Filed 4/19/17 P. v. Santos CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

EDGAR HUMBERTO SANTOS,

Defendant and Appellant.


G053038

(Super. Ct. No. 15WF0856)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed in part, and remanded with instructions.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
Edgar Humberto Santos appeals from the judgment following his conviction on several charges, including one felony count of evading a peace officer while driving in willful or wanton disregard for safety, and one felony count of evading a peace officer by driving against traffic.
Santos argues the court erred by convicting him on both counts because the offense of evading a peace officer by driving against traffic is necessarily included within the offense of evading a peace officer while driving in willful or wanton disregard for safety. We cannot agree.
For purposes of determining whether multiple convictions are appropriate, a lesser offense qualifies as necessarily included within a greater offense only when an analysis of the statutory elements of the two crimes demonstrate the greater offense cannot be committed without also committing the lesser one. That analysis is an abstract legal one. But rather than focusing on those statutory elements, Santos points to the jury instructions given in this case, claiming they establish the jury necessarily relied upon the same act (driving against traffic) to convict him of both offenses. That factual analysis does not satisfy the statutory elements test for proving a necessarily included offense.
Santos also argues the abstract of judgment contains two clerical errors: (1) an erroneous designation of his conviction on count 2 as a “serious felony”; and (2) an erroneous designation of his sentence on count 4 as “1/3 consecutive,” which is inconsistent with the trial court’s oral pronouncement of judgment. The Attorney General concedes both clerical errors, and we agree the abstract of judgment must be corrected on both points.
Consequently, we reverse the judgment in part, and remand the case to the trial court with instructions to correct the abstract of judgment in two particulars: (1) remove the “serious felony” designation from count 2; and (2) remove the “1/3 consecutive” designation on count 4. In all other respects, the judgment is affirmed.

