Filed 7/18/13 P. v. Trammell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



### IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. ANTHONY AVILEZ TRAMMELL, Defendant and Appellant. F062485 (Super. Ct. No. MF50302)



### OPINION

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Stephen Greenberg, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, A ssistant Attorney Gene ral, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- On November 24, 2008, at about 10:30 p. m., Randall Armendariz, an employee of Performance Towing and Transport, was shot a nd killed when he apparently confronted a person he suspected had stolen his employer’s white, 1989 Chevrolet service truck earlier that day. Defendant Anthony Avilez Tr ammell was charged with the murder of2. Armendariz. After a jury trial, defendant was convicted of first degree murder (Pen. Code, 1 § 187, subd. (a); count 1) with the sp ecial circumstance of committing the murder in furtherance of a criminal street gang (§ 190.2, subd. (a)(22)), two counts of possession of a firearm by a felon (formerly § 12021, s ubd. (a), presently § 29 800, subd. (b); counts 2 & 4), receiving stolen property (§ 496, subd. (a); count 3), exhibiting a firearm to a peace officer to resist arrest (§ 417.8; coun t 5), and being an active participant in a criminal street gang (§ 186.22, subd. (a); coun t 6). In addition, the jury found true the special allegations that defendant was an ac tive participant in a criminal street gang (§ 186.22, subd. (b)(1)), and that he personall y discharged a firearm in the commission of the murder (§ 12022.53, subd. (d)). Subsequently, defe ndant admitted he had suffered a prior strike within the meani ng of the three strikes law ( §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced defendant to a term of life without the possibility of parole on th e murder charge in additio n to a consecutive 22-year determinate term. 2 On appeal defendant conte nds the trial court erred in admitting a witness’s taped statement to the police, claiming the statemen t was coerced. Additionally, he claims (1) the court erred in calculating his sentence under the three strikes law, (2) his sentence for being an active participant in a street gang should be stayed, (3) the court miscalculated his conduct credits, and (4) the court erroneou sly imposed a parole revocation fine. We

1 All further references are to the Pe nal Code unless otherwise indicated.
2 The court calculated defendant’s sentence as fo llows. On count 5, the court selected the midterm of three years and added the midterm of three years for the enhancement. The court then doubled the entire sentence pursuant to thre e strikes for a total of 12 years on count 5. On count 6, the court imposed one third the midterm consecutively, doubled, for a total term of one year four months. On counts 2 and 3, the court imposed eight months (one third the midterm) for each count plus an additional one year (one third the midterm) for the enhancement. The court then doubled the sum for a total of three years f our months consecutive on each count. The court imposed and stayed an identical term on count 4. In addition, the trial c ourt sentenced defendant on three violation of probation cases. The c ourt imposed a consecutive eight-month (one third the midterm) sentence on each case, re sulting in an additional two years.3. agree defendant’s sentence was miscalculated, that the gang particip ation count must be stayed and that he is entitled to additional conduct credits and will modify the judgment accordingly. We find defendant’s remaining contentions without merit and affirm the judgment as modified. FACTS On November 15, 2008, Lee Winzer’s gr ay 1992 Chevrolet Lumina was stolen. The car was missing the trunk lock. On Nove mber 24, 2008, a Performance Towing and Transport truck was stolen sometime after 6: 00 or 7:00 p.m. The truck was a white 1989 Chevrolet service truck with metal toolboxes a ffixed to the passenger side of the bed. The truck had magnetic signs on the doors with the name of the business. The truck was stocked with tools and equipment, had a very loud muffl er noise, and the ignition turned without a key. Upon learning the truck wa s stolen, the owner of the business, Brian Thompson, informed his employees of the thef t. He instructed his employees, including the victim, Randall Armendariz, to notify law enforcement if they located the vehicle. That same night, defendant arrived at Alejandro Uriostegui’s home. Uriostegui lived in a small converted storage shed behind his mother’s house in Merced. A friend of Uriostegui’s, Christine Smythe, was present at the house when defendant arrived. Uriostegui, who was a longtime friend of defe ndant, noted he arrived in a white service pickup truck that had toolboxes affixed to th e bed. The truck was loud. Defendant was with another person, who was dr iving the truck, that Urioste gui did not know. During the visit, defendant sold Uriostegui some hand tools for $20 to $30. Uriostegui denied exchanging methamphetamine for the tools. Uriostegui did not know if defendant had a gun with him at the time. Uriostegui iden tified the truck as the Performance Towing and Transport truck that had been stolen. No vember 24, 2008, was a Monday. During the time period in question, defendant visited Uriostegui daily or every other day. Smythe testified that on November 24, 2008, she was visiting Uriostegui at his home. She described Uriostegui as her ex-b oyfriend and a drug d ealer who provided her4. with methamphetamine. Sometime between 9:00 and 10:00 p.m. that night defendant, whom she knew as “Red,” arrived in a very lo ud vehicle. At some point, Smythe heard the vehicle drive away. She never saw the ve hicle, she just heard it arrive and leave. While at Uriostegui’s house, defendant ta lked to Uriostegui about being in a highspeed chase and “GTA’ing” over the week end. “GTA” meant grand theft auto. Uriostegui gave defendant some methamphetami ne, which he smoked. During the visit, defendant made a phone call and asked when “they” would come get him. Sometime later, the vehicle returned to the house, and defendant brought in a toolbox with tools that he and Uriostegui inspected. Uriostegui ga ve defendant some methamphetamine for the tools. Before leaving, defendant retrieve d a revolver from under a couch and put it in his pocket. When defendant left, she heard the loud vehicle drive away. Robert White was at his home in the vicin ity of Carmel Road and Ruby Avenue in Merced that same evening. At about 10:3 0 p.m., White was in his driveway when he noticed two vehicles down the street that appe ared to be drag raci ng. One was a pickup truck and the other was an SUV, possibly a Jeep. The SUV appear ed to cut off the pickup in a cul-de-sac, and the two vehicles stopped. He saw two people running around, one chasing the other, and yelling angrily after the vehicles stopped. A few minutes later a dark colored midsize sedan pulled up behi nd the other two vehicles. Someone exited that car, walked around in front of the car, a nd then walked back. He then extended his arm and fired a shot. White did not see if anyo ne was hit by the shot as he went back into his home. He could not describe the shooter other than to say that it was a slender young male with short hair. Todd Latronica lived on Ruby Avenue at the time. Sometime around 10:30 p.m., Latronica heard a commotion outside of his home. He looked outside and saw headlights from two vehicles pointing directly at his house. Latronica then continued watching television when his wife told him she thought there had been an accident outside. He