Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA078436, Richard R. Romero, Judge.
David McNeil Morse, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P.J.
I. INTRODUCTION
Defendant, Antonio Valle, appeals from his convictions for carjacking (Pen. Code, § 215, subd. (a)), first degree robbery (§ 211), two counts of grand theft of a firearm (§ 487, subd. (d)(2)), three counts of firearm possession by a felon (§ 12021, subd. (a)(1)), methamphetamine possession (Health & Saf. Code, § 11377, subd. (a)) and the findings that all of the offenses, with the exception of the methamphetamine possession count, were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The trial court found that defendant had two prior serious felony convictions and served five prison terms. Defendant argues that there was insufficient evidence to support his convictions for counts 1 through 7 and the trial court improperly instructed the jurors with CALCRIM NO. 337. The Attorney General argues: the abstract of judgment should be corrected to more accurately reflect the sentence imposed; the trial court should have imposed a $30 section 1465.8, subdivision (a)(1) court security fee and a $30 Government Code section 70373, subdivision (a)(1) court facilities assessment as to each count; and a Health and Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee and related penalties, assessments and surcharge should have been imposed as to count 8. We modify the sentence in part and remand the matter to the trial court for limited resentencing once the remittitur issues. We otherwise affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Salvador Sanchez, defendant’s accomplice, entered into a plea agreement. Mr. Sanchez was obligated by the plea agreement to truthfully testify in defendant’s trial. Mr. Sanchez joined the local gang when he was 13 years old. Mr. Sanchez was 17 years old at the time of trial. Mr. Sanchez was a member of one of the local gang’s cliques. Mr. Sanchez was aware that the local gang committed robberies, murders, drug sales and assaults. In order to “earn your stripes” or rank, a gang member may commit different crimes.
Mr. Sanchez knew defendant for over two years. Defendant belonged to a different clique in the local gang. On June 10, 2007, defendant picked up Mr. Sanchez in a white truck. Defendant said he wanted to make some money. Mr. Sanchez understood that to mean that they would either rob a victim or steal something. Another individual was in the truck. The three men subsequently got into a dark gray, four-door car. At some point, the unidentified third individual left. Mr. Sanchez was under the influence of methamphetamine at the time, but also knew that he could gain stature within the gang by participating in the robbery. Mr. Sanchez was able to recognize defendant and remember what occurred on June 10, 2007.
Steven Jackson had moved into his apartment on June 9, 2007. Mr. Jackson transported boxes from his black 2002 Jeep Grand Cherokee automobile throughout the day on June 10, 2007. Mr. Jackson took a break at 6:30 or 7 p.m. to watch a basketball game.
Defendant had a shotgun and a nine-millimeter Ruger handgun in the car. Mr. Sanchez and defendant went to an apartment near the ocean. Defendant directed Mr. Sanchez to go into the apartment first with a shotgun. Mr. Sanchez was to have the victim, Mr. Jackson, get on the floor with his face down. Defendant would then come in behind Mr. Sanchez. Mr. Sanchez asked for a bandana to cover his face. Mr. Sanchez was wearing a hooded sweatshirt at the time. While defendant parked the car, Mr. Sanchez opened the door to the apartment and pointed the shotgun at Mr. Jackson. Mr. Sanchez ordered Mr. Jackson to get on the floor. Mr. Jackson was a man in his late 50’s who wore glasses. Mr. Jackson was tall and of husky build. Mr. Jackson complied.
Defendant then entered the apartment. Defendant put a towel over Mr. Jackson’s head. Mr. Jackson was gagged with a towel. Mr. Sanchez continued to point the shotgun at Mr. Jackson. Defendant took a wire or cable from a lamp in the apartment. Defendant then tied up Mr. Jackson. Defendant and Mr. Sanchez dragged Mr. Jackson into the closet. As Mr. Sanchez continued to stand over Mr. Jackson with the shotgun, defendant went through the apartment taking various items. A while later, Mr. Sanchez found some casings for a 12-gauge shotgun as he walked around the apartment. Mr. Sanchez asked Mr. Jackson where the shotgun was located. Mr. Jackson said his shotgun was under the bed. Mr. Sanchez then took Mr. Jackson’s shotgun from under the bed. Defendant took Mr. Jackson’s wallet. Other items were also taken, including: roller skates; a television; a radio; a bicycle; boxing gloves; a watch; a compact disk player; 300 compact disks; and clothes. Mr. Jackson’s automated teller card was inside the wallet defendant stole. Defendant asked for and was given the pin number by Mr. Jackson. Mr. Jackson was ordered, “Give us a half an hour and don’t call the police.” Thereafter, Mr. Sanchez and defendant carried the stolen items to Mr. Jackson’s black Jeep Cherokee. They took Mr. Jackson’s keys to his Jeep Cherokee.
