Filed 10/2/14 P. v. Lane CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B248475

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA278405)
         v.

LAMMAR LANE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Craig J.
Mitchell, Judge. Modified and remanded; as so modified, affirmed.


         James M. Crawford, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found defendant and appellant Lammar Lane guilty of attempted murder
and assault with a deadly weapon. The trial court sentenced him to a term of life in
prison, plus 29 years. Lane contends: (1) the admission of an unidentified witness’s
statements violated his confrontation rights; (2) there was insufficient evidence to prove
the assault convictions; (3) the trial court erred by failing to instruct on the lesser
included offense of simple assault; (4) three Penal Code section 667, subdivision (a)1
enhancements were improperly imposed; and (5) the trial court miscalculated his custody
credits. As the People concede, Lane’s fourth and fifth contentions have merit. We order
the judgment modified accordingly, and remand for recalculation of Lane’s credits. In all
other respects, we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       1. Facts.
       a. The stabbing and assaults.
       Michael Franco was a security guard for the Midnight Mission construction site in
downtown Los Angeles. On February 5, 2005, at approximately 5:50 p.m., Franco was
patrolling the site when he saw Lane pull a street sign out of the ground and throw it in
the street. Lane appeared to be angry. Franco had seen Lane in the area “quite often.”
Lane, who was wearing a silver or gray suit, walked away, mumbling.
       Shortly thereafter Franco saw Lane at the corner of San Julian and 6th streets.
Lane opened his jacket and produced three kitchen knives with plastic handles. He
placed the knives on the sidewalk as if organizing them, returned them to the inside of his
jacket, and walked around the area.
       When a pedestrian walked by Lane, Lane pulled out one of the knives and lunged,
as if trying to stab the pedestrian. The pedestrian “jerked out of the way” and “took off in




1      All further undesignated statutory references are to the Penal Code.




                                               2
the opposite direction.” Lane was so close to the pedestrian that Franco thought he had
stabbed him.
       Lane left the area. He returned 10 to 15 minutes later, wearing a different suit. As
a person pushing a shopping cart came near him, Lane jumped and lunged with a knife
towards the person’s stomach and chest area. The victim, who was three to four feet
away from Lane, managed to place the shopping cart between himself and Lane. The
victim ran off with the shopping cart. Lane walked down San Julian Street.
       Ten to fifteen minutes later, Lane returned to San Julian between 5th and 6th
streets, this time wearing a bright red suit. Tony Chavez, who had formerly resided in the
area and volunteered at a homeless shelter, had seen Lane in the vicinity before and
recognized him due to his colorful attire. It appeared to Chavez that Lane was “irate.”
As Chavez walked past, Lane lunged at him with a knife, hitting him in the chest. At first
Chavez believed Lane had simply punched him. However, when he saw “a lot of blood”
“gushing out” of his chest he realized Lane had stabbed him. Chavez headed toward the
police station seeking assistance, but collapsed in a crosswalk. Lane walked away,
towards a bus.
       b. The investigation.
       At approximately 5:50 p.m., Los Angeles Police Department (L.A.P.D.) Officers
Anthony Bonner and Jesus Castillo were driving near the police station at Wall and 6th
streets when a “nervous, agitated” man flagged them down. The man stated that a tall
Black man, wearing an orange jumpsuit, had just attempted to stab him with a knife. The
man directed the officers to an area near 6th and San Julian streets. The officers told the
man to wait there until they returned.
       The officers searched for the assailant for five to ten minutes, without success.
When they returned to the location where the man had flagged them down, he had left.
However, they discovered Chavez lying in the crosswalk just south of 6th Street,
bleeding from the upper torso. Officer Bonner summoned fire department paramedics,
who transported Chavez to the hospital. Chavez had a collapsed lung, two stab wounds



                                             3
to his chest, and a laceration to his face. He was rushed to surgery and remained in the
hospital for two weeks.
       Meanwhile, L.A.P.D. Detective Richard Compton and his partner Joel Ruiz were
informed via a police broadcast that Lane was on a shelter bus heading to the New Image
Shelter. When the officers arrived, the bus passengers were lined up waiting to enter the
shelter. Lane was in the line holding a white sheet covered in blood, with bloody
clothing inside. A search of the bus revealed three knives. The officers arrested Lane.
       In a field showup, Franco identified Lane as the assailant. Several days after the
stabbing, Chavez identified Lane as the culprit in a photographic lineup. Both Franco
and Chavez identified Lane at trial.
       2. Procedure.
       Trial was by jury. Lane was convicted of the attempted murder of Chavez
(§§ 664, 187, subd. (a)), and two counts of assault with a deadly weapon (§ 245,
subd. (a)(1)). The jury found Lane personally used a deadly and dangerous weapon, a
knife, in commission of the attempted murder (§ 12022, subd. (b)(1)) and inflicted great
bodily injury on Chavez (§ 12022.7, subd. (a)). In a bifurcated proceeding, the trial court
found Lane had suffered five prior convictions for serious or violent felonies (§§ 667,
subds. (a), (b)-(i), 1170.12, subds. (a)-(d)). It denied Lane’s Romero motion2 to strike
prior conviction allegations, and sentenced him to life in prison, plus 29 years. It
imposed a restitution fine, a suspended parole revocation fine, a court security fee, and a
criminal conviction assessment. Lane appeals.




