LANSING, Chief Judge.
Ernest Ray Watts appeals from his judgment of conviction for one count of aggravated battery on a law enforcement officer, one count of aggravated battery, and one count of aggravated assault. He asserts that the district court exceeded its authority in instructing the jury regarding lesser included offenses when neither party requested such instructions. He also challenges the sentence imposed for the aggravated assault count as illegal. We affirm in part, but remand to the district court for correction of the sentence for aggravated assault.
FACTS AND PROCEDURAL BACKGROUND
Twin Falls dispatch received a 911 call from a young girl asking for help because her parents were fighting. Police officers arrived at the Watts residence, where Beth Watts told them that her husband, Ernest Watts, had tried to rape her and that she wanted him out of the house. The officers tried to talk to Watts, who had closed himself in a bedroom. Watts responded by leaning out of the doorway and firing a shotgun at the officers. One officer was shot in the hand. As the police waited outside for backup, Watts shot at them through the window of the front door. Pellets from the shotgun struck an officer in the face. After several hours, Watts was eventually forced from the house and arrested.
At the time of trial, the charges against Watts were two counts of "aggravated battery on a law officer," I.C. §§ 18-306, -903, -907 and -915; one count of "aggravated assault on a law officer," I.C. §§ 18-306, -901, -905 and -915; and one count of "attempted
A. Lesser Included Offense Instructions
We first address Watts's argument that I.C. § 19-2132 prohibits a trial court from instructing the jury on lesser included offenses without a request from either party.
The interpretation of a statute begins with an examination of its literal words. In re Permit No. 36-7200, 121 Idaho 819, 823, 828 P.2d 848, 852 (1992); Ada County v. Gibson, 126 Idaho 854, 856, 893 P.2d 801, 803 (Ct.App.1995). Where statutory language is unambiguous, the clearly expressed intent of the legislature must be given effect, and there is no occasion for a court to consider rules of construction. Wolfe v. Farm Bureau Ins. Co., 128 Idaho 398, 404, 913 P.2d 1168, 1174 (1996); Ada County v. Gibson, supra.
The statute at issue here, I.C. § 19-2132, provides in pertinent part:
Watts's argument essentially asks this Court to interpret this statute to read, "The court shall instruct the jury with respect to a lesser included offense only if. . . ." We think it inappropriate to do so. The apparent intent of the legislature in drafting this statute was to impose an affirmative duty on trial courts to instruct on lesser included offenses when the two enumerated requirements are met.
We recognize that a defendant may, as a trial tactic, prefer that no lesser included offense instruction be given. The defendant may prefer to gamble that the jury will not be convinced to convict on the charged offense and will therefore be forced to acquit even though the evidence proves a lesser offense. However, we do not perceive that our statute gives the defendant a right to pursue this course, nor do we believe that justice would be served by such a rule. We find the reasoning of the California Supreme Court on this issue to be cogent:
Because the language of I.C. § 19-2132 does not restrain a trial court from instructing on lesser included offenses in the absence of a request from either party, and because we find the Barton analysis persuasive, we hold that the district court here possessed authority to instruct the jury on lesser included offenses even though neither party requested these instructions.
We turn now to the sentencing issues raised by the defendant. In his appellant's brief, Watts complains that he received an illegal sentence for aggravated battery in the original judgment of conviction. He points out that the judgment identifies Count II as "aggravated battery" and imposes a unified seventeen-year sentence, which exceeds the statutory maximum of fifteen years for aggravated battery. See I.C. § 18-908. However, Watts was not found guilty of aggravated battery on Count II but of aggravated battery on a law enforcement officer, and the original judgment was therefore in error in identifying the offense of which Watts was convicted. After Watts's appellant's brief was filed, the district court entered an amended judgment which corrected this error by identifying the Count II offense as "aggravated battery on a law enforcement officer." Whether this is deemed to be an independent offense or aggravated battery with a sentence enhancement under I.C. § 18-915(b), the sentence is within the statutory limit.
Watts has also pointed out an error in his sentence for Count III, aggravated assault, in the judgment of conviction, and this error was not corrected in the amended judgment. The amended judgment states that for Count III, aggravated assault, Watts is sentenced to "five (5) years in prison, five (5) years indeterminate . . ." This phrase is ambiguous in that it is unclear whether it means that Watts has a total sentence of five years, all of which is indeterminate, or a unified sentence of ten years, five of which is indeterminate. However, either of these interpretations is inconsistent with the sentence pronounced at the sentencing hearing.
When there is a disparity between the sentence imposed in open court and that expressed in the written judgment of conviction, it is the orally pronounced sentence that is effective. "[T]he only legally cognizable sentence in a criminal case is the `actual oral pronouncement in the presence of the defendant.'" State v. Wallace, 116 Idaho 930, 932, 782 P.2d 53, 55 (Ct.App.1989) (quoting United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir.1988)). See also State v. Luna, 118 Idaho 124, 126, 795 P.2d 18, 20 (Ct.App.1990). Because the amended judgment is incorrect in its expression of the sentence, this case must be remanded to the district court for correction of the amended judgment of conviction with respect to the sentence for Count III.
In summary, we conclude that the district court did not err in giving instructions on the offenses of aggravated battery and aggravated assault without request by either party, and we therefore affirm Watts's conviction. However, we remand the case for correction of the sentence stated in the amended judgment of conviction for Count III, aggravated assault.
PERRY and SCHWARTZMAN, JJ., concur.