looked out again and saw a car speed away. The vehicle wa s a light colored small import5. car, similar to a Toyota or Honda. He went outside and found a man lying on the ground in front of the vehicles with a bullet hole to his head. The two vehicles, a white pickup and a tan Jeep Cherokee were still outside of his home. The victim, who was identifie d as Armendariz, was pronounc ed dead at the scene. He died from a gunshot wound to the forehead . The victim had been shot one time and there was no exit wound. That same evening, Charles Rusticus was walking on Carol Avenue when a car sped past at a high rate of speed. He noted the car was traveling erra tically; it almost hit him, and it ran a stop sign. The car was a gray Chevrolet Lumina and was missing the trunk lock. Shortly after th e car sped by, Rusticus hear d a number of sirens. He continued on his way and later came upon the murder scene on Ruby Avenue. At 11:07 p.m., Merced police officer Peter Villarreal was dispatched to a suspicious vehicle in an alley. He arrived on scene seven to eight minutes after the call and found a silver Chevrolet Lu mina that had been reported stolen. The hood of the car was still warm and the officer noticed the i gnition was pulled from the steering column. In the course of his investigation, he loca ted some fingerprints from the exterior of the driver’s side door of the car. The latent pr ints matched defendant’s. Winzer identified the vehicle as his. The car was located in an alley in front of the home of defendant’s cousin and good friend, Roy Maule. Maule is a Norteño gang member. Thompson, the owner of Performance Towing and Transport, arrived at the scene of the murder on Ruby Avenue and identifie d the service truck as belonging to the company. He was also able to identify the victim’s Jeep at the scene as well as the victim. Upon inspecting the truck after its recovery, Thompson noted the tools, equipment, and magnetic signs were missing from the truck. Uriostegui testified that he heard of th e murder on the following day. He learned of the incident from some people who lived down the street from his home. Defendant was present at the time and part of the di scussion; however, Uriostegui denied that6. defendant said anything to him about bein g involved in the murder or shooting the victim. Uriostegui also denied ever telli ng Merced police detective John Fister that defendant had admitted any part in the murder. On November 26, 2008, Me rced police officer Jobe Sa ndhagen, a member of the gang suppression unit, attempted to locate de fendant for questioning in association with the murder. Officer Sandhage n was informed that defend ant was a gang member and possibly armed with a handgun. The o fficer, along with another officer, began surveillance on Uriostegui’s home and determ ined defendant was present at the home. Subsequently, a team of officers arri ved to take defendant into custody. Prior to entering the residence, Officer Sa ndhagen put on a blue tactical vest with the word “POLICE” on it. The officers appr oached the garage area in the back of the house and noticed the door was open but th e doorway was covered by a curtain. There was an approximately two foot gap between the curtain and the ground, so the officer squatted down to peer inside the room. Afte r seeing defendant inside the room, he began to pull the curtain back. He then saw defendant sitting or ly ing on a bed or couch holding a revolver pointed directly at th e officer’s face. Seeing that the gun was at least partially loaded, Officer Sandhagen began firing at defendant while stepping backwards. Other officers began firing as well. Defendant did not fire his weapon. Officer Sandhagen did not recall if he announced his presence prior to the shooting, but other officers recalled hearing the announcement prio r to the gunshots. Defenda nt suffered numerous gunshot wounds and was transported to the hospital by ambulance. Linda Hernandez was visiting Uriostegui on the day of the police shooting. She was sitting next to defendant in the garage when she heard officers yell “Merced Police Department, search warrant, put your hands up .” Then the police st arted shooting, hitting defendant. She did not see a gun in defendan t’s hand, however, she did see a gun on the bed where he ha d been sitting.7. A .38 special Colt revolver was found in the garage on the mattress where defendant was sitting prior to the shooting. The gun was loaded with two rounds. According to firearms expert George Luczy, the gun recovere d could have fired the bullet that killed the victim. Upon examination of the bullet re moved from the victim, Luczy determined the bullet was a .38-caliber. The recovered bullet did not have enough detail to provide a conclusive match, but it did show a pattern of six lands and grooves with a left-hand twist with dimensions that matche d a Colt firearm. There are a number of Colt models that could have fired the bullet. After the shooting, Detective Fister assist ed in a search of the converted bedroom where Uriostegui was living. In that hous e he found a .22-caliber revolver under a cushion on the couch. Tools and toolboxes were also discovered in the garage area. Sometime later he showed these tools to G onzalo Curiel, an employee of Performance Towing and Transport. The recovered truck ha d been assigned to Curi el and he was able to identify the recovered tools and toolboxes as items that had been taken from the truck. Detective Fister testified that he, alon g with Detective Chri s Russell, interviewed Uriostegui on November 26, 2008. The interv iew was videotaped and was played for the jury. 3 In the recorded interview, Uriostegui initially denied defendant had said anything to him about a murder. However, Uriostegui ultimately admitted de fendant had told him about the murder th e day after it occurred. He stateddefendant told him someone had a stolen “RTS” truck and defendant was in a st olen car and somehow they “bumped heads” with the victim. Defendant said he was there with two friends when the victim “tried to run up” on defendant’s friend an d “that’s what happened.” Wh en Detective Fister asked if defendant walked up and shot at that point, Uriostegui n odded. Upon further questioning, Uriostegui stated that defendan t was behind the truck and they stopped and the victim “started talking shit” to them and was “walking up on his homeboy” and

3 As defendant challenges the admission of th is recorded statement, a more complete discussion of the statement is provided below.8. defendant was right behind the victim and shot him. Defendant then said they just got into the car and left. Uriostegui stated he had not believed de fendant’s story and thought he was just trying to show off. Uriostegui did not believe what defendan t told him because defendant said the truck he arrived in on Monday was th e same truck involved in the murder, but he described it as an “RTS” truck. During his trial testimony, Uriostegui deni ed that defendant ever told him anything about a murder or that he ever admitted killing someone over a truck. Uriostegui also denied ever making those statements to Detec tive Fister. Uriostegui testified that he “hung around” Norteño gang members in Novemb er of 2008. According to Smythe, she knew Uriostegui to affiliate with the “NFL,” Norteño For Life, gang. During that time frame, Norteño gang members would come to his house and use methamphetamine. Uriostegui admitted during the taped intervie w that he was a Norteño For Life gang member “from the heart.” In an interview with Detective Fister a few days after the police shooting, defendant admitted he was a Norteño