Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA104973, John A. Torribio, Judge.
Kevin D. Sheehy, 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, Senior Assistant Attorney General, Lance E. Winters and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Juan Gomez was convicted, following a jury trial, of one count of willful deliberate and premeditated attempted murder in violation of Penal Code sections 187 and 664. The jury found true the allegations that appellant personally and intentionally discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivisions (b), (c) and (d) and personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
All further statutory references are to the Penal Code unless otherwise indicated.
Following the jury's guilty verdict, appellant's counsel presented evidence that he was not guilty by reason of insanity. The trial court found that there was insufficient evidence that appellant was insane. The court sentenced appellant to a total of 53 years to life in state prison.
Appellant appeals from the judgment of conviction, contending that the trial court erred in taking away the issue of sanity from the jury. Appellant also contends that the section 12022.7 enhancement should be stayed, the sentence for attempted murder should be life with the possibility of parole and there is an error in his custody credits. Respondent agrees that the section 12022.7 enhancement should be stayed and the sentence for attempted murder corrected. We reverse the judgment of conviction and remand for a trial on the issue of appellant's sanity at the time of the crime committed in this case.
Facts
1. Guilt phase
In March 2008, Ruben Carrillo lived on Hayward Street. His next door neighbor was Carlos Guerrero. Carrillo had never had any trouble with Guerrero. Carrillo knew that a woman was living in Guerrero's house, but did not know her name. Carrillo had seen appellant coming and going from Guerrero's house.
About 9:00 p.m. on March 13, 2008, Carrillo was standing at a shed in his backyard. He heard a gunshot. When he heard two more gunshots, he dove to the ground. A bullet nevertheless went through Carrillo's chest, breaking one of his ribs and collapsing one of his lungs. Carrillo heard more gunshots and the sound of bullets striking his shed.
Antonio Ruiz, one of Carrillo's neighbors, also heard the gunshots. He looked out his front door and saw a man wearing black pants and a hoodie jumping over his front gate.
Carrillo was treated by paramedics and taken to a hospital. He told a sheriff's deputy that a Hispanic man had pointed a gun at him. Carrillo did not recognize the man. Carrillo's wound was life-threatening. He spent a week in the hospital.
On March 20, 2008, Deputy Art Gabriel and his partner responded to a report of a suspicious person in the backyard of Guerrero's house. The deputies found appellant standing against a wall, wearing jeans, a long-sleeved black t-shirt and knit gloves. When Deputy Gabriel asked appellant what he was doing, appellant replied that "someone was chasing him or something." Deputy Gabriel ordered appellant to lie down on the ground. Appellant complied.
The deputies found a loaded handgun in appellant's waistband. Near where appellant had been standing, the deputies found a beanie with holes cut out of it.
Later that day, Detective Spencer Reedy interviewed appellant about Carrillo's shooting. Appellant seemed coherent during the interview. Appellant initially told the detective that he had been walking in the area when someone with a gun started chasing him. Appellant hid in a backyard. When he heard a noise, he believed it was his pursuer and fired two shots. He heard a person yell. Appellant then fired the rest of his bullets.
Detective Reedy told appellant that he did not believe him. Appellant said, "I'm sure you already know." Detective Reedy asked appellant why he shot Carrillo. Appellant replied, "I didn't shoot anybody that didn't deserve it." He also said that his wife had been abused.
Detective Reedy recorded about the last 30 minutes of appellant's interview. It was played for the jury. Appellant told Detective Reedy he would become suspicious seeing Carrillo, who lived two doors away, "walking by, back and forth... in the yard" or "in the street." Appellant had a "feeling" that one year earlier, when appellant was away or was in "the back room" while his wife slept, Carrillo, who lived two doors away, raped appellant's wife. Appellant said that "the guy is a molester" and "took advantage and I'm sure I'm not the only one on the block you know?" "Probably like half of the block or at least two more people there."
After his wife gave birth to a daughter, appellant thought that the infant looked just like Carrillo. "I mean the baby just looks just like [Carrillo, ] you know I have brown eyes and the baby has blue eyes and that's what [Carrillo] has you know." Appellant claimed that Carrillo told him that all Carrillo's children had blue eyes. Appellant never asked his wife about being raped, and she never confirmed it to him (and she denied it to Detective Reedy), but he could just tell by her demeanor. Nobody in appellant's family had blue eyes. Appellant felt "stupid" and "afraid" and "had to" move away, because he "just didn't want a [sic] be in that situation right there anymore."
