Filed 7/29/13 P. v. Cho 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,                                         G047006

         v.                                                            (Super. Ct. No. 07NF1324)

THOMAS HYONG TAE CHO,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, James
Edward Rogan, Judge. Affirmed in part, reversed in part and remanded.
                   Jean Ballantine, 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, Susan Miller and
Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
              Appellant led police on a high-speed chase during which his passenger
fired several shots at a pursuing squad car. He was convicted of four crimes and
sentenced to thirteen years in prison. He does not challenge his underlying convictions
but contends his sentence is erroneous in three respects. We vacate his sentence and
remand for resentencing but otherwise affirm the judgment.
                                             DISCUSSION
              On the substantive offenses, the court gave appellant eight years for
assaulting a police officer with a firearm. (Pen. Code, § 245, subd. (d)(1).)1 Pursuant to
section 654, the court stayed his sentences for shooting from and at a motor vehicle.
(§§ 12034, subd. (d) & 246.) And for the crime of recklessly evading the police, the
court gave appellant a concurrent sentence of three years. (Veh. Code, § 2800.2.)
              As to all four offenses, the jury found true a one-year enhancement
allegation that appellant was armed with firearm. (§ 12022, subd. (a)(1).) With regard to
the first three offenses, the court stayed the enhancement under section 654. However,
on the reckless evasion count, the ordered the enhancement to run consecutively to that
count. The court also gave appellant four years for having served four prior prison terms.
(§ 667.5, subd. (b).)
              It is undisputed that imposition of the one-year firearm enhancement on the
reckless evasion count was improper. Because the court imposed a concurrent sentence
on that count, it could not impose a consecutive enhancement. (People v. Bui (2011)
192 Cal.App.4th 1002, 1016.) In curing this error on remand, the trial court is free to
restructure appellant’s sentence to ensure it is commensurate with his culpability.
However, the court must keep in mind that double jeopardy principles generally prohibit
the imposition of a greater sentence on remand following an appeal. (People v. Mustafaa
(1994) 22 Cal.App.4th 1305, 1311.)


       1      Unless noted otherwise, all further statutory references are to the Penal Code.


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              It is also apparent the trial court miscalculated appellant’s presentence
conduct credits. The issue is complicated by a change in section 4019 that became
effective on October 1, 2011, while appellant was in custody prior to sentencing.
Appellant contends that, from that date on, he was entitled to receive conduct credit at the
rate of one day for every day spent in custody. However, as we explained in People v.
Rajanayagam (2012) 211 Cal.App.4th 42, an opinion which was filed after sentencing in
this case, the determinative factor in deciding entitlement to one-for-one conduct credit is
the date of the defendant’s crimes, not the dates he spent in custody prior to sentencing.
(Id. at pp. 47-56.)
              Appellant claims Rajanayagam was wrongly decided but we disagree and
direct the trial court to follow it on remand. Since appellant’s crimes all occurred prior to
October 1, 2011, he is not entitled to one-for-one conduct credits but “one-for-two
conduct credits, which is two days for every four days of actual time served in
presentence custody. [Citation.]” (People v. Rajanayagam, supra, 211 Cal.App.4th at
p. 48.)
              People v. Jones (2012) 54 Cal.4th 350 is another relevant case decided after
appellant was sentenced. It discusses the parameters of section 654 and is pertinent to
appellant’s claim section 654 requires his sentence for reckless evasion be stayed.
In particular, Jones examines the issue of when the commission of multiple crimes
constitutes a single act for purposes of section 654 and thus may not be punished
separately. (Id. at pp. 353-360.) Because the trial court did not have the benefit of the
Jones decision at the time of sentencing, the court shall consider its application in
resentencing appellant.




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                                          DISPOSITION
              Appellant’s sentence is vacated and the matter is remanded for resentencing
consistent with the views expressed herein. In all other respects, the judgment is
affirmed.



                                                 BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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