Opinion
A157827
08-31-2021
THE PEOPLE, Plaintiff and Respondent, v. PEDRO RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CRPB185081
JACKSON, J. [*]
Defendant killed his cellmate at Pelican Bay State Prison and was convicted of second degree murder and assault by a life prisoner. On appeal, he contends the trial court erred by permitting evidence regarding the circumstances of his previous murder conviction and by failing to give the proper limiting instruction. He also complains of sentencing error and that the parole revocation restitution fine should be stricken. We find the judgment must be modified to correctly reflect defendant's sentence on the second degree murder count and to stay that sentence under Penal Code section 654. We affirm the judgment as modified.
All statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
The Del Norte County District Attorney filed an amended information charging defendant with murder (§ 187; count 1) and assault by a life prisoner (§ 4500; count 2). The amended information further alleged that defendant had suffered one prior serious felony conviction (§ 667, subd. (a)) and one prior strike conviction (§ 667, subds. (b)-(i)). A jury found defendant guilty of both charges and found the prior conviction allegations true. Defendant was sentenced to life without parole for assault by a life prisoner and to 15 years to life for second degree murder, doubled to 30 years to life because of the prior strike, and a consecutive five-year enhancement.
I. The Prosecution Case
Defendant was serving a 50 years to life sentence for a 2000 conviction for first degree murder with a firearm enhancement. He was an inmate of Pelican Bay State Prison, and since early 2016, Neil Ramirez had been his cellmate. Corrections Officers Michael Nation and John Joseph testified they had never heard either defendant or Neil complain about the other. Further, they were unaware whether defendant and Neil had ever fought or yelled at each other. Finally, neither inmate had requested a change of cells or made a written request for a housing change.
Defendant and the victim have the same surname. To avoid confusion, we refer to the victim, Neil Ramirez, as Neil. We intend no disrespect.
On the morning of January 30, 2017, Officers Nation and Joseph were delivering breakfast to the inmates. Officer Nation delivered breakfast to the cells on the lower tier, which included defendant and Neil's cell 118. The light was on in cell 118, which indicated that its occupants wanted food. Defendant was waiting at the door for Officer Nation, and Neil was awake and sitting on the upper bunk in a squatting position. The inmates behaved normally, and there was no indication of anything unusual. Officer Nation continued delivering breakfast to the next section of cells. All the doors between the sections were open, but neither Officer Nation nor Officer Joseph heard screams for help or a scuffle or fight.
Approximately 25 minutes after Officer Nation delivered the breakfast trays to cell 118, he returned to collect them. Defendant was standing at the door with both trays. The trays were clean, “[l]ike they had been washed.” Defendant appeared normal and calm. Neil was lying on his back on the floor. His head and torso were covered with a jacket, and there was blood on his shorts and legs. Officer Nation cuffed defendant and called for Officer Joseph. The two of them removed defendant from the cell and placed him in a holding cell. Defendant appeared calm and did not look as though he had been in a fight. Officers Nation and Joseph had defendant remove his clothing, and they checked him for injuries. Defendant was uninjured but for a bruise in the middle of the back of his right hand and a “cut or scratch on his left index knuckle.” Defendant had small drops of blood on his shoes but not on his shirt or shorts or his person.
Several other correctional officers responded to a reported medical emergency. They observed “copious amounts of blood throughout” the cell. Neil was not breathing and had no pulse. His head was “covered in blood, ” “severely misshapen, ” and “caved-in.” There was an indented line along the back of Neil's head “showing [that] he was up against something while he was being hit or kicked.” A shelving unit in the cell was consistent with the marks on Neil's head. Neil also had significant bruising around his neck. He also had bruises on his chest and multiple injuries to his mouth.
Officers administered CPR, but Neil never responded. He was declared dead by an ambulance crew.
Multiple officers noted defendant appeared calm after the incident. Officer Miller testified defendant was “very stoic, calm, unusually, unusually calm.” When Officer Miller provided defendant water to prepare for the collection of a urine sample, defendant spontaneously said, “ ‘[T]here was no other issues between us, it was just an in-cell thing, it was personal.' ” Officer Miller did not ask any follow-up questions, but he understood defendant meant to distinguish this incident from gang-related activity.
