Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F06834
HULL , J.Defendant was convicted by a jury of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), willful failure to appear at a court hearing (id., § 1320.5), permitting another to discharge a firearm from a vehicle (id., § 12034, subd. (b)), participating in a criminal street gang (id., § 186.22, subd. (a)), eluding a pursuing police officer (Veh. Code, § 2800.1, subd. (a)), and resisting arrest (Pen. Code, § 148, subd. (a)(1)). (Further undesignated section references are to the Penal Code.) The jury also found defendant committed the two firearm offenses for the benefit of a criminal street gang and committed the failure to appear while released on bail. Following discharge of the jury, the trial court found defendant suffered a prior conviction. (§ 667.5, subd. (b).) He was sentenced to an aggregate, unstayed term of 10 years four months in state prison.
Defendant appeals, contending: (1) there is insufficient evidence to support one of the gang enhancements; (2) the sentence on one of the misdemeanors must be stayed; and (3) the trial court erred in imposing restitution fines. The People contend the court awarded excessive custody credits. We reject defendant’s contentions and affirm the judgment. However, we agree the abstract of judgment must be amended to reflect the correct custody credits.
Facts and Proceedings
On April 10, 2002, defendant was convicted of assault with a deadly weapon (§ 245) and thereafter served a term in state prison.
On August 4, 2005, officers of the Sacramento Police Department were conducting surveillance at an apartment believed to be occupied by defendant’s girlfriend, C.R., in order to serve an arrest warrant on defendant. At approximately 11:00 p.m., defendant and another man arrived at the apartment complex in a van and entered the apartment. The men emerged from the apartment 15 to 20 minutes later and headed back toward the van.
The officers approached defendant and identified themselves. Defendant turned and ran. The officers pursued defendant and saw him reach into the waistband of his pants and pull out a black object that appeared to be a gun and throw it on the ground. After defendant was apprehended, the officers searched the area where they saw defendant throw the object and found a 9 millimeter Beretta handgun.
On May 10, 2006, bail was set for defendant at $200,000. On July 5, defendant posted bail and was released. On August 3, 2006, defendant was ordered to appear in court on October 19, 2006. He failed to appear as ordered.
At approximately 1:00 a.m. on October 1, 2006, R.A. was working as a security guard at a nightclub then named The Tent in Sacramento when a fight broke out. R.A. grabbed one of the participants and took him outside of the club. When the man took a swing at R.A., R.A. pulled out a taser and told the man if he touched R.A. he would use it. The man threatened to kill R.A., said this is “Oak Park,” and walked across Florin Road.
R.A. turned his back on the man and watched others coming out of the club. He then heard the sound of gunshots and ducked behind a car. He looked back to where the man had walked away and saw him standing in the middle of the street shooting toward the ground. However, when the man saw other security personnel coming his way, he began backing away. The man reached the other side of the street, fired some more shots, and then got into a light-colored Mercedes automobile.
After the man got into the Mercedes, he emerged out of the sunroof. The Mercedes drove in circles around the parking lot while the man fired more shots. The car drove away only after sirens could be heard in the distance.
At approximately 1:05 a.m., Deputy Jason Abbott and his partner, Deputy Ty McIntyre, received a dispatch about shots fired from a gray Mercedes. As they drove on Florin Road toward the scene, Abbott noticed a silver metallic Mercedes parked at a liquor store and several males standing around it. The detectives continued past the liquor store then made a u-turn and returned. They observed the Mercedes drive out of the store’s parking lot and head east on Florin Road.
The detectives followed the Mercedes as it turned north onto Chandler. After a short distance, they initiated a traffic stop. The Mercedes began to pull over but, before coming to a complete stop, it made a u-turn and headed south on Chandler. The detectives gave chase. During the pursuit, the Mercedes reached a speed of 40 miles per hour in a 25 miles-per-hour zone, drove at times in the northbound lane, and ran stop signs.
When the Mercedes reached Florin Road, it stopped in the middle of the road at a concrete divider. The driver and a passenger emerged and began running. Abbott chased the passenger for 40 to 50 yards, where the passenger scaled a fence and entered the parking lot of a townhome complex. As the man went over the fence, a 9 millimeter Glock handgun and a 31-round magazine fell to the ground. Abbott was not able to catch the man.
In the meantime, McIntyre chased the driver, who he recognized as defendant from prior contacts at the jail. However, after a brief chase, a blue sport utility vehicle drove up to defendant, a door opened, defendant jumped inside, and the SUV drove off.
