Opinion
F069017
12-23-2016
THE PEOPLE, Plaintiff and Respondent, v. LADRAE ANDRELL BUFFORD, Defendant and Appellant.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F11907104)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Ladrae Andrell Bufford was convicted of assault with intent to commit rape during a burglary (Pen. Code, § 220, subd. (b); count 1), one count of lewd and lascivious conduct with force on A.G., a child under 14 years (§ 288, subd. (b)(1); count 2), one count of lewd and lascivious conduct on A.G., a child under 14 years (§ 288, subd. (a); count 3), and one count of lewd and lascivious conduct on D.S., a child under 14 years (§ 288, subd. (a); count 4). In addition, the jury found true the following enhancement allegations: counts 2 through 4 were committed against more than one victim (§ 667.61, subd. (e)(4)), and the victims were under 14 years (§ 667.61, subd. (j)(2)); counts 2 and 3 occurred during the commission of a first degree burglary (§ 667.61, subd. (d)(4)); and as to count 2, defendant was 18 years or older and the victim was under 14 years (§ 667.61, subd. (j)(1)).
All undefined statutory references are to the Penal Code unless otherwise indicated.
Defendant was sentenced to life without the possibility of parole for his convictions on counts 1 and 2, he received 25 years to life on count 3, and 15 years to life on count 4. The trial court ordered defendant's sentence on count 4 to be served consecutive to his sentence in count 2, and defendant's sentences on counts 1 and 3 were stayed pursuant to section 654. Among other fines and fees, the court imposed and suspended a $2,800 parole revocation restitution fine.
On appeal, defendant contends (1) his conviction for a lewd act pursuant to count 3 should be vacated because it is a lesser included offense of his conviction for a forcible lewd act on count 2, and (2) the parole revocation restitution fine imposed by the trial court was unauthorized and must be stricken. In addition, both the People and defendant assert that a sentencing error requires the abstract of judgment to be corrected. We agree the abstract of judgment must be amended, and the parole revocation restitution fine must be stricken. We otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
2011 Incident With Victim A.G.—Counts 1 , 2 , and 3
Thirteen-year-old A.G. was living at an apartment complex in Fresno with her mother, sisters, and her nephew. A.G. shared a room with her younger sister, eight-year-old K.G.
On October 25, 2011, A.G. was lying in bed next to her sister when she felt someone touching her leg. The hand moved up and down A.G.'s leg and touched the bottom of her buttocks, inside her shorts. A.G. sat up and saw a man at the edge of her bed, trying to hide. A.G. hit the man on top of his head. She became scared and panicked when she realized a man she did not know was in her bedroom.
The man attacked A.G. He jumped on top of her, straddled her legs, pushed down on her shoulders, and when she started screaming, he tried to hold a pillow over her face. A.G. thought she was going to be raped and killed. She resisted the man and prevented him from putting the pillow over her face. The man fled.
A.G. and K.G. barricaded the door to their room. After some time had passed, they ran into the room of their older sister, Y.G. A.G. told Y.G. someone tried to rape her. Both A.G. and Y.G. noticed their living room window was open. This window was usually closed at night.
A partial palm print matching defendant's print was lifted from the window. A six-pack photographic lineup was compiled that included defendant's picture. Y.G. recognized defendant's photograph. She had seen defendant in her apartment complex before, but he had never been a guest in her apartment. On one prior occasion, defendant tried to hug Y.G. and to touch her buttocks. 2007 Incident With Victim D.S. —Count 4
In July 2007, then 11-year-old D.S. lived in the same apartment complex as A.G. On July 11, 2007, D.S. told Fresno police that earlier in the day, a man named Ladrae pulled her into a laundry room at her apartment complex and told her to perform oral sex on him. Ladrae put his penis in D.S.'s mouth and forced her to perform oral sex. He grabbed D.S.'s breasts and put his hands down the back of her pants. A woman walked into the laundry room and started yelling at them. D.S. identified defendant as Ladrae in a photographic lineup.