Investigating officers found that blood spatters in the cell indicated “a lot of trauma” had been inflicted on Neil while he was near the bottom of the cell. There was a “pink-tinged” hand towel in the sink, which appeared to have been used to wash off blood. In a box by the lower bunk was a folded pillowcase that appeared to have been hidden and had “striations where it was twisted and pulled tight.” Officer Miller believed the pillowcase had been used as a weapon. Based on the striations and the blood pattern on the pillowcase, it was apparent it had been “rolled up” while getting bloodied. Otherwise, the objects in the cell were “nice and orderly, nothing [was] in disarray.” Officer Miller, who had responded to hundreds of cell fights, testified that if there had been a struggle, “stuff should be scattered around inside the cell and it wasn't.”
None of the inmates in the adjacent cells to the left and right of cell 118 or the two cells above cell 118 saw or heard anything on the morning of the fight.
The parties stipulated to admission of the coroner's autopsy report, which stated the cause of death was asphyxiation “due to external compression of the neck, ” also known as strangulation. The autopsy also found blunt force trauma to the head and chest.
II. Defense Case
Defendant testified he was previously convicted of first degree murder. He was 17 years old when he was arrested and has been in prison for much of his life. He got along with most of his cellmates. He and Neil were from the same town and decided to live together. They got along well, except on some mornings Neil “just woke up having a bad day or something.” Defendant usually talked to Neil to try to “get him to mellow out.” This had happened several times. They had never gotten physical before, but their relationship “was getting increasingly worse.”
About a month or two before January 30, 2017, defendant and another inmate, Julian Rocha, spoke in the yard and agreed to move in together. They verbally asked a few officers and a sergeant about moving, but they “got the runaround” and finally got a “definite no.” Neil was upset that defendant was trying to move out and asked defendant, “ ‘[Y]ou are going to ditch me?' ”
On the night of January 29, 2017, defendant and Neil watched the Miss Universe pageant and were getting along well. Everything was normal when they went to sleep, but as soon as they woke up, “the problem started.” Defendant washed himself, then began to prepare to clean the cell, as he and Neil did every morning. Neil did not fold his bedclothes as usual but just sat there. Defendant offered to help Neil roll up his bedclothes, but Neil said, “[F]uck you, motherfucker, I'm not doing shit,' ” and, “ ‘[I]f you want this cell clean from now on, you clean.' ” Defendant told Neil, “ ‘[Y]ou can't be using language like that and you need to chill.' ” Neil responded, “ ‘[M]an, fuck you. You are not my homie.' ”
Neil blocked defendant from the sink and started clenching his fists with his hands at his waist. Defendant again tried to talk Neil down. Neil replied, “ ‘I don't give a fuck, all right?' ” Defendant told him to unclench his fists. Neil said, “ ‘[O]r what? What the fuck are you going to do about it?' ” Then he “came at” defendant and defendant began fighting Neil. Defendant “dropped” Neil, knocking him to the ground. Defendant testified, “[W]hen you drop somebody, you don't hit them while they are down, you know what I mean?” Neil got up and was “swinging wild, ” and defendant hit him repeatedly in the head and neck. Neil kept getting knocked down, but he kept getting back up and coming at defendant, “yelling... like he is winning the fight.”
Defendant told Neil, “ ‘[H]ey, man, you are leaking [blood] already. You are leaking everywhere. Just chill out.' ” Neil said, “ ‘I don't give a fuck, motherfucker, watch.' ” Neil continued to attack defendant, and defendant continued to knock Neil down, at least six times. Defendant testified that when Neil fell, he “ ‘most likely hit the locker, hit the stool, probably hit the desk, I don't know.' ”
Eventually, Neil stopped moving. Defendant checked Neil's chest and nose and yelled “man down” several times. No one responded. Defendant put a blanket and jacket over Neil because he “didn't want to look at him.” Then he sat on the toilet and realized he had gone “too far” in fighting Neil. He began cleaning the cell because he “didn't want to just sit there thinking of this.”
Defendant denied that he choked Neil and said he had no intent to kill or even hurt Neil. He explained that his pillowcase was wrinkled because handwashed items did not dry properly due to poor ventilation.
Defendant recalled that the look on Neil's face during the fight was the same as the look on the face of a man who had shot defendant when defendant was 15 years old. Defendant stated some of the blood in the cell was his because he “had a bit of a nosebleed.”
