Opinion
E074270
08-25-2021
THE PEOPLE, Plaintiff and Respondent, v. VIRGINIA MARIE BACKLUND, Defendant and Appellant.
Cliff Gardner, under appointment by the Court of Appeal, and Brooke Acevedo for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, 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NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB1500074 William Jefferson Powell IV, Judge. Affirmed as modified with directions.
Cliff Gardner, under appointment by the Court of Appeal, and Brooke Acevedo for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAPHAEL J.
Defendant and appellant Virginia Marie Backlund was tried and convicted of torturing and murdering Christine Jo Kunstmann. Specifically, she was found guilty of first degree murder (Pen. Code, § 187, subd. (a)(1); count 1) with a torture-murder special circumstance (§ 190.2, subd. (a)(18)), and a separate count of torture (§ 206; count 2). She was sentenced to life without parole for count 1, plus a consecutive life term for count 2. Two others involved in Kunstmann's murder, Michael Angelo Perez and Deserae Lenore James, were tried and convicted on identical charges in a separate trial; we recently addressed their appeals in a nonpublished opinion. (People v. Perez et al. (Mar. 17, 2021, E072117) [nonpub. opn.].)
Undesignated statutory references are to the Penal Code.
In this appeal, Backlund contends that her jury's instructions were erroneous in several ways and that the cumulative error requires reversal even if any one of those errors were harmless taken individually. She further argues that the punishment for count two must be stayed pursuant to section 654. Finally, she contends that a parole revocation fine imposed pursuant to section 1202.45 should be stricken because she was sentenced to life without the possibility of parole.
We agree with Backlund that the punishment for count 2 should have been stayed pursuant to section 654. We modify the judgment to reflect this conclusion and affirm the judgment as modified, rejecting Backlund's other arguments.
I. BACKGROUND
Backlund, Perez, and James were romantically involved with one another, though Backlund testified that her sexual relations with James were coerced by Perez, rather than of her own volition. James and Backlund each have children with Perez.
Kunstmann knew Perez for years before her death in 2011. She described herself as being in love with him. He returned her feelings with emotional and physical abuse. She supported Perez financially, providing him and his girlfriends with cellphones, clothes, food, cigarettes, jewelry, and anything else he wanted, as well as transportation using her car. He regularly yelled at her, calling her names and threatening to end their friendship, including when she could not accommodate his financial demands. Friends of Kunstmann observed bruises on her, as well as physically aggressive behavior by Perez directed at Kunstmann.
According to the prosecution, in May 2011, Backlund, James, Perez, and two other friends of Perez, Deesha Sterling and Tabitha Duncan, subjected Kunstmann to a group beating that left her badly bruised. Shortly thereafter, over several days in late May or early June 2011, Backlund, Perez, and James tortured Kunstmann to death in the apartment where Perez and Backlund lived, and where James often stayed.
Backlund did not contest at trial that Kunstmann was tortured to death or that Backlund was present in the apartment while the murder was being carried out. The defense disputed, however, that Backlund directly participated in or aided and abetted the torture or murder. The defense's theory of the case was that Backlund failed to take action to help Kunstmann, but that it was only Perez and James who tortured and killed her. Based on Backlund's testimony and that of a psychologist who examined her, the defense suggested that Backlund was a victim of abuse by Perez, and that it was her fear of him that prevented her from calling the police or otherwise intervening.
The jury found Backlund guilty as charged, convicting her of both torture and murder and finding true the allegation that in committing the murder she personally inflicted torture on Kunstmann. The trial court sentenced her to life in prison without the possibility of parole for the murder conviction (count 1), plus a consecutive life term for the torture conviction (count 2).
II. DISCUSSION
A. CALCRIM No. 358
Backlund contends that she was prejudiced because the jury was not instructed with certain optional language of CALCRIM No. 358, which is a pattern instruction regarding how to consider evidence of pretrial statements by the defendant. Backlund concedes that in People v. Diaz (2015) 60 Cal.4th 1176, 1190 (Diaz), our Supreme Court held that the language at issue “need not be given sua sponte, ” and that her trial counsel made no request that it be given. She frames her argument, therefore, as a claim that her trial counsel provided ineffective assistance of counsel by failing to make the request. We find no merit in the argument.