Mr. Sanchez was instructed to drive the dark gray car back to defendant’s house. Defendant said he had something to do and would be out in 10 to 20 minutes. When they arrived, defendant and Mr. Sanchez removed the stolen items from the Jeep. The items were taken to defendant’s apartment. The individual, who had been with them earlier, reappeared at defendant’s apartment. Defendant and Mr. Sanchez divided up the stolen items. Defendant, Mr. Sanchez and the other individual drove the Jeep to an underground parking area. Defendant and Mr. Sanchez used cleaning supplies to wipe down the car to remove fingerprints. Defendant and Mr. Sanchez removed any remaining items inside the Jeep. The Jeep was then left at a gas station on the corner of Magnolia Boulevard and Pacific Coast Highway.
Mr. Jackson untied his ankles after defendant and Mr. Sanchez left the apartment. Mr. Jackson knocked on a neighbor’s door. The police were called. Mr. Jackson spoke to Long Beach Police Officer Merle Megee. Mr. Jackson said he was robbed by two male Hispanics. Mr. Jackson’s two guns and his Jeep Grand Cherokee were missing. One of the guns taken from Mr. Jackson’s apartment was a LaFever shotgun, manufactured in the 1920’s which was unique. The shotgun was introduced into evidence at trial. Mr. Jackson was very frightened during the robbery. Mr. Jackson recognized the shotgun being pointed at him as a double-barreled model. Mr. Jackson was shown several photographic lineups by police shortly after the incident. Mr. Jackson circled the photographs of the perpetrators of the home invasion robbery.
On June 12, 2007, Officer Danielle Quinones saw Mr. Jackson’s black Jeep Grand Cherokee automobile on Pacific Coast Highway. The driver of the Jeep pulled into a gas station. A passenger got out of the Jeep. The Jeep then pulled away quickly. Officer Quinones, who was driving a black and white patrol car with lights on top, pulled over the Jeep. The driver of the Jeep turned onto Daisy Street and parked on the opposite side of the street. Officer Quinones’s partner ran the license plate number in the computer. The response for the inquiry noted the car was stolen and the occupants could be armed with a double-barrel shotgun and dangerous. Backup was requested. Officer Quinones ordered the two occupants of the Jeep to get out and approach the patrol car. The driver of the car was James Reed and the passenger was Mary Tucker.
On June 20, 2007, defendant picked up Mr. Sanchez in the same dark gray car they used to drive to Mr. Jackson’s home. Defendant stopped to pick up a woman identified as “Tasha.” Shortly thereafter, a police patrol car came toward them. Detective Patrick Lyon and Officer Valente Marshall noticed defendant’s car had no license plate. Defendant failed to signal prior to making a turn. As they pulled behind defendant’s car, he turned suddenly onto the next street and stopped. Defendant got out of the car and walked away. Defendant had “tossed” a nine-millimeter Ruger handgun into Mr. Sanchez’s lap. Mr. Sanchez was ordered to get rid of the handgun. Mr. Sanchez could not open the door of the car. Mr. Sanchez threw the gun out of the car window. Detective Lyon detained and searched defendant. Detective Lyon found a clear Ziploc baggie containing a clear crystal-like substance in defendant’s shirt pocket. Detective Lyon believed the substance was methamphetamine. Officer Marshall spoke to the occupants of the car. Mr. Sanchez was in the front passenger seat. Natasha Vogelsohn was in the rear seat of the car. Mr. Sanchez admitted he was a member of the local gang. Mr. Sanchez had tattoos all over his arm. Officer Marshall found various pieces of paper containing names, phone numbers and gang graffiti when he searched the car. Officer Marshall found two shotguns in a case in the trunk of defendant’s car. Detective Steven Jilek assisted in the investigation following the stop of the car driven by defendant on June 20, 2007. Detective Jilek, who arrived at the scene later, found a silver handgun on the grass in the front yard adjacent to the car. After the handgun was found, Mr. Sanchez told the officers the gun had been tossed into his lap. Mr. Sanchez said he then threw the firearm out of the window.
