People v. Tapia CA4/3

Filed 1/9/15 P. v. Tapia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G048757

v. (Super. Ct. No. 12HF2499)

GASTON LEOBARDO TAPIA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed in part, reversed in part and remanded. Dacia A. Burz, 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, Charles C. Ragland, Robin Urbanski and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was convicted of recklessly evading the police, hit and run with property damage, and driving with a revoked license. On appeal, he contends one of his defense witnesses was subjected to improper impeachment, and there is insufficient evidence he knew his license had been revoked. Although we disagree with those contentions, it does appear that appellant was improperly sentenced. Therefore, we will vacate his sentence and remand the matter for a new sentencing hearing. In all other respects, we affirm the judgment. FACTS On the afternoon of August 22, 2012, CHP Officer Sandro Kitzmann noticed appellant driving approximately 80 m.p.h. on the I-5 Freeway in Orange County. Kitzmann activated his overhead lights to initiate a traffic stop, but instead of pulling over, appellant sped up and led Kitzmann on a high-speed chase. At one point during the pursuit, appellant clipped the back of another vehicle and spun out of control. However, before Kitzmann was able to apprehend him, he restarted his vehicle and took off again. Although Kitzmann resumed the chase, he lost sight of appellant after appellant exited the freeway in San Clemente. Later that day, Kitzmann ran a records check and determined the vehicle appellant had been driving was registered in appellant’s name, and appellant’s driver’s license was revoked. Kitzmann also accessed appellant’s DMV photo and determined it looked like the person he had chased on the freeway. At trial, Kitzmann testified he was “100 percent confident” appellant was that person. Appellant’s defense was alibi. Although he did not testify at trial, his attorney claimed appellant was at work when the chase occurred. To support that claim, the defense presented testimony from Sheila Case and Richard McCaskill, a mother-son team who head up an online marketing company. They testified appellant was working at their company in San Diego at the time of the alleged crimes. While Case’s testimony