P.

I. INTRODUCTION

A jury convicted defendant, Andrew Thomas Aguilar, of assault with force likely to produce great bodily injury. (Pen. Code,1 § 245, subd. (a)(1)). Defendant admitted a prior serious felony allegation was true. (§§ 667, subds. (b)-(i), 1170.12.) He was sentenced to 8 years in state prison. We modify defendant‟s presentence custody credit and affirm the judgment as modified.

II. DISCUSSION

A. Force Likely To Produce Great Bodily Injury

Defendant assaulted Diego Sparling. Mr. Sparling was defendant‟s ex-girlfriend‟s current boyfriend. The assault began when defendant and two others “rushed” Mr. Sparling. Mr. Sparling retreated from the front to the back yard of a house. Defendant‟s ex-girlfriend, Athena Scott, saw defendant on top of Mr. Sparling. Defendant was swinging at Mr. Sparling‟s face and chest. Maria Robles also observed the altercation. Mr. Sparling was kneeling down. Defendant was hitting him. Defendant was swinging and connecting with Mr. Sparling‟s back or neck. Mr. Sparling was not fighting back. Roberto Pichardo saw Mr. Sparling at the hospital a few days later. Mr. Sparling had bruises and red marks on his head and face. Defendant concedes the…