On December 16, 2011, when defendant was arrested following the incident at A.G.'s apartment, police questioned him about the 2007 incident with D.S. He admitted that in 2007, he had received oral sex from a girl in a laundry room in an apartment complex that he could not identify. He claimed the act was consensual and he thought the girl was 16 or 17 years old. Defendant was 19 years old at the time of the incident.
At defendant's trial in 2013, D.S. could not remember if she was raped or molested, but stated "something bad happened." She could not recall any other details as to the incident.
ANALYSIS
I. Defendant's Convictions on Counts 2 and 3
Defendant claims his conviction on count 3 must be reversed because the offense alleged is a lesser included offense of count 2 and involved the same lewd act. In count 2, defendant was convicted of committing a forcible lewd act against A.G. In count 3, defendant was convicted of committing a lewd act against A.G. Both offenses occurred on the same date, involved the same victim, and during closing argument, the prosecutor suggested both counts were based on the same lewd act: defendant's act of touching A.G.'s legs and buttocks.
The People contend the evidence adduced at trial supports the finding two distinct lewd acts occurred, and defendant's act of straddling A.G. and forcibly holding her down was sufficient to constitute a forcible lewd act. We agree with the People. The jury was not constrained to the prosecutor's theory of guilt, nor does the record demonstrate the jury actually based its verdicts on counts 2 and 3 on the same act. Because sufficient evidence supports both counts, and there is no indication the jury actually concluded both counts were based on the same lewd act, we reject defendant's claim.
A. The Prosecutor Suggested Count 2 and 3 Were Based on the Same Lewd Act
Section 654, subdivision (a) prohibits punishment of "[a]n act or omission that is punishable in different ways by different provisions of law." "In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed); see § 954.) Section 654 does not apply where a defendant commits separate and distinct crimes, even if those crimes share the same intent and objective. (People v. Correa (2012) 54 Cal.4th 331, 341.) "'A person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective.'" (Ibid.)
Multiple sex crimes, for example, can result in multiple statutory violations, even where they are committed on a single occasion. (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6.) "Such offenses are generally 'divisible' from one another under section 654, and separate punishment is usually allowed." (Ibid.) However, "A judicially created exception to the general rule permitting multiple convictions 'prohibits multiple convictions based on necessarily included offenses.'" (Reed, supra, 38 Cal.4th at p. 1227.)
In People v. Medina (2007) 41 Cal.4th 685, our Supreme Court reaffirmed this long-standing rule, holding dismissal of a lesser included offense is required when the defendant is convicted of both the greater and the lesser offenses. (Id. at pp. 701-702.) Thus, where a defendant is convicted of both a greater and lesser included offense based on the same act, staying the defendant's sentence under section 654 does not adequately protect the defendant from double punishment. (Medina, at pp. 701-702.) To permit conviction of both the greater and the lesser offense even when the defendant is not punished for both offenses "'"'would be to convict twice of the lesser.'"'" (Id. at p. 702.)
Here, defendant was convicted of committing a lewd act upon A.G. in count 3 (§ 288, subd. (a)), and committing a forcible lewd act upon A.G. in count 2 (§ 288, subd. (b)(1)). A lewd or lascivious act is committed by any touching of a child with "the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." (§ 288, subd. (a).) A forcible lewd act, on the other hand, requires the commission of a lewd act "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (§ 288, subd. (b)(1).) Because a forcible lewd act cannot be committed without committing a lewd act, a lewd act under section 288, subdivision (a) is a lesser or necessarily included offense of a forcible lewd act under section 288, subdivision (b)(1). (People v. Ward (1986) 188 Cal.App.3d 459, 472.)
The record here demonstrates the prosecutor suggested counts 2 and 3 were based on the same lewd act. Because the prosecutor's comments in closing are not a model of clarity, we quote the record directly:
"So here's why the defendant's guilty of [Count 3]. [A.G.] was 13 years old at the time of the offense.... [Defendant] touched her leg and bottom part of her butt. And you are guilty of this [offense] if you touch any part of a child's body in a lewd manner and he touched her butt. He clearly had the intent of gratifying the lust or passions or sexual desires of himself. There's no innocent explanation for intentionally touching her butt in this manner. [¶] ... [¶]
"Count 2 is lewd act by fear and it is almost identical to lewd act. It just has one additional element, and that is the defendant used force, violence, duress, menace or fear of immediate and unlawful bodily injury to a child or somebody else, otherwise all of these elements are the same as the last crime.
