Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 08CM7049 Thomas DeSantos, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant Francisco Pimentel.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Felix Avelar.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Prison inmates Francisco Pimentel, who was serving a sentence of life without the possibility of parole, and Felix Avelar attacked another inmate while in the prison yard. Tried as co-defendants, a jury convicted both Pimentel and Avelar of attempted murder (Pen. Code, §§ 664/187, subd. (a); count 1) and being an inmate in possession of a sharp instrument (§ 4502, subd. (a); count 4), and found true as to both a great bodily injury enhancement attached to count 1 (§ 12022.7, subd. (a)). The jury also convicted Pimentel of aggravated assault with a deadly weapon on an inmate by a prisoner serving a life sentence (§ 4500; count 2), and assault with a deadly weapon by an inmate (§ 4501; count 3), and found true great bodily injury enhancements attached to both counts (§ 12022.7, subd. (a)). The jury, however, found Avelar not guilty of assault with a deadly weapon by an inmate (§ 4501).
All further statutory references are to the Penal Code unless otherwise stated.
Outside the jury’s presence, Pimentel admitted allegations he had suffered a prior conviction for a serious felony pursuant to section 667, subdivision (a)(1), and suffered a prior conviction for a serious felony pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). Avelar admitted an allegation that he suffered two prior convictions for which he did not remain free from prison custody pursuant to section 667.5, subdivision (b).
Pimentel was sentenced on count 2 to a total indeterminate sentence of 27 years to life, plus three years for the great bodily injury enhancement, to be served consecutively to his current sentence of life without the possibility of parole. Pursuant to section 654, the court stayed the sentences on count 1 of 27 years to life plus three years, count 3 of 25 years to life plus three years, and count 4 of 25 years to life.
Avelar was sentenced to a total determinate term of 13 years, comprised of nine years for the attempted murder, plus three years for the great bodily injury enhancement and one year for the prior prison term. The court imposed and stayed, pursuant to section 654, a middle term of three years on count 4. The court deemed this case the principal case and resentenced Avelar, making his prior terms of imprisonment consecutive to the current case.
Both Pimentel and Avelar appeal. Pimentel contends: (1) his conviction in count 3 must be reversed because he could not be convicted of violating section 4501; and (2) the parole revocation fine the court imposed must be stricken because he is serving a sentence of life without the possibility of parole. Avelar contends that his attempted murder conviction must be reversed because the jury instructions permitted a conviction of attempted murder through implied malice. Pimentel joins in Avelar’s argument to the extent it benefits him. We reverse Pimentel’s conviction on count 3, but otherwise affirm both judgments.
FACTS
At approximately 10:27 a.m. on April 25, 2007, Corcoran State Prison Correctional Officer Todd Cogdill was observing inmates in the prison yard from an armed post located 14 to 15 feet above the yard. He had access to a 40-millimeter direct impact rifle that shoots a blue foam rubber tip round, which is a non-lethal weapon, and a mini-14 rifle, which is a lethal weapon.
Video taken that morning by a camera located about six feet above Cogdill showed prison inmates Avelar and Salvador Verduzco standing next to each other along a wall, with Avelar to Verduzco’s right, when Pimentel walked over to the two and stood next to Verduzco, on his left. After about 20 seconds, Pimentel began striking Verduzco on the head and neck in a hitting and stabbing motion. Cogdill estimated Pimentel struck Verduzco in the neck and upper back ten or more times, but he did not see anything in Pimentel’s hands.
Upon seeing the attack, Cogdill immediately yelled “get down” several times and grabbed the direct impact rifle. When none of the inmates complied by getting down in a prone position, Cogdill fired a round at Pimentel’s thigh, but missed. While reloading the direct impact rifle and yelling “get down, ” Cogdill saw Verduzco, who had blood on his back and neck, break away from Pimentel and run along the wall towards Cogdill. Pimentel pursued Verduzco, with Avelar following the two; before Avelar did so, he made eye contact with Cogdill.