In fact, Carrillo has brown eyes.
Appellant bought a revolver and, on a Friday night about 10:00 p.m., went to the house of his brother-in-law Guerrero, who lived next door to Carrillo. From the top of a boundary wall, appellant reached over and "just started shooting" at Carrillo, firing all of the bullets and hearing him and then appellant "took off." Appellant said, "[A]nd you know what I think I didn't even hit him."
On the morning of his interview, when appellant woke up, his heart was "not resting, " and he felt Carrillo was not dead and so he went back to kill him. Appellant returned with the same gun and the same mask as the last time and went to a backyard near Carrillo's home, "[w]aiting, " "laying low, " and "hiding." Appellant thought Carrillo was home because he had watched the patterns of light inside Carrillo's house. Someone saw him and he ran off, only to return to the same place after 10 minutes.
Appellant also said, "[N]ow I know that I messed up my daughter's life and my wife's." When Detective Reedy talked about "consequences" and the fact that "they take this stuff pretty serious, " appellant responded, "I know they do, but then again if they did I mean why not put a stop to it." "Why, why would you have to even fucken pay to get in the internet to know what neighbor is your molester you know why not have that shit free on line you know." When the detective suggested that Carrillo might never have been arrested, appellant said, "I really don't know but you know the guy fucked up." Asked whether going over and trying to kill Carrillo made him feel better, appellant answered, "Yeah, it just makes me feel better I mean, maybe not just me maybe a lot of other people around there you know." Appellant told Detective Reedy that he realized that what he had done was wrong.
Appellant made a handwritten statement during the interview in which he wrote that he was "100 percent sure" that Carrillo had abused his wife and that he could not live with it. He also wrote that "my actions were... not the best but I would never wish anybody for what's happened to me."
2. Sanity phase
Appellant called prosecution expert Dr. Barry Hirsch, a forensic psychologist.
Dr. Hirsch believed appellant had a mental disorder at the time of the crime. The mental disorder was ongoing, given that appellant still functioned in a mentally disordered way even after six months of incarceration. Dr. Hirsch opined appellant had a "settled insanity" rather than a temporary insanity.
Dr. Hirsch diagnosed appellant as having a "poly substance dependency in institutional remission." Appellant was a chronic substance abuser. Appellant had used cocaine, marijuana, and alcohol. At the time of the offense, appellant had been abusing cocaine and alcohol for approximately 14 years. Dr. Hirsch also determined appellant had either a "psychotic disorder not otherwise specified" or schizophrenia. Appellant was "delusional, " that is, he had false beliefs that would not change in the face of contrary evidence or information.
In his interaction with appellant, Dr. Hirsch did not directly observe any symptoms indicating a major mental disorder. The only symptom he directly observed was appellant's "encapsulated delusion" that Carrillo had raped his wife. Dr. Hirsch did not find him delusional in any other areas. Nothing made Dr. Hirsch think appellant was malingering.
When Dr. Hirsch asked appellant why he believed someone had raped his wife, he said he had been smoking marijuana, using drugs, and looking at pornography. However, Dr. Hirsch believed appellant would have been mentally disordered with or without substance abuse immediately prior to the crime.
Dr. Hirsch opined that a person could operate under the mental disorder appellant had and still know what he was doing. Dr. Hirsch concluded there was no information available to indicate that appellant was incapable of understanding that shooting Ruben Carrillo was wrong. He believed appellant knew his actions were legally wrong, because he gave "cover up information." Appellant told Dr. Hirsch that he knew that he was wrong in going to kill Carrillo but did not say whether he knew it was legally wrong or morally wrong. In his report, Dr. Hirsch stated: "Because of my lack of more definitive follow-up questions, it is unclear if Mr. Gomez knew this was both legally and morally wrong."
Hirsch was later recalled by the prosecution. He then testified that appellant "both knew and understood the nature of his actions" when he committed the crime. He knew what he was doing was legally wrong. He also knew what he was doing was morally wrong. Dr. Hirsch based his opinion on appellant's statements as reflected in his jail records, and the way appellant planned and carried out the crime. He also considered appellant's former gang membership. According to Dr. Hirsch, appellant was legally sane when he shot Ruben Carrillo, despite having mental illness. Appellant was angry and seeking revenge.
