Opinion
A129130
12-07-2011
THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO MARQUEZ GUZMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 50811711)
Defendant Humberto Marquez Guzman appeals from his conviction in Contra Costa County Superior Court for driving under the influence of alcohol (DUI) and driving with an excessive blood alcohol level. He argues the trial court committed prejudicial error in denying his motion to suppress evidence obtained as the result of his detention via a traffic stop, requiring reversal of both counts. We affirm this portion of the judgment.
Defendant further argues, and the People concede, that portions of the judgment are incorrect, requiring that the matter be remanded for the trial court to specify the amounts of his DUI fine and penalty assessments, and the statutory basis for these assessments, and to stay his sentence on count 2. We agree.
BACKGROUND
In October 2009, the Contra Costa County District Attorney filed an information charging defendant with driving under the influence of alcohol (Veh. Code, § 23152, subd. (a), count 1) and driving with an excessive blood alcohol level (Veh. Code, § 23152, subd. (b); count 2). It was alleged regarding both counts, pursuant to Vehicle Code sections 23550.5 and 23578 respectively, that defendant's blood alcohol level reached a level of 0.15 percent and more and that he had suffered a prior felony DUI conviction within the past 10 years. It was further alleged pursuant to Penal Code section 667.5, subdivision (b) that defendant had suffered two prior prison convictions and, pursuant to section 1203, subdivision (c)(4), that he was not eligible for probation.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed a pretrial motion to suppress evidence obtained as a result of his detention via a traffic stop, which the trial court denied. A jury trial began in May 2010.
At trial, the prosecution presented the testimony of two Pittsburg, California police officers. Officer Roger Estrada testified that on May 22, 2008, while on patrol in a marked patrol car, he conducted a traffic stop of defendant's vehicle when defendant made a right-hand turn onto Railroad Avenue without using his turn signal in violation of Vehicle Code section 22107. In the course of the stop, Estrada suspected that defendant was intoxicated because he exhibited various signs of intoxication and told Estrada he had consumed four bottles of beer earlier. Estrada arrested defendant after a preliminary alcohol screening (PAS) test signaled a positive reading of alcohol. Shortly after 1:00 a.m. at the police station, Estrada administered two breath tests to defendant; both indicated defendant had a blood alcohol level of 0.17 percent.
Sergeant Patrick Wentz testified that he was dispatched to the scene to assist Estrada. He observed that defendant's eyes were watery and bloodshot, and he detected an odor of alcohol as defendant blew into the PAS device. The PAS device indicated a positive reading for alcohol.
After the prosecution presented its case, the defense rested without putting on any further evidence, choosing to rely on the state of the evidence.
Verdict and Sentencing
The jury found defendant guilty of both counts and found the allegation that his blood alcohol level was over 0.15 percent to be true. Defendant waived his right to have allegations of prior convictions tried before a jury, and the trial court found them to be true as well. The court sentenced him to four years in state prison, which sentence was comprised of two years for his count 1 conviction, two years for his count 2 conviction to run concurrently, and one year for each prior prison enhancement.
Defendant filed a timely notice of appeal.
DISCUSSION
I. The Court's Ruling on Defendant's Motion to Suppress
Defendant first argues that he is entitled to a new suppression hearing pursuant to section 1538.5 because the trial court did not determine whether the prosecution had established by a preponderance of the evidence that defendant's detention was lawful. We disagree. A. The Proceedings Below
Prior to trial, defendant filed a motion to exclude evidence as "resulting from an unlawful search and/or seizure" pursuant to section 1538.5, including any and all items found on defendant's person or in his vehicle, statements made by defendant, any observations made by the officers, and any testimony regarding these observations. In his written motion, defendant argued the police acted unreasonably in conducting a warrantless detention and search and seizure, and also did not observe what they alleged to have observed. Defendant noted that the People had the burden of establishing the legality of a warrantless search.
In their opposition, the People argued that Estrada, having seen defendant turn his vehicle without using his signal light, had a reasonable suspicion that defendant had violated the Vehicle Code and, therefore, conducted a lawful traffic stop and detention. The People asserted the police were entitled to arrest defendant because of the evidence obtained during the detention indicating he was driving under the influence of alcohol and with a suspended license.
