P. v. Elzy

Filed 2/5/10 P. v. Elzy CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Bob S. Bowers, Judge. Affirmed as modified.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.

I.        INTRODUCTION

Defendant, Lamar Darell Elzy, appeals from his conviction for attempted murder (Pen. Code,[1] 664, 187, subd. (a)) and the findings that he personally discharged a firearm causing great bodily injury ( 12022.7, subd. (a), 12022.53, subds. (b), (c), (d), (e)(1)) and was previously convicted of two serious felonies. ( 667, subd. (b)-(i), 1170.12.) Defendant argues the trial court improperly refused to appoint an investigator and deprived him of his right to counsel at the sentencing hearing. The Attorney General argues defendants sentence should be corrected. We modify the sentence imposed and otherwise affirm the judgment with modifications.

II.     FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment.  (Jackson  v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Percy Lemle is a bus driver. At approximately 8:15 p.m. on July 17, 2005, Mr. Lemle parked his bus in a lot on Vermont Avenue between 66th and 68th Streets. Mr. Lemle had just returned from Las Vegas. Mr. Lemles mother and father were cleaning the bus. As Mr. Lemle placed his luggage into his car, he saw two African-American men, wearing dark colored hoodie sweatshirts, coming toward him on Vermont Avenue between 66th and 67th Streets. The men had the hoods pulled down obscuring their faces. Mr. Lemle watched the men carefully because he was aware of a prior shooting in the area.

One of the men attempted to pull a gun from his pocket. The gun got caught in his pocket. Upon successfully removing the gun, the man fired one shot at Mr. Lemle. Mr. Lemle ran toward the driveway. The two men chased Mr. Lemle. Three more shots were fired. Mr. Lemle was hit by the third bullet. An additional shot was fired, which hit Mr. Lemle above his ear on the left side of his head. The gunshots caused paralysis on Mr. Lemles right side from his shoulder to his ankle. Mr. Lemle was hospitalized for 10 months. Thereafter, Mr. Lemle was at a rehabilitation center for 14 months. Mr. Lemle had four surgeries. A portion of one bullet was removed from Mr. Lemles head. However, another bullet was lodged in Mr. Lemles head.

Carlos Gomez was working as a security guard at the Safari nightclub at 68th Street and Vermont Avenue at the time of the shooting. Mr. Gomez saw two African-American men walking with their hands in the pockets of their hooded sweaters. Mr. Gomez saw the two men approach Mr. Lemle. One of the men took out a handgun and shot at Mr. Lemle. Mr. Gomez saw the man fire approximately three shots. The two African-American men then ran toward Vermont Avenue. Mr. Gomez immediately called the police. A police car arrived within 10 seconds of the shooting. Other police units arrived shortly thereafter.

Los Angeles Police Officers Mario Cardona and Art Talamante were standing at Vermont Avenue and 66th Street monitoring gang activity. Officer Cardona saw two African-American men walking southbound on Vermont Avenue from 66th Street. The men were wearing black hooded sweatshirts. One of the sweatshirts had writing on it with a picture on both the back and the front. Officer Cardona continued to watch the two men as they walked. Officer Cardona saw the man in the black sweatshirt with writing on it fire a gun at something. Officer Cardona saw the muzzle flash from the gun. Officer Cardona saw the two African-American men run to the corner of 66th Street, then begin to walk slowly. Officer Cardona ran to his police car and drove on 66th Street, following Officer Talamante, who ran after the two men. Two other police cars also responded to the area.

Officers Jesus Carrillo and Aquiles Morales were assisting other officers at 69th Street and Vermont Avenue at the time of the shooting. Officer Carrillo heard two gunshots. Officer Carrillo turned in the direction of the gunshots. Officer Carrillo heard four additional gunshots and saw the muzzle flashes. Officers Carrillo and Morales got into their patrol car and drove toward the shooting location. Officers Richard Ramos and Michael Pace did the same. Officer Carrillo saw two men wearing black hooded sweatshirts running northbound on Vermont from the area of the gunshots. Officer Carrillo was stopped for approximately 10 seconds by an African-American man who waved the police car down. Officer Carrillo then continued to follow the two men who turned the corner at 66th Street.

