Opinion
E065472
06-02-2017
THE PEOPLE, Plaintiff and Respondent, v. LOGAN ANDERSON SWANK, Defendant and Appellant.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1500234) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed as modified. Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Logan Swank guilty of first degree murder (Pen. Code, § 187, subd. (a)), and attempted first degree murder (§§ 187, subd. (a), 664). As to both crimes, the jury found true the allegations that defendant personally used a firearm (§ 12022.53, subd. (b)), and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). In regard to the murder, the jury also found true the allegations that defendant personally and intentionally discharged a firearm causing death to another person (§ 12022.53, subd. (d)), the murder was intentional and carried out for financial gain (§ 190.2, subd. (a)(1)), and defendant intentionally killed the victim by means of lying in wait (§ 190.2, subd. (a)(15)). The trial court sentenced defendant to prison for a term of life without the possibility of parole plus 32 years to life.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
Defendant raises six issues on appeal. First, defendant contends the trial court erred by not instructing the jury on aiding and abetting second degree murder. Second, defendant asserts the trial court erred by not instructing the jury on aiding and abetting first degree murder. Third, defendant contends the trial court erred by not instructing the jury on aiding and abetting attempted murder. Fourth, defendant contends the trial court erred in instructing the jury on flight. Fifth, defendant contends reversal is required due to the cumulative prejudicial effect of the foregoing alleged errors. Sixth, defendant asserts the trial court made a sentencing error. We affirm the judgment with modifications.
FACTUAL AND PROCEDURAL HISTORY
A. PROSECUTION'S CASE
Wesley Swank (Brother) is one of defendant's older brothers. Brother was in the army. The victim, Daniel Yarbrough, was a soldier at Fort Irwin. The victim and Brother were "battle buddies" and friends. Defendant's sister, Lindsay Swank (Sister), was married to Thomas Bradshaw (In-Law).
The victim lived in Victorville. Defendant lived in Lancaster. Brother lived in Barstow. Sister and In-Law lived in Apple Valley.
In the summer of 2014, defendant was having financial difficulties. Brother was also experiencing financial troubles. In early August, Brother suggested "eliminating [the victim] for his life insurance." Brother said he would provide the weapon and create the opportunity for the killing, and defendant could shoot the victim. Brother offered to give defendant $11,000 of the life insurance proceeds. Defendant agreed. Brother borrowed a shotgun from one of his friends.
In early September, In-Law joined defendant and Brother for what he believed would be an outing to play pool. Instead, defendant and Brother took In-Law into the desert where they shot a shotgun. Brother took out the shotgun and shot it, then defendant shot it. Combined, Brother and defendant shot approximately four rounds at a water bottle. Brother decided In-Law would be the driver for the drive-by shooting. In-Law would receive $4,000 for driving.
Defendant went to a store to purchase ammunition for the gun. Brother gave defendant money for the purchase. Defendant did not use his credit card or debit card for the purchase because he did not want the purchase traced back to him. Defendant used a disposable cell phone to text Brother about their plans so the text messages could not be traced back to them. Defendant bought the disposable telephone with cash.
Approximately one week after the trip to the desert, on the night of September 17, 2014, Brother and defendant arrived at In-Law's house, in separate cars, and said, "Come on. Let's go." Brother left in one car. Defendant drove In-Law to Victorville in another car. When they arrived in Victorville, defendant moved to the backseat and In-Law began driving the car. When the two changed seats, defendant removed the shotgun from the trunk of the car. Defendant held the shotgun while seated in the backseat.
The victim's car was parked in his driveway. The front of the car was facing the street. The victim sat in the driver's seat of his car, listening to music and drinking beer.
Defendant and In-Law picked up Brother at a church in Victorville. At that point, Brother began driving, and In-Law moved to the passenger seat. Brother drove past the victim's house, saw the victim was in the driveway, then drove back to the church. While at the church, Brother exited the car, and In-Law moved to the driver's seat. Defendant remained in the backseat. In-Law drove himself and defendant to the victim's house, which was approximately a 10-minute drive.
