P. v. Cho

 

 

 

 

 

 

 

 

 

 

 

 

Filed 7/29/13  P. v. Cho CA4/3

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   THOMAS HYONG TAE CHO,         Defendant and Appellant.

G047006            (Super. Ct. No. 07NF1324)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, James

Edward
Rogan, Judge.  Affirmed in part, reversed
in part and remanded.

                        Jean Ballantine, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Susan Miller and Anthony Da Silva, Deputy
Attorneys General, for Plaintiff and Respondent.

 

                        Appellant
led police on a high-speed chase during which his passenger fired several shots
at a pursuing squad car.  He was
convicted of four crimes and sentenced to thirteen years in prison.  He does not challenge his underlying convictions
but contends his sentence is erroneous in three respects.  We vacate his sentence and remand for
resentencing but otherwise affirm the judgment. 


DISCUSSION

                        On the substantive
offenses, the court gave appellant eight years for assaulting a police officer
with a firearm.  (Pen. Code, § 245,
subd. (d)(1).)href="#_ftn1" name="_ftnref1"
title="">[1]  Pursuant to section 654, the court stayed his
sentences for shooting from and at a motor vehicle. 

(§§ 12034,
subd. (d) & 246.)  And for the crime
of recklessly evading the police, the court gave appellant a concurrent
sentence of three years.  (Veh. Code, §
2800.2.) 

                        As
to all four offenses, the jury found true a one-year enhancement allegation
that appellant was armed with firearm. 
(§ 12022, subd. (a)(1).) 
With regard to the first three offenses, the court stayed the
enhancement under section 654.  However,
on the reckless evasion count, the ordered the enhancement to run consecutively
to that count.  The court also gave
appellant four years for having served four prior prison terms.  (§ 667.5, subd. (b).)

                        It is undisputed that
imposition of the one-year firearm
enhancement on the reckless evasion count was improper.  Because the court imposed a >concurrent sentence on that count, it
could not impose a consecutive
enhancement.  (People v. Bui (2011)

192
Cal.App.4th 1002, 1016.)  In curing this
error on remand, the trial court is free to restructure appellant’s sentence to
ensure it is commensurate with his culpability. 
However, the court must keep in mind that href="http://www.mcmillanlaw.com/">double jeopardy principles generally
prohibit the imposition of a greater sentence on remand following an
appeal.  (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.)

                        It is also apparent the
trial court miscalculated appellant’s presentence conduct credits.  The issue is complicated by a change in
section 4019 that became effective on October 1, 2011, while appellant was in
custody prior to sentencing.

Appellant
contends that, from that date on, he was entitled to receive conduct credit at
the rate of one day for every day spent in custody.  However, as we explained in >People v. Rajanayagam (2012) 211
Cal.App.4th 42, an opinion which was filed after sentencing in this case, the
determinative factor in deciding entitlement to one-for-one conduct credit is
the date of the defendant’s crimes, not the dates he spent in custody prior to
sentencing.  (Id. at pp. 47-56.) 

                        Appellant
claims Rajanayagam was wrongly
decided but we disagree and direct the trial court to follow it on remand.  Since appellant’s crimes all occurred prior
to October 1, 2011, he is not entitled to one-for-one conduct credits but
“one-for-two conduct credits, which is two days for every four days of actual
time served in presentence custody. 
[Citation.]”  (>People v. Rajanayagam, supra, 211
Cal.App.4th at p. 48.)

                        People v. Jones (2012) 54 Cal.4th 350 is another relevant case
decided after appellant was sentenced. 
It discusses the parameters of section 654 and is pertinent to
appellant’s claim section 654 requires his sentence for reckless evasion be stayed.  In particular, Jones examines the issue of when the commission of multiple crimes
constitutes a single act for purposes of section 654 and thus may not be
punished separately.  (>Id. at pp. 353-360.)  Because the trial court did not have the
benefit of the Jones decision at the
time of sentencing, the court shall consider its application in resentencing
appellant.   

                                                                        DISPOSITION

                        Appellant’s
sentence is vacated and the matter is remanded for resentencing consistent with
the views expressed herein.  In all other
respects, the judgment is affirmed.

 

 

                                                                                    BEDSWORTH,
J.

 

WE CONCUR:

 

 

 

O’LEARY, P.
J.

 

 

 

THOMPSON, J.