Filed 9/29/15 P. v. Daniels CA4/1
                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                     COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                    DIVISION ONE

                                            STATE OF CALIFORNIA

THE PEOPLE,                                                          D068056

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. SWF024245)

KENNETH DANIELS, JR.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Angel M.

Bermudez, Judge. Affirmed as modified but remanded for resentencing.



         Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L.

Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Kenneth Daniels, Jr. of three counts of residential burglary (Pen.

Code,1 § 459; counts 1, 4, 8); two counts of rape (§ 261, subd. (a)(2); counts 2, 5); two

counts of forcible oral copulation (§ 288a, subd. (c)(2); counts 3, 6); two counts of

attempted residential burglary (§§ 664/459; counts 7, 12); one count of first degree murder

(§ 187, subd. (a); count 9); one count of attempted rape (§§ 664/261, subd. (a)(2); count

10); and one count of elder abuse (§ 368, subd. (b)(1); count 11).

       In regard to the first degree murder offense, the jury found true that Daniels

committed the murder during an attempted rape and residential burglary (§§ 190.2, subds.

(a)(17)(C), (G), 664/261, subd. (a)(2), 459). The jury further found Daniels committed the

rapes and forcible oral copulations during a burglary (§ 667.61, subd. (e)(2)), and had

entered an inhabited dwelling with the intent to commit a violent sex offense (§ 667.61,

subds. (c), (d)(4)). As to counts 2 and 3, the jury found Daniels personally inflicted great

bodily injury during the commission of the offenses (former § 667.61, subd. (e)(3); 2

§§ 12022.7, 12022.8). In regard to count 11, the jury found Daniels proximately caused

the death of a person 70 years of age or older.




1      Statutory references are to the Penal Code unless otherwise specified.

2       At the time Daniels committed his crimes in 2007, the great bodily injury
circumstance of the One Strike law was found in subdivision (e)(3). (Former § 667.61,
(e)(3); Stats. 2006, ch. 337 (S.B. 1128), eff. Sept. 20, 2006; Initiative Measure (Prop 83);
§ 12, approved Nov. 7, 2006, eff. Nov. 8, 2006.) In 2010, the Legislature amended the One
Strike law, moving the great bodily injury circumstance to subdivision (d) as paragraph (6).
(Historical and Statutory Notes, 49 West's Ann. Pen. Code (2010 ed.) foll. § 667.61,
pp. 399-400; Stats. 2010, ch. 219 (A.B. 1844), § 16, eff. Sept. 9, 2010.)

                                              2
       The court sentenced Daniels to prison for an aggregate term of life without the

possibility of parole, plus four consecutive terms of 25 years to life, and a determinate term

of eight years four months.

       Daniels appeals, contending (1) the trial court committed prejudicial error in

refusing to instruct the jury on voluntary intoxication with respect to the murder offense

and accompanying special circumstance allegations; (2) the portions of Daniels's sentence

related to the burglary offenses should have been stayed under section 654; (3) the trial

court did not properly exercise its discretion under section 667.61 prior to sentencing

Daniels; and (4) the parole revocation fine should be stricken. We agree with Daniels that

the portion of his sentence related to the burglary offenses should have been stayed under

section 654. However, we conclude the rest of Daniels's claims are without merit. As

such, we affirm the judgment as modified.

                                FACTUAL BACKGROUND

       Because Daniels neither challenges the sufficiency of the evidence nor questions the

admissibility of certain evidence, we avoid a thorough discussion of the unpleasant facts of

this case. Instead, we present an abbreviated summary of the salient facts to provide

context to the issues Daniels raises here.

       Daniels's crimes took place over five months at the Oak Terrace Apartments, a

senior citizen apartment complex in Hemet. The apartments were in a gated complex

surrounded by an eight-foot high fence as well as a cinder block wall topped with a railing

on one side of the complex.