1. Additional Background
Beginning in July 2011, Backlund made statements to police on multiple occasions. Some of these statements were recorded in formal interviews, but others were not. Some of Backlund's unrecorded oral statements were presented to the jury through the testimony of the person who heard them. One such unrecorded statement was made to a police officer who was driving her to the station for an interview in July 2011, shortly after Kunstmann's partially decomposed body was discovered and before police had even determined how Kunstmann had died. The officer testified that Backlund had commented that a child (he was unclear if she referred to her own child) had expressed to her that “they were afraid she wasn't going to come back” from being interviewed by police. Backlund said she told the child that they would “just hope and pray” that she did. The prosecution argued that this statement tended to show a consciousness of guilt, in the form of a “mindset... that she [was] going to be arrested.”
Additionally, in a recorded interview in 2015, Backlund told police that she had witnessed Kunstmann die in her apartment after several days of torture by Perez and James. In a previous unrecorded statement in July 2011, she had told a detective that the last time she had seen Kunstmann was May 31, 2011. She told the detective that Perez and James had taken Kunstmann to the hospital after she had a seizure, but that all three had returned after about half an hour and Kunstmann had then departed alone. As part of its closing, the prosecution argued that Backlund “can't get her story straight” because of repeated lies to police, proposing that the detectives conducting later interviews were “able to peel away each lie and get to the truth, ” namely, that Backlund “participated in this murder at the very least as an aider and abettor.”
The evidence also included the testimony of a high school classmate of Backlund and James, who recounted an unrecorded conversation with Backlund that took place before Kunstmann's death. Backlund had expressed to the classmate that she had “hit” Kunstmann for driving dangerously, specifically, because she “had stopped on the train tracks with [Backlund's] kids inside.” The prosecution mentioned the classmate's testimony in its closing, as part of a summary of the evidence.
The trial court instructed the jury regarding evidence of a defendant's statements with CALCRIM No. 358. As given, the instruction was the following: “You have heard evidence that the defendant made... oral or written statements before the trial. You must decide whether the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statements.” The trial court did not instruct the jury with the following additional language, which is bracketed in CALCRIM No. 358 to indicate that it is an optional choice: “[Consider with caution any statement made by [the] defendant tending to show [her] guilt unless the statement was written or otherwise recorded.]” (CALCRIM No. 358; see also CALCRIM Guide (2021) [brackets indicate “optional choices that may be necessary or appropriate, depending on the individual circumstances of the case”].)
The written version of the instruction contained a typo (“...an oral or written statements...”), which we have elided here.
2. Analysis
To demonstrate ineffective assistance of counsel, a defendant must show (1) defense counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) defense counsel's performance prejudiced the defendant, i.e., there is a “reasonable probability” that, but for counsel's failings, the defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Bolin (1998) 18 Cal.4th 297, 333.) In our view, Backlund has not made either of these required showings.
First, we are not persuaded that Backlund's counsel's performance was inadequate. To the contrary, although our record does not show counsel's actual reasoning, it could have been a reasonable tactical choice for counsel to decide not to request the optional language. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1059 [generally, a reviewing court “may not second-guess” trial counsel's strategic and tactical choices]; People v. Lucas (1995) 12 Cal.4th 415, 436-437 [there is a “‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance'”].) At least arguably, an instruction to view unrecorded statements with caution may focus the jury's attention on any recorded statements by the defendant. In this case, that is likely not what the defense would have wanted. Even if some inculpatory meanings can arguably be derived from the unrecorded statements at issue, there is no question that Backlund's recorded statements more directly pointed to her guilt. Indeed, the recorded statements include Backlund confessing that she personally “helped torture” Kunstmann and that she felt responsible for her death (“I was like, ‘Oh wow. Part of mine led her up to this'”), along with detailed explanations of exactly what she did to Kunstmann and her motivations for doing so. It would of course be reasonable for defense counsel to try to avoid highlighting problematic evidence, while emphasizing evidence that suggests a lesser degree of culpability. (See Diaz, supra, 60 Cal.4th at pp. 1192-1193 [“advising caution might not be in the defendant's interest” in certain contexts, for example, because the defendant may “wish to avoid any risk that the jury might apply the cautionary instruction to portions of the statements that he or she wanted the jury to accept”].)
