Filed 10/23/14 P. v. Guzman CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058456

v.                                                                       (Super.Ct.No. RIF1102483)

JOSE WILSON ROJAS GUZMAN,                                                OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge.

Affirmed.

         Laura Schaefer, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and

Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                    I. INTRODUCTION

       A jury found defendant and appellant Jose Wilson Rojas Guzman guilty of

committing five sex offenses against three girls under the age of 14 years, namely, Does

1, 2, and 3. Defendant was sentenced under the “One Strike” law (Pen. Code, § 667.61)1

to life without the possibility of parole on count 1 and 25-year-to-life terms on counts 4

and 5. He was sentenced to four years on count 2 and one year on count 3, both terms to

run consecutive to count 1.

       Defendant claims the trial court abused its discretion and violated his due process

rights in allowing the prosecution to amend the information following the close of its

case-in-chief to charge him with assaulting Doe 1 with great bodily injury (§ 245, subd.

(a)(1)) in lieu of her attempted murder, as originally charged. The amendment was

allowed after the court indicated it would grant defendant’s section 1118.1 motion to

dismiss the attempted murder charge based on insufficient evidence of intent to kill. We

find no abuse of discretion or due process violation in the allowance of the amendment.

The evidence adduced at the preliminary hearing adequately notified defendant he could

be charged with assaulting Doe 1 with great bodily injury, in lieu of or in addition to her

attempted murder, and defendant had a fair opportunity to defend against the amended

charge.

       Defendant also claims (1) his conviction in count 3 for committing an attempted

forcible lewd act (§§ 664, 288, subd. (b)(1)) on Doe 2 must be reversed because the jury

       1   All further statutory references are to the Penal Code unless otherwise indicated.

                                              2
was inadequately instructed on the force or fear element of the crime; (2) he was

unlawfully sentenced under the One Strike law (§ 667.61) on counts 1, 4, and 5 because

he was not convicted of any qualifying offenses; and, finally, (3) a $200 parole

revocation fine was improperly imposed, given his life sentence without the possibility of

parole. We also find these claims without merit, and affirm the judgment.

                      II. FACTS AND PROCEDURAL HISTORY

A. The Sexual Assault of Doe 1 (May 7-8, 2011)

       On May 7, 2011, around 9:00 p.m., nine-year-old Doe 1’s mother went to work,

leaving Doe 1 and her brother and sister home alone in the family’s apartment. After

falling asleep, Doe 1 woke to a man, later identified as defendant, covering her mouth,

telling her to be quiet. Doe 1 recalled little about what happened next; she recalled only

that the man carried her out of her apartment, took her to his apartment, placed her on a

bed, and began strangling her. She fell asleep again and awoke as defendant left her

lying in a grassy area near a residential street, in the middle of the night, more than two

miles from her apartment.

       Feeling dizzy and confused, Doe 1 knocked on doors in the neighborhood where

defendant left her, looking for help. She told a woman she was lost and did not recall

how she got there. The police were called and Doe 1 was taken to the hospital. She had

extensive injuries, including severe vaginal and anal tears requiring surgery. She also

had a broken hyoid bone in her throat and petechial hemorrhages on her scalp, ears, neck,

throat, upper chest, and back arms, all consistent with having been strangled. The


                                              3
petechial hemorrhages in the back of her throat were consistent with forced oral

copulation.

       At Doe 1’s apartment, police found an open window and its screen was propped

against the exterior wall. Defendant’s fingerprints were on the apartment front doorknob

and bathroom doorknob. A surveillance camera at Doe 1’s apartment complex showed a

man in dark clothing walking up the stairs toward Doe 1’s apartment, then walking down

the stairs with Doe 1 in his arms. Months earlier, defendant rented a room in Doe 1’s

apartment and moved out two to three months before Doe 1 was abducted and sexually

assaulted.