The hearing initially occurred in July 2009, at which time Estrada, defendant, and defendant's wife, Lisela Guzman, testified. The People argued that Estrada "testified credibly that he stopped defendant because he did not put on his turn signal before turning" after observing defendant make an abrupt right turn that affected the car directly behind him. Defense counsel, noting that the People had the burden of proof, argued that the court should grant defendant's motion if it believed defendant or thought both witnesses credible, and that not using a turn signal was not a traffic violation. He also acknowledged that whether or not defendant was under the influence was "a separate question" that "was not directly relevant" to the issue before the court.
The court then stated that the "holding order is set aside on the charges." Asked for clarification by the prosecutor, the court stated that it found the traffic stop was proper but did not deny the motion because, it said, "[t]here's insufficient evidence at this juncture that warrants the court making a finding that he was driving under the influence." The prosecutor questioned the court's ruling, asserting the only issue raised by defendant's section 1538 motion was whether the detention was proper. The court said it was satisfied that a traffic violation occurred, but "that doesn't trigger all the things that follow"; defendant might be entitled to a traffic ticket, but not the kind of charge made by the People "without any kind of intoxication or bad driving." The prosecutor moved to reopen the matter to present additional evidence, which the court granted. We now summarize all of the evidence presented on the multiple hearing dates.
1. The Prosecution's Evidence
Estrada testified that approximately 12:24 a.m. on the night in question, he was in his patrol vehicle in a parking lot on East 10th Street facing south when he noticed a black Chevy Silverado pass on the road directly in front of him, traveling from east to west. About two minutes later, he saw this same vehicle pass in front of his patrol vehicle again, traveling in the same direction as before. Although Estrada did not observe any traffic violation, he followed the vehicle because it was a tough area and he was concerned about "any possible suspicious circumstance." Another vehicle, a four-door sedan, rode between his vehicle and the Silverado.
When the Silverado made an abrupt right turn onto Railroad Avenue without any turn signaling, Estrada recognized a traffic violation and initiated a traffic stop. The Silverado was about two car lengths ahead. Estrada activated his overhead lights and, when the Silverado did not slow down, his horn and yelp siren. Defendant pulled into a post office parking lot about two and a half to three blocks from where Estrada had activated his lights.
Estrada testified that the driver was defendant. Upon contacting defendant, Estrada observed his eyes were bloodshot and watery, his speech was slurred, and his breath emitted an odor of alcohol. Defendant also appeared to be "very upset and aggressive." When Estrada asked for his driver's license, defendant said he did not have one and provided his California state identification card. Estrada then learned from a records check that defendant's driver's license was suspended.
Estrada said he then asked defendant whether he had consumed any alcoholic beverages. Defendant replied that he had consumed four 12-ounce bottles of Bud Light beer by 10:30 p.m. Defendant also said that he knew his driver's license was suspended, but that he "was just going to go visit a friend."
Estrada testified that he recognized from his training that defendant's bloodshot and watery eyes, slurred speech, and odor of alcohol were indications that he was driving under the influence. He asked defendant to perform field sobriety tests, but defendant stated that he could not because he had back injuries and "would just blow in the machine." Sergeant Wentz arrived with a PAS device and administered the test to defendant. The test results confirmed Estrada's suspicions, and defendant was placed under arrest for driving under the influence and with a suspended driver's license.
On cross-examination, Estrada acknowledged that he had been a police officer for a year and a half at the time of the incident. He could not recall whether he was still on probation as a new officer at the time.
2. The Defense Evidence
Defendant testified that he was driving home when he noticed a patrol car pull out of a parking lot and follow him. Defendant turned on his "blinker" before turning right. He turned the corner, drove about 200 feet, and saw the patrol car turn the same corner. When he reached the post office parking lot, he put on his turn signal and began turning, which was when he saw the lights and sirens. He continued to turn into the parking lot and stopped about 80 feet from the parking lot entrance.