Moreover, the optional cautionary language of CALCRIM No. 358 is intended primarily for circumstances where there is some question whether the defendant actually made the unrecorded statement at issue. (Diaz, supra, 60 Cal.4th at p. 1185 [“The cautionary instruction ‘is designed to aid the jury in determining whether an admission or confession was in fact made'”]; see also id. at p. 1194 [instruction “can be useful in highlighting for the jury the need to carefully consider a type of evidence that is particularly vulnerable to distortion, whether intentional or accidental”].) Where, as here, there is no evidence or argument that the defendant's statements were inaccurately reported by a witness, the cautionary language is at least arguably inapposite, and it would therefore be reasonable for defense counsel to refrain from requesting it.
For similar reasons, Backlund has not demonstrated any prejudice from her counsel's purportedly inadequate performance. Even before Diaz changed the law such that the trial court no longer had a sua sponte duty to give such a cautionary instruction, its erroneous omission had “frequently been held to be harmless error in light of such general instructions on witness credibility, ” such as CALCRIM No. 226. (Diaz, supra, 60 Cal.4th at p. 1191.) Here, the jury was instructed with CALCRIM No. 226. The lack of any dispute as to whether a defendant made an unrecorded oral statement was another ground for finding any such error harmless that is also applicable to our facts. (See People v. Stankewitz (1990) 51 Cal.3d 72, 94 [finding no prejudice in part because “[t]he testimony concerning defendant's oral admission was uncontradicted; defendant adduced no evidence that the statement was not made, was fabricated, or was inaccurately remembered or reported. There was no conflicting testimony concerning the precise words used, their context or their meaning”].) Moreover, having reviewed the evidence, including and especially Backlund's recorded admissions, we find no reasonable probability that including an instruction to view her unrecorded statements with caution would have changed the jury's conclusions in any respect.
In short, Backlund has not made either showing required to demonstrate ineffective assistance of counsel for failure to request that the jury be instructed with the optional cautionary language of CALCRIM No. 358.
B. CALCRIM No. 362
Relying on a footnote from Cool v. United States (1972) 409 U.S. 100 (Cool), Backlund argues that her constitutional rights were violated because the trial court failed to give a “balanced instruction” on the inferences the jury may draw from any false or misleading statements Backlund made before trial relating to the charged crimes. We are not persuaded.
The People argue that Backlund forfeited the argument. We find it more expedient to address the argument on the merits, and decline to address the parties' arguments regarding forfeiture.
1. Additional Background
At trial, the prosecution and defense both acknowledged that before trial Backlund had made inconsistent statements relating to the charged offenses. They drew different inferences, however, from this evidence. As noted, the prosecution urged the jury to view the inconsistencies as “lies, ” demonstrating consciousness of guilt. The defense urged the jury to view the inconsistencies as evidence of Backlund's domination by Perez around the time of Kunstmann's murder and as part of her efforts to protect herself and her child from him, tending to show her lack of intent to torture or kill Kunstmann.
Without objection, the trial court instructed the jury with an unmodified version of CALCRIM No. 362, which is entitled “Consciousness of Guilt: False Statements.” The instruction was the following: “If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show [she] was aware of [her] guilt of the crime and you may consider it in determining [her] guilt.[¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”
2. Analysis
“We review defendant's claims of instructional error de novo.” (People v. Johnson (2009) 180 Cal.App.4th 702, 707.) Where an instruction is ambiguous, “we inquire whether there is a reasonable likelihood that the jury misunderstood or misapplied the instruction in a manner that violates the Constitution.” (People v. Covarrubias (2016) 1 Cal.5th 838, 906 (Covarrubias).) Applying this standard, we find no error.