In-Law slowly drove by the victim's house. Defendant fired one shot from the shotgun. The gun jammed as defendant fired a second shot. In-Law sped off. One slug struck the hood and engine of the victim's car. The victim was not struck. Defendant and In-Law drove to a grocery store where they joined Brother in his grocery shopping.
After the drive-by shooting, the victim was having difficulties with his wife. Brother suggested the victim come to Sister and In-Law's apartment to discuss the marital problems during a Bible study on the night of September 29. Brother also invited defendant to Sister and In-Law's apartment for Bible study on the night of September 29. Defendant picked-up Brother, and Brother placed the shotgun in defendant's vehicle. When they arrived at In-Law's apartment complex, Brother said, "'[The victim will] be here in about 20 minutes. . . . [¶] . . . [¶] . . . All right. He's gonna park right there. And when he gets out, you're just gonna shoot him.'"
Defendant went inside In-Law's apartment and helped In-Law's children with their homework. The victim contacted Brother to tell him, "'Hey, I'm pulling up.'" Brother told the victim to park across the street. Brother told defendant that the victim was coming, so defendant went back outside. Brother handed the shotgun to defendant, which defendant placed in the backseat of his car. Brother said, "'Just two shots'" and "Don't miss.'" Brother ran inside.
Defendant stood next to his car. The victim stopped his car and exited the car. The victim's car was across the street from where defendant was standing. Defendant took the gun from the backseat and aimed it at the victim. The victim looked at defendant holding the shotgun. The victim reached down, which caused defendant to think the victim was reaching for a gun. Defendant shot the victim's chest from a distance of approximately 14 feet.
The victim fell to the ground. Defendant shot the gun a second time, in order "to put him out of his misery," but defendant missed the victim. There were only two shots in the shotgun, so defendant placed the gun in the bushes. The victim reentered his car. The victim died within minutes of being shot. The victim's body was in the driver's seat of the car, slumped over the center console and into the passenger seat.
Defendant went inside the apartment and told Brother "it was done." Brother went outside and picked up the gun and the shells. Brother threw the shells away in In-Law's trash. Defendant and Brother went to a church. Brother hid the gun in the bushes at the church.
Defendant and Brother went back to In-Law's apartment and watched a movie. Later that night, when defendant and Brother left the apartment, In-Law walked outside with them. Fire engines and police cars were outside, and crime scene tape was set-up. In-Law asked a police officer if defendant and Brother could leave because the crime scene tape was blocking the driveway. Brother began crying. Brother told a police officer that he knew the victim. Brother, In-Law, and defendant were tested for gunshot residue.
A search of Brother's house revealed insurance documents. The documents reflected Brother was the beneficiary of the victim's life insurance. The policy was for $250,000. On October 20, defendant and his wife moved to Texas. Defendant said he moved because he was not making sufficient money at his job selling cars. One of defendant's sisters lived in Texas and offered to pay for six months of housing for defendant if defendant were unable to obtain a job within a week of moving.
Two detectives from California interviewed defendant in Texas. During the interview, defendant confessed to agreeing to kill the victim to solve financial problems. Defendant admitted killing the victim. Defendant also confessed to attempting to murder the victim on two separate occasions. On the first occasion, the victim was parked in an area known as Felony Flats, waiting for Brother to deliver steroids. Brother dropped defendant off across the street from where the victim was waiting. Defendant fired one shot, which struck the ground, and then the gun jammed. On the second occasion, the victim was parked in his driveway. In-law drove a car past the victim's house; defendant shot at the victim but missed.
During the interview, a detective said Brother's hand had tested positive for gunshot residue. The detective asked why Brother would have gunshot residue on his hand. Defendant theorized that it resulted from Brother picking up the shells after the shooting. Defendant explained that he knew he, Brother, and In-Law "would get caught."
