Opinion
D072229
10-10-2018
THE PEOPLE, Plaintiff and Respondent, v. CESAR MENA, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD262902) APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A. Eyherabide, Judge. Affirmed, with directions. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Cesar Mena guilty of simple kidnapping (as a lesser included offense of aggravated kidnapping), torture, and assault with a deadly weapon. The trial court sentenced him to concurrent prison terms on the torture conviction (life with the possibility of parole) and kidnapping conviction (eight years), and imposed (but stayed under Penal Code section 654) a four-year term on the assault conviction. On appeal, Mena challenges the sufficiency of the evidence supporting his torture conviction. He also contends the trial court erred by not also staying under section 654 the sentence on his kidnapping conviction. These contentions are without merit. We therefore affirm, with directions to the trial court to correct a clerical error in the abstract of judgment.
Statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts under the applicable standard of review: " 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 890 (Covarrubias).)
Mena was charged with the aggravated kidnapping, torture, and aggravated assault of Jorge I. The prosecution theorized Mena committed these offenses while working for Vladislav Zubkis, who suspected Jorge was involved in (or had information about) the death of Zubkis's daughter, Victoria. Mena kidnapped Jorge from Ocean Beach, took him to Vladislav's villa in Rosarito, Mexico, and beat him while questioning him about Victoria's death. Local police rescued Jorge and arrested Mena and Vladislav.
To avoid confusion, we will refer to Vladislav and Victoria Zubkis by their first names.
Prosecution Case
On May 26, 2015, 20-year-old Victoria was reported missing. Two days later, her naked, "partially skeletonized decomposing body" washed ashore near the Ocean Beach pier. After performing an autopsy, the chief medical examiner recorded Victoria's official cause and manner of death as "undetermined," but in his opinion, there was "strong evidence for a drowning as a cause of death." The San Diego police detective investigating Victoria's death concluded it was "just a tragic accidental death" or suicide. The detective based this conclusion, in part, on Victoria's history of mental health issues, drug use, and her previously stated desire to swim to the Coronado Islands.
Vladislav was dissatisfied with the authorities' investigation and conclusion regarding Victoria's death. He "was quite adamant from the start that this was foul play." He hired people to question Victoria's friends, and posted a $1 million reward on social media for information leading to the apprehension of the person responsible for her death. The reward spawned rumors among Victoria's social circle that she had been murdered.
Vladislav suspected that two of Victoria's friends, Alex S. and Jorge, were involved in or had information about her death. Alex had been Victoria's best friend and possible love interest, and Jorge was a transient who had socialized and used drugs with Victoria and Alex. Alex and Jorge were rumored to have seen Victoria shortly before her death, and Jorge reported that he had last seen Victoria "by the cliffs in Ocean Beach" looking "really high."
Jorge testified that in late May or early June 2015, Mena approached him and Alex and told them he was a private investigator working for Vladislav regarding Victoria's death. After Jorge told Mena what he knew about Victoria, Mena gave him $20.
Around 9:30 p.m. on June 5, Jorge was walking with friends in Ocean Beach, high on three "hits" of LSD. Jorge was carrying his backpack and skateboard. Another group of Jorge's friends and acquaintances waved him over to the parking lot of a "smoke shop." The group included identical twins Matthew and Michael T., and Caleb G. As Jorge approached, one of the twins said "it didn't look good" for Jorge and Alex with respect to Victoria's death.
Mena joined the group at some point and said, "That's it, he's going to Mexico, let's go." Jorge "was told to get in the car" by someone in the group. Jorge did not want to get in the car, but did so because he was afraid he would "get really, really hurt" if he did not comply. Jorge sat in the middle rear seat, "boxed in" between Caleb and Matthew; Mena sat in the driver's seat; and Michael sat in the front passenger's seat. As Mena drove to a nearby liquor store, he and the twins asked Jorge where Alex was.