The conflict continued out of the camera’s view. Cogdill could see that Pimentel and Avelar resumed the attack on Verduzco, who was curled up in a corner against the wall with his hands over his head and neck, which had a lot of blood on them. Cogdill took another shot at Pimentel with the direct impact rifle, but was not sure if he hit him. Cogdill saw Avelar strike Verduzco in his head and neck area with hitting and stabbing motions, but did not see anything in Avelar’s hands. Pimentel never stopped attacking Verduzco; when Avelar joined the attack, he would hit and backup, hit and backup. Cogdill then fired a third direct impact round, which hit Avelar in the left shoulder. Although Pimentel and Avelar backed away from Verduzco, they began advancing toward him again.
Based on the severity and life-threatening nature of the attack, and fearing for Verduzco’s life as he was no longer defending himself, Cogdill chambered his lethal weapon and got into position to shoot either Pimentel or Avelar if they resumed the attack. When he chambered the weapon and brought it to his shoulder, “they got down.” He had Pimentel and Avelar prone out and opened the sally port door to the yard so Verduzco could receive medical attention. Cogdill saw an object laying about four feet behind Pimentel’s foot, but did not see how the object got there. The video showed an item tossed around the yard that Cogdill believed was a weapon. As he watched, he saw the object being passed by inmates on the yard. A handle, which Cogdill believed to be the weapon, was later found by a storm drain.
Sergeant Eric Lawton came to assist. As he scanned the yard, he saw Avelar get up and throw something at the wall and return to the prone position. He heard the object explode; it sounded like glass. When Lawton inspected the yard, he found small pieces of bloody glass in the area along the wall.
After the incident, Cogdill saw some blood on Avelar’s left hand. When examined, Avelar had blood on his hands, left bicep and chin; he also had what looked like a graze on his left knee. Pimentel had blood on his hands, a minor cut on one of his fingers and abrasions on his knuckles. Verduzco had numerous stab wounds all over his upper body, which would require sutures, and he was covered in blood.
Defense Cases
Avelar testified that he and Verduzco were standing together when Pimentel walked up and started talking to Verduzco. Avelar did not pay attention to the conversation. A few seconds later, Avelar looked to his side and saw Pimentel attacking Verduzco with an object that looked like it had a “little black” on it with an inch and a half length of glass. When Avelar saw the object in Pimentel’s hand and that he was not stopping the attack, Avelar thought Pimentel would kill Verduzco unless he intervened. Avelar tried to break up the attack by putting himself between the two, with his face toward Verduzco and his back toward Pimentel, but Pimentel did not stop trying to strike Verduzco. Although Avelar had his back to Pimentel, he did not think that Pimentel would attack him.
Avelar saw the handle of Pimentel’s weapon fly out of Pimentel’s hand. Pimentel was still holding the piece of glass, with which he continued to strike Verduzco. After Avelar was shot in the shoulder, Pimentel stopped his attack. When Avelar proned out, he saw a piece of broken glass near Pimentel. Avelar heard Pimentel say “I’m not going to have a broken piece by me, ” and saw Pimentel get up from his prone position and throw the glass against the wall before returning to a prone position. Avelar denied ever hitting Verduzco or having an object in his hands at any time; he also denied getting up after he proned out. Avelar claimed he got blood on his hands when Pimentel pushed him into Verduzco.
Pimentel did not testify or otherwise present any evidence.
DISCUSSION
I. Avelar’s Appeal
The trial court instructed the jury on attempted murder with CALCRIM No. 600 and on assault by a prisoner serving a life sentence with CALCRIM No. 2720.
CALCRIM No. 600, as given, states: “Each defendant is charged in Count [1] with attempted murder. To prove that the defendant is guilty of attempted murder, the People must prove that, one, the defendant took at least one direct but ineffective step toward killing another person, and two, the defendant intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. [¶] A direct step is one that goes beyond planning or preparation, and shows that a person is putting his or her plan into action. [¶] A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.”