2      People v. Superior Court (Romero) (1996) 13 Cal.4th 497.


                                             4
                                       DISCUSSION
       1. Officer Bonner’s testimony regarding the anonymous declarant’s statements
was properly admitted under Evidence Code section 1240 and did not violate Lane’s
confrontation clause rights.
       a. Additional facts.
       Prior to trial, the prosecutor sought a ruling on the admissibility of Officer
Bonner’s testimony describing the statements of the unidentified victim who flagged him
and Officer Castillo down. The trial court conducted an Evidence Code section 402
hearing at which Officer Bonner testified as follows. The man told the officers “someone
just tried to stab him.” He appeared to be “possibly agitated, excited, scared.” The
conversation lasted approximately 30 seconds. The officers did not obtain the declarant’s
identifying information, but told him to wait while they searched for the assailant. After
speaking with the declarant, they immediately began their search. Officer Bonner
explained they “were trying to find a person that was actively doing a crime” and were
“trying to stop further––stop the actions of a crime in place.” When they were
unsuccessful, they returned to the location where the witness had flagged them down. He
had left, but Chavez was lying in the crosswalk, bleeding.
       The trial court ruled the declarant’s statements fell within the hearsay exception
for spontaneous statements, Evidence Code section 1240. Defense counsel did not object
to the court’s ruling or interpose a confrontation clause objection.
       b. Discussion.
       (i) The anonymous victim’s statements qualified as spontaneous declarations and
thus were properly admitted under California law.
       We turn first to the question of whether the statements were properly admitted
under California law. (See People v. Blacksher (2011) 52 Cal.4th 769, 810, fn. 26.) An
out-of-court statement made by a nontestifying witness, offered for the truth of the matter
asserted, is hearsay. (Evid. Code, § 1200; People v. Chism (2014) 58 Cal.4th 1266,
1288.) Evidence Code section 1240 provides an exception to the hearsay rule for
spontaneous declarations, that is, statements that purport to describe or explain an act,

                                              5
condition, or event perceived by the declarant, made spontaneously while he or she was
under the stress of excitement caused by such perception. (People v. Lynch (2010) 50
Cal.4th 693, 751, disapproved on another ground in People v. McKinnon (2011) 52
Cal.4th 610, 637-643; People v. Gutierrez (2009) 45 Cal.4th 789, 809-810; People v.
Saracoglu (2007) 152 Cal.App.4th 1584, 1588.) For a statement to qualify as a
spontaneous declaration, “ ‘(1) there must be some occurrence startling enough to
produce this nervous excitement and render the utterance spontaneous and unreflecting;
(2) the utterance must have been [made] before there has been time to contrive and
misrepresent, i.e., while the nervous excitement may be supposed still to dominate and
the reflective powers to be yet in abeyance; and (3) the utterance must relate to the
circumstance of the occurrence preceding it.’ [Citations.]” (People v. Poggi (1988)
45 Cal.3d 306, 318; People v. Lynch, supra, at pp. 751-752.) The fact a declarant’s
identity is unknown does not preclude admission of a spontaneous statement. (People v.
Anthony O. (1992) 5 Cal.App.4th 428, 436; People v. Gutierrez (2000) 78 Cal.App.4th
170, 177-178.) Whether the requirements of Evidence Code section 1240 are met is a
question of fact largely within the discretion of the trial court, and we review its ruling
for abuse. (People v. Brown (2003) 31 Cal.4th 518, 540-541; People v. Riva (2003) 112
Cal.App.4th 981, 995; People v. Lynch, supra, at p. 752.) If substantial evidence
supports the court’s exercise of discretion we uphold its ruling. (People v. Brown, supra,
at pp. 540-541; People v. Gutierrez, supra, 78 Cal.App.4th at p. 178.)
       Here, there was substantial evidence supporting the trial court’s admission of the
statements under Evidence Code section 1240, a conclusion Lane does not appear to
contest. The declarant hailed the officers within minutes after the attempted stabbing,
which he said had “just” happened. Certainly, being nearly stabbed, without provocation,
while walking down the street would be a startling and traumatic event likely to produce
nervous excitement. His statements were not the product of questioning. Officer Bonner
testified that the declarant was agitated, excited, and scared. There was thus substantial
evidence that the requirements of Evidence Code section 1240 were met, and the trial
court did not abuse its discretion in admitting the evidence under that section. (See, e.g.,

