PEOPLE v. TRAN (1997)

Defendant was convicted of one count of attempted murder with premeditation (Pen.Code, §§ 187, 189, 664) and two counts of assault with a firearm (Pen.Code, § 245, subd. (a)(2)), and the jury found true allegations that he had personally used a handgun in the commission of these crimes (Pen.Code, §§ 1203.06, 12022.5, subd. (a)(1)).   He admitted that he had suffered a prior conviction within the meaning of Penal Code sections 667, subdivisions (a) and (b) to (i) and 1170.12.   Defendant was committed to state prison to serve two consecutive indeterminate life terms and a consecutive nine-year determinate term.   On appeal, he claims that (1) the trial court prejudicially erred in failing to give CALJIC 8.72 sua sponte, (2) the revised version of CALJIC 2.90 given by the trial court violates due process and (3) the trial court's imposition of two consecutive life terms was unauthorized.   We modify and affirm the judgment.

FACTS

On February 6, 1996, defendant was the victim of a shooting at the Thuy Du Cafe. He suffered one bullet wound to his right forearm and another which went through his abdomen and out his back.   Both wounds were “clean through and through” and caused only muscle damage.   After being wounded, defendant “could work all the muscles but they were very sore.”   Defendant was not hospitalized as a result of his injuries.   His wounds were bandaged, and he was sent home.   The individuals who shot defendant on February 6 escaped in a car owned by Tung Phan. On the afternoon of February 12, Tung Phan was the victim of a shooting at the Nang Cafe. He suffered a bullet wound to his thumb.   Phan identified his assailant as the victim of the February 6 shooting, and Phan recalled that the man's name was “Sa.”

Defendant was charged by information with one count of attempted murder with premeditation (Pen.Code, §§ 187, 189, 664) and two counts of assault with a firearm (Pen.Code, § 245, subd. (a)(2)).   It was further alleged that he had personally used a handgun in the commission of these crimes (Pen.Code, §§ 1203.06, 12022.5, subd. (a)(1)) and that he had suffered a prior conviction within the meaning of Penal Code sections 667, subdivisions (a) and (b) to (i) and 1170.12.   Defendant waived his right to a jury trial on the prior conviction allegations, and these allegations were bifurcated.

The defense offered at trial was that defendant was not Phan's assailant.   He presented evidence that he had been incapacitated by the wounds he suffered in the February 6 shooting and a previous injury to his right hand.   Defendant claimed that he had been home all day on February 12 before going out to dinner with his wife at 9:00 p.m.   He testified that he had never owned or fired a gun, had never been to the Nang Cafe and did not even know where it was located.   In his closing argument, defendant's trial counsel argued that the perpetrator of these offenses had not committed attempted murder because there was inadequate proof of malice or the specific intent to kill.   He maintained that the shooter had committed no more than assault with a firearm.

The jury returned guilty verdicts on all counts and found the personal use allegations true.   Defendant admitted the prior conviction allegations.   Defendant was committed to state prison for two consecutive indeterminate life terms and a consecutive nine-year determinate term.   He filed a timely notice of appeal.

DISCUSSION

A. CALJIC 8.72

 Defendant contends that the trial court prejudicially erred in failing to give CALJIC 8.72 sua sponte.¹  CALJIC 8.72 states “[i]f you are convinced beyond a reasonable doubt and unanimously agree that the killing was unlawful, but you unanimously agree that you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of that doubt and find it to be manslaughter rather than murder.”   Defendant points out that the Second District Court of Appeal stated in People v. Aikin (1971) 19 Cal.App.3d 685, 97 Cal.Rptr. 251 that such an instruction should be given sua sponte whenever instructions are given on a lesser included offense.   He asserts that the omission of this instruction was prejudicial because there was “considerable doubt” about both the identity of Phan's assailant and whether the perpetrator harbored the specific intent to kill.²  The Attorney General argues that the omission of this instruction either was not error or was harmless.   We agree with the Attorney General on this point.