gang me mber. The detective did not ask defendant about the murder nor did defendant provid e any information abou t the murder. The detective only inquired as to the police shooting. When asked, defendant denied selling any items to Uriostegui before the police sh ooting. Defendant claimed he had found the firearm he was holding on the day of the police shooting. Regarding the shooting, defendant told Detective Fistersomething to the effect that he remembered thinking to himself that the police were ther e and he had a gun in his hand. DNA samples taken from the steering wh eel and driver’s door handle of the Performance Towing and Transport truck did not match defendant. Samples taken from the passenger side of the truck were never tested. Merced police detective Joseph Deliman te stified as a gang expert. The Norteño street gang is prevalent in Merced and associ ates with the color re d and the number 14.9. The gang’s primary activities include thefts, vehicle thefts, burglaries, robberies, homicides, shootings, drive-by shootings, an d drug crimes. Gang members often carry weapons to facilitate their criminal activities and to intimidate others. Loyalty is very important to gang members, as is fear, respect, and intimid ation. Norteño gang members demand respect from others, including people in the community. If a gang member feels he has been disrespected, he would reac t violently. Gang members instill fear and intimidation into the community as a way to carry on thei r criminal activities and to prevent others from reporting their crimes to police or to testify in court. Detective Deliman assisted with the search of the converted bedroom at Uriostegui’s home. In the room he found se veral items with gang graffiti that one would find at a Norteño gang house. After reviewing reports involving some of defendant’s contacts with the police where he admitted gang membership, pictur es of gang tattoos on his body, and defendant’s prior convictions for gang-relate d offenses, Detective Deliman opined that defendant was a Norteño gang member at the time of the offenses. He noted that confronting a police officer with a gun wo uld bolster a gang member’s reputation and also the reputation of his gang. Similarl y, a gang member’s possession of a firearm benefits the gang by instilling fear and intim idation in others, thereby increasing the reputation of the gang. Likewise, stealing cars benefits the gang as it allows gang members to commit crimes while concealing their identity. Dealing in st olen property also benefits the gang by bringing in money for the gang. Further, Detective Deliman testified a gang member can rise within the gang hierarchy by committing a homicide. Detective Deliman opined that a homic ide committed by a gang member (1) who sees one of his “homeboys” 4 with a stolen vehicle, corner ed by an unarmed civilian, and (2) who then obtains a firear m and shoots the civilian and escapes with his homeboy in

4 Detective Deliman defined the term “homie” or “homeboy” as someone who is close to a gang member, a person he trusts.10. yet another stolen vehicle would benefit the street gang. The gang member would be required to act in that situation to protect his fellow gang member or homeboy. In addition, killing the civilian w ould benefit the gang by rem oving an eyewitness to the crime as well as instilling f ear and intimidation in the co mmunity there by improving the gang’s reputation. DISCUSSION I. Uriostegui’s Statemen t Was Properly Admitted Defendant contends the tr ial court erred in admitting Uriostegui’s videotaped statement, claiming it was the product of unlawful police coercion and, therefore, inadmissible. We disagree. The Interview After the shooting at Uriostegui’s home, Ur iostegui was taken into custody. That evening, he was interviewed by Detectives Fister and Russell. The interview began with the detectives informing Uriostegui defendant was out of surgery and in stable condition. They also informed Uriostegui the rest of his family had been interviewed and released, they were still processing the house, and they had found some methamphetamine, his identification, a gun, and some gang indici a in the small house in the back. The detectives told Uriostegui they just wanted the truth from him, and as long as he told the truth “we’re probably not gonna have any pr oblems, okay? Anything we found in the house can be worked out because we’re here ... after a bigger squirrel, okay? I’m not worried about charging you with the gun. Uh, if need be th en, you know, so be it. Um, but I would rather just get the truth from ya . Um, I’m not asking you to snitch nobody off, okay?” Before going any further in to the interview, Detective Fister read Uriostegui his Miranda 5 rights. Next, the detective questioned Ur iostegui about what he saw before the

5Miranda v. Arizona (1966) 384 U.S. 436.11. shooting with the police. Th en the interview progressed to questions involving when Uriostegui last saw defendant before the po lice shooting. Urioste gui explained he had seen defendant daily for the preceding three days. He also explaine d he had previously seen defendant with a gun and described it fo r the detectives. They discussed what time Uriostegui saw defendant on M onday night, who was there, and how defendant arrived. Uriostegui said defendant arrived in a wh ite landscaping or maintenance truck with toolboxes affixed to the side of the truc k. Defendant was with two other men. Uriostegui mentioned defendant sold hi m some tools that night and described them as well as what kind of toolbox they were in. He c ontinued to answer questions about defendant, the next time he saw him af ter Monday, and the ci rcumstances of that visit. The detectives confronted Uriostegui , asking if defendant told him what happened on Monday night but Uriostegui denied knowing anything. Uriostegui then admitted he had heard of a shooting occurri ng on Monday night, claiming he just heard about it from people on the street. Detective Russell informed Uriostegui he thought he was being honest with them and began confronting Uriostegui with the facts they knew at the time. Detective Fister noted Uriostegui was being “pretty truthful” although he appeared to be answering the questions “very carefully.” He explained how they were investigating a homicide and how the facts they had at the time suggested Uriostegui was facilitating defendant in the homicide in some manner. Russell explained that assisting someone after a homicide could result in him going “to prison for a very long time.” He explained defendant had been caught in Uriostegui’s home just days after a murder, with a gun the detectives believed would prove to be the murder weapon. In addition, defendant had arrived in a stolen truck that the shooting victim had be en looking for, and Uriostegui had bought tools from that truck. The detectives explaine d Uriostegui had things going for him in his life, while it appeared defe ndant was going to go to pris on for the rest of his life.12. Detective Russell noted “the problem here is this is a gang-related offense, mmkay? Uh, you have a past hist ory, you know? There’s indici a in your house. There’s a gun in your house. And you ’re—I’m just talking about y ou now, okay? And facilitating this cry—this—this homicide, you might be look ing at at least 10 years for the gun.” He then clarified that was with the gang enhancement and for a loaded gun. He continued, “And now I think it’s time to co me clean and be honest and alleviate yourself. Because you can either be a witness or a suspect. It’s as simple as th at.” Defendant, they explained, had already made his