"An act is accomplished by fear if the child is actually and reasonably afraid. Again, same as Count 3 about one element and that's fear. [A.G.] was in actual fear. She thought she was going to be raped.... [Defendant] was rubbing her leg, grabbing her butt. This was a sexual offense to [A.G.] in her mind otherwise she wouldn't have been afraid she was going to be raped. She thought she was going to be killed. She thought she was going to die that night because he was trying to smother
her with a pillow. She was crying and upset when telling her sister [Y.G.] and when telling the first responding officer .... She was home in bed asleep and this happened to her. This is actual fear, there can be no doubt. And is it reasonable? I don't think I have to spend that much time on it, but it's clearly reasonable that when a girl's at home asleep in her bed and a stranger starts touching on her, that's reasonable she's afraid.
"So the defendant is guilty of Count 3 as well as Count 2 because this act was—excuse me, Count 2 as well as Count 3 since this act was committed with fear."
As can be seen, it appears the prosecutor was under the assumption a lewd act could be continuous, rather than completed upon touch. The People disagree with our conclusion that the prosecutor based counts 2 and 3 on the same lewd act in closing argument. They contend the prosecutor used defendant's act of touching A.G.'s legs and buttocks to explain defendant's overarching intent to achieve sexual gratification, and to explain why A.G. feared defendant.
The People's argument is not supported by a reasonable interpretation of the record. Other than the prosecutor's comments we have quoted above, the People fail to direct us to any evidence in the record from which we may reasonably infer the prosecutor based counts 2 and 3 on separate and distinct acts. While the charging documents and verdict forms fail to specify the nature of the acts supporting counts 2 and 3, the prosecutor repeatedly emphasized defendant's act of touching A.G.'s legs and buttocks in closing argument:
"By touching [A.G.'s] butt and the legs [defendant] was committing the lewd act required by [count 1]."
"Now Count 4 is lewd act upon a child as it relates to [D.S.]. Same elements as lewd act upon a child as it relates to [A.G.], but it's a separate victim.... [D.S.] gave the defendant oral sex. Oral sex, unlike the touching of a butt, is frankly always sexual in nature."
"Judge instructed you on a lesser included offense. That's simple assault.... If you were to find [defendant] guilty of only simple assault, you would have to find that the defendant intended to touch [A.G.'s] butt without sexual intent ...."
No suggestion was made that defendant's act of straddling A.G. and holding her shoulders down or forcibly holding a pillow over her head could also constitute a lewd act or a forcible lewd act. Thus, we agree with defendant's assertion the prosecutor suggested counts 2 and 3 were based on the same lewd act. However, we are not persuaded the jury was limited to theories suggested by the prosecutor in closing argument.
B. Defendant's Conviction on Count 2 is Supported by Evidence Adduced at Trial
The People concede defendant's act of touching A.G.'s leg and buttocks was insufficient to constitute a forcible lewd act. However, they contend the evidence adduced at trial supports the conclusion that defendant's act of straddling A.G. amounted to a forcible lewd act because "A.G. [was] overcome by fear." We agree. Although this theory was not relied on by the prosecutor during closing argument, the jury was not restricted to the prosecutor's theory of guilt. Because the jury could reasonably base its verdict on count 2 on the evidence at trial and on the jury instructions given, and there is no evidence the jury based both counts 2 and 3 on the same lewd act, we are not persuaded either count must be reversed.
A forcible lewd act requires the commission of a lewd act to be accomplished by use of force, violence, duress, menace, or fear of immediate bodily injury on the victim or another person. (§ 288, subd. (b)(1).) With respect to defendant's act of touching A.G.'s legs and buttocks, the record contains no evidence defendant used "'physical force substantially different from or substantially in excess of that required for the lewd act'" (People v. Babcock (1993) 14 Cal.App.4th 383, 385), nor is there any indication violence, duress, menace, or fear was used to accomplish this act. (§ 288, subd. (b)(1).) Indeed, a reasonable inference that can be drawn from the record is that A.G. was sleeping when defendant initially touched her, and it was only after she sat up in bed that she realized a man she did not recognize was in her room, causing her to be afraid. Fear, which did not arise until after the lewd act had been completed, was not used to accomplish the act.
