Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA073609, Steven K. Lubell, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.)
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury convicted defendant and appellant Donald Bernard Williams of assault with a deadly weapon and of possession of firearms and ammunition while being a felon. On appeal, defendant contends that the judgment should be reversed because, first, his trial counsel was ineffective because she failed timely to object to a statement obtained in violation of Miranda; second, the trial court failed to instruct the jury that mere access is insufficient to prove possession of a firearm; third, there was insufficient evidence to show he assaulted the victim; fourth, Penal Code section 245, subdivision (a), is unconstitutionally vague; fifth, his trial counsel was ineffective because she failed to object to imposition of the upper term; and, finally, he is entitled to additional custody credits. We agree that defendant is entitled to additional presentence custody credits, but we otherwise affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. Prosecution case.
David Hoffman, an attorney, represented defendant in a dispute between defendant and a bank about the amount owed on his mortgage. Hoffman also represented defendant’s children concerning blocked accounts at the same bank. Hoffman, however, never represented defendant or his children in connection with the transfer of firearms from defendant to his minor sons.
Based on Hoffman’s handling of the mortgage dispute, defendant sued Hoffman for legal malpractice, claiming damages exceeding $60 million. In the course of that malpractice action, defendant was ordered to produce documents at 2831 North Fair Oaks Avenue, a house in Altadena. In April 2008, Hoffman went to that address to copy the documents, but he left because they weren’t in order. Defendant filmed Hoffman’s visit. About a week later, on May 27, 2008, Hoffman, having obtained a further court order, returned to the residence. Defendant had again set up a video recorder. Seeing that the documents were not put together properly, Hoffman called the court clerk. Hoffman and defendant exchanged heated words, and defendant ordered Hoffman to leave. Hoffman was leaving when defendant’s facial expression “changed, ” and defendant pulled from his pocket area a small, black handgun and pointed it at Hoffman’s chest. Defendant called Hoffman a “nigger” and told him to get his “black ass” out of his house.
Hoffman ran out, bursting through the security door in the process, and called the police. Defendant told the responding officers there was a gun on a nightstand in a bedroom, adding that he had “ ‘a lot of guns’ ” in the house. The officers found the gun in a drawer in a nightstand in a bedroom and showed it to Hoffman, who said it was the gun defendant had pointed at him. Several other firearms were in the same bedroom. Defendant, who denied pointing a gun at Hoffman, told the officers to watch the videos. Based on the videos and Hoffman’s and defendant’s statements, defendant was not arrested that day.
The video of the incident does not show defendant pointing a gun at Hoffman, because, Hoffman explained, the recorder had been turned off before Williams pulled out the gun.
The detective assigned to investigate the matter discovered that defendant was a felon, and therefore, on June 10, 2008, officers returned to the residence with a search warrant. Defendant was at the residence and taken into custody. Officers found 68 firearms, 1, 000 rounds of ammunition, and a receipt to a firearm. In the garage, there was a gun safe containing, among other things, guns and ammunition. An envelope addressed to defendant and men’s clothes were in the master bedroom, where a loaded revolver, a TEC-9 (a banned assault weapon), and a loaded 30-round magazine matching the TEC-9 were in a dresser.
B. Defense case.
Deputy Anthony Wolshon, who responded to Hoffman’s 911 call on May 27, 2008, described Hoffman as “a bit excitable.” Hoffman didn’t have documentation to support his reason for being at the residence. After reviewing the available information, including the videotapes, a decision was made not to arrest defendant.
Christopher Williams is defendant’s son. The last time his father lived at 2831 Fair Oaks Avenue was in 2004, when defendant and his wife separated. At the time of the underlying incident, only his mother, brother, and sister were living at the house. Since defendant moved out, Christopher had not seen him in the house. When defendant comes to town, he stays at a family member’s house. Christopher lived at the house until 2009, when he moved to Texas for school. He used firearms in the past. He owns guns, but, asserting his Fifth Amendment right against self-incrimination, he would not answer where they were or whether he had any property at the residence. In 2003, he conferred with Hoffman regarding title to or ownership of firearms. Christopher invoked the Fifth Amendment to questions about what he did with the firearms in May 2008 and related to possession or ownership of firearms.