At the liquor store, Caleb got out of the car and Michael took his place in the rear seat, continuing to confine Jorge in the middle. Michael told Jorge " 'not to worry,' " he will not be hurt. Then, however, one of the twins cut Jorge's wrist with a hunting knife, causing his wrist to bleed (and ultimately scar). The other twin then elbowed Jorge in the face and told him to stop bleeding. The twins tied Jorge's arms (and possibly legs) with a cellphone charging cable, and tightly cinched his seatbelt so he could not move. The twins got out of the car, and Mena handed them money and said "they will get the rest of their money after they get Alex." Mena then drove Jorge to Mexico.
During the drive, Jorge told Mena he "had no more information to give him" about Victoria. Mena put on some music and told Jorge "to shut up and enjoy the music." Mena made several phone calls along the way, which Jorge believed were to Vladislav.
When they arrived at a condominium complex in Rosarito, Mena got out of the car, opened the gate, drove into the complex, and escorted Jorge (whose hands were still bound) to one of the units. Mena carried Jorge's backpack and skateboard. Vladislav answered the door and, seeming surprised to see Jorge, asked where Alex was. Mena responded that he had "people out looking for him." Jorge thought he was going to die.
Mena and Vladislav brought Jorge inside, sat him down, and questioned him about Victoria's "last whereabouts," her "drug use," whether Jorge "ever had sex with her," and "things like that." As the men questioned Jorge, Mena beat him with Jorge's skateboard and an object that appeared to Jorge to be a baseball bat. As Mena beat him, Jorge observed that Mena "seemed to just have this like joy in doing it." The questioning and beating continued.
Vladislav offered Jorge a shot of vodka, which Jorge declined. Mena then offered a shot of tequila, which Jorge accepted. Jorge did not consider this "a friendly gesture." Mena looked through Jorge's wallet and found five doses of LSD, which he forced into Jorge's mouth. Believing he heard God's voice, Jorge said to the men, "God said you cannot kill me because I am good." Mena responded, "Fuck God," picked up Jorge (who was about 5' 5" tall and weighed about 130 pounds), and threw him onto a staircase. Jorge temporarily could not move and said, "Dude, I can't move I am paralyzed." Then "this evil smile came over" Mena, and he picked up Jorge and threw him on the stairs again. Jorge was then able to move again.
Jorge went in and out of consciousness. One time he woke up "wrapped up in a blanket and being asked [by Mena] to stay quiet, not to make any noise." Mena offered that if Jorge would stay quiet, he would have "all the lavish things in life." When Jorge indicated he would not comply, Mena "cracked [him] in the head" with the skateboard. Jorge lost consciousness again.
The next thing Jorge knew, he was "being unraveled out of a blanket by Mexican police." His hands had been handcuffed and his legs had been duct-taped, though he had no memory of how this happened.
Meanwhile, someone had heard screaming in the condo complex and called the police. Around 2:00 a.m., Rosarito police responded and approached the open door to Vladislav's condo. Vladislav told the officers everything was fine, and tried to close the door. One of the officers blocked the door with his foot, saw what appeared to be blood inside the unit, and entered. Mena fled through the back door, but was immediately detained by police staking out the rear of the condo. While detained, Mena admitted to police he had brought Jorge to Mexico, told them about the $1 million reward, and asked that they release him because he had "names of people" and needed to "finish what he had already started." The police detained Mena and Vladislav.
Inside Vladislav's condo, police found Jorge covered with a blanket on the floor, making "[d]eep," "agonizing" sounds. His hands were handcuffed, his legs were taped "with gray tape," and his hands and feet were hogtied together with another pair of handcuffs. Police observed Jorge's skateboard and backpack; the cellphone charging cord initially used to bind him; and a broken table leg that resembled a baseball bat.