On cross-examination, defendant stated he had repeatedly asked Officers Nation and Joseph for a cell move. He admitted that at a certain point in the fight, he continued hitting Neil even though Neil had been knocked to the ground. He denied attacking Neil first, or from behind. He denied stomping Neil's head and chest and said he stopped punching Neil when Neil stopped moving. He explained that he took off his bloody clothes and put on new ones then cleaned the cell because he “was just doing things to keep... busy.” The pillowcase was in a box that was for trash, and the striations on it were “from the wringing out and getting washed.” He denied cleaning the breakfast trays.
Defendant demonstrated for the jury the volume with which he called “ ‘man down,' ” which was “[p]retty loud.” When Officer Nation came to pick up the breakfast trays, defendant didn't say anything because he was “zoned out.”
Rocha testified that he was in prison for voluntary manslaughter and attempted murder. Defendant approached Rocha a month or two before the incident, and they agreed to request to be cellmates. Rocha was not sure if they made their request in writing, but he asked up to six different officers about moving. On cross-examination, Rocha acknowledged that he did not come forward with this information until after receiving a letter from defendant's counsel.
III. Prosecution Rebuttal
Officer Pena testified that if defendant had yelled as loud as his in-court demonstration, it would have been heard by officers in the facility. He further testified that neither defendant nor Rocha had made any written requests for them to be cellmates.
DISCUSSION
I. Trial court did not err by permitting cross-examination of defendant regarding details of his prior conviction.
Defendant argues the trial court erred by allowing defendant to testify to the fact that he committed his prior murder by shooting the victim from behind. According to defendant, the trial court permitted this testimony “as evidence of [defendant's] intent and modus operandi under Evidence Code section 1101, subdivision (b)” and this was erroneous because there were marked dissimilarities between defendant's 2000 murder conviction and the 2017 charges. Defendant further argues that even if the evidence were admissible to establish intent and modus operandi, it should have been excluded under Evidence Code section 352 because it was overly prejudicial. Defendant claims the admission of the improper propensity evidence violated his Sixth and Fourteenth Amendment rights to a fair trial and due process.
We find the complained-of testimony was properly elicited during defendant's cross-examination for impeachment. There was no error.
A. Additional Facts
The prosecution moved in limine to admit facts underlying defendant's prior murder conviction under Evidence Code section 1101, subdivision (b). The prosecution's motion stated its intent to submit documentary evidence of defendant's prior murder conviction and to “question[] the defendant regarding the facts of his underlying conviction. Specifically, that he shot his victim from behind.” (Original emphasis.) The prosecution argued the fact that defendant attacks from behind is relevant to prove malice aforethought, to show intent, and to his defense of self-defense.
Evidence Code section 1101, subdivision (a) generally prohibits admission of character evidence, including specific instances of uncharged misconduct, but is qualified by subdivision (b), which states: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such an act.”
At the hearing on the motion, the prosecution stated its belief that defendant had attacked Neil from behind and acknowledged that this was the only similarity between the instant offense and defendant's prior murder. Defense counsel argued the two events were completely dissimilar because in the prior murder defendant went to a convenience store and arbitrarily shot someone in the back and left, which is nothing like acting in self-defense in a small, confined area where no one could leave. Defense counsel stated, “If my client were to take the stand and say that he's not capable of attacking somebody from behind, which he never would say, but if he did, for rebuttal, perhaps, that would be relevant. But as far as putting that in the people's case in chief, it is absolutely... unnecessary.” He argued the specific facts of the prior conviction should not be admitted because the prejudice outweighed any probative value.
The trial court agreed with the defense that the connection between the circumstances of the prior murder and the circumstances of the instant case was “very tenuous.” The court denied the prosecution's motion, stating, “I'm not going to allow it in your case in chief, ” but that it might reconsider the issue if “their evidence pans out that this is clearly the modus operandi.”
The defense did not contest that the prosecution had to prove the element that defendant was serving time for another murder as to count 2 (§ 4500), and the trial court agreed that the fact of the prior murder was admissible, “but getting into actually what happened in the other crime, no.”
A record of defendant's prior conviction was admitted into evidence during the prosecution's case-in-chief to prove the life prisoner element of count 2.