B. DEFENDANT'S CASE
Defendant testified at his trial. Defendant became aware of Brother's plan to kill the victim "shortly after the first incident." The first incident took place in the Felony Flats area of Apple Valley approximately two and one-half to three weeks before September 29, 2014. Brother used defendant's car and shot blanks at the victim from the driver's seat; after the incident, Brother told defendant that Brother shot blanks at the victim.
Brother told defendant and In-Law that the victim would be shot at, in front of the victim's house, when the victim arrived home from work on September 17. Brother told defendant that defendant would shoot the victim. Defendant was scared of Brother. Defendant purchased slugs for the shotgun with money provided by Brother. Defendant was not aware of any life insurance benefits related to the victim and Brother.
On September 17, defendant was in the backseat of his car holding the shotgun. In-Law was driving the car. Brother was also in the car. The three drove to the victim's house. Defendant aimed the gun but then "froze" and did not shoot. Brother took the gun from defendant. Brother fired two shots toward the victim.
On September 29, at 6:00 p.m., defendant picked up Brother so they could go to Sister's apartment for Bible study. The shotgun had been in the trunk of defendant's car since the September 17 drive-by shooting, and it was still in the trunk on September 29. Defendant had forgotten the gun was in the car. At 7:00 p.m., Brother and defendant arrived at Sister's apartment.
At 8:00 or 8:30 p.m., defendant and Brother left the apartment. Defendant left so he could drive to the store to purchase energy drinks. Brother followed defendant outside in order to make a phone call. When defendant reached his car, the victim arrived. Brother was standing next to defendant's car. Brother removed the shotgun from the trunk of defendant's car and shot the victim.
Brother handed the gun to defendant and instructed him to leave the gun at the church. Defendant complied because he did not want to be harmed by Brother. Brother picked up the expended shells. Defendant drove away. Defendant hid the gun, stopped to purchase the energy drinks, and then returned to Sister's apartment. Defendant had been unaware the victim was coming to the apartment. After the shooting, Brother explained the victim had come to the apartment in order to participate in the Bible study.
Defendant moved to Texas in order to "get away" from Brother. Defendant leased an apartment in his name and was working in Texas. Approximately two months before defendant was detained by police, Brother called defendant and told defendant that Brother was being watched and he needed defendant "to take the fall" for the killing. Brother told defendant what to tell the police. Defendant was scared of Brother. Defendant told the police that defendant killed the victim. Defendant never received money in connection with the killing.
C. JURY INSTRUCTIONS
The trial court and trial attorneys discussed jury instructions off the record. On the record, the trial court asked the attorneys about instructing the jury with CALCRIM No. 708, which concerns using accomplice testimony to prove a special circumstance allegation. The trial court said, "I'm looking at People v. Hill, 'When the witness is a codefendant whose testimony includes incriminating statements, the Court shall not instruct that the witness is an accomplice as a matter of law.' I won't do that. And I don't think that you two are agreeing to that either, that [defendant] is an accomplice." Defense counsel responded, "No, I don't." The court said, "Then I won't give it." The trial court instructed the jury on first degree murder, second degree murder, and attempted murder.
DISCUSSION
A. AIDING AND ABETTING SECOND DEGREE MURDER
Defendant contends the trial court erred by not instructing the jury on the law of aiding and abetting in connection with second degree murder. Defendant asserts that if the jury were given two options—(1) direct perpetrator, and (2) aider and abettor—then the jury might not have rendered true findings on the enhancements for personal use of a firearm.
"A trial court has a duty to instruct sua sponte 'on those general principles of law that are closely and openly connected with the facts before the court and necessary for the jury's understanding of the case.'" (People v. Simon (2016) 1 Cal.5th 98, 143.) We apply the de novo standard of review. (People v. Canizalez (2011) 197 Cal.App.4th 832, 850.)