Dr. Kaushal Sharma, a medical doctor specializing in forensic psychiatry, also testified at the sanity trial. Dr. Sharma first interviewed appellant approximately five weeks after the crime, in the context of determining whether appellant was mentally competent to stand trial. He was later appointed to further evaluate appellant for the sanity trial and interviewed appellant a second time in January 2009, and also reviewed his previous report, police and investigative reports, and appellant's jail mental health records. Dr. Sharma concluded that at the time of the crime appellant was not able to morally distinguish right from wrong.
Dr. Sharma first determined that appellant was mentally ill at the time of the crime. Dr. Sharma then determined that but for appellant's mental illness, he would not have committed the crime. Appellant believed he was morally justified in shooting Ruben Carrillo "because of the symptoms and misperceptions and irrationality he had." Dr. Sharma believed appellant suffered from delusions and hallucinations at the time of the crime. In Dr. Sharma's opinion, appellant was legally insane.
Although Dr. Sharma was convinced that appellant was mentally ill, he did not make a specific diagnosis of appellant in his written report. At trial he stated appellant likely suffered from "psychotic disorder not otherwise specified" at the time of the crime. He believed the onset of appellant's mental illness was a few months before the crime, and that it ended sometime between April 2008 and January 2009. The illness may have been in part due to substance abuse.
Dr. Sharma believed appellant did not know "moral right from wrong" based on his delusions and hallucinations regarding his belief that Carrillo raped his wife and would rape other women. Appellant acted out of "craziness" and the desire to achieve "a bigger good." Appellant's jail records contained numerous examples of his "irrational and bizarre thinking." Dr. Sharma "believe[d] strongly" that psychosis caused appellant to commit the instant offense.
Dr. Sharma found that appellant understood the nature of his actions: He understood the nature in the sense that he knew the victim was a human being. He knew that the object he, the defendant, had in his hand was a gun. He knew the gun was not a banana. He knew if he fired, the bullet would come out. And if the bullet hit the person, it would cause death or serious injury. In that sense, he knew the nature and quality of his act.
Dr. Sharma believed that appellant knew his actions would be considered "legally wrong." He based his opinion on the fact that appellant appeared to be hiding when he shot Carrillo, and when he returned to Carrillo's home on the second occasion, he wore gloves and "fatigue-type clothing." Appellant also "initially denied the facts of the case" to the police. That suggested to Dr. Sharma that appellant "must have known his actions were legally wrong."
Dr. Sharma had no indication that appellant was faking his symptoms.
Discussion
1. Directed verdict
Appellant pled not guilty by reason of insanity. After the jury found appellant guilty of attempted murder, the sanity phase of the trial began. At the close of the testimony in that phase, the trial court granted the People's motion to dismiss the insanity plea for lack of evidence. Appellant contends that the trial court erred in doing so.
Section 25, subdivision (b) provides: "In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense."
Insanity "denotes a mental condition which renders a person incapable of knowing or understanding the nature and quality of his act, or incapable of distinguishing right from wrong in relation to that act." (People v. Kelly (1973) 10 Cal.3d 565, 574.) "[A] defendant who is incapable of understanding that his act is morally wrong is not criminally liable merely because he knows the act is unlawful." (People v. Skinner (1985) 39 Cal.3d 765, 783.)
"[A] criminal defendant may be precluded, through the grant of a directed verdict, from presenting an insanity defense where the evidence is insufficient for a reasonable jury to find the defendant was insane at the time of his crimes." (People v. Severance (2006) 138 Cal.App.4th 305, 317.) The defendant has the burden of establishing insanity, and if he fails to meet that burden, removal of the insanity issue from the jury does not violate the state or federal Constitution. (People v. Ceja (2003) 106 Cal.App.4th 1071, 1089.)
In reviewing whether a trial court's removal of the insanity issue from the jury is proper, the reviewing court views the evidence in the light most favorable to the defendant, and drawing every legitimate inference in his favor, determines whether there was substantial evidence from which reasonable jurors could have concluded that the defendant was insane at the time he committed the charged offense. (People v. Hernandez (2000) 22 Cal.4th 512, 527.)