CALCRIM No. 2720, as given, states in part: “The defendant, Francisco Pimentel, is charged in Count [2] with assault with a deadly weapon with malice aforethought while serving a life sentence in violation of Penal Code Section 4500. [¶] To prove that the defendant is guilty of this crime, the People must prove that one, the defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person. [¶] Two, the defendant did that act willfully. [¶] Three, when the defendant acted he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone. [¶] Four, when the defendant acted he had the present ability to apply force with a deadly weapon to a person. [¶] Five, the defendant acted with malice aforethought. [¶] And six, when he acted, the defendant had been sentenced to a maximum term of life in the state prison in California. [¶]... [¶] There are two kinds of malice aforethought. Express malice and implied malice. Proof of either is sufficient to establish the state of mind required for this crime. [¶] The defendant acted with express malice if he unlawfully intended to kill the person assaulted. [¶] The defendant acted with implied malice if one, he intentionally committed an act. [¶] Two, the natural consequences of the act were dangerous to human life. [¶] Three, at the time he acted he knew his act was dangerous to human life. [¶] And four, he deliberately acted with conscious disregard for human life. [¶] Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act is committed. It does not require deliberation or the passage of any particular period of time.”
Avelar contends the trial court committed reversible error by instructing the jury with CALCRIM Nos. 600 and 2720. He argues those instructions allowed the jury to find him guilty of attempted murder on an implied malice theory, which is impermissible because attempted murder requires the specific intent to kill. Though CALCRIM No. 600 informed the jury attempted murder required the intent to kill the victim, he argues that the “malice aforethought” instruction in CALCRIM No. 2720 might have confused the jury as to the mental state required for count 1, attempted murder, particularly in light of the fact that both the attempted murder charge in the information and the description of attempted murder on the verdict form specifically mentioned “malice aforethought.” This contention is meritless.
The information, which was read to the jury immediately preceding the instructions, alleged with respect to the count 1 attempted murder charges that the defendants “did commit a felony, namely violation of Section 664/187 Subsection (a) of the Penal Code of the State of California in that said defendants did unlawfully, and with malice aforethought, attempt to murder Inmate Salvador Verduzco, a human being.” The verdict form on the attempted murder charges that the jury signed with respect to both defendants states that the jury found Pimentel and Avelar “GUILTY of unlawfully, and with malice aforethought attempt to murder inmate Salvador Verduzco T-15729, a human being, a violation of Section 664/187(a) of the Penal Code of the State of California, as alleged in Count 1 of the Information.”
Attempted murder requires proof of a direct but ineffectual act done towards killing another human being and the specific intent to unlawfully kill another human being. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467 [citing CALJIC No. 8.66 with approval].) Unlike the mental state for murder, which does not require intent to kill but only a conscious disregard for life, attempted murder requires the specific intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 739.)
“Malice aforethought, ” required to prove assault by a prisoner serving a life sentence under section 4500, “has the same meaning as it has for murder convictions, requiring either an intent to kill or ‘knowledge of the danger to, and with conscious disregard for, human life.’” (People v. Jeter (2005) 125 Cal.App.4th 1212, 1216.) Thus, malice aforethought can be express or implied: it is express when the defendant manifests “a deliberate intention unlawfully to take away the life of a fellow creature” (§ 188); it is implied when “‘“the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”’” (People v. Dellinger (1989) 49 Cal.3d 1212, 1218.)
We must consider the instructions as a whole to determine whether there is a reasonable likelihood that the jury improperly construed them to convict Avelar of the attempted murder on the theory of implied malice. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.) CALCRIM No. 600 correctly states the elements of attempted murder, unambiguously instructing that attempted murder requires proof beyond a reasonable doubt that Avelar intended to kill his victim. Nothing in that instruction suggests that the jury could find Avelar guilty of attempted murder with implied malice.
The instruction on assault by a prisoner serving a life sentence, which included a description of implied malice as an element of that offense, specifically stated that the instruction applied only to Pimentel and to that crime. It was not given in such a fashion as to confuse the jury into thinking it applied to attempted murder. Moreover, the jury was instructed that “[e]ach of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.”
