Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FWV030154, Gerard S. Brown, Judge.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
Defendant Lanny Bennett Woosley was found guilty on 11 counts, including two counts of murder. In his appeal from the original judgment, we affirmed with respect to the conviction; however, we reversed with respect to the sentence and remanded with directions for resentencing. (People v. Woosley (Sept. 21, 2007, E039885) [nonpub. opn.] (hereafter Woosley I).)
The trial court duly resentenced defendant. He appeals again, asserting one sentencing error and one error in the abstract of judgment. The People concede both errors. With respect to the asserted sentencing error, we reject their concession. With respect to the error in the abstract, we accept it. Accordingly, we will affirm the judgment, but we will direct the trial court to prepare an amended abstract.
I
IMPOSITION OF TWO TERMS OF LIFE WITHOUT PAROLE
Defendant contends that the trial court erred by sentencing him to life without parole on both counts of first degree murder (Pen. Code, §§ 187, subd. (a), 189); because it struck one of the two multiple-murder special circumstances, it should have sentenced him on one of the two counts to 25 years to life. The People concede that this was error. Their concession, however, is unfounded, and we reject it.
A. Additional Factual and Procedural Background.
Defendant was found guilty on two counts of murder (counts 1 & 2). With respect to each of these two counts, a separate multiple-murder special circumstance was alleged and found true. (Pen. Code, § 190.2, subd. (a)(3).)
In the previous appeal, we held that only one multiple-murder special circumstance can be found true in any given case. Accordingly, we struck one of the multiple-murder special circumstances. (Woosley I, supra [at pp. 61-62].)
On remand, there was this discussion:
“[THE COURT:] [T]he law provides that in a single case involving special circumstances, you can only have one multiple murder special circumstance found true, and the jury found those true as to both Counts 1 and 2, and the Court [of Appeal] has indicated that we should strike one of the multiple murder circumstances, and I don’t know that it really matters which one.
“[PROSECUTOR]: I would suggest the first one.
“THE COURT: Are you okay with that, [defense counsel]?
“[DEFENSE COUNSEL]: Yes, your Honor.
“THE COURT: So we will strike the multiple murder circumstance in Count Number 1. It doesn’t affect the life without parole sentence . . . .”
The trial court sentenced defendant on both counts 1 and 2 to life without the possibility of parole.
B. Analysis.
Under Penal Code section 190.2, subdivision (a), “[t]he penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found . . . true . . . .” The listed special circumstances include that “[t]he defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree.” (Pen. Code, § 190.2, subd. (a)(3).) In the absence of a special circumstance, the penalty for first degree murder is 25 years to life. (Pen. Code, § 190, subd. (a).)
As we held in the previous appeal, only one multiple-murder special circumstance can be found true in any given case. (People v. Halvorsen (2007) 42 Cal.4th 379, 422.) The concern is that “alleging two special circumstances for a double murder improperly inflates the risk that the jury will arbitrarily impose the death penalty . . . .” (People v. Harris (1984) 36 Cal.3d 36, 67 (plur. opn. of Broussard, J.).) Thus, the appropriate procedure is to “allege one ‘multiple murder’ special circumstance separate from the individual murder counts.” (Ibid., italics added) However, the plain language of Penal Code section 190.2 requires that, once that one special circumstance has been found true, the sentence on every count of first degree murder must be life without the possibility of parole. (People v. Garnica (1994) 29 Cal.App.4th 1558, 1562-1564 [Fourth Dist., Div. Two]; see Halvorsen, at pp. 429-430 [defendant could be given separate sentence of either death or life without parole on each of two first degree murder convictions]; see also Harris, at p. 67 [“[t]his procedure would properly guide the jury’s objective consideration of the circumstances of the crime without hampering the prosecution’s ability to seek what it considers to be the appropriate punishment” (italics added)].)
Accordingly, the trial court did not err by imposing two terms of life without the possibility of parole.
II
PREMEDITATED VERSUS UNPREMEDITATED ATTEMPTED MURDER
Defendant also contends that the abstract of judgment erroneously reflects that he was found guilty on two counts of premeditated rather than unpremeditated attempted murder. Once again, the People concede the error. This time, we agree.
A. Additional Factual and Procedural Background.
Defendant was found guilty on three counts of attempted murder — counts 3, 4, and 6 — but only count 3 was found to be willful, deliberate, and premeditated. (Pen. Code, §§ 187, subd. (a), 664.)
On remand, the trial court sentenced defendant correctly on each of these counts. Moreover, the abstract of judgment correctly reflects the terms imposed. However, it describes count 3 as “ATTEMPT MURDER” and counts 4 and 6 as “1ST ATTEMPT MURD[ER].”
B. Analysis.
Technically, attempted murder is not divided into degrees. (People v. Bright (1996) 12 Cal.4th 652, 669, disapproved on other grounds in People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6.) Nevertheless, it is not uncommon to find “first degree attempted murder” used as a shorthand way of referring to willful, deliberate, and premeditated attempted murder. (E.g., People v. Adanandus (2007) 157 Cal.App.4th 496, 499.) Thus, the abstract of judgment describes all three counts incorrectly. We will direct the trial court to prepare an amended abstract of judgment.
III
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment, correctly reciting that the conviction on count 3 was for premeditated attempted murder, whereas the convictions on counts 4 and 6 were for unpremeditated attempted murder, and to send certified copies of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: GAUT, J. KING, J.