Vacca

Larry Jack Vacca appeals from the judgment entered following a jury trial that resulted in his conviction of assault with a firearm on a peace officer in which he personally used a firearm (Pen. Code, §§ 245, subd. (d)(1), 12022.5). He contends: “I. The trial court erred by failing to exercise its discretion as to whether to impose the firearm use enhancement^] [^Q II. The trial court erred in selecting the upper terms for the substantive offense and the enhancement[.] [*]D III. The trial court erred in its determination of the presentence custody credits[.]” We affirm.

On June 14, 1994, Ventura County Deputy Sheriff Joe Evans was sitting . in his parked vehicle in a residential area when he heard what sounded like a gunshot. He saw a woman cringing in a telephone booth and appellant walking down the street. Deputy Evans drove near appellant and called out: “Sheriff’s Department, come here." Appellant fled and Deputy Evans pursued him on foot. Appellant ran up a driveway, turned, and fired a shot in the direction of Deputy Evans. Deputy Evans radioed for assistance and appellant was apprehended. A .38-caliber handgun was found approximately 15 feet from appellant.

At…