Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. BA249220, Curtis B. Rappe, Judge.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Appellant makes two assignments of error. First, he contends that Penal Code section 654 required the court to stay the prison terms imposed for his money laundering convictions, arguing that the money laundering was incidental to both tax evasion and conspiracy to commit insurance fraud and grand theft. Second, appellant contends that the trial court acted without authority in ordering restitution to the California Department of Insurance for its investigative costs. We agree that a portion of the restitution order was not authorized, and we vacate it and remand for recalculation. However, we conclude that the sentence did not violate section 654, and otherwise affirm the judgment.
All further statutory citations are to the Penal Code, unless otherwise indicated.
BACKGROUND
In a 37-count amended information, appellant and co-defendants Robert Doran Belshaw and Marilyn Kay Hill were charged with conspiracy to commit insurance fraud and grand theft (count 1). In addition, appellant was charged with insurance fraud (counts 2 through 21), money laundering (counts 22 and 34 through 37), felony failure to file tax returns/tax evasion (counts 23 through 25), filing false income tax returns (counts 29 through 31), and perjury (count 33). Count 1 carried a special allegation that in the course of the conspiracy, the defendants took property with a value of more than $50,000, within the meaning of former section 12022.6, subdivision (a)(1). With respect to the insurance fraud counts (2 through 21), it was specially alleged that the offenses were related felonies, a material element of which was fraud, and that the pattern of offenses resulted in a taking of more than $100,000, within the meaning of section 186.11, subdivision (a)(3). With respect to the money laundering counts (22 and 34 through 37), it was alleged that the transactions exceeded $2,500,000.
At the time of trial, section 12022.6, subdivision (a)(1), provided for a one-year sentence enhancement when a person was convicted of taking, damaging, or destroying property worth more than $50,000. Subdivision (a)(4) provided an additional four-year enhancement when the loss exceeded $2,5000,000.
The insurance fraud scheme was conducted from September 1999 to April 2003, partly from the office suite at 3699 Wilshire Boulevard, which appellant and his two businesses -- Mighty Roar Entertainment (Mighty Roar) and Prestigious Management Services, Inc. (Prestigious Management) -- shared with Belshaw, a lawyer. The scheme was also operated in part from appellant’s office at Total Medical Health Care (Total Medical), a medical clinic operated by appellant and Hill. Drivers working with appellant recruited car owners to act as injured drivers and others to act as injured passengers. The drivers staged automobile accidents by cruising the freeway, identifying tailgaters, and causing them to collide with co-conspirators’ cars. After each collision, the car owner exchanged insurance information with the tailgating driver.
Appellant directed the “injured” recruits to Total Medical for treatment. There, they saw one of the doctors employed by the clinic, falsely complained of symptoms, and received a course of treatment for soft tissue injury, usually heat treatments. Appellant then submitted insurance claims for the recruits, ostensibly from attorney Belshaw, with final medical reports ostensibly signed by physicians employed by Total Medical. The physicians’ signatures on final medical reports were either forged or applied with a cut, paste, and copy method. Within one to three months after the submission of the false claims, the insurance companies issued checks payable jointly to the recruited claimant and Belshaw or the “Law Offices of Robert Belshaw.”
In 2003, Franchise Tax Board and Insurance Department investigators searched the premises at 3699 Wilshire Boulevard. In appellant’s office, the investigators found check ledgers and bank statements relating to attorney-client trust accounts held in Belshaw’s name. The investigators obtained the original checks from the banks. The insurance checks and other monies had been deposited into three trust accounts from 1999 into 2003. The insurance company checks deposited into the three accounts in 1999, 2000, and 2001 totaled more than $2,000,000. Other deposited monies came from checks from illegible payors or payors other than insurance companies, or from funds for which only deposit tickets were found.
