Opinion
E032959.
10-27-2003
THE PEOPLE, Plaintiff and Respondent, v. EMANUEL WESTLEY ABBOTT, Defendant and Appellant.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Randall D. Einhorn and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
1. Introduction
Defendant Emanuel Westley Abbot appeals from a judgment convicting him of assaulting his fiancée with a deadly weapon and inflicting corporal injury. On appeal, defendant claims the trial court erred in excluding testimony offered to impeach his fiancées description of the encounter. Defendant also claims the trial court failed to provide jury instructions on the following subjects: self-defense, the intent requirement for assault with a deadly weapon, the intent requirement for inflicting corporal injury, the unanimity requirement, and confessions and admissions.
As to defendants claim of evidentiary error, we conclude the trial court did not abuse its discretion because the excluded testimony concerning the knife was irrelevant. As to defendants claims of instructional errors, we conclude that the trial court had no sua sponte duty to provide any additional instruction except a cautionary instruction on admissions. Omitting an instruction on admissions, however, was harmless in light of the instructions as a whole.
In regards to defendants sentence, the People, without argument by defendant, note that the trial court incorrectly imposed an additional year for one of the prior prison term enhancement allegations. The People also note that the trial court incorrectly used the determinate sentencing form, thereby, failing to reflect accurately defendants indeterminate sentence under the "Three Strikes" law. Based on the sentencing errors, we reverse the judgment and remand for correction. In all other respects, we affirm defendants convictions.
2. Factual and Procedural History
Defendant and his fiancée Yvette McLemore lived together in Hemet.
On the night of May 6, 2002, defendant and McLemore went out for a late dinner. After some indecision about the particular restaurant, McLemore drove defendant to the Cocos restaurant in Hemet. As the two walked from the car to the restaurant, McLemore teased defendant about not being able to see a sign because of his nearsightedness. This conversation led to an argument. The argument continued inside the restaurant. The two walked back to the car. Inside the car, McLemore attempted to diffuse the situation by showing defendant affection. She leaned over to the passenger side of the car, where defendant was sitting, and tried to kiss him. Defendant refused McLemores advances and he insisted that she drive him home. Defendant told her, "Well take care of this when we get home." Afraid of what might have happened at home, McLemore wanted to end the argument and go back and have dinner inside the restaurant.
At some point, McLemore exited the car and walked over to the passenger side. Before this, defendant picked up McLemores purse. McLemore made another attempt to calm defendant down with her affection. While defendant had his legs outside of the car, McLemore stood between his legs. McLemore leaned against defendant and tried to kiss and hug him. Defendant again refused her advances. This time, defendant used a sharp object and cut McLemores leg, drawing a small amount of blood. Defendant told McLemore, "For every time I tell you to take me home and you dont, Im gonna cut you."
When McLemore realized that she had been cut, she walked back to the restaurant for something to wipe away the blood. After being told that the restaurant was closed, she walked back toward the car. As the two argued again, defendant took hold of McLemores braids, pulling off her hair extensions. After her braids fell to the ground, McLemore walked over to the security guard at the nearby grocery store.
McLemore was upset and visibly shaken. She had a two- to three-inch cut on her right thigh. She told the security guard and later Officer Scott Jernegan that defendant had cut her with a three-inch long keychain knife.
During the trial, McLemore, who still was engaged to marry defendant, testified that defendant scraped her leg with the two-inch file attachment of McLemores keychain fingernail clippers. Also during the trial, defendant offered the testimony of his mother to suggest that, as she herself experienced, McLemore accidentally scraped herself on a wire protruding from the glove compartment.
The Riverside County District Attorney charged defendant with assaulting McLemore with a knife and inflicting corporal injury upon her. The district attorney also alleged that defendant committed three prior serious or violent felonies and served three prior prison terms.
Penal Code section 245, subdivision (a)(1). All further statutory references will be to the Penal Code unless otherwise stated.