FACTS
On an afternoon in April 2015, Santos approached a man who was resting in his car while waiting for his work shift to begin. Santos dragged the man out of the car, got into it, and drove away.
The victim called the police, and shortly thereafter, a patrol officer spotted the car after hearing a description of it broadcast on his radio. The officer attempted to pull the car over, and when Santos refused to comply, pursued it. During the pursuit, Santos was observed committing numerous Vehicle Code violations, including driving in excess of the speed limit on three occasions, running a stop sign, failing to yield to a pedestrian in a crosswalk, running red lights on four occasions, and driving against traffic on the wrong side of the road.
Ultimately, Santos pulled the car over to the side of the road and was taken into custody. When he arrived at the jail, he was advised that if he transported any controlled substances or drug paraphernalia into the jail, he could be charged with a felony. He did not acknowledge possessing any such items before entering the jail. A subsequent search of Santos’s clothing, after he entered the jail, revealed he was carrying a hypodermic needle between two socks on his right foot. During the booking process, Santos gave a false name to the booking officer, identifying himself as “Johnny Chono.”
Santos was charged with felony counts of carjacking (Pen. Code, § 215) (count 1); evading a peace officer while driving recklessly (Veh. Code, § 2800.2) (count 2); evading a peace officer by driving against traffic (Veh. Code, § 2800.4) (count 3); and smuggling controlled substances into a correctional facility (Pen. Code, § 4573) (count 4). He was also charged with a misdemeanor count of false representation to a peace officer (Pen. Code, § 148.9, subd. (a)) (count 5). The information also alleged he had suffered two or more serious and violent felony convictions and had served prior prison terms.
Following a trial, Santos was convicted on all counts. The trial court also found true the allegations Santos had four prior strike convictions and had served two prior prison terms.
Santos was sentenced to an aggregate term of 40 years and 4 months to life, calculated as follows: (1) 25 years to life on count 1, plus two five-year terms for the prior serious felony convictions; (2) the low term of two years, doubled to four, on count 4, which was also designated as the base or principal determinate term; (3) a consecutive term of 16 months on count 2; (4) a concurrent six months in jail on count 5; and (5) stayed sentences on count 3 and for the two prison priors.
DISCUSSION
1. The Lesser Included Offense Claim
Santos first argues the trial court erred by convicting him of both the offense of driving in willful or wanton disregard for safety while fleeing from police (Veh. Code, § 2800.2), and the offense of evading a peace officer by driving against traffic (Veh. Code, § 2800.4). He argues the latter offense qualifies as a lesser included offense of the former because (1) both offenses require proof the defendant was fleeing from police, and (2) one of the violations that can be relied upon to establish the greater offense of “driving in willful or wanton disregard for safety”—and which was cited in this case as support for Santos’ conviction of that offense—is that the defendant was driving against traffic. He is incorrect.
“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. ‘In California, a single act or course of conduct by a defendant can lead to convictions “of any number of the offenses charged.”’” (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227 (Reed).)
However, “[a] judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ [Citation.] ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’” (Reed, supra, 38 Cal.4th at p. 1227, italics added.)
The Supreme Court has “applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the ‘elements’ test and the ‘accusatory pleading’ test.” (Reed, supra, 38 Cal.4th at p. 1227, italics added.) However, “[i]n deciding whether multiple conviction is proper, a court should consider only the statutory elements.” (People v. Sloan (2007) 42 Cal.4th 110, 118.) We consequently consider only the statutory elements in determining whether the offense of evading a peace officer by driving against traffic (Veh. Code, § 2800.4), is necessarily included within the offense of driving in willful or wanton disregard for safety while fleeing from police (Veh. Code, § 2800.2).
The statutory elements test calls for a legal analysis of the relevant statutes, not an analysis of the factual circumstances in a given case: “Under the ‘elements’ test, we look strictly to the statutory elements, not to the specific facts of a given case. [Citation.] We inquire whether all the statutory elements of the lesser offense are included within those of the greater offense. In other words, if a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense.” (People v. Ramirez (2009) 45 Cal.4th 980, 985.)
As pertinent here, the statutory elements of Vehicle Code section 2800.02 are (1) “flee[ing] or attempt[ing] to elude a pursuing peace officer in violation of [Vehicle Code s]ection 2800.1,” and (2) driving the pursued vehicle “in a willful or wanton disregard for the safety of persons or property.” (Veh. Code, § 2800.2, subd. (a).) The statute then defines “willful or wanton disregard for safety” as something which “includes, but is not limited to, driving while fleeing or attempting to elude a pursuing police officer during which time either three or more violations that are assigned a traffic violation point . . . occur, or damage to property occurs.” (Veh. Code, § 2800.2, subd. (b), italics added.)
Nowhere in Vehicle Code section 2800.2 is there any requirement that the offender have driven a car against traffic, which is an explicit requirement of Vehicle Code section 2800.4. Thus, it is clear that under the statutory elements test, a violation of Vehicle Code section 2800.2 can be committed without also committing a violation of Vehicle Code section 2800.4. Consequently, a violation of Vehicle Code section 2800.4 is not a necessarily included offense of Vehicle Code section 2800.2, and Santos can be properly convicted of both.
In arguing his violation of Vehicle Code section 2800.4 was necessarily included within his violation of Vehicle Code section 2800.2, Santos has improperly focused on the factual circumstances of this case, rather the abstract elements of the two statutes. Specifically, he asserts his conviction for violation of Vehicle Code section 2800.2 was necessarily based on his wrong-way driving because the jury was asked to consider his wrong-way driving as one of his three traffic violations that, taken together, would qualify his conduct as “willful or wanton disregard for [] safety” under Vehicle Code section 2800.2, subdivision (b). That is not the proper test.
But even if it were appropriate to focus on the facts of this case, rather than the abstract elements of the two statutes, Santos’s argument would still fail. The evidence in this case reflected Santos committed numerous traffic violations during the pursuit that ensued after the police officer initially attempted to pull him over. Specifically, the police officer testified that in addition to driving the wrong way down a street, Santos ran a stop sign, failed to yield to a pedestrian in a crosswalk, and ran four separate red lights. That reflects a total of seven violations Santos committed during the pursuit.
Moreover, the jury was instructed it could find Santos was driving with “willful or wanton disregard for the safety of persons or property,” as is required for a violation of Vehicle Code section 2800.2, if it determined he had committed as few as three of those violations. Consequently, the jury could have found Santos guilty of violating Vehicle Code section 2800.2, even without determining he had driven the wrong way down a street. Because Santos’s violation of Vehicle Code section 2800.4 was not an offense that was necessarily included within his violation of Vehicle Code section 2800.2, we find no error in his conviction on both counts.
2. Clerical Errors in the Abstract of Judgment
Santos also contends there are two clerical errors in the abstract of judgment. First, the abstract erroneously identifies his conviction on count 2 (evading a peace officer while driving in willful or wanton disregard for safety in violation of Vehicle Code section 2800.2), as a “serious felony.” And second, the abstract identifies his four year sentence on count 4 (smuggling controlled substances into a correctional facility in violation of Penal Code section 4573) as a “1/3 consecutive” sentence.
The Attorney General concedes both entries reflect clerical errors, and we agree. As to the first, Vehicle Code section 2800.2 is not listed as a serious felony under Penal Code section 1192.7, subdivision (c), nor is there any evidence Santos’ commission of it resulted in injury to anyone. (Pen. Code, § 1192.7, subd. (c)(8).) Consequently, it did not qualify as a serious felony.
Moreover, the trial court’s judgment specifically reflects that neither count 4 nor count 2 is a serious or violent felony. Consequently, the erroneous designation of count 2 as a “serious felony” appears to be a clerical, rather than a judicial, error.
As to the second error, the court’s tentative sentence on count 4 was a term of “two years consecutive to counts one and two. This is one third of the midterm doubled pursuant to [Penal Code section] 667(d) & (e)(2)(C).” However, the prosecutor pointed out the court had to pick base terms for the determinate counts, which were calculated separately from the indeterminate term imposed for count 1, carjacking.
The court agreed, and then restated its tentative sentence on count 4 as follows: “As to count four for a violation of Penal Code section 4573 the court intends to select the low term as the base term doubled, so that would be four years.” The court then sentenced Santos in accordance with that tentative sentence.
The court’s minute order also reflects that on count 4, Santos is sentenced to prison “for a term of [four y]ear(s) which is double the [l]ow term pursuant to Penal Code section 667(d)(e)(1) and Penal Code section 1170.12(b) and (c)(1).”
Because the sentence pronounced by the court on count 4 was calculated by imposing the low term, doubled, we agree its designation in the abstract of judgment as a “1/3 consecutive” sentence reflects a clerical error.
DISPOSITION
The judgment is reversed in part and the case is remanded to the trial court with instructions to correct the abstract of judgment in two particulars: (1) remove the “serious felony” designation from count 2; and (2) remove the “1/3 consecutive” designation on count 4. The clerk of the superior court is directed to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. In all other respects, the judgment is affirmed.



O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



FYBEL, J.