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Filed 7/18/16 P. v Harding CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent,

v. KATHLEEN ANN HARDING, Defendant and Appellant. A146249
(Contra Costa County Super. Ct. No. 0 5

- 140999

- 4)

Kathleen Harding was charged with driving while under the influence with injury ( Veh. Code
, § 23153, subd. (a) ) and r eckless driving causing great bodily injury ( id., §§ 23103, subd. (a) , 231 05 )

. She waived jury trial and was convicted of both offenses after submission to the court on documentary evidence and stipulated facts. She challenges here only the trial court’s decision to impose, rather than stay, a concurrent
sentence for reckless driving causing great bodily injury. The People agree. We do as well, and remand for resentencing.

I. B ACKGROUND AND P ROCEDURAL H ISTORY The facts are not disputed, and we recite them only briefly. On May 5, 2013, Harding was observed by several individuals driving erratically on I nterstate
H ighway 680. She was under the influence of multiple prescription medications. As other cars attempted to avoid Harding’s vehicle, another motorist was forced up an embankment and her vehicle overturned. Har ding continued without stopping. She was later apprehended by police on a freeway off

- ramp. As a resu lt of the accident, the victim suffered a coma with brain injury and permanent paralysis.2

Harding was charged by information with driving while under th e influence with injury ( Veh. Code, § 23153, subd. (a) ; count 1 ) and with reckless driv ing causing great bodily injury (§§ 23103, subd. (a) , 23105 ; count 2 )

. As to c ount 1 it was alleged Harding inflicted great bodily injury resulting in brain injury and paralysis

. ( Pen. Code § 12022.7, subd. (b).) Harding waived jury trial and agreed to submit the matter to the court on documentary evidence and stipulated facts. She was found guilty of both charges and the sentencing enhancement was found to be true. At sentencing, t he court denied Harding’s motions to dismiss or strike the g reat bodily injury enhancement. The court imposed a
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- month mitigated prison term on c ount 1 , with a consecutive five

- year term for the great bodily injury enhancement

. The c ourt imposed a concurrent three

- year term on

c ount 2

. Harding filed a timely notice of appeal.
II. D ISCUSSION As noted, Harding challenges on ly the court’s decision t o impose a concurrent
term for c ount 2
, reckless driving causing great bodily injury

. P enal Code section 654 prohibits multiple punishment for a singular course of conduct , even if it violates more
than one statute

. 1 ( People v. Latimer (1993) 5 Cal.4th 1203, 1207

– 1208. ) Harding ’s
vi olation of Vehicle Code sections 23103, subdivision (a)
, and 23105

— reckless driving with injury

— wa s based on the same conduct as her conviction and sentence for driving under the influence and causing great bodily injury. As the trial court observed at the sentencing hearing, the crimes here “are not independe nt of each other, it’s basically the same conduct charged under different statutes

. ” Penal Code s ection 654 does not permit the imposition of a concurrent sentence : “ ‘ [T]he imposition of concurrent sentences is precluded by section 654 [citations] becau se the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously. [Citation.] Instead,

1 “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.

. . . ” (Pen. Code, § 654, subd. (a).)3

the accepted procedure is to sentence defendant for each count and stay execution of
sentence on certain of the convict ions to which section 654 is applicable. ’ ” ( People v.
Jones (2012) 54 Cal.4th 350, 353 .) The People appropriatel y concede that the sentence

on c ount 2 must be stayed, and agree that the matter must be remanded for that purpose.
III. D ISPOSITION The mat ter is remanded for resentencing . On remand the court sha ll stay the term imposed on c ount 2 , pursuant to Penal Code section 654, and the clerk of the court shall prepare an amended abstract of judgment.

_________________________ Bru iniers, J.

We concur:

_________________________ Jones, P.J.

_________________________ Needham, J.