       A surveillance camera at a residence near where Doe 1 was found showed a dark-

colored truck driving with its headlights off, the same truck driving in the other direction

approximately 10 minutes later, and Doe 1 looking for help. The next day, police

detained defendant as he was driving a black Ford F-150 pickup truck. A replica of a

handgun was found in the truck.

       Defendant agreed to be questioned at the police station. While there, he drank

from a styrofoam cup, and police extracted a DNA sample from the saliva on the cup.

The DNA from the saliva on the cup matched DNA from defendant’s blood sample and

DNA from semen in Doe 1’s anus. After the police collected the cup for evidence,

defendant became visibly upset and said: “Oh, God. I asked for . . . that cup of water.”

       In defendant’s apartment, police found four pairs of girls’ underwear in the pocket

of a sweatshirt, including the pair Doe 1 was wearing the night she was abducted. A


                                             4
laptop computer in defendant’s room contained thousands of pictures of preteen girls in

sexually provocative poses, and defendant’s cell phone showed multiple searches for

Web sites with pictures of preteen children in sexually provocative poses. Doe 1’s blood

was found on a mattress in defendant’s apartment.

B. The Attempted Forcible Sexual Assault of Doe 2 (November 2008)

         In November 2008, 12-year-old Doe 2 woke to a man kneeling at the foot of her

bed. The man told her to “shush,” threatened to shoot her father if she made a noise,

pulled down her pajama pants and underwear, and placed a gun against her. She pushed

the man off of her, ran out of the room, and called for her father as the man ran after her,

waving the gun.

         Doe 2’s father heard Doe 2 screaming and saw someone jumping out of the living

room window. Police found three fingerprints matching defendant’s fingerprints around

the open living room window, and the window screen was propped against the side of the

house.

C. The Forcible Sexual Assault of Doe 3 (September 2008)

         In September 2008, 12-year-old Doe 3 woke and saw a man in her bedroom

wearing dark clothing. The man pulled on her legs and she tried to kick him away. He

pulled her shorts and underwear off, licked her vagina, and turned her over and tried to

get on top of her. Doe 3 screamed for her father, and the man said he was her father. The

man put his finger into her anus and her vagina as he kissed her buttocks. He tried to put

his penis in her mouth, but she resisted.


                                              5
       Doe 3 screamed for her father again, and the man began strangling her. After she

continued to resist, the man left. Doe 3 woke her family and the police were called. Doe

3 was taken to the hospital and had overstretched tissues in her genital area, consistent

with having been sexually assaulted. Defendant’s DNA matched DNA in saliva on Doe

3’s buttocks. Outside Doe 3’s house, the police found an open bathroom window with its

screen removed.

D. The Amended Information

       As indicated, at the close of the prosecution’s case, the court indicated it would

grant defendant’s section 1118.1 motion to dismiss the charge in count 3 of attempting to

murder Doe 1 based on insufficient evidence defendant intended to kill Doe 1.

Immediately thereafter, however, the court granted the prosecution’s motion to amend

count 3 to charge defendant with assaulting Doe 1 with great bodily injury (§ 245, subd.

(a)(1)) in lieu of the attempted murder charge.

       Additionally, the court allowed the prosecution to amend count 4 to charge an

attempted forcible lewd act on Doe 2 (§§ 664, 288, subd. (b)(1)), rather than a

(completed) forcible lewd act, as previously charged.2 Two other counts were dismissed,

and the prosecutor filed an amended information.

       2  In opposing the amendment to count 3, defense counsel said she was about to
move to dismiss count 3 (§ 1118.1) because there was insufficient evidence defendant
used force in pulling Doe 2’s pajama pants and underwear down—that is, there was
insufficient evidence defendant used more force than was necessary to pull down the
pajama pants and underwear. The prosecutor pointed out that even if there was
insufficient evidence of force, defendant used fear when he placed a gun, or a replica of a
gun, next to Doe 2 and threatened to shoot her father if she was not quiet. The prosecutor
                                                                 [footnote continued on next page]

                                             6
        The amended information charged defendant in five counts: aggravated sexual

assault of Doe 1 by means of forcible sexual penetration (§§ 269, subd. (a)(5), 289, subd.