During defendant's cross-examination, the prosecutor asked if he attacked Neil from behind, and defendant denied doing so. The prosecutor further asked, “Do you attack people from behind?” and defendant responded, “I do not.” When asked if he had “ever attacked someone from behind?” the defendant said, “I do not, I have not.” The prosecutor then asked defendant to “tell this jury about the facts of your conviction, ” and defendant stated, “My conviction. I was convicted. I was accused of and convicted of walking into a Chinese restaurant and I allegedly shot-I was convicted, I'm sorry, I allegedly shot this man in the back. What they don't say is there is a videotape that can actually prove my innocence and the detectives lost the videotape.” He further responded, “That was from the-allegedly from the back, I was convicted of that.” Defense counsel did not object to this line of questioning.
Neither party mentioned the facts underlying defendant's prior murder conviction in opening statements or closing arguments.
B. Defendant's failure to object to the prosecutor's question during his cross-examination forfeits his claim.
Defendant argues there was no evidence he attacked Neil from behind and, therefore, the details of his prior murder conviction had no similarities to the current offense and could not be used to prove intent or modus operandi. There are multiple problems with this argument. First, the trial court agreed with the defendant and precluded the prosecution from admitting any evidence of the specific circumstances of the defendant's prior murder conviction in the case-in-chief. The prosecution complied with the court's ruling, and the defendant does not contend otherwise. Second, as the Attorney General argues, it is questionable whether the defendant's testimony on cross-examination constitutes evidence that defendant committed his prior murder by shooting the victim from behind. Defendant's testimony was that he was convicted for “allegedly sho[oting] this man in the back” and that “there is a videotape that can actually prove my innocence.” The only other evidence provided to the jury regarding defendant's prior conviction was a summary of records of the conviction, which contained no details of the particular circumstances of the prior murder.
But even if we assume the defendant's equivocal testimony is evidence that he actually shot his first murder victim in the back, defendant forfeited any challenge to this testimony because his defense counsel did not object to the prosecutor's questions. (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 435.) Defendant repeatedly refers to the evidence as “objected-to, ” but, in fact, no objections were made when the prosecutor questioned defendant on cross-examination regarding attacking from behind and the circumstances of his prior murder conviction. The fact that defendant successfully opposed the prosecution's motion in limine did not excuse him from having to object during defendant's cross-examination. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 160 [“Because on appeal defendants challenge the admissibility of Tobin's testimony based primarily upon their pretrial arguments and the trial court's ruling, and because their failure to object to the testimony during the cross-examination denied the prosecutor an opportunity to justify its admission in light of the state of the evidence at that point in the trial, and denied the trial court an opportunity to decide this issue in the first instance, their claims are forfeited”].) There is no dispute that the trial court's ruling on the prosecution's in limine motion expressly related only to the prosecution's case-in-chief. Notably, at the hearing on the motion in limine, defense counsel expressly acknowledged that questions regarding the circumstances of defendant's prior murder conviction arguably could be relevant “[i]f my client were to take the stand and say that he's not capable of attacking somebody from behind.” This is essentially what happened here, and defendant's failure to object to the prosecutor's questions is a forfeiture of this claim.
C. Evidence was relevant to impeach defendant's credibility.
Even if we assumed no forfeiture, the prosecutor's questions and defendant's testimony about his prior murder conviction was admissible impeachment evidence. Defendant took the stand and claimed self-defense. On direct examination, defendant testified that he fought back after Neil attacked him. Defendant “dropped” Neil to the ground several times and testified, “[W]hen you drop somebody, you don't hit them while they are down, you know what I mean?” Then, on cross-examination, defendant denied he attacked Neil from behind, and when asked, “Have you ever attacked someone from behind?” defendant said, “I do not, I have not.” Defendant's testimony on direct implied that he fought fair (“don't hit them while they are down”).
As noted ante, during argument at the motion in limine hearing, defense counsel acknowledged the potential relevance of the circumstances of defendant's prior conviction “for rebuttal....”
“Once a defendant takes the stand and testifies to the circumstances of the charged offenses, the prosecutor on cross-examination is permitted ‘to explore the identical subject matter in much greater detail.' ” (People v. Mayfield (1997) 14 Cal.4th 668, 754, abrogated on another ground by People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) Here, in light of the defendant's testimony on direct examination regarding his self-defense claim and his suggestion that he was a fair fighter, the prosecutor's questions about whether defendant attacked Neil from behind and whether he had ever attacked from behind were within the scope of permissible cross-examination.