In this case, the trial court ruled as follows: "The [People rely] on the analysis of the two delusions [in People v. Skinner], that is if the delusion is that another is about to take the defendant's life and the defendant acts in self-defense, an insanity defense will prevail. But if the delusion is that the victim slandered the defendant and the latter kills in revenge, it will not. [¶] The delusion first suggested results in an inability to appreciate that the act is wrong. The second delusion, without more, does not suggest that the defendant believes his act is lawfully or morally justified. That is, the actions to protect versus the action for revenge. [¶] And then it seems to me that when you take that standard, and you look at what transpired during the course of the two separate incidents, that is he goes to the home of the victim, essentially ambushes the victim, and he states that when he goes to the victim's home on the first day, he has the watch cap with the holes cut out, he has gloves or mittens of some type, and then you couple that with the second time he goes a week later to finish the job, and again he has the watch cap and the gloves. You couple that with the fact that he semi cased out the house; that is, he drove by a couple times and saw the light patterns in the home; coupling that with the phony statement as to what he was doing in the area, coupling that with his recitation of the events of the evening, it seems to me that all of the evidence is that he was sane and that the opinions - - the opinion that he was insane is unsupported by any facts in the record, other than a theory of insanity brought on by substance abuse which is barred by section 25.5."
The trial court thus identified three bases for its ruling. First, the court found that appellant's planning activities precluded a reasonable jury from finding that appellant was insane. Second, the court found that appellant was motivated by a desire for revenge and that this desire precluded a reasonable jury from finding that appellant was insane. Finally, the trial court found that the only "theory" of appellant's insanity was that it was brought on by substance abuse and thus barred by section 25.5. Appellant contends that the trial court erred on all three counts. We agree.
The Attorney General has not responded to appellant's contention that the trial court erred in finding that appellant could not have been insane at the time of the crime because there was evidence that he planned the crime and made efforts to conceal his identity. The Attorney General does not argue that the trial court's ruling should be upheld on this ground. We agree that the trial court's ruling cannot be upheld on this ground.
Advance planning of a crime, including plans to conceal one's identity, do not preclude a finding that a defendant was insane at the time of the crime. A defendant who had a written 34-step plan, wore camouflage and dark glasses and was armed with three guns was insane at the time of his crimes. (People v. Torres (2005) 127 Cal.App.4th 1391, 1394-1397.) Similarly, a defendant who began planning his crime three months in advance, thought about it over breakfast on the day of the killing, considered various weapons, decided on an ax, got the ax and killed his sleeping wife was insane at the time of the killing. (People v. Stress (1988) 205 Cal.App.3d 1259, 1263.)
Here, Dr. Sharma was asked about appellant's planning activities several times. The doctor explained: "The actions he took, the plans he made, were to carry out an act which is inherently based on irrational thinking with no rhyme or reason, no logical purpose." Thus, appellant's planning activity did not preclude a finding that he was insane.
The Attorney General has not responded to appellant's contention that the trial court also erred in finding that appellant could not be insane because he was motivated by a desire for revenge. The Attorney General does not argue that the trial court's ruling should be upheld on this ground. Assuming that the trial court based its ruling in part on appellant's desire for revenge, we agree that the trial court's ruling cannot be upheld on this ground.
When a defendant's mental state involves "vengeance as well as defending himself and others, " the defendant has the right to have a jury decide if he was acting in (delusional) self-defense and incapable of distinguishing right from wrong. (People v. Torres, supra, 127 Cal.App.4th at pp. 1396-1398, 1402.)
Here, Dr. Sharma opined that "[I]f he's going to go and even the score that's revenge. But if he believes that this person has done this to his wife and is going to rape other people in the future, then the equation changes. Because then he is not only doing revenge, but he is doing it for a bigger good at least in his mind. In reality there was no bigger good. This is all craziness. Bigger good is to prevent future victims to be suffering just like his wife and he did."
Appellant contends that the trial court erred in finding that the evidence showed only "a theory of insanity brought on by substance abuse which is barred by section 25.5." The Attorney General does dispute this contention, arguing that the two experts in this case testified that appellant's mental illness was caused by his substance abuse.