(a); count 1), assault with great bodily injury on Doe 1 (§ 245, subd. (a)(1)); count 2),

attempted forcible lewd act on Doe 2 (§§ 664, 288, subd. (b)(1); count 3), aggravated

sexual assault of Doe 3 by means of forcible oral copulation (§§ 269, subd. (a)(4), 288a,

subd. (c)(2) or (3) or subd. (d); count 4), and aggravated sexual assault of Doe 3 by

means of sexual penetration (§§ 269, subd. (a)(5), 289, subd, (a); count 5). One Strike

law sentencing enhancements were alleged in counts 1, 4, and 5. (§ 667.61.)

E. Verdicts and Sentencing

        The jury found defendant guilty as charged in counts 1 through 5 of the amended

information, and found the One Strike allegations on counts 1, 4, and 5 true. Defendant

was sentenced to life without parole on count 1, consecutive 25-year-to-life terms on

counts 4 and 5, four years on count 2, and one year on count 3, consecutive to count 1.

The court imposed but stayed a $200 parole revocation fine. (§ 1202.45.)




[footnote continued from previous page]
conceded there was insufficient evidence that defendant touched Doe 2 in a lewd manner,
and for that reason he moved to amend count 3 to charge an attempted rather than a
completed lewd act by force or fear. The court allowed the amendment, finding “the fear
issue with the gun” sufficient to satisfy the force or fear element.

                                              7
                                     III. DISCUSSION

A. The Information Was Properly Amended to Replace the Attempted Murder Charge

with an Aggravated Assault Charge Against Doe 1

       Defendant claims the trial court abused its discretion and violated his due process

rights in allowing the prosecutor to amend the information, following its case-in-chief, to

charge him with assaulting Doe 1 by means of force likely to produce great bodily injury

in count 2 (formerly count 3), in lieu of her attempted murder. In allowing the

amendment, the court noted the assault charge would not “really be a surprise to the

defense given the nature of [Doe 1’s] injuries.” Defense counsel objected, stating: “I’d

just formally object on the record that the jury has already been read the Information at

the outset.”

       “Due process requires that ‘an accused be advised of the charges against him so

that he has a reasonable opportunity to prepare and present his defense and not be taken

by surprise by evidence offered at his trial.’ [Citation.] Thus, it is the rule that ‘a

defendant may not be prosecuted for an offense not shown by the evidence at the

preliminary hearing or arising out of the transaction upon which the commitment was

based.’ [Citations.]” (People v. Graff (2009) 170 Cal.App.4th 345, 360.)

       “In accordance with this rule, our Supreme Court has interpreted sections 739 and

1009 to ‘“permit amendment of the information to add charges . . . which are supported

by the actual evidence at the preliminary hearing, provided the facts show due notice by

proof to the accused.” [Citations.]’ [Citations.] ‘Under section 739, “[t]he law is settled


                                               8
that unless the magistrate makes factual findings to the contrary, the prosecution may

amend the information after the preliminary hearing to charge any offense shown by the

evidence adduced at the preliminary hearing provided the new crime is transactionally

related to the crimes for which the defendant has previously been held to answer.”

[Citations.] “Under the case law interpreting section 1009, the test applied is whether or

not the amendment changes the offense charged to one not shown by the evidence taken

at the preliminary examination. [Citation.]” [Citation.]’” (People v. McCoy (2013) 215

Cal.App.4th 1510, 1531.)

       We review the court’s accession to an amendment to the information, including

the addition of counts, for an abuse of discretion. (People v. Arevalo-Iraheta (2011) 193

Cal.App.4th 1574, 1581 [Fourth Dist., Div. Two].) Here, there was no due process

violation or abuse of discretion. At the preliminary hearing, Riverside Police Detective

Roberta Hopewell testified she interviewed Doe 1, who recalled being awakened by a

man who carried her away and “chok[ed]” her. Detective Hopewell also spoke with

medical professionals who examined Doe 1 after she was taken to the hospital and

described the severe vaginal tearing she suffered, all the way to her anus, and the

petechial hemorrhages on her scalp, neck, and upper body. The detective also testified

that DNA and other evidence identified defendant as the person who abducted and

sexually assaulted Doe 1.