Defendant was charged in count one with possession of a firearm by a felon in connection with the August 4, 2005, incident. (§ 12021, subd. (a)(1).) It was also alleged defendant committed this offense for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
In count two, defendant was charged with failure to appear in court on October 19, 2006 (§ 1320.5) and with an enhancement for having committed this offense while released on bail in another matter (§ 12022.1).
Counts three through six stem from the October 1, 2006, incident. In count three, defendant was charged with permitting another to discharge a firearm from a vehicle he owned or was driving (§ 12034, subd. (b)), plus an enhancement for committing the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In count four, defendant was charged with participating in a criminal street gang (§ 186.22, subd. (a)), with an enhancement for carrying a firearm and related items (§ 12021.5, subd. (b)). In count five, he was charged with eluding a pursuing peace officer while driving a motor vehicle with willful disregard for the safety of others or property (Veh. Code, § 2800.2, subd. (a)), and in count six, he was charged with resisting arrest (Pen. Code, § 148, subd. (a)(1)).
Defendant was also charged with a prior conviction with respect to the 2002 assault. (§ 667.5, subd. (b).)
The trial court thereafter granted the prosecution’s motion to dismiss the enhancement on count four.
At trial, in addition to the foregoing evidence, the prosecution presented expert testimony that defendant was a member of two gangs, the Oak Park Bloods and Ridezilla, and committed the firearm offenses for the benefit of those gangs.
Defendant was convicted on all counts except count five, on which the jury found defendant guilty of the lesser included offense of evading a pursuing peace officer (§ 2800.1, subd. (a)). All enhancements were also found true.
Defendant was sentenced on the two misdemeanors, counts five and six, to concurrent terms of 180 days in county jail, with credit for time served. On count one, defendant was sentenced to the middle term of two years, plus a consecutive middle term of three years for the gang enhancement. On count two, defendant received a consecutive, one-third middle term of eight months. He received the same term on count three, plus a one-third middle term of one year for the gang enhancement. On count four, the court sentenced defendant to two years, but stayed this term pursuant to section 654. Finally, the court imposed a term of one year on the prior offense.
Discussion
I
Gang Enhancements
Defendant contends the gang enhancement imposed on count one is not supported by substantial evidence. In count one, defendant was charged with possession of a firearm by a felon on August 4, 2004, when he was approached by police officers outside his girlfriend’s apartment and fled. Defendant argues the only evidence that the offense was gang related was the opinion of Detective Wendy Brown, a gang expert. However, according to defendant, the evidence on which Brown relied did not support her opinion. Defendant points out (1) the area where he was confronted by police is not a well-known gang area, (2) he was not wearing red, the color of his purported gang, (3) the man with him did not flee, and (4) there was no evidence he or the other man had been involved in or were planning any gang activity at or around the time of the arrest.
In reviewing the sufficiency of the evidence supporting a conviction, we view the evidence in the light most favorable to the prosecution and determine if a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) We review the whole record, not isolated bits of evidence, to determine if it supports the judgment below. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “‘The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.’” (Id. at p. 576, quoting from People v. Reilly (1970) 3 Cal.3d 421, 425.)
Substantial evidence is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651-652.) Expert opinion testimony constitutes substantial evidence only if based on conclusions or assumptions supported by evidence in the record. (Id. at p. 651.) “Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations.] In those circumstances the expert’s opinion cannot rise to the dignity of substantial evidence. [Citation.]” (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.)
Section 186.22 provides for enhanced punishment in the event a felony is “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) A “criminal street gang” is defined as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), [of section 186.22,] having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal activity.” (§ 186.22, subd. (f).) The enumerated offenses include assault with a deadly weapon (§ 186.22, subd. (e)(1)), robbery (§ 186.22, subd. (e)(2)), unlawful homicide or manslaughter (§ 186.22, subd. (e)(3)), “sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances” (§ 186.22, subd. (e)(4)), “[d]ischarging or permitting the discharge of a firearm from a motor vehicle” (§ 186.22, subd. (e)(6)), and “[p]ossession of a pistol, revolver, or other firearm capable of being concealed upon the person” (§ 186.22, subd. (e)(23)). Within the meaning of section 186.22, “‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of” the enumerated offenses, provided “the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).)
