Filed 9/3/15 P. v. Chavez CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B257515

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA092359)
         v.

DANIEL CHAVEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Mark C. Kim, Judge. Affirmed in part and reversed in part.
         Christopher Nalls, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez and
Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.




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       In this appeal from his convictions for attempted murder, assault with a firearm,
robbery and multiple assaults with a semiautomatic firearm, Daniel Chavez (defendant)
challenges the sentence imposed on two of the enhancements making up his prison
sentence of 72 years and 8 months to life, disputes the trial court’s calculation of his
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custody credits, and asks us to review the sealed transcripts from the in camera Pitchess
hearing the trial court conducted. We find that the Pitchess hearing was properly
conducted, agree that the trial court’s calculation of custody credits is two days too short,
and conclude that the trial court’s intent regarding the sentence to be imposed on the two
enhancements is unclear and necessitates a remand for clarification.
                  FACTUAL AND PROCEDURAL BACKGROUND
       The charges in this case stem from two incidents, just days apart.
       In the first incident, defendant—a member of the Westside Wilmas street gang—
approached a stranger at a church carnival from behind, placed him in a headlock, asked
him where he was from (a common inquiry by gang members), and shot him through the
neck before the stranger could answer. The stranger lived.
       In the second incident, defendant walked into a MetroPCS store, pulled out and
cocked a semiautomatic pistol, gestured the pistol at two customers in the store, and
aimed it at the sales clerk while demanding money. The clerk emptied the register and
gave defendant $800 in cash. After defendant left, the clerk and customers saw defendant
approach a nearby house; after a standoff with a SWAT team, defendant emerged from
the same house. The house contained cash, two guns, and ammunition.
       For the first incident, the People charged defendant with (1) attempted
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premeditated murder (Pen. Code, §§ 664, 187, subd. (a)) , and (2) assault with a firearm
(§ 245, subd. (a)). The People further alleged that, as to the attempted murder, defendant
personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53,



1      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2      All further statutory references are to the Penal Code unless otherwise indicated.

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subd. (b)); that, as to the assault, defendant personally inflicted great bodily injury
(§ 12022.7, subd. (a)); and that defendant committed both crimes for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(C)). For the second incident, the People
charged defendant with (1) robbery (§ 211), and (2) three counts of assault with a
semiautomatic firearm (§ 245, subd. (b)), one for each person in the store. The People
further alleged that, as to the robbery, defendant personally used an assault weapon or
machine gun (§ 12022.53, subd. (b)), and, as to the assaults, that defendant personally
used a firearm (§ 12022.53, subd. (a)). As to all counts, the People alleged that defendant
had suffered one prior “strike” conviction under the Three Strikes law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served three prior prison terms (§ 667.5).
       A jury convicted defendant of all crimes and found all conduct enhancements to
be true. After defendant waived his right to a jury, the court found the three prior prison
terms to be true; the People dismissed the prior “strike” allegation.
       The trial court imposed a sentence of 72 years and 8 months to life in prison. As
to the charges pertaining to the first incident, the court imposed a sentence of 15 years to
life on the attempted premeditated murder plus an additional 25 years to life for the
firearm enhancement on that count. The trial court stayed the sentence on the related
assault with a firearm count under section 654. As to the charges pertaining to the second
incident, the trial court imposed a consecutive sentence of 32 years and 8 months
calculated as follows: The trial court treated the assault count against the store clerk as
the principal offense, and imposed an upper term sentence of 9 years for the assault plus
an additional upper term sentence of 10 years for the personal use of a firearm
enhancement. As to each of the subordinate assault counts, the trial court imposed
consecutive sentences of two years for the assault (corresponding with one-third of the
middle term) plus an additional sentence of three years and four months for the personal
use of a firearm enhancement (corresponding with one-third of the upper term for that
enhancement). The trial court then imposed three one-year sentences for each prior
prison term. The trial court stayed the sentence for the robbery count under section 654.



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       The trial court awarded defendant 895 days of custody credit, comprised of 779
days of actual custody and 116 days of good time/work time conduct credit.
       Defendant timely appeals.
                                       DISCUSSION
I.     Sentences for firearm enhancements
       Defendant argues that the trial court erred in imposing one-third of the upper term
for the firearm enhancements for the two assault counts against the customers (that is,
counts 5 and 6). Specifically, he contends that this sentence is inconsistent with the
court’s stated intent. The court’s stated intent is unclear. The court stated that it was
imposing “a third of the mid-term” for the firearm enhancements on these two counts
(which would have been a sentence of 16 months), but also stated its desire to “select
[the] high term as to all counts” and the court actually imposed a sentence of one-third of
the upper term for those enhancements (of 3 years and 4 months). Because the trial court
had the discretion to impose one-third of either the middle term or upper term of a
firearm enhancement attached to a subordinate offense (People v. Hill (2004) 119
Cal.App.4th 85, 87 [trial court has “the discretion to use any of the enhancement’s terms
of imprisonment—upper, middle, or lower—in calculating the subordinate term”]), and
because we cannot tell which term the trial court intended, we will remand the matter to
the trial court to specify which term is to be imposed for these enhancements. (Accord,
People v. Garcia (1997) 59 Cal.App.4th 834, 839 [allowing remand for purposes of
clarification])
II.    Custody credits
       Defendant also contends that the trial court miscalculated his actual custody
credits by one day. The People agree, and our calculation indicates that defendant was
entitled to 780 days of actual custody credit (between May 23, 2012 and July 11, 2014)—
not the 779 days the trial court calculated. (See People v. Bravo (1990) 219 Cal.App.3d
729, 735 [credit for days in custody includes the day of arrest and day of sentencing].)
This change will also increase defendant’s good time/work time conduct credits by one
day. (See § 2933.1.) We accordingly order the abstract of judgment to be modified to

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reflect 897 days of custody credit. (See People v. Little (1993) 19 Cal.App.4th 449, 452-
453 [empowering Court of Appeal to so order].)
III.   Pitchess motion
       Prior to trial, the trial court granted defendant’s Pitchess motion to discover
personnel records relating to Officer Castellon of the Los Angeles Police Department, but
found the records contained no discoverable material. Defendant asks us to review the
transcripts from the in camera hearings the trial court conducted on Officer Castellon.
We have done so, and find the record to be adequate to permit meaningful appellate
review. (See People v. Prince (2007) 40 Cal.4th 1179, 1285-1286.) We have
independently determined from the entire record and that of the sealed in camera
proceedings that the trial court properly exercised its discretion and that the trial court did
not err in refusing to disclose further materials.
                                       DISPOSITION
       The judgment is affirmed in part and reversed in part and remanded for further
proceedings in accordance with this opinion. The clerk of the superior court is directed to
prepare an amended abstract of judgment reflecting 897 days in custody credit, and to
forward a certified copy of the amended abstract to the California Department of
Corrections and Rehabilitation.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                          _______________________, J.
                                                                  HOFFSTADT
We concur:
____________________________, Acting P.J.
      ASHMANN-GERST


____________________________, J.
         CHAVEZ




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