Officer Cardona saw the two African-American men get into a light blue four-door Toyota. Officer Carrillo pulled up behind the car and ordered the individuals out. Defendant was in the rear passenger seat. The other man, Nathaniel Blanch, got into the front passenger seat. The driver attempted to start the car, but the ignition turned off. Officer Carrillo illuminated the car with his spotlights. Officer Carrillo ordered the occupants to put up their hands. Although the driver stayed in the car, the two African-American men who had just entered the car got out. Defendant backed up toward an adjacent fence. Officer Carrillo saw the blue writing and logo on the front of defendants sweatshirt. The two men then began to run.

The driver continued to attempt to start the car. Officer Carrillo ordered the driver out of the car and took him into custody. Officers Cardona and Talamante and two other officers ran after the two African-American men. The two men separated. The man with the black sweatshirt with writing on it, defendant, ran eastbound. Officer Cardona ran after Mr. Blanch, who ran southbound into the driveway of a large apartment complex. Officer Cardona assisted three other officers in taking Mr. Blanch into custody. Defendant was followed by Officers Case and Ramos in their patrol car. After repeated orders to stop, defendant laid down on the ground. Defendant, who wore the black sweatshirt with writing and brown cloth gloves, was taken into custody by Officers Case and Ramos.

When Officer Carrillo searched the blue Toyota, he found a blue steel semiautomatic handgun in the center of the rear passenger seat. A search of the shrubbery adjacent to the blue Toyota revealed a blue steel revolver. The shrub was located against the fence where defendant had backed up after exiting the car.

Officer Everardo Amaral also arrived at the shooting scene. After defendant, the driver and Mr. Blanch were detained, Officer Amaral interviewed Mr. Gomez. Officer Amaral drove Mr. Gomez to the location where the three men were detained. During a field identification showup, Mr. Gomez immediately identified defendant as the individual who shot Mr. Lemle. Defendant was still wearing a black hooded sweatshirt with a picture of a female at the time of Mr. Gomezs identification. Mr. Gomez did not mention a grey sweatshirt. Also, Mr. Blanch was shown to Mr. Gomez. Officer Amaral described Mr. Gomezs identification of Mr. Blanch as follows: He was not sure. He couldnt identify or eliminate Mr. Blanch because he was not wearing a black hoody sweatshirt. During the trial, Officer Amaral spoke with Mr. Gomez who had been threatened. Mr. Gomez described the threat as follows to Officer Amaral, He said he was scared that he would get hurt because when he goes out onto the yard, which is in prison, that he may get attacked.

III. DISCUSSION

A.     Appointment of an Investigator

1.      Factual and procedural background

Defendant argues the trial court improperly refused to appoint an investigator to assist him with his new trial motion following his decision to represent himself. At the sentencing hearing on October 17, 2007, retained defense counsel, Nancy Mazza, notified the court that defendant and his family wanted to hire a new lawyer. Defendant further requested a 30-day continuance for purposes of filing a new trial motion. Defendant indicated that he did not yet have a specific attorney in mind. The trial court granted the 30-day continuance.

On December 14, 2007, Ms. Mazza again appeared on defendants behalf in the matter of his prior convictions. Ms. Mazza indicated that defendant wanted to proceed in propria persona and do a new trial motion. The trial court questioned defendant regarding his request to represent himself. Defendant responded: What Im asking for is that I represent myself in terms of in a new trial, in terms of probation hearing and sentencing. I guess that means I would have to represent myself because I wouldnt have an attorney. [] That is what Im asking, your honor. To represent myself for a new trial, in case there is not - - is there any way possible the court can appoint me a public defender or a court appointed attorney to do my new trial, and I would like to assist with it myself? Thereafter, the trial court inquired whether defendant wanted to represent himself or have a deputy public defender appointed to provide representation. Defendant indicated that he would like to bring a new trial motion. But defendant could not articulate the basis for a new trial motion. The trial court inquired about defendants age and education. Defendant indicated he had not represented himself in the past. The trial court gave defendant the pro per advisement. The matter was continued to January 7, 2008, to allow defendant to decide how he would proceed.

