People v. McInnis

Filed 4/29/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
A159194
v.
ALPHONZO McINNIS, (Alameda County
Super. Ct. No. 18CR008268)
Defendant and Appellant.

A jury convicted defendant Alphonzo McInnis of aggravated kidnapping
to commit robbery or a specified sex crime in violation of Penal Code section
209, subdivision (b) (§ 209(b)) and three counts of sex offenses against a
minor. As to the sex offenses, the jury found true the aggravated kidnapping
circumstance of the One Strike Law (Pen. Code, § 667.61, subd. (d)(2)
(§ 667.61(d)(2)).
The trial court sentenced defendant to three consecutive terms of life in
prison without the possibility of parole.
Defendant contends (1) the crime of aggravated kidnapping under
Penal Code section 209(b) and the One Strike Law kidnapping provision of
Penal Code section 667.61 are void for vagueness, (2) the trial court erred in
its reasoning for imposing consecutive life terms, (3) the parole revocation
fine should be stricken from the sentence, and (4) the abstract of judgment
should be corrected.

1
 We reject defendant’s first contention, but his remaining contentions
have merit. Therefore, we will strike the parole revocation fine and remand
for the trial court to exercise its discretion on whether to impose concurrent
or consecutive life terms using appropriate considerations. The judgment is
otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The Alameda County District Attorney filed an amended information
charging defendant with forcible sexual penetration of Jane Doe 1, a minor
age 14 or older (Pen. Code,1 § 289, subd. (a)(1)(C); count 1); forcible rape of
minor Doe 1 (§§ 261, subd. (a)(2), 264, subd. (c)(2); counts 2 and 4); forcible
oral copulation of minor Doe 1 (former § 288a, subd. (c)(2)(C); count 3);
kidnapping of Doe 1 to commit robbery and/or a specified sex crime (§ 209(b);
count 5); kidnapping of Jane Doe 2 to commit robbery and/or a specified sex
crime (ibid.; count 6); and attempted second degree robbery of Doe 2 (§§ 211,
664; count 7). It was alleged the offenses against Doe 1 (counts 1 through 5)
occurred April 19, 2018, and the offenses against Doe 2 (counts 6 and 7)
occurred on April 28, 2018.
As to counts 1 through 4, the district attorney alleged that defendant
kidnapped the victim within the meaning of sections 207 and 209 (§ 667.61,
subd. (e)(1)), and the movement of the victim substantially increased the risk
of harm to the victim (§ 667.61(d)(2)); that defendant personally used a
dangerous or deadly weapon (§ 667.61, subd. (e)(3)); that the victim was a
minor, age 14 or older (§ 667.61, subds. (l), (m)); and that defendant used a
firearm or deadly weapon, a BB gun (§ 12022.3, subd. (a)).
Following a jury trial, defendant was found guilty of counts 2 through
5, and not guilty of count 7. The jury deadlocked on counts 1 and 6, and the

1 Further undesignated statutory references are to the Penal Code.

2
court declared a mistrial as to those counts. As to counts 2 through 4, the
jury found true the kidnapping allegations (§ 667.61(d)(2) and subd. (e)(1))
and that the victim was a minor 14 years of age or older. The jury found not
true the allegation that defendant used a deadly or dangerous weapon in the
commission of the offenses. Counts 1 and 6 were later dismissed at the
prosecution’s request.2
The trial court sentenced appellant to three consecutive terms of life
without the possibility of parole for counts 2, 3, and 4. For count 5, the court
imposed a term of life with the possibility of parole and stayed the
punishment under section 654.
Offenses Involving Jane Doe 1
On April 19, 2018, Doe 1 was 15 years old and a freshman in high
school. Doe 1 slept in that day and was late for school. She started walking
to school around 10:00 or 11:00 a.m.
While walking on a residential street, Doe 1 heard footsteps and was
grabbed from behind. Her assailant covered her eyes and wrapped his arm
around her torso. She heard a male voice say something like, “Don’t yell.
Don’t turn around and look at me.” The man said he had a gun and he would
shoot her if she yelled or turned around. Doe 1 felt a pressure on her hip that
she thought might be a gun. The man pulled Doe 1 and directed her
physically to walk with him. He moved his hand from her eyes and had his
arm wrapped around her neck. Doe 1 never saw his face.

2 In a bifurcated proceeding, the court found defendant had four prior
felony convictions, two of those convictions resulted in prison terms, and one
was a “strike” under sections 667 and 1170.12.