Numerous cases Avelar relies on have concluded that instructing on attempted murder with an instruction on implied malice is error. (See People v. Beck (2005) 126 Cal.App.4th 518, 522 (Beck) [“[t]he use of unmodified CALJIC Nos. 8.10 [murder] and 8.11 [malice aforethought] in attempted murder cases was recognized as error”]; People v. Lee (1987) 43 Cal.3d 666, 670 (Lee) [“implied malice instructions should never be given in relation to an attempted murder charge”]; People v. Santascoy (1984) 153 Cal.App.3d 909, 918 (Santascoy) [“we hold that it was error to include CALJIC No. 8.11 [malice aforethought] as part of the instructions... it introduced the possibility of confusing the jury”].) We find these cases inapposite.
Unlike the instructions here, in these cases the instruction describing implied malice was closely tied to the attempted murder instruction. In Lee, the jury was specifically instructed that, “‘Malice may be implied when the attempt [sic] killing results from an intentional act... which act is done... with a wanton disregard for human life. When it is shown that an attempt [sic] killing resulted from the intentional doing of an act with implied malice, no other mental state need be shown to establish the mental state of malice aforethought....’ (CALJIC No. 8.11, as modified, italics added.)” (Lee, supra, 43 Cal.3d at p. 670.) “‘When the attempt [sic] killing is the direct result of such an intentional act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being.’ (CALJIC No. 8.31, as modified, italics added.)” (Lee, at p. 670.) Hence the instructions in that case incorrectly and explicitly stated that attempted murder can be found with only implied malice.
While Beck acknowledged that instructing on implied malice in attempted murder cases is error, in that case the jury was instructed first with CALJIC No. 8.66, which defined murder as the unlawful killing of a human being with malice aforethought and stated that in order to prove attempted murder, it must be proven that the “‘person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being, ’” but that instruction was “immediately followed” by CALJIC No. 8.11, which reintroduced the concept of implied malice and informed the jury that either express or implied malice would “‘establish the mental state of malice aforethought.’” (Beck, supra, 126 Cal.App.4th at pp. 522-523.).)
Finally, in Santascoy, the Court of Appeal found no contradiction in instructing on both attempted murder and implied malice in that case because the jury was never instructed that anything less than specific intent to kill was required for attempted murder, but nonetheless held that it was error to include the implied malice instruction because it “[came] down on the side of caution.” (Santascoy, supra, 153 Cal.App.3d at p. 918.)
Here, the only way the jury might have been confused is if it had considered, when filling out the verdict form on the attempted murder count, what the term “malice aforethought” on the verdict form meant. In order to determine that, the jury would have referred to the instruction for attempted murder, CALCRIM No. 600, which does not even use the term “malice aforethought, ” and not finding the definition there, then decided to refer to the instruction for assault by a prisoner serving a life sentence, CALCRIM No. 2720, which does use the words “malice aforethought” and defines them to include express and implied malice. We assume, however, that the jury followed its instructions to consider each crime separately. (People v. Ramirez (1997) 55 Cal.App.4th 47, 59; People v. Yoder (1979) 100 Cal.App.3d 333, 338.)
Avelar also contends the closing argument by Pimentel’s attorney might have misled the jurors into considering implied malice on the attempted murder charge. In his closing argument, Pimentel’s attorney stated there was “something significant we need to talk about is in Count [1] on the attempted murder charge. This is a very specific charge. It has very specific elements, and it contains the element of specific intent.” He then proceeded to discuss the elements of count 2, assault by a life prisoner, without associating them with count 2, including the following regarding malice aforethought: “Now, you also have to find the defendant acted with malice aforethought. In other words, that he intended to kill this person, all right? And that he thought about it, that he calculated a decision, and then did it. [¶] The jury instructions advise you over how you can find malice aforethought. Reflect on your video and what happened. There was a conversation going on. All of a sudden the striking motions start. [¶] You’re going to have to look at that evidence and decide, does that constitute malice aforethought? Apply the elements as shown in your jury instructions. [¶] You must decide that if you get past [the] point of express malice, and you want to talk about implied malice, in other words, to imply that he had malice aforethought by his actions, then you have to decide some very specific things. [¶] First of all, that he intentionally committed an act. I leave that to you. You must decide that the natural consequences of the acts of his striking motions were dangerous to human life. Third, that at the time those acts were taking place he knew that the striking motions he was making of whatever nature were in fact dangerous to human life, and that knowing that he completely disregarded it and acted. [¶] Okay. Those are things that you need to find before you get to a guilty verdict for attempted murder. To the extent that you cannot find those things, you must return a verdict of not guilty.” Pimentel’s attorney then briefly discussed count 2, assault by a prisoner doing a life term, as well as assault on a prisoner and possession of a weapon, arguing there was no evidence he had a weapon in his hand.
