People v. Lievsay CA3 ( 2013 )

Filed 12/30/13 P. v. Lievsay CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Trinity)
THE PEOPLE, C069963
Plaintiff and Respondent, (Super. Ct. No. 10F088B)
v.
CHIPPICHANAS LIEVSAY,
Defendant and Appellant.
Defendant Chippichanas Lievsay appeals from the judgment imposed following
his convictions for battery causing serious bodily injury (Pen. Code, § 243, subd. (d)),1 a
serious felony under section 1192.7, subdivision (c); failure to appear (§ 1320, subd. (b));
and attempt to obstruct an officer in the performance of his duties (§ 69). Defendant
contends: (1) the trial court erred in sentencing him under the Three Strikes law, as a
battery with serious bodily injury is not the same as a felony causing great bodily injury
and therefore, it is not a serious felony; (2) he is entitled to additional presentence
conduct credits; and (3) the abstract must be corrected to reflect the correct imposition of
1 Undesignated statutory references are to the Penal Code.
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the court security fees and criminal conviction assessments. We find no merit to
defendant’s claim that battery with serious bodily injury is not a serious felony; however,
we agree he is entitled to 24 days of additional presentence conduct credit and the
abstract must be corrected to reflect the imposition of $160 in court security fees and
$120 in criminal conviction assessments. As modified, the judgment is affirmed.
BACKGROUND
Trinity County Sheriff’s Deputy Jeramy Ammon went on a mountain bike ride
with his brother-in-law. On the ride, Ammon saw defendant and James Chappell heading
towards them. Chappell intentionally slammed his bike into Ammon’s bike and both
bikes fell to the ground. Chappell stood with his fists clenched and his chest puffed out
and Ammon asked him what his problem was. Ammon tried to pick up his backpack and
each time he leaned forward, Chappell would move as though he was going to hit
Ammon. Meanwhile, defendant walked up behind Ammon with his fists clenched and
chest out and asked, “What’s up, motherfucker?” To minimize the threat of attack,
Ammon triangulated Chappell and defendant; he pushed defendant with his left hand and
stepped back placing defendant and Chappell in front and to the side of him. As Ammon
backed away, defendant charged Ammon with both hands swinging. After a few swings,
defendant punched Ammon in the jaw. Defendant swung a few more times and then
made a roundhouse kick toward Ammon’s thigh. Ammon blocked the kick with his
hand. His hand hurt immediately. He tried to put defendant in a control hold, but his
fingers did not function properly and he could not grip with his left hand. Defendant
continued kicking and punching at Ammon. Eventually Reserve Deputy Bruce Black
broke up the fight and defendant was placed under arrest.
Ammon looked at his hand and discovered his ring finger was bent and swollen
and almost overlapping his pinky finger. Doctors treated Ammon at the emergency room
for a broken finger and advised Ammon it was in his best interest to have the finger
surgically repaired. A metal plate was inserted in his finger. For two and one-half
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months after surgery, there was some limitation in the mobility of Ammon’s finger. The
fracture was a serious injury because it had the potential for leaving permanent damage if
it had not been treated.
The prosecution filed an information in case No. 10F088B charging defendant
with battery causing serious bodily injury (§ 243, subd. (d)) and resisting a peace officer
(§ 148, subd. (a)(1)). The information alleged the battery count was a serious felony
(§ 1192.7, subd.(c)). The information further alleged defendant had suffered a prior
strike conviction for attempted murder and served two prior prison terms (§§ 1170.12,
subds. (a)-(d), 667, subds. (a)-(i)). Following trial, the jury found defendant guilty of
both counts. In bifurcated proceedings, defendant admitted the prior conviction
allegation and the prior prison terms. In separate cases, defendant also pleaded guilty to
failure to appear (§ 1320, subd. (b); case No. 10F0187) and no contest to an attempt to
obstruct an officer in the performance of his duties (§ 69; case No. 10F0189).2
The trial court sentenced defendant to an aggregate term of 13 years and 4 months
in prison. In case No. 10F088B, the trial court sentenced defendant to three years,
doubled to six under the Three Strikes law for battery causing serious bodily injury, a
consecutive five years for the serious felony enhancement, a consecutive one year for the
prior prison term enhancement, and 180 days in county jail for the misdemeanor resisting
arrest charge with credit for 180 days of time served. In case No. 10F0187, the trial court
sentenced defendant to eight months (one-third the middle term) for the failure to appear
and in case No. 10F0189 eight months (one-third the middle term) for the attempt to
obstruct an officer. These terms were ordered to run consecutive to the sentence in case
No. 10F088B. The trial court awarded defendant 450 days of presentence custody credit
and 148 days of conduct credit. The trial court also ordered defendant to pay a $200
2 The facts underlying these two cases are not relevant to any issue on appeal and are
therefore, not recounted here.
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restitution fund fine in each case (§ 1202.4), a $160 court security fee (§ 1465.8), and a
$120 court facilities fee (Gov. Code, § 70373).
DISCUSSION
I
Defendant contends, as a matter of statutory interpretation, the five-year
enhancement imposed under section 667, subdivision (a) should be reversed because
battery with serious bodily injury is not a serious felony, in that serious bodily injury is
not the same as great bodily injury under section 1192.7, subdivision (c)(8). We are not
persuaded.
Under section 667, subdivision (a), any person convicted of a serious felony shall
receive an additional five-year enhancement for each prior serious felony conviction
brought and tried separately. For purposes of this enhancement, a serious felony is a
felony listed in section 1192.7, subdivision (c) (§ 667, subd. (a)(4)). In addition to a
number of enumerated felonies, section 1192.7, subdivision (c) provides that “any felony
in which the defendant personally inflicts great bodily injury on any person, other than an
accomplice” is a serious felony (§ 1192.7, subd. (c)(8)). Battery with serious bodily
injury is not an enumerated felony under the relevant code sections (§§ 667, subd. (d),
667.5, subd. (c), 1192.7, subd. (c)). However, it qualifies as a strike conviction if the
record shows that in committing the offense the defendant personally inflicted great
bodily injury on the victim other than an accomplice (§ 1192.7, subd. (c)(8)).
