NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

I. INTRODUCTION

This case arose out of several altercations between a Latino gang and members of a Black family1 living in the neighborhood. Defendant, Hugo Placencia, was convicted by a jury of crimes committed for the benefit of a criminal street gang (Pen. Code,2 § 186.22, subds. (b)(1) & (d)): criminal threats (§ 422) (counts 4 and 6); firearm assault (§ 245, subd. (a)(2)) (count 3); hate crimes (§ 422.6, subd. (a)) (counts 7 through 9); and felony vandalism (§ 594, subd. (a)) (count 10). The jury found defendant personally used a firearm when committing the criminal threats charged in count 4. (§ 12022.5, subd. (a).) Defendant was sentenced to 28 years in state prison.

On appeal, defendant argues there was insufficient evidence as to counts 3, assault with a firearm, and 6, criminal threats. We find several sentencing errors and reverse the judgment in part. Upon remittitur issuance, the trial court shall have the opportunity to restructure its sentencing choices. We affirm the judgment of conviction. But we reverse the sentence.

II. DISCUSSION

A. Sufficiency Of The Evidence

1. Standard Of review

Defendant asserts the evidence was insufficient as to two counts. Our Supreme Court has held: "In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; accord, People v. Hovarter (2008) 44 Cal.4th 983, 996-997.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Bolin (1998) 18 Cal.4th 297, 331.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792.) Our Supreme Court has held, "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755; accord, People v. Manriquez (2005) 37 Cal.4th 547, 577.)

2. Count 6: Criminal Threats

Defendant contends there was insufficient evidence of criminal threats as to Lazanyia Harris as charged in count 6. We disagree. Section 422 states in part: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."

Our Supreme Court has described the five elements of a criminal threat offense as follows: "In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant `willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat `with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be `made verbally, in writing, or by means of an electronic communication device'—was `on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened `to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was `reasonbl[e]' under the circumstances. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228; accord, In re George T. (2004) 33 Cal.4th 620, 630.)

Ms. Harris testified that on November 30, 2009, her brother got into a physical fight with defendant and others. Ms. Harris helped to break up the fight. The next day, Ms. Harris encountered defendant at a gas station. Defendant asked Ms. Harris, "[W]hy the fuck did you jump in the fight?" Defendant used the word nigger a lot and called Ms. Harris a bitch. Defendant said his homegirl wanted to talk to Ms. Harris. The woman, identified only as a "homegirl," cursed Ms. Harris. The unidentified woman called Ms. Harris a nigger and a bitch. The unidentified woman told defendant, "Put that shit in [my] hand, [I'll] pop her." Defendant said: "Don't worry about that fool. They stay in the hood. We'll take care of that." This was substantial evidence defendant made criminal threats to Ms. Harris. Because we find substantial evidence defendant directly threatened Ms. Harris, we need not discuss his liability as an aider and abettor with respect to statements made by others.

3. Count 3: Firearm Assault

Defendant argues there was insufficient evidence he assaulted Shonisha Brooks as charged in count 3. Defendant asserts, "The evidence in this case clearly shows that the gun was used to break the window, not to commit an assault." We find substantial evidence supports the conviction.

Pursuant to section 240, "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Our Supreme Court has held, "An assault occurs whenever `"[t]he next movement would, at least to all appearance, complete [a] battery.'" [Citation.]" (People v. Williams (2001) 26 Cal.4th 779, 786; accord, People v. Chance (2008) 44 Cal.4th 1164, 1167-1168.) Moreover, our Supreme Court has held: "[A]ssault does not require a specific intent to injure the victim. [Citation.]" (People v. Williams, supra, 26 Cal.4th at p. 788; People v. Rocha (1971) 3 Cal.3d 893, 899.) The present ability to commit an injury element is satisfied when the accused has the means to strike immediately at the victim. (People v. Chance, supra, 44 Cal.4th at pp. 1167-1168; see also People v. Licas (2007) 41 Cal.4th 362, 366-367.) An assault with a firearm can be committed by pointing a gun at another person, even if the gun is not pointed directly at the victim. (People v. McMakin (1857) 8 Cal. 547, 548-549; see People v. Chance, supra, 44 Cal.4th at pp. 1171-1174; People v. Colantuono (1994) 7 Cal.4th 206, 219.)

Here, defendant broke a window with a firearm and pointed it at several people inside the home. Ms. Harris saw defendant break the window with the gun and point it. Defendant said, "You niggas gotta get out [the] hood." Ms. Brooks saw the window break. She saw the gun come through the window. Defendant was moving the gun forward and from side to side. He pointed the gun in Ms. Brooks's direction. She was scared. She thought defendant was going to start shooting. The people who were in the room tried to run away. This was substantial evidence defendant assaulted Ms. Brooks with a firearm.

B. Sentencing

1. Firearm Use Enhancements

The jury found defendant guilty of felony criminal threats (§ 422) as to Ms. Harris as charged in count 4. The jury also found to be true two sentence enhancement allegations. First, the jury found defendant personally used a firearm in the commission of the offense. (§ 12022.5, subd. (a).) Second, the jury found the crime was committed to benefit a criminal street gang. (§ 186.22, subd. (b)(1).) The trial court chose count 4 as the principal term and imposed the high term of three years for the section 422 violation. The trial court then imposed a consecutive 10-year term for each of the two enhancements. With respect to the gang enhancement, the amended indictment alleged and the jury found the crime was committed to benefit a criminal street gang under subdivision (b)(1)(B) of section 186.22, which provides for a five-year enhancement for a serious felony. However, because defendant was found to have used a firearm in the commission of the offense, it was also a violent felony (§ 667.5, subd. (c)(8)) which, under section 186.22, subdivision (b)(1)(C), is enhanced by an additional 10 years. The trial court, without objection, imposed the 10-year term under section 186.22, subdivision (b)(1)(C).

