Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 160869
Dondero, J.
Defendant was convicted following a jury trial of attempted murder (Pen. Code, §§ 664/187), assault with a firearm (§ 245, subd. (a)(2)), corporal injury to a spouse (§ 273.5, subd. (a)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)), along with related enhancements for personal firearm use causing great bodily injury or death (§ 12022.53, subds. (b), (c), and (d)), and infliction of great bodily injury during domestic violence (§ 12022.7, subd. (e)). Defendant admitted nine charged prior convictions.
All further statutory references are to the Penal Code unless otherwise indicated.
In this appeal defendant argues that the trial court erred by admitting impeachment evidence and refusing to instruct on the lesser included offense of attempted voluntary manslaughter. He also objects to the trial court’s reference to consumption of alcohol by the jurors, and claims that an unauthorized sentence was imposed. We conclude that the court did not err in its instructions to the jury or in its ruling on the admission of impeachment evidence, but agree with defendant that the sentence must be modified. We therefore remand the case to the trial court to modify the sentence, but otherwise affirm the judgment.
STATEMENT OF FACTS
Defendant does not contest the overwhelming evidence that on July 3, 2008, he shot the victim, his wife Riah Ward, multiple times as she stood in a grocery market parking lot in Oakland. The legally significant disputed issue in the case was defendant’s state of mind when the shooting occurred.
To avoid confusion we will refer to the victim Riah Ward and her daughter Claudette Ward by their first names.
Defendant and the victim were married and had four children. They lived together in a house at 190 Pershing Drive in San Leandro, until two days before the shooting, when Riah left with her clothing and some belongings and moved temporarily to the Holiday Inn hotel near the Oakland Coliseum.
On the day of the shooting, Riah filed a petition for dissolution of marriage and a request for a restraining order against defendant. That same afternoon, about 4:00, defendant was observed by his daughter Claudette and niece Bernisha Osborne at his residence on Pershing Drive. Osborne testified that defendant’s demeanor was atypical. He was “real jumpy, ” “pacing the room, ” and seemed “high off something.” Although defendant did not usually swear, he said, “I just don’t give an F about living” or “hurting somebody, ” and “I don’t got nothing to live for.” After encountering defendant, Osborne was “a little nervous, shooken up” for Riah.
After filing her request for dissolution and a restraining order at the courthouse in Hayward, Riah proceeded with her son Trevillion Junior and daughter-in-law Rasheeda Griffin to the Food King on International Boulevard in Oakland just before 6:00 p.m., to cash a check and get food at a nearby taco truck. Osborne and Claudette then arrived unexpectedly as Riah was standing on the sidewalk next to the taco truck. Osborne mentioned that she “wanted to tell” Riah something, so they all walked inside the parking lot fence at Riah’s request to talk. Claudette “got a phone call” from defendant; he asked to speak to Riah. Riah declined to talk to defendant and “walked away” to speak to Osborne.
After Riah stepped onto an island in the parking lot and was standing in front of Osborne she “heard a shot” or “pop.” From behind her Osborne heard car tires squeal from “hard” braking, followed by six or seven gunshots in rapid succession. Riah “looked back” over her left shoulder and saw defendant in the driver’s seat of his silver BMW with the passenger window rolled down. Osborne “jumped” and looked behind her, whereupon she also saw defendant in his car, pointing a gun at her. Riah then felt a sensation in her back and “hit the ground.” She yelled, “I’m shot, I’m shot.” She heard only one gunshot, and did not realize that multiple shots had been fired. Riah suffered four gunshot wounds: to the back of her head, in the left shoulder, through the upper back into the right shoulder, and to the left arm.
At 6:36 p.m., Oakland police officers responded to a dispatch of a shooting at 88th and International. A large crowd had gathered around the victim, who was lying on a raised concrete island in front of a red Toyota Camry with a shattered rear passenger window. A bullet fragment was discovered inside the Camry, and PMC.25-caliber bullet casings were found on the ground around the vehicle.
