Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. CC773343
Duffy, J.
In May 2008, defendant Edwin Desamito Romua pleaded no contest to one count of attempted murder. The court imposed a sentence of seven years to life for the attempted murder conviction, consecutive to a three-year sentence for personally inflicting great bodily injury in the commission of the offense. The court, inter alia, also ordered that defendant pay a criminal justice administration fee to the City of Milpitas of $129.75.
Defendant claims on appeal that the court erred by imposing a sentence of seven years to life for the attempted murder conviction, rather than an indeterminate life sentence. He argues further that the abstract of judgment does not comply with the law in that it does not specify the statutory basis for the imposition of the criminal justice administration fee. The Attorney General concedes both points. We conclude that the court erred in its imposition of the sentence of seven years to life and that the omission in the abstract concerning the statutory basis for the criminal justice administration fee should be corrected. We therefore will order that the judgment be modified in both respects, and we will affirm the judgment as modified.
Because this appeal concerns only two aspects of the sentence imposed by the court, we present an abbreviated summary of the facts underlying the conviction as taken from the probation report.
At approximately midnight on July 16, 2007, officers with the Milpitas Police Department responded to a reported shooting at a gas station. The victim, Walter Vales, advised that he realized while driving that he had a flat tire and pulled into a gas station. He determined that two of his tires had been slashed. As Vales knelt down next to the right rear tire, defendant and Tracey Sherry approached him. Defendant shot Vales three times from a distance of about 10 yards. He sustained wounds in the arm and stomach that were not life-threatening.
Vales told the police that he and defendant had been playing poker at the Bay 101 card club approximately two weeks before the incident, and that Vales had won about $3,500 that evening. Vales stated further that there was “a Filipino tradition that if you win a lot of money from somebody[,] then you are supposed to return some of the money” to the loser. Defendant asked for the return of some of his money, but Vales refused.
PROCEDURAL BACKGROUND
Defendant was charged by a first amended complaint filed July 23, 2007, with one count of attempted murder (Penal Code, §§ 187, 664, subd. (a)). The complaint alleged further that defendant acted willfully, deliberately, and with premeditation (§§ 187, 189, 664), and that he personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). By oral amendment, the People added an allegation to the first amended complaint that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). Pursuant to a negotiated disposition, defendant waived his right to a preliminary hearing, entered a plea of no contest to the attempted murder count, and admitted the premeditation and personal infliction of great bodily injury enhancements; this plea was based upon the understanding that the People would dismiss the firearm enhancement, and that he would begin serving a seven years to life sentence after completion of the service of a three-year determinate term for the personal infliction of injury enhancement.
Sherry was named as a codefendant in the first amended complaint.
All further statutory references are to the Penal Code unless otherwise stated.
On July 25, 2008, the court imposed a sentence of seven years to life (on the attempted murder conviction), consecutive to three years (for the personal infliction of injury allegation; § 12022.7, subd. (a)). The court also imposed a restitution fine of $10,000, pursuant to section 1202.4, subdivision (b), and ordered that defendant pay a court security fee of $20 and a criminal justice administration fee to the City of Milpitas of $129.75. At that time, the People dismissed the firearm allegation (§ 12022.53, subd. (d)).
Defendant filed a timely notice of appeal.
DISCUSSION
I. Sentence Imposed for the Attempted Murder Conviction
Defendant contends that although the court and the parties intended that the sentence for the attempted murder conviction would be seven years to life, section 664 makes it clear that the proper sentence for willful, deliberate and premeditated attempted murder is an indeterminate life sentence with the possibility of parole. The Attorney General responds that “an indeterminate ‘straight’ life term” is the proper sentence here and has no objection—“in the interest of technical correctness”—to an amendment of the abstract of judgment.
Section 664, which specifies the punishment for convictions of criminal attempts, provides in relevant part: “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: [¶] (a) If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.” (See also People v. Jefferson (1999) 21 Cal.4th 86, 90 [“attempted premeditated murder is punishable by life imprisonment with the possibility of parole, . . . an indeterminate prison term”].) Thus, defendant should have been sentenced here for attempted premeditated murder to life in prison with the possibility of parole.
A claim that a sentence is unauthorized under the law may be raised for the first time on appeal. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) Although we acknowledge defendant’s point that there may be little practical difference between the imposed sentence and the one that is authorized here, the proper sentence is an indetermine life sentence. Accordingly, we will order that the judgment be amended to reflect that the sentence imposed for the attempted premeditated murder conviction is life with the possibility of parole, said sentence to run consecutive to the three-year sentence imposed for the enhancement under section 12022.7, subdivision (a).
Under section 3046 as applicable here, one imprisoned under an indeterminate life sentence is not eligible for parole until he or she has served a minimum of seven calendar years in prison. (§ 3046, subd. (a).)
II. The Criminal Justice Administration Fee
Defendant asserts that the court erred by failing to specify the statutory basis for ordering that defendant pay a criminal justice administration fee to the City of Milpitas of $129.75. The Attorney General does not oppose amending the abstract of judgment in this respect.
The appellate court stated in People v. High (2004) 119 Cal.App.4th 1192, 1200, “Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. [Citations.] The abstract of judgment form used here, Judicial Council form CR-290 (rev.Jan.1, 2003) provides a number of lines for “other” financial obligations in addition to those delineated with statutory references on the preprinted form. If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. [Citation.] Thus, even where the Department of Corrections has no statutory obligation to collect a particular fee, such as the laboratory fee imposed under Health and Safety Code section 11372.5, the fee must be included in the abstract of judgment. [Citation.] . . . ‘[A] fine is a fine is a fine is a fine and is part of the judgment which the abstract must “ ‘digest or summarize.’ ” [Citations.]’ [Citation.]” (See also People v. Eddards (2008) 162 Cal.App.4th 712, 717-718.)
In this instance, the probation report recommended the imposition of a $129.75 criminal justice administration fee to the City of Milpitas pursuant to Government Code sections 29550, 29550.1 and 29550.2. Neither the record from the sentencing hearing nor the abstract of judgment, however, specifies the statutory basis for this court-ordered fee. We therefore conclude that it is appropriate that the judgment be amended to properly reflect the basis for imposing the criminal justice administration fee.
DISPOSITION
The judgment is modified to reflect that (1) the sentence imposed for the attempted premeditated murder conviction is life with the possibility of parole, said sentence to run consecutive to the three-year sentence imposed for the enhancement under 12022.7, subdivision (a); and (2) the imposition of a $129.75 criminal justice administration fee to the City of Milpitas is made pursuant to Government Code sections 29550, 29550.1 and 29550.2. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment consistent with the foregoing and deliver it to the Department of Corrections.
WE CONCUR: Mihara, Acting P.J., McAdams, J.