Opinion
E066984
11-29-2017
THE PEOPLE, Plaintiff and Respondent, v. WESLEY E. SWANK, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 with directions. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, 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 Wesley Swank guilty of first degree murder (Pen. Code, § 187, subd. (a)) and willful, deliberate, and premeditated attempted murder (§§ 187, subd. (a), 664). The jury found true the special circumstance allegations that the murder was (a) intentional and carried out for financial gain (§ 190.2, subd. (a)(1)); and (b) committed by means of lying in wait (§ 190.2, subd. (a)(15)). The trial court sentenced defendant to prison for seven years to life, plus life without the possibility of parole.
All subsequent statutory references will be to the Penal Code unless otherwise indicated. --------
Defendant raises two issues on appeal. First, defendant contends the trial court erred by imposing a sentence of seven years to life for the attempted murder. Second, defendant asserts the abstract of judgment is incorrect because it reflects the trial court suspended a $10,000 parole revocation fine. (§ 1202.45.) The People concede both contentions are correct. We direct the trial court to issue a corrected abstract of judgment, but otherwise affirm the judgment.
PROCEDURAL HISTORY
The trial court pronounced defendant's sentence for the attempted murder conviction as "seven years to life." Defendant's abstract of judgment reflects an attempted murder sentence of seven years to life.
The trial court imposed a $10,000 restitution fine. (§ 1202.4.) The trial court did not impose a parole revocation fine. (§ 1202.45.) The minute order from defendant's sentencing hearing reflects the trial court stayed a $10,000 parole revocation fine. (§ 1202.45.) Defendant's abstract of judgment reflects the trial court suspended a $10,000 parole revocation fine. (§ 1202.45.)
DISCUSSION
A. ATTEMPTED MURDER SENTENCE
Defendant contends the trial court erred by imposing a sentence of seven years to life for his attempted murder conviction (Count 2).
Because this issue is purely legal, we apply the de novo standard of review. (People v. Rosbury (1997) 15 Cal.4th 206, 209.) Statutory law provides, "[I]f 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." (§ 664, subd. (a).) Because the mandatory sentence for defendant's attempted murder conviction is life with the possibility of parole, the trial court erred by imposing a sentence of seven years to life. We will direct the trial court to issue a corrected abstract of judgment.
B. PAROLE REVOCATION FINE
Defendant contends the abstract of judgment incorrectly reflects a parole revocation fine of $10,000. (§ 1202.45.)
Because this issue is purely legal, we apply the de novo standard of review. (People v. Rosbury, supra, 15 Cal.4th at p. 209.) Statutory law provides, "In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (§ 1202.45, subd. (a).)
Defendant's sentence for first degree murder with special circumstances is life without the possibility of parole. Therefore, defendant's sentence does not include a period of parole. As a result, the trial court was correct in not ordering a parole revocation fine. (§ 1202.45, subd. (a); People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1184-1185.) The abstract of judgment is erroneous because it reflects a $10,000 parole revocation fine was suspended by the trial court when the trial court did not take such an action. We will direct the trial court to issue a corrected abstract of judgment.
DISPOSITION
The trial court is directed to issue a corrected abstract of judgment reflecting (1) the sentence for attempted murder (count 2) is life with the possibility of parole (§§ 187, subd. (a), 664); and (2) there is no parole revocation fine in this case (§ 1202.45, subd. (a)). The trial court shall forward the corrected 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.