At 6:55 p.m., Officer Vinton Johnson of the Oakland Police Department was traveling on patrol near 35th Street on Martin Luther King Boulevard, “on the look out for a person involved” in the shooting of Riah in the parking lot in the 8800 block of International. He was “flagged down by some citizens” who directed his attention to someone “on their hands and knees” in a wooded area adjacent to the freeway interchange. The officer entered the area through a hole in the fence and located defendant, who complained of back pain. Defendant pointed to his vehicle on the interchange above and told the officer that he “fell off the freeway.” Defendant also said that “his son was in the vehicle.”
Officer Johnson requested medical attention for defendant and stayed with him, while other officers were sent to check on the “welfare of the child” reported to be in the car. As medical personnel arrived, Officer Johnson learned that defendant was “a suspect” in the previously reported shooting. Other officers located defendant’s silver BMW that had crashed into the freeway entrance railing. No child was found in the car, but a Lorcin model.25-caliber semi-automatic handgun with a loaded but empty eight-round magazine was visible on the driver’s floorboard area. A subsequent ballistics examination revealed that the bullet casings found at the scene of the shooting were fired from the Lorcin handgun seized from defendant’s car.
The gun was registered to Lucky Cooper, defendant’s deceased grandfather.
Both defendant and Riah were transported to Highland Hospital. Riah told an emergency room physician, “I can’t believe he shot me, ” and identified defendant as the shooter. When Riah fortuitously encountered defendant at the hospital she declared, “That’s him. He shot me.”
At the hospital, an officer conducted a gunshot residue test of defendant’s hands. As the test was in progress defendant exclaimed, “Oh, God, what did I do? I don’t want to live anymore.” The result of the gunshot residue test on defendant’s right hand was positive. His blood-alcohol level when tested at the hospital was less than.01 percent.
Defendant testified in his defense that two days before the shooting Riah left their residence on Pershing Drive after a confrontation and “said she was moving out.” Defendant changed the locks to the house. Due to financial stress, defendant was chronically ingesting crystal meth, marijuana, alcohol, and prescription pain pills for an injured hand. He did not sleep for two or three days before the shooting. On the day of the shooting he took fairly heavy doses of methamphetamine, marijuana and alcohol. Defendant recalled “getting in the car” and leaving the house. He also testified that he typically kept a gun in the trunk of the car, rather than in the house – although he stored the gun in the glove compartment that day. His next recollection was “waking up on the ground” under the freeway overpass. He had no memory of driving to the Food King or shooting Riah. When defendant was found by officers he thought his “son was still in the car.” Defendant asserted that he “never intended to hurt” Riah.
He admitted prior convictions for multiple robberies, aggravated assault, grand theft, and voluntary manslaughter.
Following defendant’s testimony the prosecution presented rebuttal impeachment evidence that he brandished a firearm at a former business partner, Shanika Dancy, in August of 1999. Dancy testified that she and defendant had a business disagreement, after which defendant threatened to sue her, and told her she would “ ‘be sorry.’ ” Two days later defendant appeared at her home in Oakland. He broke a window in the living room, then walked leisurely back to his car. As defendant drove away slowly he “held” up a small, black handgun for her to see. Following Dancy’s testimony, defendant admitted that he intentionally broke a window at Dancy’s residence as he left in anger, but denied that he ever threatened her or brandished a weapon as he drove away from her house.
DISCUSSION
I. The Admission of Impeachment Evidence of a Prior Act of Brandishing a Weapon.
Defendant’s first claim of error is focused on the trial court’s admission over defense objection of impeachment evidence of his prior uncharged act of brandishing a firearm at his estranged business partner Shanika Dancy. Defendant argues that the “1999 brandishing incident – allegations of which were never proven true beyond a reasonable doubt – was unduly prejudicial, confusing and misleading to the jury.”
In January of 2000, a misdemeanor charge of brandishing a weapon (Pen. Code, § 417) filed against defendant was dismissed in exchange for his negotiated nolo contendere plea to a lesser charge of vandalism (Pen. Code, § 594).