Taylor Miller, an investigator with the Contra Costa County Public Defender's Office, testified that he had previously investigated several hundred DUI cases as a police officer. Working from Estrada's police report, he reconstructed the positions of the vehicles at the corner of East 10th and Railroad Avenue before defendant made his turn in order to determine "whether it was possible that a patrol car—two car lengths behind another car with one car in between—would be able to see a turn signal" such as defendant's. Miller assumed the vehicles were lined up in "parade formation." He placed a Ford Taurus (which he indicated had the same chassis as a standard patrol car) behind defendant's actual vehicle, and then sat in the backseat of another Taurus and took photos from the driver's vantage point, which were reviewed at the hearing. He concluded that an officer in a standard patrol car would not be able to see a blinking turn signal on defendant's vehicle. He acknowledged his experiment was only valid if the second car was a Ford Taurus, and that all that was known about the second car was that it was a four-door sedan.
Lisela Guzman, defendant's wife, testified that between 1:00 a.m. and 2:00 a.m. on the night of the incident, a police officer, whose name she could not remember, called and told her defendant had been arrested for having a suspended license and no proof of insurance.
3. The Prosecution's Rebuttal Evidence
Estrada was recalled by the prosecution. He testified that he drifted to the left and right some amount of inches in order to get a better view of defendant's license plates and try to see inside defendant's vehicle before stopping it, as he normally did at night when a vehicle was in front of him. He recalled that defendant's vehicle "was offset more to the right than strictly in front of the vehicle—in front of my vehicle." He also testified that he asked defendant about his failure to signal, and defendant said he did not know he had to turn on his signal before making a right-hand turn.
In argument, the prosecutor, contending the traffic stop had already been established as valid, focused on Estrada's right to act on his observations of defendant's inebriated appearance and demeanor upon coming in contact with him to detain and arrest him. He also referred to Estrada's testimony that he learned in the course of the stop that defendant did not have a valid driver's license.
Defense counsel argued that Miller's experiment showed Estrada's testimony was false. He contended Estrada did not drift left and right; it was not referred to in his police report or in his testimony at the initial hearing, and it did not make sense for Estrada to look for defendant's license plate. He also claimed Estrada was on probation and "faced a variety of punishments if he made a stop that was not initially valid." He argued defendant credibly testified that he did not commit a traffic violation when he turned, and that "the burden is on the People to prove that there was a valid traffic stop." He concluded by urging the court find that the People "have not met their burden of proof in this case."
The court denied defendant's motion. After some preliminary remarks about other states utilizing audio/video equipment in police vehicles, the court stated:
"But this is a case in which you folks ought to resolve it. There is sufficient evidence here and, as you know, on a [section] 1538.5 the standard's not the same as at trial, which is beyond a reasonable doubt that there was—there's some evidence. This is not a [section] 995. I know the distinction. But, nevertheless, there's some evidence that would support the prosecution's theory, and there's certainly some evidence that would support the defense's theory.
"Now, the defense has no burden at trial, but when a defendant seeks a [section] 1538.5 ruling, you're not by the same standards. You could sit through a trial and do nothing, but you can't sit through a [section] 1538.5.
"So it's pleasant to see you folks here, but there's some evidence that would support the officer in concluding that the turn was made without a signal which gave him cause to talk to the driver. Obviously, when he got to talk to the driver, the officer detected the usual symptoms that you have, and that's—when I was a lawyer, that's the only thing you did have was the—they take you out of the car and put you through the tests and so on and so forth, stand on one leg if you could, walk in a line if you could and so forth.
"So the motion is going to be denied. It will be interesting to see what happens, but both of you have a heavy burden. The prosecution particularly has a heavy burden, and defense had no burden at trial so go from there." B. Analysis
According to defendant, the trial court's statement that "there's some evidence that would support the prosecution's theory, and there's certainly some evidence that would support the defense's theory," demonstrates that it applied a "some evidence" standard instead of the applicable preponderance of the evidence standard. We disagree.
