(Super. Ct. No. 10F07686)
The opinion of the court was delivered by: Blease , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Rajneel Rattan Kumar of unlawful taking or driving of a vehicle (counts 1 & 2; Veh. Code, § 10851, subd. (a)), receiving stolen property (counts 3 & 6; Pen. Code, § 496d, subd. (a), § 496, subd. (a)),*fn1 and evading a police officer (count 4; Veh. Code, § 2800.2, subd. (a)). The jury acquitted defendant on count 7 (petty theft; § 484, subd. (a)), which was charged in the alternative to count 6. The jury hung on count 5 (deterring an executive officer; § 69), and the trial court declared a mistrial on that count.
In a bifurcated proceeding, the trial court found that defendant committed the offenses charged in counts 2, 3, 4, and 6 while out on bail. (§ 12022.1.)
The trial court sentenced defendant to an aggregate state prison term of four years four months, consisting of three years (the upper term) on count 4 plus eight months consecutive (one-third the midterm) on both counts 1 and 2. The court ran sentence on count 6 concurrently and stayed sentence on count 3 under section 654.*fn2 The court also imposed but stayed a two-year consecutive term for the on-bail enhancements, pending the outcome of other cases against defendant.
1. The trial court erred by not staying sentence on count 2 (unlawful driving) under section 654 because it formed part of a continuous course of conduct with count 4 (evading arrest).
2. Defendant's conviction on count 6 (receiving stolen property) must be reversed because the trial court failed to instruct sua sponte on aiding and abetting as to count 7 (petty theft), and if the jury had been so instructed it would have convicted him on that count, a misdemeanor, instead of count 6, a felony.
3. The abstract of judgment must be amended to reflect the trial court's actual award of presentence custody credit. (The People correctly concede this point.)
We shall affirm, but remand the matter for correction of the ...