       All of this evidence was presented in the prosecution’s case-in-chief, before the

court allowed the amendment. As the court pointed out, the aggravated assault charge


                                             9
was not “a surprise to the defense given the nature of [Doe 1’s] injuries.” Indeed, the

new charge was not a surprise to defendant given all the evidence adduced at the

preliminary hearing and at trial.

       Defendant argues the court abused its discretion in allowing the amendment

simply because assault by means of force likely to produce great bodily injury is not a

lesser included offense of attempted murder. But this does not mean there was an abuse

of discretion or due process violation. The aggravated assault charge was shown by the

evidence taken at the preliminary hearing (§ 1009) and was transactionally related to the

attempted murder charge (§ 739). Further, defendant had adequate notice and

opportunity to defend against the aggravated assault charge, based on the evidence taken

at the preliminary hearing, and no evidence was presented during trial that was

substantially different from the evidence presented at the preliminary hearing.

B. The Failure to Instruct on the Force or Fear Element of Attempted Forcible Sexual

Assault of a Child in Count 3 (§ 288, subd. (b)(1)) Was Harmless

       Defendant next claims the trial court prejudicially erred in failing to instruct the

jury that it had to find he acted with force or fear in order to convict him of the attempted

forcible sexual assault of Doe 2 in count 3 (§§ 664, 288, subd. (b)(1)), requiring reversal

of count 3. We agree there was error, but conclude it was harmless beyond a reasonable

doubt. No reasonable juror could have found defendant guilty in count 3 without finding

he attempted to commit a lewd act on Doe 2 by fear—specifically by placing a gun

against her and threatening to shoot her father unless she was quiet.


                                             10
       1. Relevant Background

       On count 3, the court instructed the jury pursuant to CALCRIM No. 1110 on the

elements necessary to prove a lewd and lascivious act on a child under 14 years of age.

(§ 288, subd. (a).) But rather than give CALCRIM No. 1110, the court should have given

CALCRIM No. 1111, the pattern instruction on the elements of a lewd act on a child

under 14 years of age, “by use of force, violence, duress, menace, or fear of immediate

and unlawful bodily injury on the victim or another person . . . .” (§ 288, subd. (b)(1).)

CALCRIM No. 1110 did not identify force or fear as an element of the attempted,

forcible lewd act charge in count 3.

       2. Applicable Law and Analysis

       “‘[T]he correctness of jury instructions is to be determined from the entire charge

of the court, not from a consideration of parts of an instruction or from a particular

instruction.’ [Citation.] ‘“The absence of an essential element in one instruction may be

supplied by another or cured in light of the instructions as a whole.”’ [Citation.]”

(People v. Castillo (1997) 16 Cal.4th 1009, 1016.) We review the legal adequacy of jury

instructions de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.)

       The People argue the entire charge to the jury adequately instructed it on the force

or fear element necessary to prove the attempted forcible lewd act charge involving Doe

2 in count 3. The People point out that the court gave CALCRIM No. 1123, defining the

element of force of fear for purposes of counts 1, 4, and 5, which charged defendant with

aggravated sexual assault on a child under 14 years of age; the jury was instructed to


                                             11
consider all of the instructions “together”; in closing argument, the prosecutor told the

jury that in order to convict defendant in count 3 it had to find he attempted to commit a

lewd act on Doe 2 by “force, violence, duress, or fear”; and the verdict form in count 3

referred to the force or fear element. It stated: “We, the jury, find the defendant _______

[insert GUILTY or NOT GUILTY in blank] of Attempted Lewd Act by Force upon

Jane Doe 2, within the meaning of Penal Code section 664/228(b)(1), as charged in

Count 3.” The jury returned the verdict form, finding defendant guilty.3

       We disagree that the entire charge adequately instructed on the force or fear

element in count 3. As defendant points out, “force, violence, duress, or fear,” was not

defined for purposes of count 3; it was only defined for purposes of counts 1, 4, and 5.

