P. v. Palacios CA1/2 filed
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Filed 3/17/11 P. v. Palacios CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A125266 v. (San Francisco County Super. Ct. No. 203337) EDWIN PALACIOS, Defendant and Appellant. I. INTRODUCTION Edwin Palacios was convicted of rape by force or violence or threat of great bodily injury (Pen. Code, § 261, subd. (a)(2)).1 The jury also found true an allegation that Palacios used a dangerous weapon, a knife, to commit this offense (§ 667.61, subd. (e)(4)). Palacios was sentenced to a term of life in state prison, with a requirement that he serve a minimum of 15 years before he can be paroled. On appeal, Palacios contends he was denied his constitutional right to the effective assistance of counsel at trial because his trial attorney failed to offer evidence favorable to the defense. He also asks this court to correct a clerical error in the abstract of judgment, and to dismiss an attempted murder charge against him with respect to which the jury failed to reach a verdict. We affirm the judgment but remand this case to the trial court so that it can determine whether to dismiss the attempted murder charge and correct the abstract of judgment if need be. 1 Undesignated statutory references are to the Penal Code. 1 II. A. STATEMENT OF FACTS Procedural Background On October 31, 2005, Palacios was charged by felony complaint with committing numerous offenses against multiple unrelated victims, all of whom were working as prostitutes when the alleged crimes were committed. Palacios was charged with the rape of M.R., the attempted murder of S.R., and with committing rape and other offenses against I.M. An information charging these same offenses was filed November 6, 2007. Trial commenced February 18, 2009, before the Honorable Lillian K. Sing. During jury selection, an out-of-state subpoena compelling the attendance of I.M. at trial was quashed and, as a consequence, the counts involving that alleged victim were dismissed and omitted from the first amended information which was filed March 5, 2009. On March 26, 2009, the jury found Palacios guilty of rape. On April 1, the jury announced that it could not reach a unanimous verdict on the attempted murder charge and the trial court declared a mistrial as to that count. B. Trial Evidence Regarding Count I: M.R. 1. The charged offense On April 13, 1996, M.R. was working as a prostitute in the Tenderloin district in San Francisco. At around 4:00 p.m., Palacios pulled his car over and told M. he was looking for a half and half. M. understood that Palacios was asking for a blow job and sex, requested a hundred, and Palacios agreed. M. got into the front passenger seat of the car and directed Palacios to a place where they could park, which was approximately 10 minutes away. Palacios parked the car, and then paid M. M. put a condom on Palacios and then proceeded to orally copulate him for three to four minutes. M. then took one leg out of her pants and leaned back in her seat, at which point she heard a noise that sounded like a shank. She asked Palacios what he was doing and said please don t kill me. M. s voice rose and Palacios backhanded her, hitting her on the right side of her upper lip, and told her to be quiet. Then Palacios climbed on top of her, and M. saw the silver, 2 pointy sharp knife in his hand. The smooth blade was four inches long. M. asked Palacios why he was doing this and told him she just had a baby because she was afraid he was going to kill her. Palacios put the knife to M. s neck so she could feel the sharp tip against her throat. As he tried to penetrate her vagina with his penis, M. said please stop, don t do this. Palacios told M. to be quiet and continued to hold the knife to her throat while he penetrated her and while she told him to stop. M. tried to take the knife, but then saw blood everywhere and felt her hands kind of stinging and then just went numb. At that point, M. gave up and just lay there until Palacios finished having sexual intercourse. When he was finished, Palacios reached into M. s bra, where she had placed the $100 he had previously given to her. He took all of her money, the $100 and an additional $600 that she had made earlier that night. He moved back to the driver s seat and told M. that she could leave if she did not yell. M. got out of the car, wearing only her bra and shirt, and asked if she could take her purse, but Palacios said no. As she ran away, she looked at the license plate and tried to remember the last three numbers.2 M. ran to Geary Street where she used a pay phone to call for help. When police arrived, she told them she was a working girl and that she had been raped. M. was taken to San Francisco General Hospital for treatment and a rape test. A report of the examination reflected that M. had multiple lacerations on both of her hands and her lip was swollen. There was an abrasion at the posterior fourchette of her vagina and the vaginal entrance was red and tender. The report also stated that M. was a prostitute, that she had consensual oral sex with her assailant but that he put a knife to her throat when his penis was in her vagina. While at the hospital, M. was interviewed by Inspector Tom Cleary from the Sexual Assault Detail of the San Francisco Police Department. The incident she 2 M. later told police that the license plate for the car Palacios was driving ended with 2 something 2. The parties stipulated at trial that, on May 19, 1996, Palacios was seen driving a brown four-door Toyota with the license plate 3NIF242. 