(Super. Ct. Nos. 05F01899, 09F00724)
The opinion of the court was delivered by: Robie , Acting P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 case No. 05F01899 (2005 case), defendant Christopher Robert Floyd pled no contest to the infliction of corporal injury upon a cohabitant. The court suspended imposition of sentence and granted probation for a term of five years.
In case No. 09F00724 (2009 case), a jury found defendant guilty of felony false imprisonment and making criminal threats. The court found defendant to be in violation of probation in the 2005 case.
The court sentenced defendant to state prison for an aggregate term of four years four months, that is, the midterm of three years for the infliction of corporal injury and consecutive one-third the midterm or eight months each, for both false imprisonment and criminal threats.
Defendant appeals. He contends: (1) the trial court erred in failing to stay sentence (Pen. Code,*fn1 § 654) on the criminal threats offense; (2) he is entitled to additional presentence custody credits pursuant to the recent amendments; and (3) the trial court erroneously increased the restitution fine in the 2005 case when it sentenced him to state prison. We will order the $600 restitution fine imposed in the 2005 case stricken; the $200 restitution fine originally imposed when the court granted probation remains in force. We reject defendant's other contentions.
In January 2005, defendant and his then-girlfriend, R. B., argued and he hit her on the leg with a lamp. Earlier, he had punched her, put his hand in her mouth, bit her nose, threw her on the ground, and threatened to kill her if she reported the incident to the police. The victim sustained a bruise on her leg and a cut on her nose.
About 4:00 a.m. on January 27, 2009, defendant called his then-girlfriend, D. C., on her mobile phone. They had previously argued; he was angry because she had contracted a sexually transmitted disease and she wanted to view his MySpace page. She heard his voice and hung up without answering. Shortly thereafter, she heard someone trying to enter her bedroom through the windows. She grabbed a knife from her dresser and minutes later, someone tried to open her bedroom door. It was locked. Then someone knocked on the bedroom door. She opened the door, still holding the knife. Defendant was there and wanted to talk. She let him in her bedroom. He then borrowed her phone, left the house, made a call and, less than five minutes later, returned to her bedroom. When she tried to leave to go to the bathroom, he pushed her back. He was angry. He ordered her to put the knife on the bed and when she did, he grabbed it. He accused her of cheating on him and hit her with a yardstick about seven times. He then tied up her hands and legs with scarves. He hit her with the yardstick until it broke. He threatened to "burn a bitch that would burn me" and told her she could not leave.
About 6:30 a.m., the victim heard her roommates getting up. Defendant ordered the victim to her car after untying her. He drove them around for about 30 minutes during which he hit her four or five times with his fist. When they saw a police car, defendant grabbed the knife and threatened, "'Don't even think about it.'" They stopped at a house under construction for about 30 minutes during which defendant hit ...