People v. Bibbs CA3

Filed 10/18/13 P. v. Bibbs CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin)

THE PEOPLE, C069559

Plaintiff and Respondent, (Super. Ct. No. SF116945A)

v.

TOMMY LEE BIBBS,

Defendant and Appellant.

A jury found defendant Tommy Bibbs guilty of: evading an officer while operating a motor vehicle with willful or wanton disregard for the safety of persons or property (count 1; Veh. Code, § 2800.2); failing to stop at the scene of an accident with property damage (count 4; Veh. Code, § 20002, subd. (a)); driving while under the influence (DUI) of alcohol and/or drugs (count 5; Veh. Code, § 23152, subd. (a)); and driving while under the influence of amphetamine (count 6; Health & Saf. Code,

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§ 11550, subd. (a)). The jury also found defendant guilty of the lesser charge in count 3 of vandalism of property valued under $400, a misdemeanor. Defendant argues that his 180-day sentence for failing to stop at the scene of an accident should have been stayed pursuant to Penal Code section 654, that $160 in fines and fees must be stricken because the court did not detail them in its oral pronouncement of sentence, and that he was entitled to an additional day of custody credit and 88 additional days of conduct credit.1 We shall conclude that defendant’s section 654 argument is moot because the length of the sentence on count 4 was less that defendant’s presentence credit, that the court included all fees and fines in its oral pronouncement, but that defendant is entitled to additional presentence credit. We shall order to trial court to modify defendant’s presentence credits, but shall otherwise affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Deputy Michael Powell of the San Joaquin County Sheriff’s Office was called to a home on West Highway 4 on a report of a suspicious white station wagon parked in the driveway. On the way to the house, he saw a vehicle matching the description he had been given parked on the side of John Turk Road, just north of Highway 4. He passed the car then made a U-turn to pull up to it. As he did so, the car took off. Deputy Powell was able to identify defendant as the driver of the station wagon. Emuna Mohammed was sitting in the passenger seat of the station wagon. Deputy Powell followed defendant with his flashing lights and siren on. Defendant was travelling around 90 miles per hour. The speed limit was 50 or 55 and there was other traffic in the area. Defendant passed a car on the right that he had been tailgating. That car moved to the right to avoid defendant, and an accident almost