P. v. Batiste
A jury convicted appellant Aaron L. Batiste of two counts of attempted murder (Pen. Code, 664/187, subd. (a)) and one count of mayhem ( 203); as to all three counts the jury found true that appellant personally and intentionally discharged a firearm, causing great bodily injury ( 12022.53, subds. (b)-(d)). The jury found one of the counts of attempted murder was committed willfully, deliberately and with premeditation ( 664, subd. (a)). Appellant was also convicted of one count of negligent discharge of a firearm in public ( 246.3) and one count of assault with a firearm ( 245, subd. (a)(2)); as to the latter count the jury found that appellant personally inflicted great bodily injury ( 12022.7, subd. (a)).
The trial court sentenced appellant to state prison for a term of 88 years to life, consisting of: life with the possibility of parole for one count of attempted murder, plus 25 years to life for the section 12022.53 enhancement as to that count; the middle term of 4 years on the mayhem count, plus 25 years to life for the section 12022.53 enhancement as to that count, to run consecutively to the sentence on the prior count; the middle term of 2 years on the negligent discharge of a firearm count, to run consecutively; the middle term of 7 years for the second attempted murder count, plus 25 years to life for the section 12022.53 enhancement as to that count, to run consecutively to all other counts; and 1 year (one-third of the middle term of 3 years) for the assault with a firearm count, which the court ordered stayed pursuant to section 654.
In this appeal from the judgment of conviction, appellant claims the trial court erred by failing to stay, pursuant to section 654, (1) the 4-year sentence imposed for the mayhem count, (2) the 25-year-to-life enhancement under section 12022.53, subdivision (d) relating to the mayhem count, and (3) the 2-year sentence for the discharge of a firearm count. He also argues the court erred in imposing the section 12022.53, subdivision (d) enhancement on the mayhem count because it incorporates the definition of great bodily injury found insection 12022.7, and the latter section is not applicable where great bodily injury is an element of the underlying offense, as is the case with mayhem. Appellant also contends that the trial court erred in imposing full, consecutive terms on the subordinate, determinate counts ( 1170.1). Finally, he contends that the prosecutor committed prejudicial misconduct during closing argument, requiring reversal.
The judgment is modified (1) to provide as to the mayhem count (count 5) that execution of the 4-year sentence and the 25-year-to-life sentence for the section 12022.53, subdivision (d), enhancement are stayed pursuant to section 654, the stay to become permanent upon service of the remainder of the sentence; and (2) to provide that appellant is sentenced to 8 months (one-third of the middle term of 2 years) for the negligent discharge of a firearm count (count 7), to run consecutively, resulting in a total state prison term of 57 years and 8 months to life. The trial court is ordered to prepare an amended abstract of judgment reflecting these modifications. The trial court send a corrected abstract of judgment to the Department of Corrections. As so modified, the judgment is affirmed.
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