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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 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. 
2. 

 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. 
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, 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.