The police took Jorge to the Rosarito police station, where he said he wanted to press charges against Mena and Vladislav. After a brief trip to the Red Cross to receive stitches on his cut wrist, Jorge returned to the police station. There, Vladislav's and Mena's attorney gave Jorge fresh clothes and offered to take him to the hospital for a few days and to obtain assistance from the U.S. consulate. Jorge accepted the offer and left with the attorney. Instead of going to the hospital, however, the attorney dropped Jorge at the U.S.-Mexico border, gave him about $40 in Mexican currency, and told him to "go with God." Jorge bought cigarettes and walked to the border crossing.
A customs enforcement officer at the port of entry noticed Jorge's condition and summoned medical assistance. Jorge was transported to a San Diego hospital, where he remained for two or three days. Jorge had a black eye filled with blood, a cut on his head for which he received stitches, and bruises behind his ears. His arms were so bruised and swollen that the skin split open. Jorge testified he also sustained a concussion and hairline fractures (though he did not specify to which bones).
Defense Case
As relevant to his torture conviction, Mena called as a defense witness the security guard from Vladislav's condo complex who was working the night of the incident. The guard testified he did not hear any unusual noises coming from Vladislav's condo that night. However, at one point, Vladislav approached the guard booth and asked the guard to call the police to report a fight. The guard went with Vladislav to his condo to verify his report. Through the open door, the guard saw two men fighting. The guard claimed he handcuffed Jorge to calm him down until police arrived. On cross-examination, however, the guard acknowledged he carried only one pair of silver handcuffs and carried no duct tape, whereas a video of the scene by responding police showed Jorge was restrained by two pairs of handcuffs (one of which was black) and duct tape.
Charges, Jury Verdicts, and Sentence
Mena was charged with one count of aggravated kidnapping (§ 209, subd. (a)); one count of torture (§ 206); and two counts of assault with a deadly weapon (§ 245, subd. (a)(1))—one on an aiding-and-abetting theory for the twins' conduct in Ocean Beach, the other on a direct-perpetrator theory for Mena's own conduct in Mexico. The jury found Mena guilty of simple kidnapping (as a lesser included offense of aggravated kidnapping), torture, and assault with a deadly weapon on a direct-perpetrator theory. The jury found him not guilty on the remaining assault count.
The twins were also charged with one count each of aggravated kidnapping, torture, and assault with a deadly weapon. They were jointly tried with Mena, and were acquitted of all charges.
The trial court sentenced Mena to life with the possibility of parole for torture; a concurrent eight-year term for kidnapping; and a four-year term for assault with a deadly weapon, stayed under section 654.
DISCUSSION
I. Substantial Evidence Supports Mena's Torture Conviction
Mena contends his torture conviction is not supported by substantial evidence. We disagree.
A. Torture Principles
Section 206 defines the crime of torture as follows: "Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain." " 'As the statute states, torture has two elements: (1) a person inflicted great bodily injury upon the person of another, and (2) the person inflicting the injury did so with specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.' " (People v. Pre (2004) 117 Cal.App.4th 413, 419 (Pre); accord, People v. Massie (2006) 142 Cal.App.4th 365, 370-371 (Massie).)
Torture "focuses on the mental state of the perpetrator and not the actual pain inflicted." (People v. Hale (1999) 75 Cal.App.4th 94, 108 (Hale); § 206 ["The crime of torture does not require any proof that the victim suffered pain."].) The terms revenge, extortion, and persuasion are "self-explanatory." (Massie, supra, 142 Cal.App.4th at p. 371.) The phrase "sadistic purpose" means "[inflicting] pain on another person for the purpose of experiencing pleasure." (People v. Raley (1992) 2 Cal.4th 870, 901.) Although a sadistic purpose can include sexual pleasure, it need not. (People v. Aguilar (1997) 58 Cal.App.4th 1196, 1203.)