Although the trial court ruled pursuant to Evidence section 1101, subdivision (b) that the prosecution could not elicit evidence that defendant had previously attacked from behind, such evidence is admissible on cross-examination to impeach defendant's credibility. (Evid. Code, § 1101, subd. (c) [“Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness”]; People v. Kennedy (2005) 36 Cal.4th 595, 620 [rejecting argument that cross-examination elicited inadmissible evidence of defendant's propensity to have guns because evidentiary restrictions on propensity evidence do not apply to evidence offered to attack credibility of witness], disapproved on another ground by People v. Williams (2010) 49 Cal.4th 405, 459.)
Defendant contends the trial court's alleged error in permitting defendant to testify about the circumstances of his prior conviction violated his rights to due process and a fair trial under the federal Constitution. We reject this claim because we find no error. Further, “[t]he ‘routine application of state evidentiary law does not implicate [a] defendant's constitutional rights.' ” (People v. Hovarter (2008) 44 Cal.4th 983, 1010, 1st bracketed insertion added.)
II. Failure to instruct with CALCRIM No. 375 was not error.
Defendant acknowledges the People were entitled to introduce evidence that defendant committed a prior offense for which he was serving a life sentence to prove an element of count 2 (assault by life prisoner) and that they had to establish the offense was a serious felony under section 667, subdivisions (a) and (b)-(i). However, he contends the trial court erred by failing to sua sponte instruct the jury that the only permissible uses for the evidence of defendant's prior conviction were to prove he was a “life prisoner” and for the prior conviction allegations. Specifically, defendant argues the trial court should have sua sponte instructed the jury with CALCRIM No. 375 and that without this instruction, the jury could have impermissibly concluded that defendant had a propensity to commit murder. Alternatively, defendant argues his counsel was ineffective for failing to request CALCRIM No. 375. We find the trial court properly instructed the jury on the limited permissible purposes of defendant's prior conviction by giving CALCRIM No. 3100.
As discussed ante, a record of defendant's prior murder conviction was admitted into evidence during the prosecutor's case-in-chief.
“You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the (uncharged offense[s]/act[s]). Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. “If the People have not met this burden, you must disregard this evidence entirely. “If you decide that the defendant committed the (uncharged offense[s]/act[s]), you may, but are not required to, consider that evidence for the limited purpose of deciding whether: [¶]... [¶] “[The defendant was the person who committed the offense[s] alleged in this case].... [¶]... [¶] “The defendant acted with the intent to _____... in this case].... [¶]... [¶] “[The defendant had a plan [or scheme] to commit the offense[s] alleged in this case].... [¶]... [¶] “[In evaluating this evidence, consider the similarity or lack of similarity between the uncharged (offense[s]/ [and] act[s]) and the charged offense[s].] “Do not consider this evidence for any other purpose.... “[Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.] “If you conclude that the defendant committed the (uncharged offense[s]/act[s]), that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _____.... The People must still prove (the/each) (charge/ [and] allegation] beyond a reasonable doubt.” CALCRIM No. 375 (“Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.”) states: “[The People presented evidence (of other behavior by the defendant that was not charged in this case...).]
“When evidence is admissible... for one purpose and is inadmissible... for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Evid. Code, § 355.) Defendant acknowledges that evidence of his prior conviction was relevant to count 2, assault by a life prisoner, and to the prior conviction allegations. As discussed ante, it was also admissible to impeach defendant's credibility. (People v. Kennedy, supra, 36 Cal.4th at p. 620.)
The jury was instructed with CALCRIM No. 3100 as follows: “If you find the defendant guilty of a crime, you must also decide whether the People have proved the additional allegation that the defendant was previously convicted of another crime. It has already been determined that the defendant is the person named in exhibit 969b package. You must decide whether the evidence proves that the defendant was convicted of the alleged. [¶] The People allege that defendant has been convicted of: [¶] A violation of Penal Code sections 187(a) and 12022.5, on January 31, 2000, in the Los Angeles County Superior Court, in Case Number TA 052436. [¶] Consider the evidence presented on this allegation only when deciding whether the defendant was previously convicted of the crime alleged or for the limited purpose of assessing the credibility of defendant. Do not consider this evidence as proof that the defendant committed any of the crimes with which he is currently charged or for any other purpose. [¶] The People have the burden of proving the alleged conviction beyond a reasonable doubt. If the People have not met this burden, you must find that the alleged conviction has not been proved.” (Sic.)
