People v. Johnston CA5

Filed 7/29/14 P. v. Johnston 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F067360 Plaintiff and Respondent, (Super. Ct. No. CRM012905A) v.

TYRONE KENTE JOHNSTON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Rex A. Williams, 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, Catherine Chatman and Raymond L. Brosterhous, II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Detjen, J. and Franson, J.

A jury convicted appellant Tyrone Kente Johnston of two felonies, viz. transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a); count 1) and possession of cocaine base for purposes of sale (Health & Saf. Code, § 11351.5; count 2), and misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1); count 3). In a separate proceeding, appellant admitted an enhancement allegation that he had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). The court imposed a five-year county jail term, consisting of four years on count 1 and one year on the prior prison term enhancement. On counts 2 and 3, the court imposed concurrent county jail terms of four years and six months, respectively. On appeal, appellant argues (1) that the evidence was insufficient to support his two felony convictions, and, alternatively, (2) that imposition of sentence on count 2 violated the Penal Code section 654 (section 654) proscription against multiple punishment. We reject appellant’s first contention, find merit in the second, modify the judgment accordingly, and otherwise affirm. FACTS At approximately 4:00 p.m., on September 22, 2010, Merced Police Officers Cruz Jasso and Reynaldo Alvarez were traveling in a marked patrol car through a residential area when they saw a brown sport utility vehicle (SUV). Alvarez testified he recognized the passenger in the SUV as a gang member and parolee “with search terms,” and directed Cruz, who was driving, to stop the vehicle. As Cruz made a U-turn to pull in behind the vehicle, Alvarez informed him that one of the vehicle’s brake lights was not functioning, and, Jasso testified, shortly thereafter he “initiated a traffic stop.” The SUV pulled over and stopped, and appellant, who was driving, got out, ran off and jumped over a fence into a backyard. Alvarez gave chase. At one point in the pursuit, no more than two minutes after appellant initially fled from the car, Alvarez saw appellant standing “within inches” of some recycling bins next to a fence in the front yard of a house. The two made eye contact and appellant ran off