People v. Reyes CA4/1

Filed 10/24/24 P. v. Reyes CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D083326

Plaintiff and Respondent,

v. (Super. Ct. No. SCE416866)

MIGUEL ANGEL REYES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Daniel G. Lamborn, Judge. Affirmed as modified. Jennifer M. French, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION A jury convicted Miguel Angel Reyes of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 1) and of driving while having a

measurable blood alcohol concentration of 0.08 percent or more (§ 23152(b); count 2), and for each count found Reyes had a measurable blood alcohol concentration of 0.15 percent or more. The two counts arose from the same act, so the trial court sentenced Reyes to a two-year prison term for count 1 and stayed count 2 without imposing a sentence. On appeal, Reyes contends, and the People concede, the trial court erred by not imposing a sentence on count 2 before staying it as required under Penal Code section 654. The parties, however, disagree on the appropriate remedy. Reyes asks us to impose the missing sentence for count 2, while the People ask us to remand to the trial court for resentencing. We agree with Reyes that remand is not necessary here. Accordingly, we modify the judgment to impose the middle term of two years on count 2, which remains stayed under section 654, and otherwise affirm the judgment by memorandum opinion. (See People v. Garcia (2002) 97 Cal.App.4th 847.) Penal Code section 654 applies to defendants convicted of multiple counts arising out of the same act, ensuring they are not punished multiple times for one act. (§ 654, subd. (a).) “[W]hen a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1466.) When, as here, the facts are undisputed, we review de novo the application of section 654 and questions of law. (People v. Corpening (2016) 2 Cal.5th 307, 312.) Here, the trial court should have—but did not—impose a sentence for count 2 before staying it. The trial court correctly found section 654 applied because “both charges relate to the same act of driving, so the term on one of the counts was required to be stayed.” (People v. Toure (2015)