Filed 10/11/17 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge.

Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Joseph Anthony Lopez led police on two high-speed chases. On July 31, 2015, appellant was convicted of four charges: assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)) (count 1),[1] two counts of evading a peace officer with wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)) (counts 2 & 4), and evading a peace officer while driving in the opposite direction of traffic (Veh. Code, § 2800.4) (count 3). Counts 1 through 3 were for appellant’s actions taken during a chase on April 17, 2014, and count 4 was for appellant’s actions taken during a chase on March 22, 2014. Appellant was sentenced to an aggregate term of five years eight months in state prison.

Appellant presents four claims on appeal. He claims that his statements made to law enforcement officers should have been excluded for failure to provide advisements under Miranda v. Arizona (1966) 384 U.S. 436, 439–440 (Miranda), that the court erred in imposing concurrent sentences on counts 2 and 3 rather than staying the sentences, that the court erred in staying rather than striking prior prison allegations, and the abstract of judgment failed to correctly specify the fines and fees imposed. Upon review, we remand to correct errors to the abstract of judgment, but otherwise affirm.

factUAL AND PROCEDURAL BACKGROUND

I. Prosecution’s Case

A. March 22, 2014 High Speed Chase

On March 22, 2014, Tulare Police Officer Ray Guerrero attempted to conduct a traffic stop on a white Dodge Ram pickup truck.

The truck came to a complete stop and, as Guerrero exited his patrol vehicle to approach the truck, he saw appellant in the driver’s side mirror. Guerrero recognized appellant from numerous prior contacts with him. Before he reached the driver’s side window, the truck sped off and Guerrero returned to his vehicle and engaged in pursuit. The truck traveled approximately 80 miles per hour on city streets and Guerrero was ordered to discontinue his pursuit due to safety concerns. Guerrero observed the vehicle head northbound on Highway 99 at a high rate of speed.

Tulare Police Officer Vincent Medina continued to trail the truck on Highway 99. The truck drove erratically at high rates of speed and passed several vehicles by driving on the side of the road kicking up dirt and rocks causing vehicles to brake. As the truck approached a traffic jam, it turned onto a frontage road driving the opposite way of traffic. As Medina passed the truck, he was able to identify the driver as appellant in light of their prior contacts. The truck proceeded to run several red lights at high speeds and Medina lost visual contact with the truck.

B. April 17, 2014 High Speed Chase

At approximately 8:00 p.m. on April 17, 2014, Tulare Police Officer German Barrios and Dinuba Police Detective George Ayala were on duty in Tulare when they began following a white Chevy Camaro with one occupant. The Camaro exceeded the speed limit and Barrios activated his lights and siren and attempted to conduct a traffic stop. The Camaro failed to stop and, instead, accelerated and ran a red light. Barrios pursued the Camaro as it traveled on city streets at 60 miles per hour and on Highway 99 at up to 95 miles per hour, running stop signs and red lights and nearly causing collisions with other vehicles.

At one point, Barrios caught up to the Camaro in an attempt to identify the driver. When the front portion of his patrol vehicle was near the driver’s door of the Camaro, the driver looked in the mirror, jerked the steering wheel and swerved towards the patrol vehicle. Barrios swerved to avoid a collision. The Camaro came within six inches of the patrol vehicle.

Barrios and Ayala continued to follow the Camaro, but the Visalia Police Department took over the pursuit. When the chase moved outside of Visalia, California Highway Patrol (CHP) took over the pursuit. Several marked CHP vehicles with activated lights and sirens pursued the Camaro for almost 45 minutes, traveling at speeds up to 90 miles per hour. In Kingsburg, the Camaro exited Highway 99, crossed over double yellow lines to pass other vehicles and, at times, turned off its lights while driving in the opposite direction of traffic. CHP Officer Chris Mirwald joined the pursuit and followed the Camaro into an orchard. He lost sight of the Camaro as it kicked up dust. Another officer radioed that he located the Camaro, but the driver was not in the vehicle.

Law enforcement officers set up a perimeter and Mirwald began searching the area on foot for the driver. The helicopter unit on the scene with thermal vision technology reported finding a heat source in one of the trees in the orchard, approximately 50 to 75 yards from the Camaro. Mirwald located appellant and ordered him to get out of the tree. When appellant got out of the tree, Mirwald and another law enforcement officer placed him on his stomach and handcuffed him. Mirwald asked appellant if he was the driver of the vehicle, and he responded that he was.