Because one of the weapons found in the residence was an illegal assault weapon, counsel was appointed for Christopher.
Defendant testified. From 1978 to 1994, he owned a gun dealership, Don’s Guns. After he was found guilty of a felony in 1994, he sold Don’s Guns to Christopher, who was then a juvenile (about 10 years old). Defendant sold all of the guns from the store, but he transferred some antique guns to his children in 1994 or 1995.
Defendant last lived at 2831 Fair Oaks home in 2004, but he still owns it and receives mail there. In 2008, he lived in Alabama, although he frequently comes to California. When he comes to California, he stays at his sister’s home. To gain access to the Fair Oaks home, he must ask his wife. On June 2, 2008, however, he sent a letter to Detective Pippin listing 2831 North Fair Oaks as his address. His current California identification card lists 2831 North Fair Oaks Avenue, Altadena, California, as his address. One of his cell phone numbers had a 626 prefix and the bill for it went to the Fair Oaks address. While the criminal trial was pending, defendant stayed at the Fair Oaks home.
Hoffman was his attorney for six years, representing him on matters concerning a home foreclosure, personal injuries, and retrieving money confiscated by Washington Mutual. In 2003, Hoffman represented defendant in connection with transfer of firearms. Defendant also hired Hoffman to act as custodian of the firearms until defendant’s son came of age, in August 2013.
Defendant later sued Hoffman for legal malpractice. In connection with that lawsuit, Hoffman came to the residence on April 22, 2008 to review documents. Defendant videotaped that incident. After a further court order, Hoffman returned to the residence on May 27. On that day, defendant arrived at the residence at about 5:40 a.m., having made arrangements with his wife, but he had to wait outside until Hoffman came. Defendant set up a video camera to protect himself from false accusations Hoffman might make, because Hoffman had falsely told the judge previously that defendant placed a shotgun shell in a box. When Hoffman arrived, he was wearing the same clothes he had worn on April 22, but defendant was wearing different clothes. Hoffman complained about the condition of the boxes and made phone calls. Hoffman called defendant a liar, and defendant told him to go outside. Hoffman picked up his briefcase and told defendant to “ ‘shut the fuck up.’ ” He made a threatening gesture and came toward defendant, but he tripped over an extension cord and knocked the camera over. Hoffman swung his briefcase at defendant, but missed and left. As he left, he kicked the steel door. Defendant swore at Hoffman, but he didn’t use racial epithets.
Defendant never pulled a gun out and never threatened Hoffman. He did tell officers where they could find the revolver, which had always been kept in the same place for safety reasons. The gun safe was not his and he did not keep any property in it, although defendant also said he once had the combination to it. He did not know the combination to the safe, and he did not give it to Detective Anderson. Christopher and Hoffman knew the combination.
Because of the dispute on May 27, 2008, defendant was ordered to appear in civil court on June 11, 2008. Defendant did not appear, however, because he was arrested on June 10. The civil judge therefore dismissed defendant’s lawsuit against Hoffman.
II. Procedural background.
Trial was by jury. On June 23, 2009, the jury found defendant guilty of count 1, assault with a firearm (Pen. Code, § 245, subd. (a)(2)); count 2, possession of a firearm by a felon (§ 12021, subd. (a)(1)); count 3, possession of ammunition (§ 12316, subd. (b)(1)); count 4, possession of an assault weapon (§ 12280, subd. (b)); and count 5, unlawful firearm activity (§ 12021, subd. (c)(1)). Defendant admitted suffering two prior convictions, and the trial court, on December 22, 2009, exercised its discretion to strike one of them. The trial court then sentenced defendant to the high term of four years, doubled to eight years, on count 1 and to eight months, doubled to 16 months, on count 2. The total term was therefore 9 years 4 months. The trial court imposed and stayed under section 654 midterm sentences on counts 3, 4, and 5.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