                                              3
      On August 21, 2007, Daniels's entered the apartment of Jane Doe No. 1 through the

sliding glass door located on the balcony. Jane Doe No. 1 saw Daniels crouching on the

floor of the kitchen in her apartment, and she attempted to flee. However, Daniels grabbed

her, knocked her to the ground, and repeatedly punched her in the face while straddling

her. Daniels eventually stopped punching Jane Doe No. 1, and then he raped her and made

her orally copulate him. Jane Doe No. 1 did not smell any alcohol on Daniels's breath.

      On October 19, 2007, Daniels once again entered Jane Doe No. 1's apartment while

Jane Doe No. 1 slept. Daniels forced Jane Doe No. 1 to orally copulate him then

repeatedly raped her. Jane Doe No. 1 did not smell any alcohol on Daniels's breath.

      On December 11, 2007, Daniels entered the apartment of Jane Doe No. 2 at the Oak

Terrace Apartments. Daniels beat Jane Doe No. 2 to death. Jane Doe No. 2 was 74 years

old, four feet eight inches tall, and weighed 73 pounds. She used a wheelchair.

      On December 28, 2007, Daniels attempted to break into Jane Doe No. 3's apartment

at the Oak Terrace Apartments. When Jane Doe No. 3 heard a person (who turned out to

be Daniels) outside her apartment window, she called the police. Daniels ran from the

apartment complex, but was captured by the police.

      The Oak Terrace Apartments had video surveillance cameras covering the main

entrance and exit gates for vehicles and pedestrians, the management office, and the pool.

During the time that Daniels was committing his crimes at the complex, additional video

surveillance cameras were added, included one directed toward Jane Doe No. 1's

apartment.




                                             4
                                        DISCUSSION

                                                I

                                      CALCRIM NO. 625

       Daniels contends the trial court erred in refusing to provide a voluntary intoxication

jury instruction (CALCRIM No. 625) with respect to the murder offense and the special

circumstances allegations related to that offense. We disagree.

                             A. Standard of Review and the Law

       We review a claim of instructional error de novo. (People v. Posey (2004) 32

Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial

court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163

Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving jury

instructions, we consider the instructions as a whole and assume jurors are intelligent

persons, capable of understanding and correlating all jury instructions which are given.

(Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment

rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.)

"The crucial assumption underlying our constitutional system of trial by jury is that jurors

generally understand and faithfully follow instructions." (People v. Mickey (1991) 54

Cal.3d 612, 689, fn. 17.)

       Generally, the trial court is required to instruct the jury on the general principles of

law that are closely and openly connected with the evidence and that are necessary to the

jury's understanding of the case. (People v. Barker (2001) 91 Cal.App.4th 1166, 1172.) It

also has a duty to refrain from giving incorrect instructions or instructions on principles of


                                                5
law that are irrelevant and that would have the effect of confusing the jury or relieving it

from making findings on the relevant issues. (Ibid.; see People v. Smithey (1999) 20

Cal.4th 936, 976-977, fn. 7.)

       "[A]n instruction on voluntary intoxication, explaining how evidence of a

defendant's voluntary intoxication affects the determination of whether defendant had the

mental states required for the offenses charged, is a form of pinpoint instruction that the

trial court is not required to give in absence of a request." (People v. Bolden (2002) 29

Ca1.4th 515, 559.) A trial court is required to give a requested pinpoint instruction "only if

it is supported by substantial evidence." (People v. Ward (2005) 36 Ca1.4th 186, 214.)

" ' "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is,

evidence that a reasonable jury could find persuasive." ' " (People v. Cole (2004) 33

Ca1.4th 1158, 1215.) If the evidence is " 'minimal and insubstantial,' " the court need not

give the requested instruction. (People v. Barton (1995) 12 Ca1.4th 186, 201.)