In Aikin, the Second District found that there had been numerous instructional errors and reversed.   One of the errors which the court held had contributed to the cumulative prejudice was the trial court's failure to instruct the jurors sua sponte that “if they had a reasonable doubt whether the offense was manslaughter or murder in the second degree their verdict should be for manslaughter.”  (People v. Aikin, supra, 19 Cal.App.3d at p. 703, 97 Cal.Rptr. 251.)   Relying on Aikin, Division One of the First District concluded in People v. Reeves (1981) 123 Cal.App.3d 65, 176 Cal.Rptr. 182 that a trial court's failure to give such an instruction was erroneous but harmless under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243 because the trial court's other instructions, including CALJIC 17.10, had adequately informed the jury that it had “the option of convicting appellant of only the lesser offense if it entertained such a doubt.”  (People v. Reeves, supra, 123 Cal.App.3d at p. 70, 176 Cal.Rptr. 182.)   Subsequently, Division Four of the First District “decline[d] to adhere” to Reeves and held that a trial court's failure to give such an instruction upon defendant's request was not erroneous because the trial court had instructed the jury pursuant to CALJIC 17.10.  (People v. St. Germain (1982) 138 Cal.App.3d 507, 521-522, fn. 9, 187 Cal.Rptr. 915.) In Division Four's view, the requested instruction was correctly refused because it would have been “redundant” since “[i]t and CALJIC No. 17.10 both tell the jury that if they find that the prosecution has not proven the elements of robbery (the greater offense) beyond a reasonable doubt then the defendant may be found guilty of the lesser offense (petty theft) if that offense has been proven beyond a reasonable doubt.”   (Ibid.)

In determining whether or not instructional error occurred, we must first consider whether there is a “reasonable likelihood” that the jury instructions as a whole failed to adequately inform the jury that it should return an attempted voluntary manslaughter verdict if it had a reasonable doubt about the existence of malice yet agreed beyond a reasonable doubt that defendant had committed attempted voluntary manslaughter.  (Boyde v. California (1990) 494 U.S. 370, 381, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316;  People v. Kelly (1992) 1 Cal.4th 495, 525-526, 3 Cal.Rptr.2d 677, 822 P.2d 385.)   Here, the trial court instructed the jury with CALJIC 17.10.   This instruction told the jury “[i]f you are not satisfied beyond a reasonable doubt the defendant is guilty of the crime of which he is accused in Count 1 [attempted murder] and you unanimously so find, you may convict him of any lesser crime provided you are satisfied beyond a reasonable doubt that he is guilty of that crime.  [¶] ․ [¶] The crime of Attempted Voluntary Manslaughter, in violation of 664/192(a) of the Penal Code, a felony, is a lesser crime included in the crime of attempted murder as charged in Count 1.” “[Y]ou are to determine whether the defendant is guilty or not guilty of the crime charged or of any lesser crime.   In doing so, you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it.   You may find it to be productive to consider and reach tentative conclusions on all charges and lesser crimes before reaching any final verdicts.”   The court also informed the jury that “[t]o establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel.”

These instructions adequately informed the jury that, if it unanimously agreed on all of the elements of attempted voluntary manslaughter and it had a reasonable doubt regarding the existence of malice, it must find defendant guilty of attempted voluntary manslaughter.   Defendant maintains that CALJIC 17.10 does not adequately inform the jury of its options because it only tells the jury “how to proceed if it uses a ‘top down’ method of reasoning, and examines the issue of attempted manslaughter only after deciding unanimously that the evidence does not prove attempted murder beyond a reasonable doubt.”   He asserts that CALJIC 8.72 would have told the jury “how to proceed if it looks at the charges as a whole․”   The trial court's actual instructions to the jury in this case did not suffer from the malady which defendant claims CALJIC 8.72 would cure.   The jury was specifically told that it had “discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it” and that it could “consider and reach tentative conclusions on all charges and lesser crimes before reaching any final verdicts.”   In addition, we believe that the court's instruction that the prosecution had the burden of proving beyond a reasonable doubt “that a killing is murder and not manslaughter” by proving the nonexistence of provocation clearly apprised the jury that it could consider both the greater and the lesser simultaneously.   We find no error in the trial court's instructions on this issue.³

B. REVISED VERSION OF CALJIC 2.90

The trial court instructed the jury with the revised version of CALJIC 2.90.⁴  Defendant claims that the omission of the term “moral certainty” from the revised version of CALJIC 2.90 resulted in a reasonable doubt instruction which was constitutionally deficient because it failed to specify the “degree of certainty” required for proof beyond a reasonable doubt.   We disagree.

