Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA296249, Lance A. Ito, Judge.
Carlo Andreani, 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, Assistant Attorney General, Zee Rodriguez and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant Kenneth Wayne McClellan appeals from the judgment entered following his conviction by the court of attempted murder with the finding that he personally used and discharged a firearm, which caused great bodily injury to the victim, and being a felon in possession of a firearm. (Pen. Code, §§ 664/187, subd. (a), 12022.53, subds. (b), (c), (d), 12022.7, subd. (a), 12022.5, subd. (a), 12021, subd. (a).) The court also found defendant committed the crimes with the intent to benefit a criminal street gang, suffered two prior serious felony convictions, and served two prior prison terms. (§§ 186.22, subd. (b)(1)(A), 1170.12, subds. (a) through (d), 667, subds. (b) through (i), 667, subd. (a), 667.5, subd. (b).) Defendant contends the trial court erred when it relieved counsel, denied his motion for a pretrial lineup, and imposed sentence. We remand the matter for resentencing on the attempted murder count and, in all other respects, affirm the judgment.
All further statutory references are to the Penal Code.
STATEMENT OF FACTS
The Prosecution Case
At approximately 7:30 p.m. on January 11, 2006, Byron Johnson was at home on West 67th Street in the process of moving a vehicle so that he could place his trash cans by the curb. He passed out on the sidewalk, unaware that he had been shot. When he regained consciousness, he discovered that he had suffered three gunshot wounds. Johnson was taken to the hospital by ambulance. Johnson denied being a gang member. However, at the time of the shooting, two of his brothers lived with him. They were members of the Rollin 60’s, a Crip gang.
Between 7:30 and 7:45 p.m. that same evening, Shawna C. was in her car and stopped at a red light at an intersection near Johnson’s home when she heard gunshots. She turned in the direction of the sounds and saw what looked “like a strobe light, just the flash of the light.” Shawna saw a person in the driver’s seat of a white Sebring shooting at a man who was standing near a car that was parked in front of a house. She estimated there were five to seven shots. The Sebring made a right turn in front of Shawna’s car and when the light turned green she began to follow it. She momentarily lost sight of the Sebring when it made a turn, but less than a minute later the car reappeared when it pulled onto the street Shawna was traveling. Eventually, she was able to stop alongside the passenger side of the Sebring at a red light. She looked into the Sebring through its open window and saw one male inside. Shawna identified defendant as that individual. At the time, defendant had his hair in braids and was wearing a black t-shirt.
After leaving the light, defendant cut in front of Shawna and continued down the street. She followed. Shawna was able to get a partial license plate number of 4ZV, which she later gave to police. Defendant entered the Inglewood Cemetery, where Shawna noticed a large number of people gathered. She did not turn into the cemetery and decided to return to the house where the shooting had taken place. She estimated that she followed defendant for about 10 minutes.
The Sebring’s license plate number was 4ZVS242.
At the shooting scene, Shawna spoke to Officer Paul Fedynich. She told him what she had observed and gave the officer the partial license plate number and a description of the Sebring. After describing defendant to the officers, Shawna insisted that they go to the Inglewood Cemetery to see if defendant was still at the location. The officers put her in a patrol car and drove to the cemetery.
When they arrived, Fedynich observed approximately 100 individuals leaving what appeared to be a funeral, including some Centinela Park Family Bloods members. Shawna told Fedynich that she saw the Sebring in a parking lot on the site. She saw defendant get into a black SUV and informed the officers. The SUV left the cemetery, followed by the Sebring. Fedynich followed the two vehicles. Eventually, the Sebring and the SUV were stopped by police. Fedynich approached a female who was driving the Sebring. She said the vehicle was not hers and that it belonged to a guy behind her who asked at the cemetery if she would drive the car. Fedynich assumed she was speaking about someone in the SUV that was behind the Sebring at the time.
Shawna saw three males get out of the SUV. A detective read her a field show-up admonition and asked her to view the three males. Shawna saw defendant in the group and identified him as the shooter.
After defendant was arrested, he was taken to the station and booked by Officer Fedynich and his partner. Defendant stated that he was a member of the Centinela Park Family Bloods with the moniker of “Crip Killer.” Defendant had a number of tattoos, including one that read “C187” and another that read “Centinela Park.”
