People v. Garcia CA5

Filed 6/24/21 P. v. Garcia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080923 Plaintiff and Respondent, (Super. Ct. No. CR-18-005881) v.

MARIO GARCIA, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Smith, J. and Snauffer, J.

Defendant Mario Garcia, Jr. pled guilty to one count of possession of methamphetamine for sale and was convicted by a jury of four counts of felony child endangerment against his four children. The trial court sentenced him to concurrent terms of six years for each child endangerment count, plus a consecutive term of eight months for the possession for sale count. He contends the trial court erred in failing to stay the eight-month sentence under Penal Code section 654.1 We affirm. STATEMENT OF THE CASE An information charged Garcia with one felony count of possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1) and four felony counts of child endangerment (§ 273a, subd. (a); counts 2—5). All the offenses were alleged to have been committed on the same date. The information further alleged Garcia had served two prior prison terms within the meaning of section 667.5, subdivision (b). Garcia pled guilty to count 1 before trial, and the prosecution dismissed both section 667.5, subdivision (b), allegations. The case proceeded to trial on counts 2 through 5, and the jury convicted Garcia on all four of those counts. The trial court sentenced Garcia to the upper term of six years state prison on count 2 (the first of the four counts of child endangerment in violation of section 273a, subdivision (a)), and to the same term for counts 3 through 5, with each term to be served concurrently. As to count one, the court found section 654 did not apply and sentenced Garcia to eight months (one-third of the midterm) to be served consecutively. STATEMENT OF FACTS Shortly after midnight on August 28, 2018, Stanislaus County Sheriff’s Deputy Caleb Murphy contacted Garcia on the street about two houses away from Garcia’s