In a motion to suppress the fruits of a warrantless search, "[a] warrantless search is presumed to be unreasonable, and the prosecution bears the burden of demonstrating a legal justification for the search." (People v. Redd (2010) 48 Cal.4th 691, 719.) The People show a detention and search were legally justified by a preponderance of the evidence. (People v. Torres (1992) 6 Cal.App.4th 1324, 1334.) " 'A preponderance of the evidence standard . . . simply requires the trier of fact "to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact's existence." ' " (In re Angelia P. (1981) 28 Cal.3d 908, 918.) "In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence." (People v. Lawler (1973) 9 Cal.3d 156, 160.) "In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Furthermore, in the absence of evidence to the contrary, " '[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Also, Evidence Code section 664 provides that a trial court is presumed to have been aware of and followed the applicable law. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) The effect of the rebuttable presumption created by Evidence Code section 664 is " ' "to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact." ' " (Id. at pp. 549-550.)
The People argue that the court's ruling, however inartfully stated, including its reference to "sufficient evidence," when read in context reflected a finding that Estrada's testimony was the more credible account and sufficient to rely on to deny defendant's motion under the correct burden of proof. Relying on People v. Price (1992) 4 Cal.App.4th 1272 (Price) and People v. Thomas (2011) 51 Cal.4th 449, 474-475 (Thomas), they argue that the court's inartful elaboration does not constitute affirmative evidence that it failed to apply the proper legal standard and that we should presume the court acted properly pursuant to Evidence Code section 664. We agree.
In Price, the defendant challenged the trial court's denial of a motion for a new trial by highlighting this statement by the court: " 'Okay, and, counsel, I did read and consider the points and authorities, and I didn't take it lightly, but I respectfully deny the request for a new trial. I think the evidence was sufficient, and I think that the jury— there was enough evidence there for the jury to do what the jury did[.]' " (Price, supra, 4 Cal.App.4th at p. 1275.) The defendant argued this demonstrated the court's failure to independently weigh the evidence as required. (Ibid.)
The appellate court disagreed, holding that the trial court applied the proper test. It concluded that the trial court's exercise of its independent judgment was reflected in its statement that the evidence was sufficient, and its further comment that there was substantial evidence to support the jury's determination was "surplusage." (Price, supra, 4 Cal.App.4th at p. 1275.) The appellate court also concluded that, while it preferable for the trial court to have been more specific in its ruling, "its failure to do so and its use of less than artful language cannot be equated with having applied the wrong standard." (Id. at p. 1276.)
Similarly, in Thomas, our Supreme Court rejected a claim of error in reviewing another inartful statement by a trial court. Defendant moved for a mistrial after the prosecutor used a peremptory challenge to remove from the jury the sole remaining African-American. (Thomas, supra, 51 Cal.4th at p. 471.) Without determining whether the defendant had made a prima facie showing of group bias, the trial court asked the prosecutor to explain his reasons. (Ibid.) The prosecutor stated that he exercised the peremptory challenge " 'not because [the prospective juror] is [B]lack, but because he is irresponsible,' " and listed several facts and other reasons to support his conclusion. (Id. at pp. 472-473.) In denying the defendant's motion, the trial court stated, " '[T]here is just lots of reasons I think besides being [B]lack that a challenge could be exercised.' " (Ibid.)
The defendant argued that the trial court failed to determine whether the prosecutor's stated reasons for exercising the peremptory challenge were pretextual and instead " 'found in the abstract that there were "lots of reasons . . . besides being [B]lack that a challenge could be exercised." ' " (Thomas, supra, 51 Cal.4th at p. 474.) The Supreme Court disagreed, noting that the prosecutor stated numerous nondiscriminatory reasons for exercising a peremptory challenge against the prospective juror, and that, read in context, the trial court's statement in denying the defendant's motion for a mistrial was "an inartful way" of saying that the prosecutor had relied upon reasons other than the prospective juror's race in exercising the peremptory challenge. The court indicated that an express finding pursuant to the correct standard was preferable, but not required, and held the trial court did not err. (Id. at p. 475.)
Here, the trial court's statement of its ruling was, like those considered in Price and Thomas, inartful. We remind the jurist presiding at the hearing what he undoubtedly knows from his many years of distinguished service and experience: the better practice is to refer to the specific burden of proof in announcing the court's ruling, i.e., preponderance of the evidence, and to avoid referring to such things as "some evidence" that may cause parties to argue the court applied the wrong burden of proof, even though the court did not do so.