Franchise Tax Board Special Agent Paul Murphy testified that he traced disbursements from one trust account that were deposited into the bank accounts of Prestigious Management and Total Health, as well as disbursements from the latter accounts that had been made payable to appellant or cash, and negotiated by appellant. In 1999, 2000, and 2001, a total of $715,781was deposited into an account in the name of Prestigious Management; of that sum, $163,174 had been disbursed from Belshaw’s trust account. Deposits during the same three years into the Total Health account totaled $613,709, of which $246,108 had been disbursed from the trust account. Murphy then traced the checks payable to appellant or cash from the Prestigious Management and Total Health accounts, and endorsed by appellant. The value of the checks issued by Prestigious Management payable to or negotiated by appellant was $19,500 in 1999, $81,915 in 2000, and $92,500 in 2001. The value of the checks issued by Total Medical payable to or negotiated by appellant was $50,200 in 1999, $50,500 in 2000, and $93,900 in 2001.
Appellant filed no corporate tax returns for Prestigious Management. His personal tax returns failed to report monies paid to him by Total Medical and Prestigious Management in 1999, 2000, and 2001.
Appellant’s two California driver’s licenses were the basis of the perjury charge. Appellant held one in the name Solomon Morris Davis, and the other in the name Morris Oliver Davis. He had provided personal indentifying information on the application forms, which included a statement that he had not applied for a license under a different name. The applications were signed under penalty of perjury.
The jury convicted appellant of count 1 (conspiracy to commit insurance fraud and grand theft), counts 2 through 15 and 18 through 21 (insurance fraud), counts 23 through 25 (felony failure to file tax returns/tax evasion), counts 22, 34 and 35 (money laundering), counts 29 through 31 (filing false returns), and count 33 (perjury). Thus, appellant was convicted of submitting four fraudulent insurance claims on September 8, 1999, three on September 27, 1999, two on November 19, 1999, three on December 13, 1999, two on February 28, 2000, three on June 19, 2000, and one on June 27, 2002. The money laundering transactions in which appellant engaged took place from September 1999 through December 1999, and during all of 2000 and 2001.
The jury found appellant not guilty of counts 36 and 37 (money laundering), and was unable to reach a verdict as to counts 16 and 17 (insurance fraud). The jury found not true the special allegation that the money laundering transactions exceeded $2,500,000. However, the jury found true the special allegation that counts 2 through 21 were related felonies, a material element of which was fraud, and that the pattern of offenses resulted in a taking of more than $100,000.
Upon denying appellant’s motion for a new trial, the trial court dismissed the $100,000 enhancement allegation pursuant to section 186.11, subdivision (a)(3). The trial court sentenced appellant to 12 years in prison. The court chose the upper term of five years in prison as to count 1, conspiracy. The court chose the middle term as to each insurance fraud conviction (counts 2 through 21), but stayed imposition of each sentence pursuant to section 654. As to each money laundering conviction (counts 22, 34, and 35), the court sentenced appellant to one-third the middle term, to run consecutively to the conspiracy sentence. For failing to file income tax returns (counts 23, 24, and 25), the court imposed one-third the middle term as to each count, also to run consecutively. For filing false returns (counts 29, 30, and 31), the court imposed one-third the middle term as to each count, to run consecutively. Finally, the court imposed one-third the middle term for perjury (count 33), also to run consecutively. The court imposed no sentence as to the $50,000 enhancement pursuant to former section 12022.6, subdivision (a)(1), because it relied upon that fact to impose the upper term for conspiracy.
Money laundering, failing to file an income tax return, and filing false returns all carry a middle term of two years, as provided by section 18. (See § 186.10, subd. (a); Rev. & Tax. Code, §§ 19705, subd. (a), 19706.) Thus, one-third the middle term imposed for each such conviction was eight months. The middle term for perjury is three years. (§ 126.) Thus, the court imposed one year for appellant’s perjury conviction.
Our review of appellant’s sentencing hearing and the abstract of judgment has revealed that although the court awarded appellant 134 days presentence custody credit, consisting of 90 days by stipulation and 14 days good time/work time credits, the credit was not noted in the abstract. We shall therefore order the trial court to prepare an amended abstract of judgment.