Further, the jury was instructed pursuant to CALCRIM No. 200 that if it believed the

arguments of counsel conflicted with the court’s instructions, it had to follow the court’s

instructions. And here, the prosecutor’s argument that the jury had to find defendant

attempted to commit a lewd act by force or fear, in count 3, conflicted with the court’s

instructions on count 3.




       3  The People also argue that the trial court read the information to the jury, at the
outset of trial, stating in part that defendant was charged in count 3 with “[a] violation of
Penal Code section 664/228, subdivision (b), subsection (1), a felony, in that . . . he did
attempt to willfully, unlawfully, and lewdly commit a lewd and lascivious act upon and
with the body and certain parts and members thereof of Jane Doe #2, a child under the
age of fourteen years, by use of force, violence, duress, menace, and fear of immediate
and unlawful bodily injury . . . .” (Italics added.) Contrary to the People’s assertion, the
record on appeal does not indicate that this charge was read to the jury verbatim, as
charged in the information.

                                             12
       Still, the error was harmless beyond a reasonable doubt. Instructional error that

omits an element of an offense requires reversal, unless it appears beyond a reasonable

doubt that the error did not contribute to the verdict. (Chapman v. California (1967) 386

U.S. 18, 24; People v. Flood (1998) 18 Cal.4th 470, 504.) The question “is not whether,

in a trial that occurred without the error, a guilty verdict would surely have been

rendered, but whether the guilty verdict actually rendered in this trial was surely

unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279; see People

v. Flood, supra, at p. 515.) But “instructional error is harmless ‘where a reviewing court

concludes beyond a reasonable doubt that the omitted element was uncontested and

supported by overwhelming evidence.’ [Citations.]” (People v. Mil (2012) 53 Cal.4th

400, 417, quoting Neder v. U.S. (1999) 527 U.S. 1, 17.)

       Doe 2 testified she woke to a man, later identified through DNA evidence as

defendant, kneeling at the foot of her bed who told her to “shush,” threatened to shoot her

father if she made a noise, pulled down her pajama pants and underwear, and placed a

gun against her. Doe 2’s testimony that defendant threatened to shoot her father was

uncontested and overwhelming.

       Defendant points out that Doe 2 could not recall exactly when the man threatened

to shoot her father, or exactly when he put a gun, or a replica of a gun, against her—

whether these acts occurred before or after the man pulled down her pajama pants and

underwear. But her failure to recollect these details made her testimony no less

overwhelming; she clearly recalled that the man threatened to shoot her father around the


                                             13
same time he crawled onto her bed, placed a gun, or a replica of a gun against her, and

pulled down her pajama pants and underwear. Thus here, the jury must have concluded

defendant threatened to shoot Doe 2’s father, and placed a gun or a replica of a gun

against her, and that defendant accordingly used fear in attempting to commit a lewd act

on Doe 2, in finding him guilty in count 3.

C. Defendant Was Properly Sentenced Under the One Strike Law (§ 667.61)

       Defendant next claims he was unlawfully sentenced under the One Strike law

(§ 667.61) on counts 1, 4, and 5, because he was convicted in those counts of violating

section 269, subdivision (a)(4) and (5), rather than an offense listed in section 667.61,

subdivision (c). He argues “the one strike law does not apply to section 269 convictions”

but only to offenses listed in section 667.61, subdivision (c), and section 269 is not an

offense listed in section 667.61, subdivision (c). We reject this claim.