Approximately two hours after the shooting, a detective swabbed defendant’s hands in an attempt to collect gunshot residue. A Los Angeles Police Department criminalist analyzed the swabs and discovered no particles of gunshot residue. He described the factors that can affect whether residue is recovered, such as the passage of time and whether the individual tested washed or rubbed his or her hands. If a person had gunshot residue deposited on his or her hands, the criminalist would expect 90 percent of the residue to be dissipated after the passage of an hour. Based on the results of defendant’s tests, the criminalist could not say whether defendant did or did not fire a gun.
The detective estimated two hours had passed; however, relying on the time written on the evidence envelope, the criminalist testified the sample was collected at 10:50 p.m., over three hours after the shooting.
In January 2006, Los Angeles Police Department Officer Jeffrey Vach was assigned to the gang unit. Several days after the shooting, he inspected the white Sebring. Inside the center console, he found an interim driver’s license in the name of Kenneth McClellan. In the vehicle, Vach located two.380 caliber casings. Defendant was not the registered owner of the car.
Three.380 caliber casings were found at the scene of the shooting. The parties stipulated that the five casings were fired by the same firearm.
Vach was assigned specifically to the Rollin 60’s Neighborhood Crips. At the time of the shooting, the victim’s brothers were Rollin 60’s members. Their home, in the center of Rollin 60’s territory, was a known hangout for the gang.
Inglewood Police Detective Kerry Tripp had been assigned to the gang unit for the past eight years. The Centinela Park Family Bloods gang was in the City of Inglewood during the 20 years he had been in the department. He had spoken to virtually all of its members, which number just over 100. The gang’s enemies are all Crip gangs, including the Rollin 60’s.
Tripp had spoken to defendant on a number of occasions, and defendant admitted that he was a Centinela Park member. He goes by the moniker of “Little CK, ” with the “CK” standing for “Crip killer.”
The officer testified to the primary activities of the gang and the predicate acts required by section 186.22.
On the night of the shooting, there was a funeral at the Inglewood Cemetery for a Centinela Park member named Romaine Julien. Tripp opined that Byron Johnson’s shooting was committed to benefit the Centinela Park gang, as it was perpetrated in front of a rival gang member’s home and enhanced the gang’s reputation for violence.
The Defense Case
The parties stipulated that a retired Los Angeles police officer, who was an expert in police procedures and criminal investigations, would have testified that proper investigative procedure was not followed because officers did not conduct a gunshot residue test on the interior of the Sebring.
Defendant stated that at the time of the shooting, he was at a wake for his friend “Lil’ Nut” (Defendant knew only Lil’ Nut’s given first name, Romaine) at Inglewood Cemetery. He drove to the cemetery in a dark blue Suburban, arriving at 6:45 p.m. He left the wake at about 8:30 p.m.
Defendant said he was last in the white Sebring that was stopped by police three weeks prior to the shooting. He believed all of the Sebring’s windows were tinted. Defendant had been in the car on two other occasions, but had no idea how his license came to be inside. He claimed the officer did not find the license in the console of the Sebring. He denied telling the woman who was behind the wheel of the Sebring when it was stopped by police to drive the car from the cemetery. Defendant asserted he did not see the Sebring that night. He denied shooting Byron Johnson.
Defendant stated he had never spoken to Detective Tripp and was no longer a member of the Centinela Park gang. At the time of the shooting, he was an associate. Defendant denied telling the officers who spoke to him on the night of his arrest that he was a Centinela Park member.
DISCUSSION
I. The Trial Court Did Not Err When It Relieved Counsel
Defendant contends the court erred when it granted the deputy alternate public defender’s request to be relieved due to a conflict of interest. He urges the trial court had a duty to ascertain the reason for the conflict and to ask him whether he was willing to waive the conflict. We set forth the proceedings that led to counsel’s request to be relieved.
On October 4, 2007, the prosecutor informed the court that he wanted to present evidence of a fight defendant had with another inmate while in custody at the county jail awaiting trial. The altercation allegedly started when the other inmate informed defendant that he was a Crip, a rival of the Bloods gang of which defendant was a member. The prosecutor argued the evidence was relevant to establish defendant’s gang ties and the gang motive for the shooting. After hearing argument, the trial court ruled the evidence was cumulative and found it more prejudicial than probative. However, it noted the evidence would become relevant if defendant took the stand and denied being a gang member.