                                              6
People v. Brown, supra, 31 Cal.4th at p. 541; People v. Gutierrez, supra, 78 Cal.App.4th
at p. 180; People v. Provencio (1989) 210 Cal.App.3d 290, 301-302; People v. Riva,
supra, 112 Cal.App.4th at p. 995.)
       (ii) Confrontation clause claim.
       Lane contends that, even if admissible under Evidence Code section 1240,
admission of the unidentified declarant’s statements violated the Sixth Amendment’s
confrontation clause. This contention lacks merit.
       A. Forfeiture.
       Preliminarily, the People contend Lane’s confrontation clause claim has been
forfeited by his failure to object on this ground below. (People v. Riccardi (2012) 54
Cal.4th 758, 801; People v. Redd (2010) 48 Cal.4th 691, 730 & fn. 19.) We agree. Lane
urges that, if the issue has been forfeited, his counsel performed ineffectively for failing
to object. (See People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1; People v. Espiritu
(2011) 199 Cal.App.4th 718, 726.) However, as we explain, because the challenged
evidence did not violate Lane’s confrontation rights, counsel did not render ineffective
assistance by failing to object. (People v. Linton (2013) 56 Cal.4th 1146, 1168 [where
there was no sound basis for counsel to have objected to admission of evidence, counsel’s
failure to object cannot establish ineffective assistance]; People v. Bradley (2012) 208
Cal.App.4th 64, 90 [“Failure to raise a meritless objection is not ineffective assistance of
counsel”].)
       B. Because the statements were nontestimonial, their admission did not violate
Lane’s confrontation rights.
       The Sixth Amendment to the United States Constitution gives a criminal
defendant the right to confront and cross-examine adverse witnesses. (People v. Lopez
(2012) 55 Cal.4th 569, 573, 576.) In the seminal case of Crawford v. Washington (2004)
541 U.S. 36, the high court overruled its prior precedent and held that the Sixth
Amendment generally bars admission at trial of a testimonial out-of-court statement
offered for its truth against a criminal defendant, unless the maker of the statement is
unavailable to testify and the defendant had a prior opportunity for cross-examination.

                                              7
(Id. at p. 68; Davis v. Washington (2006) 547 U.S. 813, 821; People v. Livingston (2012)
53 Cal.4th 1145, 1158.) Here, the person who flagged the officers down did not testify at
trial, and Lane had no opportunity to cross-examine him. Therefore, Officer Bonner’s
testimony regarding the declarant’s statements was admissible only if the statements were
nontestimonial. We independently review the question of whether evidence was admitted
in violation of the confrontation clause. (People v. Seijas (2005) 36 Cal.4th 291, 304;
People v. Sweeney (2009) 175 Cal.App.4th 210, 221.)
       To be subject to the confrontation clause, the statements at issue must be
“testimonial.” (People v. Cage (2007) 40 Cal.4th 965, 969; Davis v. Washington, supra,
547 U.S. at p. 821; People v. Valadez (2013) 220 Cal.App.4th 16, 32.) “ ‘Statements are
nontestimonial when made in the course of police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially relevant to
later criminal prosecution.’ [Citations.]” (People v. Livingston, supra, 53 Cal.4th at
pp. 1158-1159; Michigan v. Bryant (2011) ___ U.S. ___ [131 S.Ct. 1143, 1154]; Davis v.
Washington, supra, at p. 822; People v. Valadez, supra, at p. 33.) In Michigan v. Bryant,
supra, at page 1150, for example, police found the mortally wounded victim in a parking
lot. His statements identifying the shooter and describing the shooting location to police
were not testimonial, because their primary purpose was to enable police to respond to an
ongoing emergency. The statements were also not sufficiently formal: they were made
in an exposed, public area, in a disorganized fashion, before emergency medical services
arrived. (Id. at pp. 1160, 1166; see also People v. Blacksher, supra, 52 Cal.4th at
pp. 811-816.)
       Our Supreme Court has distilled six factors to consider when determining whether
statements made in the course of police questioning were for the primary purpose of
creating an out-of-court substitute for trial testimony that implicates the confrontation
clause. (People v. Chism, supra, 58 Cal.4th at p. 1289, citing People v. Blacksher, supra,