Section 273.5, subdivision (a).
Sections 667, subdivisions (c) and (e)(1), 1170.12, subdivision (c)(1).
Section 667.5, subdivision (b).
The jury found defendant guilty of the two substantive crimes and the court found true all six prior conviction allegations. The court sentenced defendant to a total of 28 years to life in prison.
3. Evidentiary Error
Defendant claims the trial court abused its discretion in excluding his mothers testimony concerning the keychain.
During the trial, defense counsel explained that he would call defendants mother to testify concerning the protruding wire and the keychain. As to the keychain, defendants mother, who lived with defendant and McLemore, would testify that only she and McLemore had a set of residential keys. She would testify that defendant did not carry a set of keys or a keychain. The prosecutor objected to the evidence as irrelevant because the fact that defendant did not have a set of residential keys did not eliminate the possibility that defendant used a knife from a different keychain. The court ruled that evidence inadmissible on the ground that no one "could testify in this particular instance what [defendant] had on his person."
As argued during the trial, defendant claims that the evidence was relevant to show that defendant did not cut McLemore with a knife. Defendant contends that his mothers testimony would have shown that defendant never carried a set of keys. Defendant therefore claims that the evidence tended to show that he did not have a keychain knife and did not use a knife to cause McLemores injury. Defendant also argues that, because defendants mothers testimony suggested that McLemore provided an inaccurate description of the incident to the security guard and the officer, the evidence tended to prove that McLemore exaggerated the details of the incident.
The People argue that the evidence was irrelevant because defendants mother did not witness the incident and could not have know whether defendant had another keychain on that particular night. Because the evidence was irrelevant, the People claim that the court properly excluded defendants mothers testimony.
Only relevant evidence is admissible. Relevant evidence is evidence that has any tendency in reason to prove a disputed, material fact. A trial court exercises broad discretion in admitting or excluding evidence, including evidence offered for impeachment. A trial courts ruling is reviewed for an abuse of discretion and must be upheld unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner.
Evidence Code section 210; People v. Kipp (2001) 26 Cal.4th 1100, 1123.
People v. Rodriguez (1999) 20 Cal.4th 1, 9.
People v. Rodriguez, supra, 20 Cal.4th at pages 9-10.
In this case, the trial court correctly found that the evidence was not relevant. Defendants mothers testimony may have proved only that defendant did not have a set of residential keys and did not carry a keychain at all times. McLemore told Officer Jernegan that defendant cut her with a knife that he "always carries" and that is "attached to his key chain." Defendants mothers testimony may have contradicted McLemores statement to Officer Jernegan that defendant always carried his keychain. This fact, however, was immaterial. The prosecution could have established defendants guilt even if defendants mother testified that defendant did not own a set of residential keys and did not carry a keychain at all times.
Rather, the material fact was whether defendant carried a keychain with a knife on the night of May 6, 2002. Defendants mothers testimony, even if believed, would not have disproved the existence of this fact. Defendants mother had no personal knowledge of what defendant carried during the night of the crime. Her testimony, therefore, would not have contradicted McLemores statement to the police on an issue of material fact.
See People v. Rodriguez, supra, 20 Cal.4th at page 10.
Defendant also claims that the court violated his constitutional right to present a defense and call witnesses to support that defense. Although a criminal defendant has a right to present evidence to support his defense theory, he must abide by the rules of evidence. Generally, application of these rules does not infringe upon a defendants constitutional rights. Here, because the evidence was not relevant, the courts exclusion of the evidence did not violate defendants constitutional rights.
People v. Cudjo (1993) 6 Cal.4th 585, 611.
See People v. Cunningham (2001) 25 Cal.4th 926, 999; People v. Babbitt (1988) 45 Cal.3d 660, 685.
We conclude that the trial court did not abuse its discretion or violate defendants constitutional rights by excluding his mothers testimony concerning the keychain.