3
 At first, the man had Doe 1 continue walking in the direction she had
been heading. After about a block, he turned around, and he and Doe 1
walked back the way they had come from.
The man pulled Doe 1 into a yard past a fence. They walked down a
driveway and to a side yard. The man told Doe 1 to open her backpack and
take her wallet out. She saw what appeared to be the “tip of a gun” with the
rest of the gun in the man’s sleeve. Doe 1 told him she had $15 and showed
him her wallet. He said it was not enough. He told her to take out her I.D.,
and she showed him her school I.D. Doe 1 asked if she could go, and the man
said something like “I’m thinking about it” or “maybe.”
The man started feeling Doe 1’s body under her clothes. He commented
on her body and asked whether she had ever had sex. She said no. He said
something along the lines of “we can do this the easy way or the hard way.”
He pressed something Doe 1 thought was a gun against her neck. The man
pulled her pants and underwear down. Standing behind her, he put his
fingers “in between the curtains” of her vagina. He tried to put his penis in
her vagina. He pressed hard and it hurt. Doe 1 tried to resist by keeping her
legs closed. He asked why she was resisting and she said, “Because I don’t
want to do this.”
The man forced Doe 1 on her knees. He told her to spit on his penis
and put it in her mouth. His penis went “all the way into [her] mouth.” He
moved his body back and forth for a few seconds. Then he “tried to insert his
penis into [her] vagina again.” The man used more force than he used the
first time. He was able to fully insert his penis into her vagina and it hurt a
lot. Eventually, the man let Doe 1 leave and said, “Just keep walking and
don’t look back.”

4
 The same day, Doe 1 met with a police officer and showed him the
house where she had been raped. She also had a sexual assault forensic
examination. The examiner collected DNA swab samples from Doe 1’s
vaginal cavity and observed multiple injuries to her vagina. The DNA profile
of a sperm cell fraction recovered from the vaginal swabs matched the
defendant’s DNA.3
DISCUSSION
A. Vagueness Challenge
Defendant contends the One Strike Law aggravated kidnapping finding
in counts 2 through 4 and the aggravated kidnapping conviction (count 5)
must be reversed on the ground the crime of aggravated kidnapping is void
for vagueness.
“The constitutional interest implicated in questions of statutory
vagueness is that no person be deprived of ‘life, liberty, or property without
due process of law,’ as assured by both the federal Constitution (U.S. Const.,
Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7).
Under both constitutions, due process of law in this context requires two
elements: a criminal statute must ‘ “be definite enough to provide (1) a
standard of conduct for those whose activities are proscribed and (2) a
standard for police enforcement and for ascertainment of guilt.” ’ ” (Williams
v. Garcetti (1993) 5 Cal.4th 561, 567; see Kolender v. Lawson (1983) 461 U.S.
352, 357 [“the void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that ordinary people

3We do not describe the evidence related to counts 6 and 7 involving
Jane Doe 2 (described in the parties’ appellate briefs) because the jury found
defendant not guilty of count 7 and count 6 was dismissed.

5
can understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement”].)
Aggravated kidnapping under section 209(b) is defined as kidnapping
or carrying away an individual to commit robbery, rape, oral copulation, or
other specified sex crime where “the movement of the victim is beyond that
merely incidental to the commission of, and increases the risk of harm to the
victim over and above that necessarily present in, the intended underlying
offense.” (§ 209, subd. (b)(2).)
Similarly, the One Strike Law aggravated kidnapping circumstance of
section 667.61(d)(2) applies when a defendant has committed rape, oral
copulation, or other specified sex crime with the additional circumstance that
the “defendant kidnapped the victim . . . and the movement of the victim
substantially increased the risk of harm to the victim over and above that
level of risk necessarily inherent in the underlying offense.” The movement
required for the aggravated kidnapping circumstance must “not [be] merely
incidental to the commission of the” underlying offense. (People v. Perkins
(2016) 5 Cal.App.5th 454, 466.)
Defendant claims the section 209, subdivision (b)(2) phrase “merely
incidental to the commission of, and increases the risk of harm to the victim
over and above that necessarily present in, the intended underlying offense”
is unconstitutionally vague under Johnson v. United States (2015) 576 U.S.
591 (Johnson). He acknowledges this contention was rejected in People v.
Ledesma (2017) 14 Cal.App.5th 830, 839 (Ledesma), but he argues Ledesma
was wrongly decided.
1. Johnson
In Johnson, the United States Supreme Court held the residual clause
of the Armed Career Criminal Act of 1984 (ACCA) was impermissibly vague.