In Cool, the defense relied almost exclusively on exculpatory testimony by the defendant's alleged accomplice. (Cool, supra, 409 U.S. at pp. 101, 103, fn. 4.) The trial court instructed the jury that it could rely on an accomplice's testimony to support a guilty verdict, but did not mention that the jury also could rely on the evidence to acquit. (Id. at p. 103, fn. 4.) The Supreme Court stated that this circumstance would require reversal even if reversal were not already required because of a different error. (Ibid.) It reasoned that “even if it is assumed that [the alleged accomplice's] testimony was to some extent inculpatory, the instruction was still fundamentally unfair in that it told the jury that it could convict solely on the basis of accomplice testimony without telling it that it could acquit on this basis.” (Ibid.) By analogy to Cool's reasoning, Backlund argues that her due process rights were violated because CALCRIM No. 362 expressly states that a false or misleading statement may be considered evidence of consciousness of guilt as the prosecution urged, but does not expressly state that it could be viewed in the manner proposed by the defense, as evidence of innocence or at least a lesser degree of culpability.
In closing arguments, the defense did not ask the jury to acquit Backlund, only to find her guilty of the lesser included offense of involuntary manslaughter.
Backlund's argument based on Cool lacks force for several reasons. First, a premise of her argument is that an instruction allowing the jury to view certain deceptive or evasive behavior as consciousness of guilt endorses the prosecution's theory of the case. Our Supreme Court has rejected that premise. (See People v. Jackson (1996) 13 Cal.4th 1164, 1224 [concluding that similar consciousness of guilt instructions, including CALJIC No. 2.03 regarding evidence of false or misleading statements by the defendant, do not “improperly endorse the prosecution's theory or lessen its burden of proof”], abrogated in part on another point as stated in McGee v. Kirkland (C.D.Cal. 2009) 726 F.Supp.2d 1073, 1080.) More generally, our Supreme Court has repeatedly held that CALCRIM No. 362 is a correct statement of the law and does not run afoul of constitutional requirements. (People v. Howard (2008) 42 Cal.4th 1000, 1025 [“We have repeatedly rejected arguments attacking [CALCRIM No. 362]”].)
Second, unlike the instruction at issue in Cool, CALCRIM No. 362 did not tell Backlund's jury it could convict based on evidence of a false or misleading statement alone. On the contrary, it expressly instructed that “such a statement cannot prove guilt by itself.” As our Supreme Court has reasoned in a similar context: “An inference is not the same as a conclusion that each element has been shown beyond a reasonable doubt..., and so the instruction here did not replicate the defect in Cool: It did not put a thumb on the scale of the jury's deliberations by informing them they could return a guilty verdict based entirely on one piece of the prosecution's evidence. It instead placed limits on the circumstances in which the jury could consider [certain evidence], along with other evidence, as supporting a conclusion of guilt.” (People v. Peterson (2020) 10 Cal.5th 409, 456.)
Finally, the instruction in Cool mentioned using accomplice testimony as evidence of guilt, without informing the jury it could use the evidence in any other manner. (Cool, supra, 409 U.S. at p. 103, fn. 4.) CALCRIM No. 362, in contrast, allowed Backlund's jury to consider evidence of a false or misleading statement as supporting an inference of guilt, but also informed the jury that it could decide the evidence's actual “meaning and importance.” The instruction is not reasonably read to suggest that evidence of false or misleading statements by Backlund could be viewed only as evidence of an awareness of guilt, rather than innocence.
We find no violation of Backlund's constitutional rights or other instructional error with respect to CALCRIM No. 362.
C. CALCRIM Nos. 224 & 225
Backlund contends that on “the unusual record of this case” the pattern instructions given regarding circumstantial evidence effectively reduced the prosecution's burden of proof with respect to direct evidence. We disagree.
The People argue Backlund forfeited this argument by failing to raise it in the trial court. Again, we find it more expedient to reach the merits of Backlund's argument rather than address the parties' arguments regarding forfeiture.
1. Additional Background
The trial court instructed the jury on the use of circumstantial evidence using CALCRIM Nos. 224 & 225. CALCRIM No. 224 deals with the sufficiency of circumstantial evidence generally, while CALCRIM No. 225 specifically addresses circumstantial evidence of intent or mental state.
