P. v. Siharath
Filed 6/14/06 P. v. Siharath CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. VONGPHACHANH SIHARATH, Defendant and Appellant. |
F046865
(Super. Ct. Nos. F02907896-5 & F02907259-6)
OPINION |
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen M. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
STATEMENT OF THE CASE
On February 11, 2004, the Fresno County District Attorney filed a first amended information in case No. F02907259-6 in the superior court charging appellant Vongphachanh Siharath as follows: count I--possession of marijuana for sale (Health & Saf. Code, § 11359); count II--possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); and count III--misdemeanor possession of a smoking device (Health & Saf. Code, § 11364). The district attorney specially alleged that appellant had served a prior prison term (Pen. Code, § 667.5, subd. (b)).
On February 11, 2004, the Fresno County District Attorney filed a first amended information in case No. F02907896-5 in the superior court charging appellant as follows:
Count I--false imprisonment by violence (Pen. Code, § 236);
Count II--evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a));
Counts III-V, XI-XIII--assault upon a peace officer or firefighter (Pen. Code, § 245, subd. (c));
Count VI--assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1));
Count X--criminal threats (Pen. Code, § 422);
Counts XIV and XV--resisting an executive officer (Pen. Code, § 69); and
Count XVI--kidnapping (Pen. Code, § 207, subd. (a)).
The district attorney specially alleged appellant was released from custody or bail at the time of the commission of the offenses charged in counts I through XV (Pen. Code, § 12022.1) and that he served a prior prison term (Pen. Code, § 667.5, subd. (b)).
On February 11, 2004, appellant was arraigned on both amended informations, pleaded not guilty to the substantive counts, and denied the special allegations.
On September 8, 2004, jury trial on both amended informations commenced.
On September 9, 2004, appellant pleaded guilty to the three substantive counts in case No. F02907259-6 and the court granted the prosecution's motion to dismiss the prior prison term allegation.
On the same date, jury trial proceeded in case No. F02907896-5. At the start of trial, appellant admitted the special allegation that he was on bail when the charged offenses occurred.
At the close of evidence on September 15, 2004, the court dismissed count X, making criminal threats, (Pen. Code, § 1118.1).
On September 21, 2004, the jury returned verdicts finding appellant guilty as charged of counts I (false imprisonment by violence), II (evading an officer with willful disregard), VII (resisting, obstructing, or delaying a peace officer), VIII (driving under the influence causing injury) but without personal infliction of great bodily injury (§ 12022.7), IX (being under the influence of a controlled substance), and XIV and XV (resisting an executive officer).
The jury also returned verdicts finding appellant not guilty of counts III (assault upon a peace officer or firefighter), XI through XIII (assault upon a peace officer or firefighter), and XVI (kidnapping).
The jury found appellant guilty of misdemeanor assault (Pen. Code, § 240, subd. (b)), a lesser included offense of that charged in count V (assault upon a peace officer or firefighter).
The court declared a mistrial as to counts IV (assault upon a peace officer or firefighter) and VI (assault with a deadly weapon).
On October 14, 2004, appellant pleaded no contest to misdemeanor assault, a lesser offense of that charged in count VI and the court dismissed count IV and unresolved lesser charges of other counts.
On November 29, 2004, the superior court conducted a consolidated sentencing hearing as to case Nos. F02907896-5 and F02907259-6 and imposed a total term of six years four months in state prison. As to the former case, the court imposed the upper term of three years on count II and eight months (one-third of the middle term) on count I with a consecutive term of two years for the Penal Code section 12022.1 enhancement. As to case No. F02907259-6, the court imposed the term of eight months for possession of marijuana for sale. The court directed all other counts to run concurrent to the foregoing counts. The court imposed a $1,200 restitution fine (Pen. Code, § 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (Pen. Code, § 1202.45), and awarded 1,075 days of custody credits.
On November 30, 2004, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Facts Underlying Case No. F02907259-6
The following facts are taken from the probation report filed November 29, 2004:
â€
