P. v. Gueyger
Defendants Ernesto Gueyger and Rudy Ponce, along with Sergio Bravo,[1] stole cigarettes and snacks from a 7-Eleven store. A jury found Gueyger and Ponce guilty of commercial burglary (Pen. Code,[2] § 459), and petty theft with a prior (§ 666). Gueyger was the getaway driver; he led police on a high-speed chase, rammed a patrol car, and fled again before the police apprehended him. In addition to the burglary and theft charges, Gueyger was also found guilty of robbery (§ 211), being an accessory after the fact (§ 32), recklessly evading the police (Veh. Code, § 2800.2), and assault with a deadly weapon (his car) on a peace officer (§ 245, subd. (c)). Ponce had also participated in the robbery of a different 7-Eleven store two days before. As to that incident, the jury found him guilty of robbery (§ 211) and petty theft with a prior (§ 666).
Gueyger and Ponce contend their convictions for petty
theft with a prior (§ 666) must be reduced to misdemeanor
theft because a section 666 conviction now requires three prior theft-related convictions, which neither defendant has suffered. Further, they contend they did not personally waive jury on the priors. The People concede that under a new amendment to section 666, which is retroactive, the section 666 convictions cannot stand and must be reduced to misdemeanor theft.
Gueyger further contends, and the People concede, that he cannot be convicted of robbery and being an accessory after the fact for simply driving away after the robbery, and that the abstracts of judgment must be corrected to show that credits were awarded pursuant to section 2933.1 rather than section 4019. As we will explain, we agree with the parties on these points.
Gueyger also argues that section 654 bars a separate sentence on reckless evading because it was part of a continuous course of conduct, with the same intent and objective, as the assault. Although the People do not agree with Gueyger on this point, we do. Finally, we construe the notation on the abstract of judgment that Gueyger’s driver’s license was suspended for life to be acknowledgement that his license will be revoked by the Department of Motor Vehicles pursuant to Vehicle Code section 13351.5 because he used a motor vehicle as a deadly weapon in the felony assault and we remand for the trial court to add this explicit finding to the abstract of judgment.
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