3 described to Cleary was consistent with her testimony at trial. Cleary testified that M. reported that she saw the knife in Palacios s hand when he climbed on top of her, that he told her to be quiet and that she said don t kill me, I have a baby. M. also reported that Palacios inserted his penis in her vagina after he pulled the knife, and that he subsequently took her money. 2. Uncharged conduct Evidence of an incident involving Norma S. was admitted for the limited purpose of establishing that Palacios was disposed or inclined to commit rape. (See Evid. Code, § 1108.) On June 1, 1994, at around 1:45 a.m., Norma S. was working as a prostitute near Mason and Powell Streets in San Francisco when Palacios honked and waived her over to his car and asked how much she charged for oral sex. Norma told him it would cost $100 and he agreed to pay. Norma got in the front passenger seat of the old car and directed Palacios to a parking lot, where he parked near a wall, which prevented Norma from opening the passenger door. After Palacios paid Norma, she put a condom on him and orally copulated him for about five minutes. After he ejaculated, Norma said they were done and asked to be taken back. Palacios responded that they were not done, and pulled a silver knife from the driver side door. The blade on the knife was approximately seven inches long. Norma asked Palacios what he was going to do and he said something to the effect that you are going to do what I ask you to do or else I will kill you. He held the knife near her face, either at her neck or chest and told her to turn around. Norma turned around in her seat and Palacios climbed over to the passenger side of the car and forced himself on her from behind, penetrating her vagina with his penis without her consent. He threatened to do [her] anally and kept saying he was going to kill her. She felt the knife on her neck the whole time. After around 10 minutes, Palacios finished, and then got back in the driver seat. Norma testified at trial that she probably asked if she could leave but his reaction was that he was ready to hurt her. 4 A car then pulled into the parking lot and Norma saw her only chance to get out alive. She rolled down her window, but was also struggling to protect herself against Palacios who was stabbing at her face and chest with the knife. She pushed herself out the car window. Palacios, who appeared to notice the other car, drove away, dragging Norma until she fell to the concrete. San Francisco Police Officer Kimberly Koltzoff and her partner responded to the report of Norma s stabbing. Koltzoff observed that Norma had lacerations on her hands and legs and that there was a lot of blood on her. Norma reported that she had consensual oral sex with Palacios and when he said he wanted to have vaginal intercourse, she told him it would cost more. Although Norma refused to share many of the details of the incident, she did report that Palacios forced his penis into her vagina. Officer Koltzoff testified at trial that the incident Norma described was a sexual assault. Norma was taken to the hospital, but refused to have a sexual assault exam. C. Trial Evidence Regarding Count 2: S.R.3 1. The charged offense On May 18, 1996, S.R. was working as a prostitute in the Tenderloin when Palacios approached her in a car and agreed to pay her $80 for sex. S. directed Palacios to a secluded area near a church. After the two had sex, S. got out of the car to urinate. She felt a sharp object on the back of her neck. Palacios told S. to be quiet or he would kill her and then forced her to the ground. He took the money he had paid her and threatened to kill her. He asked S. for the rest of her money but she said she did not have any more. Palacios hit and stabbed S. over and over again and then ran to his car and drove away. S. made her way to a street, where a passing driver stopped and brought her to the hospital, where she had to have emergency surgery. S. sustained multiple serious stab 3 The issues on appeal do not require a detailed statement of the facts pertaining to the attempted murder charge. 5 wounds, some of which were life-threatening, to various parts of her body, including her chest, back, abdomen, right kidney and left hand. The day after S. was attacked, investigators recovered a condom from the crime scene which produced a DNA sample. In May 2005, a cold case hit identified Palacios as a suspect in S. s attack. DNA testing identified Palacios as a match to the DNA sample recovered from the condom. 