The trial court erred when it imposed a consecutive 10-year term for each of the two enhancements. Defendant became eligible for the 10-year enhancement under section 186.22, subdivision (b)(1) only because he used a firearm in the commission of the criminal threats. (§§ 186.22, subd. (b)(1)(C); 667.5, subd. (c)(8).) Defendant's personal use of a firearm was charged and proved as provided in section 12022.5, subdivision (a). Defendant's firearm use resulted in the additional punishment under both sections 12022.5, subdivision (a), and 186.22, subdivision (b)(1)(C). Under these circumstances, only the greater of the two enhancements can be imposed. (§ 1170.1, subd. (f);3 People v. Rodriguez (2009) 47 Cal.4th 501, 509; see People v. Gonzalez (2009) 178 Cal.App.4th 1325, 1327-1328, 1331-1332; 3 Witkin, Cal. Criminal Law (3d ed. 2000) Punishment, § 309, p. 400.)

In Rodriguez, our Supreme Court held the proper remedy was to remand the matter for resentencing: "Remand will give the trial court an opportunity to restructure its sentencing choices in light of our conclusion that the sentence imposed here violated section 1170.1's subdivision (f)." (People v. Rodriguez, supra, 47 Cal.4th at p. 509; see People v. Edwards (2011) 195 Cal.App.4th 1051, 1060 ["[i]f correction of a sentencing error may affect the trial court's discretionary decisions in determining an appropriate sentence, the remedy is to reverse and remand for resentencing"].) A remand for resentencing is also proper here, particularly given our conclusion in section II B 2, below. Thus, we will remand for resentencing.

2. Section 186.22, subdivision (d)

As noted above, defendant was convicted of three counts of civil rights violations (§ 422.6, subd. (a)) (counts 7 through 9) and one count of vandalism (§ 594, subd. (a)) (count 10). These are all misdemeanor offenses. However, because the offenses were committed for the benefit of a criminal street gang, they were punishable, in the trial court's discretion, as misdemeanors or as felonies. (§ 186.22, subd. (d);4 Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898-890; Lopez v. Superior Court (2008) 160 Cal.App.4th 824, 828, fn. 6; see People v. Arroyas (2002) 96 Cal.App.4th 1439, 1444.) Here, the trial court's sentence choices are not entirely clear. However, the trial court made two errors. First, the trial court imposed consecutive one-third the mid-term sentences and then stayed the counts under section 654, subdivision (a). Second, it both elevated the offenses to felonies under section 186.22, subdivision (d) and imposed an enhancement under section 186.22, subdivision (b)(1). The one-third the mid-term rule does not apply to a sentence stayed under section 654, subdivision (a). (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164.) And a misdemeanor elevated to a felony under section 186.22, subdivision (d) may not also be enhanced under section 186.22, subdivision (b)(1). (People v. Arroyas, supra, 96 Cal.App.4th at pp. 1444-1449, cited with approval in People v. Briceno (2004) 34 Cal.4th 451, 462, and Robert L. v. Superior Court, supra, 30 Cal.4th at p. 907, fn. 18.) Upon remittitur issuance, the trial court must reconsider its sentencing options. We leave the issue of what sentencing options are appropriate in the trial court's good hands.

3. Presentence Custody Credit

Defendant was in presentence custody for 359 days from December 1, 2009 to November 24, 2010. The trial court calculated defendant's conduct credit under section 2933.1, subdivision (a) as 54 days. Fifteen percent of 359 is 53.85. Conduct credits are calculated to the greatest whole number without exceeding 15 percent. (People v. Duran (1998) 67 Cal.App.4th 267, 270; People v. Ramos (1996) 50 Cal.App.4th 810, 815-817; see In re Reeves (2005) 35 Cal.4th 765, 775.) Therefore, defendant was entitled to 53 days of conduct credit, not 54. The judgment will be modified to so reflect.

4. Abstract of Judgment

The abstract of judgment erroneously reflects a $20 state-only deoxyribonucleic acid penalty pursuant to Government Code section 76104.7, subdivision (a). The trial court never orally imposed any such penalty. (People v. Delgado (2008) 43 Cal.4th 1059, 1070; People v. Mitchell (2001) 26 Cal.4th 181, 185.) Further, no fine was imposed as to which a Government Code section 76104.7, subdivision (a) penalty would attach. (People v. Valencia (2008) 166 Cal.App.4th 1392, 1394-1396; § 1465.8, subd. (b); Gov. Code, § 70373, subd. (b).) Upon remittitur issuance and following resentencing, the trial court is to personally insure the clerk prepares an amended abstract of judgment that accurately reflects its oral imposition of sentence. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426; People v. High (2004) 119 Cal.App.4th 1192, 1200.)

III. DISPOSITION

The judgment of conviction is affirmed. The sentence is reversed. Upon remittitur issuance, the trial court shall have the opportunity to restructure its sentencing choices in conformity with the views expressed in this opinion. In all other respects, the judgment is affirmed.

ARMSTRONG, J. and MOSK, J., concurs.