III. It is not reasonably probable the outcome would have been different in the absence of any error by trial counsel.
Without objection, a detective was allowed to testify about a statement defendant, who had not waived his Miranda rights, made while in custody. Defendant now contends that his trial counsel was ineffective for failing timely to object to the testimony. We hold that defendant was not prejudiced by any failure of his counsel to object to the evidence.
A. Additional facts.
While searching the residence on July 10, 2008, officers found a gun safe in the garage. The safe had a combination lock, but the family members who were present said they didn’t know the combination. Detective Robert Anderson at the Altadena Sheriff’s Station testified, without objection, that he called the jail where defendant had been taken and asked him for the combination. Defendant gave it to him. The detective opened the safe; inside were guns, cash, collectors’ coins, paperwork, artwork, and an envelope addressed to Christopher. Also inside was a bill of sale with defendant’s name on it.
After the parties rested, defense counsel asked the trial court to exclude the detective’s testimony and to instruct the jury that the statement about the combination was obtained in violation of Miranda. The court found that although defendant was in custody at the time the detective asked him what was the combination to the safe, the statement was admissible. The court said that “if the jurors conclude that the defendant made the statement, they may consider it only to help them decide whether to believe the defendant’s testimony, credibility. But they may not use it as––and consider as proof that the statement is true for any other purpose.” The court instructed the jury: “You have heard evidence that the defendant made a statement to a peace officer. I am referring to the statement about which Deputy Anderson testified that the defendant provided the combination to the safe. [¶] If you conclude that the defendant made the statement, you may consider it only to help you decide whether to believe the defendant’s testimony. You may not consider it as proof that the statement is true or for any other purpose.”
B. Defendant was not prejudiced by his trial counsel’s failure to object to evidence defendant knew the combination to the gun safe.
“A meritorious claim of constitutionally ineffective assistance must establish both: ‘(1) that counsel’s representation fell below an objective standard of reasonableness; and (2)... there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.’ ” (People v. Holt (1997) 15 Cal.4th 619, 703, italics omitted; see also Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Lopez (2008) 42 Cal.4th 960, 966.) “There are two components to an ineffective assistance of counsel claim: deficient performance of counsel and prejudice to the petitioner. Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052, 2069, 80 L.Ed.2d 674], informs us that ‘there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’ ” (In re Cox (2003) 30 Cal.4th 974, 1019-1020.) To show ineffective assistance of counsel, appellant must show that he “ ‘suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]’ ” (People v. Gray (2005) 37 Cal.4th 168, 207; see also People v. Bolin (1998) 18 Cal.4th 297, 333.)
We will assume here that defendant’s statement was excludable under Miranda and go straight to the issue of prejudice. Defendant argues he was prejudiced because admitting evidence he knew the combination to the safe forced him to testify; in other words, once Detective Anderson said that defendant told him the combination, defendant had to take the stand and deny it. Even if we ignore defendant’s testimony, he still has not demonstrated a reasonable probability that the outcome would have been different. The prosecution introduced strong evidence that defendant had possession and control over the firearms, notwithstanding Christopher’s testimony his father had not lived at the house since 2004, and Christopher had not seen him there since 2004. There was no dispute defendant was at the Fair Oaks home on April 22, May 27, and on July 10, 2008. When officers responded to the Hoffman’s 911 call on May 27, defendant told officers that there was a gun in a nightstand in the master bedroom. Officers found the gun where defendant said it would be. When officers returned on June 10, 2008 with a search warrant they found an envelope addressed to defendant and men’s clothes in that same bedroom where the gun, as well as the TEC-9, were found. Also, inside the gun safe was a bill of sale with defendant’s name on it.