However, defendant fails to persuade us that the jury was bound by the theory of guilt the prosecutor presented during closing argument. "It is elementary ... that the prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury." (People v. Perez (1992) 2 Cal.4th 1117, 1126.) Although the prosecutor suggested only one act supported both counts 2 and 3, the evidence adduced at trial permitted the jury to conclude defendant committed two separate and distinct lewd acts against A.G., at least one of which amounted to a forcible lewd act.
Defendant does not contend that a unanimity instruction was required with respect to the offenses he committed against A.G. Ordinarily, "if one criminal act is charged, but the evidence tends to show the commission of more than one such act, 'either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.'" (People v. Napoles (2002) 104 Cal.App.4th 108, 114.) Although the issue was not raised, we have considered whether a unanimity instruction or prosecutorial election was required since the evidence showed the commission of more than one lewd act. Arguably, a prosecutorial election would have restricted the jury from considering evidence of other lewd or forcible lewd acts not relied on by the prosecutor to prove the charges against defendant, binding the People to the prosecutor's theory of the case.
Because defendant proffered the same defense to all crimes he was alleged to have committed against A.G., it appears an exception to the unanimity instruction requirement applies here. (People v. Hernandez (2013) 217 Cal.App.4th 559, 572 [unanimity instruction is unnecessary when the defendant proffers the same defense to multiple acts because a guilty verdict indicates the jury rejected the defendant's defense in toto].)
Here, the People contend defendant committed a forcible lewd act by straddling A.G. and placing a pillow over her head. The People direct us to a line of authority supporting their argument. (People v. Lopez (1998) 19 Cal.4th 282, 289 ["Any touching of a child under the age of 14 violates [the statute] ... if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim"]; In re Jerry M. (1997) 59 Cal.App.4th 289, 299 [circumstances indicating the intent to satisfy sexual desires include: the charged act, relationship of the parties, other acts of lewd conduct, a stealthy approach to the victim, and attempts to avoid detection, among others]; (People v. Alvarez (2009) 178 Cal.App.4th 999, 1005 [forcible lewd conduct "includes acts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves"].)
Resolving all presumptions, inferences, and doubts in favor of the judgment (People v. Poe (1999) 74 Cal.App.4th 826, 830), we agree the jury could have found defendant committed a forcible lewd act by straddling A.G. Defendant's initial act of touching A.G.'s legs and buttocks was circumstantial evidence of his intent to arouse, appeal to, or gratify the sexual desires of either himself, or A.G., by straddling her. (§ 288, subd. (a).) Further, because "a lewd or lascivious act can occur through the victim's clothing and can involve 'any part' of the victim's body" (People v. Martinez (1995) 11 Cal.4th 434, 444), defendant's act of straddling A.G., coupled with his intent, could reasonably constitute a lewd touching.
The record also supports the inference defendant's act of straddling A.G. was committed by use of force or fear. The straddling was accomplished by "force" because defendant held A.G.'s shoulders down and attempted to hold a pillow over her face while straddling her, thereby using "'physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.'" (People v. Bolander (1994) 23 Cal.App.4th 155, 158-159.) The straddling may also have been accomplished by "fear" because when A.G. realized a man she did not know was in her room, she became "scared and panicked" and did "[n]othing." Arguably, A.G.'s fear permitted defendant to jump on top of her. Although these theories were not discussed by the prosecutor during his closing argument, both theories are embraced by the jury instructions given and are supported by substantial evidence adduced at trial.
While the record also supports the inference defendant's act of straddling could have been merely an attempt to silence A.G., we are not permitted to reverse a judgment of conviction where "'the circumstances might also reasonably be reconciled with a contrary finding.'" (People v. Manibusan (2013) 58 Cal.4th 40, 87.) "'"Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt."'" (Ibid.) Here, the record supports the conclusion the jury reasonably could have convicted defendant of a lewd act based on his initial act of touching A.G.'s legs and buttocks, and could have convicted defendant of a forcible lewd act based on defendant's act of straddling A.G.