Even though Pimentel’s attorney misspoke, there is no reason to believe the jury was misled. The trial court instructed the jury that it “must follow the law as I explain it to you even if you disagree with it[, ]” and “[i]f you believe that the attorneys comments on the law conflict with my instructions, you must follow my instructions.” Here, Pimentel’s attorney’s comments obviously conflicted with the jury instructions. Significantly, Pimentel’s attorney pointed the jurors to the instructions, which specifically stated that count 2 applied only to Pimentel.
Moreover, there was no confusion in the closing arguments of either the prosecutor or Avelar’s attorney regarding implied malice. In fact, the prosecutor argued that the only conclusion the jury could draw from the evidence was that Pimentel and Avelar both struck Verduzco with a weapon with the intent to kill him, thereby causing great bodily injury, while Avelar’s attorney argued Avelar could not be guilty of the charges because there was no evidence he possessed a weapon and he never attempted to kill Verduzco. In rebuttal, the prosecutor specifically argued that “express malice aforethought is whether or not he intended to kill the person, and... it is the... People’s position and theory of the case that he most certainly did because he only stopped when the officer chambered his round... [, ]” but if the jury did not find that either defendant intended to kill Verduzco, “but they intended to strike or hurt” him, that is the intent needed for Count [3].”
In sum, we find no reasonable likelihood that the instructions, considered in their entirety, could have been understood in the manner Avelar suggests. (See People v. Smithey (1999) 20 Cal.4th 936, 964.)
Even if the trial court erred in instructing on implied malice with CALCRIM No. 2720, however, that error was harmless beyond a reasonable doubt. (Lee, supra, 43 Cal.3d at p. 676, adopting harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24.) According to the People’s evidence, Avelar joined Pimentel’s attack of Verduzco; the attack was so vicious Cogdill feared for Verduzco’s life. Avelar, however, claimed that he never hit Verduzco, but instead was trying to protect him. Either Avelar joined in the attack with the intent to kill Verduzco, as shown by the seriousness of the attack, or he did not attack him at all. In finding Avelar guilty on counts 1 and 4, the jury necessarily found unbelievable his defense that he was protecting Verduzco. There was no other defense or evidence presented that would have supported implied malice rather than express malice; the only malice the jury could possibly find in the evidence before it was express malice. For this reason, viewing the record as a whole, any conceivable error was not prejudicial and therefore harmless.
II. Pimentel’s Appeal
A. The Section 4501 Conviction
Pimentel, a prisoner serving a life sentence at the time of the instant offenses, was convicted of violating both sections 4500 and 4501. Pimentel contends he cannot be convicted of both crimes because section 4501 is a lesser included offense of section 4500. While we agree that Pimentel cannot be convicted of both crimes, we reach this conclusion because, by section 4501’s express terms, having been convicted of violating section 4500, he cannot be convicted of violating section 4501.
Section 4500 provides, in pertinent part: “Every person while undergoing a life sentence, who is sentenced to state prison within this state, and who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death or life imprisonment without possibility of parole.... ” Section 4501 provides, in pertinent part: “Except as provided in Section 4500 , every person confined in a state prison of this state who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, shall be guilty of a felony....” (Italics added.)