The prosecutor pointed out that there was no way of knowing what the defense was going to present. He noted that if the evidence became admissible in rebuttal, there was the potential defense counsel would have a conflict of interest, and he said, “If there were to be that conflict, I’d rather it happen now than waste more time.”
After defendant’s attorney stated that he was not able to make the decision at that juncture, he requested more time to investigate and discuss the matter with his office. The court set the case for October 22. It told defendant, “You’ve heard our discussion. I think your attorney explained to you what the problem is, which is why we had to have this ruling today, although I don’t know if my ruling is going to help the decision any. Essentially I’m saying that that other incident in the jail isn’t going to come into the trial unless you or your defense witnesses make it an issue. At this point, I think it’s cumulative. It’s just more of the same stuff. So we are going to come back on October the 22nd. This is with the understanding that if we don’t settle your case at that point, any trial would occur within 30 days. Is that arrangement agreeable to you?” To which the defendant answered, “Yes.” At no time did defendant claim that he had not spoken to his attorney about a potential conflict.
On October 12, the court called the matter. It appears there was no court reporter present. According to the minute order for that day, defendant “fail[ed] to appear, with sufficient excuse.” The prosecutor “previously waived his appearance for purposes of defense counsel declaring a conflict.” Defense counsel was “present to advise the court there exist[ed] a conflict.” Counsel provided the court with discovery, and the court advised the clerk to have a bar panel attorney present on the next court date, October 17.
Contrary to defendant’s claim that he was absent when the court relieved his trial attorney, the October 17, 2007 minute order reflects he was present when the deputy alternate public defender was relieved and new counsel was appointed. Defendant’s new attorney was provided the discovery and a pretrial date of October 22 was set.
Initially, the Attorney General contends defendant forfeited his claim by failing to object in the trial court. We agree. Defendant does not claim that he objected to the appointment of new counsel. Instead, he continues to incorrectly maintain that he was not present when counsel was relieved. As we have pointed out, his assertion is belied by the record. He had the opportunity to inform the court that he wanted to proceed with the deputy alternate public defender. His failure to do so bars him from arguing the issue on appeal. (See People v. Lancaster (2007) 41 Cal.4th 50, 70-71.)
Defendant attempts to excuse his failure to object by urging that “[b]y the time [he] was later in court, when the trial judge appointed Mr. Newton, the d[i]e was already cast in a fait accompli. Moreover, an objection would necessarily presuppose that [he] knew he had the right to object, which cannot be ascribed since the trial court never undertook a waiver of conflict of interest.” We reject as nothing more than speculation defendant’s first argument that his objection would not have caused the trial court to listen to his concerns. With respect to his alleged lack of knowledge concerning his right to object to the appointment of new counsel, we note that defendant’s first attorney was relieved at defendant’s request. It is clear defendant knew how to complain about his relationship with counsel. We have little difficulty concluding that if defendant believed the court was interfering with what he now refers to as a “clearly established attorney-client relationship, ” he would have made his wishes known to the court. In this instance, he chose not to do so.
On the merits, we observe that defendant does not allege that relieved counsel did not have a valid basis for declaring a conflict. Instead, he complains that the trial court did not, on its own, ascertain whether he was willing to waive any conflict his attorney may have had. Defendant cites no authority for the proposition that a trial court has an affirmative duty to determine whether the accused is willing to waive a conflict of interest after appointed counsel has declared that one exists, and we have found none. We decline to find such a duty. Requiring the trial court to seek a waiver in conflict situations would create a rule that could prove impossible to administer. When appointed counsel such as a deputy alternate public defender (as was the case here) declares a conflict, it is often because the office has represented or is currently representing an unnamed client in another proceeding. In such instances, the court’s right to ascertain the facts and circumstances giving rise to the conflict is limited. (See Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 591.) Without such knowledge, the court would be unable to fully advise a defendant of the pros and cons of insisting that counsel not be relieved. Moreover, there is little reason to leave such decisions to the accused. Where an attorney is concerned that a conflict will prevent his or her full and active representation of a client, “only the trial lawyer can realistically appraise whether the conflict may have an impact on the quality of the representation or whether counsel’s self-interest might stand in the way. [Citations.] In such cases, the court by necessity relies on the lawyer.” (Id. at p. 594.)