                                              8
52 Cal.4th at p. 813.) Those factors are: “(1) an objective evaluation of the
circumstances of the encounter and the statements and actions of the individuals involved
in the encounter; (2) whether the statements were made during an ongoing emergency or
under circumstances that reasonably appeared to present an emergency, or were obtained
for purposes other than for use by the prosecution at trial; (3) whether any actual or
perceived emergency presented an ongoing threat to first responders or the public; (4) the
declarant’s medical condition; (5) whether the focus of the interrogation had shifted from
addressing an ongoing emergency to obtaining evidence for trial; and (6) the informality
of the statement and the circumstances under which it was obtained.” (People v. Chism,
supra, at p. 1289.)
       Here, it is readily apparent that the anonymous declarant’s statements were
nontestimonial because they were made to enable police to address an ongoing
emergency. The declarant reported an emergency to the officers: an unknown assailant
had just attempted to stab him. Thus, the officers knew an assailant armed with a knife
was at large and potentially posed an immediate threat to the public. (See People v.
Blacksher, supra, 52 Cal.4th at p. 814.) Because the motive for the stabbing was
unknown, the officers did not know whether the threat was limited to the declarant. The
officers could reasonably be concerned that the armed assailant would attack other
persons, as he in fact did. Officer Bonner testified at the Evidence Code section 402
hearing that he “felt . . . we needed to apprehend the person that was a danger.” The
officers’ actions bore out their view that there was an ongoing emergency: after the brief
conversation with the declarant, they immediately drove around in search of the knife-
wielding assailant, and discovered another victim bleeding and in dire need of assistance.
Viewed objectively, the conversation between the officers and the declarant was entirely
concerned with addressing an ongoing emergency, not attempting to gather information
to use in a later criminal prosecution.
       Further, the statements were made in a highly informal setting. The declarant saw
the officers in their patrol car, flagged them down, and blurted out that he had just been
attacked. His statements were not made in response to focused police questioning. The

                                             9
conversation took place in an exposed, public area, and bore no indicia of formality. (See
Michigan v. Bryant, supra, 131 S.Ct. at p. 1160.) Indeed, the encounter cannot fairly be
characterized as an “interrogation” at all; it appears the declarant volunteered most, if not
all, the information provided to the officers. (See People v. Cage, supra, 40 Cal.4th at
p. 970.) The entire conversation lasted less than a minute. The information the declarant
provided––that he had just been attacked, and a rudimentary description of the assailant
and the general direction in which he had headed––was clearly of an ilk to assist officers
in apprehending the perpetrator. (See People v. Blacksher, supra, at p. 816; Michigan v.
Bryant, supra, at p. 1166.)
       Finally, that the officers’ primary purpose was not to procure evidence for use at a
later trial is demonstrated by the fact they drove away in search of the perpetrator without
even getting the declarant’s name or contact information. Nor is there any showing that
the brief conversation between the declarant and the officers evolved into a testimonial
interrogation. (See Davis v. Washington, supra, 547 U.S. at p. 828; People v. Blacksher,
supra, 52 Cal.4th at pp. 814-815.) “[T]he primary purpose for both [the declarant and the
officers] was to determine defendant’s whereabouts and evaluate the nature and extent of
the threat he posed.” (People v. Blacksher, supra, at p. 816.)
       The recent case of People v. Chism is analogous to the instant matter. There, the
declarant, Miller, was sitting near a liquor store when heard a gunshot and saw men run
from the building. Miller entered the store and found the clerk unconscious and bleeding.
When police officers arrived minutes later, Miller described the men to them. (People v.
Chism, supra, 58 Cal.4th at pp. 1281, 1287-1288.) Miller was unavailable to testify at
trial. Chism held admission of Miller’s statements to police did not violate the
confrontation clause. The court explained: “Miller appeared to be very nervous and
‘shaken up.’ The circumstances of the encounter, which took place outside a store where
a shooting had recently occurred, reveal that Miller and Officer Romero spoke to each
other in order to deal with an ongoing emergency. It was objectively reasonable for
Officer Romero to believe the suspects, one of whom presumably was still armed with a
gun, remained at large and posed an immediate threat to officers responding to the