C. The Prosecutor's Comments in Closing Argument Were Not Prejudicial
Although the evidence was sufficient to permit the jury to infer defendant's act of straddling A.G. was lewd and was committed with "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on [A.G.] or another person" (§ 288, subd. (b)), the jury was nonetheless left with the option of relying on an erroneous theory of guilt—the theory suggested by the prosecutor during closing argument. Although defendant does not contend otherwise, we find no evidence of prejudice from the prosecutor's erroneous theory based on the record before us.
Initially, it is unclear whether the prosecutor's theory was simply a factually inadequate theory, or whether it also amounted to a legally inadequate theory. If the jury is presented with a factually inadequate theory of guilt, we presume the jury is fully equipped to detect such deficiencies in proof. (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).) Thus, "reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground." (Ibid.) Prejudice may be affirmatively demonstrated by the record where, for example, "the district attorney stressed only the invalid ground in the jury argument, and the jury asked the court questions during deliberations directed solely to the invalid ground." (Ibid., italics added.)
However, "if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, ... [reversal is required], absent a basis in the record to find that the verdict was actually based on a valid ground." (Guiton, supra, 4 Cal.4th at p. 1129.) "'When ... jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.'" (Id. at p. 1125, quoting Griffin v. United States (1991) 502 U.S. 46, 59.)
The prosecutor made the following comments in closing, in relevant part:
"An act is accomplished by fear if the child is actually and reasonably afraid. Again, same as Count 3 about one element and that's fear. [A.G.] was in actual fear. She thought she was going to be raped.... [Defendant] was rubbing her leg, grabbing her butt. This was a sexual offense to [A.G.] in her mind otherwise she wouldn't have been afraid she was going to be raped. She thought she was going to be killed. She thought she was going to die that night because he was trying to smother her with a pillow. She was crying and upset when telling her sister [Y.G.] and when telling the first responding officer .... She was home in bed asleep and this happened to her. This is actual fear, there can be no doubt. And is it reasonable? I don't think I have to spend that much time on it, but it's clearly reasonable that when a girl's at home asleep in her bed and a stranger starts touching on her, that's reasonable she's afraid."
The prosecutor indisputably presented a factually inadequate theory of guilt by suggesting defendant's act of touching A.G.'s legs and buttocks could constitute a forcible lewd act. There was no evidence force or fear was used to accomplish this lewd touching. Nonetheless, while the prosecutor solely emphasized this inadequate theory during closing argument, nothing in the record shows the jury actually relied on this theory in rendering its verdict. For example, there were no questions from the jury during deliberations directed solely at this unsupported theory (Guiton, supra, 4 Cal.4th at p. 1129), nor do the charging documents or verdict forms identify the forcible lewd conduct as consisting of defendant's act of touching A.G.'s legs and buttocks. (See People v. Siko (1988) 45 Cal.3d 820, 826.) As such, it would be pure speculation for us to assume the jury actually relied on the prosecutor's theory in convicting defendant.
Moreover, the jury was explicitly instructed by the trial court that "Nothing that the attorneys say is evidence," including their remarks in closing argument. Based on this instruction, we presume the jury rejected the prosecutor's factually inadequate theory because it was not based on the evidence adduced at trial or from any reasonable inferences that may be drawn therefrom.
We further conclude the record does not support the conclusion the prosecutor's comments amounted to a legally inadequate theory of guilt. It appears the prosecutor was under the assumption a lewd act could be continuous rather than complete upon touch. However, once defendant's initial act of touching A.G.'s legs and buttocks was complete, any force or fear employed after this touching occurred could not transform this offense into a forcible lewd act. A commonsense reading of section 288 makes clear that force or fear employed after the commission of a lewd act does not constitute a forcible lewd act: "Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony." (§ 288, subd. (b)(1), italics added.)