                                          B. Analysis

       Daniels's trial counsel requested that the trial court instruct the jury on the defense

of voluntary intoxication with respect to the murder offense (count 9) and the special

circumstance allegations related to that offense. To this end, Daniels's trial counsel asked

for CALCRIM No. 625 to be given to the jury. That instruction states:

           "You may consider evidence, if any, of the defendant's voluntary
           intoxication only in a limited way. You may consider that evidence
           only in deciding whether the defendant acted with an intent to kill[,]
           [or] [the defendant acted with deliberation and premeditation[,]] [[or]
           the defendant was unconscious when (he/she) acted[,]] [or the
           defendant <insert other specific intent required in a homicide charge
           or other charged offense>.] [¶] A person is voluntarily intoxicated if


                                               6
          he or she becomes intoxicated by willingly using any intoxicating
          drug, drink, or other substance knowing that it could produce an
          intoxicating effect, or willingly assuming the risk of that effect. [¶]
          You may not consider evidence of voluntary intoxication for any other
          purpose."

       The court declined to give CALCRIM No. 625 to the jury in regard to the murder

offense and the special circumstance allegations, finding that the instruction was not

supported by the evidence. Daniels argues that the trial court prejudicially erred in refusing

to give the instruction.3 He emphasizes that video footage of him on December 11 showed

his lack of balance and coordination, which could have led the jury to believe he was

intoxicated on the night of the murder.

       Daniels also points out that his trial counsel offered evidence regarding his habitual

drinking. For example, trial counsel presented testimony from several of Daniels's friends

that during the period of July through December 2007, Daniels attended parties and drank

heavily. In addition, Daniels's blood alcohol level after his arrest on December 28 was .10

percent as of 3:55 a.m. and would have been .14 percent at 1:30 a.m. Daniels contends that

without CALCRIM No. 625, the jurors were left without guidance as how to evaluate this


3       In his opening brief, Daniels mentions that his trial counsel argued that evidence of
Daniels's intoxication in connection with count 12 (attempted residential burglary) could be
used to infer intoxication on the date of the murder, some three weeks earlier. To this end,
Daniels's trial counsel analogized the inference of intoxication with the prosecution's use of
other crimes evidence to prove intent to rape for its felony murder theory. Here, Daniels
fails to provide any authority for this position or explain why voluntary intoxication is akin
to other crimes evidence. The appellant has the burden of proving error. (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564.) Further, the appellant must support an
argument with citations to legal authorities or his argument may be deemed waived.
(McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) Because Daniels has not satisfied
either burden with respect to his inference of intoxication argument, we deem such
contention waived.

                                              7
evidence with respect to the murder charge and the special circumstances allegations. We

disagree.

       There was not sufficient evidence to establish a pattern of drinking in connection

with the offenses committed. The murder occurred around 5:00 a.m. on December 11,

2007, almost three weeks before Daniels's arrest. There is no evidence that Daniels was

intoxicated when he sexually assaulted Jane Doe No. 1 on Tuesday, August 21, 2007, or on

Friday, October 19, 2007. Jane Doe No. 1 did not smell alcohol on Daniels's breath during

either attack. Instead, Daniels smelled as if he had freshly showered and put on cologne.

       Moreover, Daniels also failed to establish sufficient evidence of habitual drinking in

general to warrant an intoxication defense. Although Daniels's friends testified that they

played drinking games at parties during the weekends, and sometimes Thursday nights,

December 11, 2007, was a Tuesday. None of Daniels's friends testified that they regularly

partied and played drinking games on Monday nights into Tuesday mornings. Rather, they

testified that Daniels did not drink all the time. Further, the amounts they would drink at

the parties, and how long the parties would last, varied, depending on how many drinking

games they played. Daniels simply did not produce enough evidence to establish his

becoming intoxicated was a habit or a custom.

       In addition, Daniels insists video footage showed that he lacked balance and

coordination on December 11, which would allow the jury to infer that he was intoxicated

at the time of the murder. Nevertheless, Daniels fails to identify any exhibit in the record

consisting of such video footage. Instead, he merely cites to his trial counsel's argument

about the video footage: "And it's our position that the video evidence from December


                                              8
11th shows Mr. Daniels with impaired balance and coordination." An attorney's argument,

however, is not evidence.