“In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to: a witness’s character for honesty or veracity or their opposites; the existence or nonexistence of a bias, interest, or other motive; his attitude toward the action in which he testifies or toward the giving of testimony; and his admission of untruthfulness.” (People v. Harris (2005) 37 Cal.4th 310, 337.) “ ‘Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court’s discretion under Evidence Code section 352.’ [Citations.]” (People v. Smith (2007) 40 Cal.4th 483, 512.) “ ‘When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. [Citations.] But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.’ [Citation.]” (People v. Cloyd (1997) 54 Cal.App.4th 1402, 1408.)
“On appeal, the trial court’s decision is reviewed for abuse of discretion. [Citations.] To constitute an abuse of discretion, ‘the resulting injury [must be] sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, ... the court [must] exceed[] the bounds of reason, all of the circumstances being considered.’ [Citation.] In most instances the appellate courts will uphold the exercise of discretion even if another court might have ruled otherwise.” (People v. Feaster (2002) 102 Cal.App.4th 1084, 1092.)
While we think the probative value of the 1999 brandishing incident was not compelling, particularly in light of its temporal disassociation and the additional prior felony convictions adduced to impeach defendant, we are not persuaded that admission of the evidence was an abuse of the trial court’s discretion. To a greater degree than the prior felony convictions, testimony that defendant brandished a weapon during a dispute with another woman cast doubt upon his fundamental assertion at trial that the charged acts committed upon his wife were unintended. Hence, the brandishing evidence had some cognizable probative value to impeach defendant that did not otherwise exist.
We also do not perceive great prejudice in the challenged impeachment evidence. “ ‘ “In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.]’ [Citations.] It is not enough that the proffered evidence tends to make the defendant look guilty of the crimes charged. Instead, the ‘prejudice’ which Evidence Code section 352 seeks to avoid is that which ‘ “ ‘uniquely tends to evoke an emotional bias against the defendant as an individual....’ ” ’ [Citation.] The danger to be avoided is that evidence of additional crimes might cause the jurors to want to punish the defendant for those crimes, even if they are not entirely sure he committed the one(s) at issue.” (People v. Ennis (2010) 190 Cal.App.4th 721, 734.) Whatever emotional bias the brandishing incident invoked against defendant was inconsequential under the circumstances, and was properly limited to impeaching his credibility. The current charges and other prior felony convictions were immeasurably more heinous and inflammatory than anything associated with Dancy’s testimony. The testimony was not inordinately time consuming, nor did it carry the potential to confuse the jury. The trial court’s determination that the prejudicial effect of the brandishing evidence did not substantially outweigh its probative value was not an abuse of discretion.
II. The Trial Court’s Refusal to give an Attempted Voluntary Manslaughter Instruction.
We turn to defendant’s contention that the trial court erred by refusing to give his requested instruction on the lesser included offense of attempted voluntary manslaughter, based on voluntary intoxication. Defendant maintains that the requested instruction supported his primary defense that “he did not possess the malicious intent to kill Riah when he shot at her, ” and was supported by evidence of his exceedingly compromised mental state due to consumption of drugs and lack of sleep.
In our review of the trial court’s refusal to give the requested lesser included offense instruction we recognize that a “ ‘defendant has a constitutional right to have the jury determine every material issue presented by the evidence [and]... an erroneous failure to instruct on a lesser included offense constitutes a denial of that right....’ [Citation.]” (People v. Haley (2004) 34 Cal.4th 283, 312.) To protect this right and the broader interest of safeguarding the jury’s function of ascertaining the truth, a trial court must instruct on lesser included offenses “when the record contains substantial evidence of the lesser offense, that is, evidence from which the jury could reasonably doubt whether one or more of the charged offense’s elements was proven, but find all the elements of the included offense proven beyond a reasonable doubt.” (People v. Moore (2011) 51 Cal.4th 386, 408–409; see also People v. Cole (2004) 33 Cal.4th 1158, 1215; People v. Hughes (2002) 27 Cal.4th 287, 365; People v. Mendoza (2000) 24 Cal.4th 130, 174.)