Moreover, defendant’s assault conviction doesn’t hinge on his knowing the combination to the safe. That fact is only tangentially, if at all, relevant to the assault. The assault charge depended on what the jury thought of the videotapes and of Hoffman’s and defendant’s credibility. Whether or not defendant had possession or control of the guns sufficient to sustain a conviction on the possession charges, defendant undeniably had access to them on May 27, 2008 for the purposes of the assault charges. When officers came to the house in response to Hoffman’s 911 call, defendant told them there was a gun in the nightstand in the master bedroom. Defendant therefore knew there was a gun in the house, knew its location, and had access to it.
IV. The trial court did not err by failing to modify the jury instruction on possession.
Defendant next contends that the trial court’s failure to modify the standard instruction on possession of a firearm/ammunition was reversible error. We disagree.
A trial court must instruct the jury, sua sponte, on the general principles of law that are closely and openly connected to the facts and that are necessary for the jury’s understanding of the case. (People v. Moye (2009) 47 Cal.4th 537, 548, 98; People v. Abilez (2007) 41 Cal.4th 472, 517; People v. Breverman (1998) 19 Cal.4th 142, 154.) A party may also request a pinpoint instruction, which “ ‘relate[s] particular facts to a legal issue in the case or “pinpoint[s]” the crux of a defendant’s case, such as mistaken identification or alibi.’ [Citation.]” (People v. Ward (2005) 36 Cal.4th 186, 214.) Pinpoint instructions must be given on request only when there is substantial evidence to support them and are not argumentative or duplicative. (People v. Stanley (2006) 39 Cal.4th 913, 946; People v. Marshall (1997) 15 Cal.4th 1, 39; Ward, at p. 214.) Thus, if an instruction as given is adequate, then the trial court is under no obligation to amplify or explain it in the absence of a request it do so. (People v. Mayfield (1997) 14 Cal.4th 668, 778.)
It is unclear what standard of review applies to a trial court’s failure to give a pinpoint instruction, but issues concerning jury instructions are generally reviewed de novo. (Cf. People v. Waidla (2000) 22 Cal.4th 690, 733 [addressing issue of instructions on a lesser offense]; People v. Berryman (1993) 6 Cal.4th 1048, 1089, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Posey (2004) 32 Cal.4th 193, 218.)
Here, at defense counsel’s request, the trial court said it would modify CALCRIM No. 2511 to add language that access, without more, is insufficient to support a finding of possession. The court, however, apparently failed to modify the instruction, because it simply instructed the jury: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] [(1)] the defendant possessed a firearm[;] [¶] [(2)] the defendant knew that he possessed the firearm[;] [¶] and [(3)] the defendant had previously been convicted of a felony. [¶] A firearm is any device designed to be used as a weapon, from which a projectile is expelled or discharged through a barrel by the force of explosion or other form of combustion. [¶] A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting. [¶] Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if a person has control over it or the did your to control it [sic], either personally or through another person.” (Italics added.) The jury was similarly instructed on counts 3 (unlawful possession of ammunition), 4 (unlawful possession of an assault weapon); and 5 (unlawful possession of a firearm).
The parties stipulated that Williams had been previously convicted of a felony and of a misdemeanor.
This instruction adequately informed the jury that mere access to firearms is insufficient to establish possession. It repeatedly used the word “possess.” The instruction explained that actually holding or touching the firearm is not dispositive of whether someone possessed it, but that the person had to have control over it, either personally or through another person. The instruction therefore clearly defined possession as control over the firearm, and control clearly connoted something more than mere access. Moreover, at no time did the prosecutor state that mere “access” equaled “control” or “possession.” The prosecutor said during closing argument, “Basically the issue is: Does he have access? Does he have control or possession of these guns? He does. He controls these guns. Specifically, this Tec-9, which was in the bedroom dresser drawer, and revolver, and the multitude of... ammunition.’ ” The prosecutor thus equated access with possession, and never argued that mere access to the guns was enough to establish the possession counts. Defendant’s proposed modification to CALCRIM No. 2511 was merely duplicative of the standard instruction; and therefore the trial court had no duty to give the modified instruction.