2. Uncharged conduct Evidence of an incident involving Jenny D. was admitted for the limited purpose of establishing identity, intent, or common plan or scheme with respect to the attempted murder charge. (See Evid. Code, § 1101.) On January 8, 1997, at around 8:00 p.m., Jenny D. was working as a prostitute in the Tenderloin area of San Francisco. Palacios approached her in a vehicle. Jenny got in the passenger side of the car and agreed to give Palacios oral sex for $60. While Jenny was performing that act, Palacios went limp and then said that he wanted to have sexual intercourse instead. Jenny responded that it would only cost $40 more. Palacios agreed. While the two were having intercourse, Palacios began hitting Jenny over and over again in the face. Jenny thought he was punching her with his fist and raised both hands to protect herself. Then she realized that Palacios had an object like a screwdriver in his hand. He used it to hit her arms and chest and ribs as he said words to the effect that I am going to kill you and you are a dirty bitch. At some point, Palacios pulled Jenny out of the car and began to drag her by her hair. She managed to free herself from Palacios and ran inside a nearby apartment and fell to the ground. Palacios followed her and kicked and hit her until she got up and ran up some stairs and found a resident who let her in his apartment. Jenny s injuries included multiple stab wounds on her face and the back of her head, swollen eyes, and a fractured right arm. D. Defense Case Palacios did not present any evidence. In closing argument, defense counsel took the position that the prosecution proved that Palacios committed many crimes, but not the 6 charged offenses. The defense theory was that the prosecution established a pattern of behavior in which Palacios had consensual sex with prostitutes and then took out a knife and took their money. But that they failed to establish that Palacios raped M. or attempted to murder S. With regard to the rape charge, defense counsel attempted to persuade the jury that Norma s testimony was crucial to the prosecution s case. He argued that two of the four prostitutes who testified admitted they were not raped and, therefore, the prosecution needed Norma to corroborate M. s claim that Palacios raped her. Defense counsel then argued that Norma s testimony did not even pass the smell test. He pointed out that, at the time of that incident, Norma refused to share the details with the police and refused to take a rape test, and he argued that her whole story just did not make sense. Then, defense counsel attempted to discredit M. s testimony by pointing out perceived inconsistencies in her story, and arguing that she claimed she was raped so she would get more attention from the police and because she was afraid her pimp would be angry that she had been robbed. After reviewing the evidence pertaining to S., and attempting to show that Palacios did not have the intent to kill, defense counsel concluded with the following statement: Again, as I told you in my opening statement and throughout every time I got up and spoke to you, he did a lot of terrible things. He should be held accountable for what he did. But he never raped M. And he never tried to kill [S.]. And if he did, he certainly didn t do it with premeditation and deliberation. III. A. DISCUSSION The Right to Effective Assistance of Counsel 1. Background and issue presented Prior to trial, the prosecution gave Palacios notice of its intention to introduce evidence of the uncharged incident involving Norma S., pursuant to Evidence Code, section 1108 (section 1108). Palacios filed an in-limine motion to exclude this evidence arguing, among other things, that the incident did not qualify as a sexual offense. 7 To support this argument, the defense provided the following factual information: Palacios was first charged with crimes against Norma in a 1997 complaint accusing him of rape, robbery and assault with a deadly weapon. However, because Palacios was a minor in 1994 when the incident occurred, the complaint was dismissed and a juvenile petition was filed. Thereafter, a hearing was conducted pursuant to Welfare and Institutions Code section 707 to determine whether Palacios could be charged as an adult. After that hearing, a new complaint was filed against Palacios, pursuant to which he was charged as an adult with kidnapping, assault with a deadly weapon, and second degree robbery, but not rape. Palacios pled guilty to the charged offenses and was sentenced to state prison for four years. At the hearing on in-limine motions, defense counsel argued that the decision not to re-file a rape charge against Palacios was tantamount to a determination that there was insufficient evidence to prove rape and, therefore, the prosecutor in this case should be estopped from claiming that Palacios committed a sexual offense against Norma. The prosecutor disagreed with defense counsel s assessment. He pointed out that section 1108 applies to previous sexual conduct, not sex convictions or sex charges. He argued that the charging decisions made in 1997 were almost irrelevant and that the court s determination as to the admissibility of the Norma evidence should