Following the prosecutor's comments, the jury could have inferred defendant's act of touching A.G.'s legs and buttocks was a lewd act, and A.G.'s fear, which arose after this act was complete, was sufficient to constitute a forcible lewd act. However, based on the jury instructions given by the trial court, it is highly unlikely the jury was misled in such a manner. Here, the jury was properly instructed as to the elements of a forcible lewd act pursuant to CALCRIM No. 1111. This instruction provides, "In committing [a lewd] act, the defendant [must have] used force, violence, duress, menace, or fear ...." (Ibid., italics added.) By so instructing the jury, any erroneous conception the jury may have had that fear or force employed after the commission of a lewd act could nonetheless be sufficient to constitute a forcible lewd act was reasonably dispelled. This conclusion is bolstered by the fact the prosecutor told the jury during closing arguments, "If I say anything or the defense attorney says anything that conflicts with what the judge says about the law, the judge is right."
In the absence of any evidence to the contrary, we presume the jury here followed the trial court's instructions. (People v. Gonzales (2011) 51 Cal.4th 894, 940 ["jurors are presumed to be intelligent and capable of understanding and applying the court's instructions"].) Thus, to the extent the prosecutor's erroneous theory could conceivably have suggested an erroneous legal theory, we conclude the jury instructions clarified any possible misunderstanding on the law.
Based on the trial court's instructions and the evidence adduced at trial, the jury could have convicted defendant of a forcible lewd act based on his act of straddling A.G. Because there is nothing in the record to demonstrate the jury actually based its verdict on the prosecutor's erroneous theory of guilt, and there is ample evidence to support defendant's convictions on both counts, we affirm defendant's convictions on counts 2 and 3.
Although we conclude the prosecutor's comments do not amount to the presentation of a legally inadequate theory of guilt necessitating reversal, to the extent any of the prosecutor's comments during closing argument could constitute misconduct, we note no objection was raised by trial counsel as to the comments we have discussed, and defendant does not raise this issue on appeal. The issue is therefore deemed waived. "When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court's attention by a timely objection. Otherwise no claim is preserved for appeal." (People v. Morales (2001) 25 Cal.4th 34, 43-44.) In any event, as we have explained, we find no prejudice.
II. The Parole Revocation Fine Must Be Stricken
In his second claim on appeal, defendant contends a parole revocation fine was improperly imposed. Relying on People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan) defendant argues because he was sentenced to life without the possibility of parole (LWOP), with no determinate term on the sentences imposed on his other counts, the fine should be stricken. The People contend that in addition to defendant's LWOP term, he was sentenced to an indeterminate term of 15 years to life on count 4, which technically rendered him eligible for parole. As a result, they assert the suspended parole revocation fine was properly imposed. We agree with defendant, the suspended fine was improperly imposed and must be stricken.
Section 1202.45 mandates a parole revocation restitution fine be imposed "[i]n every case where a person is convicted of a crime and his or her sentence includes a period of parole." The fine must be suspended unless "the [defendant's] parole ... is revoked." (§ 1202.45, subd. (c).)
In Oganesyan, the defendant was sentenced on count 1 to an indeterminate term of 15 years to life for second degree murder, plus an additional four-year term for a firearm use enhancement. (Oganesyan, supra, 70 Cal.App.4th at p. 1181.) On count 2, he was sentenced to LWOP plus 10 years for a first degree special-circumstances murder with a firearm use enhancement (count 2). Although the trial court imposed a restitution fine pursuant to section 1202.4, the People claimed the court erred by failing to impose a section 1202.45 parole revocation fine. (Oganesyan, at p. 1181.) The defendant agreed if the fine applied to him, the trial court had a jurisdictional duty to impose it. The defendant argued the section 1202.45 fine did not apply, however, because he received an LWOP sentence, a sentence for which there is no possibility of parole. (Oganesyan, at p. 1182.)
The Court of Appeal agreed with the defendant. (Oganesyan, supra, 70 Cal.App.4th at pp. 1185-1186.) The court held the issue was a matter of statutory interpretation, explaining:
"When there is no parole eligibility, the [section 1202.45] fine is clearly not applicable. The statutory language itself is clear, the additional restitution fine is only imposed in a 'case' where a sentence has been imposed which includes a 'period of parole.' [Citation.] Simply stated, the ... legislative intent which can be derived from the language of the statute is clear; if there is no parole eligibility, no section 1202.45 fine may be imposed." (Id. at p. 1183.)