                                             10
shooting and the public. . . . Miller’s additional statements concerning his observations
and descriptions of the suspects were made for the primary purpose of meeting an
ongoing emergency and not to produce evidence for use at a later trial.” (Id. at p. 1289;
see also People v. Romero (2008) 44 Cal.4th 386, 422; Davis v. Washington, supra, 547
U.S. at p. 828.)
       Lane attempts to distinguish the instant matter from the United States Supreme
Court’s decision in Michigan v. Bryant on the ground that here, the declarant was not
injured or dying; was “not trying to get information out to police before he lost
consciousness or his life”; “no gunman was on the loose”; police could not have
“reasonably . . . believed there [was] an ongoing emergency”; and the declarant was
“reporting a completed crime to police for the primary purpose of initiating a criminal
investigation.” These arguments are unpersuasive. Just as in Bryant and Chism, an
armed assailant was on the loose. Lane offers no persuasive reason why the situation did
not constitute an emergency. We discern no meaningful difference between the types of
weapons––a gun versus a knife—in this case and Bryant and Chism. Bryant does not
require that the victim must be dying in order for an emergency situation to exist; in
Chism, the declarant was a witness, not a victim. In sum, the declarant’s statements were
nontestimonial and their admission did not violate Lane’s confrontation rights.
       2. There was ample evidence to support the assault convictions.
       Lane was charged in counts 3 and 4 with assaults with a deadly weapon on “John
Doe,” arising from the attacks on the man who reported his attempted stabbing to police
and the man with the shopping cart. Lane contends the evidence was insufficient to
prove these two assault convictions. We disagree.
       When determining whether the evidence was sufficient to sustain a criminal
conviction, “ ‘we “examine the whole record in the light most favorable to the judgment
to determine whether it discloses substantial evidence—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.” [Citations.] We presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the evidence.

                                            11
[Citation.]’ ” (People v. Brown (2014) 59 Cal.4th 86, 105-106; People v. Carrington
(2009) 47 Cal.4th 145, 186-187.) The same standard applies to cases involving
circumstantial evidence. (People v. Brown, supra, at p. 106.) Reversal is not warranted
unless it appears that upon no hypothesis whatever is there sufficient substantial evidence
to support the conviction. (People v. Manibusan (2013) 58 Cal.4th 40, 87; People v.
Zamudio (2008) 43 Cal.4th 327, 357.)
       Section 245, subdivision (a)(1), makes it a crime to commit “an assault upon the
person of another with a deadly weapon or instrument other than a firearm.” An assault
is defined by section 240 as “an unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.” Thus, to establish a violation of
section 245, subdivision (a)(1), the People must prove: (1) the defendant committed an
act with a deadly weapon that by its nature would directly and probably result in the
application of force to a person; (2) the defendant did the act willfully; (3) the defendant
was aware of facts that would lead a reasonable person to realize that his act would
directly and probably result in the application of force to someone; and (4) when the
defendant acted, he had the present ability to apply force with a deadly weapon. (People
v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1183, 1186-1187; People v. Golde (2008)
163 Cal.App.4th 101, 108-109; CALCRIM No. 875.) Assault is a general intent crime,
and does not require a specific intent to injure the victim; however, the defendant must
actually know facts sufficient to establish that his act by its nature will probably and
directly result in physical force being applied to another. (People v. Wyatt (2012)
55 Cal.4th 694, 702; People v. Chance (2008) 44 Cal.4th 1164, 1167-1168.) The present
ability element is satisfied when a defendant “ ‘has attained the means and location to
strike immediately.’ ” (People v. Chance, supra, at p. 1168.)
       These elements were satisfied here. Franco testified that Lane was armed with
three knives. Franco also saw Lane pull out one of the knives and lunge at the first
victim. Lane was so close to the first victim that Franco believed Lane had succeeded in
stabbing him. Franco testified that when the second victim passed by, Lane lunged with
the knife at his stomach or chest area from a distance of three to four feet. One of the

                                             12
victims flagged police down and stated someone had just attempted to stab him. Lane
actually completed his attack on the third victim. This evidence amply proved Lane
committed acts against the first and second victims that, by their nature, would directly
and probably result in the application of force. In light of the deliberate nature of Lane’s
actions, the jury could readily infer the knowledge and willfulness elements were met.
Given Lane’s proximity to the victims and his possession of multiple knives, the evidence
was sufficient to prove the present ability element.
       Lane’s arguments to the contrary are unpersuasive. He urges that there was no
evidence Lane “completed an assault” upon, or “actually assaulted,” either victim; neither
victim suffered injury; and “the evidence, at most, would have only supported a
conviction for attempted assault likely to cause great bodily injury.” But there is no
crime of “attempted assault” in California (People v. Moore (2011) 51 Cal.4th 1104,
1137; In re James M. (1973) 9 Cal.3d 517, 519), and neither physical contact with the
victim nor actual injury is required to prove assault. (People v. Wyatt, supra, 55 Cal.4th
at p. 702; People v. Brown (2012) 210 Cal.App.4th 1, 7; People v. Beasley (2003) 105
Cal.App.4th 1078, 1086.) “One may commit an assault without making actual physical
contact with the person of the victim; because the statute focuses on use of a deadly
weapon or instrument or, alternatively, on force likely to produce great bodily injury,
whether the victim in fact suffers any harm is immaterial.” (People v. Aguilar (1997) 16
Cal.4th 1023, 1028.)
       Lane further argues that because the first victim was able to get out of the way
before the blow struck him, and because the second victim was three to four feet away
and managed to block Lane’s approach with a shopping cart, there was no showing he
had the “ ‘the means and location’ ” to commit the assault. These facts do not
demonstrate any evidentiary deficit. To amount to assault, the defendant’s conduct need
not “immediately precede a battery.” (People v. Chance, supra, 44 Cal.4th at p. 1167.)
“[A]n assault may be committed even if the defendant is several steps away from actually
inflicting injury, or if the victim is in a protected position so that injury would not be
‘immediate’, in the strictest sense of that term.” (Id. at p. 1168; see also People v.

