P. v. Cho CA4/3

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G047006

v. (Super. Ct. No. 07NF1324)

THOMAS HYONG TAE CHO, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of 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).)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 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.)