 A trial court is not required to define “reasonable doubt” so long as the reasonable doubt “concept” is correctly conveyed to the jury.   (Victor v. Nebraska (1994) 511 U.S. 1, 5, 114 S.Ct. 1239, 1242, 127 L.Ed.2d 583.) The instruction herein only differed from the previous version of CALJIC 2.90 in that the references to “moral certainty” and “moral evidence” had been deleted.   The constitutionality of the previous version of CALJIC 2.90 was upheld by the California Supreme Court (People v. Jennings (1991) 53 Cal.3d 334, 385-386, 279 Cal.Rptr. 780, 807 P.2d 1009), and we are bound to respect that ruling.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   Defendant implicitly claims that the absence of the term “moral certainty” leaves the jury without a measure by which to judge whether it has been persuaded.   The problem with this argument is that “moral certainty” was eliminated from the instruction because this term was found to have “lost its historical meaning” and to pose a danger that a jury “would understand it to allow conviction on proof that does not meet the beyond a reasonable doubt standard.”  (Victor v. Nebraska, supra, 511 U.S. at p. 13, 114 S.Ct. at p. 1246;  People v. Freeman (1994) 8 Cal.4th 450, 504 and fn. 9, 34 Cal.Rptr.2d 558, 882 P.2d 249.) The use of the term “moral certainty” was found to add nothing to the jury's understanding of the concept of reasonable doubt since “[p]roof to a ‘moral certainty’ is an equivalent phrase with ‘beyond a reasonable doubt.’ ”  (Victor v. Nebraska, supra, 511 U.S. at p. 12, 114 S.Ct. at 1246, internal quotation marks and citation omitted;  People v. Freeman, supra, 8 Cal.4th at p. 504, 34 Cal.Rptr.2d 558, 882 P.2d 249.)   The elimination of a term which added nothing to the instruction but posed a danger of misleading the jury cannot possibly have rendered an otherwise lawful instruction unconstitutional.   We reject defendant's contention.

C. IMPOSITION OF TWO CONSECUTIVE LIFE TERMS

At the sentencing hearing, defendant's trial counsel noted that “the Jackson case” had been granted review by the California Supreme Court, and he objected to the “doubling” of the life term.⁵  The trial court said “if the Jackson case comes back with a different result requiring a single life sentence rather than two consecutive sentences, the Court would resentence.”   The court then imposed “two consecutive life terms” for the attempted murder with premeditation count.  “[W]ith respect to Count 1, taking literally the language of the three-strikes law, the Court, even on an indeterminate term, must double the term.   The term of imprisonment provided by the statute for attempted willful, deliberate and premeditated murder is a life term.   Under the three-strikes law, that would have to be doubled, which means an imposition of two life terms, and that is the judgment of the Court.  [¶] So that the total term to be served by the defendant will be two consecutive life terms, plus nine years․” ⁶

 Penal Code section 667, subdivision (e)(1) and its identical counterpart Penal Code section 1170.12, subdivision (c)(1) provide that “[i]f a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”  (Pen.Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1), emphasis added.)   The punishment for attempted murder with premeditation is “imprisonment in the state prison for life with the possibility of parole.”  (Pen.Code, § 664, subd. (a).)  Defendant argues that “[t]he law provides only for a doubling of a determinate or minimum term, and does not apply to an indeterminate sentence with no minimum term.”   The Attorney General argues that defendant's contention, if successful, “would thwart the unambiguous intent of the Legislature and the voters to punish violent recidivists more harshly.”   He suggests that the statutory language was also intended to apply to indeterminate terms with no minimum term.   The Attorney General urges us to hold that the seven-year period that a prisoner sentenced to an indeterminate life term without a minimum term is required to spend in prison before being eligible for parole under Penal Code section 3046 is the “minimum term” for defendant's offense because this seven-year period “appears to substitute for, and be analogous to[,]” a “minimum term.”