Mr. Sanchez was interviewed by Detective Chris Zamora and Officer Leonard Washington. Mr. Sanchez waived his constitutional rights and agreed to speak to them. Mr. Sanchez stated defendant was a member of the local gang. Mr. Sanchez also admitted he was a member of the local gang. Mr. Sanchez admitted robbing Mr. Jackson along with defendant. Mr. Sanchez said defendant gave instructions to do certain things during the robbery. Defendant gave Mr. Sanchez a shotgun to use in entering the apartment. Mr. Sanchez stated that Mr. Jackson was tied up. Defendant and Mr. Sanchez then placed Mr. Jackson in the closet. A third individual joined them in the apartment once they started to take out Mr. Jackson’s property. Mr. Sanchez said they took: roller blades; cell phones; luggage; a jacket; golf gear; boxing clubs; and a black Jeep. Mr. Sanchez seemed remorseful at the time. During the interview, Mr. Sanchez wrote a letter of apology to Mr. Jackson. Mr. Sanchez testified at trial that he and his family had been threatened since he was in custody. Mr. Sanchez was housed in protective custody because “something might happen” to him in the general jail population. Mr. Sanchez was also interviewed by Detective Zamora and the prosecutor on June 18, 2009. Mr. Sanchez’s attorney was also present. The interview was tape-recorded. The recording was played at trial.
Officer Zamora also testified concerning the section 186.22 allegation based upon his experience and assignment to the gang enforcement team. Officer Zamora had over a thousand conversations with gang members. Officer Zamora’s specialty was Hispanic gangs, with emphasis on the local gang to which defendant and Mr. Sanchez belonged. Officer Zamora explained how the local gang divided into smaller units as the membership grew. The various factions often joined together to commit crimes. The smaller units also divided into cliques. The local gang committed such crimes as: assaults, often with deadly weapons; robberies; shootings; narcotic sales; and murders. The local gang dominated methamphetamine sales in the City of Long Beach. “Shot callers” within the gang often direct younger gang members to commit crimes. In turn, the younger member would earn his place within the gang or respect by committing the crimes. Officer Zamora was involved in the investigation of Jose Luis Rodriguez, a local gang member, who was convicted of attempted murder and assault with a deadly weapon for the benefit of a criminal gang in case No. NA073420. Officer Zamora also knew of a local gang member named Jose Roberto Ceja who was convicted of murder for the benefit of a criminal gang in case No. NA069917 on February 14, 2008.
Officer Zamora knew Mr. Sanchez and defendant to be local gang members. Mr. Sanchez had several gang-related tattoos and had been involved in numerous crimes related to the local gang. Mr. Sanchez also admitted his gang membership during the investigation in this case. Officer Zamora also knew defendant to be an active member. Defendant also admitted to being a local gang member. Defendant had numerous local gang tattoos. Based upon the facts of the charged offenses and his experience, Officer Zamora believed the crimes were committed for the benefit of the local gang.
III. DISCUSSION
A. Accomplice Testimony
Defendant argues that there was insufficient corroboration of Mr. Sanchez’s testimony in this case to support his convictions. Defendant argues that apart from accomplice testimony, there was no evidence connecting him to the June 10, 2007 offenses. We respectfully disagree.
Section 1111 provides, “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” In People v. Lewis (2001) 26 Cal.4th 334, 370, our Supreme Court held: “‘Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]’ [Citation.] The evidence ‘is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.’ [Citation.]” (People v. Lewis, supra, 26 Cal.4th at p. 370, quoting People v. Hayes (1999) 21 Cal.4th 1211, 1271 and People v. Fauber (1992) 2 Cal.4th 792, 834; see also People v. Abilez (2007) 41 Cal.4th 472, 505-506; People v. McDermott (2002) 28 Cal.4th 946, 985-986; People v. Bunyard (1988) 45 Cal.3d 1189, 1206 [“‘“The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged”’”].)