                                              13
Raviart (2001) 93 Cal.App.4th 258, 267 [that officer was sheltered by a building when
the defendant shot at him did not preclude the jury from finding the defendant had the
present ability to injure him]; People v. Valdez (1985) 175 Cal.App.3d 103, 108, 112-113
[present ability element satisfied although the victim was standing behind bullet-resistant
glass].) “ ‘The fact an intended victim takes effective steps to avoid injury has never
been held to negate’ ” the present ability element. (People v. Raviart, supra, at p. 267;
People v. Valdez, supra, at p. 113.)
       3. The trial court did not commit instructional error.
       Next, Lane avers that the trial court erred by failing to instruct, sua sponte, on the
lesser included offense of simple assault (§ 240) on counts 3 and 4. He is incorrect.
       A trial court must instruct the jury on all general principles of law relevant to the
issues raised by the evidence, including lesser included offenses, whether or not the
defendant makes a formal request. Instruction on a lesser included offense is required
when there is evidence that indicates the defendant is guilty of the greater offense but not
of the lesser. (People v. Whalen (2013) 56 Cal.4th 1, 68-69; People v. Wyatt, supra, 55
Cal.4th at p. 698; People v. Thomas (2012) 53 Cal.4th 771, 813; People v. Manriquez
(2005) 37 Cal.4th 547, 584.) Substantial evidence is evidence that a reasonable jury
could find persuasive. (People v. Benavides (2005) 35 Cal.4th 69, 102.) The existence of
any evidence, no matter how weak, will not justify instructions on a lesser included
offense. (People v. Whalen, supra, at p. 68; People v. Wyatt, supra, at p. 698.) In
deciding whether there is substantial evidence we do not evaluate the credibility of the
witnesses, a task for the jury. (People v. Manriquez, supra, at p. 585; People v. Wyatt,
supra, at p. 698.) We independently review the question of whether the trial court erred
by failing to instruct on a lesser included offense. (People v. Booker (2011) 51 Cal.4th
141, 181.)
       Simple assault (§ 240) is a lesser included offense of aggravated assault (§ 245,
subd. (a)(1)). (People v. Carmen (1951) 36 Cal.2d 768, 775 [“Assault with a deadly
weapon is nothing more than an assault where there is used either a deadly weapon or any
means of force likely to produce ‘great’ bodily injury”], disapproved on another ground

                                             14
in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12; People v. Rupert (1971) 20
Cal.App.3d 961, 968; People v. Richardson (1972) 23 Cal.App.3d 403, 408-409;
cf. People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748.) However, a jury should
not be instructed on simple assault if, based on the evidence, it could find the defendant
either guilty of assault with a deadly weapon or not guilty at all. (People v. Page (2004)
123 Cal.App.4th 1466, 1474.)
       Such was the case here. In order for jury to find Lane guilty of only simple
assault, it would have had to believe he did not use a knife in the attacks. There was no
evidence supporting such a theory. Franco observed Lane organizing several kitchen
knives prior to the attacks. Franco unequivocally testified that Lane lunged at the first
two victims with a knife. One of the victims told police that Lane tried to stab him with a
knife. Officers discovered several knives on the bus that Lane rode away from the crime
scene. And, of course, the third victim, Chavez, was actually stabbed and almost killed
by Lane’s knife attack. In short, the only evidence showed Lane used a knife in all the
attacks. Accordingly, the trial court was not obliged to instruct on simple assault. (See
People v. Page, supra, 123 Cal.App.4th at p. 1474; People v. Berry (1976) 18 Cal.3d 509,
518-519; People v. Whitsett (1983) 149 Cal.App.3d 213, 221.)
       Lane argues the jury could have found him guilty of only simple assault because
there was no evidence he was close enough to inflict significant injury on the first two
victims. Assuming arguendo this circumstance could have supported a simple assault
instruction, Lane’s argument nevertheless fails as a factual matter. The evidence showed
Lane was so close to the first victim that Franco thought he had stabbed him. The second
victim with the shopping cart was within three or four feet of Lane, and appears to have
escaped injury only because he was able to use the cart as a shield. “Here, it would be
speculative at best to construe the trial evidence in this case as supporting a verdict of
only simple assault.” (People v. Wyatt, supra, 55 Cal.4th at p. 704 [“even if a reasonable
person might believe that minor or moderate harm was a possible outcome, the trial court
is not required to ‘instruct sua sponte on the panoply of all possible lesser included
offenses’ ”].)

