P. v. Castro
Filed 11/7/13
P. v. Castro CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JIMMY OMAR CASTRO,
Defendant and
Appellant.
F066049
(Super.
Ct. No. F12904940)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Gary R. Orozco, Judge.
Lynette
Gladd Moore, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
Defendant Jimmy
Omar Castro was convicted by jury of evading an officer, a felony (Veh. Code, § 2800.2,
subd. (a); count 1), and resisting an officer, a misdemeanor (Pen. Code, § 148,
subd. (a)(1);
title="">[1] count 2), based on a high speed car chase by
two different patrol vehicles. The trial
court sentenced defendant to two years on the evading count, plus one year for
a prior prison term (§ 667.5, subd. (b)).
On the resisting count, the court awarded credit for time served to
satisfy the sentence. The court also
awarded 237 days’ presentence credit.
On appeal,
defendant contends (1) the trial court should have stayed the sentence on the
resisting count pursuant to section 654, (2) the trial court miscalculated his
days of credit, and (3) the abstract of judgment reflects an incorrect
offense. We will stay the sentence on
count 2 and order the abstract of judgment amended. We will affirm as modified.
DISCUSSION
I. Section 654
Defendant
contends section 654 bars separate punishment for the evading and resisting
counts because the prosecutor’s theory did not distinguish between the conduct
supporting the two counts. The People
concede the sentence on the resisting count must be stayed.
Section
654, subdivision (a) provides in relevant part:
“An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.†“Section 654 precludes multiple
punishment for a single act or omission, or an indivisible course of
conduct.†(People v. Deloza
(1998) 18 Cal.4th 585, 591.) “If … a
defendant suffers two convictions, punishment for one of which is precluded by
section 654, that section requires the sentence for one conviction to be
imposed, and the other imposed and then stayed.†(Id. at pp. 591-592.)
While
arguing this case to the jury, the prosecution did not distinguish between the
conduct comprising the two offenses, and she identified the same officer as
being involved in both offenses. Because
it would have appeared to the jury that the offenses were based on the same
conduct, we accept the People’s concession and will modify the judgment
accordingly.
II. Credits
Defendant
argues that he should have been granted one more day of actual custody to
account for a partial day, for a total of 119 actual days. The People respond that the trial court did
correctly grant 119 actual days and 118 days of custody credit, although the
abstract of judgment incorrectly reflects the opposite. We agree with the People that the trial court
granted 119 actual days’ credit. We will
order the abstract corrected.
III. Abstract of Judgment
Defendant
correctly points out that the abstract of judgment reflects an incorrect
offense. The People note that the
abstract also erroneously reflects that defendant pled guilty to count 1. We will order these corrections as well.
DISPOSITION
The
judgment is modified to stay the sentence on count 2 for resisting arrest. The clerk of the superior court is directed
to amend the abstract of judgment to reflect that (1) the conviction on
count 1 for evading an officer was a violation of Vehicle Code
section 2800.2, subdivision (a), not Vehicle Code section “2800.0(a),â€
(2) the conviction on count 1 for evading an officer was by jury trial,
not guilty plea, and (3) defendant received 119 days of actual credit and
118 days of conduct credit. As modified,
the judgment is affirmed.
name="_ftn1" title="">* Before Cornell, Acting P.J., Kane, J. and Franson, J.
name="_ftn2" title="">[1] All statutory references are to the Penal Code unless
otherwise noted.