The court ordered restitution in the sum of $1,655,375. The order included restitution to the various defrauded insurance companies and the Franchise Tax Board, as well as to the Department of Insurance for its investigative costs in the sum of $184,380.
Appellant timely filed a notice of appeal June 14, 2005. The appeal was dismissed August 24, 2006, pursuant to California Rules of Court, former rule 17(a)(1), now rule 8.220(a)(1), when no opening brief was filed after notice to counsel. On October 10, 2007, we granted appellant’s motion to recall the remittitur, and the appeal was reinstated. We then granted the motion of co-appellant Belshaw to sever his non published appeal in People v. Belshaw (Jan. 20, 2009, B183878) from appellant’s, and appellant’s appeal was refiled as case No. B203571.
Before the appeal was fully briefed, appellant filed, in propria persona, a petition for writ of habeas corpus, now pending in this court as In re Solomon Davis, No. B211111. Without issuing an order to show cause, we requested a preliminary response from respondent, and allowed additional briefing by appellant. Concurrently with the filing of this opinion, we deny the petition in a separate order.
DISCUSSION
1. Contentions
Appellant contends the trial court imposed consecutive sentences for money laundering in violation of section 654, which prohibits multiple punishment for the same criminal act. He contends that the laundering of funds through Belshaw’s client trust accounts was part of the same indivisible course of conduct as the conspiracy to commit insurance fraud and grand theft, and that the offenses were committed with the same intent and objective: to access fraudulently obtained funds. Appellant further contends that the money laundering offenses were part of the same indivisible course of conduct as the failure to file tax returns with the intent to evade taxes.
Appellant also contends that the trial court erred in making an award of restitution in favor of the Department of Insurance, in a sum necessary to reimburse the Department for its costs of investigation. He contends that under section 1202.4, a governmental agency is entitled to victim restitution only if it was a direct victim of the crime, and that a direct victim is not one who merely investigated or prosecuted the case.
2. Prohibition against Double Punishment
Section 654, subdivision (a), provides: “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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
Construing section 654’s prohibition against double punishment for the same act or omission, the California Supreme Court has held: “Few if any crimes... are the result of a single physical act. ‘Section 654 has been applied not only where there was but one “act” in the ordinary sense... but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.’ [Citation.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
“Under the multiple and independent criminal objectives test, ‘if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.’ [Citations.]” (People v. Vu (2006) 143 Cal.App.4th 1009, 1033, quoting People v. Perez (1979) 23 Cal.3d 545, 551.) “The statute itself literally applies only where [double] punishment arises out of multiple statutory violations produced by the ‘same act or omission.’ [Citation.] However, because the statute is intended to ensure that defendant is punished ‘commensurate with his culpability’ [citation], its protection has been extended to cases in which there are several offenses committed during ‘a course of conduct deemed to be indivisible in time.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
“‘The question of whether the acts of which defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendant’s intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial.’ [Citation.]” (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) “Although the question of whether defendant harbored a ‘single intent’ within the meaning of section 654 is generally a factual one, the applicability of the statute to conceded facts is a question of law. [Citation.]” (People v. Harrison, supra, 48 Cal.3d at p. 335.)
3. Punishment for Money Laundering and Conspiracy
Appellant contends that there was insufficient evidence to support a finding that in committing money laundering, he harbored different objectives from those he harbored in the conspiracy to commit the offenses of insurance fraud and grand theft. Appellant notes that to constitute money laundering, financial transactions must have been made “(1) with the specific intent to promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on of any criminal activity, or (2) knowing that the monetary instrument represents the proceeds of, or is derived directly or indirectly from the proceeds of, criminal activity....” (§ 186.10, subd. (a).) Appellant argues that because the laundered funds were derived from the fraudulent insurance scheme, the money laundering offenses were part of an indivisible course of conduct and incidental to the single objective of furthering the insurance fraud.