In construing the language of an initiative statute, “our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure.”  (In re Littlefield (1993) 5 Cal.4th 122, 130, 19 Cal.Rptr.2d 248, 851 P.2d 42.)  “Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute.   The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.”  (People v. King (1993) 5 Cal.4th 59, 69, 19 Cal.Rptr.2d 233, 851 P.2d 27, quotation marks and citation omitted.)   The intent underlying the enactment of Penal Code section 667, subdivision (e)(1) and 1170.12, subdivision (c)(1) was “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.”  (Pen.Code, § 667, subd. (b), emphasis added.)   Attempted murder with premeditation is a felony, and defendant had previously been convicted of a serious offense.   His prior and current offenses brought him within the sentencing provisions of Penal Code sections 667, subdivisions (b) to (i) and 1170.12.   The question is what effect these sentencing provisions should have on his sentence for attempted murder with premeditation.

Defendant's solution is that the sentencing provisions of Penal Code sections 667, subdivisions (b) to (i) and 1170.12 should have no effect on his sentence for attempted murder with premeditation.   The Attorney General asserts that a trial court must, without any express statutory authority, treat a crime with no minimum term as if it had a minimum term of seven years and double this seven-year term.   None of the alternatives are attractive.   We agree with the Attorney General that it would thwart the intent of the Legislature and the voters if we were to hold that Penal Code sections 667, subdivisions (b) to (i) and 1170.12 have no effect on defendant's sentence for a very violent offense even though the enactors of these statutes expressly stated that they intended for these statutes to “ensure” longer prison terms for those individuals, like defendant, who suffer a current felony conviction and have previously suffered a serious felony conviction.   Yet, we agree with defendant that the literal language of these statutes does not describe the effect that these statutes are intended to have on an indeterminate term without a minimum term.

In our view, the drafters of these statutes made an unmistakable drafting error by failing to provide for the doubling of the minimum period before parole eligibility where the indeterminate life term has no “minimum term.”   The enactors of these statutes were demonstrably aware of Penal Code section 3046.   The Penal Code section 667, subdivision (e)(2)(A)(iii) calculation, which must be made in order to determine the appropriate minimum term for a defendant with two prior serious felony convictions, describes “[t]he term” as “including ․ any period prescribed by Section 190 or 3046.”  (Pen.Code, §§ 667, subd. (e)(2)(A)(iii), 1170.12, subd. (c)(2)(A)(iii), emphasis added.)  Penal Code section 190 describes the “minimum terms” for several types of murder, and it also contains provisions mandating that certain murderers shall not be released on parole prior to their completion of the minimum term.   Notwithstanding the fact that the enactors were aware of Penal Code section 3046 and arguably aware of the distinction between a “minimum term” and the minimum “period” before parole eligibility, we are still convinced that the enactors intended to double the period of time spent in prison by an individual who commits a felony offense punishable by an indeterminate life term with no minimum term and has previously suffered a serious felony conviction.⁷

Any other interpretation of these statutes would produce an absurd inconsistency.   An individual who commits attempted murder without premeditation and has suffered a prior serious felony conviction would be subject to a longer minimum period of time in prison than the individual who premeditated if we were to agree with defendant's interpretation of these statutes.   The normal punishment for attempted murder without premeditation is five, seven or nine years in state prison.   If the doubling provisions of Penal Code sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1) were applied to this term because the individual had a prior serious felony conviction, an attempted murderer who did not premeditate would receive a state prison term of ten, fourteen or eighteen years in state prison.   Since his or her credits would be limited to 15 percent of the term (Pen.Code, § 2933.1), the individual who did not premeditate would be required to serve no less than eight and one-half years in state prison.   If we were to accept defendant's argument, a defendant who did premeditate would be required to serve no less than seven years in state prison.   It is impossible to reconcile this result with the intent of the enactors of these statutes.

“We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.”  (People v. Jenkins (1995) 10 Cal.4th 234, 246, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)   No rational legislator or voter could have intended to impose potentially harsher penal consequences for a lesser included offense than for a greater offense.  (People v. King, supra, 5 Cal.4th at p. 69, 19 Cal.Rptr.2d 233, 851 P.2d 27.)   Yet this would be the result if we credited defendant's claim.   Consequently, we must adhere to the intent of the Legislature and the voters and interpret the statutory language to provide for the doubling of the seven-year minimum period for parole eligibility set forth in Penal Code section 3046.