4. Instructional Error
In general, a trial court must instruct on only the principles of law relevant to the issues raised by the evidence and necessary and helpful for the jurys understanding of the case. The courts duty includes the obligation to give instructions on all the elements of the charged offense and the defenses. The court must also instruct on lesser included offenses when there is evidence that the offense committed was less than the offense charged. The courts failure to provide a necessary instruction requires reversal only if a different outcome would have resulted.
People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Prettyman (1996) 14 Cal.4th 248, 265.
People v. Rubalcava (2000) 23 Cal.4th 322, 334.
People v. Koontz (2002) 27 Cal.4th 1041, 1085.
See People v. Marks (2003) 31 Cal.4th 197, 222.
A. Self-Defense
In his first claim of instructional error, defendant argues that the court should have instructed the jury on self-defense by giving CALJIC No. 5.30 because defendant was defending himself against McLemores offensive and unwanted advances.
The courts duty to instruct extends to all defenses that are consistent with defendants trial theory and are supported by substantial evidence in the record. Under the theory of reasonable self-defense, a person can use whatever force necessary to ward off the impending danger. This includes the force reasonably necessary to resist any battery or offensive touching, including sexual advances.
People v. Garvin (2003) 110 Cal.App.4th 484, 488.
See People v. Humphrey (1996) 13 Cal.4th 1073, 1094-1095.
See People v. Myers (1998) 61 Cal.App.4th 328, 335.
In this case, however, the court had no sua sponte duty to instruct on self-defense because the instruction would have been inconsistent with defendants trial theory. At trial, defendant claimed that McLemore accidentally injured herself on the sharp wire protruding from the glove compartment. Defendant did not rely on a theory of self-defense. Relying on such a theory would have required that defendant admit that he caused the injury and that his act was intentional. Defendant would have asserted that he intentionally used the knife or fingernail file to defend against McLemores unwanted advances. The record shows, however, that defendant relied on a theory that the injury was accidental. The instruction, therefore, was inconsistent with defendants trial theory. The court therefore had no sua sponte obligation to instruct the jury on self-defense.
B. Intent to Use a Deadly Weapon
Defendant claims the trial court failed to instruct on the intent requirement for the crime of assault with a deadly weapon. Rather than the intent requirement, defendants claim concerns the requirement that the crime be committed with a deadly weapon. Specifically, defendant argues that the trial court failed to instruct the jury that, in order for the instrument to qualify as a deadly weapon, defendant must have intended to use the instrument as such.
In support of his argument, defendant relies on People v. Graham. In Graham, the court distinguished between two categories of dangerous and deadly weapons. One category including guns, dirks, and blackjacks, which are inherently dangerous. The other including razors, pocket-knives, hammers, and other sharp or heavy instruments, which are not designed as dangerous weapons, but may be used as such. In Graham, the court held that, when the case involves an instrument falling within the second category, the trial court must instruct the jury that they must find that the defendant intended to use the instrument as a dangerous and deadly weapon. The manner in which an instrument is used may determine whether the object is a dangerous and deadly weapon.
People v. Graham (1969) 71 Cal.2d 303, disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 32.
People v. Graham, supra, 71 Cal.2d at pages 327-328.
People v. Graham, supra, 71 Cal.2d at pages 328, 329.
People v. Graham, supra, 71 Cal.2d at page 327.
The People contend that the trial court fulfilled its duty by instructing the jury with CALJIC No. 9.02.
CALJIC No. 9.02 reads as follows:
"Defendant is accused in Count 1 of having violated section 245, subdivision (a)(1) of the Penal Code, a crime.
"Every person who commits an assault upon the person of another with a deadly weapon or instrument or by means of force likely to produce great bodily injury is guilty of a violation of section 245, subdivision (a)(1) of the Penal Code, a crime.
"A deadly weapon is any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily injury.
". . . . . . . . . . . . . . . . . . .