       Presumably, Daniels is referring to some portion of one of the seven CDs of video

surveillance footage of the Oak Terrace Apartments that depicted him in that area.

Although he does not point us to any specific exhibit by number, in an abundance of

caution, we reviewed the relevant exhibits. We agree with the trial court regarding its

interpretation of the pertinent portion of the video footage:

          "I disagree with the defense. I think it's a matter of argument or
          interpretation in terms of fluidity of the motions because the quality of
          the video is not necessarily outstanding in any way. It is a little bit
          jumpy at times. So one can't clearly conclude what is going on. But
          what you can see is the thought process of the individual as they are
          going about their duties. Whether it's A, time to scale a wall; whether
          it's B, a time to land. By the way[,] the stumble that was portrayed by
          the defense, one can clearly see that there is an avoidance of a bush on
          what would be the left—the right-hand side of the landing to the
          person that is making the landing, or the left-hand side to the person
          that is watching the video, and that is why there is kind of a backwards
          jump or gymnastics jump, if you will, as cited by the prosecutor. [¶]
          There is the visual observation as well of the car lights, which I have
          pointed out, which show that the person is not confused or disoriented
          in terms of the environment. So I think that the total argument as to
          what happened on December 11th, with regards to his state of
          sobriety, would be an invitation to the jury to speculate. That would
          be the only way that the instruction should be given. And I don't think
          that that is an appropriate reason to give the instruction. I will not
          give the voluntary intoxication instruction for that reason."

       Simply put, we see nothing in the video footage that would allow the jury to infer

that Daniels was intoxicated at the time of the murder on December 11. Further, because

we determine that substantial evidence does not exist to support the giving of CALCRIM

No. 625 in regard to the murder offense and related special circumstances, we conclude the



                                               9
trial court did not err. (See People v. Ward, supra, 36 Ca1.4th at p. 214; People v. Barton,

supra, 12 Ca1.4th at p. 201.)

                                              II

               DANIELS'S SENTENCES FOR THE BURGLARY OFFENSES

       Daniels asserts, and the People concede, that the trial court erred by imposing

sentences on the two burglary counts involving Jane Doe No. 1. Under subdivision (a) of

section 667.61 (also known as the One Strike law), a defendant shall be sentenced to 25

years to life if he is convicted of an enumerated sex offense, including rape or forcible oral

copulation, "under one or more of the circumstances specified in subdivision (d) or under

two or more of the circumstances specified in subdivision (e)." Section 667.61,

subdivision (f) provides, in part:

          "If only the minimum number of circumstances specified in
          subdivision (d) or (e) that are required for the punishment provided in
          subdivision (a) . . . to apply have been pled and proved, that
          circumstance or those circumstances shall be used as the basis for
          imposing the term provided in subdivision (a) . . . , rather than being
          used to impose the punishment authorized under any other provision
          of law, unless another provision of law provides for a greater
          penalty. . . ."

       With regard to the August 21, 2007 attack, the jury found Daniels guilty of

residential burglary (count 1), rape (count 2), and forcible oral copulation (count 3). With

regard to the October 19, 2007 attack, the jury also found Daniels guilty of residential

burglary (count 4), rape (count 5), and forcible oral copulation (count 6). In addition, the

jury found Daniels committed the sex offenses during a first degree burglary with the intent

to commit a violent sex offense (§ 667.61, subd. (d)(4)), and during the commission of a



                                              10
burglary (§ 667.61, subd. (e)(2)). As to counts 2 and 3 (the first incident), the jury also

found Daniels inflicted great bodily injury in committing the crimes (former § 667.61,

subd. (e)(3)). Although the great bodily injury circumstance is now found in subdivision

(d)(6), at the time Daniels committed his offenses in 2007, it was found in subdivision

(e)(3). (See Historical and Statutory Notes, 49 West's Ann. Pen. Code (2010 ed.) foll.