Before January 1, 2005, section 4501 specifically stated that it did not apply to prisoners serving a life sentence: “Every person confined in a state prison of this state except one undergoing a life sentence who commits an assault upon the person of another... shall be guilty of a felony....” (Former § 4501 (italics added); see People v. Noah (1971) 5 Cal.3d 469, 475.) The statute was amended in 2004 to remove the phrase “except one undergoing a life sentence” and add the phrase “[e]xcept as provided in Section 4500.” (Stats. 2004, ch. 405, § 17, p. 2824.) A Senate Rules Committee analysis explains the purpose of the amendment: “At the request of the California District Attorneys Association, this bill corrects a drafting ambiguity. Penal Code Sections 4500 and 4501 are intended to complement each other. However, Penal Code Section 4501 uses non-standard language to exempt Penal Code Section 4500. Instead of ‘except one undergoing a life sentence, ’ the exception in Penal Code Section 4501 should read ‘Except as provided in Section 4500.’ This standard language would clarify that Penal Code Section 4501 applies to all cases except for those covered by Penal Code Section 4500.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business analysis of Sen. Bill No. 1796 (2003-2004 Reg. Sess.) as amended July 27, 2004, p. 6.)
Thus, the elements of the offense set forth in section 4500 are: (1) an assault on another person with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury; (2) with malice aforethought; (3) by a state prisoner; (4) serving a life term. The elements of the offense set forth in section 4501 are: (1) an assault on another person with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury; (2) by a state prisoner; (3) except as provided in section 4500. As applicable here, “[e]xcept as provided in Section 4500” means, at the very least, that if a state prisoner serving a life term commits an aggravated assault with malice aforethought, thereby violating section 4500, section 4501 does not apply. This is precisely the case here — Pimentel was convicted in count 2 of violating section 4500. Since he was convicted of that crime, he cannot also be convicted of violating section 4501. Accordingly, his conviction in count 3 must be reversed.
Since Pimentel cannot be convicted of violating section 4501 under its express terms, we need not decide whether section 4501 is a lesser included offense of section 4500, as Pimentel contends. We note that Pimentel’s contention appears to be based on the commentaries following the CALCRIM jury instructions on these crimes, namely CALCRIM Nos. 2720 and 2721, which define the elements of section 4500 and section 4501 respectively. Under the heading “Lesser Included Offenses” following CALCRIM No. 2720, this note is included: “In People v. Noah (1971) 5 Cal.3d 469, 476-477, the court held that assault by a prisoner not serving a life sentence, section 4501, is not a lesser included offense of assault by a prisoner serving a life sentence, section 4500. The court based its conclusion on the fact that section 4501 includes as an element of the offense that the prisoner was not serving a life sentence. However, section 4501 was amended, effective January 1, 2005, to remove this element. The trial court should, therefore, consider whether section 4501 is now a lesser included offense to section 4500.” (Judicial Council of California Criminal Jury Instructions (2011) CALCRIM No. 2720, p. 652.) Under the heading “Related Issues” following CALCRIM No. 2721, this statement is included: “Previously, this statute did not apply to an inmate ‘undergoing a life sentence.’ (See People v. Noah (1971) 5 Cal.3d 469, 477.) The statute has been amended to remove this restriction, effective January 1, 2005. If the case predates this amendment, the court must add to the end of element 5 [‘When (he/she) acted, the defendant was confined in a [California] state prison”], ‘for a term other than life.’” (Judicial Council of California Criminal Jury Instructions (2011) CALCRIM No. 2721, p. 657.) These comments neglect to mention that while the 2004 amendment removed the “undergoing a life sentence” language from section 4501, it added the “[e]xcept as provided in Section 4500” language. In light of this, we suggest the committee revisit this issue.
B. Parole Revocation Fine
Pimentel contends the trial court erred when it imposed a $10,000 parole revocation fine pursuant to section 1202.45 because he was serving a term of life without the possibility of parole for his prior offenses.