6
(Johnson, supra, 576 U.S. at p. 597.) The ACCA forbids certain individuals
from possessing firearms and punishes a person with three or more prior
convictions for a “violent felony” more harshly. (Id. at p. 593.) The ACCA
defines a violent felony to include any crime punishable by more than a year
in prison that “ ‘is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical
injury to another.’ ” (Id. at pp. 593–594, quoting 18 U.S.C. § 924(e)(2)(B).)
The italicized phrase is known as the residual clause. (Id. at p. 594.)
Previously, the Supreme Court had held the residual clause of the
ACCA was to be interpreted using the categorical approach, which meant a
sentencing court had to assess whether a prior conviction qualified as a
violent felony “ ‘in terms of how the law defines the offense and not in terms
of how an individual offender might have committed it on a particular
occasion.’ ” (Johnson, supra, 576 U.S. at p. 596.) Thus, a court deciding
whether a crime fell within the residual clause was required “to picture the
kind of conduct that the crime involves in ‘the ordinary case,’ and to judge
whether that abstraction presents a serious potential risk of physical injury.”
(Ibid.)4

4 The Johnson majority also observed that the inclusion of burglary and
extortion among the listed offenses preceding the residual clause confounded
the task because the elements of burglary and extortion do not “normally
cause physical injury.” (Johnson, supra, 576 U.S. at p. 596.) This suggested
a court had to do more than evaluate “the chances that the physical acts that
make up the crime will injure someone. The act of making an extortionate
demand or breaking and entering into someone’s home does not, in and of
itself, normally cause physical injury. Rather, risk of injury arises because
the extortionist might engage in violence after making his demand or because
the burglar might confront a resident in the home after breaking and
entering.” (Ibid.) In other words, a court must not only imagine an idealized
ordinary case of a crime, it must also imagine how events will unfold after the
crime is committed.

7
 The majority in Johnson concluded that “the indeterminacy of the wide-
ranging inquiry required by the residual clause” was void for vagueness.
(Johnson, supra, 576 U.S. at p. 597.) It found “[t]wo features of the residual
clause conspire to make it unconstitutionally vague.” (Ibid.) First, the
residual clause “leaves grave uncertainty about how to estimate the risk
posed by a crime. It ties the judicial assessment of risk to a judicially
imagined ‘ordinary case’ of a crime, not to real-world facts or statutory
elements. How does one go about deciding what kind of conduct the ‘ordinary
case’ of a crime involves? . . . To take an example, does the ordinary instance
of witness tampering involve offering a witness a bribe? Or threatening a
witness with violence? Critically, picturing the criminal’s behavior is not
enough; . . . assessing ‘potential risk’ seemingly requires the judge to imagine
how the idealized ordinary case of the crime subsequently plays out.” (Ibid.)
Second, the majority concluded, “the residual clause leaves uncertainty
about how much risk it takes for a crime to qualify as a violent felony. It is
one thing to apply an imprecise ‘serious potential risk’ standard to real-world
facts; it is quite another to apply it to a judge-imagined abstraction. By
asking whether the crime ‘otherwise involves conduct that presents a serious
potential risk,’ moreover, the residual clause forces courts to interpret
‘serious potential risk’ in light of the four enumerated crimes—burglary,
arson, extortion, and crimes involving the use of explosives. These offenses
are ‘far from clear in respect to the degree of risk each poses.’ [Citation.]
Does the ordinary burglar invade an occupied home by night or an
unoccupied home by day? Does the typical extortionist threaten his victim in
person with the use of force, or does he threaten his victim by mail with the
revelation of embarrassing personal information? By combining
indeterminacy about how to measure the risk posed by a crime with

