P. v. Vizcarra
In this gang-related stabbing case, a jury convicted Juan Jose Vizcarra─who was a member of the Chicali Brazas (Chicali) criminal street gang in Brawley, California─of (1) assaulting Jesus Zermeno with a deadly weapon, a knife (count 2: Pen. Code, § 245, subd. (a)(1)) (undesignated statutory references will be to the Penal Code); and (2) attempting to dissuade a witness, Zermeno, in violation of section 136.1, subdivision (a)(2) (hereafter section 136.1(a)(2)) (count 3). The jury found Vizcarra not guilty of attempting to willfully, deliberately, and with premeditation murder Zermeno (§§ 187, subd. (a), 664) as charged in count 1.
The jury found true a count 2 allegation that Vizcarra committed assault with a deadly weapon for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). In a bifurcated proceeding, the court found true a count 2 allegation that Vizcarra had suffered a strike prior (§ 667, subds. (b)-(i)). A strike prior allegation was not included in count 3 of the information.
The court sentenced Vizcarra in this case (No. JCF25950) to an aggregate prison term of 15 years consisting of (1) the upper term of four years for his count 2 conviction of assault with a deadly weapon, doubled to eight years under the Three Strikes law as a result of the court's true finding on the count 2 strike prior allegation; plus (2) a consecutive middle term of two years for his conviction of attempting to dissuade a victim or witness; and (3) a five-year term for the gang enhancement.[1] During the same hearing, the court also sentenced Vizcarra to concurrent terms in two other cases: one—case No. JCF25997 (hereafter the jail stabbing case)—involving an assault with a deadly weapon that he committed while in custody for the present case, and another—case No. JCF23935 (hereafter the probation revocation case)—involving revocation of probation granted to him following his prior robbery conviction.
Vizcarra appeals, contending (1) there is insufficient evidence to sustain his count 3 conviction of attempting to dissuade a victim or witness (§ 136.1(a)(2)) because, although the evidence may show he attempted to influence the content of Zermeno's testimony, there is no evidence he attempted to prevent or dissuade Zermeno from going to court, and, thus, there is no evidence he attempted to prevent Zermeno from testifying; (2) the abstract of judgment must be corrected (a) to reflect that he was convicted of assault with a deadly weapon (count 2) and not attempted murder (count 1), and (b) to clarify that the gang enhancement allegation was found true only with respect to count 2; and (3) the court erred in both the instant case and the jail stabbing case by calculating his custody credits with the 15 percent limitation under section 2933.1, rather than under section 4019, and, thus, he should have been awarded 280 days of work time credit in each case.
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