"In order to prove this crime, each of the following elements must be proved:
"1. A person was assaulted; and
"2. The assault was committed with a deadly weapon or instrument or by means of force likely to produce great bodily injury."
As noted by the People, the third paragraph in this instruction sets forth the required element that defendant committed the assault by using a deadly weapon. The court defined a deadly weapon as a weapon used in a manner as to be capable of producing death or great bodily injury. Because intent can be determined by the manner in which the instrument is used, CALJIC No. 9.02 satisfies the rule in Graham.
See People v. Simington (1993) 19 Cal.App.4th 1374, 1381; see also People v. Claborn (1964) 224 Cal.App.2d 38, 42.
Graham did not create a second intent requirement, the court simply expanded on the requirement that the assault be committed with a deadly weapon. An instrument that is not inherently dangerous may constitute a dangerous or deadly weapon if used as such. Therefore, rather than focusing on the manufacturers intended purpose, the courts must consider the defendants intended use. Intended use, in this context, requires no more than that the defendant used the instrument for the purpose of committing the crime.
See People v. Pruett (1997) 57 Cal.App.4th 77, 86.
Unlike the court in Graham, the court in this case explained the requirement that the assault be committed with a deadly weapon. The courts instruction specifically required that the jury find that the instrument was used in a manner capable of producing great bodily injury. Using a weapon to produce death or great bodily injury subsumes the requirement that the instrument be used as a dangerous or deadly weapon. The courts instruction therefore assisted the jury in making the necessary finding.
See People v. Aguilar (1997) 16 Cal.4th 1023, 1036-1037; People v. Martinez (1998) 67 Cal.App.4th 905, 911.
See People v. Aguilar, supra, 16 Cal.4th at pages 1037-1038.
We conclude that the trial court properly instructed the jury on the requirement that defendant used the knife as a dangerous or deadly weapon.
C. Intent to Inflict Corporal Injury
Defendant also claims the trial court erred in instructing the jury on the intent requirement for the crime of inflicting corporal injury upon a cohabitant, as defined in section 273.5, subdivision (a). The trial court instructed the jury that the crime was a general intent crime that required only a finding that the defendant willfully inflicted bodily injury upon a cohabitant. Defendant argues that the crime was a specific intent crime that also required that the defendant willfully caused bodily injury resulting in a traumatic condition.
As noted by the People, this court in People v. Thurston, rejected a claim similar to the one presented here. In Thurston, we began our discussion by stating that, as a general rule, a statute proscribing willful conduct is a general intent crime. Use of the word "willful" or "willfully" alone indicates that culpability attaches when the defendant intends to do the act or omission, without also requiring an intent to bring about a certain result or injury. In that case, we specifically held that willfully inflicting corporal injury on a cohabitant under section 273.5, subdivision (a), was a general intent crime.
People v. Thurston (1999) 71 Cal.App.4th 1050.
People v. Thurston, supra, 71 Cal.App.4th at page 1053.
People v. Thurston, supra, 71 Cal.App.4th at page 1053; see also People v. Campbell (1999) 76 Cal.App.4th 305, 308.
As in Thurston, in this case, the trial court fully instructed the jury on the general intent required for the crime of inflicting corporal injury on a cohabitant. The court committed no error.
D. Unanimity
Defendant claims that the trial court erred in failing to give a unanimity instruction. Defendant contends the prosecution presented evidence of three distinct acts: one, cutting the victim with a knife; two, scraping the victim with a fingernail file; and three, pulling the victims hair.
As a general rule, based on a defendants right to a unanimous verdict under article I, section 16, of the California Constitution, the jurors must unanimously agree that the defendant committed the same specific acts constituting the charged offenses. According to this principle, if the prosecution presents evidence of more than one unlawful act in support of a particular charge, either the prosecution must elect the specific act or the court must instruct the jury to agree on the same criminal act.
People v. Crow (1994) 28 Cal.App.4th 440, 445, citing People v. Jones (1990) 51 Cal.3d 294, 321; see also People v. Wheeler (1978) 22 Cal.3d 258, 265.