In People v. Olguin (1994) 31 Cal.App.4th 1355 (Olguin), Olguin and Mora confronted rival gang members after the defendants’ gang-related graffiti had been crossed out. One of the defendants knocked down one of the rival gang members, Ramirez, and, when Ramirez got up and approached the defendants, Olguin shot and killed him. The defendants were convicted of second degree murder, with firearm and criminal street gang enhancements. (Id. at pp. 1366-1367.)
The Court of Appeal rejected the defendants’ substantial evidence challenge to the gang enhancement. On the question of whether the offense was committed for the benefit of a criminal street gang, the defendants argued the killing was based on a personal rather than a gang dispute. The court indicated this was a “plausible argument, and facts can be marshaled to support it.” (Olguin, supra, 31 Cal.App.4th at p. 1382.) However, the overwhelming evidence was to the contrary. According to the court: “The shooting was, after all, precipitated by crossing out gang graffiti, replacing it with the name of another gang, and then shouting that gang’s name to rival gang members. The record reflects no prior relationship between the killers and their victim, and no reason for animosity other than gang-related insults. While Olguin attempts to attach significance to the fact the Shelley Street gang so briefly and tragically claimed by Ramirez was long defunct, we see none. Regardless of the viability of the victim’s allegiance, any rational trier of fact would have concluded he died not because he insulted Olguin, but because he disrespected Southside F Troop. The evidence was sufficient.” (Id. at pp. 1382-1383.)
Defendant argues that, “in contrast to Olguin, none of the evidence presented on this allegation leads to a reasonable inference that appellant possessed that handgun on that day for the benefit of, at the direction of, or in association with a criminal street gang, or that he specifically intended to promote, further or assist criminal conduct by gang members.” According to defendant, “[t]he evidence here offered no principled way to distinguish between a crime committed for personal reasons and a crime committed for gang purposes, except that [defendant] allegedly belonged to a gang.” But, defendant argues, section 186.22 does not punish mere gang membership.
The People contend there is substantial evidence the Oak Park Bloods and Ridezilla are criminal street gangs. However, while defendant makes a passing reference to Ridezilla being more a rap group than a criminal street gang, the nature of the two gangs is not really at issue.
The People also contend there is substantial evidence defendant was a member of the two gangs. Here, again, while defendant points out he told the police on August 4, 2005, he was “done with the gang life,” this is not really at issue. Defendant instead argues the prosecution’s expert improperly extrapolated from his gang membership alone that he possessed the firearm on August 4, 2005, for the benefit of a criminal street gang.
The People contend there is substantial evidence to support the jury’s conclusion he committed the offense for the benefit of a criminal street gang. The prosecution’s gang expert, Detective Wendy Brown, testified respect is of paramount importance to gang members and such respect is not earned but taken through fear, intimidation and violence. Fear and intimidation are used to dissuade witnesses from reporting crimes and to keep rivals from encroaching on a gang’s territory. Brown further opined: “[F]or a gang member, a gun is the biggest way for them to have that respect. If you have a gun, that trumps all other cards because if you have a gun, you take that respect. You can take that respect by threatening someone’s life or even taking someone’s life. [¶] So for a gang member to have a gun means that they are respected....”
Brown testified Ridezilla is different from other gangs in that all the members have earned respect by being “soldiers,” which she defined as “someone who is willing to put in the work for the respect and earn the respect for the gang.” Brown described defendant’s reputation in the gang: He “is someone who is known to always have a gun. He is a soldier in the gang. He’s someone that you can go to if you need business taken care of, business meaning if you need a gang--excuse me--if you need a gun or someone taken care of. [¶] He is someone who is an active participant in the gang.”
Brown opined defendant’s possession of a firearm on August 4, 2005, benefited the Oak Park Bloods and Ridezilla. She explained: “Like I spoke of before, a gang member--what a gang member does represents not only himself as a gang member but it represents the gang itself. [¶] Being a gang member is all about fear and intimidation and respect and having a gun and using a gun, gives a gang member respect. [¶] The reputation for Ridezilla is all about the soldiers, the gang members, having guns, using guns, being people who are willing to commit crimes with guns.”
During cross-examination, Brown elaborated further on the relationship between gangs and guns. According to Brown, “just the fact that [a gun] is being carried by a gang member makes it a gang gun.” Defense counsel asked: “So what you are saying, any time that a gang member has a gun, automatically, it’s carried for the benefit of the gang?” Detective Brown responded, “Yes.” When defense counsel pointed out the law requires more than just gang member status, Brown responded: “[W]hat I’m telling you is that when a person who is a gang member is always carrying a gun and they are known for carrying a gun and they are also known for being a very active member of that gang, that is what goes to the status of the gang. [¶] That does benefit the gang because they know that people who come in contact with gang members, they know that gang members are armed and that they’re willing to use these guns against anyone.”
