Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F07988
NICHOLSON, J.
A jury convicted defendant Markese Clark of attempted first degree robbery in concert (Pen. Code, §§ 664, 213, subd. (a)(1)(A), 211), first degree burglary (§ 459), kidnapping to commit robbery (§ 209, subd. (b)(1)), five counts of first degree robbery in concert (§§ 213, subd. (a)(1)(A), 211) and sustained personal use of a firearm (§ 12022.53, subd. (b)). Defendant was sentenced to a term of life in prison with the possibility of parole plus 47 years four months.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends: (1) the personal use of a firearm enhancement for the burglary conviction in count two should be stricken; (2) the trial court erred in calculating the sentence for attempted robbery in concert in count one; (3) the trial court was without the authority to impose multiple crime prevention program fines pursuant to Penal Code section 1202.5; (4) there are errors in the abstract; and (5) the definition of reasonable doubt in Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 220 violated defendant’s due process rights. We agree in part, accept the People’s concession of error, modify the sentence for count one, order corrections to the abstract, and otherwise affirm the judgment.
BACKGROUND
On the evening of August 31, 2005, Katrina Cumbuss was in her south Sacramento home with her five-year-old daughter; her sister-in-law, Rachel Basped; her niece, M.J.; her friend, Troy Hollowell; and Hollowell’s wife, Ebonee Tyler.
Cumbuss answered a knock on her door sometime after midnight. She opened the door a little before it was pushed open. Four young men whom Cumbuss did not know entered her house. They wore hooded sweatshirts with the hoods over their heads. One man, subsequently identified as defendant, shoved a shotgun at Cumbuss’s face, while another man held a baseball bat. Defendant appeared to be the ringleader of the group.
Everyone was forced into Cumbuss’s daughter’s bedroom except for Hollowell, who was hit in the head with the bat and fell to the floor. Defendant struck Hollowell in the back of the head with a shotgun and the robbers asked him where the money was. Defendant told Hollowell he would be shot or killed if the police responded. Hollowell replied his money was somewhere else.
The robbers ransacked the house in their search for money. They took Cumbuss’s driver’s license and bank card from her purse. Defendant, still holding the shotgun, took $50 from Cumbuss’s daughter. He also took jewelry from Cumbuss and M.J., as well as M.J.’s cellular phone. The men demanded money from Tyler, who refused and was hit in the back of the head with a shotgun.
The men searched Tyler’s purse and took her money. They then used duct tape to bind her mouth, ankles, arms, wrists, and hands before throwing Tyler under the living room stairs. Defendant said the only reason they would not kill all of them was because a child was there.
The men took Hollowell to the front seat of Cumbuss’s 1994 Honda Civic. One of them sat behind Hollowell and put either a gun or bat to his head. A man later identified as Robert Haines drove the Civic. The other robbers were not in the Honda.
Hollowell told Haines to drive to his sister’s house. A pickup truck and another car followed as they drove. At one point, the Civic pulled over and the man in the backseat jumped out and talked to the people in the other vehicles. When a police helicopter appeared, Haines drove Hollowell to the parking lot of a Dollar Tree Store off of Mack Road.
Hollowell directed Haines to the Kaiser Hospital parking lot, telling his captors they could wait there until the helicopter left because he did not want the police to be involved. As the car drove through the emergency entrance, Hollowell jumped out and escaped. Hollowell first tried to call Cumbuss’s brother with his cell phone and then went into the emergency room, where he asked for an ambulance and police to be sent to Cumbuss’s house.
After the men had left, Cumbuss went out the sliding glass door, hopped the fence, ran to a neighbor’s home and called 911. At around 2:30 a.m., Haines was stopped by the police while driving Cumbuss’s Civic. The victims identified him in a field lineup. Manuel Lutin and Roydrick Houston were later identified in photographic lineups. The jury was informed by stipulation that Lutin, Houston, and Haines each pleaded no contest to robbery and admitted a weapons enhancement.
Barry Mattos testified for the defense and stated he was living with his brother Jacob, defendant, and Tonia Smith between May and September of 2005. According to Mattos, defendant was with him on August 30 and 31, 2005, never leaving his sight for more than 15 minutes. Defendant’s second cousin, Tonia Smith, testified that defendant was with her from the evening of August 30, 2005, to the following morning.
