said, “Don’t I know you, bitch?”, and displayed a gun to her boyfriend. (Id. at p. 737.) As the woman drove away with her infant and boyfriend, the defendant fired a single shot through the car’s rear window, which narrowly missed the woman and her infant in the back seat. (Ibid.) The court in Smith held on these facts that substantial evidence supported the jury’s determination that the defendant had intended to kill the woman and her infant. (Id. at p. 744.)
Again, in Lashley, the defendant stood on his apartment balcony and shouted racial insults at the victim, who was fishing nearby, and then fired a .22 caliber rifle once in the victim’s direction, piercing the victim’s lung. (Lashley, supra, 1 Cal.App.4th at pp. 942-943.) The court concluded that these facts adequately supported the jury’s determination that the defendant had intended to kill the victim. (Id. at p. 945.) In so concluding, it observed that the jury was free to reject the defendant’s trial testimony that he had merely tried to scare the victim or inflict a nonfatal wound. (Id. at p. 946.)
In view of this authority, there is ample evidence appellant intended to kill Guerrero. The evidence at trial disclosed that appellant knew Guerrero and recognized him as a member of a rival gang. Appellant approached Guerrero with a gun, and then humiliated, hit, and robbed him. In response to Guardado’s pleas on Guerrero’s behalf, appellant said, “I can smoke him.” When Guerrero retreated into Guardado’s truck, appellant followed and fired two shots at close range, wounding Guerrero twice.
Appellant contends the record fails to establish that he acted with the requisite intent because there is no evidence Guerrero’s injuries were life-threatening, and the evidence is otherwise consistent with the inference that appellant merely intended to keep Guerrero from leaving the gas station. He is mistaken. As the court explained in Smith, the fact that “the bullet misses its mark or fails to prove lethal” does not compel the inference that the defendant lacked the intent to kill. (Smith, supra, 37 Cal.4th at p. 742.) Furthermore, as the court indicated in Lashley, that the record might support other inferences about appellant’s state of mind did not preclude the jury from properly determining that he possessed the requisite intent to kill. (Lashley, supra, 1 Cal.App.4th at p. 946.) That is the case here.
Appellant also contends that the evidence concerning his gang membership was inadequate to establish his intent to kill Guerrero. His reliance on People v. Killebrew (2002) 103 Cal.App.4th 644 is misplaced because it is factually distinguishable. There, the defendant, who was a gang member, was charged with conspiring to be a felon in possession of a handgun. (Killebrew, supra, 103 Cal.App.4th at p. 647.) There was no evidence of actual possession, and the sole evidence of constructive possession came from an expert, who opined that the defendant knew about several guns in various locations, and jointly possessed them with other gang members. (Id. at pp. 647, 658.) The court in Killebrew concluded this was improper opinion on an ultimate fact. (Id. at p. 658.)
Unlike Killebrew, the determination that appellant had the requisite intent does not rest exclusively on expert opinion. Generally, a prosecutor may properly present expert testimony related to “‘[t]he subject matter of the culture and habits of criminal street gangs,’” including the potential motivation and conduct of gang members upon entering rival gang territory. (People v. Ward (2005) 36 Cal.4th 186, 209-210, quoting People v. Gardeley (1996) 14 Cal.4th 605, 617.) Here, the prosecutor presented expert testimony of this kind, together with other evidence that appellant overtly displayed gang-related animus toward Guerrero, namely, that he compelled Guerrero to speak disrespectfully about his own gang. This evidence is sufficient to establish appellant’s gang-related motives in confronting Guerrero. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1225 [expert testimony on gang rivalry is evidence of motive for shooting].) As we have explained, the evidence of these motives, coupled with the other circumstances of the shooting, constitute substantial evidence that he intended to kill Guerrero.
Appellant suggests that his contention of error finds support in People v. Woods (1991) 226 Cal.App.3d 1037. We are not persuaded. In Woods, the court held that the trial evidence -- which included expert testimony on gangs -- supported a finding that a gang member intended to kill two persons at whom he had fired a gun at close range. (Id. at pp. 1048-1053.)