choice. Th e discussion digressed to whether defendant had told Uriostegui about stealing cars the previous weekend, and Uriostegui acknowledged that he had. The detectives came back to the situation at hand, explaining this would be the only opportunity Uriostegui would have to ta lk to them, and that “unfortunately your— your path got crossed. And we found stuff there. And we knew that [defendant] was at your house. And we knew he’s been at your house. Um, and the fact of the matter is, I mean you got caught up.” Detective Fister e xplained, “But as long as you tell the truth, ’cause I—I feel you’re holding back stu ff uh, there’s no reason you shouldn’t go home tonight. But I don’t feel you’re being totally truthful. I’ve been doing this 34 years. Um, there’s some things you’re holding back that ar e important to us in the investigation. And I—and we need that. To be upfront with ya, we don’t need it to prosecute [defendant].” Detective Fister clarified: “And I’m not saying the stuff, the f iles might not be ch arged, you know, with the DA’s office or w ith paper or whatever bu t uh, if I leave here—and correct me if I’m wrong ’cause we’re in this together uh, I can’t justify, in my mind, with what’s happened if you’re not being truthful that you just, you know, just shouldn’t be arrest ed for the dope and the gun and everything else, okay? And I’m just be ing forthright with you, bud. I’m not uh, cutting any corners. And co rrect me if I’m wrong. I mean I don’t—I’ll have to clare [ sic ] it with the sarge. Bu t uh, I just don’t feel you’re being totally upfront with what you know.”13. The detectives explained Uriostegui di d not need to worry that his statement would incriminate him if he was not presen t at the scene of the murder and did not commit the murder. Under that situation, he “should be fr ee gratis.” At that point, Uriostegui stated defendant brags about “everything” but he did not say anything about a murder, and before the police arrived that day, Uriostegui told defendant he needed to be careful who he talked to as th ere was always someone watching. Detective Fister responded: “Well there’s something you’re not te lling us though, Alex. And I—and I just would like to know what it is. I’ve been doing th is too long not to— not to realize when somebody’s, you kn ow, you’re telling the truth mostly. But you’re leaving stuff out. And I just want to know about the stuff you’re leaving out ’cause it must be import ant to you, okay? Otherwise you wouldn’t be so upset. And I’d just like to know what that is. You want me to turn the recorder off?” Uriostegui replied, “I’m scared. I’m scar ed of that.” The detectives explained he was “between a rock and a hard spot” but he had to decide what was more important to him, spending time “behind bars for quite so me—quite some time for a guy who didn’t think twice to come over to your house and involve you in this o r, you know, having a life with a—a family on this side of the the—the—the fence. And uh, and—and being free.” After being told that prison “ain’t th e place to be,” Uriostegui stated defendant might have mentioned something to him. Uriostegui told the detectives defendant had said something to the effect of someone had stolen an “RTS” truck and defendant was in a stolen car, and somehow defendant had “bumped heads” with the victim. Uriostegui claimed he did not believe de fendant, that he was just br agging. He continued saying defendant was with two friends and the victim had “tried to run up on his friend. And that’s what happened.” Wh en Detective Russell asked if defendant shot the victim, Uriostegui nodded. Additiona lly, when asked if defendant bragged about it, Uriostegui replied “the way it sounded to me wa s like he was trying to show off.”14. Detective Fister then asked Uriostegui for details on what exactly defendant said regarding how he walked up to the victim and whether the victim confronted defendant with any weapons. Fister reit erated they wanted to give the victim’s family some closure by telling them what happened, and he stated Uriostegui’s name did not have to come up. Uriostegui questioned this and the detectives explained his name w ould be in the report regardless of what happened. Uriostegui motioned toward the digital recorder, and Detective Fister told him that if it would make Uriostegui feel better he would turn it off, but they still had to document the conversation “wor d by word.” After he was told the recorder was off, Uriostegui asked, “So you guys gonna pay my ... ticket out of Merced too?” and Detective Russell replied, “If need be, we can help ya out, absolutely.” At that point Uriostegui pr ovided additional deta ils regarding defendant’s statement. He stated defendant was behind the truck and they stopped and the victim “started talking shit” to them and was “walking up on his homeb oy” and defendant was right behind the victim and shot him. Defendant then said they just got into the car and left. Uriostegui stated he did not believe defendant ’s story and thought he was just trying to show off. Uriostegui did not believe what defendant told hi m because defendant had told Uriostegui the truck he arrive d in on Monday was the same truck that was involved in the murder, but he described it as an “RTS” truck. The Trial Court’s Ruling

After reviewing the video, the trial court found the interview was not coercive. First, the court found there were no signs Ur iostegui appeared sleep deprived, and he had been provided food, water, and other necessities. Uriostegui did not appear to be too uncomfortable or tired to exercise his fr ee will. Second, the trial court noted the detectives did make statements to Uriostegui regarding circumstances that could lead one to find he was an accessory after the fact to the homicide, ho wever, such comments merely pointed out the realities of the situation Uriostegui facedat the time. Third, there was no promise charges would not be filed, and the detectives continually encouraged15. Uriostegui to tell the truth. As to any promise of leniency , the only statement was that Uriostegui would not be arrested that night, which the trial court was not sure could be considered a promise of leniency. In additi on, the court found Uriostegui was not just parroting back what the detectives wanted hi m to say. Ultimately the trial court found there was nothing in the interview that ove rcame Uriostegui’s free will in making the statement, thus the st atement was voluntary. Analysis The law regarding involuntary statements is well settled. “A criminal conviction may not be founded upon an involuntary confession.” ( People v. Williams (2010) 49 Cal.4th 405, 436.) While the prosecu tion must prove, by a preponderance of the evidence, that a defendant’ s confession was voluntary ( ibid .), a different rule applies when the inculpatory statement is provided by a third party witness. When a defendant seeks to exclude coerced testimony of a witness, it is the defendant’s burden to establish the statement was involuntary. ( People v. Douglas (1990) 50 Cal.3d 468, 500, overruled on other grounds by People v. Marshall (1990) 50 Cal.3d 907, 9 33.) Indeed, a defendant may only challenge the admission of a thir d party witness’s st atement when such evidence would constitute a viol ation of the defendant’s own right to due process of the law and a fair trial. ( People v. Jenkins (2000) 22 Cal.4th 900, 966; People v. Badgett (1995) 10 Cal.4th 330, 347.) This is because “the primary purpose of excluding coerced testimony of third parties is to assure the reliability of the trial proceedings.” ( Badgett , supra , at p. 347.) A statement is considered involuntary “if it is not the product of ‘“a rational intellect and free will.”’ [Citation.] The te st for determining whether a confession is voluntary is whether the defendant’s ‘will was overborne at the time he confessed.’” ( People v. Maury (2003) 30 Cal.4th 342, 404.) A statement may be coerced by either physical intimidation or psychological pressure . In cases of psychological coercion, the question is “‘“whether the infl uences brought to bear upon th e accused were ‘such as to16. overbear [the accused’s] will to resist a nd bring about confessions not freely selfdetermined.’ [Citation.]”’” ( Ibid .) “‘“The courts have prohibited only those psychological ploys which, under all the circumst ances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.”’” ( People v. Williams , supra , 49 Cal.4th at p. 436; see also People v. Ray (1996) 13 Cal.4th 313, 340; People v. Thompson (1990) 50 Cal.3d 134, 166-167.) “[M]ere advice or exhortation by the poli ce that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involu ntary. [Citation.]” ( People v. Jimenez(1978) 21 Cal.3d 595, 611, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17.) The police “are not precluded fro m discussing any ‘advantage’ or other consequence that will ‘naturally accrue’ in th e event the [witness] sp eaks truthfully about the crime.” ( People v. Ray , supra , 13 Cal.4th at p. 340.) However, the “line between a threat (or a promise) and a statement of fact or intention can be a fine one.” ( People v. Thompson , supra , 50 Cal.3d at p. 169.) When ev aluating a claim of psychological coercion, “we must exercise great care not to become confused: intellectual persuasion is not the equivalent of coercion.” ( People v. Ditson (1962) 57 Cal. 2d 415, 433.) In reviewing the trial court’s ruling re garding whether a statement was coerced, we examine the entire record, deferring to the trial court’s credibility determinations and findings of fact where supporte d by substantial evidence. ( People v. Boyer (2006) 38 Cal.4th 412, 444.) We may independently re view the trial court’s determination where, as here, the interview was recorded. ( People v. Vasila (1995) 38 Cal.App.4th 865, 873.) Defendant contends Uriostegui was s ubjected to coercion consisting of both threats of prosecution and offers of lenien cy causing him to pr ovide an involuntary statement inculpating defendant. Specifically, he claims Urio stegui was confronted with the prospect of a prison term for facilitating defendant in the homicide and that this motivated him to provide the st atement. He further contends the detectives implied that17. only a specific statement—that defendant co nfessed to the shooting—would in fact alleviate him of the prospect of being charged as an accessory. We disagree. A thorough review of both the videotapedinterview and its transcript reveals Uriostegui was simply confronted with the realities of his situation. The detectives informed Uriostegui of th e items found in his home as well as the surrounding circumstances. They pointed outthe circumstances that coul d be viewed as Uriostegui facilitating defendant. Specifically, Uriosteg ui admitted defendant had been at his home daily for the two days followi ng the murder. Uriostegui saw defendant with the gun on the day of the police shooting and had s een him with a gun on prior occasions. Defendant brought Uriostegui some tools from a white maintenance truck on the day of the shooting, which Uriostegui purchased from him. The white truck defendant arrived in on Monday turned ou t to be the same truck the vic tim was killed over, and the tools Uriostegui bought were from that truck. Not only were each of these facts true, they certainly could be construed as facts supporting an accessory charge. (See People v Daniels (1991) 52 Cal.3d 815, 86 2-863 [informing witnesses who had helped defendant escape and hide from police thatthey could be prosecuted as accessories and asking that they cooperate with inve stigation held proper].) As to the claim the officer s threatened Uriostegui w ith prosecution, we find the tactics employed here were proper. Courts have repeatedly held “[t]here is nothing improper in confronting a suspect with the predicament he or she is in, or with an offer to refrain from prosecuting the suspect if th e witness will cooper ate with the police investigation.” ( People v. Daniels , supra , 52 Cal.3d at p. 863.) In addition, we note the detectives did not use any deception in explaining the situation, a fact defendant seems to acknowl edge. The mere fact of explaining the situation to Uriostegui cannot be deemed coercive. Uriostegui was never told he must make a specific statement to avoid liability fo r a possible accessory charge. Rather, the detectives repeatedly to ld Uriostegui to tell the truth. Indeed, throughou t the interview,18. they explained they believed hewas being truthful; however, th ey also told him they felt he was holding back information. The disc ussions regarding the possible consequences he would face as an accessory merely expl ained that the detec tives needed all the information before deciding wh ether he was an accessory to the murder. Thus, informing Uriostegui he was either a witness or a suspec t was not itself coercive. Taken in context, the detectives simply in formed Uriostegui of the situati on he was in and implored him to tell the whole truth. The detectives did not, as defendant claims, pr ovide Uriostegui with the only statement that woul d be acceptable to them. We have reviewed the tape recording of the interview, which is about an hour and a half in length. It reveals the detectives waited to get information from Uriostegui before confronting him with f acts they knew. The officers never told Uriostegui what they wanted him to say or that he needed to inculpate defendant. Inst ead, they repeatedly told him (1) they did not need Uriostegui’s statement for th e prosecution of the case, (2) they just wanted the truth, (3) they felt he was holding some thing back due to how he was answering the questions and his body language, and (4) they di d not want to put words in his mouth. Uriostegui describe d the truck and tools prior to the detectives bringing up the murder. Uriostegui also admitted he knew why the police were at his home and that he had heard of a shooting on Mo nday night prior to any disc ussions of the homicide. Further, Uriostegui admitted he had previo usly seen defendant with the same gun recovered from him during the pol ice shooting. It was only after Uriostegui divulged this information that the detectives began talkin g about the homicide. The detectives never provided Uriostegui with any facts regarding the shooting itself. Rath er, when Uriostegui mentioned defendant might have said someth ing to him about the “situation,” Detective Russell asked “what’d he say?” Uriostegui th en explained defendant had told him about an “RTS” truck and that he did not actually believe what defendant had told him because he had come to the house in a white truck that did not appear to be an “RTS” truck. He noted defendant stated he was in a stolen carand that he had “bumped heads” with the19. victim who was trying to recover the truck. Again, Uriostegui clai med he did not believe the story and thought defendant was just bragging. Uriostegui also stated defe ndant was with two of his fri ends, and the victim “tried to run up on his friend.” He went on to say defendant “moved behi nd him” and Detective Fister asked Uriostegui to clar ify—did he say he moved behindthe victim or his friend? None of this information was provided to Ur iostegui previously and the detectives asked several questions