Defendant does not argue that the instruction is an inaccurate statement of the law.
V. There was sufficient evidence to support defendant’s assault conviction.
Defendant next contends that there was insufficient evidence to show he assaulted Hoffman as opposed to merely brandishing a weapon. We disagree.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[, ] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, ... that... does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11 (Rodriguez).)
An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on a person. (§ 240; see also § 245, subd. (a)(1) [any person who commits an assault with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison].) In finding that a gun was loaded (thereby giving the defendant the “present ability” to commit a violent injury), a jury may rely on circumstantial evidence, such as the defendant’s statements and behavior. (Rodriguez, supra, 20 Cal.4th at pp. 11-13; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 542 [“Lochtefeld’s acts in threatening persons on the street and in pointing the gun at officers demonstrated his implied assertion the gun was sufficiently charged to inflict injury”].)
Here too there was evidence from which the jury could reasonably infer that defendant had the “present ability” to inflict violent injury on Hoffman. Hoffman and defendant had an acrimonious relationship: Hoffman had once represented defendant, but the relationship soured and defendant sued Hoffman for legal malpractice. Discovery disputes erupted and defendant was ordered to produce documents in April 2008. Defendant produced the documents, but Hoffman went to court for a further order because he claimed that the documents were not in order. When Hoffman returned to the residence on May 27, he and defendant exchanged heated words, and defendant called Hoffman a “nigger” and told him to get out of the house. Such statements and behavior while making a threat warrant a jury’s finding the weapon was loaded. (Rodriguez, supra, 20 Cal.4th at p. 13.)
The circumstances surrounding the incident also support a conclusion that defendant’s gun was loaded. Defendant once owned a gun dealership, and although he sold it, he maintained a residence in which almost 70 firearms and 1, 000 rounds of ammunition were kept. When officers arrived at the scene on May 27, 2008, defendant told them there was a gun in the nightstand. The officers found a gun exactly where defendant said it would be, although the officers could not recall whether it was loaded. Hoffman identified that gun as the one defendant pointed at him. Two weeks later, when officers went back to the residence, they found the gun in the same location, and it was loaded.
This evidence was more than sufficient to support the defendant’s conviction for assault under section 245, subdivision (a).
VI. Constitutionality of subdivision (a) of section 245.
Defendant next contends that the assault statute (§ 245, subd. (a)), is unconstitutionally vague because it is indistinguishable from brandishing a weapon (§ 417). We disagree.
“The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of ‘life, liberty, or property without due process of law, ’ as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7). Under both Constitutions, due process of law in this context requires two elements: a criminal statute must ‘ “be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.” ’ [Citations.]” (Williams v. Garcetti (1993) 5 Cal.4th 561, 567.) In determining whether a statute is unconstitutionally vague, only a reasonable certainty is required and a statute will be upheld if any reasonable and practical construction can be given to its language. (In re Alexander K. (1993) 14 Cal.App.4th 549, 558.) A statute will be deemed sufficiently precise if its meaning can be fairly ascertained by references to similar statutes or other judicial determinations, or to the common law or the dictionary, or if the words have a common and generally accepted meaning. (People v. Roberts (1981) 114 Cal.App.3d 960, 962-963 [finding that the term “ ‘great bodily injury’ ” in section 245, subdivision (a) is sufficiently certain].) There is a strong presumption in favor of upholding a statute unless its unconstitutionality “clearly, positively, and unmistakably appears.” ’ ” (Williams, at p. 568.)