People v. Hawkins (2002) 98 Cal.App.4th 1428, 1452; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.
Here, the prosecutor elected the specified act relied upon to prove the charges. As evident from his closing argument, the prosecutor focused entirely on the injury to McLemores leg. The prosecutor also relied on the same injury for both offenses. As he argued, the relationship between the parties justified the second count for the same act and injury.
The prosecutor did not rely on the hair-pulling incident as evidence of the crimes. The prosecutor presented this evidence to provide a full and accurate account of the altercation. Also, the evidence of the fallen hair extensions provided further proof that McLemore was not lying to the security guard to retaliate against defendant for refusing her advances. The evidence supported the fact that an argument took place and that the argument went beyond words. Furthermore, the evidence would not have supported the jurys verdict for the crimes. In pulling McLemores hair extensions, defendant did not use a dangerous or deadly weapon. The hair-pulling also did not result in a traumatic condition, as required for the crime of inflicting corporal injury upon a cohabitant.
People v. Abrego (1993) 21 Cal.App.4th 133, 137.
As for the two remaining factual possibilities, although defendant attempts to draw a distinction between the two, the distinction is irrelevant for purposes of the constitutional requirement of unanimity. As noted by the People, defendant "only cut McLemores leg once with one motion causing one injury which left one scar." While the evidence was unclear as to whether defendant used a three-inch blade or a two-inch fingernail file, the evidence nevertheless pointed to the same act. Although the evidence leaves room for disagreement as to exactly how defendant committed the crime, the jury need not agree on the specific basis or factual theory for the crime. The precise instrumentality is, therefore, irrelevant so long as the jury unanimously agreed that defendant committed the act.
People v. Hawkins, supra, 98 Cal.App.4th at page 1453;People v. Briscoe (2001) 92 Cal.App.4th 568, 591.
People v. Hawkins, supra, 98 Cal.App.4th at page 1454.
Moreover, although no election was required, the criminal information arguably indicated the prosecutors election of the knife over the fingernail file. The information specifically charged defendant with committing the assault with a knife. The court read the information to the jury. The jurys verdict also specified that defendant used a knife to commit the assault.
In any event, because the prosecutor relied on a single discrete act, the trial court was not required to give a unanimity instruction. In the absence of a violation under the state jury unanimity rule, defendants claim of error under the federal constitution also fails.
People v. Briscoe, supra, 92 Cal.App.4th at pages 591-592.
E. Confessions and Admissions
In his final claim of instructional error, defendant argues that the court should have instructed the jury with CALJIC No. 2.70 to assist them in considering his confessions. In particular, defendant argues that an instruction was necessary based on his statement to McLemore during the altercation that he would cut her every time she refused his request to take him home.
While defendant characterizes defendants statement as a confession, the People contend that the statement is simply an admission. The People concede that the court erred in failing to instruct the jury on admissions. The People, however, argue that the error was harmless in light of the instructions as a whole.
As noted by the People, the two terms have distinct meanings. "`A confession is a declaration by a person that he is guilty of a crime. . . . It differs from an admission of an accused in that the confession is an express and complete acknowledgment of guilt of the crime, while an admission may be either express or implied, and is merely an acknowledgment of some fact which tends to prove guilt. [Citations.]"
Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 828-829.
Defendant made the statement after cutting McLemores leg with a sharp object. Defendants statement was not an express claim of responsibility for McLemores injury. Defendant simply threatened to commit future acts of violence. Nevertheless, defendants words and the circumstances surrounding his statement tended to prove that defendant was responsible for cutting McLemores leg. Therefore, while the statement was not a confession, the statement qualified as an admission.
As with confessions, the court must instruct the jury to view a defendants admissions with caution. CALJIC No. 2.71 provides the standard instruction on admissions. CALJIC No. 2.71 states as follows:
People v. Slaughter (2002) 27 Cal.4th 1187, 1200; People v. Mayfield (1997) 14 Cal.4th 668, 776.