about what defendant said to clarify the statement. They asked whether defendant stated (1) if the victim was armed and (2) how defendant left the scene. The circumstances in the presen t case are unlike the ones in People v. Lee (2002) 95 Cal.App.4th 772. There the court held a third party witness’s statement was coerced because the police threat ened to charge the w itness with the crime atissue if he did not name the defendant as the shooter. ( Id. at pp. 785-786.) The o fficer gave the witness a polygraph test and told him the computer was hi ghly accurate. After asking the witness if he had shot the victim and if he knew who the shooter was, the officer confronted the witness, claiming the test showed a 97 percen t probability that he had killed the victim. ( Id . at p. 783.) He then went on to threaten to char ge the witness with first degree murder unless he named the defendant as the killer. ( Ibid .) It was the officer who told the witness the defendant wa s involved and it was the officer who provided th e witness with the defendant’s motive. ( Id . at p. 785.) As the court explained, the officer’s stat ements “went beyond me re deceit as to the evidence pointing to [the witness] as the killer. He al so went beyond merely exhorting [the witness] to tell the truth. He even went beyond threatening [the witness] with prosecution for first degree murder unless he named the real killer. [¶] [The officer] in essence told [the witness]: We will pros ecute you for first degree murder unless you name [the defendant] as the killer.” ( People v. Lee , supra , 95 Cal.App.4th at p. 785.) The court noted the witness was never Mirandized after the officer claimed the polygraph test showed it was the witness who was the shooter, which indicated the defendant was20. the real target of the interview. ( Lee , at p. 786.) The court concluded the interrogation of the witness was “not designed to produce the truth as [the witness] knew it but to produce evidence to support a version of events the police had already decided upon.” (Ibid .) Unlike the situation in Lee , Uriostegui was never thr eatened with prosecution of the murder himself. In fact, th e detectives specifically asked Uriostegui if he was present at the scene or had pulled the trigger, and when he said he had done neither, the detectives explained he had nothing to worry about in terms of a murder charge. While the detectives stated they al ready knew defendant had the gun that shot the victim, they never implied they had any scie ntific evidence to support th eir statements. Rather, they said the gun would come back as the murder weapon. Likewise, the detectives never filled in the gaps for Uriostegui; instead, they asked him at each step what the information was, noting they were not present when the defendant made his statements. Additionally, the detectives never provided Uriostegui with a specific statement they wanted Uriostegui to make. While it was clear de fendant was a suspect, the detectives never gave Uriosteg ui any facts of the crime itse lf. Rather, after Uriostegui acknowledged defendant may have said somethi ng to him about the crime, he went on to provide details the detectives had not provided to him. Specifically, he stated (1) defendant was in a stolen car, (2) the victim was arguing with defendant’s “homeboy,” (3) the victim tried to run up on defendant ’s friend, and (4) defendant and the other perpetrator left the scene in a car. Not only were these facts not provided to Uriostegui, they were facts only someone present at the scene would know. Indeed, these facts were corroborated by the witnesses to the murder. Considering how the interview progressed, the detectives’ approach did not amount to a “psychological ploy[] which, under all the circumstances, [was] so coercive that [it] tend[ed] to produce a statement that is both involuntary and unreliable.” ( People v. Ray , supra , 13 Cal.4th at p. 340.) To determine if a statement is voluntary we must look at the totality of the circumstances, including the details of the in terrogation and the characteristics of the21. witness. ( People v. Hill (1992) 3 Cal.4th 959, 981, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn . 13.) Here the totality of the circumstances supports a findi ng Uriostegui’s statement was voluntary. First we note there was nothing heavy-handed about the intervie w. The detectives provided Uriostegui with his Miranda rights prior to the interview. They never raised their voices or put any undue pressure on Uriostegui. They did not use any deceptive practices. Second, Uriostegui did not appear partic ularly fragile or unduly susceptible to coercion. Although Uriostegui had been detained for appr oximately nine hours, it does not appear he was particularly tired or uncomfortable in the tape recording. In fact, the detectives noted during the in terview that they had provided him with a meal and water. Before beginning the interview, the detectiv es informed Uriostegui of defendant’s condition. Further, they explained Uriost egui’s family member s had already been interviewed and released and had places to st ay for the evening while the police were still processing the house. Third, Uriostegui was no stranger to the criminal justice syst em, noting himself he had previously been “locked up ” before. Further, he admitted he was an entrenched gang member. He did not appear to have a fra gile mental state during the interview. Finally, there was no evidence in this case Uriostegui felt coerced or that his statement was involuntary. Uriostegui never made any statements to the effect he felt pressured to make a statement, nor did he testify his statement was anything but voluntary. At trial he simply denied ever telling the det ectives defendant admitted the shooting, and he claimed he did not recall what statements he made during the interview. He claimed defendant never co nfessed the shooting to him. Considering the totality of the circumstances, we do not find his statement was involuntary or coerced. Defendant argues that in addition to threat s, Uriostegui was also given promises of leniency in exchange for his statement. Initially, we note the detectives never promised charges would not be filed in th e case if Uriostegui made a statement. With regard to the22. statements about the gun and narcotics found in Uriostegui ’s home, the detectives only stated that as “long as you ’re telling the truth, we’re probably not gonna have any problems.” (Italics added.) While the detec tive stated something co uld be “worked out,” he did not suggest there would be no prosecution whatsoever. Indeed, he later stated he was “not saying ... the files might not be charged ... with the DA’s office.” Defendant contends Uriost egui was given a specific promise of being released from custody that evening, and such a promis e constituted an improper offer of leniency thereby requiring a finding his statemen t was coerced. Assuming Uriostegui was promised he would be releas ed from custody, or was given any promise of leniency for that matter, we note there is a clear distincti on between offers of leniency to a defendant as opposed to a witness. W ith regard to the confession of a defendant, the Supreme Court has stated, “‘It is well settle d that a confession is involunt ary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied.’ [Citation.]” ( People v. Tully (2012) 54 Cal.4th 952, 993.) However, “case law fails to support defendant’s premise that a third party witness’ s statements are rendered inadmissible against a defendant if induced by improper offers of leniency. [Citations.]” ( People v. Ervin (2000) 22 Cal.4th 48, 83.)