On January 8, 2008, defendant indicated his desire to represent himself. Defendant completed only part of the advisement and waiver. The trial court set the new trial motion and sentencing for January 22, 2008, and indicated defendant would receive $40 in pro per funds. On January 22, 2008, the matter was continued to February 5, 2008. On February 5, 2008, the new trial motion was continued to April 11, 2008. Defendant requested the appointment of a private investigator, explaining: The purpose of me asking for this private investigator is in preparation for me filing my new trial motion. I would like for my private investigator to go out and talk to witnesses and request files from my previous private investigator, based on one of the issues Im going to file a new trial motion, which would be on the basis of ineffective assistance of counsel. The trial court denied the request noting, [T]his request will not have an impact on the motion or a new trial at this point.

On April 11, 2008, defendant requested an additional 60-day continuance to prepare his new trial motion. Defendant again requested the appointment of a private investigator. The trial court denied the request, stating: Basically the appointment of a private investigator for this proceeding is inappropriate and basically this proceeding is not predicated upon an investigation by a private investigator. [] This proceeding has something totally differently [sic] to do with that. Again private investigators are not appointed for purposes, for this type of proceeding. Thats the reason why a private investigator will not be appointed. Defendant responded: I understand that as well, your honor. The reason why Im asking for a private investigator, and I understand your point clearly, in my motion, I had stipulated that a private investigator is not mandatory within my proceedings. I understand Im in post-conviction, your honor. Im not going to be able to go out and get affidavits and be able to serve subpoenas. [] I need to retrieve information from my previous private investigator that is going to prove a lot of things Im going to be alleging on ineffective assistance. The trial court acknowledged defendants reasons, but again denied the request.

On June 10, 2008, the trial court acknowledged that defendant requested the appointment of counsel. On June 18, 2008, Deputy Public Defender Mark Hanasono requested a witness list in order to determine whether there was a conflict of interest. On July 1, 2008, Samuel Saltalamacchia, was appointed to represent defendant. Thereafter, several continuances were granted with defendants approval. On December 10, 2008, Mr. Saltalamacchia indicated that he had just completed a trial and had not prepared the new trial motion. The trial court indicated that sentencing must proceed, noting for the record the history of continuances based upon defendants election to represent himself and the ultimate appointment of counsel. The trial court stated: There is nothing, at this point, the court would believe - - I have reviewed - - as a matter of fact, I have looked at the courts notes in this matter, and there is nothing that jumps out at me, at this point, that would make me, at this point, grant a further continuance for preparation of a new trial motion.

2.      The trial court could properly deny the investigator request

Our Supreme Court has held: An indigent defendant has a statutory and constitutional right to ancillary services reasonably necessary to prepare a defense.

( 987.9, subd. (a); Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319-320.) The defendant has the burden of demonstrating the need for the requested services. (Corenevsky v. Superior Court, supra, [36 Cal.3d] at p. 320.) The trial court should view a motion for assistance with considerable liberality, but it should also order the requested services only upon a showing they are reasonably necessary. (Ibid.) On appeal, a trial courts order on a motion for ancillary services is reviewed for abuse of discretion. (People v. Alvarez (1966) 14 Cal.4th 155, 234; Corenevsky v. Superior Court, supra, [36 Cal.3d] at p. 321.) (People v. Guerra (2006) 37 Cal.4th 1067, 1085, overruled on another point in People v. Rundle (2008) 43 Cal.4th 76, 151; see also Ake v. Oklahoma (1985) 470 U.S. 68, 77; People v. Williams (2006) 40 Cal.4th 287, 303-304; People v. Stuckey (2009) 175 Cal.App.4th 898, 916 [[T]he Constitution does not demand the full panoply of rights at sentencing hearings].)