                                             15
       People v. Rupert, supra, 20 Cal.App.3d 961, cited by Lane, does not assist him. In
Rupert, the defendant attacked his fiancé’s mother with a knife in the middle of the night.
When the fiancé attempted to come to her mother’s aid, the defendant hit the fiancé with
his fists and possibly a coffee pot. The court instructed on assault by means likely to
produce great bodily injury in regard to the attack on the fiancé, but did not instruct on
simple assault. Rupert concluded this was error, because “[w]hile the evidence [was]
sufficient to support the jury’s finding of assault by means of force likely to produce
great bodily injury, the jury might also have reasonably concluded that no such force was
used.” (Id. at p. 968.) But here, in contrast to Rupert, the only evidence showed Lane
used a deadly weapon, a knife, in all three attacks. (See People v. Lesnick (1987) 189
Cal.App.3d 637, 643 [where defendant stabbed the victim with a knife, the trial court had
no duty to instruct on simple assault].)
       Finally, even if the trial court erred––a conclusion we do not adopt––any error was
manifestly harmless in light of the overwhelming evidence presented by the People.
“The failure to instruct on a lesser included offense in a noncapital case does not require
reversal ‘unless an examination of the entire record establishes a reasonable probability
that the error affected the outcome.’ ” (People v. Wyatt, supra, 55 Cal.4th at p. 698;
People v. Beltran (2013) 56 Cal.4th 935, 955; People v. Breverman (1998) 19 Cal.4th
142, 165.)
       Franco saw Lane organize a set of knives, and then systematically attack passersby
with them. Chavez testified that Lane approached and struck him in the chest with the
knife. One of the John Doe victims flagged down police and told them he had been
attacked by a knife-wielding assailant. When apprehended Lane was found in possession
of a bloody sheet and clothing, and knives were found on the bus on which he had ridden.
In light of this evidence, no reasonable jury would have concluded Lane did not use a
knife in the attacks, or employed some quantum of force unlikely to produce great bodily
injury. Thus, it is not reasonably probable Lane would have obtained a more favorable
result had the jury been instructed on simple assault.



                                             16
       4. Three of the section 667, subdivision (a) enhancements must be stricken.
       The information alleged that Lane had suffered five prior serious felonies within
the meaning of section 667, subdivision (a)(1), and the trial court found all five prior
conviction allegations true. At sentencing, the trial court imposed five-year sentences for
each of the five enhancements, for a total of 25 additional years. Lane contends, and the
People concede, that three of the prior convictions alleged pursuant to section 667,
subdivision (a)(1) do not qualify as serious felonies. We agree.
       Section 667, subdivision (a)(1) provides that the prison sentence for a current
serious felony conviction is subject to a five-year consecutive enhancement if the
defendant suffered a prior conviction for a serious felony on charges brought and tried
separately.3 (People v. Delgado (2008) 43 Cal.4th 1059, 1065.) Subdivision (a)(4) of
section 667 provides, “as used in this subdivision, ‘serious felony’ means a serious felony
listed in subdivision (c) of Section 1192.7.”
       To prove the prior conviction allegations, the People presented certified prison
records in the form of a section 969b packet. (People v. Delgado, supra, 43 Cal.4th at
p. 1065 [the People must prove every element of a sentence enhancement beyond a
reasonable doubt].) That evidence established that Lane had suffered a prior conviction
for manslaughter in 1987 (§ 192). He had also been convicted in case No. A317978, on
July 22, 1976, of kidnapping by force or fear; two counts of abduction for purposes of
prostitution (§ 266a); and one count of conspiracy to abduct for purposes of prostitution.
       Violation of section 266a, taking a person by force or fraud for purposes of
prostitution, is not listed in section 1192.7, subdivision (c), and therefore is not a serious


3      Section 667, subdivision (a)(1) provides: “In compliance with subdivision (b) of
Section 1385, any person convicted of a serious felony who previously has been
convicted of a serious felony in this state or of any offense committed in another
jurisdiction which includes all of the elements of any serious felony, shall receive, in
addition to the sentence imposed by the court for the present offense, a five-year
enhancement for each such prior conviction on charges brought and tried separately. The
terms of the present offense and each enhancement shall run consecutively.”



