P. v. Ware
Marcus Leroy Ware appeals from the judgment entered upon his conviction by jury of battery with serious bodily injury (Pen. Code, § 243, subd. (d), count 1),[1] and assault with a deadly weapon (§ 245, subd. (a)(1), count 2). As to the assault count, the jury found true the allegation that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). In a bifurcated proceeding, appellant admitted a prior conviction of a serious or violent felony (§§ 1170.12, subds. (a)-(d); 667, subds. (a)(1), (b)-(i); 667.5, subd. (b)).
The trial court sentenced appellant to a total term of 16 years in state prison. On count 1, the trial court imposed the upper term of four years doubled pursuant to the “Three Strikes†Law, plus three years pursuant to section 12022.7, subdivision (a), plus five years for appellant’s prior conviction pursuant to section 667, subdivision (a). On count 2, the trial court imposed the midterm of three years to be served concurrently with the count 1 term, and imposed but stayed the section 12022.7 sentence pursuant to section 654. The trial court awarded appellant 378 days of presentence custody credit.
Appellant contends the great bodily injury enhancement on count 1 should be stricken, and the sentence on count 2 should be stayed pursuant to section 654.
The section 12022.7, subdivision (a) enhancement on count 1 must be stricken and the matter remanded for resentencing consistent with this opinion. We otherwise affirm the judgment.
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