Defendant’s argument that section 245, subdivision (a), is vague is not premised on an inability to tell what it prohibits. Defendant does not argue that the statute’s language is imprecise or that its meaning somehow remains vague despite the countless cases and authorities that explain it. Rather, defendant’s vagueness argument is premised on his inability to distinguish between what conduct section 245, subdivision (a), prohibits as opposed to section 417. Section 417 prohibits brandishing a weapon, in the presence of any other person, in a rude, angry, or threatening manner. Brandishing a weapon is a lesser related offense of assault, because “it is theoretically possible to assault someone with a firearm without exhibiting the firearm in a rude, angry or threatening manner, e.g., firing or pointing it from concealment, or behind the victim’s back.” (People v. Steele (2000) 83 Cal.App.4th 212, 218; see also People v. Escarcega (1974) 43 Cal.App.3d 391, 398.)
Whether section 417 is a lesser related offense or even a lesser included offense of assault is irrelevant to whether section 245, subdivision (a), is unconstitutionally vague. Similarly, the case defendant cites to support his argument is not on point. In People v. Heitzman (1994) 9 Cal.4th 189, the court found that former section 368, subdivision (a), concerning felony elder abuse, failed to provide definite guidelines for police to prevent arbitrary and discriminatory enforcement. The section instead could lead to police arresting people based on their personal notions of who owed a legal duty to an elder. (Id. at p. 207.) That a person could be arrested for conduct that violates more than one penal statute, however, is not what Heitzman was concerned about. The elder abuse statute in Heitzman was problematic because it didn’t give police sufficient guidelines as to what conduct it prohibited and who could be arrested for engaging in prohibited conduct. Heitzman did not address whether conduct prohibited under more than one penal statute somehow rendered the statute vague.
We therefore conclude that section 245, subdivision (a), is not vague simply because it prohibits conduct that might also be prohibited under section 417.
VII. Trial counsel was not ineffective for failing to object to the upper term.
Defendant was sentenced to the upper term of four years, doubled to eight years, on count 1 for assault. He contends that his trial counsel was ineffective because he failed to object to the upper term on the ground that no aggravating factors supported the upper term.
As we detailed above, an ineffective assistance of counsel claim has two components: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. (People v. Holt, supra, 15 Cal.4th at p. 703; Strickland v. Washington, supra, 466 U.S. at p. 687.) As to the first component, a possible tactical reason for trial counsel’s failure to object to the upper term appears from the record. Defendant had two prior strikes, thereby exposing him to sentencing under the Three Strikes law. Trial counsel, however, asked the trial court to strike one of defendant’s prior strikes, and the court granted that request. Counsel, in a sentencing memorandum, noted that if the court treated defendant as a second striker (rather than as a third striker), then defendant could still receive a long sentence if the high term was imposed on count 1. Trial counsel therefore could have traded a third strike sentence for an upper term sentence on count 1.
In any event, defendant was not prejudiced by any error his trial counsel made. A single aggravating factor will support an upper-term sentence. (People v. Osband (1996) 13 Cal.4th 622, 728.) Defendant had numerous convictions; for example, in 1994, he was convicted of felony false imprisonment, felony negligent discharge of a firearm, and assault with a firearm, and in 1999 he was convicted of battery on a peace officer. If a defendant’s prior convictions are numerous or of increasing seriousness, this factor will support imposition of the upper term. (Cal. Rules of Court, rule 4.421(b)(2).)
VIII. Defendant is entitled to additional custody credits.
The trial court awarded defendant 297 days of custody credits, after finding that defendant was subject to the 15 percent credit limitation in section 2933.1 for violent felonies. Defendant argues and the People concede that defendant was not subject to that limitation because he was not convicted of a violent felony. (See generally, §§ 667.5, 2933.1.) We agree. Defendant is entitled to a total of 386 days of presentence credits.
DISPOSITION
The clerk of the superior court is directed to amend the abstract of judgment to reflect the total days of presentence custody credits and to forward the amended abstract to the Department of Corrections. The judgment is otherwise affirmed as modified.
We concur: CROSKEY, Acting P. J., KITCHING, J.