"[M]ere 'presence at the scene of a crime or failure to prevent its commission [is not] sufficient to establish aiding and abetting.'" (People v. Richardson (2008) 43 Cal.4th 959, 1024.) "'An aider and abettor is one who acts with both knowledge of the perpetrator's criminal purpose and the intent of encouraging or facilitating commission of the offense.'" (Id. at p. 1023.)
Defendant testified that he left Sister's apartment in order to drive to the store to purchase energy drinks. Brother went outside to use his telephone. Prior to the killing, defendant was unaware that the victim was coming to Sister's apartment. Defendant walked to his car, in order to drive to the store. Brother was standing near the back of defendant's vehicle, and appeared to be sending a text message. Defendant watched Brother take the shotgun out of the trunk and shoot the victim. Defendant had forgotten the shotgun was in the trunk. Defendant had never met the victim.
The defense evidence reflects defendant had no knowledge Brother intended to shoot the victim on the night of September 29. Defendant did not know the victim was coming to Sister's apartment. Defendant had never met the victim, so he did not recognize the victim when he arrived. At the time of the drive-by shooting, defendant only knew the victim as "a [B]lack dude [sitting] in the driver's seat," whom Brother had pointed out—defendant did not recognize the victim. At the time of the murder, defendant saw "a taller African-American male" exit a car, and that man was then shot by Brother—defendant did not recognize the victim. Defendant did not know the shotgun was in his car, so he did not intend to encourage or facilitate the commission of the killing. Defendant believed Brother was outside in order to make a telephone call—not to kill the victim.
Given the foregoing evidence, a theory of aiding and abetting is not closely and openly connected with the facts before the court. The prosecution evidence suggested defendant was the direct perpetrator. The defense evidence suggested defendant was a witness to the killing but had no knowledge the killing was going to occur that night and did not intend to assist in the killing that night. In sum, to the extent there is evidence in the record that could support a theory of aiding and abetting, it was not so openly and closely connected to the facts that it sparked a sua sponte instructional duty on the part of the trial court. (People v. Montoya (1994) 7 Cal.4th 1027, 1050 ["the trial court was under no obligation to sift through the evidence to identify an issue that conceivably could have been, but was not, raised by the parties, and to instruct the jury, sua sponte, on that issue"].)
Defendant asserts the jury could find he aided and abetted a second degree murder based upon the evidence that defendant kept the shotgun in the trunk of his car, defendant drove Brother to Sister's apartment on the night of the killing, defendant saw the victim arrive at the apartment, defendant saw Brother take the shotgun from defendant's car, and defendant saw Brother shoot the victim.
The foregoing evidence describes a witness. There is no evidence supporting a finding that defendant drove Brother to Sister's apartment with knowledge that Brother was going to kill the victim. Rather, the evidence reflects defendant did not know the victim was coming to the apartment, and defendant had never met the victim and thus would not have recognized the victim when the victim arrived such that defendant would have known a killing was about to occur. Because defendant has not set forth evidence reflecting he acted, e.g., drove and had the gun in the car, "'both [with] knowledge of the perpetrator's criminal purpose and the intent of encouraging or facilitating commission of the offense'" (People v. Richardson, supra, 43 Cal.4th at p. 1024), we find his argument to be unpersuasive.
B. AIDING AND ABETTING FIRST DEGREE MURDER
Defendant contends the trial court erred by not instructing the jury on aiding and abetting in relation to first degree murder. Defendant asserts that if the jury had been informed of the law related to aiding and abetting, it may not have made true findings on the firearm enhancements concerning the personal use of a firearm.
As explained ante, any evidence of aiding and abetting was not closely and openly connected with the facts before the court. The trial court did not have a sua sponte obligation to comb through the record to piece together all possible theories of the case. (People v. Montoya, supra, 7 Cal.4th at p. 1050.) The closely and openly connected facts reflected either (1) defendant was the direct perpetrator, or (2) defendant was a witness to the shooting and possibly an accessory after the fact. Any evidence of aiding and abetting was not so pronounced as to create a sua sponte instructional duty on the part of the trial court.