8
indeterminacy about how much risk it takes for the crime to qualify as a
violent felony, the residual clause produces more unpredictability and
arbitrariness than the Due Process Clause tolerates.” (Johnson, supra, 576
U.S. at p. 598.)
Reviewing its four prior decisions on interpreting the residual clause,
the court observed its “repeated attempts and repeated failures to craft a
principled and objective standard out of the residual clause confirm its
hopeless indeterminacy.” (Johnson, supra, 576 U.S. at p. 598.)
The Johnson majority rejected the suggestion of the Government and
the dissent that its holding could place in doubt “dozens of federal and state
criminal laws [that] use terms like ‘substantial risk,’ ‘grave risk,’ and
‘unreasonable risk.’ ” (Johnson, supra, 576 U.S. at p. 603.) “[A]lmost all of
the cited laws require gauging the riskiness of conduct in which an individual
defendant engages on a particular occasion. As a general matter, we do not
doubt the constitutionality of laws that call for the application of a qualitative
standard such as ‘substantial risk’ to real-world conduct; ‘the law is full of
instances where a man’s fate depends on his estimating rightly . . . some
matter of degree,’ [citation]. The residual clause, however, requires
application of the ‘serious potential risk’ standard to an idealized ordinary
case of the crime. Because ‘the elements necessary to determine the
imaginary ideal are uncertain both in nature and degree of effect,’ this
abstract inquiry offers significantly less predictability than one ‘[t]hat deals
with the actual, not with an imaginary condition other than the facts.’ ” (Id.
at pp. 603–604.)
2. Ledesma
Defendant Ledesma argued that the offense of aggravated kidnapping
under section 209(b) and the One Strike Law aggravated kidnapping

9
circumstance of section 667.61(d)(2) are unconstitutionally vague under
Johnson, supra, 576 U.S. 591. (Ledesma, supra, 14 Cal.App.5th at p. 835.)
Like defendant, Ledesma challenged the language related to the movement
(also called “asportation”) requirement.
The Ledesma court rejected the argument because “[u]nlike the
residual clause at issue in Johnson, California’s asportation requirement
compels juries and courts to apply a legal standard to real-world facts. As
Johnson itself recognizes, this difference is crucial.” (Ledesma, supra, 14
Cal.App.5th at p. 838.) The court reasoned, “Unlike the categorical analysis
courts were required to engage in under the ACCA, the asportation
requirements in sections 209 and 667.61 require no hypothetical case of the
underlying crime that determines the statutes’ applicability. Rather, the jury
in this case (and in all aggravated kidnapping cases) assessed whether [the
defendant’s] movement of [the victim] was merely incidental to the rape and
whether that movement substantially increased the risk of harm over and
above the risk of harm inherent in rape. This is precisely the type of
determination that Johnson held was beyond the void-for-vagueness problem
presented by the residual clause.” (Id. at pp. 838–839.)
The court also observed, “[A]ppellate courts have routinely assessed the
validity of aggravated kidnapping convictions in published decisions without
suggestion that the section 209, subdivision (b)(2) asportation requirement is
unworkable or too vague to be constitutional.” (Ledesma, supra, 14
Cal.App.5th at p. 836.)
The court concluded with a quote from our Supreme Court. “ ‘ “The law
is replete with instances in which a person must, at his peril, govern his
conduct by such nonmathematical standards as ‘reasonable,’ ‘prudent,’
‘necessary and proper,’ ‘substantial,’ and the like. Indeed, a wide spectrum of

10
human activities is regulated by such terms: thus one man may be given a
speeding ticket if he overestimates the ‘reasonable or prudent’ speed to drive
his car in the circumstances (Veh. Code, § 22350), while another may be
incarcerated in state prison on a conviction of wil[l]ful homicide if he
misjudges the ‘reasonable’ amount of force he may use in repelling an assault
[citation]. . . . ‘There is no formula for the determination of reasonableness.’
Yet standards of this kind are not impermissively vague, provided their
meaning can be objectively ascertained by reference to common experiences
of mankind.” ’ (People v. Morgan (2007) 42 Cal.4th 593, 606.)” (Ledesma,
supra, 14 Cal.App.5th at pp. 839–840.)
3. Analysis
We agree with Ledesma that Johnson does not require us to find the
crime and special circumstance of aggravated kidnapping unconstitutionally
vague. The Johnson majority “d[id] not doubt the constitutionality of laws
that call for the application of a qualitative standard such as ‘substantial
risk’ to real-world conduct” (Johnson, supra, 576 U.S. at pp. 603–604), and
that is what the aggravated kidnapping statutes involve, the application of a
qualitative standard to real-world conduct.
Defendant offers five reasons he believes Ledesma was incorrectly
decided. First, he asserts the court’s observation that “appellate courts have
routinely assessed the validity of aggravated kidnapping convictions . . .
without suggestion that the . . . asportation requirement is unworkable or too
vague to be constitutional” (Ledesma, supra, 14 Cal.App.5th at p. 836) is
irrelevant because cases are not authority for propositions not considered and
because Johnson was not decided until 2015. We find the observation
relevant, however, because it contrasts California appellate courts’ routine
application of the aggravated kidnapping statutes with the Supreme Court’s