In People v. Badgett , supra , 10 Cal.4th 330, the defendants claimed a police officer had communicated to a potential witness that she woul d be released from custody if she cooperated. The defendants argued the witness’s statemen ts to police “were involuntary because they were the pro duct of a promise of leniency.” ( Id. at p. 354.) The Supreme Court disagreed explaining: “All immunized witnesses are offered some quid pro quo, usually an offer of leniency. We have never held , nor has any authority been offered in support of the proposition, that an offer of leniency in return for cooperation with the police renders a third party statem ent involuntary or eventual trial testimony coerced. [T]estimony given under an i mmunity agreement does not violate the defendant’s right to a fair trial, if the gran t of immunity is made on condition the witness23. testifies fully and fairly.” ( Id. at pp. 354–355.) “If an offer of immunity is not considered coercive, then an offer of release from custod y in return for cooperation likewise should not render a witness’s statement coerced.” (Id. at p. 355.)
In People v. Badgett , supra , 10 Cal.4th 330, the defendan ts were tried for murder. The primary prosecution witness was the 17-year-old girlfriend of one of the defendants, who testified he had admitted killing the victim to her. ( Id . at pp. 339-340.) After the juvenile witness had been detained, her moth er was advised by the authorities the witness would be released from custody if sh e cooperated with the police. ( Id . at p. 354.) The mother conveyed this promis e to her daughter, who then pr ovided a statement to the police implicating the defendants. Subsequen tly, the witness was given formal immunity and testified pursuant to an immunity agreement. ( Id . at p. 340.) The court addressed and rejected the defendants’ argument that the witness’s statement was involuntary because it was induced by a promise of leni ency, specifically the promise she would be released from custody. ( Id . at p. 355.) Indeed the rules regarding how a statemen t from a third party witness can be used are often different from the rules regarding th e use of a defendant’s own statement. For example, while the fruit of a defendant’s ow n coerced statement cannot be used against him, the same is not true of a third party witn ess’s statement that is found to be coerced. ( People v. Williams , supra , 49 Cal.4th at p. 455 [“the do ctrines governing the exclusion of the ‘fruit’ or product of a defendant ’s involuntary confession do not apply when the claim is that a third-party witness’s statement was coerced”]; see People v. Jenkins , supra , 22 Cal.4th at p. 966.) Likewise, the burden of proof regard ing the voluntariness of a third party witness’s statement is different from that of a defendant’s statem ent. It is the defendant’s burden to establish a statement of a third party witness is coerced if the defendant seeks to exclude the eviden ce from trial. ( People v. Douglas , supra , 50 Cal.3d at p. 500.) However, when it is the defendant’s own statemen t that is challenged as coerced, it is the24. People’s burden to prove it was voluntary by a preponder ance of the evidence. ( People v.
Benson (1990) 52 Cal.3d 754, 77 9) “[T]he heightened protections courts have traditionally afforded de fendants in the self-incriminati on context are designed to assure that an accused’s coerced confessions will not be used against him, and to protect against evidence of guilt emanati ng from his own involunt ary statements.” ( People v. Douglas , supra , 50 Cal.3d at p. 500.) Furthermore, “defendants generally lack standing to complain that a police interrogation violated a third party witness’s Fifth Amendment privilege against selfincrimination or Sixth Amendment ri ght to counsel, nor may a defendant complain that law enfor cement officers violated a third party witness’s Fourth Amendment rights. ( People v. Badgett [, supra ,] 10 Cal.4th 330, 343.) A defendant may assert a viola tion of his or her own right to due process of the law and a fair trial ba sed upon third party witness coercion, however, if the defendant can establish that trial evidence was coerced, or rendered unreliable by prior coercion, and that the admission of this evidence would depriv e the defendant of a fair trial. ( People v. Jenkins [, supra ,] 22 Cal.4th 900, 966, 969; People v. Badgett, supra , 10 Cal.4th at pp. 347, 348.)” ( People v. Williams , supra , 49 Cal.4th at pp. 452–453.) Thus, we find any promise of leniency in this case was not improper. Further supporting our conclusion that the Uriostegui statement was not coerced is the recording itself. We have watched and listened to the r ecording and note the t one used could hardly be considered threatening, forceful or coer cive. Consequently, und er the totality of the circumstances, we are persuade d the statement was voluntarily given, and the use of the statement did not violate defendant’s right to due process. II. Sentencing Claims Defendant argues, and plaintiff concedes, (1) the trial court erred in doubling the terms for the enhancements pursu ant to the three strikes law, (2) the sentence on count 6, active participant in a street gang, should have been stayed , and (3) defendant is entitled to additional custody credits. We agree and accept plaintiff’s concession as to each of these claims. Defendant further contends the trial court erred by imposing a parole25. revocation fine (§ 1202.45), as he was senten ced to a term of life without the possibility of parole. Plaintiff conceded this issue, however, we reject the concession. We find the fine was properly imposed because defenda nt was also sentenced to a separate determinate term.