2. Premeditation
Appellant also contends the evidence was insufficient to support the determination that the attempted murder was premeditated and deliberate. Again, we disagree. Generally, the terms “premeditated” and “deliberate” have the meaning in this context that they carry in connection with first degree murder. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8.) So understood, “‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’ [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 767; see People v. Lenart (2004) 32 Cal.4th 1107, 1127.) Thus, “[a]n intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite reflection need not span a specific or extended period of time. ‘“‘Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’”’ [Citation.]” (People v. Stitely (2005) 35 Cal.4th 514, 543.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), our Supreme Court identified three kinds of evidence a reviewing court should consider in determining the existence of premeditation and deliberation, namely, planning activity, motive, and manner of killing. It has subsequently cautioned: “These factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. [Citations.] However, ‘[w]hen the record discloses evidence in all three categories, the verdict generally will be sustained.’ [Citation.]” (People v. Stitely, supra, 35 Cal.4th at p. 543.) These factors are also applicable to the existence of premeditation and deliberation in the context of attempted murder. (People v. Villegas, supra, 92 Cal.App.4th at p. 1225.)
In People v. Lenart, supra, 32 Cal.4th at page 1127, the court summarized the three Anderson categories as follows: “(1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing -- what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).”
We find dispositive guidance on the issue before us in People v. Wells (1988) 199 Cal.App.3d 535 (Wells). There, the victim, who was a gang member, went to a dance with friends and encountered the defendant, who belonged to a rival gang. (Id. at p. 538.) At some point, a fist fight broke out between the victim and other members of the defendant’s gang. (Ibid.) The defendant took out a gun and fired it in the air; he then followed the fleeing victim and fired the gun at least three times at the victim over a period of 10 to 15 seconds. (Ibid.) The victim suffered three bullet wounds, one of which was fatal.
The victim also suffered several knife wounds, which were apparently inflicted after he had been shot. (Wells, supra, 199 Cal.App.3d at p. 539.)
The court in Wells held that the jury’s finding of premeditation and deliberation was supported by the record in all three Anderson categories, although it conceded that the evidence of planning was “not unambiguous.” (Wells, supra, 199 Cal.App.3d at p. 535.) Regarding motive and manner of killing, the court pointed to, respectively, the evidence of a pre-existing violent rivalry between the gangs, and the evidence that the defendant fired a warning shot to clear the dance floor before methodically firing at the victim. (Id. at pp. 540-541.) Regarding motive, it viewed the defendant’s possession of a gun as “consistent with the intent to kill a rival gang member,” but not as “solid evidence of prior planning to kill this particular victim.” (Ibid.) Although there was no evidence the defendant had planned to target his victim before arriving at the dance, the court nonetheless reasoned that “planning could have begun moments before [he] fired a shot into the ceiling without disturbing the finding of premeditation and deliberation. [Citation.]” (Id. at pp. 540-541.) It thus concluded the record “fully supported” the finding that the defendant pursued and executed a member of a rival gang. (Id. at p. 541.)
The record before us supports the jury’s finding of premeditation and deliberation. As in Wells, appellant had a motive to kill Guerrero arising out of the violent rivalry between the White Fence and Evergreen gangs. Again, as in Wells, there is evidence of planning and a calculated design to execute Guerrero. Like the defendant in Wells, appellant arrived at the gas station with a gun, but apparently unaware that he would meet Guerrero. Appellant humiliated, struck, and robbed Guerrero, whom he recognized as a member of the rival gang, and answered Guardado’s pleas by asserting that he could “smoke” Guerrero. Appellant’s response to Guardado is evidence that he was deliberating about killing Guerrero. Appellant then pursued the fleeing Guerrero and fired two shots -- the first as Guerrero entered the truck’s door, and the second as Guardado drove the truck out of the gas station. We have viewed the videotape of the incident, which shows appellant followed Guerrero and aimed at him in a measured manner. Appellant’s response to Guardado and his methodical pursuit as Guerrero attempted to flee to safety in the truck thus manifests planning and conduct designed to kill Guerrero. Accordingly, substantial evidence supports the jury’s finding of premeditation and deliberation.
B. Cruel and Unusual Punishment
Appellant contends that his 40 years to life sentence for attempted murder violates the federal and state constitutional prohibitions against cruel and unusual punishment. This sentence represents a life sentence for attempted willful, premeditated, and deliberate murder (§§ 187, subd. (a), 664), a minimum term of 15 years for the gang finding (§ 186.22, subd. (b)(5)), and an enhancement of 25 years to life for the discharge of a handgun resulting in great bodily injury (§ 12022.53, subd. (d). Appellant argues that his sentence is disproportionate to his criminal history, to the risk he poses to society, and to his culpability.