Defendant maintains that the trial court “has no authority to alter the minimum parole ineligibility period” because “the minimum confinement period of section 3046 is not a matter of sentencing at all;  it is imposed by the Board of Prison Terms, not the court.”   While the Board of Prison Terms is responsible for granting or denying parole, this statutory language, as we construe it, would not stand alone as the only statutory language permitting trial courts to set the minimum parole ineligibility period.  Penal Code section 667.7, subdivision (a)(1) provides that “[a] person who served two prior separate prison terms shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 20 years, or the term determined by the court ․”  (Pen.Code, § 667.7, subd. (a)(1), emphasis added.)   Thus, where statutory authority exists, a trial court is authorized to set the minimum parole ineligibility period.   As we construe Penal Code sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1), in accord with the intent of the enactors of these statutes, to require a trial court to double the minimum parole ineligibility period under these circumstances, the trial court was authorized to double the minimum parole ineligibility period in this case.

Now that we have resolved the meaning of the statute and the result that should have followed in this case, we must address the trial court's actual sentence.   Although the prosecutor specifically asked the trial court to double the minimum parole ineligibility period, the trial court refused to do so.⁸  Instead, the court imposed two consecutive life terms.  (Pen.Code, § 3046.)   There is no need for us to remand this case to the trial court for resentencing, since the court's error was purely legal and may be corrected on appeal.   The trial court should have imposed a single life term, rather than two consecutive life terms, and ordered that defendant be ineligible for parole until he had served fourteen calendar years of his life term.   We modify the court's judgment in this particular.

DISPOSITION

The trial court's judgment is hereby modified to reflect that the sentence imposed on defendant was a single life term rather than two consecutive life terms.   The total term imposed is therefore a nine-year determinate term and a consecutive indeterminate life term.   The judgment shall also reflect that defendant shall be ineligible for parole until he has served 14 calendar years of his indeterminate life term.   The trial court shall prepare an amended abstract of judgment reflecting this modified judgment and forward a certified copy of this abstract to the Department of Corrections.   This modified judgment is affirmed.

I concur in the disposition.   I write separately because I do not believe Penal Code section 1170.12, subdivision (c)(1),¹ reflects “an unmistakable drafting error.”   That subdivision states:  “If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”  (See also § 667, subd. (e)(1).)

In issue is the meaning of the phrase “minimum term.”   Though this phrase is used in other sections of the Penal Code (e.g., §§ 190;  217.1;  667.51, subd. (d);  667.61, subd. (j);  667.71, subd. (b);  667.75), it is not defined in section 1170.12 or elsewhere.   The issue arises here because defendant was convicted of one count of attempted murder with premeditation (§§ 187, 189, 664), which is “punishable by imprisonment in the state prison for life with the possibility of parole.” (§ 664, subd. (a).)  Section 664, subdivision (a) thus provides for an indeterminate term for this crime without itself providing a minimum term.

Since section 1170.12 was enacted by initiative, our primary objective in interpreting it is to ascertain the intent of the voters.  (People v. Dotson (1997) 16 Cal.4th 547, 554, 66 Cal.Rptr.2d 423, 941 P.2d 56.)  “[T]he voters' stated intent in enacting section 1170.12 ․ was ‘to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.’  (Ballot Pamp., text of Prop. 184, Gen. Elec. (Nov. 8, 1994) p. 64;  § 667, subd. (b).)”  (Id. at p. 556, 66 Cal.Rptr.2d 423, 941 P.2d 56.)

I do not believe that the voters intended to exempt defendants convicted of attempted willful, deliberate and premeditated murder from the term-doubling provisions of section 1170.12.  Section 3046 lends support to my position.  Section 3046 states:  “No prisoner imprisoned under a life sentence may be paroled until he or she has served at least seven calendar years or has served a term as established pursuant to any other section of law that establishes a minimum period of confinement under a life sentence before eligibility for parole, whichever is greater.”  (Italics added.)   In my view, the seven-year “minimum period of confinement” of section 3046 is essentially the “minimum term” for defendants convicted of attempted willful, deliberate and premeditated murder.