Although we do not know for certain the reason for counsel’s declaration of a conflict, it appears from the context of the discussions before the court that the cause was his office’s representation of the inmate who fought with defendant in the county jail.
Defendant cites People v. Bonin (1989) 47 Cal.3d 808 for the proposition that the court in the present case was required to inquire into the nature of the conflict and determine whether he was willing to waive it. The case is distinguishable. In that case, the defendant’s contention on appeal was that, “the trial court failed to inquire into the possibility of a conflict of interest burdening his counsel at trial or failed to adequately act in response to what its inquiry discovered.” (Id. at pp. 824-825.) In other words, the accused was attempting to gain a reversal because his counsel had advised the trial court there was no conflict. Here, counsel did declare a conflict and defendant now asserts he should have been given the opportunity to waive it. For the reasons set forth above, we conclude he is incorrect. The trial court did not err by relieving counsel without asking defendant if he was willing to waive any conflict.
Even if we were to conclude that the court abused its discretion when it relieved the deputy alternate public defender, reversal would be warranted only if “‘it is reasonably probable that a result more favorable to the appealing party would have been reached’ if the error had not occurred.” (People v. Noriega (2010) 48 Cal.4th 517, 525, quoting People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant fails to meet that burden. He attempts to fault trial counsel for the decision to waive jury by accusing him of failing to “‘make recommendations in that respect.’” However, defendant acknowledged in the trial court that he and his attorney had discussed a possible jury waiver. Counsel correctly stated on the record that the decision was defendant’s. Defendant appears to claim that his attorney had an obligation to talk him out of having a court trial. We reject that an attorney has that responsibility. The trial court clearly informed defendant of the differences between a jury and court trial, and defendant made his choice. Nothing more was necessary. Next, defendant suggests that another attorney would have done a better job of highlighting the weaknesses in the prosecution’s case. In our view, the evidence against defendant was compelling. Trial counsel was successful in that defendant was not found to have committed willful, deliberate, and premeditated attempted murder. We conclude that had the trial court not relieved counsel, a result more favorable to defendant would not likely have been achieved.
“On appeal, the trial court’s removal of counsel is reviewed for abuse of discretion.” (People v. Richardson (2008) 43 Cal.4th 959, 995.)
II. The Trial Court Did Not Err by Denying Defendant’s Request for a Lineup
Defendant filed a motion seeking a pretrial lineup on February 16, 2006. On February 28, the motion was denied. On June 23, defendant filed a motion for reconsideration of the February 28 ruling with a judge who did not hear the original motion. In that motion, counsel filed a declaration setting forth new information that he believed justified a lineup. On July 3, the motion was denied. A year later, on August 13, 2007, new counsel for defendant filed a second lineup motion. On September 5, the trial judge denied the motion. As the August 13, 2007 motion offered no new facts, we will review the court’s ruling on defendant’s motion for reconsideration issued on July 3, 2006.
“[D]ue process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve. [Fn. omitted.]
“The questions whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup in a particular case are inquiries which necessarily rest for determination within the broad discretion of the magistrate or trial judge.” (Evans v. Superior Court (1974) 11 Cal.3d 617, 625.)
Defendant argues he met the standard required by Evans. He points to the following: (1) there was a single witness who made an identification; (2) the witness described the suspect as having a medium complexion and he has a dark complexion; (3) the witness made an identification after being exposed to a highly suggestive field show-up; and (4) the gunshot residue test performed on him was negative.
On appeal, defendant asserts that the prosecutor produced Shawna at the preliminary hearing for the sole purpose of allowing her to get a second suggestive viewing of him. First, the contention is based on speculation. Second, that fact (if it is one) was not presented to the court at the hearing.
In denying defendant’s motion, the trial court relied on several factors: (1) the witness saw defendant when they were side by side at a stop light; (2) she also identified the car used in the shooting, the white Sebring; (3) she followed the Sebring and got the correct first three digits of the vehicle’s license plate number; (4) the woman who was driving the Sebring when it was stopped after the funeral told police that defendant asked her to drive the car; (5) at the show-up, the witness showed no hesitation in identifying defendant as the shooter; (6) shell casings found in the Sebring matched those left at the scene of the shooting; and (7) defendant’s identification was found in the Sebring. The court concluded there was not “[a] reasonable likelihood of mistaken identification by witness one that a lineup would tend to resolve.” We agree.