“ ‘Conversely, even on request, the court “has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction.” ’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 705.) “[A] trial judge need not instruct the jury as to all lesser included offenses, just those that find substantial support in the evidence. [Citation.] ‘ “Substantial evidence” in this context is “ ‘evidence from which a jury composed of reasonable [persons] could... conclude[]’ ” that the lesser offense, but not the greater, was committed.’ [Citation.]” (People v. Haley, supra, 34 Cal.4th 283, 312.) “This substantial evidence requirement is not satisfied by ‘ “any evidence... no matter how weak, ” ’ but rather by evidence from which a jury composed of reasonable persons could conclude ‘that the lesser offense, but not the greater, was committed.’ [Citation.] ‘On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.’ [Citation.]” (Avila, supra, at p. 705.)
Defendant was not entitled to an attempted voluntary instruction under the facts presented in the case before us. Of course, voluntary manslaughter is a lesser included offense of murder, based on mitigating circumstances that reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice. (People v. Koontz (2002) 27 Cal.4th 1041, 1086; People v. Rios (2000) 23 Cal.4th 450, 461.) Further, “If the evidence presents a material issue of whether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would violate the defendant’s constitutional right to have the jury determine every material issue.’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 515; People v. Cook (2006) 39 Cal.4th 566, 596.) The flaw in defendant’s reasoning, however, is that he requested a lesser included offense instruction on attempted voluntary manslaughter, not voluntary manslaughter, predicated on evidence of his voluntary intoxication. (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709 (Gutierrez).)
The statutory abolition of the defense of diminished capacity “removes intoxication from the realm of defenses to crimes. Intoxication is now relevant only to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state.” (People v. Saille (1991) 54 Cal.3d 1103, 1119; see also People v. Rogers (2006) 39 Cal.4th 826, 878; People v. Lopez (1992) 11 Cal.App.4th 1115, 1122.) “Since malice aforethought is established once an intentional unlawful killing is shown, the concept of ‘ “diminished capacity voluntary manslaughter, ” ’ i.e., nonstatutory manslaughter, is no longer valid.” (People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1451, citing Saille, supra, at p. 1114.) The trial court may not instruct a jury that when a defendant, as a result of voluntary intoxication, kills another human being without premeditation and deliberation and/or without intent to kill – that is, without express malice – the resultant crime is voluntary or involuntary manslaughter. “This instruction is incorrect because a defendant who unlawfully kills without express malice due to voluntary intoxication can still act with implied malice, which voluntary intoxication cannot negate, in the wake of the 1995 amendment to section 22, subdivision (b). To the extent that a defendant who is voluntarily intoxicated unlawfully kills with implied malice, the defendant would be guilty of second degree murder.” (People v. Turk (2008) 164 Cal.App.4th 1361, 1376–1377, fn. omitted.)
Defendant did not have a valid and legal rationale to justify his theory that the charged attempted murder offense was reduced to attempted voluntary manslaughter due to his voluntary ingestion of alcohol and drugs. (People v. Walker (1993) 14 Cal.App.4th 1615, 1624.) A jury cannot consider instructions that espouse invalid principles of law. The offense of attempted voluntary manslaughter, like any attempt to commit an offense, requires proof that the perpetrator acted with the requisite specific intent. (People v. Montes (2003) 112 Cal.App.4th 1543, 1546; People v. Simington (1993) 19 Cal.App.4th 1374, 1379.) “An attempt to commit a crime requires a specific intent to commit the crime.” (People v. Villanueva (2008) 169 Cal.App.4th 41, 54, fn. 12.) “[I]mplied malice cannot support a conviction of an attempt to commit murder.” (People v. Bland (2002) 28 Cal.4th 313, 327.) Voluntary manslaughter requires an intent to kill, as does attempted voluntary manslaughter. (People v. Blakeley (2000) 23 Cal.4th 82, 90.) “Notwithstanding the fact that murder may be committed without an intent to kill, it has long been held that the crime of attempted murder does require an intent to kill. ‘ “To constitute murder, the guilty person need not intend to take life; but to constitute an attempt to murder, he must so intend.” ’ [Citation.]” (Montes, supra, at p. 1549.) “If the crime of attempted murder requires a specific intent to bring about a desired result” of the killing of a human being, “then... the crime of attempted voluntary manslaughter must also require a specific intent to bring about that same desired result (the killing of a human being).” (Id. at pp. 1549–1550.) Thus, had defendant been “successful in negating the intent to kill element necessary for the jury to find attempted murder, the jury likewise could not have found the elements of attempted voluntary manslaughter, which also requires an intent to kill.” (Walker, supra, at p. 1624; see also People v. Johnson (1996) 51 Cal.App.4th 1329, 1332; People v. Gonzales (1994) 29 Cal.App.4th 1684, 1692.)