Harmonization of these statutes (§§ 1170.12, 187, 189, 664, 3046) comports with familiar principles of statutory construction.   As this court has previously recognized, “ ‘[O]ur first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law.   In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.   A construction making some words surplusage is to be avoided.   The words of the statute must be construed in context, keeping in mind the statutory purpose․’  [Citation.]  ‘[S]tatutes must be construed so as to give a reasonable and common-sense construction consistent with the apparent purpose and intention of the lawmakers-a construction that is practical rather than technical, and will lead to wise policy rather than mischief or absurdity.  [Citation.]’  [Citation.]”   (People v. Turner (1993) 15 Cal.App.4th 1690, 1696, 19 Cal.Rptr.2d 736.)

I do not believe that the voters could have intended “minimum term” in section 1170.12, subdivision (c)(1), as a term of art, limiting the term-doubling provisions only to those statutes with express minimum terms.   It is more likely the voters intended this phrase to have a broader meaning, broad enough to include the “minimum period” contemplated by section 664, subdivision (a) and section 3046.

Thus, I would conclude, as did the majority, that section 1170.12, subdivision (c)(1) required the trial court to double the seven-year minimum provided in section 3046.   Because section 1170.12, subdivision (c)(1) contains no provision for doubling the indeterminate term, I agree with the majority that the trial court erred in imposing two consecutive indeterminate life terms.

FOOTNOTES

1.   Defendant did not request that the jury be instructed with CALJIC 8.72.

2.   This is a curious prejudice argument since a doubt about identity or the existence of the specific intent to kill could not have led the jury to convict defendant of the lesser included offense of attempted voluntary manslaughter.   The distinction between the greater and the lesser offenses in this case was solely the issue of malice.   Both the greater and the lesser required the jury to find beyond a reasonable doubt on the issues of identity and specific intent to kill.

3.   If we had concluded that the court erred in omitting this instruction, we would find the error harmless.   Defendant does not even argue on appeal that there was a substantial question about the existence of malice.   The only possible basis for an attempted voluntary manslaughter verdict would have been provocation arising out of the fact that defendant had been the victim of a shooting associated with his victim's car.   Defendant testified to the contrary, and his trial counsel did not argue this theory at trial.   Defendant was shot six days prior to the shooting of Phan. In light of the instructions and the evidence, it is not reasonably probable that the jury would have returned an attempted voluntary manslaughter verdict if only CALJIC 8.72 had been given.

4.   “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.   This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.  [¶] Reasonable doubt is defined as follows:  It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt.   It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”

5.   People v. Jackson (D022042) was a January 17, 1996, Court of Appeal decision dealing with this issue.   In Jackson, the Attorney General had conceded on appeal that the trial court had erred in sentencing the defendant to “two consecutive life terms” for an attempted murder with premeditation count.   The Court of Appeal agreed with the Attorney General that the trial court had “misapplied” Penal Code section 667, subdivision (e)(1).   Without any discussion or analysis, the Court of Appeal, citing Penal Code section 3046, stated that “[t]he minimum term [for attempted murder with premeditation] is seven years” and modified the judgment to “a 14-years-to-life term.”   It ordered the judgment modified to state that “the defendant is sentenced to a life term and shall be ineligible for parole until he has served at least 14 calendar years.”   The California Supreme Court granted review of Jacksonon March 28, 1996, (S051863)but, on October 23, 1996, it dismissed review and remanded the case to the Court of Appeal.   In February 1997, the California Supreme Court again accepted for review a case raising this issue.   That case, People v. Jefferson, remains on the California Supreme Court's docket and has not yet been argued.  (Jefferson (1996) 50 Cal.App.4th 958, review granted.)   The Court of Appeal in Jefferson had held that the doubling provision of Penal Code sections 667, subdivision (e)(1) was inapplicable to the indeterminate life term which follows from an attempted murder with premeditation conviction.  (Jefferson, supra, at p. 963, 58 Cal.Rptr.2d 252.)