Here, there was substantial evidence corroborating Mr. Sanchez’s testimony. The home invasion robbery took place on June 10, 2007. Defendant was stopped by the police on June 20, 2007. Defendant quickly got out of the car and left the scene. A search of the car revealed Mr. Jackson’s rare shotgun and another shotgun in the trunk. Also found in the car were papers upon which local gang graffiti and gang members’ names were written, including defendant’s. Presiding Justice Boren of Division Two of this Appellate District held: “Possession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen; only slight corroboration is required to allow for a finding of guilt. [Citation.]” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574; see People v. McFarland (1962) 58 Cal.2d 748, 754.) Moreover, defendant’s guilt may be established by the constructive possession of the shotguns because they were in the trunk of the car. The fact defendant was driving suggests that he maintained control of the car and items contained therein. (In re Daniel G. (2004) 120 Cal.App.4th 824, 831; People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084.) Our colleagues in Division Eight of this Appellate District also held: “Possession of a weapon may be proven circumstantially, and possession for even a limited time and purpose may be sufficient.” (In re Daniel G., supra, 120 Cal.App.4th at p. 831; People v. Neese (1969) 272 Cal.App.2d 235, 245.) Although the car defendant was driving at the time of his arrest was not registered to defendant, it was subsequently registered in September 2007 to someone at the address where he was living at the time. A search warrant for that address was issued following defendant’s arrest. Defendant and Mr. Sanchez were known members of the local gang. The local gang often committed robberies to fund their drug sales. The local gang dominated methamphetamine sales in the City of Long Beach. Defendant was found with methamphetamine in his shirt pocket at the time he was arrested. In addition, defendant’s possession of the two shotguns in the trunk of the car he was driving at the time of his arrest supports his firearm possession by a felon convictions. Mr. Sanchez’s testimony was sufficiently corroborated.
B. Instruction With CALCRIM No. 337
1. Waiver
Defendant argues that the trial court improperly instructed the jurors with CALCRIM No. 337 because it was misleading and “unduly bolstered the credibility” of Mr. Sanchez. Defendant further argues “the error goes beyond state-law instruction error” and violates his Sixth Amendment right to present evidence.
CALCRIM No. 337 was given as follows: “When Salvador Sanchez testified, he was in custody. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness’s testimony according to the instructions I have given you.”
Preliminarily, defendant’s failure to object to this pinpoint instruction at trial acts as a procedural bar to raising it on appeal. Our colleagues in Division Two of this appellate district recently held: “Generally, ‘“[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’ [Citations.]” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 citing People v. Hart (1999) 20 Cal.4th 546, 622.) The same is true here. CALCRIM No. 337 is a correct statement of law and responsive to the evidence. Defendant was obligated to request modification or clarification and, having failed to have done so, forfeited this contention. Moreover, defendant’s constitutional contention was not the basis of an objection in the trial court and thus is the subject of waiver, forfeiture and procedural default. (United States v. Olano (1993) 507 U.S. 725, 731; People v. Kipp (2001) 26 Cal.4th 1100, 1130.)
2. We consider the instructions as a whole
In any event, CALCRIM No. 337 was properly given. Citing to the bench notes for CALCRIM No. 337, defendant argues that the instruction should not be given when the witness is an in-custody informant. Defendant acknowledges that Mr. Sanchez was not an in-custody informant as that term is used in CALCRIM No. 337. But defendant argues Mr. Sanchez was “an in-custody accomplice witness” belonging to the same general class. We disagree. Mr. Sanchez was an accomplice. In fact, CALCRIM No. 336 relates specifically to in-custody informants and clarifies, “An in-custody informant is someone... other than... a codefendant... or accomplice or... coconspirator.” (Orig. italics, see also § 1127a [“an ‘in-custody informant’ means a person, other than a codefendant... accomplice, or coconspirator”].) As a result, there was nothing to preclude use of the instruction. In fact, the cautionary instruction actually given instructs the jurors to disregard the restraints in deciding the case and follow the other instructions given. We review the instructions as a whole to determine whether it is reasonably likely that the jury misconstrued them. (People v. Reliford (2003) 29 Cal.4th 1007, 1013; People v. Roybal (1998) 19 Cal.4th 481, 526-527; People v. Mendoza (1998) 18 Cal.4th 1114, 1134; People v. Frye (1998) 18 Cal.4th 894, 957, overruled on a different point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248, People v. Castillo (1997) 16 Cal.4th 1009, 1014-1016.) In People v. Frye, supra, 18 Cal.4th at page 957, our Supreme Court held: “In conducting this inquiry, we are mindful that ‘“a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.”’” (People v. Frye, supra, 18 Cal.4th at p. 957, quoting, Boyde v. California (1990) 494 U.S. 370, 378; see also People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, 753.)