C. AIDING AND ABETTING ATTEMPTED MURDER
Defendant contends the trial court erred by not instructing on aiding and abetting attempted murder. Defendant asserts that if the jury had been presented with the law of aiding and abetting, then it might not have rendered true findings on the enhancements for personally using a firearm.
"A trial court has a duty to instruct sua sponte 'on those general principles of law that are closely and openly connected with the facts before the court and necessary for the jury's understanding of the case.'" (People v. Simon, supra, 1 Cal.5th at p. 143.) We apply the de novo standard of review. (People v. Canizalez, supra, 197 Cal.App.4th at p. 850.)
"[M]ere 'presence at the scene of a crime or failure to prevent its commission [is not] sufficient to establish aiding and abetting.'" (People v. Richardson, supra, 43 Cal.4th at p. 1024.) "'An aider and abettor is one who acts with both knowledge of the perpetrator's criminal purpose and the intent of encouraging or facilitating commission of the offense.'" (Id. at p. 1023.)
Prior to the attempted murder, Brother told defendant that defendant would shoot the victim. On September 17, defendant was in the backseat of his car holding the shotgun. In-Law was driving the car. Brother was also in the car. The three drove to the victim's house. According to defendant, defendant aimed the gun but then "froze" and did not shoot. Brother reached into the backseat, slapped the back of defendant's head, and called defendant "a dipshit." Brother told defendant, "You need to grow some balls and pull the trigger." Brother "then grabbed the shotgun." Brother fired two shots toward the victim.
Based upon defendant's version of the events, defendant had no knowledge that Brother was going to take the gun and shoot at the victim. Defendant planned for defendant to be the direct perpetrator, but then defendant "froze," and Brother "grabbed the shotgun." There was no point where defendant was acting with the intent of encouraging or facilitating Brother's commission of the offense. As a result, aiding and abetting was not so closely and openly connected with the facts before the court that a sua sponte duty arose on the part of the trial court to instruct on the law of aiding and abetting.
Defendant asserts he could have been found to be an aider and abettor of attempted murder because defendant knew of Brother's plan to kill the victim, defendant purchased the ammunition, defendant was in the car during the attempted murder, defendant pointed the gun at the victim, defendant permitted Brother to take the gun away from defendant, defendant did not stop Brother from shooting the victim, and defendant retained the gun after the drive-by shooting.
Defendant provides no record citation to support his assertion that he permitted Brother to take the gun. Our reading of the record reflects defendant "froze," Brother "grabbed the shotgun," and Brother shot toward the victim. The evidence of defendant "freezing" does not openly reflect defendant intended to encourage or facilitate Brother's commission of the offense when the plan allegedly changed and Brother became the direct perpetrator.
The remainder of the evidence marshalled by defendant in making his argument about aiding and abetting does not openly and closely reflect defendant intended to encourage or facilitate Brother's commission of the offense. Rather, it reflects defendant planned to be the direct perpetrator, and had no intent to assist Brother in Brother's role as the attempted killer. In sum, any evidence of defendant aiding and abetting attempted murder was not so openly and closely connected to the facts of the case that it sparked a sua sponte instructional duty on the part of the trial court.
D. FLIGHT INSTRUCTION
1. INSTRUCTION
The prosecutor requested the jury be instructed on flight. (CALCRIM No. 372.) Defense counsel objected to the trial court instructing the jury on flight. The trial court said, "The evidence is that [defendant] left the State of California after this incident. One could interpret that as consciousness of guilt. On the other hand, the jury instruction itself says, 'If you find,' so the jury would have to determine that."