"Torture does not require the defendant act with premeditation and deliberation, and it does not require that he intend to inflict prolonged pain." (Massie, supra, 142 Cal.App.4th at p. 371; see Hale, supra, 75 Cal.App.4th at p. 108.) "The intent with which a person acts is rarely susceptible of direct proof and usually must be inferred from facts and circumstances surrounding the offense." (Massie, at p. 371; see Pre, supra, 117 Cal.App.4th at p. 420.) "Intent to cause cruel or extreme pain can be established by the circumstances of the offense and other circumstantial evidence." (Pre, at p. 420.) The "length of time over which the offense occurred" and "the severity of the wounds inflicted" are "relevant but not necessarily determinative." (Massie, at p. 371; see Hale, at pp. 107-108.)
By contrast, murder by means of torture (§ 189) requires a "calculated deliberation" to inflict "extreme and prolonged pain." (Massie, supra, 142 Cal.App.4th at pp. 371-372.)
B. Analysis
Mena challenges only the sufficiency of the evidence supporting the intent element of his torture conviction. He concedes substantial evidence supports the first element—that he inflicted great bodily injury on Jorge. However, he challenges the sufficiency of the evidence supporting the second element, which consists of two prongs: (1) that he intended "to cause cruel or extreme pain and suffering," (2) "for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." (§ 206; see Massie, supra, 142 Cal.App.4th at pp. 370-371.) Viewing the record in the light most favorable to the judgment (Covarrubias, supra, 1 Cal.5th at p. 890), we conclude substantial evidence supports both prongs of the second element.
1. Intent to Cause Cruel or Extreme Pain and Suffering
Substantial circumstantial evidence supports the jury's finding that Mena intended to cause Jorge cruel or extreme pain and suffering.
Regarding the circumstances of the offense, Jorge was bound and encouraged to remain quiet while Mena beat him in Vladislav's private condo unit. (See People v. Odom (2016) 244 Cal.App.4th 237, 247, fn. 8 (Odom) [" 'Although evidence of binding, by itself, is insufficient to establish an intent to torture [citation], it is appropriate to consider whether the victim was bound and gagged, or was isolated from others, thus rendering the victim unable to resist a defendant's acts of violence [citations].' "]; People v. Healy (1993) 14 Cal.App.4th 1137, 1141 [the defendant warning the victim to remain silent to avoid detection is relevant to intent].)
As for the beating itself, Mena "utilized several different methods of inflicting pain" (Massie, supra, 142 Cal.App.4th at p. 373)—he beat Jorge with a bat-like object (most likely the broken table leg observed by responding police), beat him with a skateboard, threw him repeatedly against a staircase, and caused him to involuntarily ingest five doses of LSD. The fact Mena likely attacked Jorge with an improvised weapon (the broken table leg) indicates Mena gave thought to inflicting pain on Jorge. (See ibid. ["When defendant could not find his knife, he manufactured a weapon by breaking . . . glass . . . , which indicates a thought process rather than blind rage."].)
Regarding Jorge's injuries, Mena beat Jorge's arms, but also targeted his head and face, which are particularly vulnerable targets. (See People v. Hamlin (2009) 170 Cal.App.4th 1412, 1426-1427 [" 'a jury may infer intent to cause extreme pain from a defendant who focuses his attack on a particularly vulnerable area, such as the face, rather than indiscriminately attacking the victim' "].) Jorge sustained a blackened and blood-filled eye; a laceration on his head that required stitches; hairline fractures; a concussion; bruising behind his ear; and bruising to his arms so severe it caused his skin to split. (Odom, supra, 244 Cal.App.45th at p. 247 [" ' "the nature and severity of the victim's wounds" ' " are relevant but not dispositive].)
As for Mena's demeanor, when Jorge said he was paralyzed after Mena threw him against the staircase, Mena responded with an "evil smile." (See People v. Misa (2006) 140 Cal.App.4th 837, 843 [the defendant's "callous indifference in the face of [the victim]'s obvious need for medical intervention" is relevant to intent].)