Nonetheless, we have closely reviewed the court's ruling and conclude it does not contain affirmative evidence of error. Moments after defense counsel urged the court to find that the People did not reach their burden of proof, the court stating its grounds for denying the motion. It first indicated that "[t]here is sufficient evidence here." It then referred to two other times in criminal cases when the prosecution bears the burden of proof, at trial and regarding a "995," apparently a reference to motions brought pursuant to section 995 to set aside an information or indictment. (See, e.g., Roman v. Superior Court (2003) 113 Cal.App.4th 27, 31-32 [discussing the burden of proof and procedures involved regarding a section 995 motion].) Specifically, the court referred to the reasonable doubt standard at trial, and then stated, "This is not a 995. I know the distinction." The court's references suggest it was aware that the prosecution had the burden of proof here, albeit one that had differences from those at trial or regarding a section 995 motion.
Only after the court referred to "sufficient evidence" and the prosecution's burdens in other circumstances did it refer to "some evidence" existing to support both sides' theories. The court then immediately turned to a discussion about the facts, and referred only to the existence of "some evidence" to support Estrada's conclusion that the turn was made without a signal and to detain defendant. Based on these facts, the court stated, "So, the motion is going to be denied."
The court's reference to "some evidence" does not mean it was applying the incorrect burden of proof. The court's focus on other circumstances when the prosecution bears the burden of proof and the prosecution's evidence indicates it found the prosecution's to be the most credible evidence of what occurred, and a sufficient basis for denying defendant's suppression motion. The court's reference to "some evidence" existing on both sides was surplusage; when placed in context, it appears to be a mere acknowledgment that the court was to weigh the evidence presented at the hearing.
Defendant, citing the trial court's reference to "some evidence," relies heavily on People v. Dickerson (1969) 273 Cal.App.2d 645 to argue error. An officer's warrantless search of Dickerson's apartment resulted in the seizure of critical evidence. To justify this search, the prosecution relied on the officer's testimony that Dickerson's pregnant, common law wife allowed him to enter, while the defense relied on the wife's testimony that she denied him entry. (Id. at pp. 646-650.) The trial court, in choosing to believe the officer, stated the issue was one of " 'a question of interest or bias or prejudice. The [c]ourt must believe one or the other.' " (Id. at p. 650.) The appellate court ordered a retrial because the trial court improperly stated that it "must believe one or the other," and consequently its ruling, which was made pursuant to this "nonexisting compulsion," was erroneous. (Id. at p. 651.)
Defendant's reliance on Dickerson is unpersuasive because the court here was not improperly influenced by any similar "nonexistent compulsion" in ruling. As we have already indicated, the trial court's statements indicate it believed Estrada's testimony to be more credible and sufficient to meet the prosecution's preponderance of the evidence burden of proof, and that it was denying the suppression motion on that basis.
This was consistent with the court's initial ruling that the traffic stop was justified, before it allowed the People to reopen the matter.
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For the same reasons, we reject defendant's argument that the record affirmatively rebuts the presumption that the court properly performed its duty contained in Evidence Code section 664. (See Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [noting that "scores of appellate decisions," relying on the presumption, have held "that 'in the absence of any contrary evidence, we are entitled to presume that the trial court . . . properly followed established law' "].)
The other cases cited by defendant are also unpersuasive because they each discuss affirmative evidence of error, which is absent here. (See People v. Sullivan, supra, 151 Cal.App.4th at pp. 550-551; People v. Van Gorden (1964) 226 Cal.App.2d 634, 638-640; People v. Ibanez (1999) 76 Cal.App.4th 537, 548-549; Ehrenreich v. Shelton (1963) 213 Cal.App.2d 376, 378-379.)
Therefore, we reject defendant's argument that reversal is necessary because the trial court did not determine whether the prosecution had established by a preponderance of the evidence that defendant's detention was lawful. Accordingly, we do not reach the issue of whether any error was prejudicial.