“Voluntary manslaughter is a lesser included offense of murder when the requisite mental element of malice is negated by a sudden quarrel or heat of passion, or by an unreasonable but good faith belief in the necessity of self-defense. ‘Only these circumstances negate malice when a defendant intends to kill.’ [Citation.]” (Gutierrez, supra, 112 Cal.App.4th 704, 708.)
In Gutierrez, supra, 112 Cal.App.4th 704, 708, the defendant claimed that the court committed prejudicial error when it failed to instruct the jury on the lesser included offense of attempted voluntary manslaughter. As in the present case, no evidence of heat of passion, provocation or unreasonable self-defense was found in the record, but the defendant also argued the court had a duty to instruct the jury on attempted voluntary manslaughter on the theory he “may have acted with a conscious disregard for life, but without intent to kill.” (Id. at p. 709.) The defendant’s argument in Gutierrez was deemed “misplaced because the lesser included offense was attempted voluntary manslaughter and not voluntary manslaughter.” (Ibid.) The court explained that an “attempt to commit a crime requires a specific intent to commit the crime, ” and therefore “attempted voluntary manslaughter cannot be premised on the theory defendant acted with conscious disregard for life, because it would [necessarily] be based on the ‘internally contradictory premise’ that one can intend to commit a reckless killing. [Citation.] Since implied malice cannot support conviction of an attempt to commit murder [citation], it would turn logic on its head to allow implied malice to support conviction of attempted voluntary manslaughter. Thus, the court had no sua sponte duty in this case to instruct on attempted voluntary manslaughter.” (Id. at p. 710.)
The same reasoning is persuasive to us in the present case. Defendant’s argument that the trial court was obligated to instruct on attempted voluntary manslaughter based on his lack of intent to kill due to voluntary intoxication contradicts the fundamental principle that while the crime of voluntary manslaughter may be committed without the intent to kill, the crime of attempted voluntary manslaughter requires a specific intent to kill. (People v. Montes, supra, 112 Cal.App.4th 1543, 1546–1547, 1549–1550; Gutierrez, supra, 112 Cal.App.4th 704, 710; People v. Lewis (1993) 21 Cal.App.4th 243, 251.) If defendant lacked the requisite intent due to his voluntary intoxication, he did not commit attempted voluntary manslaughter. Defendant cannot be guilty of attempting to commit a killing he did not intend.
One can commit voluntary manslaughter either with an intent to kill or with a conscious disregard for life. (People v. Lasko (2000) 23 Cal.4th 101, 109–110; People v. Blakeley, supra, 23 Cal.4th 82, 91.)
Evidence of defendant’s voluntary intoxication therefore did not support a request for instructions to the jury on attempted voluntary manslaughter. (People v. Walker, supra, 14 Cal.App.4th 1615, 1624–1625.) No evidence was presented that defendant committed the lesser offense of attempted voluntary manslaughter, but not the greater offense of attempted murder. (See People v. Turk, supra, 164 Cal.App.4th 1361, 1376–1378.) The factual basis for defendant’s requested attempted voluntary manslaughter instruction being absent, the trial court was not required to give the instruction. (See People v. Moore, supra, 51 Cal.4th 386, 408–409; People v. Avila, supra, 46 Cal.4th 680, 707; People v. Daniels (1991) 52 Cal.3d 815, 868; Gutierrez, supra, 112 Cal.App.4th 704, 709–710.) Further, the jury was alerted to the issues of voluntary intoxication and intent by the thorough arguments of counsel and the trial court’s instruction (CALJIC No. 4.21.1) that the charge of attempted murder in Count One required proof of specific intent, and, “If the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not the defendant had the required specific intent or mental state.” And in any event, even if the instructional omission was error, we would find no prejudice given the overwhelming evidence of defendant’s intent to kill the victim. “[N]o fundamental unfairness or loss of verdict reliability” resulted from the lack of an additional instruction on the lesser included offense that was not justified by the law or evidence. (People v. Holloway (2004) 33 Cal.4th 96, 141.)