II. Defense Case

Patrick Lane was at appellant’s house fixing the Camaro on the afternoon of April 17, 2014. He testified that another individual present at appellant’s house, Holguin, had the keys to the car. After fixing the car, Lane saw Holguin drive away in the Camaro at about 6:30 p.m. with appellant in the passenger seat. Lane waited for them to return, but they did not and he left appellant’s house at about 9:00 p.m. Later that night, Lane went with Holguin’s brother to pick Holguin up at a mini-mart in Dinuba.

Appellant testified on his own behalf. He did not remember what he was doing on March 22, 2014, and did not remember being in the pursuit that occurred that day. Appellant also denied driving the Camaro on April 17, 2014, but admitted that it was his vehicle and that he was riding as passenger. He was unwilling to identify who was driving. Appellant admitted that at the end of the pursuit, but while the Camaro was still moving, he exited the car and climbed into a small tree. When the officer found appellant, he twice asked him if he was “the only one” and appellant said that he was. Appellant did not recall an officer ask him if he was the driver.

Discussion

I. Failure to Provide Miranda Advisements

Appellant contends his incriminating statement made on the night of the chase on April 22, 2014, should have been excluded from evidence for failure to provide Miranda advisements. It is undisputed that the officers failed to provide Miranda advisements when they questioned appellant. Therefore, we must determine whether appellant was in custody at the time of the interrogation.

A. Applicable Law

Under California law, issues relating to the suppression of statements made during a custodial interrogation must be reviewed under federal constitutional standards. (People v. Nelson (2012) 53 Cal.4th 367, 374; People v. Lessie (2010) 47 Cal.4th 1152, 1163–1164 (Lessie).) “Under the Fifth Amendment to the federal Constitution, as applied to the states through the Fourteenth Amendment, ‘[n]o person … shall be compelled in any criminal case to be a witness against himself .…’” (Lessie, supra, at p. 1162; U.S. Const., 5th Amend.) “‘“In order to combat [the] pressures [of custodial interrogation] and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights” to remain silent and to have the assistance of counsel.’” (People v. Nelson, supra, at p. 374.)

An interrogation is custodial when “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda, supra, 384 U.S. at p. 444; People v. Kopatz (2015) 61 Cal.4th 62, 80 (Kopatz).) The test for Miranda custody is, “‘would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.’” (Yarborough v. Alvarado (2004) 541 U.S. 652, 663 (Yarborough).) The objective circumstances of the interrogation are examined, not the “‘“subjective views harbored by either the interrogating officers or the person being questioned.”’” (Kopatz, supra, at p. 80; Yarborough, supra, at p. 663.)

Under Miranda, “‘custody’ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.” (Howes v. Fields (2012) 565 U.S. 499, 508–509 (Howes).) “In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of ‘the objective circumstances of the interrogation,’ [citation], a ‘reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.’” (Id. at p. 509; accord, Stansbury v. California (1994) 511 U.S. 318, 322–323, 325 (Stansbury); Thompson v. Keohane (1995) 516 U.S. 99, 112.) In order to determine how a suspect would have “gauge[d]” his “‘“freedom of movement,”’” courts must examine “all of the circumstances surrounding the interrogation.” (Stansbury, supra, at pp. 322, 325.)

California courts have identified a number of factors relevant to this determination. While no one factor is conclusive, relevant factors include: “‘(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.’” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.)