Respondent counters that multiple punishment is not barred by section 654 when a second offense is committed in order to avoid detection of the first crime. Respondent cites People v. Nichols, supra, 29 Cal.App.4th 1651, in which the reviewing court found “substantial evidence that appellant had two separate objectives: (1) to hijack the truck by kidnapping and robbing the victim and (2) to avoid detection and conviction by dissuading and intimidating the victim.” (Id. at p. 1657.) The court explained that “[t]he first objective was accomplished in two hours. The second was ongoing. It was initially successful when the victim, fearing for his life, falsely told the police he had been blindfolded and could not identify any of the kidnappers. [¶] The means of achieving each objective was also different. A shotgun pressed against the victim’s stomach achieved the first. Looking at the victim’s driver’s license, reading aloud his address, and threatening future harm achieved the second.” (Id. at p. 1658.)
To illustrate his claim that the insurance fraud conspiracy and the money laundering offenses were done with a single objective and intent, appellant cites People v. Conners (2008) 168 Cal.App.4th 443 (Conners). There, the evidence showed that through a fraudulent real estate transaction, the defendant caused a check to be issued to a foundation. His wife deposited the check into the bank account of the foundation, and over a 10-day period, she wrote -- and the defendant cashed -- five checks totaling more than $44,000, with each check written for less than $10,000. (168 Cal.App.4th at p. 450.) The defendant was convicted of a single count of money laundering and a single count of receiving stolen property. (Id. at pp. 451-452.) The appellate court found that in negotiating the checks, the defendant harbored a single intent -- to receive the stolen funds -- by means of a single, indivisible course of conduct consisting of cashing the checks representing the stolen funds; thus, the court held, the defendant could not be punished separately for money laundering and receiving stolen property. (Id. at p. 458.)
Appellant notes that, like here, the respondent in Conners argued that the manner in which the financial transactions were structured showed an intent to avoid detection. (See Conners, supra, 168 Cal.App.4th at p. 458.) In Conners, the court held that although the facts may have shown that “Conners intended to receive the stolen funds and to avoid detection,” his intent to avoid detection was “clearly incidental to, not independent of, [receiving stolen funds]. Structuring his receipt of the stolen funds in amounts low enough to avoid detection was merely ‘the means of accomplishing or facilitating” a single criminal objective: the receipt of stolen funds.’” (Ibid.)
Appellant argues that the result in Conners compels a finding that transferring funds from Belshaw’s accounts to his own was simply a means of making the proceeds of the insurance fraud accessible, and thus, any wish to avoid detection was incidental to the single objective of obtaining the funds. We disagree, and find Conners distinguishable. In Conners, the court found the single indivisible course of conduct to be the defendant’s act of cashing the checks over a brief period of time. This conduct constituted both the receipt of stolen property and the money laundering itself. The same cannot be said here. Appellant was convicted of conspiracy to commit insurance fraud and three counts of money laundering, spanning a period of years. There was extensive evidence of insurance fraud independent of the evidence of the money laundering offenses. Unlike Conners’s receiving stolen property charge, which was predicated on the identical facts supporting his single money laundering conviction (the cashing of the checks), appellant’s conspiracy to commit insurance fraud was committed before any money laundering occurred. The money laundering assisted, but was not essential to or indivisible from the conspiracy, and the fact that it assisted in perpetrating the fraud does not make it part of an indivisible course of conduct.
Further, to say that appellant’s overall intent was to put ill-gotten gains into his own pocket proves too much. Virtually every illegal step in a fraudulent scheme is customarily designed to enrich the perpetrator, but that fact alone does not trigger application of section 654. As one court has observed, “an assertion of a desire for wealth as the sole intent and objective in committing a series of separate thefts... to preclude punishment for otherwise clearly separate offenses would violate the statute’s purpose to insure that a defendant’s punishment will be commensurate with his culpability. [Citation.]” (People v. Perez, supra, 23 Cal.3d at p. 552.) Appellant’s claimed single objective of accessing the funds is the kind of “broad,” “amorphous,” and “overriding” intent that should not be used to “reward the defendant who has the greater criminal ambition with a lesser punishment. [Citations.]” (Ibid.)