       Defendant was sentenced on count 1 to life without the possibility of parole under

subdivision (j)(1) of section 667.61, and on counts 4 and 5 he was sentenced to 25-year-

to-life terms under subdivision (a) of section 667.61. Subdivisions (a) and (j)(1) provide

that “[a]ny person who is convicted of an offense specified in subdivision (c) . . . shall be

punished [as provided in section 667.61].” Section 667.61, subdivision (c) states that

“[t]his section shall apply to any of the following offenses,” and goes on to enumerate

these offenses in clauses (1) through (9).

       In count 1, defendant was convicted of violating section 269, subdivision (a)(5)

(aggravated sexual assault of child under age 14 and seven or more years younger than


                                              14
defendant) by committing “sexual penetration” of Doe 1. (Capitalization omitted.)

Section 269, subdivision (a)(5) is violated by committing “[s]exual penetration, in

violation of subdivision (a) of section 289.” (Italics added.) And “[s]exual penetration,

in violation of subdivision (a) of Section 289” is the “offense” listed in section 667.61,

subdivision (c)(5).

       Likewise, defendant was convicted in count 4 of the aggravated sexual assault of

Doe 3, by forcible oral copulation (§ 269, subd. (a)(4)) and in count 5 of the aggravated

sexual assault of Doe 3 by sexual penetration (§ 269, subd. (a)(5)). Section 269,

subdivision (a)(4) is violated by a person who commits “[o]ral copulation, in violation of

paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a” against a

child under the age of 14 and seven or more years younger than the person. “Oral

copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of

Section 288a” is the offense listed in section 667.61, subdivision (c)(7). And, as

indicated, section 269, subdivision (a)(5) is violated by a person who commits “[s]exual

penetration, in violation of subdivision (a) of Section 289” against a child under the age

of 14 and seven or more years younger than the person, and “[s]exual penetration, in

violation of subdivision (a) of Section 289” is the offense listed in section 667.61,

subdivision (c)(5).

       Defendant’s interpretation of section 667.61 is absurd, because it means that a

person who commits an offense listed in section 667.61 subdivision (c) against a child

under age 14 and seven or more years younger than the person, is not subject to


                                             15
sentencing under the One Strike law, but a person who commits the same offense against

a person 14 years of age or older, or less than seven years younger than the person, is to

be sentenced under the One Strike law. Nothing in the language of section 667.61

supports this absurd interpretation, and defendant points to nothing in the legislative

history of section 667.61 indicating it is what the Legislature intended. (In re Greg F.

(2012) 55 Cal.4th 393, 406 [courts are to avoid interpreting statutes in a way that would

produce absurd consequences the Legislature could not have intended].)

D. The Parole Revocation Fine Was Properly Imposed

       Lastly, defendant claims the $200 stayed parole revocation fine must be stricken

because he “was given a term of life without the possibility of parole [in count 1] and,

therefore, his sentence does not include a period of parole.” Defendant relies on People

v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182, 1185-1186, where the court concluded

a parole revocation fine must not be imposed on defendants whose aggregate sentences

include life without the possibility of parole.

       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 . . . .” (Italics added.) This additional parole revocation restitution fine

shall be suspended unless the person’s parole is revoked. The court in Oganesyan

reasoned that “the language of section 1202.45 indicates that the overall sentence is the




                                              16
indicator of whether the additional [parole revocation] restitution fine is to be imposed.”

(People v. Oganesyan, supra, 70 Cal.App.4th at p. 1185.)

       The California Supreme Court took a different view of section 1202.45 in People

v. Brasure (2008) 42 Cal.4th 1037 (Brasure), and effectively interpreted the statute as

applying to defendants sentenced to any term that includes the possibility of parole. The

court distinguished Oganesyan “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, 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, defendant’s sentence includes determinate terms—

four- and five-year terms on counts 2 and 3—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, defendant “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.” (Brasure, supra, at p. 1075.)

                                    IV. DISPOSITION

       The judgment is affirmed.


                                             17
     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                               KING
                                                      J.


We concur:

HOLLENHORST
          Acting P. J.

MILLER
                    J.




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