DISCUSSION
I
Defendant contends and the Attorney General agrees the trial court erroneously imposed a Penal Code section 12022.53, subdivision (b) enhancement for personal use of a gun on the burglary conviction in count two.
During the trial, the court struck the section 12022.53 allegation with respect to the burglary count, count two, on the People’s motion. However, the court imposed the section 12022.53 enhancement on count two at sentencing.
While the appeal was pending, the court corrected the error, rendering defendant’s claim moot.
II
Defendant contends and the Attorney General agrees that the trial court miscalculated the sentence for attempted robbery in concert in count one. We agree.
The trial court declared defendant’s sentence on count one to be “one-third the middle term, . . . plus one-third of the middle term [sic] of the 12022.53 Sub (B) allegation for total of five years, four months as to that count.” The sentence was stayed under Penal Code section 654. The abstract reflects defendant’s sentence for count one as a middle term of two years for the robbery plus one-third the enhancement, calculated as three years and four months.
In count one, defendant was convicted of attempted robbery in concert with a personal use of a firearm enhancement pursuant to section 12022.53, subdivision (b). Unless otherwise specified, the sentence for an attempt is one-half the sentence for the offense attempted. (§ 664, subd. (a).) The middle term for robbery in concert is six years. (§ 213, subd. (a)(1)(A).) Accordingly, the middle term for attempted robbery in concert is three years, and one-third the middle term for this crime is one year. Therefore, defendant should have been sentenced to a stayed term of four years and four months -- one year for the attempted robbery in concert, plus three years and four months for the gun use enhancement.
The enhancement for personal use of a gun under section 12022.53 is 10 years. (§ 12022.53, subd. (b).) One-third of this term is three years four months.
III
In imposing sentence, the trial court ordered defendant to pay a $60 crime prevention fine pursuant to section 1202.5. Defendant asserts this fine must be reduced to $10 because section 1202.5 permits a fine of only $10 per case.
Section 1202.5, subdivision (a) provides, in part: “In any case in which a defendant is convicted of any of the offenses enumerated in Section 211 . . ., the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. . . .”
The court corrected its error and struck the five unauthorized crime prevention fines after briefing was concluded. This moots defendant’s claim. Defendant also notes that the fine is not listed in the section of the abstract specifically reserved for this fine. The fine is listed in the “other orders” section of the abstract. This error remains in the amended abstract. The trial court must list the fine in the section reserved for this fine when it prepares the second amended abstract.
IV
Defendant and the Attorney General identify two errors in the abstract. Defendant notes the trial court pronounced defendant’s sentence to a stayed term of 16 months for first degree burglary in count two. The original abstract erroneously stated a two-year sentence. The court attempted to correct this error after briefing was concluded, but it is still incorrect. The Attorney General notes the abstract incorrectly states defendant was convicted of attempted robbery in count four even though he was convicted of robbery. This error was not corrected in the amended abstract.
V
The trial court gave the reasonable doubt instruction of CALCRIM No. 220. Defendant contends this instruction deprived him of due process by preventing the jury from considering the absence of evidence in determining the existence of reasonable doubt.
Defendant requested CALCRIM No. 220. In such a case, the doctrine of invited error bars challenging the instruction on appeal. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1133-1134.) However, under the invited error doctrine, it must also be clear that counsel acted for tactical reasons and not out of ignorance or mistake. “In cases involving an action affirmatively taken by defense counsel, we have found a clearly implied tactical purpose to be sufficient to invoke the invited error rule. [Citations.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
The trial court had not included a reasonable doubt instruction in the instruction package. In requesting CALCRIM No. 220, defendant pointed out this deficiency and supplied the instruction. He points to no persuasive basis for us to find his conduct inadvertent or a tactical mistake. Therefore the invited error doctrine precludes his challenge.
We also reject the claim on the merits. We have previously rejected it and find no reason to reconsider that decision in this case. (People v. Anderson (2007) 152 Cal.App.4th 919, 943-944.)
DISPOSITION
Defendant’s sentence in count one is modified to a one-year term for the attempted robbery, plus three years four months for the enhancement, for a total term of four years four months. These terms are stayed. The remaining $10 section 1202.5 fine shall be noted on part nine of the second amended abstract. As modified, the judgment is affirmed. The trial court shall prepare an abstract of judgment reflecting these modifications and that the defendant was convicted of robbery in count four and that his sentence for first degree burglary in count two is a stayed term of 16 months, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.