The jury was also instructed with CALCRIM No. 223, defining what is meant by the distinction between direct and circumstantial evidence.
These two instructions both stated in relevant part: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.” CALCRIM No. 224 cautioned generally that “before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.” CALCRIM No. 225 made the same point regarding circumstantial evidence of the required intent or mental state for the charged acts: “[B]efore you may rely on circumstantial evidence to conclude that the defendant had the required intent/ and/or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent and/or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent/ and/or mental state and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent/ and/or mental state was not proved by the circumstantial evidence.”
2. Analysis
Backlund argues that “[b]y explicitly limiting the quoted principles to circumstantial evidence, ” CALCRIM Nos. 224 and 225 “logically told the jurors that these principles did not apply to direct evidence.” On that basis, she asserts that the jury may have understood that direct evidence of her culpable mental state-particularly, her admissions to police-could be adopted as evidence of guilt even if it found her statements were susceptible to “an alternate and reasonable explanation, ” namely, as evidence of “Perez's control over, and abuse of... Backlund.” She proposes that the jury's instructions on circumstantial evidence effectively lowered the prosecution's burden of proof with respect to direct evidence and allowed the jury to convict her despite direct evidence that was reasonably susceptible to two interpretations, one supporting a guilty verdict and the other acquittal.
Backlund's argument lacks merit. A series of Court of Appeal decisions have rejected the contention that CALCRIM Nos. 223, 224, or 225 undermine the reasonable doubt standard or presumption of innocence in the manner that Backlund proposes. (People v. Golde (2008) 163 Cal.App.4th 101, 118 [upholding CALCRIM Nos. 223, 224, and 225]; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186-1187 [upholding CALCRIM Nos. 223 and 224]; People v. Anderson (2007) 152 Cal.App.4th 919, 929-934 [upholding CALCRIM Nos. 223 and 224, stating “Defendant contends that because [CALCRIM No. 224] is limited to circumstantial evidence and sets forth basic reasonable doubt and burden of proof principles, it gives the false impression these principles apply only to circumstantial evidence, not direct evidence. Defendant misreads the instruction”].) Our Supreme Court has cited these Court of Appeal decisions with approval in the course of upholding equivalent CALJIC instructions. (People v. Livingston (2012) 53 Cal.4th 1145, 1166.) Backlund does not acknowledge or attempt to distinguish this line of case law in her briefing.
Backlund's reliance on People v. Vann (1974) 12 Cal.3d 220 (Vann) and People v. Crawford (1997) 58 Cal.App.4th 815 (Crawford) is misplaced. In those cases, the appellate courts considered circumstances where the trial court had failed to give standard instructions setting out basic reasonable doubt and burden of proof principles. (Vann, supra, 12 Cal.3d at p. 225; Crawford, supra, 58 Cal.App.4th at p. 817.) The courts both held that the circumstantial evidence instructions that were given were insufficient to cover the same ground and render the errors harmless. (Vann, at p. 226; Crawford, at p. 817.) Here, in contrast, the trial court did give the separate, standard instructions on reasonable doubt and the burden of proof. Thus, the instructions on circumstantial evidence were properly contextualized here, and there is no reasonable likelihood the jury misunderstood or misapplied them in the manner Backlund has proposed. (See Covarrubias, supra, 1 Cal.5th at p. 906.)
D. Cumulative Error
Backlund argues that she is entitled to reversal because of cumulative errors in the jury instructions. We have found no errors, so the cumulative error doctrine does not apply.
E. Section 654
Under section 654, “[a]n 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.” This restriction applies not only to a single act violating multiple code provisions, but also to an indivisible “‘course of conduct'” violating several statutes. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209.) Whether a course of conduct is divisible for purposes of section 654 depends on the intent and objective of the defendant. (People v. Latimer, supra, 5 Cal.4th at pp. 1207-1209.) If multiple offenses “‘were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'” (People v. Correa (2012) 54 Cal.4th 331, 336.)