The trial court instructed the jury on flight. (CALCRIM No. 372.) The instruction provided, "'If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
2. CONTENTION
Defendant contends the trial court erred by instructing the jury on flight. Defendant contends two errors arose in relation to the instruction. First, defendant asserts there was insufficient evidence to support giving the instruction. Second, defendant contends the instruction permitted the jury to use evidence of flight as corroboration for In-Law's accomplice testimony.
3. EVIDENCE
Defendant asserts the prosecutor failed to present evidence that defendant left California due to consciousness of guilt or to evade arrest, and therefore, the trial court erred by instructing the jury on flight.
"'In general, a flight instruction "is proper where the evidence shows that the defendant departed . . . under circumstances suggesting that his movement was motivated by a consciousness of guilt."'" (People v. Leon (2015) 61 Cal.4th 569, 607; see also § 1127c.) We apply the de novo standard of review. (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
In defendant's confession to law enforcement officers, he said he moved to Texas because his job selling cars in California did not pay a sufficient salary. When defendant testified, he said he moved to Texas in order to "get away" from Brother. The killing occurred on September 29. Defendant moved on October 20. The jury could infer that defendant wanted to "get away" from Brother, within a month of the killing, because seeing Brother reminded defendant of the killing, and defendant would prefer to forget the killing. Thus, there is evidence from which the jury could infer defendant moved away from California due to consciousness of his guilt. Accordingly, there is evidence supporting the trial court's decision to instruct the jury on flight.
4. CORROBORATION
Defendant contends the flight instruction impermissibly allowed the jury to use defendant's flight/move to Texas as corroboration for In-Law's accomplice testimony.
The People did not respond to defendant's contention concerning the interaction between the flight instruction and the accomplice testimony instruction. --------
"To corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged." (People v. Perry (1972) 7 Cal.3d 756, 769 (Perry) abrogated on another point in People v. Green (1980) 27 Cal.3d 1, 28.) "The law is settled that '[e]vidence of flight supports an inference of consciousness of guilt and constitutes an implied admission.' [Citation.] Flight tends to connect an accused with the commission of an offense and may indicate that an accomplice's testimony is truthful." (Perry, at p. 771.)
More recently, our Supreme Court wrote, "[E]vidence of defendant's flight after the crimes were committed supports an inference of consciousness of guilt and constitutes an implied admission, which may properly be considered as corroborative of the accomplice testimony." (People v. Williams (2013) 56 Cal.4th 630, 679.) Similar rules about evidence of flight corroborating accomplice testimony were set forth in People v. Zapien (1993) 4 Cal.4th 929, 983, and People v. Garrison (1989) 47 Cal.3d 746, 773.
Given the foregoing Supreme Court precedent reflecting that evidence of flight may properly be used to corroborate accomplice testimony, we conclude the trial court did not err in its instructions. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455 [inferior courts cannot overrule decisions of a higher court].)
Defendant asserts that, in Perry, the Supreme Court held evidence of flight may only be used as corroboration of accomplice testimony when the flight is by a person "who knows he is suspected of committing a crime." (Perry, supra, 7 Cal.3d at pp. 771-772.) Defendant contends the cases that cite Perry for the broad conclusion that general evidence of flight may corroborate accomplice testimony are incorrect because, under Perry, only evidence of flight by persons who know they are suspects may be used to corroborate accomplice testimony.
In Perry, the Supreme Court wrote, "Flight tends to connect an accused with the commission of an offense and may indicate that an accomplice's testimony is truthful. [Citations.] As such, the flight of one who knows he is suspected of committing a crime may be sufficient to corroborate the testimony of an accomplice. [Citation.] Likewise, attempts of an accused to conceal his identity [citation] or his whereabouts [citation] may warrant an inference of consciousness of guilt and may corroborate an accomplice's testimony." (Perry, supra, 7 Cal.3d at pp. 771-772.)