III. The Trial Court’s Admonition on the Consumption of Alcohol.
Defendant also asserts as error an admonition given to the jurors by the trial court during a lunch recess on the topic of “whether you ingest alcoholic beverages during lunch or not.” The court simply told the jurors, “I will leave it up to your good judgment.” Defendant argues that the court’s comment violated the California Supreme Court’s recommendation that, “The consumption of alcoholic beverages by jurors, whether during the presentation of evidence or during deliberation, is clearly to be discouraged. The defendant as well as the People have a right to the reasoned, dispassionate and considered judgment of the jury. Because the consumption of alcoholic beverages may impair one’s ability to perceive and judge, use of such intoxicants by jurors threatens both the fairness of the trial and the integrity of the entire judicial process.” (People v. Allen (1986) 42 Cal.3d 1222, 1265.)
We first point out that defendant forfeited the claim of error by failing to object at trial. (People v. Melton (1988) 44 Cal.3d 713, 753; People v. Ramos (1982) 30 Cal.3d 553, 576; People v. Burnett (1993) 12 Cal.App.4th 469, 475–476.) In any event, no prejudicial error has been demonstrated. The “ ‘rule is now fairly well established that a verdict will not be set aside in the absence of some showing or some reasonable ground to suspect that the consumption of alcohol actually affected the jurors’ capacity to competently perform their duties. [Citation.]’ [Citations.]” (People v. Cox (1991) 53 Cal.3d 618, 695.) Here, nothing in the record indicates that the jurors consumed alcohol during lunch, let alone were impaired in their judgment as a result. We find no misconduct by the trial court. (Ibid.)
IV. The Calculation of Defendant’s Sentence.
Defendant’s final argument is that the trial court erred in the calculation of his sentence under the Three Strikes law. The court imposed a sentence under section 667, subdivision (e)(2), as follows: for the attempted murder conviction (§§ 664/187), along with the related enhancement (§ 12022.53, subd. (d)) and prior convictions, the “third option” of a minimum indeterminate term of 59 years to life, plus a consecutive determinate term of 52 years; for the conviction of possession of a firearm by a felon (§ 12021, subd. (a)(1)), a consecutive term of 25 years to life plus a determinate consecutive term of four years. Defendant complains that the sentence was unauthorized by the statutory scheme because several of the prior serious felony convictions used to enhance the base term were not “brought and tried separately, ” some prior convictions were “improperly counted” (§§ 667, subd. (a), 667.5, subd. (b)), the prior prison terms for defendant’s 1980, 1983, 1985 and 1989 convictions used as enhancements “fell outside the five-year ‘washout’ period, ” and may not be used to enhance his sentence (§ 667.5, subd. (b)), and other prior prison terms were “not served ‘separately’ as required by statute.”
The terms imposed on Counts Two and Three were stayed, and are not at issue in this appeal.
The Attorney General properly concedes the sentencing error, and agrees that we must order the trial court on remand to modify the abstract of judgment as specified by defendant.
DISPOSITION
Accordingly, the case is remanded to the trial court to modify the calculation of defendant’s sentence in the abstract of judgment pursuant to section 667 to impose sentence as follows: an indeterminate life term for the conviction of attempted murder as charged in Count One of seven years, plus an enhancement of 25 years (§ 12022.53, subd. (d)), plus 15 years (§ 667, subd. (a)), for a total of 47 years to life; and, a consecutive indeterminate term for the conviction of possession of a firearm by a felon as charged in Count Four of 25 years to life. The clerk of the superior court is directed to modify the abstract of judgment as indicated above, and the clerk is to then forward a copy of the amended abstract of judgment to the California Department of Corrections. In all other respects the judgment is affirmed.
We concur: Margulies, Acting P. J. Banke, J.