Finally, Mena interrogated and beat Jorge over the course of nearly three hours. (See Hale, supra, 75 Cal.App.4th at p. 101 [two blows from hammer to the victim's face was not insufficiently brief to support torture conviction]; Odom, supra, 244 Cal.App.4th at p. 245 [45-minute beating sufficient].)
Considering the totality of these circumstances, the jury could reasonably conclude Mena intended to inflict cruel or extreme pain and suffering on Jorge.
Mena cites several authorities to support his contention that he lacked the requisite intent because, for example, his attack on Jorge was insufficiently methodical, insufficiently focused on vulnerable targets, inflicted insufficient injuries, and was of insufficient duration. However, as Mena acknowledges in his briefing, " 'comparison of the facts in one torture case to another is of little value in assessing the sufficiency of the evidence in a particular case.' " (See Pre, supra, 117 Cal.App.4th at p. 423 ["Other Court of Appeal decisions have similarly found little utility in looking to the facts of other torture cases when faced with assessing the sufficiency of the evidence."].) As the court in Odom explained in rejecting a similar claim:
"Defendant cites to cases upholding torture findings in more egregious circumstances and concludes 'there is no precedent for upholding a torture conviction based on the assault with fists and feet.' Torture, however, does not require a specific modality. . . . There is no question there are cases in which the acts of torture were more gruesome. However, '[w]hen we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts.' " (Odom, supra, 244 Cal.App.4th at p. 248.)
Odom's reasoning applies here. Although some reported decisions may describe conduct more egregious than Mena's, the record nonetheless contains evidence sufficient to support the jury's finding that Mena intended to inflict cruel or extreme pain and suffering on Jorge.
2. Sadistic Purpose
The second prong of the intent element requires that Mena have intended to inflict pain "for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." (§ 206; see Massie, supra, 142 Cal.App.4th at pp. 370-371.) Substantial evidence supports the jury's finding in this regard in several respects.
Mena erroneously asserts in his opening brief that the trial court properly instructed the jury only regarding the "sadistic purpose" component of this prong. The record belies this claim—the trial court instructed the jury orally and in writing that the defendant must have "intended to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." (Italics added; see CALCRIM No. 810.) --------
First, as to persuasion, the jury could reasonably infer from the fact that Mena was interrogating Jorge as he beat him that Mena was doing so to persuade Jorge to divulge additional information about Victoria's death. This inference is further supported by the fact Mena asked the arresting officers to release him so he could track down other leads regarding Victoria's death.
Second, as to revenge, the jury could reasonably infer Mena—who was working for Vladislav—beat Jorge to avenge the death of Vladislav's daughter. Alternatively, the jury could reasonably infer Mena sought revenge on his own behalf—Jorge testified on cross-examination that he learned during the course of being beaten that Mena was not, in fact, Vladislav's private investigator; rather, he was Victoria's boyfriend.
Finally, the record supports the finding that Mena took sadistic pleasure in beating Jorge. As Jorge testified, Mena "seemed to just have this like joy" in beating him. Similarly, when Jorge said he was paralyzed from being thrown against the staircase, Mena had an "evil smile" and threw Jorge against the staircase again.
II. Substantial Evidence Supports Mena's Concurrent Sentences
The trial court sentenced Mena to concurrent sentences of life with the possibility of parole for the torture conviction, and eight years for the kidnapping conviction. In light of the life sentence, the court viewed as "just [an] interesting discussion" its decision of how to treat the kidnapping sentence—that is, whether to (1) stay it under section 654, (2) run it consecutively, or (3) run it concurrently. Ultimately, the court concluded it was appropriate to run the sentences concurrently because torture and kidnapping require proof of "entirely different elements." Mena contends the court erred by not staying the kidnapping sentence under section 654 as being impermissibly duplicative of the torture sentence. We disagree.
