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People v. Castor7/6/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
David Castor appeals from convictions of felony possession of a controlled substance and misdemeanor evasion of a police officer, driving with a suspended license and possession of drug paraphernalia. He contends the trial court improperly denied his motion for a directed verdict of acquittal because the evidence was insufficient to establish he was the driver of the car in question; violated his constitutional right to confrontation of witnesses by permitting eyewitness testimony that he was the driver; abused its discretion in allowing the eyewitness testimony; abused its discretion in denying probation; and erroneously denied 33 days of credit for time served. Respondent concedes the last of these contentions. We shall order the judgment modified to reflect the correct calculation of credits and affirm.
STATEMENT OF THE CASE
Appellant was charged by information filed on April 7, 2003, with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); misdemeanor evasion of a police officer (Veh. Code, § 2800.1, subd. (a)); misdemeanor driving with a suspended license, with a prior conviction of the same offense (Veh. Code, § 14601.1, subd. (a)); and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364).
Jury trial began on June 3, 2003. On June 4, at the conclusion of the prosecution's case, appellant's motion for entry of a judgment of acquittal (Pen. Code, § 1118.1) was denied. Jury deliberations began on June 5 and, after about two and one-half hours, the jury found appellant guilty as charged on all counts. The court found the alleged prior conviction to be true.
On August 8, the court denied probation and sentenced appellant to the two-year middle term on the conviction for possession of a controlled substance, with concurrent 90-day jail terms on the misdemeanor convictions. Appellant was awarded six days of presentence custody credit. Several fines and fees were imposed.
Appellant filed a timely notice of appeal on September 2, 2003.
STATEMENT OF FACTS
At about 7:30 p.m. on September 16, 2002, Lake County Deputy Sheriff Richard Ward was driving south on Big Canyon Road toward Middletown, in uniform and in a marked patrol vehicle. It was dusk. Ward noticed a brown Chevrolet Cavalier driving behind him without its headlights on. He pulled to the right side of the road and waited for the car to pass, then proceeded to follow it. He observed that the driver of the car had shoulder length hair but could not tell the driver's gender, age or race.
As Ward followed, the car started to pull away and Ward turned on the solid red light on his vehicle to initiate an enforcement stop. The car pulled away at about 45 to 50 miles per hour. Ward activated all his vehicle's lights (red, blue and yellow) and his siren, but the Chevy continued to pull away, so Ward called central dispatch to say he was in a vehicle pursuit. The Chevy was driving into the opposing lane of traffic, trying to evade Ward. At this point, Ward had driven just under a quarter of a mile since activating the first red light. The road was mountainous, downhill, with a lot of curves, through a rural area with very few houses or businesses and no street lighting. After about one-half mile, the car abruptly pulled into the other lane of traffic and
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