In People v. Garcia (2007) 153 Cal.App.4th 1499, the defendant was stopped for a traffic infraction and found to be in possession of a firearm. He was convicted of carrying an unregistered firearm in public and street terrorism. He was also found to have committed the firearm offense for the benefit of a criminal street gang. (Id. at pp. 1502-1503.) At trial, in addition to evidence of the defendant’s gang involvement for many years leading up to his arrest, an expert opined: “‘[G]uns in a gang are huge.’ Guns are used by gang members to intimidate members of their own gang and other gangs, as well as nongang members. Guns are a sign of violence, and lead to respect within the gang. If a gang member possesses a gun, all the other gang members will know about it. Gang members often keep guns in areas that are ‘safe,’ such as with gang members who are not on probation and not subject to search. A gang member who uses a gun intends to kill, not to wound.” (Id. at p. 1503.) Among other things, the expert concluded: “[D]efendant’s possession of a firearm on November 5, 2004, was to benefit the gang because the gang’s status would increase if defendant were reputed to possess a firearm.” (Id. at p. 1505.)
The Court of Appeal rejected the defendant’s contention the evidence was insufficient to support the gang enhancement. Despite the defendant’s self-serving testimony that, after being shot several years before his arrest, he became fearful for his life and possessed the gun for protection, the court concluded the overall evidence supported a conclusion he possessed the firearm for the benefit of his gang. (People v. Garcia, supra, 153 Cal.App.4th at p. 1512.)
We reach the same conclusion here. Defendant’s status as a “soldier” in the Oak Park Bloods and Ridezilla, which includes his reputation for always carrying a gun and being willing to use it to enhance the gang’s status, coupled with expert testimony regarding the role of guns in gang culture, provide substantial evidence that defendant’s possession of a firearm on August 4, 2005, was for the benefit of a criminal street gang.
II
Concurrent Sentences on Counts Five and Six
On count five, defendant was convicted of the lesser included offense of fleeing a pursuing peace officer while operating a motor vehicle, a misdemeanor. (Veh. Code, § 2800.1, subd. (a).) On count six, he was convicted of resisting arrest, also a misdemeanor. (Pen. Code, § 148, subd. (a).) He was sentenced to concurrent terms of 180 days in county jail on these offenses.
Defendant contends the trial court was required to stay one of these terms pursuant to section 654, because both offenses were committed with a single objective of avoiding arrest. Defendant further contends this claim is not forfeited for purposes of appeal, despite his failure to object, because the sentence imposed is unauthorized and, hence, in excess of the court’s jurisdiction. (See People v. Hester (2000) 22 Cal.4th 290, 295.)
The People agree the issue has not been forfeited, but contend it is moot, inasmuch as defendant has already served the 180 days and staying one of the 180-day terms will have no practical impact. However, while the issue might technically be moot, it is the type capable of repetition yet eluding review. We shall therefore exercise our discretion to address it here. (See In re Hoddinott (1996) 12 Cal.4th 992, 996, fn. 3.)
Section 654 reads: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision....” Although this section speaks in terms of “an act or omission,” it has been interpreted to include situations in which several offenses are committed during a single course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.) The key inquiry is whether the objective and intent attending more than one offense committed during a continuous course of conduct was the same. (People v. Brown (1991) 234 Cal.App.3d 918, 933.)
The People argue that, regardless of the defendant’s intent and objective, if two offenses with a single objective are nevertheless divisible in time, multiple punishments are permitted. The People argue the present matter involved two separate offenses--fleeing from the officers in a motor vehicle followed by flight on foot--which are divisible in time and present separate risks. After defendant’s vehicle came to a stop at the concrete divider on Florin Road, defendant had an opportunity to reflect on his actions. However, instead of surrendering to the authorities, defendant resumed his flight on foot. In doing so, the People argue, defendant exposed the pursuing officers to additional risks.