In support of this contention, Pimentel cites People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan), which held that the parole revocation fine set forth in section 1202.45 should not be imposed when the sentence for the present offenses included a term for which there was no parole eligibility. (Oganesyan at pp. 1181, 1183-1185.) There, the defendant was convicted on two counts: the sentence on one count was a term of life without the possibility of parole, while the other count involved an indeterminate sentence of 15 years to life, plus an additional term for a firearm use enhancement, where the defendant conceivably could be paroled. ( Id., at pp. 1183-1184.) The Court of Appeal held it was not error for the trial court to decline to impose the section 1202.45 parole revocation fine, reasoning that the Legislature could not have intended the fine be imposed in cases such as this one, as “[t]he chances of actual recoupment of costs in a case such as this where there are parole and nonparole offenses are almost beyond rational belief, ” and the defendant’s sentence did not presently allow for parole. (Oganesyan at pp. 1185-1186.) From Oganesyan, Pimentel reasons the parole revocation fine is unauthorized because his overall sentence does not permit a grant of parole.
The Attorney General, however, argues that People v. Brasure (2008) 42 Cal.4th 1037 (Brasure), controls. There, our Supreme Court held that a parole revocation fine was properly imposed against a death penalty defendant who in the same case also was sentenced on other counts to a determinate term pursuant to section 1170. (Brasure, supra, 42 Cal.4th at p. 1075.) The Court reasoned that because section 3000, subdivision (a)(1) provides that a term under section 1170 “shall include a period of parole, ” and section 1202.45 requires assessment of a parole revocation restitution fine “[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole, ” the fine was required. (Brasure, supra, 42 Cal.4th at p. 1075.) In so holding, the court distinguished Oganesyan on the basis that it did not involve a determinate term of imprisonment imposed under section 1170, but instead involved a sentence of life without the possibility of parole and an indeterminate life sentence. (Brasure, supra, 42 Cal.4th at p. 1075.)
Section 1202.45 provides that in every case where a person is convicted of a crime, and the sentence includes a period of parole, the trial court shall impose the parole revocation fine. The sentence on the present offenses for which Pimentel stands convicted includes the possibility of parole, as Pimentel was sentenced to indeterminate terms under section 1168, and section 3000, subdivision (a)(1) expressly provides that sentences under section 1168 shall include a period of parole. By the very terms of section 1202.45, the parole revocation fine only becomes due if a defendant is granted parole and that parole is revoked; the fine remains suspended until such time. (§ 1202.45; Brasure, supra, 42 Cal.4th at p. 1075.)
In Oganesyan, the sentence on the current offenses did not allow for parole. The other cases Pimentel relies on, People v. Jenkins (2006) 140 Cal.App.4th 805, 819, and People v. Petznick (2003) 114 Cal.App.4th 663, 687, also involved sentences on the current offenses that did not allow for parole. Pimentel’s case is distinguishable from these in that his sentence on the present offenses does allow for parole. We are not aware of any published decision addressing the application of a section 1202.45 fine to a situation like Pimentel’s where the defendant is already sentenced to a term of life imprisonment without the possibility of parole and is then sentenced on subsequent offenses to a term that theoretically could include parole.
The trial court sentenced Pimentel only with respect to the current offenses, which included the theoretical possibility of parole, and thus imposed the section 1202.45 parole revocation fine. The trial court does not, and should not, engage in speculation as to the eventual outcome of any prior offenses for which a defendant already has been sentenced. Accordingly, we conclude the trial court did not err when it imposed and stayed the section 1202.45 fine because Pimentel’s sentence for the current offenses includes the theoretical possibility of parole, even though the conditions for the removal of the stay may never materialize.
C. Joinder in Avelar’s Brief
Pursuant to California Rules of Court, rule 8.200(a)(5), an appellant may join in the brief of his co-appellant. Here, Pimentel joins in the arguments made in Avelar’s brief to the extent he can benefit from such arguments. This Court having rejected the instructional issue Avelar raised in his brief, and Pimentel having failed to make any further arguments particularized to his position in this case, there are no further issues raised that require discussion or reversal.
DISPOSITION
The judgment of conviction of Felix Avelar is affirmed. With respect to Francisco Pimentel, his count 3 conviction of assault with a deadly weapon (§ 4501) is reversed. The matter is remanded with the directions to the trial court to issue an appropriately amended abstract of judgment and to send a certified copy to the Department of Corrections and Rehabilitation. Pimentel has no right to be present at that proceeding. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) In all other respects, the judgment is affirmed.
WE CONCUR: Levy, Acting P.J., Kane, J.