Summersville

A jury found Byron Summersville guilty of the second degree murder (Pen. Code, § 187, subd. (a)) of Timothy Burke with personal knife use (§ 12022, subd. (b)) (count 1) and assault with a deadly weapon (§ 245, subd. (a)(1)) on Alberto Fox with personal knife use and personal infliction of great bodily injury (§ 12022.7) (count 2). The court sentenced him to twenty-three years to life in prison: on count 2, the four-year upper term for assault with a deadly weapon, a consecutive three-year term for personal infliction of great bodily injury, and a stayed term for knife use; and on count 1, consecutive terms of fifteen years to life for second degree murder and one year for knife use.

Summersville appeals, contending his second degree murder conviction, under an aiding and abetting theory, must be reversed because the principal was convicted of first degree murder while Summersville was acquitted of first degree murder; the court erroneously imposed the knife use enhancement on count 2 because personal weapon use is an element of assault with a deadly weapon; the knife use enhancement on count 1 punishes him for an act for which he was punished under count 2, in…