Insanity "denotes a mental condition which renders a person incapable of knowing or understanding the nature and quality of his act, or incapable of distinguishing right from wrong in relation to that act." (People v. Kelly, supra, 10 Cal.3d at p. 574.)
In Kelly, the California Supreme Court held that "When long-continued intoxication results in insanity, ... the mental disorder remains even after the effects of the drug or alcohol have worn off. The actor is 'legally insane, ' and the traditional justifications for criminal punishment are inapplicable because of his inability to conform, intoxicated or not, to accepted social behavior.... [Citation] '[Settled] insanity produced by a long-continued intoxication affects responsibility in the same way as insanity produced by any other cause. But it must be "settled insanity, " and not merely a temporary mental condition produced by recent use of intoxicating liquor.'... Thus, it is immaterial that voluntary intoxication may have caused the insanity, as long as the insanity was of a settled nature and qualifies under the [M'Naghten] test as a defense." (People v. Kelly, supra, 10 Cal.3d at p. 576.)
In 1994, twenty years after the publication of People v. Kelly, supra, section 25.5 became law. That section provides: "In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall not be found by the trier of fact solely on the basis of a personality or adjustment disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances. This section shall apply only to persons who utilize this defense on or after the operative date of the section."
In 1999, the Fifth District Court of Appeal held that section 25.5 overruled prior decisional law which permitted a plea of not guilty by reason of insanity based on "settled insanity" caused by intoxicating substances. The Court reasoned: "Section 25.5 provides that if an accused's insanity is caused solely by abuse of or addiction to intoxicating substances, then the insanity defense is not available to him or her. This statute makes no exception for brain damage or mental disorders caused solely by one's voluntary substance abuse but which persists after the immediate effects of the intoxicant have dissipated. Rather, it erects an absolute bar prohibiting use of one's voluntary ingestion of intoxicants as the sole basis for an insanity defense, regardless whether the substances caused organic damage or a settled mental defect or disorder which persists after the immediate effects of the intoxicant have worn off." (People v. Robinson (1999) 72 Cal.App.4th 421, 427.)
Appellant contends that Robinson is wrongly decided and urges us not to follow the reasoning of that case. Appellant contends that a "fairer reading" of section 25.5 would be that based on the legislative history discussed in Robinson, the Legislature wanted to forestall crimes committed while under the present influence of intoxicating substance as a basis for an insanity plea. We hold that there is evidence that appellant's insanity was caused only in part by substance abuse, and thus his insanity defense would not be barred by Robinson. Thus, we need not and do not reach the issue of whether Robinson was wrongly decided.
Appellant contends that the testimony of the two experts showed that he was insane at the time of the crime and that his insanity was not caused solely by the abuse of or addiction to intoxicating drugs. We agree.
Dr. Hirsch, a forensic psychologist, explained his diagnosis as follows: "I classified him as having a poly substance dependency in institutional remission. He was using cocaine, marijuana, and alcohol. I also said he had a psychotic disorder NOS, which means not otherwise specified. Versus schizophrenia undifferentiated type. There are four types of schizophrenia. This is one in which the symptoms are somewhat mixed. [¶] And it was not clear whether he was basically psychotic disorder NOS or schizophrenia. That's why we say versus." (Italics added.)
Dr. Hirsch thus diagnosed appellant as having two mental conditions: (1) poly substance dependency and (2) psychotic disorder NOS versus schizophrenia (hereafter "psychotic disorder"). He did not testify as to any causal connection between the two conditions, or between appellant's drug use and his psychotic disorder. Dr. Hirsch did testify that he was aware that appellant had family members that also suffered from some form of psychiatric disorder. He stated that he obtained this information directly from appellant, from jail records and from Dr. Sharma's report. Dr. Hirsch agreed that if a person has a family history of mental illness it is an "indicator" that the person might have mental illness himself. Viewing the evidence in the light most favorable to appellant, Dr. Hirsch's testimony showed that appellant was suffering from a mental condition not caused by substance abuse. This is substantial evidence from which a reasonable jury could find that appellant was legally insane at the time of his crime.
At one point, the trial court stated that "there was no reliable evidence of a family history of mental illness." The court's statement may reflect an inaccurate recall of Dr. Hirsch's testimony on this issue. At one point, Dr. Hirsch stated that he believed that appellant's wife told police about the family history of mental illness. He later stated that he was mistaken about the wife's statement. To the extent that the trial court found appellant's statement about his family history incredible as a matter of law, the trial court erred. There is nothing inherently incredible about such a claim. Dr. Hirsch testified that the claim was in accord with the behaviors that appellant manifested in jail. He also testified that it was his opinion that appellant was not malingering.