In this case, Ms. Mazza, who represented defendant at trial, stated she saw no grounds for a new trial motion, including the reasons defendant wrote out in a letter. When asked for the grounds of his new trial motion, defendant responded, I cant tell you right now. The trial court further cautioned defendant that new trial motions were limited to specific grounds. (See 1181[2]; People v. Masotti (2008) 163 Cal.App.4th 504, 507.) After defendant was granted in propria persona status, defendant said, I would like my private investigator to go out and talk to witnesses and request files from my previous private investigator, based on one of the issues Im going to file a new trial motion, which would be on the basis of ineffective assistance of counsel. Defendant did not explain what would be accomplished by interviewing such witnesses. In denying the request, the trial court found the appointment of an investigator would not have an impact on the new trial motion. When defendant renewed his request for an investigator, the trial court indicated the proceeding was not predicated upon an investigation by a private investigator. Defendant readily acknowledged that a private investigator was not mandatory for post-conviction proceedings. However, without further explanation, defendant vaguely indicated he needed the investigator to prove things related to an ineffective assistance of counsel claim. Thereafter, defendant requested several continuances and ultimately asked for appointed counsel. Even after Mr. Saltalamacchia was appointed on July 1, 2008, no new trial motion was filed prior to the December 10, 2008 sentencing hearing. The trial court noted that defendant was convicted on September 21, 2007, some 15 months earlier. The trial court further noted that there was nothing in the record or his notes that appeared to be grounds for continuance for preparation of any new trial motion.

Defendant failed to demonstrate that the investigators services were reasonably necessary for the preparation of his new trial motion. (See People v. Guerra, supra, 37 Cal.4th at p. 1085; Corenevsky v. Superior Court, supra, 36 Cal.3d. at p. 319-320.) Moreover, as defendant admitted to the trial court, these were post-conviction proceedings. Defendant was afforded the services of an investigator at trial. After electing in propria persona status, defendant had access to the trial record, was awarded funds to assist him in his self-representation, and Ms. Mazza had turned over her records to him. The trial court did not abuse its discretion in denying the appointment of an investigator to assist defendant in preparing his new trial motion.

Defendant argues that the trial courts statement that the new trial motion had to be concerned with matters that occurred at trial was not a valid basis for setting aside the verdict and findings. We disagree. Our Supreme Court has held: [I]n appropriate circumstances, the trial court should consider a claim of ineffective assistance of counsel in a motion for new trial, because justice is expedited when the issue of counsels effectiveness can be resolved promptly at the trial level. [Citation.] But our assumption has been that courts would decide such claims in the context of a motion for new trial when the courts own observation of the trial would supply a basis for the court to act expeditiously on the motion. As we stated in People v. Fosselman[ (1983)] 33 Cal.3d 572: It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsels effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so. [Id., at pp. 582-583, italics added.) (People v. Cornwell (2005) 37 Cal.4th 50, 101, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Here, the trial court indicated on more than one occasion that it had reviewed its notes and the record and determined that there were no grounds to support a new trial motion. In fact, the trial judge had been present during the trial to observed Ms. Mazzas representation. Nothing in the record suggests that Ms. Mazzas representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Huggins (2006) 38 Cal.4th 175, 205-206.) The trial court did not suggest that ineffective assistance of counsel could not be raised in a new trial motion. In fact, defendant repeatedly indicated that was the grounds for his motion. The trial court granted repeated continuances to allow defendant to prepare his motion on those grounds.

B.     Defendant was not deprived of the effective aid of counsel

at his sentencing hearing

Defendant argues that he was deprived effective assistance of counsel. Defendant argues Mr. Saltalamacchia failed to file a new trial motion. And Mr. Saltalamacchia declared himself incompetent for not having filed the motion. In addition, defendant argues that Mr. Saltalamacchia said nothing of consequence at sentencing.

As set forth above, following his conviction, defendant requested permission to relieve Ms. Mazza and represent himself. After representing himself for a few months, defendant requested the appointment of counsel. Mr. Saltalamacchia was appointed on July 1, 2008. At that time, Mr. Saltalamacchia said he had spoken to Ms. Mazza. Mr. Saltalamacchia further indicated that defendant had the relevant reports and transcripts. Mr. Saltalamacchia requested a continuance to July 28, 2008, to complete additional investigation. On July 28, 2008, John Daly, appeared for Mr. Saltalamacchia. Mr. Daly indicated that Mr. Saltalamacchia was in trial and requested a continuance to August 25, 2008. Mr. Dalys request was granted. On August 25, 2008, another continuance request by the defense was granted to September 9, 2008. On September 9, 2008, Mr. Saltalamacchia indicated he was requesting yet another continuance because he had been busy in trial and had not finished preparation of the new trial motion. Mr. Saltalamacchia stated that there was one issue in preparation of the motion that he had not resolved. The trial court continued the matter to October 15, 2008. On October 16, 2008, Mr. Saltalamacchia requested another continuance to November 6, 2008. In granting Mr. Saltalamacchias fifth continuance request, the trial court stated: Im going to set this matter for December 10, 2008, for probation and sentencing and a new trial motion. [] The motion is either here or not here before that date so the Court can consider it. This motion is going to be done on that date, one way or the other. On December 10, 2008, Mr. Saltalamacchia stated: I understood the instructions of the court last time. I have been in trial since November 18th until last night in Mr. Tylers case in Department 131, and I have a motion for new trial. [] I think to proceed with sentencing at this time, without the courts consideration for a motion for new trial, would be incompetence on my part.