Disproportionality claims under the Eighth Amendment of the United States Constitution are rarely successful in non-capital cases. (Harmelin v. Michigan (1991) 501 U.S. 957, 965-1001 [affirming a sentence of life without possibility of parole for the possession of 672 grams of cocaine by a first offender]; Ewing v. California (2003) 538 U.S. 11, 18-20, 30-31 [affirming a sentence of 25 years to life under the Three Strikes law for a recidivist who had shoplifted golf clubs worth $1,200, and whose prior convictions were for theft, grand theft of an automobile, burglary, robbery, and battery]; Lockyer v. Andrade (2003) 538 U.S. 63, 66-69, 76 [affirming sentence of two consecutive terms of 25 years to life for a recidivist who had stolen $150 worth of video tapes, and whose prior convictions were for shoplifting, burglary, and transportation of marijuana]; but cf. Solem v. Helm (1983) 463 U.S. 277, 281 [life without possibility of parole for writing one bad check for $100 prohibited by the Eighth Amendment].) In Rummel v. Estelle (1980) 445 U.S. 263, the United States Supreme Court rejected a proportionality challenge to a life sentence imposed pursuant to a recidivist statute when the defendant’s successive crimes consisted of $80 worth of fraudulent use of a credit card, passing a $28.36 forged check, and obtaining $120.75 by false pretenses, explaining in a footnote: “This not to say that a proportionality principle would not come into play in the extreme example mentioned by the dissent . . . if a legislature made overtime parking a felony punishable by life imprisonment.” (Id. at p. 274, fn. 11.) This is not such a case.
Under the California Constitution, the test is whether the punishment is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) Appellant thus bears a heavy burden to demonstrate that his crime has been punished in an unconstitutional manner. In determining whether he has carried this burden, we consider (i) the degree of danger the offender or the offense pose to society; (ii) how the punishment compares with punishments for more serious crimes in the same jurisdiction; and (iii) how the punishment compares with punishment for the same offense in other jurisdictions. (Id. at pp. 425-427.)
With respect to factor (i), appellant concedes that attempted murder is a serious offense, but argues that the evidence does not establish that he actually endangered Guerrero; in addition, he points to his criminal record, which reflects only two minor prior offenses. We are not persuaded. “Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.” (People v. Martinez (1999) 76 Cal.App.4th 489, 496.) The evidence establishes that appellant tried to execute Guerrero in a cold-blooded and premeditated fashion, and in so doing, fired shots into a truck containing several people. In view of these facts, as well as appellant’s membership in a criminal street gang, his lack of a significant criminal record is not determinative. (People v. Villegas, supra, 92 Cal.App.4th at p. 1230.)
With respect to factors (ii) and (iii), appellant argues that his sentence is disproportionate to the sentence he would have received under California law had he inflicted the injuries with a knife rather than a gun, and disproportionate to the sentence he would have received for the same crime in other jurisdictions. This court has rejected similar contentions on facts comparable to those before us. (People v. Martinez, supra, 76 Cal.App.4th at pp. 497-498 [affirming a sentence of 25 year to life for attempted murder pursuant to section 12022.53, subdivision (d)]; People v. Gonzales (2001) 87 Cal.App.4th 1, 18-19 [affirming a sentence of 50 years to life for murder pursuant to section 186.22, subdivision (b)(1) and section 12022.53, subdivision (d)].) We decline to depart from our prior conclusions.
We may not lightly encroach upon the Legislature’s power to define crime and determine punishment. (People v. Wingo (1975) 14 Cal.3d 169, 174.) Our role is simply to determine whether appellant’s sentence crosses the boundary of conscience and fundamental notions of human dignity. (Id. at p. 175, fn. 5.) We conclude that boundary has not been breached in this case. Appellant’s sentence is not out of proportion to his offense and does not constitute cruel and unusual punishment.
D. Gun Use Enhancement
Appellant contends the trial court improperly imposed a 10-year gun use enhancement (§ 12022.53, subd. (b)) on his sentence for robbery. We agree. The record discloses that the trial court dismissed the allegation underlying this enhancement at the prosecutor’s request shortly before the jury began its deliberations. Respondent concedes the enhancement was imposed in error.
E. Custody Credits
Appellant contends the trial court erroneously failed to award 75 days in good time/worktime custody credits under section 2933.1. Respondent agrees. The judgment must therefore be modified to reflect these custody credits.
Respondent nonetheless argues that the matter should be remanded to the trial court for a determination of appellant’s custody credits. As we explained in People v. Duran (1998) 67 Cal.App.4th 267, 270, “this court is empowered to correct these errors whenever either side requests such relief, so long as it is not the only issue on appeal.” That is the case here.
DISPOSITION
The judgment is modified to strike the enhancement (§ 12022.53, subd. (b)) under count 2, and to reflect good time/worktime custody credits of 75 days. In all other respects, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment to reflect these modifications, and to forward it to the Department of Corrections.
The sentence under count 2 remains stayed (§ 654).
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.