Although defendant insists Shawna’s identification was suspect, he ignores the circumstances under which she saw him and the compelling evidence that corroborated her. She did not have a fleeting moment to observe the suspect. Shawna saw him through an open car window as the vehicles waited at a red light. She told police the suspect was wearing a black t-shirt and had braids in his hair, which matched defendant’s description when he was arrested an hour later. There is no question the vehicle Shawna followed was used in the shooting, as evidenced by the presence of the shell casings found inside that matched those left at the scene. Defendant’s connection to that car was solidified by evidence that did not rely on Shawna’s identification. Defendant’s driver’s license was found inside the vehicle’s center console, and a woman told police that defendant asked her to drive the car from the funeral after the shooting.
We recognize that the woman said she spoke to the owner of the Sebring, who was one of three males in the SUV. Given Shawna’s identification, the court reasonably concluded that the woman was referring to defendant.
The trial court did not abuse its discretion when it denied defendant’s lineup motion.
III. The Court Properly Imposed Sentence for the Violation of Section 12021
The trial court imposed a consecutive sentence for defendant’s conviction for being a felon in possession of a firearm. He contends this violated section 654’s prohibition against multiple punishments. We disagree.
As relevant here, section 654, subdivision (a) provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
“Section 654 bars multiple punishments for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective.” (People v. Lewis (2008) 43 Cal.4th 415, 519.) If “defendant harbored ‘multiple criminal objectives, ’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) “‘A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.’ [Citation.]” (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.)
The Attorney General cites People v. Jones (2002) 103 Cal.App.4th 1139 (Jones) and argues it supports the trial court’s imposition of sentence for the firearm possession. We agree.
In Jones, the defendant was unable to get over a broken relationship with a woman. The defendant and another man went to the woman’s home and learned she was not available to speak with them. The men left. Fifteen minutes later, they returned and the defendant opened fire on the house. The defendant was convicted of shooting at an inhabited dwelling (§ 246) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The trial court imposed a concurrent sentence for the possession count. The defendant claimed the sentence was prohibited by section 654 because his possession was incidental to his shooting at the inhabited dwelling. (Jones, supra, 103 Cal.App.4th at pp. 1141-1142.)
The appellate court reviewed several cases that dealt with the issue of whether possession of a firearm constituted a divisible transaction from the offense in which the accused used the weapon and determined “that multiple punishment is improper where the evidence ‘demonstrates at most that fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense....’ [Citation.]” (Jones, supra, 103 Cal.App.4th at p. 1144.) The panel observed, “On the other hand, it is clear that multiple punishment is proper where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent.” (Ibid.) After citing two cases that held the perpetrators were properly sentenced for the firearm possession where they had the weapon prior to the commission of the primary offense, the court held, “Based upon these principles, we conclude that section 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm.” (Id. at p. 1145.)
The court upheld the imposition of multiple sentences “because the evidence was sufficient to allow the inference that Jones’s possession of the firearm was antecedent to and separate from the primary offense of shooting at an inhabited dwelling. It strains reason to assume that Jones did not have possession for some period of time before firing shots at the Walter home. Any other interpretation would be patently absurd.” (Jones, supra, 103 Cal.App.4th at p. 1147.)
Defendant attempts to distinguish Jones on three grounds. First, he asserts that in this case there is no evidence he left the victim’s residence and returned to shoot him. That is a distinction without a difference. The fact remains that he already had committed the illegal act of possessing the firearm before he drove to the location and shot the victim. Second, he argues, separate intents are not inferable. Not so. As in Jones, he had the intent to possess an illegal firearm and a separate intent to use it to shoot the victim. Third, defendant points out that he received a consecutive sentence for possessing a firearm while Jones was given a concurrent term. We fail to see how this fact bears on the question whether he had multiple intents. Defendant suggests the imposition of consecutive sentences shows his punishment was not commensurate with his culpability. The issue we are addressing is whether a separate sentence may be imposed, not whether such a sentence should be consecutive or concurrent.