The trial court responded: I dont deem you to be incompetent at all. I want to make the following statement for the record. [] [Defendant] was convicted on September 21, 2007. [Defendant] elected to go pro per. [] He had an attorney in this case. And when it came time for probation and sentencing in this matter, [defendant] indicated he wanted to go pro per. [] After numerous continuances in his pro per status, [defendant] wanted counsel, and counsel was appointed in this matter. And the court has given counsel numerous continuances in this matter in order to prepare a new trial motion. [] I think that the record, when reviewed in toto, will reflect that this court has been in no rush or has not compelled hopefully frustrated counsel in an attempt to get you to file this new trial motion. [] The court feels, at this point, enough time has been given in this matter. And at some point, probation and sentencing in this matter must proceed. As I indicated to counsel last time, I think at this point, we will proceed and pronounce sentence in this matter. [] Again I would just request whoever reviews this record, look at the total record, and see where we are at this point. There is nothing, at this point, the court would believe - - I have reviewed - - as a matter of fact, I have looked at the courts notes in this matter, and there is nothing that jumps out at me, at this point, that would make me, at this point, grant a further continuance for preparation of a new trial motion.

Defendant, citing to United States v. Cronic (1984) 466 U.S. 648, 659, argues that he need not show both deficient representation and a resulting prejudice. Defendant reasons: Mr. Saltalamacchia failed to file the new trial motion; Mr. Saltalamacchia thus failed to subject to the prosecution case to meaningful adversarial testing as that phrase is used in Cronic (id. at p. 659); and, as a result, there is no requirement of a prejudice showing. However, the United States Supreme Court also held: Of course, the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade. (Id. at p. 657, original italics; see also People v. Snow (2003) 30 Cal.4th 43, 115-116.) As set forth earlier, neither defendant nor Mr. Saltalamacchia identified any factual basis for the new trial motion. Defendant does not raise any further grounds in this appeal. Thus, nothing in Cronic excused defendant from demonstrating he was prejudiced by the failure to file the new trial motion. As there has been no showing of prejudice, defendants ineffective assistance of counsel contention has no merit.

In addition, Mr. Saltalamacchias failure to comment at the time of defendants sentencing was most likely related to the trial courts limited sentencing discretion. Defendants extensive criminal history and the trial courts finding that defendant was previously convicted of two serious felonies mandated that he be sentenced to 25 years to life pursuant to sections 667, subdivision (e)(2)(A)(ii) and 1170.12, subdivision (c)(2)(A)(ii). In addition, defendant was subject to a 25-year-to-life section 12022.53, subdivision (d) enhancement and a five-year section 667, subdivision (a)(1) enhancement. There was nothing Mr. Saltalamacchia could say on defendants behalf to obtain a more lenient sentence. In fact, as set forth below, defendants sentence must be corrected because the trial court granted unauthorized leniency.