Moreover, the financial transactions were numerous and took place over a period of nearly two and a half years. It is “clear that a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]” (People v. Beamon (1973) 8 Cal.3d 625, 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. [Citation.]” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) For example, in Gaio, the defendant accepted three bribes from one person whose purpose was to obtain official influence in favor of his business. Because the bribes were taken months apart, the court held that, even assuming identical objectives, each was separately punishable. (Ibid.)
An example of a course of conduct pursued with the single objective of accessing fraudulently obtained funds by means of separate offenses, divisible in time, appears in People v. Andra (2007)156 Cal.App.4th 638. There, the defendant used a stolen identity to open bank accounts into which she deposited stolen and forged checks, withdrawing the funds over a period of several weeks. (Id. at p. 642.) The court held that the defendant was properly punished for both identity theft and obtaining money by false pretenses, because “the temporal separation between these crimes, [gave her] substantial opportunity to ‘reflect’ on her conduct and then ‘renew’ her intent to commit yet another crime. [Citation.] She chose, repeatedly, to continue on in her crime spree.” (Ibid.) Similarly, the multi-year period during which appellant continued his crime spree gave him ample time to reflect on his conduct while engaging in the separate offenses of conspiracy and money laundering.
We conclude that the evidence supports a finding that laundering the funds through Belshaw’s accounts was done with an intent to avoid detection, and that such intent was distinct from the intent to access the fraudulently obtained funds. We further conclude that the broad, overriding objective of accessing stolen funds by means of disbursements from the trust funds is not a bar to multiple punishment for the multiple offenses committed repeatedly over a period of more than two years, as appellant did here. (See People v. Andra, supra,156 Cal.App.4th at p. 642.)
4. Punishment for Money Laundering and Tax Evasion
With regard to tax evasion, appellant contends that the transfers of money from Belshaw’s trust accounts to accounts appellant controlled, and then to himself -- along with his failure to file tax returns -- were the means of achieving his objective of tax evasion. Thus, appellant argues, the money laundering offenses were part of an indivisible course of conduct and incidental to the single objective of furthering his evasion of taxes.
The prosecutor argued, without objection, that a conviction for money laundering could be based upon either insurance fraud or tax evasion. However, the prosecution never explained to the jury just how the transactions promoted tax evasion, and the trial court did not instruct the jury that tax evasion would support a money laundering conviction. Indeed, the only predicate criminal activity charged in the money laundering counts of the information was insurance fraud. There was no evidence that the laundering of money through Belshaw’s accounts enabled appellant to hide his receipt of taxable income from the Franchise Tax Board. The evidence of appellant’s tax evasion showed that he failed to report income or pay taxes on the unreported income.
Appellant’s conspiracy to commit insurance fraud is clearly not the “same act or omission” as his failure to report the income derived from the scheme; thus, the conspiracy and the failure to report are separately punishable unless they comprised a course of conduct that could be deemed indivisible in time due to a single objective. (People v. Harrison, supra, 48 Cal.3d at p. 335.) Assuming appellant’s overriding objective in disbursing the funds to himself and his companies was to access the monies derived from the scheme, that objective was necessarily accomplished before appellant was obligated to report the income. Even similar objectives do not preclude multiple punishment when they are consecutive. (People v. Latimer (1993) 5 Cal.4th 1203, 1212.) Moreover, appellant’s intent to obtain the funds was simply not the same as his intent to evade taxes by failing to report them. We conclude that the consecutive terms for money laundering and tax evasion did not violate the double punishment bar of section 654.
5. Unauthorized Victim Restitution
The trial court’s restitution order included reimbursement to the Department of Insurance for its investigative costs in the sum of $184,380. Appellant contends that the court was unauthorized to enter such an order. We agree.
