Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA315710, Bob S. Bowers, Jr., Judge. Affirmed as modified.
Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury found defendant and appellant Marcos Magana guilty of count 1, assault on a peace officer, and of count 2, assault with a deadly weapon. The trial court sentenced him to four years on count 1 and to a concurrent three-year term on count 2. Defendant contends on appeal, the People concede, and we agree that the sentence on count 2 should have been stayed under Penal Code section 654. We therefore modify the judgment, and affirm it as modified.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
On August 30, 2006, Officer Gina Leandro was at an intersection writing a traffic citation. Her clearly marked black and white police car was parked behind the car of the motorist she had stopped. The police car was “a little offset” from the curb. Officer Leandro was in full uniform.
While giving the citation, Officer Leandro heard a honk and a car accelerate. She saw a car, driven by defendant, accelerating towards her. Defendant’s car was in the No. 1 lane, and the officer’s car was in the No. 2 lane closest to the curb, but defendant changed lanes so that he too was in the No. 2 lane. Believing that defendant’s car was coming directly at her, Officer Leandro handed the motorist the citation and moved her body closer to the parked car. Defendant’s car went past her, pushing “onto the back of” her buttocks area, leaving a mark on her pants.
Officer Leandro got into her car and followed defendant. He accelerated and turned into a residential driveway. Defendant got out of the car and ran, although the officer told him to stop. Patricia Quiroa, defendant’s girlfriend and a passenger in his car, was taken into custody. She told Officer Leandro that defendant was “just showing off.”
Defendant told the investigating detective that he had just bought the car and was showing off for his girlfriend. He saw Officer Leandro writing the citation so he accelerated and drove by her. He believed he rubbed against her.
II. Procedural background.
On May 8, 2007, a jury found defendant guilty of count 1, assault upon a peace officer (§ 245, subd. (c)), and of count 2, assault with a deadly weapon (§ 245, subd. (a)(1)). On July 29, 2007, the trial court sentenced defendant to four years in prison on count 1. The court sentenced defendant to a concurrent term of three years on count 2.
DISCUSSION
Defendant raises one issue on appeal: The trial court should have stayed the sentence on count 2 under section 654. We agree.
Section 654, subdivision (a), provides in pertinent 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 therefore ‘ “precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.’ [Citations.] ‘ If all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” [Citation.]’ ” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
The evidence here shows that defendant committed a single act, an assault on a single victim, Officer Leandro. Therefore, as the People concede, the three-year sentence imposed on count 2 should be stayed under section 654.
DISPOSITION
The Clerk of the Superior Court is directed to modify the abstract of judgment and to forward the modified abstract to the Department of Corrections. The judgment is affirmed as modified.
We concur:
KLEIN, P. J. KITCHING, J.