People v. Gallardo CA5

California Court of Appeal Jan 25, 2016 No. F069476Unpublished

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Holding. The court held that the trial court did not violate Penal Code section 654 by imposing a concurrent sentence for evading an officer in addition to sentences for assault, as the defendant harbored multiple criminal objectives and the conduct was not an indivisible course of action.

Issues

Whether the trial court violated Penal Code section 654 by imposing a concurrent sentence for evading an officer when the defendant also committed assaults during the same course of conduct.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal.”

“Gallardo had ample time while evading the officers to reflect on his conduct and pull over before he assaulted any of them.”

“we conclude that section 654 did not bar the court from imposing separate punishment on Gallardo’s evading offense apart from that imposed on his assault offenses.”

Filed 1/25/16 P. v. Gallardo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069476 Plaintiff and Respondent, (Super. Ct. No. F10300870) v.

LUIS ARMANDO GALLARDO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Caitlin U. Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

A jury convicted appellant Luis Armando Gallardo of evading an officer (count 3/Veh. Code, § 2800.2, subd. (a)) and two counts of assault with a deadly weapon (counts 1 & 2/Pen. Code, § 245, subd. (a)(1)).1 On May 30, 2014, the court sentenced Gallardo to a five-year prison term, the upper term of four years on one assault conviction, a one-year term on his second assault conviction (one-third the middle term of three years) and a concurrent two-year term on his evading an officer conviction. On appeal, Gallardo contends his sentence on the evading an officer conviction violates section 654’s proscription against multiple punishment. 2 We affirm. FACTS On December 27, 2009, at approximately 2:30 a.m., Kerman Police Sergeant Peter Magallon was in a marked patrol car traveling westbound on Stanislaus when he saw a man, later identified as Gallardo, driving a Mazda ahead of him. At the intersection with Madera Avenue, Gallardo ran a red light. Sergeant Magallon activated his overhead lights and Gallardo started accelerating away from him travelling 45 to 50 miles per hour in a residential area where the posted speed limit was 25 miles per hour. At First Street, Gallardo failed to stop at a stop sign and turned north. At San Joaquin Avenue, Gallardo turned east and drove to Madera Avenue where he turned south without stopping at a stop sign. At the intersection of Sunset and Madera Avenue, Gallardo turned off the Mazda’s headlights, crossed over into the northbound lanes, and began driving southbound against traffic. Sergeant Barcoma heard Sergeant Magallon broadcast on the radio that he was attempting to stop a vehicle that refused to stop and drove to the area with his overhead

People v. Gallardo CA5

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