The foregoing excerpt from Perry can be read as setting forth the general rule that evidence of flight can be used to corroborate accomplice testimony, and then setting forth a specific example of a flight situation that meets the general rule. Such a reading is supported by the more recent cases that have held evidence of flight, in general, may be used to corroborate accomplice testimony. (People v. Williams, supra, 56 Cal.4th at p. 679; People v. Zapien, supra, 4 Cal.4th at p. 983; People v. Garrison, supra, 47 Cal.3d at p. 773.) Accordingly, we find defendant's reading of Perry to be unpersuasive.
E. CUMULATIVE EFFECT
Defendant contends the cumulative prejudicial effect of the foregoing alleged errors requires the judgment to be reversed. We have found no errors. Therefore, there is no prejudice to cumulate. (People v. Phillips (2000) 22 Cal.4th 226, 244.)
F. SENTENCING ERROR
1. CONTENTIONS
First, defendant contends the trial court erred by imposing a term of seven years to life for the attempted murder conviction. Defendant asserts the correct sentence is life with the possibility of parole. The People concede defendant is correct. Second, defendant asserts the abstract of judgment must be corrected to reflect the sentence for the count 1 firearm enhancement is 25 years to life, not 25 years. (§ 12022.53, subd. (d).) The People did not respond to defendant's second contention.
2. ATTEMPTED MURDER SENTENCE
For the attempted murder conviction (§§ 187, subd. (a), 664), the trial court sentenced defendant to prison for a consecutive term of seven years to life.
Defendant was convicted of attempted willful, deliberate, and premeditated murder. (§§ 187, subd. (a), 189 & 664.) Attempted willful, deliberate, and premeditated murder is punishable by imprisonment for life with the possibility of parole. (§ 664, subd. (a).) Accordingly, the trial court erred by imposing a sentence of seven years to life. We will modify defendant's sentence for the attempted murder conviction to a consecutive sentence of life with the possibility of parole.
3. ABSTRACT OF JUDGMENT
For the murder enhancement of personally and intentionally discharging a firearm causing death to another person (§ 12022.53, subd. (d)), the trial court imposed a consecutive prison sentence of 25 years to life.
The indeterminate abstract of judgment has a box in which one is to mark either (1) "S" for stayed, if the enhancement sentence has been stayed; or (2) provide a number for the length of the prison term. On defendant's abstract of judgment, the clerk wrote "25" in the box. Then, toward the bottom of the abstract, the clerk wrote "*25 years to life [¶] indeterminate sentence of life without the possibility of parole plus 32 years to life." (All caps. and boldface omitted.) Defendant's sentence was life without the possibility of parole, plus 32 years to life (25 years to life and seven years to life equals 32 years to life).
When looking at the abstract of judgment it is unclear exactly what conviction or enhancement is associated with the 25-years-to-life sentence mentioned in the note, because it appears from the box that the firearm enhancement has only a 25-year sentence. When issuing the amended abstract of judgment, the trial court should mark the box as "25*" or "25-L" or somehow indicate to the reader that the 25 year to life sentence described in the note at the bottom of the abstract is associated with the section 12022.53, subdivision (d) enhancement.
DISPOSITION
Defendant's sentence for attempted murder (§§ 187, subd. (a), 664) (count 2) is modified to life with the possibility of parole (§ 664, subd. (a)). Defendant's total sentence is now life without the possibility of parole for the first degree murder (§§ 187, subd. (a), 189) (count 1), plus a consecutive term of life with the possibility of parole for the attempted murder (§§ 187, subd. (a), 189, 664) (count 2), plus a consecutive term of 25 years to life for the murder enhancement of personally and intentionally discharging a firearm causing death to another person (§ 12022.53, subd. (d)) (count 1 enhancement).
The trial court is directed to issue an amended abstract of judgment reflecting the modified sentence. In the amended abstract, the trial court is further directed to clearly indicate that the sentence for the count 1 firearm enhancement (§ 12022.53, subd. (d)) is 25 years to life. The trial court is directed to send the amended abstract of judgment to the appropriate agency/agencies. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.