C.     Sentencing

1.      Factual and procedural background

The Attorney General argues and defendant concedes that the trial court imposed an unauthorized sentence by imposing a sentence of life with the possibility of parole pursuant to section 3046, subdivision (a)(2).[3] The trial court imposed sentence as follows: The record should reflect that the court is imposing judgment in accordance with the provisions of Penal Code section 1170.12, for a violation of Penal Code section 664/187(a), attempted willful, deliberate, premeditated murder. [] The allegation, pursuant to Penal Code section 664(A), having been found true, as set forth in count 1 of the information, the defendant is sentenced to the state prison of the State of California for the term of life, with the possibility of parole. [] Just as a side, the court believes the minimum eligibility period is 25 years pursuant to Penal Code section 3046(a)(2). [] The allegation that the defendant personally discharged a firearm proximately causing great bodily injury in the commission of said crime, pursuant to Penal Code section 12022.53(d), having been found true, the defendant is sentenced to the state prison for an additional term of 25 years to life, such term to be served consecutive to the term imposed for count 1. [] The allegations that defendant personally discharged/personally used a firearm in the commission of said crime, within the meaning of Penal Code section 12022.5(c) [sic] and 12022.5(b) [sic] respectively, are ordered stricken pursuant to Penal Code section 12022.53(f). [] The allegation that the defendant personally inflicted great bodily injury in the commission of said crime, within the meaning of Penal Code section 12022.7(a), is ordered stricken, pursuant to Penal Code section 12022.53(f). [] The defendant having suffered a prior conviction, within the meaning of Penal Code section 667(a)(1), the defendant shall serve an additional and consecutive term of 5 years for said prior conviction. [] The prior conviction having been alleged within the meaning of Penal Code section [667.5, subdivision (b)] is ordered stricken pursuant to Penal Code section 1385(a) due to the length of prison sentence the court is imposing. [] Accordingly, the unstayed term of imprisonment for the determinate sentence portion of the sentence is 5 years plus 25 years to life.

2.      Defendants sentence should be modified to the extent it constitutes an unauthorized sentence

The trial court orally imposed a sentence as to count 1 for willful, deliberate and attempted murder of life with the possibility of parole. As defendant had been found to have been convicted of two serious felonies, the mandatory sentence for willful, deliberate and attempted murder was 25-years to life. ( 667. subd. (e)(A)(ii); 1170.2, subd. (c)(A)(ii).) The judgment must be so modified.

Further, the trial court orally struck the section 12022.53, subdivision (b) and (c) findings for personal use of a firearm. The trial court ordered them stricken pursuant to section 12022.53, subdivision (f). However, the terms related to the section 12022.53, subdivision (b) and (c) findings should have been imposed and stayed rather than stricken. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1122, 1127-1130; People v. Sinclair (2008) 166 Cal.App.4th 848, 854.)

3.      Fines and penalties

Following our request for further briefing, the parties agree that the trial court improperly imposed: assessments pursuant to section 1464, subdivision (a)(1) and Government Code sections 76104.6, subdivision (a)(1) and 76104.7, subdivision (a)(1); a section 1465.7, subdivision (a) state surcharge; and a Government Code section 70372, subdivision (a)(1) state court construction penalty. These assessments, state surcharge and penalty do not apply to the restitution fines imposed in this case. (People v. Walz (2008) 160 Cal.App.4th 1364, 1372; People v. McCoy (2007) 156 Cal.App.4th 1246, 1254.) We reverse the imposition of these assessments, state surcharge and penalty. The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment which reflects all modifications to the judgment. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

IV. DISPOSITION

The judgment is modified to state the following. Defendants sentence shall include: a 25-years-to life sentence pursuant to Penal Code sections 667, subdivision (e)(2)(A)(ii) and 1170.12, subdivision (c)(2)(A)(ii); a consecutive 25-years-to-life Penal Code section 12022.53, subdivision (d) sentence; a 5-year Penal Code section 667, subdivision (a)(1) enhancement; and 10-year Penal Code section 12022.53, subdivisions (b) and (c) enhancements which are imposed and stayed. The imposition of the assessments, state surcharge and penalty are reversed as set forth above. Upon remittitur issuance the superior court clerk shall forward a copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J. KRIEGLER, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Section 1181 states in part: When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [] 1. When the trial has been had in his absence . . . . ; [] 2. When the jury has received any evidence out of court . . . . ; [] 3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented; [] 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors; [] 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury; [] 6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included

therein . . . . ; [] 7. When the verdict or finding is contrary to law or evidence, but in any case where authority is vested by statute in the trial court or jury to recommend or determine as a part of its verdict or finding the punishment to be imposed, the court may modify such a verdict or finding . . . . ; [] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at trial. . . . ; [] 9. When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or rule . . . .

[3] Section 3046, subdivision (a) states: No prisoner imprisoned under a life sentence may be paroled until he or she has served the greater of the following: [] . . . [] (2) A term as established pursuant to any other provision of law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole.