Opinion
E065343
07-20-2017
THE PEOPLE, Plaintiff and Respondent, v. HARBY AUSBON BURDEN, Defendant and Appellant.
David M. McKinney, 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 Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB058574) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. David M. McKinney, 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 Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Harby Ausbon Burden appeals from his conviction for first degree murder by torture, with a special circumstance of torture; torture; and assault on a child, causing death. His primary contention is that the evidence is insufficient to support the torture verdicts and findings because the evidence showed nothing more than "explosive outbursts of violence" in disciplining his four-year-old son and did not show a "malicious intent to torture." We conclude that substantial evidence supports the torture and torture-murder verdicts, as well as the torture-murder special circumstance. We also reject defendant's contention that the parole revocation restitution fine imposed pursuant to Penal Code section 1202.45, subdivision (a), must be stricken. Accordingly, we will affirm the judgment.
PROCEDURAL HISTORY
Defendant was charged with the first degree murder by torture of his four-year-old son, A. The special circumstance of murder by torture was also alleged. (Pen. Code, §§ 187, subd. (a); 189; 190.2, subd. (a)(18).) He was also charged with torture (§ 206) and assault on a child under the age of eight years, causing death (§ 273ab).
All further statutory citations refer to the Penal Code unless another code is specified.
A jury found defendant guilty on all counts and found the special circumstance true. The prosecution sought the death penalty. However, juries deadlocked in two penalty phase trials. The court sentenced defendant to life in prison without the possibility of parole on the murder count and imposed and stayed execution of sentence on the torture and assault counts.
Defendant filed a timely notice of appeal.
FACTS
Defendant impregnated I.W. when she was 15 years old. Her mother reported him to law enforcement and, after A. was born, defendant served a prison term for statutory rape. After his release, when A. was about two years old, defendant and I.W. moved in together. They later had a second child, who was about a year old when A. died. At the time of A.'s death, I.W. worked full time and defendant cared for the children.
Defendant was abusive toward A., according to I.W. He would yell at him about "little stuff," such as not talking, not eating, and wetting or soiling himself. Although A. had been toilet trained, he reverted to having accidents after his sister was born. Defendant disciplined A. by "whooping" him with a belt, slapping him, making him stand in a corner, and forcing him to do physical exercise, such as running laps inside the apartment, doing pushups, jumping jacks and "bear claws." He would also hit A. with an aluminum baseball bat. When A. would have a toileting accident, defendant would beat him with his hand, a belt or the bat.
A type of exercise done by football players.
Defendant initially told an investigator that he used a miniature souvenir bat, about the size of a night stick, but later admitted that he had hit A. with a full-size bat.
About 10:30 p.m., the night before A. died, two San Bernardino police officers came to defendant and I.W.'s apartment in response to neighbor's 911 call reporting sounds of hitting and fighting coming from their apartment. The officers did not hear any yelling or fighting when they arrived, and initially no one responded to their knock. After they knocked again, defendant answered the door. He said there had been an argument but that everything was fine now. Defendant, I.W. and the baby were in the living room. I.W. told the officers that there was no one else in the apartment. An officer checked the rest of the apartment, but did not find anyone else. I.W. admitted that they had lied to the police, saying that only they and the baby lived in the apartment.
On the morning of October 11, 2006, defendant called I.W. at work and said he thought he had "popped" A.'s arm out of the socket when he grabbed his arm, spanked him and caused him to fly into some milk crates in the apartment. I.W. told defendant to take A. to the hospital. Defendant did not do so.
Later that day, defendant saw A. standing at the open refrigerator door. A. was forbidden to take food from the refrigerator. Defendant came up behind the unsuspecting child and hit him with the baseball bat. A. ran, but defendant pursued him, caught up with him, pinned him down, and beat him with the bat. After he hit A. with the bat, defendant made A. run back and forth in the hallway.
Defendant initially said the refrigerator incident happened on the day of A.'s death, but later said it happened the night before, then returned to saying it happened the day A. died.
Afterward, defendant put the baby down for a nap. He took a nap as well. Around 1:00 p.m., after he woke up from his nap, defendant discovered that A. was lying on the floor in the hallway. A. was unresponsive when defendant nudged him. He called I.W., who told him to call the paramedics. Defendant called his cousin to ask how to perform CPR. His cousin told him to call 911, then gave him instructions for performing CPR. While she was on the phone with him, she heard him call 911 on another phone and speak to the 911 operator.
Police and paramedics arrived around 1:30 p.m. A. was taken to the hospital, where he was pronounced dead after efforts to revive him failed. Dr. Bearie, the emergency room doctor, testified that A. had been dead for some time prior to the pronouncement of death at about 2:00 p.m. His rectal temperature was 85.8 degrees, 13 degrees below normal.
Dr. Bearie observed "egregious" injuries on A.'s body. He had multiple bruises in various stages of healing, abrasions, and visibly deformed long bones, including the femur and humerus. The broken arm was crooked, and when the arm was moved, the pieces of bone moved against each other. His ankle was twisted and contorted, and his pelvis was unstable, as if the pelvis was fractured or the femoral head was dislocated. He described A. as "crooked" and "bent" from his injuries. He described A.'s condition as a "nightmare."
Dr. Trenkle, a forensic pathologist, performed the autopsy on A. A. had pale scars near his hairline and left eyebrow. Both represented old, healed injuries. There was also scarring under the left eye, on the left cheek and to the left side of the nose. There was also a fresh laceration from the corner of the left eye, extending toward the upper left ear. There was an area of hemorrhage in the right eye, probably due to blunt force, i.e., the head being struck by something or striking something. There was a healing laceration inside the lower lip and a torn frenulum of the lower lip, again resulting from blunt force, causing the lip to be crushed between the bone and the external force. The tearing of the frenulum could have been caused during suffocation, if A. was struggling. The laceration was perhaps two to three weeks old. There was a scar behind A.'s left ear, which was probably months old, and also some burn-like injuries.
There was a deep hemorrhage to the galeal, or deepest, layer of the scalp, due to blunt force. There was an area of hemorrhage at the forehead and a more recent one on the back of the head, which included some tearing of the galea. The injury to the back of the head would not have been caused by a bump on the head sustained during ordinary childhood activities or by a short fall, such as a fall in the bathtub. It would have been caused by a significant blow to the head or a significant fall. It was consistent with having been struck by a baseball bat.
There was a "rather" deep and large area of hemorrhage on the arms and on top of the right shoulder. The injury was healing, and could have been many days or weeks old. There were other bruises and contusions on the torso, as well as a group of pale, healed scars. There were also a number of bruises and reddened and swollen areas on A.'s arms and hands, as well as some gouges or possible burn wounds. On the right hip, there were healed and partially healed wounds that could have been gouges or burns.
Internally, A. suffered a hemorrhage under the sternum into the thymus gland and on the anterior surface of the pericardium. He had a hemorrhage on both sides of the diaphragm and in the mesentera. There was a fresh laceration or tear of the lower portion of the left kidney, as well as an older injury, probably weeks old, involving hemorrhage around the left kidney. The small intestine was infarcted at the cecum, meaning that it had lost its blood supply and was dying. This was probably due to blood clots in the blood vessels that go through the mesentera. There was extensive hemorrhaging of soft tissue in the abdominal cavity behind the intestine, extending down into the pelvis. There was 100 cc's of free blood in the abdominal cavity, probably from the kidney laceration.
The eighth, ninth and 10th ribs were cracked on the left side in the back, with an underlying injury with disruption of the lung tissue and bleeding inside the lung, at the sites where the ribs were fractured. The rib fractures were in various stages of healing. None was fresh, and they might have occurred at different times.
There was extensive hemorrhaging around an acute, or fresh, displaced fracture of the right humerus. The ends of the bone overlapped. The fracture was caused by an impact. There were also fractured bones in both hands. In the left hand, the fractures were recent. The fractures in the right hand were older, showing some healing. There was a healing fracture of the left radius, in the elbow. There was healing fracture superimposed over an acute fracture of the right ulna, and a fresh fracture of both the radius and ulna at the right wrist. The second, third and fifth metacarpal bones were fractured. The second, third and fifth metacarpals and the proximal phalange of the second finger of the right hand were also broken.
Fractures in both bones of the lower leg showed early evidence of healing. The second and fifth metatarsals of the right foot had healing fractures; the third metatarsal of the left foot had an acute fracture. These were impact fractures. They could have been caused by a baseball bat.
All of the fractured bones would have been very painful. A. was probably in excruciating pain. It might have been possible for him to run the morning of his death, if he were "sufficiently motivated," but running would have been very painful.
There were bruises and contusions on the front of the right thigh and a healing abrasion over the kneecap. The left thigh was swollen. There were bruises on both feet and a hemorrhage under the nail of one toe.
On A.'s back, there were areas of white, healed scars. On the right buttock, there was an ulcerated lesion, either a gouge or a burn, which occurred days or a week before A. died. There was extensive hemorrhaging in the deep soft tissue above the rib cage, more so on the left side. There was an extensive, deep hemorrhage of the buttock, particularly on the left side.
All of the muscles of A.'s back side, from the neck to the knees and extending around both sides, had extensive hemorrhage. On the left side, the muscles of the buttock were literally torn off the pelvic bones, leaving a cavity in which there was pooled fresh blood. The hamstring muscle of the left thigh was "pulpified," "torn, macerated, crushed." It would have required "an extreme type of force" to rip the gluteal muscle off the bones. It could have been caused by a single blow, but multiple blows would have been required to produce both it and the injuries to the thighs. A baseball bat, wielded with "tremendous" force could have caused these injuries. There was also evidence of previous, healing injuries to the gluteal muscle. There was bone present in areas of the muscle, an uncommon condition called myositis ossificans. It sometimes occurs when there is significant trauma to a muscle. It takes weeks to months to develop.
There was about 100 cc's of pooled blood in the cavity in the left buttock. A child A.'s size typically has about 1,200 cc's of blood all together. There were several hundred cc's of blood in the soft tissue of the abdomen and around the kidneys, extending down into the pelvis, as well as the 100 cc's blood pooled in the abdomen. There was evidence of insufficient blood to uninjured organs. That amount of internal bleeding would be fatal.
The cause of death was multiple force injuries. The pathologist thought that the abdominal injury, the buttock injury and the hemorrhage in the back thigh probably occurred closer to the death than the other injuries. The mechanism of death was internal hemorrhage from abdominal injuries and other soft tissue injuries.
The pathologist testified that it probably would have taken A. hours to die. He would have been in excruciating pain from his fractured arm and the muscle injuries, so he initially would have been "crying as he's bleeding." As his blood pressure dropped, he would have become weaker and weaker, probably whimpering rather than crying. He would have become unconscious and then died.
LEGAL ANALYSIS
1.
SUBSTANTIAL EVIDENCE SUPPORTS THE VERDICTS ON THE TORTURE
AND TORTURE-MURDER COUNTS
Defendant contends that his conviction for the substantive crime of torture must be reversed and that his conviction for first degree torture-murder must be reduced to second degree murder because the evidence was insufficient to establish that he acted with the intent required to support a finding of torture. He relies primarily on People v. Steger (1976) 16 Cal.3d 539 (Steger) to argue that because the abuse he inflicted on A. involved "misguided" attempts to discipline the child and resulted solely from "explosive outbursts" of anger, rather than from an intent to inflict pain on A. for a sadistic purpose, he is not guilty of torture and is guilty only of second degree murder on an implied malice theory.
"'Murder by torture requires a killing committed with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain for the purpose of revenge, extortion, persuasion, or for any other sadistic purpose. It need not be proven that the victim actually suffered pain. However, there must be a causal relationship between the torturous act and death. [Citation.] The jury may infer the intent to inflict extreme pain from the circumstances of the crime, the nature of the killing, and the condition of the body. We have, however, cautioned against giving undue weight to the severity of the wounds. Horrible wounds may be as consistent with a killing in the heat of passion or an explosion of violence, as with the intent to inflict cruel suffering. [Citations.]'" (People v. Gonzales (2012) 54 Cal.4th 1234, 1273 (Gonzales).) The crime of torture also requires the specific intent to cause cruel or extreme pain or suffering for the purpose of revenge, extortion, persuasion, or any sadistic purpose. (§ 206.) A sadistic purpose is the infliction of pain for the purpose of experiencing pleasure or satisfaction. (People v. Raley (1992) 2 Cal.4th 870, 901; People v. Pensinger (1991) 52 Cal.3d 1210, 1240.)
In Steger, supra, 16 Cal.3d 539, the California Supreme Court addressed the issue of the sufficiency of evidence of the intent to torture in a case with factual similarities to this case. In that case, the defendant's three-year-old stepdaughter died from head trauma admittedly inflicted by the defendant. The child's body was also "covered from head to toe with cuts, bruises and other injuries, most of which could only have been caused by severe blows. Among the injuries were hemorrhaging of the liver, adrenal gland, intestines, and diaphragm; a laceration of the chin; and fractures of the left cheek bone and right forearm. Medical evidence revealed that most of the injuries were inflicted at different times in the last month of [the child's] life. Defendant failed to seek medical help for the injuries." (Id. at p. 543.)
The defendant testified that she was "continually frustrated by her inability to control [the child's] behavior. The child would wet her pants, stick her tongue out, and generally disobey. To effect discipline, defendant beat [the child] on the buttocks with a belt and a shoe. The beatings were inflicted daily for the final week of the youngster's abbreviated life. Defendant admitted striking [the child] on the back and twice punching her in the arm, causing her to fall down and hit her head on the floor. [¶] Defendant also told the police in a written statement that on the day before the death, she hit [the child] on the shoulder, knocking her down; she pushed her, banging her head against a wall; and she struck her on the side of the head." (Steger, supra, 16 Cal.3d at p. 543.)
The court held that the evidence did not support a verdict of first degree torture-murder because there was "not one shred of evidence to support a finding" that the defendant acted with the coldblooded intent to inflict extreme and prolonged pain. (Steger, supra, 16 Cal.3d at p. 548.) Rather, the court held, the evidence painted the defendant as a "tormented woman, continually frustrated by her inability to control her stepchild's behavior. The beatings were a misguided, irrational and totally unjustifiable attempt at discipline; but they were not in a criminal sense willful, deliberate, or premeditated." (Ibid.)
Steger does not hold that a person who beats a child to death can never be found guilty of torture or of torture-murder, even if the beating occurs in the course of supposed discipline. On the contrary, it explicitly holds that in "appropriate circumstances," a child batterer can be found to be a torturer. (Steger, supra, 16 Cal.3d at p. 549.) Defendant does not contend otherwise. However, he argues that his case is factually indistinguishable from Steger, in that the evidence showed that all of the assaults on A. arose solely from outbursts of anger and frustration related to defendant's attempts to discipline the child. We disagree, for several reasons.
Defendant also relies on People v. Walkey (1986) 177 Cal.App.3d 268, for the same premise. Like Steger, supra, 16 Cal.3d 539, Walkey does not hold that misguided child discipline can never amount to torture, and its holding is dependent upon its own facts.
We begin by noting that defendant's argument is based on the premise that because in Steger, supra, 16 Cal.3d 539, the Supreme Court found that the evidence supported only one conclusion and because the evidence in this case is similar to that in Steger, the evidence in this case is also susceptible of only one conclusion. This is incorrect. First, because the court in Steger did not discuss the evidence in any detail, it is difficult to discern exactly why the evidence was insufficient, in the court's opinion, to support a finding that the defendant acted with the intent to torture her stepdaughter. Accordingly, Steger provides little guidance as to factual sufficiency or insufficiency. Moreover, it is not very useful in general to attempt to parse the specific facts of cases in which conduct was found sufficient to support a finding of guilt of a particular crime and those of cases in which conduct was found insufficient to support such a finding, as defendant does here. "When we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts." (People v. Thomas (1992) 2 Cal.4th 489, 516.)
Second, we reject defendant's suggestion that because it was uncontested that he acted in an explosion of rage, rather than with premeditation and deliberation, the jury was required to find him not guilty of torture and torture-murder. The prosecution's case was based on the premise that defendant enjoyed causing A. to suffer. Accordingly, defendant's mental state was not uncontested. Although we can determine, as a matter of law, whether uncontested evidence supports a verdict (People v. Villalobos (2006) 145 Cal.App.4th 310, 316, fn. 3), where evidence is contested, our sole function is to determine whether there is substantial evidence, contradicted or uncontradicted, that supports the jury's conclusions (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 872-873).
We also reject defendant's suggestion that because his physical abuse of A. began as an effort to discipline the child, that necessarily excludes the conclusion that his most recent acts of violence constitute torture. On the contrary, physical abuse can escalate from appropriate or inappropriate efforts at discipline into torture. (Gonzales, supra, 54 Cal.4th at p. 1274.) Moreover, it is not true that there is no evidence that defendant acted with any intent other than the intent to discipline A. Defendant did not testify at trial. In his interview with Detective Vasilas, defendant told Vasilas that he "tapped" A. with a baseball bat or hit him with a belt or his hands when A. would urinate or defecate on himself. He claimed that he never tried to harm A. but "whooped" him only to let A. know that he was doing something he should not. He claimed that he merely "tapped" A. with bat. He also claimed to be unaware that he ever injured A. However, the nature of A.'s injuries is in itself sufficient to belie those assertions, as is defendant's initial claim that he used a miniature souvenir bat rather than a full-size baseball bat to hit A. Furthermore, the testimony of the pathologist and the emergency room doctor, who described the enormous number of devastating injuries the child suffered, also contradicts defendant's claim that he merely "tapped" A. with the bat and that he did not know that he had injured A. The trier of fact is free to disbelieve a defendant's testimony or statements and "to infer that the truth is otherwise when such an inference is supported by circumstantial evidence regarding the actions of the accused." (People v. Beeman (1984) 35 Cal.3d 547, 559.) Accordingly, we are not bound by defendant's description of his actions or his claim that he never acted with the intent to inflict severe pain on A. for his own satisfaction. Rather, our task is to determine whether there is substantial evidence that supports the conclusion that defendant tortured A.
"'In determining evidentiary sufficiency, the court reviews the entire record, in the light most favorable to the judgment, for the presence of substantial evidence. Substantial evidence is evidence sufficiently reasonable, credible, and of such solid value "that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] The same standard of review applies in considering circumstantial evidence and the support for special circumstance findings. [Citations.]'" (Gonzales, supra, 54 Cal.4th at p. 1273.)
Substantial evidence does support the conclusion that defendant intentionally inflicted agonizing injuries on A. for his own pleasure or satisfaction. A jury may consider all of the circumstances surrounding a death to determine whether the defendant acted with the intent to torture, including the nature of the killing and the condition of the body. (Gonzales, supra, 54 Cal.4th at p. 1273.) Here, viewed in the light most favorable to the verdict, the evidence showed that on the day A. died, defendant beat him savagely, resulting in multiple severe, and no doubt agonizing, injuries, some of which caused the fatal internal bleeding. In itself, this evidence is equivocal as to defendant's intent, in that a severe beating can, as courts have frequently noted, be the result of rage rather than deliberation. (Steger, supra, 16 Cal.3d at p. 546; Gonzales, at p. 1273.) However, other evidence supports the inference that defendant acted deliberately and with premeditation, rather than in a rage. Defendant told Detective Vasilas that when he saw A. at the refrigerator, he walked up behind him and hit him with the bat. In effect, he ambushed a four-year-old. He did not say he lost his temper. In fact, he denied being generally angry and taking it out on A. He also described how he "always had to chase [A.]" to "tap" him with the bat. Jurors could reasonably infer from this evidence that defendant enjoyed catching A. unaware to beat him and would then pursue the no doubt terrified child, pin him down, and beat him. There is no evidence, either from defendant's own words or from any other source, that defendant acted in a rage when he did so.
Substantial evidence also supports the inference that defendant's intent was to make A. suffer. After beating A. with such ferocity that he broke several bones, lacerated a kidney, caused extensive bleeding in the muscles from the neck to the knee, pulpified the hamstring, and tore the gluteal muscles away from the pelvic bones, he left the child, who was probably crying in pain, lying on the floor, and went to take a nap. He could not possibly have been unaware that he had severely injured the child, but instead of seeking medical attention for A., defendant slept for several hours before checking on A.'s condition. Jurors could rationally infer from defendant's callousness that he derived satisfaction from the pain he inflicted on A. and that he inflicted it for that purpose.
The evidence also showed that defendant made A. run around the apartment after having been beaten so severely that he had broken bones in both feet. Although defendant claimed that he did not know about any of A.'s broken bones and other injuries, jurors could rationally disbelieve defendant's claims of ignorance and conclude that he deliberately forced A. to run despite what must have been agonizing injuries, with the intent of causing him severe and prolonged pain.
Taken all together, this evidence reasonably supports the conclusion that defendant inflicted injuries on A. with the deliberate and premeditated intent of causing extreme and prolonged pain for a sadistic purpose. Accordingly, we will affirm the judgment on count 1, murder by torture, and count 2, torture.
Because we find that the murder verdict is supported by substantial evidence, we reject defendant's contention that the trial court erred in instructing the jury on a theory of first degree murder that was not supported by substantial evidence without further discussion. --------
2.
SUBSTANTIAL EVIDENCE SUPPORTS THE
SPECIAL CIRCUMSTANCE FINDING
Defendant also contends that the evidence is insufficient to support the torture-murder special circumstance.
Section 190.2, subdivision (a), provides for a term of life in prison without the possibility of parole for an intentional murder which "involve[s] the infliction of torture." (§ 190.2, subd. (a)(18).) A contention that the evidence is insufficient to support a finding on a special circumstance is reviewed using the same standard as a claim of insufficiency of the evidence to support a criminal conviction. (Gonzales, supra, 54 Cal.4th at p. 1273.) Accordingly, we review the record in the light most favorable to the judgment to determine whether it contains reasonable and credible evidence of solid value, such that a reasonable trier of fact could find the special circumstance true beyond a reasonable doubt. (Ibid.)
Defendant again contends that there is no evidence that he intended to kill A. and that the only reasonable inference from the evidence is that his sole intent was to discipline his son. We disagree. Although A. had multiple older, healing injuries that indicate that defendant had savagely beaten him before, the final beating was extreme, in that it involved life-threatening injuries. This supports the conclusion that on the day of A.'s death, defendant intended not only to inflict excruciating pain, but also to kill A. This conclusion is also supported by the evidence that defendant viciously beat the child, then left him lying on the floor, probably crying from excruciating pain, and went to take a nap, rather than seeking medical help. It is irrelevant that the evidence might also support the conclusion that defendant did not intend to kill A. If circumstantial evidence is susceptible of more than one interpretation, we must uphold the verdict if the circumstances reasonably justify the jury's factual findings. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) If the circumstances do reasonably justify the jury's findings, the fact that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.) Here, the circumstances do justify the conclusion that defendant acted with the intent to kill A.
3.
THE TRIAL COURT APPROPRIATELY IMPOSED AND STAYED
A PAROLE REVOCATION FINE
Finally, defendant contends that the $5,000 parole revocation restitution fine imposed by the trial court is unauthorized by law and must be stricken. The Attorney General concurs. However, we disagree.
Section 1202.45 requires the imposition of a 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." (§ 1202.45, subd. (a).) The fine must be stayed until such time as the defendant is granted parole and parole is thereafter revoked. (§ 1202.45, subd. (c).) Imposition of such a fine is improper where the defendant is sentenced solely to life in prison without the possibility of parole. (People v. Battle (2011) 198 Cal.App.4th 50, 63.) However, where the defendant is sentenced to a term that does not include parole and is also sentenced to a determinate term that does include parole, imposition and stay of the fine is required. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.) Here, defendant was sentenced to a term of life in prison, with the possibility of parole, on count 2 (§§ 206, 206.1) and to 25 years to life, with the possibility of parole (§ 273ab), on count 3. The sentences on counts 2 and 3 were stayed pursuant to section 654. Nevertheless, the sentence imposed does include the possibility of a term of parole. Accordingly, even though it is highly unlikely that defendant will ever be released on parole, the trial court properly imposed and stayed the parole revocation fine. (People v. Brasure, at p. 1075.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. FIELDS
J.