P. v. Archuleta

Filed 7/21/06 P. v. Archuleta CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant, Larry Maurice Archuleta, appeals from a grant of probation, contending the trial court improperly conditioned probation on jail time for two convictions arising out of the same act. Defendant argues this condition violates Penal Code section 654 (hereafter, section 654), which proscribes double punishment for the same act. We conclude the trial court acted properly in imposing this condition on defendant's probation.

Background

On September 17, 2004, a California Highway Patrol officer spotted defendant speeding on a stolen motorcycle. Defendant led police on a high-speed chase that ended in a residential neighborhood. Defendant abandoned the motorcycle and hid in a garage. Police discovered and arrested him.

A jury convicted defendant on four counts: count one, unlawfully driving a motor vehicle (Veh. Code, § 10851, subd. (a)); count two, evading a police officer while driving recklessly (Veh. Code, § 2800.2, subd. (a)); count three, resisting arrest (Pen. Code, § 148, subd. (a)(1)); and count four, driving without a license (Veh. Code, § 12500, subd. (a)).

The trial court suspended imposition of sentence and granted defendant probation on the condition that he serve 360 days in county jail on count two and 90 days concurrently for each other count.

Discussion

Defendant contends the trial court erred in ordering him to serve 90 days concurrently with respect to count three. Defendant argues that counts two and three arose out of the same act of fleeing the police, and thus he was punished twice for the same act in violation of section 654.

Several decisions hold that when the imposition of sentence is suspended, section 654 does not apply; the section becomes operative when probation is revoked and sentence imposed. (See e.g., People v. Wittig (1984) 158 Cal.App.3d 124, 137; People v. Stender (1975) 47 Cal.App.3d 413, 424-425; People v. Buice (1964) 230 Cal.App.2d 324, 347; People v. Miranda (1967) 254 Cal.App.2d 517, 524.)

In light of these decisions, we conclude the trial court did not err in conditioning probation on the concurrent jail term for count three after suspending the imposition of sentence. Probation is an act of clemency designed to rehabilitate, and is not within the ambit of section 654. (People v. Stender, supra, 47 Cal.App.3d at p. 425.) Defendant was free to reject the conditions of probation and be sentenced.

Disposition

The judgment (order granting probation) is affirmed.

DAVIS , Acting P.J.

We concur:

RAYE , J.

HULL , J.

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