“In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court....” (§ 1202.4, subd. (f).) “For purposes of this section, ‘victim’ shall include... [¶]... [¶]... government, governmental subdivision, agency, or instrumentality... when that entity is a direct victim of a crime.” (§ 1202.4, subd. (k), italics added.) All derivative victims must be natural persons. (§ 1202.4, subd. (k); see Gov. Code, § 13950, subd. (c); People v. Martinez (2005) 36 Cal.4th 384, 386 (Martinez) [decided under similar provisions of former Gov. Code, § 13950].)
“A governmental entity is a direct victim of a crime when, for example, it is a victim of tax evasion or theft of its property. [Citations.]” (Martinez, supra, 36 Cal.4th at p. 393, italics omitted.) “‘Under the relevant case law and the statutory scheme, public agencies are not directly “victimized” for purposes of restitution under Penal Code section 1202.4 merely because they spend money to investigate crimes or apprehend criminals.’ [Citation.]” (Martinez, at p. 393, fn. 1; see also People v. Ozkan (2004) 124 Cal.App.4th 1072, 1076-1077 (Ozkan).) As appellant notes, there was no evidence of direct losses suffered by the Department of Insurance. Its expenditures were made in executing a search warrant, investigating the insurance fraud, acting as custodian of the seized records, tracing deposits and disbursements, interviewing witnesses, and providing the testimony of its investigators. Such expenses do not make a governmental entity a direct victim unless the defendant’s object in committing the crimes was to cause the entity to incur such expenses. (Ozkan, supra, at p. 1077, fn. 2.)
Respondent concedes that the restitution award to the Department of Insurance was improper, but points out that investigative costs that are not recoverable as restitution under section 1202.4 may be recoverable under several provisions of the Insurance Code. Respondent suggests that the award can be upheld under Insurance Code section 1748, which provides for a monetary penalty in disciplinary proceedings brought against persons licensed under the provisions of the Insurance Code. Appellant’s criminal trial was not, however, a disciplinary proceeding, and there was no evidence that appellant was a licensee under the Insurance Code.
Respondent also suggests that the award was proper under Insurance Code section 1871.4, subdivision (b), which provides for criminal penalties for worker’s compensation fraud. There was no evidence in this case of worker’s compensation fraud.
Finally, respondent suggests that the Department’s costs are recoverable under Insurance Code section 1871.7, subdivision (g)(1)(A)(ii), which provides for an award of the Insurance Commissioner’s costs upon obtaining a judgment for civil penalties against any person who has committed insurance fraud. However, such penalties and costs are recoverable only in a civil action brought under that section. (Ins. Code, § 1871.7, subds. (d), (e).)
A governmental entity’s costs of investigation may be recoverable as restitution in a criminal proceeding when mandated by a statute other than section 1202.4. (Ozkan, supra, 124 Cal.App.4th at pp. 1077-1079.) In Ozkan, because the defendant’s conviction of grand theft and failure to file tax returns involved illegal acts relating to weights and measures, the mandatory language of Business and Professions Code section 12015.5 required the trial court to order recovery of investigation costs upon conviction. (Id. at p. 1079.) Business and Professions Code section 12015.5 states: “Any person convicted of violating any of the provisions of this division... shall be liable for reasonable costs incurred in investigating the action.”
There is no similar language in any of the statutes cited by respondent, and thus no mandate for an award of costs upon conviction of an offense described in them. We conclude that the investigative costs of the Department of Insurance were not properly awarded as victim restitution, and that the restitution award must therefore be vacated.
DISPOSITION
The restitution award is vacated, and the matter is remanded with instructions to enter a new restitution award that does not include the investigative costs incurred by the Department of Insurance. Further, upon remand, the trial court is directed to prepare an amended abstract of judgment reflecting appellant’s presentence custody credits (see fn. 4, ante) and to forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.