6.   The nine-year determinate term arose from the four-year firearm use enhancement attached to the attempted murder count and the five-year term for the Penal Code section 667, subdivision (a) enhancement.   The trial court's oral pronouncement of judgment directed that the sentence for one of the two assault counts was to run concurrent to the life terms, because it had arisen from the same set of operative facts as the attempted murder count, and the sentence for the other assault count was to be stayed pursuant to Penal Code section 654.   However, the original abstract of judgment recited that the life term for the attempted murder count was “to run consecutive to 10yrs imposed in Cnts. 2 & 3” for a total term of “Life plus 19 yrs,” and the abstract simply stated that the court had imposed “[d]ouble base on Life” but did not mention multiple life terms.   The abstract did reflect that the sentence imposed for one of the two assault counts would run concurrent to the life term, but it did not indicate that the sentence imposed for the other assault count was to be stayed pursuant to Penal Code section 654.Defendant's appellate counsel wrote to the trial court in March 1997 pointing out that the original abstract did not accurately record the court's judgment.   He asked the court to correct this “clerical error” by issuing an amended abstract correctly reciting that the court had imposed a “doubled” life term plus nine years.   In response to this letter, the trial court filed an amended abstract of judgment in April 1997.   This abstract is also flawed.   While it correctly shows that the term imposed for one of the assault counts is to run concurrent to the life term, the term imposed for the other assault count is stayed pursuant to Penal Code section 654 and the life term is “doubled,” the amended abstract inexplicably states “TOTAL TERM CDC = 14 YEARS TO LIFE.”Since the trial court had no authority to modify the judgment in April 1997, its amended abstract was erroneously filed.   However, because we modify the judgment and order the court to prepare an amended abstract of judgment reflecting defendant's actual sentence, we need not take any other action to correct the trial court's error.

7.   Our colleague concludes in her concurring opinion that the voters did not use the words “minimum term” as “a term of art” but instead intended these words to “have a broader meaning” which included the minimum period prescribed by Penal Code section 3046.   While we agree with our colleague that the voters did not intend to exempt defendants convicted of attempted premeditated murder from the term-doubling provisions, we do not agree that the voters intended to broaden the meaning of the words “minimum term” or that the minimum “period” prescribed by Penal Code section 3046 is “essentially” a “minimum term.”A minimum term functions much differently from a minimum period of confinement.   Because a prisoner may satisfy the minimum “term” with a combination of time spent in prison and custody credit, the minimum term is not equivalent to the period of time that a convict must actually spend in prison before being eligible for parole.   In contrast, the minimum period of confinement can only be satisfied by time spent in prison.   The Legislature and the voters expressly recognized the distinction between a minimum term and the minimum period set forth in Penal Code section 3046 when they specifically referred to the Penal Code section 3046 “minimum period” as a “period” rather than as a “term” in the text of Penal Code sections 667, subdivision (e)(2)(A)(iii) and 1170.12, subdivision (c)(2)(A)(iii).   This express recognition of the distinction between a minimum term and a minimum period of confinement precludes us from holding, as our colleague would, that the voters intended to give a new and broader meaning to the words “minimum term” when they used those words in Penal Code sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1).

8.   Following the court's imposition of judgment, the prosecutor engaged the court in a colloquy about the meaning of its sentence.  “MR. CAHAN [the prosecutor]:  ․ In regards to the consecutive life terms that the Court has ordered, does the Court mean the 14 to life?   Is that what the-just for my understanding.   My understanding is that the determinate term of nine years is to be served first and then the doubled life term of 14 to life.   Is that what the Court is saying?  [¶] THE COURT:  What is the seven that you're talking about?  [¶] MR. CAHAN:  The seven would be on-the attempted murder premeditated ordinarily is seven to life where the defendant has to serve seven calendar years before the life term.   It's that aspect that is doubled by the strike law making it-after the defendant does the nine years that the Court has ordered, the defendant has to do 14 calendar years to life before parole can be considered.  [¶] THE COURT:  There is nothing in the three-strikes law that deals with eligibility for parole except on a three-strike case, so I'll not mention anything at all.   It's up to the prison board and parole to determine when the defendant comes up for parole.  [¶] MR. CAHAN:  Yes, Your Honor.  [¶] THE COURT:  At the time he does come up for parole, the board will then consider that he has a second life term to serve.   I take it they'll take that into consideration.  [¶] With respect to the Jackson case, if the State Supreme Court does reverse the judgment of the court of appeal, in that case the Court will consider resentencing the defendant.”

1.   All further statutory references are to the Penal Code.

MIHARA, Associate Justice.

COTTLE, P.J., concurs.