The court acknowledged the defendant could conceivably be eligible for parole based on his sentence of 15 years to life for second degree murder plus the additional firearm use enhancement. (Oganesyan, supra, 70 Cal.App.4th at p. 1184.) Nonetheless, it rejected the People's argument that this was a case in which a sentence had been imposed that included a "period of parole." (Id. at pp. 1183-1184.)
First, the court noted the goal of recouping the parole revocation fine would not be advanced by imposition of the fine in a case like the defendant's. The chances of actually recouping the fine would be so extraordinarily unlikely it would be "almost beyond rational belief." (Oganesyan, supra, 70 Cal.App.4th at p. 1185.) The defendant, a special circumstances murderer, was unlikely to ever be granted clemency and ultimately paroled. (Ibid.)
Second, the court stated the language of section 1202.45 indicates whether the fine must be imposed and depends on the defendant's overall sentence, rather than on a count-by-count basis. (Oganesyan, supra, 70 Cal.App.4th at p. 1185.) The statute states it applies to a "person ... whose sentence includes a period of parole." (§ 1202.45.) The defendant's sentence, however, did not allow for parole. Thus, the court held "because the sentence does not presently allow for parole and there is no evidence it ever will, no additional restitution fine must be imposed." (Oganesyan, at p. 1185.) On this basis, the Court of Appeal concluded the trial court did not err in declining to impose and suspend the section 1202.45 fine. (Oganesyan, at pp. 1185-1186.)
The People contend our Supreme Court's decision in People v. Brasure (2008) 42 Cal.4th 1037 (Brasure) casts doubt on Oganesyan. In Brasure, the trial court sentenced the defendant to death on count 1, stayed execution of sentence on four other counts pursuant to section 654, and imposed an aggregate determinate prison term of two years eight months on the remaining counts. (Brasure, supra, at p. 1049.) The trial court also imposed and suspended a parole revocation fine under section 1202.45. (Brasure, at p. 1075.) On appeal, the defendant argued the fine was unauthorized.
Our Supreme Court held the fine was required, explaining that although the defendant was sentenced to death on count 1, he received a determinate prison term sentence under section 1170 on other counts. (Brasure, supra, 42 Cal.4th at p. 1075.) Section 3000, subdivision (a)(1) provides that a determinate prison term under section 1170 "shall include a period of parole." In turn, the fine under section 1202.45 must be imposed "'[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole." (Brasure, at p. 1075.) The fine was therefore required, though it was ordered suspended unless the defendant was released on parole and until his parole was revoked. (Ibid.) Thus, unlike the court in Oganesyan, which examined the defendant's overall sentence to determine whether the fine was required, the Brasure court examined the defendant's sentence on a count-by-count basis.
The Brasure court held Oganesyan was distinguishable because it did not involve a determinate term imposed under section 1170, but imposed an LWOP sentence for first degree special-circumstances murder and an indeterminate life sentence for second degree murder. (Brasure, supra, 42 Cal.4th at p. 1075.) The court recognized the defendant in Oganesyan as well as the defendant in Brasure were both unlikely to ever be released on parole, but held the defendant's determinate sentence in Brasure by law required imposition of the suspended parole revocation restitution fine.
The People contend we are not compelled to follow Brasure on this point because the decision distinguished between sentences involving indeterminate life terms and those involving determinate terms without providing a meaningful explanation as to why the section 1202.45 fine is improper as it applies the former, but proper as to the latter. According to the People, section 3000, subdivision (a)(1) specifies both determinate and indeterminate prison sentences are to include a period of parole or other supervision unless waived or otherwise provided. As such, both types of sentences should require imposition of the fine.
Section 3000, subdivision (a)(1) provides: "The Legislature finds and declares that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship. It is in the interest of public safety for the state to provide for the effective supervision of and surveillance of parolees, including the judicious use of revocation actions, and to provide educational, vocational, family, and personal counseling necessary to assist parolees in the transition between imprisonment and discharge. A sentence resulting in imprisonment in the state prison pursuant to Section 1168 or 1170 shall include a period of parole supervision or postrelease community supervision, unless waived, or as otherwise provided in this article."
