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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,

v.

THOMAS HYONG TAE CHO,

 Defendant and Appellant.

 G047006

 (Super. Ct. No. 07NF1324)

 O P I N I O N

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.
2

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. 
3

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. 
4

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.