Not all restraints on freedom of movement amount to custody for purposes of Miranda. (Howes, supra, 565 U.S. at pp. 508–510.) In addition to freedom of movement, courts must ask “the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” (Id. at p. 509.) For example, in Berkemer v. McCarty (1984) 468 U.S. 420, 441–442 (Berkemer), the Supreme Court held that the roadside questioning of a motorist who was pulled over in a routine traffic stop did not constitute custodial interrogation despite the fact that a traffic stop “significantly curtails the ‘freedom of action’ of the driver and the passengers,” that it is generally “a crime either to ignore a policeman’s signal to stop one’s car or, once having stopped, to drive away without permission,” and that “few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so.” (Id. at p. 436.) Despite those concerns, the court held that a traffic stop is not custody under Miranda because such detention does not “sufficiently impair [the detained person’s] free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.” (Berkemer, supra, at p. 437.) “Under the Fourth Amendment, … a policeman who lacks probable cause but whose ‘observations lead him reasonably to suspect’ that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to ‘investigate the circumstances that provoke suspicion.’” (Id. at p. 439.) However, the detention and questions posed by the officer must be “‘“reasonably related in scope to the justification for their initiation.”’” (Id. at p. 439.) “Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” (Ibid.) Due to “[t]he comparatively nonthreatening character” of detentions like Terry[2] or traffic stops, they are not subject to the dictates of Miranda. (Berkemer, supra, at p. 440.) “The … noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.” (Ibid.) Stated differently, the “temporary and relatively nonthreatening detention involved in a traffic stop or Terry stop, [citation], does not constitute Miranda custody.” (Maryland v. Shatzer (2010) 559 U.S. 98, 113 (Maryland).)

B. Standard of Review

With regard to claims of custody under the Fourth Amendment, “‘we review the court's resolution of the factual inquiry under the deferential substantial evidence standard.’” (Kopatz, supra, 61 Cal.4th at p. 79.) However, “‘[t]he ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.’” (Ibid.) “Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact” and subject to independent review. (Id. at p. 80; People v. Leonard (2007) 40 Cal.4th 1370, 1400.)

C. Analysis

Appellant asserts that he was in custody at the time he was questioned when he was apprehended shortly after the high speed chase and was, therefore, entitled to a Miranda advisement. Respondent argues that appellant was not in custody or, alternatively, that the officer had the right to ask brief questions to confirm suspicions that appellant was the driver of the vehicle.

The facts surrounding the interrogation are not reasonably in dispute. Appellant refused to stop and engaged in dangerous driving during a long distance high speed chase. Upon stopping in an orchard, he was found attempting to hide in a small tree. Appellant admitted on the stand that he was in the car during the chase, but refused to disclose the identity of the alleged driver of the car.

The relevant factors at the scene that could have made a reasonable person in appellant’s situation believe he was not free to go include the fact that he was being pursued by several law enforcement vehicles (including a law enforcement helicopter) and, when he was found, two officers ordered him out of the tree and handcuffed him while he was lying on the ground. Being ordered to lie on the ground while handcuffed placed a significant restriction on appellant’s freedom of movement. (Howes, supra, 565 U.S. at pp. 508–510.) Based on the vehicular chase and appellant’s attempt to flee the scene, the officers were concerned that he may continue his efforts to evade arrest. A reasonable person laying on the ground in handcuffs would not reasonably feel free to leave. Having been ordered to the ground, a reasonable person would not feel free to stand up, let alone leave, without the permission of law enforcement.

Respondent next argues that appellant was temporarily detained and that the question only went to confirm the officers’ reasonable suspicion that appellant was the perpetrator. Respondent relies upon Supreme Court authority that routine traffic stops are not considered custody under Miranda, and that officers can ask brief questions to confirm their articulable suspicion that there was probable cause that a crime was committed. (Berkemer, supra, 468 U.S. at p. 439–440.) However, this was not an ordinary traffic stop. Appellant had committed several felonies, and would not have a reasonable expectation that he would be given a traffic ticket. Berkemer explained that “[t]he comparatively nonthreatening character” of detentions like Terry or traffic stops was the reason that those stops were not considered custodial stops under Miranda. (Berkemer, supra, at p. 440.) The level of detention that appellant was subjected to here rose well above that considered during an ordinary traffic stop. Berkemer does not apply and the officers were required to provide appellant Miranda advisements based on the significant restrictions on his freedom of movement.

Respondent provides several cases that allow for questioning a suspect in handcuffs without Miranda advisements. However, the three cases relied upon by respondent to support their argument, United States. v. Cervantes-Flores (9th Cir. 2005) 421 F.3d 825, 830, United States v. Galindo-Gallegos (9th Cir. 2001) 244 F.3d 728, 735 [2001 U.S. App. Lexis 4891, *22–23, conc. opn. of Paez, J.], and United States v. Medina-Villa (9th Cir. 2009) 567 F.3d 507, 519–520, are all federal border search cases. Border search cases apply different standards to searches and arrests at the nation’s borders. (United States v. Guzman-Padilla (9th Cir. 2009) 573 F.3d 865, 883.) “The Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.” (United States v. Flores-Montano (2004) 541 U.S. 149, 152.) “‘[S]earches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.’” (Id. at pp. 152–153.)