Defendant’s reliance on several cases is misplaced. In People v. Spirlin (2000) 81 Cal.App.4th 119, the defendant did “not challenge ‘the fact the court could impose a separate term for [his] conviction of violating... section 12021, subdivision (a)(1)’ in addition to his sentences for robberies while personally armed.” (Id. at p. 129, brackets in original.) That, of course, is the issue here. In People v. Kane (1985) 165 Cal.App.3d 480, the court stayed a sentence for a violation of section 12021 because the defendant was punished for discharging the firearm in the same indivisible course of conduct. (Id. at p. 488.) In this case, defendant was not punished for firing the weapon in his possession and, as we have discussed, his possession and the attempted murder do not constitute the same indivisible course of conduct. In People v. Jurado (1972) 25 Cal.App.3d 1027, the court struck the additional punishment for gun possession because it elevated the defendant’s burglary conviction from second degree to first. (Id. at p. 1033.) Although the panel also believed that section 654 barred separate punishment, it acknowledged “[t]here are earlier cases which upheld multiple prosecution (and a fortiori multiple punishment) for robbery and possession of the robbery weapon.” (Id. at p. 1034.) Even though the Supreme Court did not expressly overrule those decisions, the court believed the “‘intent and objective’ test for multiple punishment” set forth in Neal v. State of California (1960) 55 Cal.2d 11 and People v. McFarland (1962) 58 Cal.2d 748 required that the sentence for the gun possession be stayed. (Jurado, supra, 25 Cal.App.3d at p. 1034 .) We have concluded substantial evidence supports a finding that defendant had multiple intents, which justifies separate punishment for both crimes under the Neal and McFarland tests. Finally, in People v. Venegas (1970) 10 Cal.App.3d 814, the court recognized that “where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. [Citations.]” (Id. at. p. 821.) However, the court struck separate punishment for the gun possession because “the evidence shows a possession only at the time defendant shot Rodriguez. Not only was the possession physically simultaneous, but the possession was incidental to only one objective, namely to shoot Rodriguez. (Ibid.) Here, there can be no question that defendant possessed the firearm in the Sebring while he drove to the location. The evidence supports the trial court’s implied finding that he had two separate intents-one to possess an illegal weapon and another to shoot the victim.
The imposition of a separate sentence for the violation of section 12021, subdivision (a)(1) was proper.
IV. The Matter Must Be Remanded for Resentencing
Defendant was sentenced pursuant to the “Three Strikes” law. Thus, he contends, his sentence for the attempted murder count should have been either a life sentence with a minimum term of three times the term the court selected from the range provided as punishment for the crime (option 1) or 25 years to life (option 2), whichever is higher. (§§ 1170.12, subd. (c)(2)(A)(i) and (ii), 667, subd. (e)(2)(A)(i) and (ii).) He claims the trial court imposed a sentence of 27 years to life because it believed it was required to multiply the upper term by three instead of exercising its discretion to select the lower, middle, or upper term. Defendant argues the matter must be remanded for the court to exercise its discretion as outlined in People v. Keelen (1998) 62 Cal.App.4th 813 (Keelen). The Attorney General concedes remand is necessary. After reviewing the record, we agree with the parties.
There is a third option not relevant here. (§§ 1170.12, subd. (c)(2)(A)(iii), 667, subd. (e)(2)(A)(iii).)
The sentencing triad for attempted murder is five, seven, or nine years. (§ 664, subd. (a).)
In Keelen, the court held, “the procedure for calculating the minimum term under option 1 is as follows: The trial court selects the upper, middle or lower term in accordance with section 1170, subdivision (b) just as it would if there were no three strikes law. The court then triples the selected term. If the resulting term is greater than the terms under options 2 and 3, the court imposes the resulting term as the minimum term of the indeterminate life sentence. If the resulting term is less than the terms under options 2 and 3 the court imposes whichever of these latter two options yields the greater minimum term.” (Keelen, supra, 62 Cal.App.4th at p. 820.)
In imposing sentence the trial court stated, “Based upon the defendant’s prior record, the sentencing range for count 1, attempted murder, non-premeditated, is five, seven or nine; with the Three Strikes law that requires that either be a 25 to life or three times the high term which in this case-whichever is higher. The sentence is, as to count 1, 27 years just calculated, three times nine.” It appears the court believed it was required to select the upper term of nine years, which it was not.
We remand the matter for the court to exercise its discretion as set forth in Keelen. We express no view as to the manner in which that discretion should be exercised.
DISPOSITION
The sentence for the attempted murder is vacated. The matter is remanded for resentencing. If the sentence is altered by the trial court, the clerk is directed to prepare an amended abstract and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: WILLHITE, Acting P.J., MANELLA, J.