be based on Norma s testimony in the Evidence Code section 402 hearing that was conducted in this case. The trial court agreed with the prosecutor: Well, in terms of Norma S., this 402 hearing helped the court to determine whether or not the previous conduct was sexual conduct as defined by 1108. And after hearing the evidence, I find that what happened to Norma S. was such a conduct, sexual conduct. Even though . . . the defendant was not charged previously. On appeal, Palacios contends that, once the trial court concluded that Palacios s conduct toward Norma constituted sexual conduct, his defense counsel should have moved to compel the introduction of evidence at trial that the prosecution in Norma s case elected not to re-file the rape charge and that Palacios was sentenced to a four-year prison term for convictions relating to that incident. Palacios contends this evidence was 8 unquestionably beneficial to the defense because it undermined Norma s credibility with respect to her rape claim and established that Palacios had already been punished for what he did to Norma. 1. Legal Principles Both the federal and California Constitutions guarantee the right to effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) Palacios carries the burden of rebutting, by a preponderance of the evidence, a presumption that he received effective assistance. (People v. Garrison (1989) 47 Cal.3d 746, 788.) The claim of ineffective assistance of counsel involves two components: (1) defendant must show that counsel s performance was deficient, and (2) defendant must establish prejudice. (Id. at p. 786; Ledesma, supra, 43 Cal.3d 171.) To be deficient, counsel s performance must have fallen below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.] (Ledesma, supra, 43 Cal.3d at p. 216.) In applying this prong of the test, courts must exercise deferential scrutiny so as to avoid the dangers of second-guessing. (Ibid.) Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates that there could be no rational tactical purpose for counsel s omissions. (People v. Lucas (1995) 12 Cal.4th 415, 442; see also People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Mitcham (1992) 1 Cal.4th 1027, 1058.) In other words, to establish deficient performance, [i]t is not sufficient to allege merely that the attorney s tactics were poor, or that the case might have been handled more effectively. [Citations.] [¶] Rather, the defendant must affirmatively show that the omissions of defense involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Floyd (1970) 1 Cal.3d 694, 709, overruled on another ground in People v. Wheeler (1978) 22 Cal.3d 258.) The reviewing court will defer to and will not second-guess trial counsel s tactics and strategy. (People v. Frye (1998) 18 Cal.4th 894, 979, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390.) 9 Further, except in circumstances not here relevant, prejudice must be affirmatively proved. [T]o be entitled to reversal of a judgment on grounds that counsel did not provide constitutionally adequate assistance, the petitioner must carry his burden of proving prejudice as a demonstrable reality, not simply speculation as to the effect of the errors or omissions of counsel. (People v. Williams (1988) 44 Cal.3d 883, 937.) The defendant must show that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ledesma, supra, 43 Cal.3d at pp. 217-218.) 3. Analysis As noted above, Palacios contends that his trial counsel performed deficiently by failing to offer evidence that the prosecutor in Norma s case dropped the rape charge and that Palacios was sentenced to a four-year prison term for the crimes he committed against Norma. We will separately address these two distinct pieces of evidence. Palacios has not established that his trial counsel performed deficiently by failing to make a motion to introduce evidence about the dropped rape charge in Norma s case. Palacios mistakenly assumes that evidence was admissible under People v. Mullens (2004) 119 Cal.App.4th 648. Mullens was a sex offense case in which the trial court admitted evidence of two uncharged sex offenses, but excluded evidence that the defendant was acquitted of one of those uncharged offenses. The Mullens court held that [i]n a sex offense prosecution in which the trial court has admitted Evidence Code section 1108 propensity evidence that the defendant has committed an uncharged sex offense, it is error to exclude admission of evidence that the defendant has been acquitted of that offense, and such error is reversible if it is prejudicial under the Watson harmless error test. (Mullens, supra, 119 Cal.App.4th at p. 652.) The Mullens court based its holding on the Griffin rule, which was first announced by our Supreme Court in People v. Griffin (1967) 66 Cal.2d 459, 465 (Griffin). There the defendant was convicted of murdering a woman after attempting to rape her. The Griffin court held that evidence the defendant had attempted to rape a 10 different woman had been properly admitted at trial but that the trial court erred by excluding evidence that the defendant had been acquitted