11
“repeated attempts and repeated failures to craft a principled and objective
standard out of the residual clause” of the ACCA. (Johnson, supra, 576 U.S.
at p. 598.) The Johnson majority pointed out that in three of the court’s
previous four decisions on the residual clause, “we found it necessary to
resort to a different ad hoc test to guide our inquiry.” (Ibid.) Further, lower
federal courts found the residual clause “ ‘nearly impossible to apply
consistently,’ ” and their decisions indicated “pervasive disagreement about
the nature of the inquiry one is supposed to conduct and the kinds of factors
one is supposed to consider.” (Id. at p. 601.) It is relevant that California
appellate court decisions on aggravated kidnapping do not demonstrate a
similar pervasive disagreement or difficulty regarding the nature of the
inquiry.
Second, defendant suggests the Ledesma court incorrectly rejected the
argument that Johnson announced a new test for unconstitutional
vagueness. Defendant cites Welch v. United States (2016) ___ U.S. ___, ___
[136 S.Ct. 1257, 1264], as support that Johnson announced a “new rule.” But
the “new rule” of Johnson was its holding that the residual clause of the
ACCA was void for vagueness. (Welch, supra, 136 S.Ct. at p. 1265 [“By
striking down the residual clause as void for vagueness, Johnson changed the
substantive reach of the Armed Career Criminal Act, altering ‘the range of
conduct or the class of persons that the [Act] punishes’ ”].) Johnson did not
purport to set forth a new test for determining whether a law is
unconstitutionally vague.
Third, defendant argues the Ledesma court’s reasoning is flawed
because the aggravated kidnapping statute requires a jury to “compare real
world facts to a hypothetical rape or robbery,” and this is contrary to the rule
in Johnson. We disagree with the premise of this argument. Johnson did not

12
condemn the comparison of real-world facts to hypothetical offenses. It found
fault with asking courts to imagine how an idealized ordinary version of a
crime would play out as the test for determining whether the crime qualified
as a violent felony under the residual clause. (Johnson, supra, 576 U.S. at p.
597.) Aggravated kidnapping does not suffer from this fault. As our high
court has explained, “[F]or aggravated kidnapping, the victim must be forced
to move a substantial distance, the movement cannot be merely incidental to
the target crime, and the movement must substantially increase the risk of
harm to the victim. Application of these factors in any given case will
necessarily depend on the particular facts and context of the case.” (People v.
Dominguez (2006) 39 Cal.4th 1141, 1153, italics added and original italics
deleted.)
Fourth, quoting the Johnson court’s observation that the residual
clause of the ACCA “has proved ‘nearly impossible to apply consistently’ ”
(Johnson, supra, 576 U.S. at p. 601), defendant claims the asportation
standard of aggravated kidnapping is similarly suspect because it is applied
inconsistently. Defendant cites various robbery and rape cases; in some
cases, the movement of the victim was sufficient to support aggravated
kidnapping, in others it was not. These cases do not show that the
asportation requirement of aggravated kidnapping is impossible to apply
consistently; they show only that the application of the law to the facts yields,
not surprisingly, different results in different cases.5 As the Johnson

5 Defendant notes that the jury asked for clarification about the
“substantial distance” definition in the jury instructions on aggravated
kidnapping and simple kidnapping and requested additional argument on
“substantial distance” and “beyond merely incidental.” But a jury request for
clarification does not necessarily suggest that a law is unconstitutionally
vague. The jury here also asked for a definition of “minor or moderate bodily
harm.”