We find that the jury was properly instructed regarding the limited purposes for which it could consider evidence of defendant's prior conviction. Defendant complains that without CALCRIM No. 375, the jury was permitted to consider the evidence “to establish [defendant] not only had a ‘propensity' to commit the assault and murder here, but that he was equipped with the temperament to do so.” Not so. CALCRIM No. 3100 expressly instructs that the evidence should be considered “only when deciding whether the defendant was previously convicted of the crime alleged or for the limited purpose of assessing the credibility of the defendant” and that it is not to be considered “for any other purpose.” (CALCRIM No. 3100, italics added.) Nor is it true, as defendant argues, that “there was no limiting instruction at all.”
Moreover, as the Attorney General notes, CALCRIM No. 375 is appropriate where evidence of an uncharged offense is admitted to prove identity, intent, motive, or plan, and here the defendant's prior conviction was not admitted for any of these purposes. Given that defendant contends the evidence of his prior conviction could only be considered for the limited purpose of proving that he was serving a life sentence and had a prior serious felony conviction, instructing with CALCRIM No. 375 would have allowed the jury to consider the prior conviction for the broader purposes to establish intent, motive or plan. We fail to see how this would have benefited defendant.
Because the instruction given (CALCRIM No. 3100) properly informed the jury of the limited purposes for which they could consider evidence of defendant's prior conviction, defense counsel was not ineffective for failing to request CALCRIM No. 375. (See People v. Mai (2013) 57 Cal.4th 986, 1009 [on direct appeal conviction will be reversed only if record shows defense counsel had no rational tactical purpose for challenged omission, counsel was asked for a reason and failed to give one, or there simply could be no satisfactory explanation].)
III. Imposition of Separate, Unstayed Terms for Convictions of Murder and Assault
The trial court sentenced defendant to life without parole on count 2, assault by a life prisoner. On count 1 (second degree murder), defendant was sentenced to a consecutive term of 15 years to life, doubled to 30 years to life based on defendant's prior murder conviction under section 667, subdivision (e)(1), plus a five-year serious felony enhancement under section 667, subdivision (a). Defendant contends that under section 654's prohibition on multiple punishments for the same act or omission, his sentence on count 1 must be stayed. We agree.
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....” Section 654 bars multiple punishments where a course of conduct violating more than one statute constitutes an indivisible transaction. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
“ ‘ “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' ”' [Citation.] Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense.” (People v. Jackson (2016) 1 Cal.5th 269, 354.) “When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective.” (People v. Islas (2012) 210 Cal.App.4th 116, 129.) Such findings are upheld if supported by substantial evidence. (Ibid.)
Here, the trial court made no express finding that the defendant had separate objectives when he assaulted Neil and when he murdered Neil. As the Attorney General notes, the trial court did find the defendant used a ligature, but the court made no findings about whether the use of the ligature was divisible from defendant's other acts of violence against Neil. The Attorney General argues the trial court's implied finding that the assault and murder were separate crimes should be upheld because there is substantial evidence that defendant murdered Neil after assaulting him. But, in fact, the evidence is that the assault and murder occurred over a 25-minute period, during which defendant fought with Neil continuously until Neil finally stopped moving.
The Attorney General relies on People v. Brents (2012) 53 Cal.4th 599, 618, which affirmed the trial court's decision to impose separate punishment for murder and assault. But the facts of Brents differ significantly from the evidence here. In Brents, the defendant hit and choked the victim and put her into the trunk of a car while she was still alive. (Id. at pp. 603, 609.) Hours later, firefighters found the car 16 miles away from defendant's hotel, with the trunk engulfed in flames and the severely burned dead victim inside. (Id. at p. 604.) Our high court found there was enough evidence for the trial court to conclude that the defendant arrived at his final decision to kill the victim after the assault, and therefore the consecutive sentence for the assault conviction did not violate section 654. (Brents, at p. 618.)
Here, there is no substantial evidence to support an implied finding that defendant had a separate intent to assault Neil and then to murder him during the 25-minute period in which he continuously beat and strangled Neil. In cases where section 654 precludes the imposition of multiple punishments, “the accepted ‘procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.' ” (People v. Jones (2012) 54 Cal.4th 350, 353.) Accordingly, we direct the trial court to modify the judgment to stay the sentence on count 1.
