People v. Castro CA5

Filed 11/7/13 P. v. Castro CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F066049 Plaintiff and Respondent, (Super. Ct. No. F12904940) v.

JIMMY OMAR CASTRO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Gary R. Orozco, Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Kane, J. and Franson, J.

Defendant Jimmy Omar Castro was convicted by jury of evading an officer, a felony (Veh. Code, § 2800.2, subd. (a); count 1), and resisting an officer, a misdemeanor (Pen. Code, § 148, subd. (a)(1);1 count 2), based on a high speed car chase by two different patrol vehicles. The trial court sentenced defendant to two years on the evading count, plus one year for a prior prison term (§ 667.5, subd. (b)). On the resisting count, the court awarded credit for time served to satisfy the sentence. The court also awarded 237 days’ presentence credit. On appeal, defendant contends (1) the trial court should have stayed the sentence on the resisting count pursuant to section 654, (2) the trial court miscalculated his days of credit, and (3) the abstract of judgment reflects an incorrect offense. We will stay the sentence on count 2 and order the abstract of judgment amended. We will affirm as modified. DISCUSSION I. Section 654 Defendant contends section 654 bars separate punishment for the evading and resisting counts because the prosecutor’s theory did not distinguish between the conduct supporting the two counts. The People concede the sentence on the resisting count must be stayed. Section 654, subdivision (a) provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) “If … a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section 1 All statutory references are to the Penal Code unless otherwise noted.