Accordingly, the inquiry regarding whether a reasonable person would believe that they are in custody differs in the border search context. (United States v. Bravo (9th Cir. 2002) 295 F.3d 1002, 1009.) “[T]he fact that these events occurred at the border influences our inquiry into whether a reasonable innocent person would have believed that he was under arrest.” (Ibid.) Finding respondent’s argument inapposite, we hold that appellant was in custody and entitled to a Miranda advisement prior to being interrogated.

Regardless, the admission of any incriminating statements was harmless. The erroneous admission of appellant’s statements obtained in violation of the Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (Arizona v. Fulminante (1991) 499 U.S. 279, 309–312; People v. Elizalde (2015) 61 Cal.4th 523, 542.) That test requires respondent “to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, supra, at p. 24.) Even if none of appellant’s confessionary statements at his arrest were presented, the evidence described above was sufficient for a jury to find appellant guilty beyond a reasonable doubt of the charged offenses. Appellant admitted it was his car and that he was present in the car during the chase. Many officers recited details of the chase and a video of the chase from one of the officer’s patrol vehicles was presented to the jury. While appellant attempted to argue that he was not the driver, he did not present reliable evidence to show another person was present in the car. He was not able to name the alleged driver, law enforcement found no evidence that another person had fled the vehicle and a defense witness testified that he picked up the alleged driver at a mini-mart before events of the chase. Further, it was not likely that the alleged driver could have eluded law enforcement after the vehicle chase, especially due to the presence of a helicopter with thermal imaging.

Given the weight of the evidence, appellant’s statement that he was the driver of the car was not necessary for a conviction and, therefore, “did not contribute to the verdict obtained.” (Chapman, supra, 386 U.S. at p. 24.) Appellant was not prejudiced beyond a reasonable doubt by the admission of his incriminating statement. The error in admitting the incriminating statement was harmless and appellant is not entitled to relief.

II. Applicability of Section 654 to Concurrent Evading Sentences

A. Background

Appellant argues the trial court erred in imposing concurrent sentences for his convictions for evading a peace officer (Veh. Code § 2800.2, subd. (a)) (counts 2 & 4) and evading a peace officer while driving in the opposite direction of traffic (Veh. Code § 2800.4) (count 3) rather than staying the sentences under section 654, which bars multiple punishment for the same act or omission. (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) Appellant was convicted of assault on a peace officer, evading a peace officer, and evading a peace officer while driving in the opposite direction of traffic for his actions during the chase on April 17, 2014. Appellant was sentenced to a term of four years for the assault conviction and terms of two years for each of the evading charges, to be served concurrently to the assault sentence.

As appellant contends, it is error for a trial court to impose a concurrent sentence if section 654 applies. (People v. Jones (2012) 54 Cal.4th 350, 353.) The proper procedure, if the statute applies, is to impose a sentence but stay its execution, despite little practical difference between a concurrent sentence and a stayed sentence. (Ibid.)

Appellant did not object to his sentence in the trial court, but, because a sentence imposed in contravention of section 654 is an unauthorized sentence, the error may be raised on appeal even in the absence of an objection. (People v. Brents (2012) 53 Cal.4th 599, 618.) On appeal, “[a] trial court’s express or implied determination that two crimes were separate, involving separate objectives, must be upheld … if supported by substantial evidence” (ibid.); that is, evidence that is reasonable, credible and of solid value (People v. Armstrong (2016) 1 Cal.5th 432, 450).

The statutory purpose underlying section 654 “is to ensure that a defendant’s punishment will be commensurate with his culpability.” (People v. Correa (2012) 54 Cal.4th 331, 341.) To that end, the statute prohibits courts from imposing multiple punishment for the same act or omission, but, as the California Supreme Court recently observed, the application of section 654 can leave courts with more questions than answers. (Corpening, supra, 2 Cal.5th at p. 312.) This is because “[n]either the text nor structure of section 654 resolves when exactly a single act begins or ends, for example, or how to take account of the fact that virtually any given physical action may, in principle, be divided into multiple subsets that each fit the colloquial definition of an ‘act.’” (Ibid.)