Defendant’s argument rests on the premise that, for purposes of a serious felony
sentence enhancement, serious bodily injury has a separate and distinct definition from
great bodily injury. It does not.
“ ‘Serious bodily injury’ ” is defined as “a serious impairment of physical
condition, including, but not limited to, the following: loss of consciousness; concussion;
bone fracture; protracted loss or impairment of function of any bodily member or organ; a
wound requiring extensive suturing; and serious disfigurement.” (§ 243, subd. (f)(4).)
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By contrast, great bodily injury is defined as “a significant or substantial physical injury.”
(§ 12022.7, subd. (f); § 12022.8; People v. Escobar (1992) 3 Cal. 4th 740, 749-750
(Escobar).) “[T]o be significant or substantial the injury need not be so grave as to cause
the victim ‘ “permanent,” “prolonged,” or “protracted” ’ bodily damage.” (People v.
Cross (2008) 45 Cal. 4th 58, 64.) The Legislature intentionally defined great bodily
injury more generally and broadly than serious bodily injury. (Escobar, supra, 3 Cal.4th
at pp. 747-750.) “Nothing indicates the Legislature intended that these two terms should
have separate and distinct meanings with regard to a ‘serious felony’ sentence
enhancement, and we perceive no reason to make any distinction between the two terms.”
(People v. Moore (1992) 10 Cal. App. 4th 1868, 1871 (Moore).) A felony battery “is
defined as an offense in which ‘serious bodily injury is inflicted on the person.’ ” (Ibid.)
Numerous courts, including our Supreme Court have “held that the term ‘serious bodily
injury,’ as intended in section 243, subdivision (d), is ‘essentially equivalent’ with the
element of ‘great bodily injury’ presented in other criminal statutes. [Citations.]” (Ibid.;
People v. Arnett (2006) 139 Cal. App. 4th 1609, 1613-1614 (Arnett).) “In fact, great
bodily injury has been held to be ‘an element of battery under section 243, subdivision
(d)’ [citation], including for purposes of establishing the enhancement contained in
section 667, subdivision (a) [citation].” (Arnett, supra, 139 Cal.App.4th at pp. 613-
1614.) We continue to agree with Moore and Arnett and “find that the element of
‘serious bodily injury,’ as required for felony battery, is essentially equivalent to or
synonymous with ‘great bodily injury’ for the purpose of a ‘serious felony’ sentence
enhancement pursuant to . . . sections 667, subdivisions (a) and (d), and 1192.7,
subdivision (c)(8).” (Moore, supra, 10 Cal.App.4th at p. 1871.) Accordingly,
defendant’s contention fails.
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II
Defendant next contends he is entitled to 24 additional days of presentence
custody credits. The People agree that defendant’s credits must be corrected. We also
agree.
Defendant was in custody from June 10, 2010, to September 7, 2010. He was
rearrested on November 10, 2010, and remained in custody until May 4, 2011. He was
admitted to the state hospital to have his competency to stand trial restored on May 4,
2011, and the certificate finding his competence restored was signed on August 16, 2011.
Defendant remained in custody until he was sentenced on November 4, 2011.
Defendant is entitled to custody credits for the time he was in custody, including
time in the state hospital. Thus, he is entitled to 450 days of custody credit. However,
defendant is not entitled to conduct credit for the time spent in a state hospital having his
competency restored. (§ 4019, subd. (a)(4); People v. Sage (1980) 26 Cal. 3d 498, 502-
503.) Thus, defendant is entitled to conduct credit on 346 days of actual custody time, or
a total of 172 days of conduct credit. The trial court awarded defendant 148 days of
conduct credit. He is entitled to an additional 24 days. We will order the judgment
modified and the abstract amended to reflect the award of these additional credits.
III
Defendant also contends, and the People properly concede, that the abstract of
judgment must be corrected to reflect the actual amount of the security fee and criminal
conviction assessments imposed by the court.
Defendant was sentenced on three cases in which he was convicted of four counts.
The court indicated defendant was to pay a “[c]ourt security fee of $40. Excuse me, that
would be $40 as to -- the court security fee of $160, under the provisions of Penal Code
section 1465.8. The court facilities fee of a total of $120 under Government Code section
[70373, subdivision] (a)(1).” The abstract of judgment reflects the imposition of a $480
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court security fee under section 1465.8 and $360 court facilities fee under the
Government Code.
Section 1465.8 provides an assessment of $40 shall be imposed on every
conviction for a criminal offense. Government Code section 70373, subdivision (a)(1)
provides for a $30 assessment on each conviction. Defendant sustained four convictions,
thus his assessments should have been $160 under section 1465.8 and $120 under
Government Code section 70373, subdivision (a)(1). It appears this is the judgment the
court orally imposed. We will order the abstract corrected to reflect the judgment as
imposed.
DISPOSITION
The judgment is modified to reflect an award of an additional 24 days of
presentence conduct credits. The trial court is directed to prepare an amended abstract of
judgment properly reflecting the presentence conduct credits; to correct the abstract of
judgment to reflect the total of a $160 court security fee under Penal Code section 1465.8
and a $120 criminal conviction assessment under Government Code section 70373,
subdivision (a)(1); and to forward a certified copy to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.
BLEASE , Acting P. J.
We concur:
MAURO , J.
DUARTE , J.
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