In People v. Beamon, supra, 8 Cal.3d 625, the California Supreme Court noted: “It seems clear that a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.” (Id. at p. 639, fn. 11.) “This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
The most common example of this temporal separation occurs where a defendant commits a series of sex offenses during a single course of conduct with the single objective of sexual gratification. For example, in People v. Perez (1979) 23 Cal.3d 545, the defendant committed several sex offenses, including oral copulation, sodomy, and rape, during a single episode lasting 45 minutes. The defendant contended he could be punished only once, because all offenses were committed for the single objective of sexual gratification. The high court disagreed, explaining: “Such an intent and objective is much too broad and amorphous to determine the applicability of section 654.” (Id. at p. 552.) In People v. Harrison (1989) 48 Cal.3d 321, the defendant inserted his finger into the vagina of the victim three separate times during the course of his assault, which lasted seven to ten minutes. The court found multiple punishment to be appropriate. (Id. at pp. 337-338.)
This principle has been applied in other contexts as well. For example, in People v. Foster (1988) 201 Cal.App.3d 20, the court upheld multiple punishments for robbery and false imprisonment where the defendant and an accomplice robbed a convenience store and then locked the clerks and a customer in the store’s cooler. (Id. at pp. 23, 28.) The court rejected the defendant’s argument that the false imprisonment was merely incidental to the robbery, explaining: “The imprisonment of the victims occurred after the robbers had obtained all of the money, and therefore was not necessary or incidental to committing the robbery. Locking the victims in the store cooler was potentially dangerous to their safety and health. It is analogous to a needless or vicious assault committed after a robbery, which has long been held separately punishable and distinguishable from an assault which is merely incidental to robbery.” (Id. at pp. 27-28.)
In this instance, commission of the first offense, fleeing a pursuing peace officer while operating a motor vehicle, ended when the Mercedes came to rest at the concrete divider on Florin Road. At that point, defendant had a choice either to surrender to authorities or to continue his attempt to escape on foot. He chose the latter. In doing so, he committed a new offense, resisting arrest, which introduced a new set of risks to the pursuing officers and the surrounding neighborhood. Although the two offenses had the same general objective, avoiding arrest, they were nevertheless temporally separate and distinct crimes.
“The purpose of section 654 is to ensure that a defendant’s punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252.) The present matter involves separate criminal acts. When defendant chose to continue his flight on foot, he introduced new risks to the officers and the public and thereby increased his culpability. Multiple punishments were therefore appropriate.
III
Restitution Fine
At the end of the sentencing hearing, after the trial court ordered that defendant be delivered to the Department of Corrections and Rehabilitation, the court stated: “I also order the additional fines and fees set forth in the typewritten probation report.” The probation report recommended a restitution fine on the felony counts in the amount of $2,000. Defense counsel asked: “Are those the minimum fines and fees?” The court responded: “Yes. On the restitution fine, it’s the calculation that’s set forth by statute.”
Defendant contends the trial court erred in imposing the $2,000 restitution fine. He argues the court failed to exercise its discretion in this regard, because it believed the fine imposed was the minimum required by statute.
The People contend defendant forfeited this argument for purposes of appeal by failing to object at the sentencing hearing. We agree.
“As a general rule, only ‘claims properly raised and preserved by the parties are reviewable on appeal.’” (People v. Smith (2001) 24 Cal.4th 849, 852.) “The purpose of the waiver doctrine is to bring errors to the attention of the trial court so they may be corrected or avoided. [Citation.] The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law.” (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.) This applies to errors regarding the imposition of restitution fines, which are often fact-specific. (Ibid.)
Defendant contends the issue is not forfeited, because he effectively objected by asking if the fines and fees are the minimum. We disagree. Although the court answered yes to defense counsel’s question, the court went on to say the restitution fine is the calculation set forth by statute. Properly interpreted, this response suggests the court understood the fines and fees imposed were the minimum, except for the restitution fine, which was the amount set forth in the statute. Section 1202.4, subdivision (b)(2), states: “In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” The fact that the court imposed a restitution fine it believed corresponded to a statutory calculation does not mean the court believed it was required to impose this amount. The statute says the court “may” use this formula, and, absent a contrary showing, we presume the court understood its discretion in this regard. (Evid. Code, § 664; People v. Frye (1994) 21 Cal.App.4th 1483, 1486; People v. Young (1991) 228 Cal.App.3d 171, 186.)
Defendant contends he had no meaningful opportunity to object, inasmuch as the discussion of the restitution fine came at the end of the sentencing hearing. Again, we disagree. Defendant had access to the probation report before the sentencing hearing and thus was aware of the restitution fines recommended therein. Had defendant objected at sentencing, this would have provided the prosecution and the court an opportunity to correct any misunderstandings or errors.
IV
Multiple Restitution Fines
Defendant contends the trial court erred in imposing multiple restitution fines: a $2,000 fine for the four felonies, and two $100 restitution fines for the misdemeanors. Defendant argues the court was required to impose one restitution fine for all offenses.