The parties agree that when a special circumstance allegation is based on the commission of a particular underlying offense, section 654 precludes imposition of punishments for both the special circumstance and the underlying offense. (People v. Hensley (2014) 59 Cal.4th 788, 828; People v. Harris (1989) 47 Cal.3d 1047, 1102-1103.) Our issue, then, is whether the torture-murder special circumstance of count 1 is based on commission of the substantive offense of torture alleged as count 2. On that point, involving the application of the general principle to our record, the parties disagree.
Backlund contends the same course of conduct underlies the torture-murder special circumstance alleged in relation to count 1 and the separate offense of torture charged as count 2, so the punishment for count 2 should have been stayed pursuant to section 654. The People argue that section 654 does not apply because the evidence could be interpreted to show that Backlund “either committed or aided and abetted a series of proximally distant acts of torture, ” so “the offense of torture (as charged in count 2) was not necessarily essential to the special circumstance allegation of torture-murder, but was divisible therefrom.”
We note that in the related appeal arising from the convictions of Perez and James, the People took a different position, conceding that section 654 applied because the torture-murder special circumstance was based on the same course of conduct as the separate torture count.
Our review of the trial court's express or implicit findings of fact regarding the defendant's intent and objective is deferential, to be upheld if supported by substantial evidence. (People v. Andra (2007) 156 Cal.App.4th 638, 640.) Nevertheless, on the record here, we must reverse.
Torture is an offense that can be, and was here, charged and tried as a course of conduct rather than as a discrete act. (See People v. Hamlin (2009) 170 Cal.App.4th 1412, 1429.) In this case, moreover, we find no basis in the evidence to view any particular act of torture as separate from the murder. The cause of death, as best as it could be determined, was no one particular injury, but rather the entire course of conduct, and the resulting accumulation of attacks on the body.
As the People point out on appeal, “[u]nder section 654, a course of conduct divisible in time, though directed to one objective, may give rise to multiple convictions and multiple punishment ‘where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.'” (People v. Lopez (2011) 198 Cal.App.4th 698, 717-718 (Lopez).) In Lopez, for example, the theft of a purse was temporally separated from the defendant's later use of an access card he discovered in the purse, and there was no evidence that the defendant knew that the access card was in the purse when he stole it, so section 654 did not apply to bar multiple punishment. (Lopez, supra, 198 Cal.App.4th at pp. 717-718 .)
Here, however, the temporally separated acts of torture demonstrated by the evidence are all part and parcel of the murder, rather than multiple separate offenses. Backlund's opportunity to reflect and renew her intent between acts of torture show only that the murder was deliberate and premeditated, not that she committed any act of torture separate from the murder. And there is no non-speculative basis in the record to conclude that Backlund's intent changed at any particular point from only intent to inflict pain to intent to kill.
On this record, therefore, we conclude that the substantive crime of torture is not divisible from the torture-murder special circumstance. The trial court therefore should have stayed the sentence for count 2 pursuant to section 654 as the lesser of the two punishments.
F. Parole Revocation Fine
The trial court imposed and stayed a parole revocation fine pursuant to section 1202.45. In briefing, Backlund argued, and the People conceded, that given Backlund's sentence to life without the possibility of parole on count 1, no such fine should have been imposed. Recently, however, the California Supreme Court clarified that where, as here, a defendant is sentenced to both a term of life without the possibility of parole and a term that allows for the possibility of parole, it is proper to impose and stay the parole revocation fine. (People v. Baker (2021) 10 Cal.5th 1044, 1108-1109.) As the Supreme Court noted, the “‘[d]efendant is in no way prejudiced by the assessment of the fine, which will become payable only if he [or she] actually does begin serving a period of parole and his [or her] parole is revoked.” (Id. at p. 1109.) We are bound to follow the Supreme Court's decision on the issue, so we reject Backlund's argument that the parole revocation fine should be stricken.
III. DISPOSITION
The life sentence imposed on count 2 is stayed pursuant to section 654. The trial court is directed to prepare and forward to the appropriate agencies an amended abstract of judgment reflecting this modification. As modified, the judgment is affirmed.
We concur: RAMIREZ P. J.MENETREZ J.