"An admission is a statement made by the defendant which does not by itself acknowledge [ ] guilt of the crimes for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence.
"You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part.
"Evidence of an oral admission of the defendant not made in court should be viewed with caution."
CALJIC No. 2.71 (7th ed. 2003).
Whenever the prosecution uses a defendants admission to prove its case, the court has a sua sponte duty to instruct the jury with CALJIC No. 2.71. In this case, the trial court erred in failing to provide this particular instruction.
People v. Bunyard (1988) 45 Cal.3d 1189, 1224; People v. Shoals (1992) 8 Cal.App.4th 475, 498.
The courts error, however, did not result in any prejudice. The test to determine prejudice is whether, upon reweighing the evidence, the record shows no reasonable probability that defendant would have achieved a more favorable result had the court given the omitted instruction. The error would be harmless if there was no conflicting evidence concerning the precise words used, the meaning of the words, the context of the statement, and whether the statements were remembered and repeated accurately.
People v. Shoals, supra, 8 Cal.App.4th at pages 498-499.
People v. Shoals, supra, 8 Cal.App.4th at page 499, citing People v. Bunyard, supra, 45 Cal.3d at page 1224.
Defendant contends that the instructional error was not harmless because the prosecution relied on the admission. He further contends that there was conflicting evidence concerning McLemores motivation for making the statement.
Defendants contentions reveal a subtle misunderstanding of the purpose for providing a separate cautionary instruction on admissions. In People v. Bunyard, the defendant repeatedly offered two of his friends money to kill his wife and his unborn child. One of his friends accepted the offer. During the trial, the prosecution presented evidence of the defendants statements to both of his friends, implicating him in the murder-for-hire plot. In that case, the trial court failed to instruct the jury to view the defendants admissions with caution. The appellate court, however, found the error harmless. The court observed, "While conceding that defendants solicitations of both Popham and Johnson could be viewed as admissions, the Attorney General nonetheless argues that no error occurred because the purpose behind these cautionary instructions - to warn the jury about possible flaws in the accuracy and meaning of a witnesss testimony, not the truthfulness of the witness - had no applicability where the true issue was one of credibility, i.e., did defendant solicit Popham and Johnson to kill his wife at all, rather than the precise words used by defendant, or whether Popham or Johnson remembered or reported them accurately." The appellate court found the Attorney Generals harmless error argument convincing.
People v. Bunyard, supra, 45 Cal.3d 1189.
People v. Bunyard, supra, 45 Cal.3d at page 1224.
People v. Bunyard, supra, 45 Cal.3d at page 1224.
The Bunyard case establishes that CALJIC No. 2.71 is helpful when the evidence suggests a conflict as to the meaning and accuracy of the statement. CALJIC No. 2.71, however, is essentially redundant if the evidence suggests only an issue of credibility. Credibility issues, including whether the statement was made and whether the speaker had some ulterior motive for making the statement, are fully addressed in other instructions. In Bunyard, the defendant also denied making the statements. The statements were critical to the prosecutions case. Nevertheless, the court held that the instructional error was harmless because "[a]t issue was whether Popham or Johnson were credible witnesses or had fabricated their testimony concerning defendants solicitations." In that case, the court provided ample instructions on weighing the credibility of the witnesses statements.
People v. Bunyard, supra, 45 Cal.3d at pages 1224-1225.
People v. Bunyard, supra, 45 Cal.3d at page 1225.
Likewise, in this case, the court provided ample instructions to assist the jury in weighing McLemores testimony and her prior statements to the security guard and the police officer. In particular, the court gave CALJIC 2.13 (prior consistent or inconsistent statements), CALJIC No. 2.20 (believability of witness), CALJIC No. 2.21.1 (discrepancies in testimony), CALJIC No. 2.21.2 (witness willfully false), CALJIC No. 2.22 (weighing conflicting testimony), and CALJIC No. 2.81 (opinion testimony of lay witness). As to the issue of credibility, these instructions adequately alerted the jury to view defendants admission with caution.