A. The Enhancements We re Improperly Doubled In calculating defendant’s sentence, th e trial court imposed the term for each underlying count, added the enhancement, a nd then doubled the en tire term pursuant to the three strikes law (§§ 667, subds. (b)-(i), 11 70.12, subds. (a)-(d)). Specifically, the trial court chose count 5, the exhibiting a dead ly weapon charge, as the principal term and imposed a three-year term with an add itional three years for the gang enhancement (§ 186.22, subd. (b)). The c ourt then added the terms for the charge and enhancements together and doubled the entire term. The court employed the same procedure for each of the remaining subo rdinate charges. 6 This was error. Pursuant to the three strikes law, when a defendant suffers a felony conviction and it has been proven the defend ant has also suffered a pr ior strike conviction, the punishment for a determinate term is doubl ed. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) This provision applies only to the base term and not the enhancements. ( People v. Sok (2010) 181 Cal. App.4th 88, 93-94; People v. Dominguez(1995) 38 Cal.App.4th 410, 424.) Thus, defendant’s sentence on th e determinate terms must be recalculated. As we have explained, defendant was sent enced to the base term of three years on count 5 as the principal term. That term should be doubled, and then the three-year

6 The court sentenced defendant as follows: On count 4, the court imposed an eightmonth term for the offense as well as an additi onal one year for the enhancement, then doubled both terms, resulting in a term of three years four months, and stayed the term pursuant to section 654. The court imposed identical terms on counts 2, 3, and 6, however each of those offenses was ordered to run consecutively. Although the tr anscript of the sentencing proceeding reflects concurrent sentencing, that appears to be either a typographical error ora misstatement as both the abstract of judgment and th e court’s articulation of the sentence demonstrate the terms were to be consecutive.26. enhancement should be added, resulting in a term of nine ye ars. On count 4, the court imposed and stayed an eight-month term for the underlying charge of felon in possession of a firearm, and additionally imposed a one- year term for the enhancement. Using the above calculation, count 4 woul d result in a term of two ye ars four months, which was stayed. On count 6, the activ e participant in a street gang charge, the court imposed a consecutive eight-month term, which was doubled pu rsuant to the three strike law. This was correct, however, as we explain later, this count must also be stayed. On counts 2 and 3, the court imposed identical terms: an eight-month term for the substantive charges as well as an additional one-year term fo r the enhancement. Using the correct calculation, this results in a two-year fou r-month sentence on each charge. Thus, the total determinate term in this case, taking into acc ount the fact count 6 must be stayed, is 13 years 8 months. The trial court’s sentence on the remaining counts from the additional violation of probation cases wa s properly imposed. Therefore, the total determinate term on all cases is 15 years 8 months. B. The Sentence on Coun t 6 Must Be Stayed Defendant was convicted of murder, po ssession of a firearm by a felon, receiving stolen property, and brandishing a firearm to resist arrest. He was found to be an active participant in a street gang, and multiple enhancement allegations were found true. Defendant contends, properly, th at his sentence for being an ac tive participant in a street gang must be stayed as it is based upon the same act as the other offenses for which he was punished. Plaintiff concedes the issue and we accept the concession. Section 654 provides in pertinent part: “An act or omission that is punishable in different ways by different prov isions of law shall be punish ed under the provision that provides for the longest potential term of impr isonment, but in no case shall the act or omission be punished under more than one provi sion.” (§ 654, subd. (a).) “The purpose of section 654 is to prevent multiple punishme nt for a single act or omission, even though that act or omission violates more than on e statute and thus constitutes more than one27. crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense—the one carrying the highest punishment. [Citation.]” ( People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) Recently, in People v. Mesa (2012) 54 Cal.4th 191, 199, the California Supreme Court held that section 654 did not permit separate punishment for a section 186.22, subdivision (a) crime of active participati on in a criminal street gang when the only evidence of such participati on was the current charged offe nses, even if there were multiple objectives. ( Mesa , at pp. 199–200.) This is because the crime of being an active participant in a criminal street gang requires not only that the defendant be a member of the gang, but that he also promote, further, or assist in felonious conduct. ( Id . at pp. 196- 197.) Thus, where the underlying felony is also the act “‘that transformed mere gang membership—which, by itself, is not a crime—into the crime of gang participation,’” section 654 bars multiple punishment for that single act. ( People v. Mesa , supra , at pp. 197-198.) In this case, defendant was charged in count 6 with violating section 186.22, subdivision (a). The on ly evidence of his active partic ipation, however, was the evidence associated with the other char ged offenses. Indeed, the ju ry was instruct ed that an element of that charge require d a finding that defendant “assisted, furthered, or promoted felonious criminal conduct by members of the gang.” The court further instructed the jury that felonious criminal conduct me ant “committing or attempting to commit the following crime: murder, prohibited possession of a firearm, receiving stolen property, or brandishing a firearm to resist arrest.” There was no other evidence admitted at trial demonstrating defendant promot ed or assisted any other felonious criminal conduct other than the crimes for which he was co nvicted. Therefore, pursuant to Mesa , the court should have stayed the term it imposed on count 6. ( People v. Mesa , supra , 54 Cal.4th at p. 199.)28. C. Defendant’s Credits Must Be Modified At the sentencing hearing, the trial court, relying on the probation officer’s report indicating defendant was arrested on December 8, 2008, awarded defendant 885 days of actual custody credit. However, as defendant contends and plainti ff concedes, defendant was actually arrested on November 26, 2008. Calculating from defendant’s actual arrest date of November 26, 2008, to the senten cing date of May 10, 2011, it is apparent defendant is entitled to 896 days of credit. We will order the abstract of judgment amended accordingly. D. The Parole Revocation Fine Was Properly Imposed Defendant’s final contention is the tria l court erred in imposing and suspending a parole revocation fine of $ 10,000 pursuant to former sect ion 1202.45. Plaintiff has conceded the issue, however, this court rejects the concession in light of People v.
Brasure (2008) 42 Cal.4th 1037. The court imposed both a $10,000 restitution fine unde r former section 1202.4 and a $10,000 parole revocation fine under form er section 1202.45, which the court stayed pending any violation of parole. Former section 1202.45 provided: “In every case where a person is conv icted of a crime and whose sentence includes a period of parole, the cour t shall at the time of imposing the restitution fine pursuant to subdivisi on (b) of Section 12 02.4, assess an additional parole revocation restitutio n fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine sh all ... be suspended unless the person’s parole is revoked.”
In People v. Brasure , the California Supreme Court held that former section 1202.45 parole revocation fines should be in cluded in a sentence wh enever the sentence includes a determinate prison term, despite the simultaneous imposition of a life sentence without the possibility of parole. ( People v. Brasure , supra , 42 Cal.4th at p. 1075.) This is because a determinate prison term under sec tion 1170 includes a period of parole under section 3000. ( Brasure , at p. 1075.) In Brasure , the defendant was sentenced to death29. and an additional determinate term. ( Id . at p. 1049.) The court held that although it was unlikely he would ever serve any part of the parole period on the sentence, nevertheless, the fine was mandated. Likewise here, defendant was sentenced to life without the po ssibility of parole but, in addition, he was sentenced to a consecu tive determinate term. As the facts of this case are indistinguishable from Brasure , the parole revocation fine was required. ( People
v. Brasure , supra , 42 Cal.4th at pp. 1049, 1075.) DISPOSITION The judgment is modified to reflect a term of nine years on count 5 (three-year midterm, doubled pursuant to the three strike s law, plus three years for the enhancement), and a term of two years four months each on counts 2 and 3 (eight months, doubled pursuant to the three strikes law, plus one yearfor the enhancements). The trial court is ordered to amend the abstract of judgment to reflect this modificati on—a section 654 stay on count 6—and to award defendant a total of 896 days of actual custody credits and forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation. As modified the judgment is affirmed.

__________________________ PEÑA, J. WE CONCUR:

________________________________ KANE, Acting P.J.

________________________________ FRANSON, J.