§ 667.61, pp. 399-400; Stats. 2006, ch. 337 (S.B. 1128), eff. Sept. 20, 2006; Initiative

Measure (Prop. 83), § 12, approved Nov. 7, 2006, eff. Nov. 8, 2006; Stats. 2010, ch. 219

(A.B. 1844), § 16, eff. Sept. 9, 2010.) Therefore, the jury found one subdivision (d)

circumstance true as to counts 5 and 6, and found one subdivision (d) circumstance true

and two subdivision (e) circumstances true as to counts 2 and 3, mandating terms of 25

years to life for all four counts.

       As mandated, the trial court sentenced Daniels to prison for 25-year-to-life terms on

the four sex offense counts. The trial court also sentenced Daniels to determinate terms on

the two burglary counts. Since the burglaries were used to impose the terms pursuant to

the One Strike Law under both subdivisions (d) and (e), and only the minimum number of

circumstances were found true, under section 667.61, subdivision (f), the trial court could

not sentence Daniels separately for the burglaries. (See People v. Mancebo (2002) 27

Ca1.4th 735, 738.) Therefore, the trial court should have stayed Daniels's prison terms as

to counts 1 and 4.4



4       The trial court selected count 1 as the "primary charge for a determinate sentence."
Because we conclude that the sentence to count 1 should be stayed, the People urge us to
select either counts 7 or 12 as the "primary charge." In addition, the People contend that

                                              11
                                              III

                SENTENCING DANIELS UNDER THE ONE STRIKE LAW

       Daniels next contends the trial court erred in sentencing him to four consecutive

sentences of 25 years to life under the One Strike law in connection with the two incidents

involving Jane Doe No. 1, specifically counts 2 and 5 (rape), counts 3 and 6 (oral

copulation). Daniels asserts that the trial court did not understand that it had discretion to

sentence him consecutively and that such sentences were not mandatory. We disagree.

       The One Strike law required that the trial court impose 25-year-to-life sentences for

each count of rape and forcible oral copulation. (§ 667.61, subd. (a).) The One Strike law

requires a sentencing court to impose those sentences consecutively if the crimes "involve

the same victim on separate occasions as defined in subdivision (d) of Section 667.6."

(§ 667.61, subd. (i).) To determine whether a defendant committed the crimes on separate

occasions, "the court shall consider whether, between the commission of one sex crime and

another, the defendant had a reasonable opportunity to reflect upon his . . . actions and

nevertheless resumed sexually assaultive behavior. Neither the duration of time between

crimes, nor whether or not the defendant lost or abandoned his . . . opportunity to attack,

shall be, in and of itself, determinative on the issue of whether the crimes in question

occurred on separate occasions." (§ 667.6, subd. (d).)




this court would be "justified" in imposing the upper term as to counts 7 or 12, although the
trial court selected one-third of the middle term for both counts. We decline to resentence
Daniels, but will remand the case to the superior court for resentencing consistent with this
opinion.

                                              12
       If the imposition of consecutive terms is not mandatory, the decision to impose

consecutive or concurrent terms is left to the sentencing court's discretion under section

669. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262-1263 (Rodriguez); see

People v. Valdez (2011) 193 Cal.App.4th 1515, 1524.) "In exercising its discretion

whether to impose concurrent or consecutive terms, a trial court should consider the factors

set forth in California Rules of Court, rule 4.425." (Rodriguez, supra, 130 Cal.App.4th at

p. 1262.) The criteria for imposing consecutive rather than concurrent terms include

whether: "(1) The crimes and their objectives were predominately 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."

(Cal. Rules of Court, rule 4.425(a).)5 Other criteria include "[a]ny circumstances in

aggravation or mitigation," except a fact used to impose an upper term or an enhancement,

or a fact that is an element of an offense. (Rule 4.425(b).)