Section 654, subdivision (a), states: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The statute, thus, " 'precludes multiple punishments for a single act or indivisible course of conduct.' [Citation.] ' . . . "The proscription against double punishment . . . is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute. . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one." ' [Citation.] 'On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple. Each case must be determined on its own facts. [Citations.] The question whether the defendant entertained multiple criminal objectives is one of fact for the trial court, and its findings on this question will be upheld on appeal if there is any substantial evidence to support them.' " (People v. Pinon (2016) 6 Cal.App.5th 956, 967-968.)
When viewed most favorably to upholding Mena's sentences, the evidence supports the trial court's implied determination that Mena's kidnapping and torture convictions were separately punishable. Although the torture occurred during the kidnapping, that is not dispositive of Mena's intent in committing each offense. For example, in People v. Ratcliffe (1981) 124 Cal.App.3d 808, the court concluded section 654 did not preclude separate punishments for kidnapping and rape where the rape was "committed as an afterthought [and] did not facilitate the commission of the initial offense (kidnaping)." (Ratcliffe, at p. 818.) "Other cases have found separate, although sometimes simultaneous, objectives under the facts. (E.g., People v. Coleman (1989) 48 Cal.3d 112, 162 . . . [assault of robbery victim had separate intent and objective than the robbery]; People v. Nguyen (1988) 204 Cal.App.3d 181, 189-193, 196 . . . [harming of unresisting robbery victim a separate objective from the robbery itself]; People v. Booth (1988) 201 Cal.App.3d 1499, 1502 . . . ['dual objectives of rape and theft when entering the victims' residences' supported separate punishment for burglaries and rapes]; People v. Porter (1987) 194 Cal.App.3d 34, 37-39 . . . [robbery and kidnapping the same victim for a later, additional, robbery had separate objectives].)" (People v. Latimer (1993) 5 Cal.4th 1203, 1212.)
Here, the court likely concluded Mena formed the intent to torture Jorge as an afterthought to the kidnapping. Indeed, the fact the jury convicted Mena of simple kidnapping instead of aggravated kidnapping—that is, kidnapping "for ransom, reward or to commit extortion or to exact from another person any money or valuable thing" (§ 209, subd. (a))—indicates the jury found Mena had not yet formed the intent to torture Jorge when he kidnapped him. (See People v. Assad (2010) 189 Cal.App.4th 187, 201 [determining factual findings based on jury verdicts].) This finding is further supported by the fact Mena used—in his own words—improvised "items of opportunity" (e.g., a broken table leg and a skateboard). Had Mena intended to torture Jorge from the outset, he likely would have come equipped with dedicated torture implements.
Alternatively, the record would allow the court to reasonably conclude Mena harbored multiple intents—to kidnap Jorge for Vladislav's investigatory or retaliatory purposes, and to torture him for sadistic pleasure (as evidenced by Mena appearing to take "joy" in the beating, and doing so with an "evil smile").
Because the trial court's implied finding that Mena harbored separate intents in kidnapping Jorge and torturing him is supported by substantial evidence, section 654 did not preclude the court from punishing the offenses separately.
III. Correction of the Abstract of Judgment
Mena contends the abstract of judgment contains an error. At the sentencing hearing, the trial court ordered Mena to pay a restitution fine of $10,000 under section 1202.4, and a parole revocation restitution fine of $10,000 under section 1202.45. The abstract of judgment reflects these restitution orders, but also reflects an additional $10,000 probation revocation restitution fine under section 1202.44, which the trial court did not orally impose. The Attorney General agrees the abstract erroneously reflects this unimposed fine. We agree. (See People v. Delgado (2008) 43 Cal.4th 1059, 1070 [the abstract of judgment "cannot prevail over the court's oral pronouncement of judgment to the extent the two conflict"]; People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts have the inherent authority to correct clerical errors in abstracts of judgment].) Accordingly, we direct the trial court to amend the abstract of judgment to eliminate the $10,000 probation revocation restitution fine under section 1202.44.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to eliminate the $10,000 probation revocation restitution fine under section 1202.44, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
HALLER, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.