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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent,

v. JIMMY OMAR CASTRO, Defendant and Appellant. F066049 (Super. Ct. No. F12904940)



### OPINION

THE COURT * APPEAL from a judgment of the Superi or Court of Fresno County. Gary R. Orozco, Judge. Lynette Gladd Moore, under appointmen t by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Atto rney General, and Ka thleen A. McKenna, Deputy Attorney Ge neral, for Plaintiff and Respondent.
-ooOoo-

* Before Cornell, Acting P.J., Kane, J. and Franson, J.2. Defendant Jimmy Omar Castro was convict ed by jury of evading an officer, a felony (Veh. Code, § 2 800.2, subd. (a); count 1), and re sisting an officer, a misdemeanor (Pen. Code, § 148, subd. (a)(1); 1 count 2), based on a hi gh speed car chase by two different patrol vehicles. The trial court se ntenced 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 sa tisfy the sentence. The court also awarded 237 days’ presentence credit. On appeal, defendant contends (1) the tria l 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 reflec ts an incorrect offens e. 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 se parate punishment for the evading and resisting counts because the prosecutor’s theo ry did not distinguis h 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 re levant part: “An act or omission that is punishable in different ways by different pr ovisions of law shall be punished under the provision that provides for the longest pote ntial term of imprisonm ent, but in no case shall the act or omission be punished unde r more than one provision.” “Section 654 precludes multiple punishment for a single act or omission, or an i ndivisible 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 secti on 654, that section

1 All statutory references are to the Penal Code unless otherwise noted.3. 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, th e prosecution did not di stinguish between the conduct comprising the two offenses, and sh e identified the same officer as being
involved in both offenses. Because it would ha ve appeared to the ju ry 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, fo r a total of 119 actual days. The People respond that the trial court did correctly grant 119 actual days and 118 days of custo dy credit, although the abstract of judgment incorrec tly reflects the opposite. We ag ree 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 ou t 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 or der these corrections as well.
DISPOSITION The judgment is modified to stay the se ntence on count 2 for resisting arrest. The clerk of the superior court is directed to am end 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 C ode 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 cr edit and 118 days of conduct credit. As modified, the judgment is affirmed.