People v. Bunyard, supra, 45 Cal.3d at page 1225.
We conclude that, because the prosecution presented evidence of defendants admission, the trial court erred in failing to give the cautionary instruction on admissions. However, because the issue was one of credibility, the other instructions provided adequate guidance in considering and weighing defendants admission. The omitted instruction, therefore, did not prejudice defendants case.
Briefly, in response to defendants cumulative error argument, we note that this single instance of instructional error, which we have found to be harmless, cannot by definition amount to cumulative error.
See People v. Bolden (2002) 29 Cal.4th 515, 568; People v. Kipp (2001) 26 Cal.4th 1100, 1132.
5. Sentencing Error
The People note that the abstract of judgment reveals the following three errors: the court erroneously imposed a separate enhancement under section 667.5, subdivision (b), for a prior conviction for which defendant did not serve a separate prison term; the abstract of judgment incorrectly reflects an determinate term when the court imposed a indeterminate term under the Three Strikes law; and the abstract of judgment fails to specify the amount of the restitution fines.
A. Prior Prison Term
In the information, the district attorney alleged that defendant served prison terms for the following offenses: a 1994 conviction for being a felon in possession of a firearm; a 1981 conviction for attempted murder; and a 1981 conviction for robbery. After finding all three prior conviction allegations true, the trial court imposed a one-year prison term enhancement for each offense under section 667.5, subdivision (b). However, the abstract of judgment for the 1981 robbery offense indicates that the seven-year prison term for that offense was to run concurrent with the ten-year prison term for the 1981 attempted murder offense. Because section 667.5, subdivision (b), allows the court to impose a one-year enhancement for each separate term, including a single block of time for multiple convictions, the court erred in imposing two one-year enhancements for the 1981 offenses. The court must therefore strike one of these enhancements.
Section 12021.
Sections 187 and 664.
Section 211.
Section 667.5, subdivision (g); see also People v. Perez (1992) 4 Cal.App.4th 893, 911.
B. Indeterminate Term
The People also note a discrepancy between the courts oral pronouncement of judgment and the abstract of judgment. During the sentencing hearing, the trial court imposed an indeterminate term of 25 years to life for the assault with a deadly weapon offense. For the abstract of judgment, however, the court used a determinate sentencing form. The abstract of judgment indicates only a determinate term of 25 years. The abstract must be modified to coincide with the courts oral pronouncement.
People v. Avila (1999) 75 Cal.App.4th 416, 424; see alsoPeople v. Crenshaw (1992) 9 Cal.App.4th 1403, 1416 (oral pronouncement of judgment controls).
C. Restitution Fines
The abstract of judgment must reflect the courts order and the correct amount of the restitution fines. During the sentencing hearing, the trial court ordered defendant to pay the following restitution fines: a parole restitution fine of $400 under section 1202.4, subdivision (b), and an additional parole restitution fine of $400 under section 1202.45, which the court ordered suspended unless defendants parole is revoked. While the abstract of judgment contains a note concerning the court-ordered fines, it fails to provide any specific details. The People also point out that, although the abstract of judgment advises, "See attachment page," there is no such page. Along with the other corrections, the trial court must specify in the new abstract of judgment the fines imposed and the amounts required.
People v. Hong (1998) 64 Cal.App.4th 1071, 1084.
6. Disposition
We reverse and remand the case to allow the court to prepare a new abstract of judgment to make the following changes: replace the determinate term with an indeterminate term of 25 years to life for count 1; strike the one-year enhancement for the 1981 robbery conviction; and specify which restitution fines were imposed and the amount of those fines. In all other respects, we affirm the judgment.
We concur: McKinster, Acting P.J., and Richli, J.