As the court explained in Corpening, determining “[w]hether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ‘intent and objective’ or multiple intents and objectives.” (Corpening, supra, 2 Cal.5th at p. 311.)

B. Trial Court’s Implied Determination Supported By Substantial Evidence

Appellant argues that his crimes were the result of a single discrete act of attempting to evade law enforcement officers. Respondent concedes that the two evading convictions were based on the same conduct and one sentence should be stayed, but contends that the assault charge was a gratuitous act of violence not incidental to the primary objective of evading police, and should be punished separately under section 654. (People v. Galvez (2011) 195 Cal.App.4th 1253, 1263.) We find respondent’s argument unavailing.

When there is no “explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it.” (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045, citing People v. Tarris (2009) 180 Cal.App.4th 612, 626–627.) In the absence of any reference to section 654 during sentencing, the fact that the court did not stay the sentence is generally deemed to reflect an implicit determination that each crime had a separate objective. (People v. Tarris, supra, at p. 626.) Here, the trial court impliedly determined section 654 did not apply to appellant’s evading sentences because it did not stay the sentences and we must affirm that determination if it is supported by substantial evidence. (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; People v. Mejia, supra, at p. 1045.)

We find that there was not substantial evidence to support an implicit determination that assault and evasion crimes had separate objectives. Appellant’s primary objective was to evade police, and he took several actions to attempt to achieve that objective, even though ultimately unsuccessful. During the April 17, 2014 chase, appellant drove at speeds up to 90 miles per hour, drove through intersections without stopping, turned off his car’s lights, and drove in the opposite direction of traffic. All of these actions were taken for the same objective—to evade law enforcement. In addition, when one of the patrol cars got in close proximity of his car, he swerved towards the vehicle, causing the officer to take evasive actions. While the jury found that appellant attempted to use force and assaulted the officers with his vehicle, the objective of the assault was to further his attempts to evade the officers and prevent apprehension. While the action was reckless, and the probable result of the action was an application of force on the officer, the assault took the form of a driving maneuver and was not a separate, physical act but part of the single act of giving chase to the law enforcement officers. As the assault was neither a separate act nor committed for a different intent or objective, it was error for the trial court to impose concurrent sentences under section 654 for counts 2 and 3. (People v. Jones, supra, 54 Cal.4th at p. 353.)

The crimes of assault and evasion were not distinct crimes “necessarily accomplished through separate actions.” (People v. Jackson (2016) 1 Cal.5th 269, 354.) The assault occurred during the commission of the evasion; that is, appellant committed assault as a means of furthering his attempts at evasion. (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1006.)

Accordingly, we find there is not substantial evidence to support the trial court’s determination that section 654 was inapplicable to appellant’s evasion sentences.

III. Prior Prison Enhancements

Appellant stipulated that he sustained prior prison sentences that formed the basis for prior prison term enhancements under section 667.5, subdivision (b). At sentencing, the court imposed a one-year term to run consecutive to the four-year sentence for count 1, but stayed the terms for the other two section 667.5, subdivision (b), enhancements. Appellant contends that the order staying the enhancements was an unauthorized sentence, and the matter should be remanded to allow the trial court to strike, rather than stay, the enhancements. Respondent agrees that the sentence was unauthorized, and that the matter should be remanded to allow the trial court to either impose or strike the enhancements.

Once such an enhancement is found true, it must be imposed or stricken. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1561 (Garcia); People v. Campbell (1999) 76 Cal.App.4th 305, 311.) The trial court did neither, which was error. (People v. Bradley (1998) 64 Cal.App.4th 386, 390.) “To neither strike nor impose a prior prison term enhancement is a legally unauthorized sentence .…” (Ibid.) We therefore remand for the limited purpose of the trial court determining whether to impose the other two prior prison term enhancements or strike them pursuant to section 1385, subdivision (a). (People v. Bradley, supra, at pp. 400–401; Garcia, supra, at p. 1561.) “[U]pon remittitur issuance, the trial court must exercise its discretion and either impose or strike the section 667.5, subdivision (b) prior prison term enhancements pursuant to section 1385, subdivision (a).” (Garcia, supra, at p. 1561.)