Here, the jurors were also instructed with: CALCRIM No. 200, which cautioned the jurors to “Pay careful attention to all of the instructions and consider all of them collectively”; CALCRIM No. 226, which cautioned the jurors to judge the credibility of the witnesses’ testimony based upon several factors; CALCRIM No. 335, which directed them not to convict defendant based on Mr. Sanchez’s accomplice testimony alone; and CALCRIM No. 220 on reasonable doubt. Our Supreme Court has consistently stated that on appeal: “‘“Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.”’ [Citation.]” (People v. Carey (2007) 41 Cal.4th 109, 130, quoting People v. Lewis (2001) 26 Cal.4th 334, 390; People v. Yeoman (2003) 31 Cal.4th 93, 139; People v. Bradford (1997) 15 Cal.4th 1229, 1337; People v. Osband, supra, 13 Cal.4th at p. 714 714; People v. Kemp (1961) 55 Cal.2d 458, 477; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.)
3. Harmless error
In light of other evidence of defendant’s guilt and other instructions given, any error in instructing on Mr. Sanchez’s custodial status was harmless. As set forth earlier, defendant was arrested after fleeing from the gray car that Mr. Sanchez identified as having been involved in the robbery. The shotgun stolen during the robbery was in the trunk of the car defendant drove. Mr. Jackson tentatively identified defendant’s photo from a photographic lineup. Defendant’s gang moniker was found on papers inside the car. It is not reasonably probable a result more favorable to defendant would have been reached absent the reading of CALCRIM No. 337. (People v. Crandell (1988) 46 Cal.3d 833, 870; People v. Silva (1988) 45 Cal.3d 604, 628; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Paysinger (2009) 174 Cal.App.4th 26, 30-31; People v. Vargas (1975) 53 Cal.App.3d 516, 531.)
C. Sentencing
1. Fees, penalties, penalty assessments and surcharge
a. court security fees
The Attorney General argues that although the trial court imposed a $30 section 1465.8, subdivision (a)(1) court security fee, it failed to impose the $30 fee as to each count. We agree. (See People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327-1328 [§ 1465.8 fee “is mandated as to ‘“every conviction, ”’ even if the sentence on a conviction is stayed. [Citation.]”]; People v. Crittle (2007) 154 Cal.App.4th 368, 371 [same]; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The judgment must therefore be modified to impose a $30 court security fee as to each of the 8 counts.
b. court facilities assessments
The Attorney General further argues that the trial court was required to impose a $30 court facilities assessment as to each count pursuant to Government Code section 70373, subdivision (a)(1). We agree. The judgment must be modified to impose a $30 Government Code section 70373, subdivision (a)(1) assessment as to each of the 8 counts. (See People v. Castillo (2010) 182 Cal.App.4th 1410, 1412-1414 [Gov. Code, § 70373, subd. (a)(1) assessment properly imposed and does not violate ex post facto prohibitions because it serves a nonpunitive purpose]; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 5-6.)