13
majority observed, “even clear laws produce close cases.” (576 U.S. at p. 601.)
The problem with the residual clause was that cases demonstrated a
“pervasive disagreement about the nature of the inquiry one is supposed to
conduct and the kinds of factors one is supposed to consider.” (Ibid.) The
Ledesma court explained, “In contrast, California cases on the asportation
element of aggravated kidnapping . . . show broad agreement on both the
nature of the inquiry required and the relevant factors to evaluate when
deciding whether the facts in a case are sufficient to satisfy the asportation
element of the aggravated kidnapping statute and the One Strike Law.”
(Ledesma, supra, 14 Cal.App.5th at p. 839.)
Fifth, defendant notes the United States Supreme Court has
invalidated another federal statute on vagueness grounds in Sessions v.
Dimaya (2018) ___ U.S. ___ [138 S.Ct. 1204]. Dimaya involved a
“straightforward application” of Johnson to a statute that defines a “crime of
violence” to include “ ‘any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense.’ ”
(138 S.Ct. at pp. 1211, 1213; 18 U.S.C. § 16(b).) The statute at issue in
Dimaya, like the residual clause in Johnson, first, required “a court to
identify a crime’s ‘ordinary case’ in order to measure the crime’s risk” and,
second, required application of an uncertain standard of “violence” to this
“ ‘judge-imagined abstraction.’ ” (138 S.Ct. at pp. 1215–1216.) As we have
explained, the California aggravated kidnapping statutes do not suffer from
these two infirmities.
In short, defendant has not persuaded us to depart from Ledesma.
Accordingly, we reject his contention that the aggravated kidnapping statutes
are void for vagueness.

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B. Consecutive Terms
1. Background
Before pronouncing the sentence, the trial court stated, “The factors in
circumstances in aggravation, number one, the crime involved great violence,
bodily harm, threat of great bodily harm, and other acts disclosing a high
degree of cruelty, viciousness and callousness.”
“The victim was particularly vulnerable. [¶] The manner in which the
crime was carried out indicated planning, sophistication and professionalism.
[¶] The defendant engaged in violent conduct that indicates a danger to
society. [¶] The defendant’s prior convictions as an adult are numerous and
are of increasing seriousness. [¶] The defendant has served a prior prison
term. [¶] The defendant was on parole when the crime was committed.
[¶] The defendant’s prior performance on probation and parole were
unsatisfactory. [¶] There are no factors in mitigation.”
Immediately following this statement, the court imposed a term of life
without the possibility of parole (LWOP) for count 2 pursuant to section
667.61, subdivision (l). It then imposed the same punishment for count 3,
stating, “And that’s consecutive. [¶] The reason I’m doing that and not
making it concurrent is because I’m just concerned that there might be some
problem with the appeal on Count Two for some reason.· I don’t think there
will be, but just out of an abundance of caution.” The court then imposed
another consecutive sentence for count 4 “for the same reason.”
2. Analysis
A trial court is required to state its reasons for imposing consecutive
terms. (Cal. Rules of Court, rule 4.406(b)(5).)6 Defendant contends the trial

6“Factors affecting the decision to impose consecutive rather than
concurrent sentences include:

15
court erred in relying on the possibility of appellate relief as to one or more of
the counts as a reason to impose consecutive rather than concurrent terms.
He seeks remand for resentencing for the trial court to appropriately exercise
its discretion in determining whether to impose consecutive or concurrent
sentences for counts 3 and 4. The Attorney General does not dispute that the
trial court’s stated reason for imposing consecutive terms was improper.
Instead, he argues any error is harmless because the court found multiple
aggravating factors, any one of which justified the imposition of consecutive
terms. In response, defendant asserts the trial court was “quite specific”
about its reason for imposing consecutive terms.
We agree with defendant that the trial court was clear about why it
chose consecutive rather than concurrent LWOP terms, and that its sole
reason (the possibility of appellate relief on one or more counts) was not an
appropriate basis for imposing consecutive terms. As defendant points out,
when a defendant has an aggregate sentence and a count is reversed on
appeal, the trial court may reconsider its prior sentencing choices. (People v.
Burbine (2003) 106 Cal.App.4th 1250, 1253.) Burbine expressly cautioned

“(a) Facts relating to crimes [¶] Facts relating to the crimes, including
whether or not: [¶] (1) The crimes and their objectives were predominantly
independent of each other; [¶] (2) The crimes involved separate acts of
violence or threats of violence; or [¶] (3) The crimes were committed at
different times or separate places, rather than being committed so closely in
time and place as to indicate a single period of aberrant behavior.”
“(b) Other facts and limitations [¶] Any circumstances in aggravation or
mitigation may be considered in deciding whether to impose consecutive
rather than concurrent sentences, except: [¶] (1) A fact used to impose the
upper term; [¶] (2) A fact used to otherwise enhance the defendant’s sentence
in prison or county jail under section 1170(h); and [¶] (3) A fact that is an
element of the crime may not be used to impose consecutive sentences.” (Cal.
Rules of Court, rule 4.425.)