To the extent that respondent contends that Dr. Hirsch's testimony must be understood as stating that appellant's psychotic disorder was caused by substance abuse because Dr. Hirsch used the term "settled insanity" in his testimony, respondent is mistaken. Dr. Hirsch's use of the term "settled insanity" did cause confusion in the trial court, no doubt because it is most often used to refer to insanity caused by substance abuse. However, the prosecutor and the court cleared up this confusion. The prosecutor summed up Dr. Hirsch's testimony about settled insanity by asking: "So your term 'settled insanity' basically just refers to a mental disorder?" Dr. Hirsch replied: "That he had a mental disorder, yes." The prosecutor responded: "Thank you. Let's just use the term that he had a mental disorder instead so we don't confuse the issues." The court then asked: "Are you saying then by settled - - I hate to use a negative – it's non-transient?" Dr. Hirsch replied: "Correct."
Dr. Sharma, a forensic psychiatrist, testified that appellant's illness was due "in part" to his substance abuse. Dr. Sharma also testified: "I don't know for a fact that [the mental illness] may be from something else. [¶] We do know for a fact that he had used drugs and therefore we know what role the cocaine may have played in the production of his symptoms. Other factors is rather speculative. They may or may not have played a role." Dr. Sharma believed that it is unknown in general what, if any, organic factors cause mental illness and thus he could not say what other factors might have caused appellant's mental illness. However, Dr. Sharma viewed it as equally speculative to attribute all of appellant's mental illness to substance abuse. He testified: "So we know, yes, this kind of drug causes this kind of problem, therefore we know the drugs played some role. How much? I don't know. That would be speculation."
Viewing Dr. Sharma's testimony in the light most favorable to appellant, he testified that appellant's mental illness was caused only in part by substance abuse. As the Court in Robinson explained, section 25.5 precludes an insanity defense only when "an accused's insanity is caused solely by abuse of or addiction to intoxicating substances." Thus, Dr. Sharma's testimony is also substantial evidence from which a reasonable jury could find that appellant was legally insane at the time of his crime.
2. Section 12022.7 enhancement
Appellant contends, and respondent agrees, that the trial court erred in imposing a three-year enhancement term for inflicting great bodily injury pursuant to section 12022.7. We agree as well.
The trial court imposed two enhancements involving great bodily injury. The first was a 25-year-to-life term pursuant to section 12022.53, subdivision (d), for causing great bodily injury by personally discharging a firearm. The second was the section 12022.7 enhancement. Subdivision (f) of section 12022.53 expressly provides: "An enhancement for great bodily injury as defined in Section 12022.7... shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d)." The section 12022.7 enhancement must be stayed. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130.)
3. Sentence for attempted murder
Appellant contends, and respondent agrees, that the trial court erred in sentencing appellant to a term of 25 years to life in state prison for his attempted murder conviction. We agree as well.
The punishment for willful, deliberate and premeditated attempted murder is life with the possibility of parole. (§ 664, subd. (a).) The minimum term that must be served under a life sentence is seven years, not twenty-five. (§ 3046, subd. (a)(1).) Thus, appellant's sentence for attempted murder is ordered corrected to life in prison.
4. Presentence custody credit
Appellant contends that the trial court erred when it stated that he was not entitled to any presentence custody credit. He contends that he is entitled to 503 days of actual credit and 75 days of conduct credit, for a total of 578 days of presentence custody credit. Respondent agrees that appellant is entitled to the 578 days of presentence custody credit. We agree as well.
The August 17, 2009 abstract of judgment filed in this case does show 503 days of actual credit and 75 days of conduct credit, for a total of 578 days. To make the record clear, appellant is entitled to these days of credit. Any contrary statement by the trial court is ordered stricken. If a new abstract of judgment is prepared in this case, that abstract should reflect the 578 days.
Disposition
The judgment is reversed and this matter is remanded for a trial on the issue of appellant's sanity at the time of the crime committed in this matter.
We concur: TURNER, P. J. MOSK, J.