The People further contend a defendant serving an LWOP sentence could always be paroled because the sentence could be overturned in federal court. Here, if defendant's LWOP sentence were overturned, he would immediately begin serving an indeterminate life term, which includes a period of parole.
Both arguments are reasonable.
"'[P]arole is a mandatory component of any prison sentence. "A sentence resulting in imprisonment in the state prison ... shall include a period of parole supervision or postrelease community supervision, unless waived ...." (§ 3000, subd. (a)(1).) Thus, [notwithstanding a small number of life crimes that expressly forbid parole] a prison sentence "contemplates a period of parole, which in that respect is related to the sentence."'" (People v. Preston (2015) 239 Cal.App.4th 415, 424-425.)If the components of a defendant's sentence are to be considered individually to determine whether any portion includes a period of parole, as Brasure implies, logically, there should be no difference between a sentence of life (or a term of years to life) with the possibility of parole and a determinate term.
Further, although it is unlikely to occur in most cases, there is always a possibility a defendant with an LWOP sentence or even a sentence of death could be paroled. The defendant could be granted clemency or his or her conviction could be reversed on a habeas petition. Imposition of the fine, which would not become effective unless and until a defendant is actually paroled and has his or her parole revoked, would in no way prejudice the defendant. (Brasure, supra, 42 Cal.4th at p. 1075.)
Nevertheless, our Supreme Court has chosen to draw a distinction between indeterminate sentences with the possibility of parole and determinate terms (Brasure, supra, 42 Cal.4th at p. 1075), and we are bound by the court's holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). Under Brasure and Oganesyan, the defendant was not subject to a section 1202.45 fine because he did not receive a sentence with a determinate term. (See People v. McWhorter (2009) 47 Cal.4th 318 [finding parole revocation fine improper where defendant sentenced to death as well as a stayed determinate sentence for first degree burglary].) Accordingly, the judgment must be modified to strike the parole revocation restitution fine.
III. Sentencing Errors
The People assert the trial court erred in sentencing defendant as to counts 1 and 4. Defendant agrees his sentence on count 1 must be corrected, but contends his sentence as to count 4 is correct. In a supplemental brief, the People retract their argument as to count 4. We will order defendant's sentence on count 1 corrected. Because the parties agree defendant's sentence as to count 4 is, in fact, correct, we need not reach the issue.
A. Defendant's Sentence as to Count 1 Must Be Corrected
The trial court orally pronounced a sentence of life without the possibility of parole for defendant's violation of section 220, subdivision (b), and then ordered the sentence stayed pursuant to section 654. Although the court stated this sentence was to be applied to "count 2," the court had already imposed a sentence for count 2—life without the possibility of parole. Further, defendant's violation of section 220, subdivision (b) was charged in count 1 of the information. Thus, the parties contend, and we agree, the trial court erred in imposing a sentence of life without the possibility of parole on count 1.
The plain language of section 220, subdivision (b) makes clear the punishment for count 1 is life with the possibility of parole: "Any person who, in the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, assaults another with intent to commit rape, sodomy, oral copulation, or any violation of Section ... 288, ... shall be punished by imprisonment in the state prison for life with the possibility of parole." (Italics added.) We will remand this matter back to the trial court with instructions to amend the abstract of judgment and the minute order for the sentencing hearing with respect to defendant's sentence on count 1.
B. Defendant's Sentence as to Count 4 Is Correct
With respect to count 4, the People contend defendant received a sentence of 15 years to life, but he should have received a sentence of 25 years to life under section 667.61, subdivision (j)(2). Defendant contends imposition of the 25-year-to-life sentence would violate ex post facto principles. In a supplemental brief, the People withdraw their argument, acknowledging it was made in error. We do not reach this issue as a result.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment with service to all appropriate agencies to reflect a sentence of life with the possibility of parole as to count 1. The parole revocation restitution fine imposed pursuant to section 1202.45 is stricken. The court is further directed to correct the minute order pertaining to defendant's sentencing hearing to reflect these changes.
In all other respects, the judgment is affirmed.
/s/_________
MCCABE, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
PEÑA, J.
Judge of the Merced Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------