of the uncharged rape. (Id. at p. 465.) The court acknowledged there was contrary authority, but found that the better rule allows proof of an acquittal to weaken and rebut the prosecution s evidence of the other crime. (Ibid.) It reasoned that this rule was fair to both the prosecution and the defense by assisting the jury in its assessment of the significance of the evidence of another crime with the knowledge that at another time and place a duly constituted tribunal charged with the very issue of determining defendant s guilt or innocence of the other crime concluded that he was not guilty. (Id. at p. 466.) The court also reasoned that it should not depart from the rule that a properly authenticated acquittal is admissible to rebut prosecution evidence of guilt of another crime. (Ibid.) In contrast to both Griffin and Mullens, Palacios was not acquitted of rape in Norma s case. Furthermore, Palacios offers no sound theory for extending the Griffin rule to a situation like this one. The evidence regarding what happened to Norma had not been previously presented to a trier of fact and, thus, there was no prior determination regarding the defendant s guilt or innocence of the uncharged crime which would have assisted the jury here. More importantly, admitting such evidence would have confused and distracted the jury by inviting them to speculate as to why the rape charge was dropped. Palacios takes the position that this evidence was so favorable to the defense that there could be no legitimate reason for a defense attorney to not at least attempt to convey this information to the jury. He reasons that the decision to drop the rape charge was exonerating evidence which proved that the state questioned Norma s credibility and that it would most likely have led the jury in this case to conclude that Palacios did not rape Norma. We strongly disagree with this theory. The evidence regarding the dropped rape charge is inherently ambiguous and was potentially extremely harmful to the defense. If this fact was considered in light of testimony about what actually happened to Norma, the jury could well have concluded that Palacios successfully avoided a rape conviction in Norma s case by choosing a 11 prostitute as his victim and that it was their job to make sure that did not happen again. Furthermore, if the jury was fully informed about the details of the disposition in Norma s case, as Palacios now argues should have been the case, they may well have concluded that the rape charge was dropped as part of a plea deal which allowed Palacios to escape punishment for raping a prostitute. Therefore, contrary to Palacios s claim on appeal, there was a sound strategic reason not to attempt to introduce this evidence to the jury. Nor are we persuaded that defense counsel performed deficiently by failing to introduce evidence that Palacios was convicted and punished for what he did to Norma. Admitting evidence that uncharged conduct resulted in a prior conviction can lessen the prejudicial impact of the uncharged conduct evidence by showing the jury that the defendant has already been punished for the prior conduct. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405-406; People v. Walker (2006) 139 Cal.App.4th 782, 806-807.) However, under these circumstances, telling the jury that Palacios received a four-year sentence for his crimes against Norma and that he avoided a rape conviction altogether may have led the jury to conclude that Palacios was not sufficiently punished for his prior conduct and, indeed, that his light penalty only encouraged him to return to his pattern of committing sexual offenses against prostitutes. Because Palacios has failed to establish deficient performance, we need not reach the issue of prejudice. Nevertheless, for the record, we reject Palacios s theory of prejudice. He takes the position that Norma s testimony was the linchpin of the prosecution s case with respect to the rape charge and that it is reasonably likely that if the jury had reason to doubt Norma, it would not have convicted Mr. Palacios of raping [M.]. Norma s testimony was not the linchpin of the rape case, notwithstanding defense counsel s efforts to portray it as such. Palacios does not dispute that the jury was properly instructed regarding the limited purpose of the Norma evidence and that Norma s testimony, by itself, was not sufficient to establish that Palacios raped M. Nor is there any dispute that the jury was properly instructed regarding the prosecutor s burden 12 of proving beyond a reasonable doubt that Palacios raped M. Palacios gives us no reason to doubt that the jury understood and followed these instructions. Furthermore, the notion that M. s credibility somehow hinged on Norma s credibility was nothing more than a defense theory. M. was the only percipient witness to the crime. Her uncontradicted testimony was thorough and corroborated by police reports and medical reports that were made at the time the crimes were committed. It is not at all likely that admitting evidence regarding the outcome of Norma s case would have changed the