II. The DUI Fine and Penalty Assessments
Defendant argues, and the People agree, that the matter must be remanded to enable the trial court to specify the amounts of the DUI fine and penalty assessments, as well as the statutory basis for the assessments. We agree.
As defendant points out, under California law, "[a]ll fines and fees must be set forth in the abstract of judgment." (People v. High (2004) 119 Cal.App.4th 1192, 1200.) A court must specify in the abstract of judgment the various amounts of fines and penalty assessments, with reference to the statutory bases for them. (Ibid.; People v. Eddards (2008) 162 Cal.App.4th 712, 717-718.)
At the sentencing hearing, the trial court imposed various fees, fines, and penalty assessments. These included an $800 restitution fine under section 1202.4; an $800 parole revocation fine under section 1202.45, which was imposed and stayed; a $60 court security fee on counts 1 and 2; a $60 criminal conviction assessment fee on counts 1 and 2; a $176 fee for the preparation of the probation report under section 1203.1b; and $500 in attorneys' fees. The trial court also stated at the hearing that it was imposing "a DUI fine [of] $1,651," which is referred to in its report and sentence as $1,561 and in the abstract of judgment as $1,651.
Defendant contends, and the People agree, that the court's statement of these fines and assessments is incomplete. He also argues that pursuant to Vehicle Code section 23550.5, subdivision (a), the fine assessed should have been not less than $390 and not more than $1,000. The People acknowledge the statutory limits on the fine, but also contend there are mandatory penalty assessments pursuant to Government Code section 7600, subdivision (a) and section 1462.
We are not asked to reverse the court's determination of the amounts imposed; rather, the parties agree that remand is appropriate so that the trial court can, as required, delineate the specific fine amounts and penalty assessments, and the statutory bases for these assessments. We agree. "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." (People v. High, supra, 119 Cal.App.4th at p. 1200.) We remand this matter and order the trial court to delineate the specific fines and assessments, and the statutory bases for the assessments, and prepare an amended abstract of judgment so stating.
III. The Court's Sentencing
Finally, defendant argues, and the People agree, that the trial court erred in failing to stay his sentence on count 2. The parties are correct.
Based on the same conduct, defendant was convicted of violating Vehicle Code sections 23152, subdivisions (a) and (b). At defendant's sentencing hearing, the trial court stated, "The court is going to sentence [defendant] to the midterm of two years for count 1. That will be the principal term. And that is pursuant to [Vehicle Code section] 23153[, subdivision] (a), with the range of sentences for that term of 16 months, two years, and three years. [¶] As to count 2, the court will sentence [defendant] to two years concurrent because of an issue of [section] 654." The abstract of judgment indicates the two-year sentence for count 2 is to run concurrent to that for count 1.
As the parties point out, 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." (§ 654, subd. (a).) Section 654 "prohibits multiple punishments, not convictions, when there is a single act or an indivisible course of conduct." (See People v. Duarte (1984) 161 Cal.App.3d 438, 446-447; People v. Subramani (1985) 173 Cal.App.3d 1106, 1110-1111 [staying a dual conviction for violating Vehicle Code section 23153 pursuant to section 654, after concluding that dual convictions under Vehicle Code sections 23152 and 23153 are to be treated the same].)
The trial court's imposition of a concurrent sentence for count 2 violated section 654's prohibition against multiple punishments for a single act or an indivisible course of conduct. The judgment below is hereby modified so that the sentence as to count 2 is stayed pursuant to section 654. (People v. Subramani, supra, 173 Cal.App.3d at p. 1111.)
DISPOSITION
We remand this matter and order the trial court to delineate the specific fines and assessments, and the statutory bases for the assessments, and prepare an amended abstract of judgment so stating, consistent with this opinion.
The judgment below is hereby modified so that the sentence as to count 2 is stayed pursuant to section 654. This too is remanded to the trial court so that it may prepare an amended abstract of judgment so stating.
A certified copy of the amended abstract of judgment shall be sent to the Department of Corrections and Rehabilitation
In all other respects, the judgment is affirmed.
Lambden, J. We concur: Haerle, Acting P.J. Richman, J.