The People contend this issue too has been forfeited by defendant’s failure to object at the sentencing hearing. However, as we understand defendant’s argument, he contends imposition of multiple restitution fines is not statutorily authorized. In other words, imposition of multiple restitution fines amounts to an unauthorized sentence. Such an issue may be raised for the first time on appeal. (People v. Smith, supra, 24 Cal.4th at p. 852.)
“Where a defendant has been convicted of several felony offenses in one proceeding, a restitution fine is not imposed on ‘each count’ but instead one fine is imposed taking into account all the offenses in the proceeding; this proposition is based on the language of section 1202.4, subdivision (b) which states that in ‘every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine,’ and then sets forth a formula for calculating the total amount.” (People v. Holmes (2007) 153 Cal.App.4th 539, 547.)
However, where the court imposes sentence on both felonies and misdemeanors in a single action, this may not be possible. Section 1202.44 requires the trial court to impose a probation revocation fine equal to the restitution fine imposed under section 1202.4 whenever the defendant is granted probation. Section 1202.45 requires the court to impose a parole revocation fine equal to the amount of the section 1202.4 fine whenever a defendant is sentenced to prison and subject to parole. In People v. Holmes, supra, 153 Cal.App.4th 539, the defendant was convicted of a felony and a misdemeanor, sentenced to state prison on the felony, and granted probation on the misdemeanor. We concluded the trial court could not impose one restitution fine to cover both offenses, because the court could not impose equal probation and parole revocation fines. The defendant was subject to a probation revocation fine only for the misdemeanor and was subject to a parole revocation fine only for the felony. Therefore, we concluded the court did not err in imposing separate restitution fines for the felony and the misdemeanor. (Id. at pp. 547-548.)
Here, the court imposed a $2,000 restitution fine on the felonies and an equal parole revocation fine. If the court had combined the restitution fines on the felonies and the misdemeanors, for a total restitution fine of $2,200, it could not have imposed an equal parole revocation fine, inasmuch as defendant was not subject to parole revocation on the misdemeanors. Therefore, separate fines were necessary. (People v. Holmes, supra, 153 Cal.App.4th at pp. 547-548.)
V
Custody Credits
The People point out the abstract of judgment incorrectly lists defendant’s custody credits. The probation report indicates defendant is entitled to credit for 501 days of custody. At sentencing, the court indicated defendant is entitled to 254 days of conduct credit. However, the abstract of judgment reverses these numbers. This must be corrected.
The People also argue defendant is not entitled to 501 days of actual credit, because he has already been given credit for 180 of these days on his misdemeanor convictions. As noted above, the trial court sentenced defendant to concurrent terms of 180 days on the misdemeanors and gave him credit for time served. The People argue defendant is therefore entitled to only 321 days of actual credit (501 minus 180). The trial court agreed and, at sentencing, indicated defendant is entitled to only 321 days of actual credit.
Defendant argues the subtraction of 180 of actual credits is inappropriate, because it must be presumed the court sentenced the misdemeanor terms to run concurrently to the felony terms. Defendant argues the court failed to specify whether the misdemeanor and felony terms are to run concurrently or consecutively. Therefore, under section 669, the terms must be deemed to run concurrent.
We disagree. At sentencing, the court said: “I’m going to sentence on the misdemeanors first, Count 5 and Count 6. I’m denying probation. The Defendant is--On Count 5, the 2800.1 of the Vehicle Code, the Defendant is ordered to serve 180 days in county jail. He will pay a restitution fine of $100. As to Count 6, he is ordered to serve 180 days in the county jail concurrent and pay a $100 restitution fine. The total amount on the misdemeanors is 180 days, and the aggregate--He will get credit for time served on those.”
As we read the foregoing, the trial court sentenced defendant to 180 days on the misdemeanors and then gave him credit on that sentence for 180 days of the time he served in jail. The court then went on to sentence on the felonies. By giving defendant credit on the misdemeanors before sentencing on the felonies, the court made clear the terms on the felonies were to run consecutively to the terms on the misdemeanors. This is further reinforced by the court’s pronouncement that defendant is entitled to only 321 days of actual credit. Therefore, the abstract of judgment must be amended to reflect the subtraction of 180 days of actual credit already awarded on the misdemeanors.
Disposition
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect 321 days of actual credit and 254 days of conduct credit and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P. J., ROBIE , J.