16
against sentencing courts attempting “to take into account the likelihood of
certain counts surviving appeal—a sentencing algorithm which might
unnecessarily lead to longer original sentences.” (Id. at p. 1258.)
Accordingly, we will remand to the trial court to resentence defendant using
appropriate sentencing factors.
C. Parole Revocation Fine
Section 1202.45, subdivision (a), provides the court “shall . . . assess an
additional parole revocation restitution fine” “[i]n every case where a person
is convicted of a crime and his or her sentence includes a period of parole.”
(Italics added.)
The trial court imposed and suspended a parole revocation restitution
fine under section 1202.45. Defendant argues this was error because he
received a sentence with no possibility of parole. The Attorney General
responds that section 1202.45 applies here because defendant received a
stayed term of life with the possibility of parole for count 5.
In People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan), cited
by defendant, the Court of Appeal rejected the Attorney General’s position.
The issue was whether section 1202.45 applied where a defendant received
an indeterminate term for one offense and LWOP for a different offense. (Id.
at p. 1181.) The court concluded it did not, reasoning: “[T]he language of
section 1202.45 indicates that the overall sentence is the indicator of whether
the additional [parole revocation] restitution fine is to be imposed. Section
1202.45 indicates that it is applicable to a ‘person . . . whose sentence
includes a period of parole.’ At present, defendant’s ‘sentence’ does not allow
for parole. When we apply a commonsense interpretation to the language of
section 1202.45 [citations], we conclude that because the sentence does not

17
presently allow for parole and there is no evidence it ever will, no additional
restitution fine must be imposed.” (Id. at p. 1185.)
Courts have followed Oganesyan in People v. Battle (2011) 198
Cal.App.4th 50, 63 (Battle) [improper to impose parole revocation fine where
the defendant received an indeterminate term of 25 years to life for one count
and LWOP for another count] and People v. Jenkins (2006) 140 Cal.App.4th
805, 819 (Jenkins) [error to impose section 1202.45 fine where the defendant
was sentenced to 35 years to life and LWOP].
The Attorney General does not address Oganesyan, and the cases he
cites do not involve defendants who received LWOP terms.7 We think the
reasoning in Oganesyan, Battle, and Jenkins is sound, and we conclude
section 1202.45 is inapplicable to defendant. (See Couzens et al., Sentencing
Cal. Crimes (The Rutter Group September 2020 update) § 17:13; cf. People v.
Brasure (2008) 42 Cal. 4th 1037, 1075 [distinguishing Oganesyan and holding
a determinate term includes a parole revocation fine even when coupled with
an LWOP term].) The $10,000 parole revocation fine will be stricken.
D. Error in the Abstract of Judgment
As to counts 2, 3, and 4, defendant was sentenced under section 667.61,
subdivision (l), of the One Strike Law. The abstract of judgment, however,
incorrectly shows that defendant was sentenced pursuant to section 667.7.
The parties agree this is a clerical error that should be corrected. We agree

7The Attorney General cites cases (People v. Calabrese (2002) 101
Cal.App.4th 79 and People v. Tye (2000) 83 Cal.App.4th 1398) that hold only
that when execution of sentence is suspended (and the defendant is placed on
probation), section 1202.45 still requires imposition of a restitution fine. But
those cases did not involve LWOP sentences and the present case does not
involve a suspended sentence. Defendant’s term for count 5 was stayed
under section 654; it was not suspended for probation.

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with the parties, and we instruct the trial court to reflect the correct
sentencing statute, section 667.61, when it issues a new abstract of judgment.
DISPOSITION
The matter is remanded for resentencing in accordance with this
opinion. The parole revocation fine under section 1202.45 is stricken. The
new abstract of judgment shall reflect (1) that the parole revocation fine has
been stricken and (2) that defendant was sentenced pursuant to section
667.61. In all other respects, the judgment is affirmed.

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 _________________________
Miller, J.

WE CONCUR:

_________________________
Kline, P.J.

_________________________
Stewart, J.

A159194, People v. McInnis

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Court: Alameda County Superior Court

Trial Judge: Hon. Thomas Rogers

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and
Appellant

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Rene A.
Chacon, Julia Y. Je, Deputy Attorneys General, for Plaintiff and Respondent

A159194, People v. McInnis

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