       A court is "presumed to have been aware of and followed the applicable law" when

imposing a sentence. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) Therefore, the

burden is on Daniels to demonstrate that the court misunderstood its sentencing discretion.

(People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.)




5      All further rule references are to the California Rules of Court unless otherwise
indicated.

                                              13
       Here, Daniels maintains the trial court did not make any of the necessary findings or

otherwise determine that his sentences under the One Strike law should run consecutively.

However, we do not find support in the record for Daniels's argument.

       As a threshold matter, Daniels's trial counsel first raised the issue of consecutive

sentences during the sentencing hearing: "I know the probation officer suggests or

recommends consecutive sentences for the other counts, but given the sentence that the

Court intends, I'm sure, to impose on Count 9, which is the sentence required by law,

which is life without the possibility of parole, it would seem to me to be sort of useless to

make any sentence consecutive to a sentence which will leave Mr. Daniels in the state

prison for the rest of his life."

       Later during the sentencing hearing, the prosecutor specifically requested four

consecutive 25-year-to-life sentences on counts 2, 3, 5, and 6. The court gave Daniels's

counsel an opportunity to address the prosecutor's request for consecutive sentences, but

Daniels's counsel declined.

       In determining the appropriate sentence for Daniels, the trial court found the crimes

involved great violence, great bodily harm, the threat of great bodily harm, and a high

degree of cruelty, viciousness, or callousness; the victims were particularly vulnerable;

Daniels dissuaded a witness from coming forward and reporting the offense; the crimes

involved planning, sophistication, and professionalism, and Daniels had engaged in violent

conduct that indicated a serious danger to society. (Rules 4.421(a)(1), (3), (6), (8), (b)(1),

4.425(b).) The court also found there was no suggestion that the crimes were committed

during a single period of aberrant behavior, as the crimes were spread out over time,


                                              14
location, and victims. (Rule 4.425(a)(3).) Additionally, the sex crimes against Jane Doe

No. 1 involved four separate acts of violence: rape and forcible oral copulation on

August 21, 2007 (counts 2 and 3), and rape and forcible oral copulation on October 19,

2007 (counts 5 and 6). (§ 667.5, subd. (c)(3), (5); rule 4.425(a)(2).)

       In sum, the trial court pronounced ample aggravating factors to justify imposing

consecutive terms as to counts 3 and 5.

       To the extent Daniels contends the trial court failed to state adequate reasons for

imposing consecutive terms, he forfeited his claim by failing to object below. (People v.

Scott (1994) 9 Ca1.4th 331, 352-353.) The court specifically asked Daniels's trial counsel

if he wanted to respond to the prosecutor's argument that Daniels's sentences should run

consecutively. Daniels's counsel declined to do so. Moreover, after the court described the

crimes and explained Daniels's sentence, Daniels's counsel did not object. Here, the trial

court provided multiple aggravating factors for imposing consecutive sentences as to

Daniels's crimes. This was sufficient. (Cf. People v. Osband (1996) 13 Ca1.4th 622, 728-

729; People v. Bravot (1986) 183 Cal.App.3d 93, 98 ["Articulation of one criterion for the

imposition of a consecutive sentence is sufficient."].) Having not objected during the

sentencing hearing, Daniels cannot now claim the court did not adequately state the reasons

for Daniels's sentence. (People v. Scott, supra, 9 Ca1.4th at pp. 352-353.)

                                              IV

                               PAROLE REVOCATION FINE

       Lastly, Daniels claims the $3,360 stayed parole revocation fine must be stricken

because he "was sentenced to a term of life without the possibility of parole." To this end,


                                              15
Daniels relies on People v. Battle (2011) 198 Cal.App.4th 50 (Battle); People v. Oganesyan

(1999) 70 Cal.App.4th 1178 (Oganesyan); People v. McWhorter (2009) 47 Cal.4th 318

(McWhorter); and People v. Brasure (2008) 42 Cal.4th 1037 (Brasure).