c. Health and Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee and related penalties, penalty assessments and surcharge
The Attorney General argues that the trial court also failed to impose a mandatory $50 criminal laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a) and penalties, penalty assessments and a surcharge related thereto as to defendant’s methamphetamine possession conviction. We agree. The criminal laboratory analysis fee is subject to the following: a $50 section 1464, subdivision (a)(1) penalty assessment; a $35 Government Code section 76000, subdivision (a)(1) penalty assessment; a $10 section 1465.7, subdivision (a) state surcharge; a $15 Government Code section 70372, subdivision (a)(1) state court construction penalty; a $10 Government Code section 76000.5, subdivision (a)(1) penalty assessment; a $5 Government Code section 76104.6, subdivision (a)(1) deoxyribonucleic acid fee; and a $5 Government Code section 76104.7, subdivision (a)(1) deoxyribonucleic acid state-only fee. Thus, the total amount owed by defendant in addition to the $50 laboratory fee is $130 for a total of $180. (See People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1533; People v. McCoy (2007) 156 Cal.App.4th 1246, 1254-1257; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.) Defendant’s sentence must be modified to impose the Health and Safety Code section 11372.5, subdivision (a) $50 criminal laboratory analysis fee and to add the related penalty assessments, surcharge and penalties set forth above for a total of $180.
2. Imposition of sentence as to counts 3 and 4
Following our request for further briefing, the Attorney General argues that the trial court should have imposed sentence as to counts 3 and 4, the grand theft of the two firearms, before staying them pursuant to section 654, subdivision (a). We agree. The trial court had a duty to select specific sentences as to counts 3 and 4 prior to staying them. Our Supreme Court has held that where two counts are subject to the provisions of section 654, subdivision (a), “[T]he proper procedure is to impose sentence for both of the counts, and stay sentence for one of them.” (People v. Norrell (1996) 13 Cal.4th 1, 13-14 (conc. & dis. opn. of Arabian, J.); People v. Pearson (1986) 42 Cal.3d 351, 359-361; People v. Watkins (1994) 26 Cal.App.4th 19, 25, fn 1; People v. Jenkins (1965) 231 Cal.App.2d 928, 934-935.) Once the remittitur issues, the trial court must select specific sentences on counts 3 and 4 and then stay them.
In counts 3 and 4, defendant was convicted of grand theft of a firearm and the gang allegations were found to be true. These are serious felonies. (§ 1192.7, subd. (c)(26); People v. Rodola (1998) 66 Cal.App.4th 1505, 1508.) Thus, the sentences can be the same as imposed as to counts 1 and 2 (42-years to life).
3. Correction of abstract of judgment
The Attorney General argues that the abstract of judgment should be corrected to more accurately reflect the sentence imposed by the trial court. We agree that the abstract of judgment must be corrected. We asked the parties to brief the issue of whether the prior prison term enhancements could be imposed on counts four through eight, the indeterminate sentences. We conclude they may. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1560-1563.)
However, the abstract of judgment must be corrected to accurately reflect the sentence orally imposed by the trial court. The abstract of judgment inaccurately indicates a life with the possibility of parole sentence as to counts 1, 2, 5 and 6, and a 25 years to life sentence as to counts 7 and 8. The abstract should state that all counts resulted in indeterminate 25-years-to-life sentences. The abstract of judgment should also include: two 5-year section 667, subdivision (a)(1) enhancements as to counts 1 and 2; two 1-year section 667.5, subdivision (b) enhancements as to counts 1 and 2; two 10-year section 186.22, subdivision (b)(1)(C) gang enhancements as to counts 1 and 2; three 4-year section 186.22, subdivision (b)(1)(A) gang enhancements as to counts 5, 6, and 7; the imposition of four 1-year prior prison term enhancements on counts 5 through 8; the 8 section 1465.8, subdivision (a)(1) $30 court security fees; the 8 Government Code section 70373, subdivision (a)(1) $30 court facilities fees; and the $50 Health and Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee and the related penalty assessments, penalties and surcharge as set forth above. The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment reflecting the modifications set forth above. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
III. DISPOSITION
The judgment is modified to impose: seven additional $30 section 1465.8, subdivision (a)(1) court security fees; eight $30 Government Code section 70373, subdivision (a)(1) court facilities assessments; and a Health and Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee and related penalties, penalty assessments and surcharge as set forth in the body of this opinion. The sentences as to counts 3 and 4 are reversed and, upon remittitur issuance, the trial court is to select terms of incarceration as to these counts before staying them pursuant to section 654, subdivision (a). The clerk of the superior court shall forward an amended abstract of judgment to the California Department of Corrections and Rehabilitation, which includes these modifications as well as corrections set forth in the body of this opinion. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J., MOSK, J.