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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.



                                             2.
requires the sentence for one conviction to be imposed, and the other imposed and then
stayed.” (Id. at pp. 591-592.)
       While arguing this case to the jury, the prosecution did not distinguish between the
conduct comprising the two offenses, and she identified the same officer as being
involved in both offenses. Because it would have appeared to the jury that the offenses
were based on the same conduct, we accept the People’s concession and will modify the
judgment accordingly.
II.    Credits
       Defendant argues that he should have been granted one more day of actual custody
to account for a partial day, for a total of 119 actual days. The People respond that the
trial court did correctly grant 119 actual days and 118 days of custody credit, although the
abstract of judgment incorrectly reflects the opposite. We agree with the People that the
trial court granted 119 actual days’ credit. We will order the abstract corrected.
III.   Abstract of Judgment
       Defendant correctly points out that the abstract of judgment reflects an incorrect
offense. The People note that the abstract also erroneously reflects that defendant pled
guilty to count 1. We will order these corrections as well.
                                      DISPOSITION
       The judgment is modified to stay the sentence on count 2 for resisting arrest. The
clerk of the superior court is directed to amend the abstract of judgment to reflect that
(1) the conviction on count 1 for evading an officer was a violation of Vehicle Code
section 2800.2, subdivision (a), not Vehicle Code section “2800.0(a),” (2) the conviction
on count 1 for evading an officer was by jury trial, not guilty plea, and (3) defendant
received 119 days of actual credit and 118 days of conduct credit. As modified, the
judgment is affirmed.




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