       Section 1202.45, subdivision (a), provides: "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 . . . assess an additional parole revocation

restitution fine. . . ." This additional parole revocation restitution fine shall be suspended

unless the person's parole is revoked.

       Daniels's reliance on Oganesyan and Battle is misplaced. In Oganesyan, supra, 70

Cal.App.4th 1178, the court concluded that the parole revocation fine was improper

because the defendant had only been sentenced to life without the possibility of parole. (Id.

at p. 1183.) There was no discussion about any other determinate sentence. Likewise,

Battle, supra, 198 Cal.App.4th 50, only concerned an indeterminate sentence. As such, in

that case, the Attorney General conceded a parole revocation restitution fine was improper.

(Id. at p. 63.)

       In contrast to both Oganesyan, supra, 70 Cal.App.4th 1178 and Battle, supra, 198

Cal.App.4th 50, Daniels received determinate sentences on counts 1, 4, 7, and 12. The

court also sentenced him to determinate terms for counts 8, 10, and 11, but suspended those

sentences. So, unlike Oganesyan and Battle, Daniels's total prison time included

determinate sentences. As such, we determine the instant matter is governed by Brasure,

supra, 42 Cal.4th 1037.




                                               16
       In Brasure, our high court interpreted section 1202.45 as applying to defendants

sentenced to any term that includes the possibility of parole. The court distinguished

Oganesyan, supra, 70 Cal.App.4th 1178, "as involving no determinate term of

imprisonment imposed under section 1170, but rather a sentence of life without the

possibility of parole for first degree special circumstance murder and an indeterminate life

sentence for second degree murder." (Brasure, supra, 42 Cal.4th at p. 1075.) Though the

defendant in Brasure was sentenced to death, he was also sentenced to determinate terms

(§ 1170) which, by law, the court reasoned, included the possibility of parole and a

suspended parole revocation fine (§ 3000, subd. (a)(1), 1202.45; Brasure, supra, at

p. 1075).

       Like the defendant in Brasure, Daniels's sentence includes determinate terms and

these carry with them the possibility of parole (§ 3000, subd. (a)(1)), and a suspended

parole revocation fine (§ 1202.45; Brasure, supra, 42 Cal.4th at p. 1075). And, like the

defendant in Brasure, Daniels "is in no way prejudiced by assessment of the [suspended

parole revocation] fine, which will become payable only if he actually does begin serving a

period of parole and his parole is revoked." (Ibid.)

       Further, the holding of McWhorter, supra, 47 Cal.4th 318, where the Supreme Court

struck a parole revocation fine where the defendant was sentenced to the death penalty as

well as a determinate sentence for first degree burglary does not alter our conclusion. (Id.

at p. 380.) The court did not articulate the basis for treating the section 1202.45 parole

revocation fine before it differently from the section 1202.45 parole revocation fine it

upheld in Brasure, supra, 42 Cal.4th 1037. The only apparent distinction is that the parole


                                              17
revocation fine upheld in Brasure was appended to an unstayed determinate sentence,

while the parole revocation fine stricken in McWhorter was appended to the sentence for

the robbery conviction necessarily stayed under section 654, once the death penalty was

imposed for the robbery special circumstance. Here, we conclude this case is more like

Brasure because at least one of Daniels's determinate sentences was not stayed.

                                      DISPOSITION

      The judgment is modified to stay Daniels's sentences for counts 1 and 4 under

section 654. The judgment is otherwise affirmed. We remand this matter back to the

superior court, however, for resentencing consistent with this opinion. After resentencing

Daniels, the trial court is directed to prepare an amended abstract of judgment and minute

order to reflect Daniels's new sentence and forward a certified copy to the Department of

Corrections and Rehabilitation.

                                                                             HUFFMAN, J.

WE CONCUR:


McCONNELL, P. J.


BENKE, J.




                                            18
