P. v. Harding CA1/5 ( 2016 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A146249
v.
KATHLEEN ANN HARDING, (Contra Costa County
Super. Ct. No. 05-140999-4)
Defendant and Appellant.
Kathleen Harding was charged with driving while under the influence with injury
(Veh. Code, § 23153, subd. (a)) and reckless driving causing great bodily injury (id.,
§§ 23103, subd. (a), 23105). 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. BACKGROUND AND PROCEDURAL HISTORY
The facts are not disputed, and we recite them only briefly. On May 5, 2013,
Harding was observed by several individuals driving erratically on Interstate
Highway 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. Harding continued without stopping. She was
later apprehended by police on a freeway off-ramp. As a result of the accident, the victim
suffered a coma with brain injury and permanent paralysis.
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Harding was charged by information with driving while under the influence with
injury (Veh. Code, § 23153, subd. (a); count 1) and with reckless driving causing great
bodily injury (§§ 23103, subd. (a), 23105; count 2). As to count 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, the court denied Harding’s
motions to dismiss or strike the great bodily injury enhancement. The court imposed a
16-month mitigated prison term on count 1, with a consecutive five-year term for the
great bodily injury enhancement. The court imposed a concurrent three-year term on
count 2. Harding filed a timely notice of appeal.
II. DISCUSSION
As noted, Harding challenges only the court’s decision to impose a concurrent
term for count 2, reckless driving causing great bodily injury. Penal 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
violation of Vehicle Code sections 23103, subdivision (a), and 23105—reckless driving
with injury—was 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 independent of each other, it’s basically the
same conduct charged under different statutes.” Penal Code section 654 does not permit
the imposition of a concurrent sentence: “ ‘[T]he imposition of concurrent sentences is
precluded by section 654 [citations] because the defendant is deemed to be subjected to
the term of both sentences although they are served simultaneously. [Citation.] Instead,
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“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).)
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the accepted procedure is to sentence defendant for each count and stay execution of
sentence on certain of the convictions to which section 654 is applicable.’ ” (People v.
Jones (2012) 54 Cal.4th 350, 353.) The People appropriately concede that the sentence
on count 2 must be stayed, and agree that the matter must be remanded for that purpose.
III. DISPOSITION
The matter is remanded for resentencing. On remand the court shall stay the term
imposed on count 2, pursuant to Penal Code section 654, and the clerk of the court shall
prepare an amended abstract of judgment.
_________________________
Bruiniers, J.
We concur:
_________________________
Jones, P.J.
_________________________
Needham, J.
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