We also note that the abstract of judgment incorrectly fails to state that the 15 years to life sentence imposed for count 1 is doubled under section 667, subdivision (e) to 30 years to life. The sentencing hearing transcript states the sentence imposed is 30 years to life. We further direct the trial court to correct the abstract of judgment.
IV. Parole Revocation Restitution Fine
The trial court imposed a $300 restitution fine pursuant to section 1202.4, subdivision (b) and a $300 parole revocation restitution fine under section 1202.45, suspended unless parole is revoked. Defendant contends the parole revocation restitution fine is unauthorized and should be stricken because it does not apply where the sentence includes life without parole. We disagree.
Section 1202.45, subdivision (a) states: “In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.” “Under section 1202.45, a trial court has no choice and must impose a parole revocation fine equal to the restitution fine whenever the ‘sentence includes a period of parole.' ” (People v. Smith (2001) 24 Cal.4th 849, 853.)
Where the only sentence is life without parole, there is no parole eligibility and the fine is not applicable. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183 (Oganesyan).) But here, life without parole is not the only sentence. Defendant was also sentenced to 30 years to life on the murder count and to a five-year prior serious felony enhancement.
In People v. Brasure (2008) 42 Cal.4th 1037, 1075 (Brasure), the California Supreme Court held the trial court properly imposed a parole revocation restitution fine on a defendant sentenced to death as well as other determinate prison terms under section 1170. It referenced former section 3000, subdivision (a)(1), which provided: “A sentence pursuant to Section 1168 or 1170 shall include a period of parole, unless waived.” The court held that because the defendant's sentence included a period of parole under section 1170, the fine was required to be imposed and suspended unless and until the defendant was released on parole and parole was revoked. (Brasure, at p. 1075.)
Here, defendant was sentenced on count 1 to an indeterminate term of 30 years to life under section 1168, subdivision (b). (See People v. Felix (2000) 22 Cal.4th 651, 654-655 [§ 1168, subd. (b) refers to indeterminate sentences].) Subdivision (a)(1) of section 3000 expressly applies to sentences imposed under section 1168. Accordingly, the sentence “shall include a period of parole” (§ 3000, subd. (a)(1)), and therefore a suspended parole revocation restitution fine is mandated under section 1202.45.
Defendant relies on the Second Appellate District's decision in Oganesyan, which was decided nearly 10 years before Brasure. Oganesyan held that a parole revocation restitution fine did not apply where the defendant was sentenced to life without the possibility of parole and, on a separate count, an indeterminate term of 15 years to life, plus a four-year firearm enhancement. (Oganesyan, supra, 70 Cal.App.4that p. 1184.) The court found it was extremely unlikely that the defendant's sentence would ever allow for parole, and therefore the Legislature could not have intended the fine to apply “under such an extremely limited set of circumstances.” (Id. at p. 1185.)
In Brasure, the California Supreme Court did not expressly overrule or disapprove Oganesyan but, instead, distinguished it on the grounds that Oganesyan involved an indeterminate sentence. (Brasure, supra, 42 Cal.4th at p. 1075.) Brasure then went on to reject the reasoning of Oganesyan, stating: “As in Oganesyan, to be sure, defendant here is unlikely ever to serve any part of the parole period on his determinate sentence. Nonetheless, such a period was included in his determinate sentence by law and carried with it, also by law, a suspended parole revocation restitution fine. Defendant is in no way prejudiced by assessment of the fine, which will become payable only if he actually does begin serving a period of parole and his parole is revoked.” (Ibid.)
We agree with the Attorney General that Brasure essentially rejected Oganesyan's underlying reasoning, and we decline to follow Oganesyan. Although the sentence imposed on count 1 is an indeterminate sentence of 30 years to life, the sentence includes a possibility of parole should anything happen to the sentence imposed on count 2. While it is very unlikely the defendant will ever serve a period of parole, the possibility exists. The suspended section 1202.45 parole revocation restitution fine was properly imposed.
DISPOSITION
The judgment is modified as described in this opinion to reflect that the sentence imposed on count 1 is 15 years to life, doubled under section 667, subdivision (e) to 30 years to life, plus the five-year prior serious felony enhancement, and that it is stayed. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: Petrou, Acting P. J., Chou, J.
Judge of the Superior Court of San Mateo County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[*] Presiding Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.