                                                17
felony for purposes of section 667, subdivision (a). Section 1192.7 defines conspiracies
to “commit an offense described in this subdivision” as serious felonies (§1192.7,
subd. (c)(42)), but does not otherwise list conspiracy as a serious felony. In Lane’s case,
the prior conspiracy was to commit the crime of taking a person for prostitution. Because
that offense is not listed as a serious felony, conspiracy to commit the offense is likewise
not a serious felony for purposes of the section 667, subdivision (a) enhancement.
       Moreover, “[t]o satisfy the ‘brought and tried separately’ requirement, ‘the
underlying proceedings must have been formally distinct, from filing to adjudication of
guilt.’ ” (People v. Frausto (2009) 180 Cal.App.4th 890, 903.) Here, four of the prior
convictions (the kidnapping, conspiracy, and the two abduction for prostitution offenses)
all occurred in case No. A317978, on July 22, 1976.
       Accordingly, for both of the foregoing reasons, it was error to impose more than
two five-year enhancements pursuant to section 667, subdivision (a)(1). (People v.
Frausto, supra, 180 Cal.App.4th at p. 903.)
       5. Custody credits.
       Lane was arrested on February 5, 2005, and sentenced on May 2, 2013. During
the intervening period, the trial court found him incompetent to stand trial, and he was
treated and evaluated at Patton State Hospital during various periods. On May 3, 2012,
the court found his competence had been restored, and trial commenced in January 2013.
Thus, between February 5, 2005 and May 2, 2013, Lane was either in custody at the
county jail, or at Patton State Hospital. The trial court awarded Lane 2,946 days of actual
custody credit, and no days of presentence conduct credit. Lane avers that he is entitled
to conduct credits under section 4019 for periods of time he was (1) in jail, and (2)
awaiting transport from the hospital to county jail or court after being certified as
competent to stand trial. The People agree that Lane’s actual and conduct credits were
miscalculated. We agree with the parties.
       A criminal defendant is entitled to credit for all days actually spent in pretrial
custody, whether in jail or a state hospital pursuant to competency proceedings.
(§ 2900.5, subd. (a); People v. Callahan (2006) 144 Cal.App.4th 678, 684-685; In re

                                              18
Banks (1979) 88 Cal.App.3d 864, 866, 870.) Therefore, Lane was entitled to 3,007 days
of actual custody credit rather than the 2,946 days awarded. (People v. Denman (2013)
218 Cal.App.4th 800, 814 [calculation of custody credit begins on the date of arrest and
continues through the date of sentencing].)
       A defendant is also entitled to conduct credits for days spent in jail awaiting trial.
(§ 4019; People v. Callahan, supra, 144 Cal.App.4th at p. 686.) When the defendant is
ultimately convicted of certain enumerated violent crimes, his or her pretrial conduct
credits are limited to 15 percent of actual time served. (§ 2933.1, subd. (c); People v.
Duff (2010) 50 Cal.4th 787, 794.) Lane’s crime, attempted murder, is such a violent
felony. (§ 2933.1, subd. (c); 667.5, subd. (c)(12).) A defendant is generally not entitled
to conduct credits for time spent being treated at a state hospital while incompetent,
because such credits are inconsistent with the therapeutic goal of returning the defendant
to competency. (People v. Waterman (1986) 42 Cal.3d 565, 569-571; People v. Bryant
(2009) 174 Cal.App.4th 175, 182; People v. Callahan, supra, at pp. 686-687.) An
exception to the latter rule applies, however: equal protection principles require that a
defendant is entitled to conduct credits if the hospital confinement becomes essentially
penal, for example, when the defendant is deemed competent by hospital staff but
remains at the hospital while awaiting transport back to jail. (People v. Buckhalter
(2001) 26 Cal.4th 20, 30, fn. 6; People v. Bryant, supra, at pp. 182, 184; see also People
v. Guzman (1995) 40 Cal.App.4th 691, 694-695; People v. Nubla (1999) 74 Cal.App.4th
719, 731-732; People v. Cramp (1984) 162 Cal.App.3d 632, 633.)
       Accordingly, Lane is entitled to pretrial conduct credits for all days he spent in
local custody, or at Patton State Hospital after he was found competent but had not yet
been transported back to jail. Because the record does not establish the precise dates
upon which Lane was in jail or at the hospital, the matter must be remanded for
recalculation of his credits. (People v. Duff, supra, 50 Cal.4th at p. 793; People v.
Buckhalter, supra, 26 Cal.4th at p. 30, fn. 6.)




                                              19
                                      DISPOSITION
       Three of the Penal Code section 667, subdivision (a) five-year enhancements are
ordered stricken. The matter is remanded to the trial court for recalculation of Lane’s
pretrial credits. In all other respects, the judgment is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                   ALDRICH, J.
We concur:


              KLEIN, P. J.




              KITCHING, J.




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