outcome of this case. B. The Attempted Murder Charge Palacios asks this court to modify the judgment to dismiss the attempted murder charge with respect to which the jury in this case failed to reach a unanimous verdict. He contends that the record establishes that the sentencing court intended to (but simply forgot to) dismiss the attempted murder charge. The record shows that the trial court judge was unavailable when Palacios was sentenced and that the sentencing court expressly acknowledged that it lacked familiarity with this case. At one point during the proceeding, the prosecutor moved to dismiss the remaining counts. The court responded by asking Is there a motion with respect to Count Two? The prosecutor responded Yes, dismiss 1385 in light of the sentence, and then proceeded to discuss other pending misdemeanor charges. The court ruled on the misdemeanor charges but did not address or rule on the motion to dismiss the attempted murder charge pursuant to section 1385. On appeal, Palacios contends that, because there is essentially no chance that the trial court would decline to dismiss the attempted murder charge on remand, this court should dismiss the count itself. The People appear to agree with Palacios on this point. We do not. Section 1385, subdivision (a), states in part: The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. 13 This statute does not require that a court dismiss a criminal action upon application of the district attorney; rather, the statutory language clearly indicates the creation of a discretionary power in the court. [Citation.] (People v. Levins (1978) 22 Cal.3d 620, 623-624.) Furthermore, as our Supreme Court recently confirmed, the statutory requirement of an order setting forth the reasons for the dismissal is mandatory. (People v. Bonnetta (2009) 46 Cal.4th 143, 146.) When the lower court fails to comply with this mandatory requirement, the case must be remanded to allow the court to correct the error or to reconsider its decision. (Ibid.) In this case, the sentencing court not only failed to issue an order setting forth reasons for dismissing the attempted murder charge, it never even ruled on the prosecutor s motion. Under these circumstances, the case must be remanded to the sentencing court. C. The Abstract of Judgment Palacios contends that the abstract of judgment should be corrected to clarify that his sentence for the rape conviction was imposed pursuant to the version of section 667.61, subdivision (b) (section 667.61(b)) that was in effect when the rape was committed in 1996. In 1996, former section 667.61(b) stated that a person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years except as provided in subdivision (j). (Historical and Statutory Notes, 49 West s Ann. Pen. Code (2010 ed.) foll. § 667.61, pp. 399-401.) Subdivision (j) of former section 667.61 provided for a limited reduction of the 15-year minimum term sentence imposed under subdivision (b) pursuant to Article 2.5 . . . of Chapter 7 of Title 1 of Part 3 of the Penal Code, which pertains to prison worktime credits. (Ibid.) Section 667.61(b) was amended in 2006 and now provides that any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 14 years to life. The provision for worktime credits previously set forth in former subdivision (j) was deleted from this statute. At the sentencing hearing in this case, the court stated: With respect to the mandatory minimum sentence required by law in Penal Code Section 667.61(h), for the violation of 261(a)(2), as charged in Count One, and pursuant to Penal Code section 667.61(b), the defendant is sentenced to state prison for life and must serve 15 years before being eligible for parole. Although the court used the language of the former statute, it did not expressly state that Palacios was sentenced under the version of section 667.61(b) that was in effect when the rape was committed. Furthermore, both the court s minute order, and the abstract of judgment reference section 667.61(b) and reflect a sentence of 15 years to life for the count one conviction. On appeal, Palacios asks this court to amend the abstract of judgment to conform to the language of the 1996 statute which provides for life in prison, with a minimum parole term of 15 years to avoid any confusion that might deprive him of his right to earn worktime credits. The People agree the matter should be clarified and ask that we remand this case with an order that the trial court clerk modify the abstract of judgment to clarify the matter. If, as the parties appear to believe, the sentence requires some written clarification, that is not a clerical correction but a substantive one which can and should be made by the trial court when this case is remanded. 15 IV. DISPOSITION The judgment is affirmed and this case is remanded to the trial court to rule on the motion to dismiss the attempted murder charge and to clarify Palacios s sentence if need be. _________________________ Haerle, J. We concur: _________________________ Kline, P.J. _________________________ Richman, J. 16
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