IV. Corrections to the Abstract of Judgment

Appellant, in his last claim, asserts that the trial court erred in failing to specify on the record or include in the abstract of judgment all of the fines, fees and penalties. Respondent agrees that the matter must be remanded to allow the trial court to correct the abstract of judgment and minute order. In addition, respondent points out several other corrections to the sentence as stated on the minute order and abstract of judgment.

The probation department recommended that appellant be ordered to pay $8,000 in fines and fees based on the following: 1) a $2,000 fine pursuant to Vehicle Code section 2800.2; 2) a $2,000 State Penalty Assessment pursuant to Penal Code section 1464, subdivision (a); 3) a $900 Criminal Justice Facilities Construction Fund Penalty Assessment pursuant to Government Code section 76101; 4) a $200 Courthouse Construction Fund Penalty Assessment pursuant to Government Code section 76100; 5) a $200 Dinuba Courthouse Construction Fund Penalty Assessment pursuant to Government Code section 76100; 6) a $100 Maddy Emergency Medical Services Fund Penalty Assessment pursuant to Government Code section 76104; 7) a $400 Maddy Emergency Medical Services Fund Penalty Assessment pursuant to Government Code section 76000.5; 8) a $1,000 State Court Construction Penalty Assessment pursuant to Government Code section 70372; 9) a $400 Criminal Fine Surcharge pursuant to Penal Code section 1465.7; 10) a $200 DNA Identification Fund Penalty Assessment pursuant to Government Code section 76104.6; and 11) a $600 DNA Additional Penalty Assessment pursuant to Government Code section 76104.7.

When pronouncing judgment, the trial court declared, “Defendant’s ordered to pay $8,000, that’s in paragraph number 9 [of the report and recommendation of the probation officer].” Appellant waived a reading of how that money was to be disbursed. The trial court also ordered appellant to pay a $160 Court Operations Assessment and a $120 Criminal Conviction Assessment.

The minute order separately reflects the $160 Court Operations Assessment pursuant to Penal Code section 1465.8 and a $120 Criminal Conviction Assessment pursuant to Government Code section 70373. It also states that appellant shall pay an $8,000 fine as directed by the probation officer, to be collected by the California Department of Corrections and Rehabilitation pursuant to the probation department’s report. The abstract of judgment reflects the court operations and criminal conviction assessments; however, it lists the $8,000 as victim restitution pursuant to Penal Code section 1202.4, subdivision (f), rather than as fines and fees.[3]

“Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment.” (People v. High (2004) 119 Cal.App.4th 1192, 1200.) “If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency.” (Ibid.) As the trial court did not specify the statutory basis for each fine, penalty assessment and fee, the matter must be remanded to correct the abstract of judgment and minute order.

In addition, the parties agree that the trial court mistakenly assessed $600 under Government Code section 76104.7 when the proper assessment was $800. The new abstract of judgment should reflect the correct amount, and the total fines, fees and penalties should be $8,200 rather than $8,000. The minute order and abstract of judgment also improperly reflect the court’s sentence. Both the minute order and abstract of judgment list count 3 as a conviction under Vehicle Code section 2800.2, subdivision (a), when the conviction was under Vehicle Code section 2800.4.[4] Second, the court imposed a sentence of eight months for count 4, but the minute order and abstract of judgment state a concurrent sentence of two years. The matter is remanded to allow the trial court to correct the minute order and the abstract of judgment to reflect appellant’s proper sentence and fees, fines and penalties as set forth above.

disposition

The convictions for counts 2 and 3, evading a peace officer under Vehicle Code section 2800.2 and evading a peace officer while driving in the opposite direction of traffic under Vehicle Code section 2800.4 are reversed. The case is remanded and the trial court is directed to strike those convictions and resentence appellant accordingly. Additionally, upon remand, the trial court is directed to either impose or strike the remaining two prior prison term enhancements under Penal Code section 667.5, subdivision (b), and amend count 4 to properly reflect that appellant was sentenced to a consecutive eight-month term for that count.

Finally, the trial court is directed to specifically set forth the statutory grounds for the $8,200 in fines, fees and penalties imposed against appellant. The judgment is otherwise affirmed. The trial court is directed to prepare a new minute order and abstract of judgment reflecting the proper sentence.

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MEEHAN, J.

WE CONCUR:

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GOMES, Acting P.J.

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FRANSON, J.