Filed 12/15/05 P. v. Portillo CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed in part, reversed in part, and remanded.

Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Erika Hiramatsu and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Jose Juan Portillo of possession of methamphetamine for sale, transportation of methamphetamine, felony reckless driving evading an officer, and misdemeanor resisting an executive officer. It found true allegations he sold 28.5 grams or more of methamphetamine, or 57 grams or more of a substance containing methamphetamine, and had four prior drug-related felony convictions.

The court sentenced defendant to a total term of 10 years and 4 months in state prison; the midterm of three years for count two, transportation of methamphetamine, consecutive three-year terms for two of the prior felony conviction findings, and eight months each for attempting to evade a police officer and misdemeanor resisting an executive officer. The court stayed imposition of sentence on count one, possession of methamphetamine for sale and the remaining enhancment findings pursuant to Penal Code section 654. (All further statutory references are to the Penal Code.)

Defendant raises three issues on appeal; (1) the trial court erred by imposing an eight-month prison term for the misdemeanor offense, (2) punishment for counts three and four, evading a police officer and resisting an executive officer, should have been stayed pursuant section 654, and (3) the imposition of consecutive sentences based on the court's factual findings deprived him of his federal Constitutional right to a jury trial.

The Attorney General concedes the first issue and the concession is warranted. The sentence is reversed and the matter remanded to the trial court for a new sentencing hearing. In all other respects, the judgment is affirmed.

I

FACTS

Santa Ana Police Officers Noe Rodriguez and Abaraldo Oropeza noticed defendant's car when it failed to stop for a school bus while pupils were in the process of

unloading. The officers activated the patrol car's lights and siren, but defendant did not yield. He increased his speed, turned right against a red light without stopping, exceeding the speed limit, and twice failed to stop at a stop. Eventually, the officers noticed defendant's car had decreased its speed. They saw defendant jump out of the car and run into an apartment complex. The officers gave chase. As they searched the apartment complex, the officers saw defendant through the glass door of an apartment.

Rodriguez ordered defendant to come out with his hands up. When defendant did not respond, the officers entered the apartment. Rodriguez drew his weapon and opened the apartment's bathroom door. Defendant ran through the open door and charged Oropeza. Oropeza grabbed defendant and wrestled him to the ground. Rodriguez holstered his gun and tried to help Oropeza handcuff defendant. Defendant put his hands under his body thus thwarting the attempt. Two Garden Grove Police Officers arrived and assisted Oropeza and Rodriguez. The four officers eventually gained the upper hand and took defendant into custody.

A search of defendant's car trunk yielded a plastic baggie containing 223.2 grams of a substance containing methamphetamine and $690 in various denominations.

II

DISCUSSION

Defendant challenges three aspects of the trial court's sentence. First, he claims the trial court erroneously imposed a prison term for a misdemeanor offense. We agree.

The information charged defendant with a misdemeanor violation of section 69, resisting an executive officer. Section 69 is a â€