1

Filed 4/29/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ALPHONZO McINNIS,

Defendant and Appellant.

 A159194

 (Alameda County

 Super. Ct. No. 18CR008268)

A jury convicted defendant Alphonzo McInnis of aggravated kidnapping 

to commit robbery or a specified sex crime in violation of Penal Code section 

209, subdivision (b) (§ 209(b)) and three counts of sex offenses against a 

minor. As to the sex offenses, the jury found true the aggravated kidnapping 

circumstance of the One Strike Law (Pen. Code, § 667.61, subd. (d)(2) 

(§ 667.61(d)(2)). 

The trial court sentenced defendant to three consecutive terms of life in 

prison without the possibility of parole. 

Defendant contends (1) the crime of aggravated kidnapping under 

Penal Code section 209(b) and the One Strike Law kidnapping provision of

Penal Code section 667.61 are void for vagueness, (2) the trial court erred in 

its reasoning for imposing consecutive life terms, (3) the parole revocation 

fine should be stricken from the sentence, and (4) the abstract of judgment 

should be corrected. 
2

We reject defendant’s first contention, but his remaining contentions 

have merit. Therefore, we will strike the parole revocation fine and remand 

for the trial court to exercise its discretion on whether to impose concurrent 

or consecutive life terms using appropriate considerations. The judgment is 

otherwise affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

The Alameda County District Attorney filed an amended information 

charging defendant with forcible sexual penetration of Jane Doe 1, a minor 

age 14 or older (Pen. Code,1 § 289, subd. (a)(1)(C); count 1); forcible rape of 

minor Doe 1 (§§ 261, subd. (a)(2), 264, subd. (c)(2); counts 2 and 4); forcible 

oral copulation of minor Doe 1 (former § 288a, subd. (c)(2)(C); count 3); 

kidnapping of Doe 1 to commit robbery and/or a specified sex crime (§ 209(b); 

count 5); kidnapping of Jane Doe 2 to commit robbery and/or a specified sex 

crime (ibid.; count 6); and attempted second degree robbery of Doe 2 (§§ 211, 

664; count 7). It was alleged the offenses against Doe 1 (counts 1 through 5) 

occurred April 19, 2018, and the offenses against Doe 2 (counts 6 and 7) 

occurred on April 28, 2018. 

As to counts 1 through 4, the district attorney alleged that defendant

kidnapped the victim within the meaning of sections 207 and 209 (§ 667.61, 

subd. (e)(1)), and the movement of the victim substantially increased the risk 

of harm to the victim (§ 667.61(d)(2)); that defendant personally used a 

dangerous or deadly weapon (§ 667.61, subd. (e)(3)); that the victim was a 

minor, age 14 or older (§ 667.61, subds. (l), (m)); and that defendant used a 

firearm or deadly weapon, a BB gun (§ 12022.3, subd. (a)). 

Following a jury trial, defendant was found guilty of counts 2 through 

5, and not guilty of count 7. The jury deadlocked on counts 1 and 6, and the 

1 Further undesignated statutory references are to the Penal Code. 
3

court declared a mistrial as to those counts. As to counts 2 through 4, the 

jury found true the kidnapping allegations (§ 667.61(d)(2) and subd. (e)(1))

and that the victim was a minor 14 years of age or older. The jury found not 

true the allegation that defendant used a deadly or dangerous weapon in the 

commission of the offenses. Counts 1 and 6 were later dismissed at the 

prosecution’s request.2 

The trial court sentenced appellant to three consecutive terms of life 

without the possibility of parole for counts 2, 3, and 4. For count 5, the court 

imposed a term of life with the possibility of parole and stayed the 

punishment under section 654. 

Offenses Involving Jane Doe 1

On April 19, 2018, Doe 1 was 15 years old and a freshman in high 

school. Doe 1 slept in that day and was late for school. She started walking 

to school around 10:00 or 11:00 a.m. 

While walking on a residential street, Doe 1 heard footsteps and was 

grabbed from behind. Her assailant covered her eyes and wrapped his arm 

around her torso. She heard a male voice say something like, “Don’t yell. 

Don’t turn around and look at me.” The man said he had a gun and he would 

shoot her if she yelled or turned around. Doe 1 felt a pressure on her hip that 

she thought might be a gun. The man pulled Doe 1 and directed her 

physically to walk with him. He moved his hand from her eyes and had his 

arm wrapped around her neck. Doe 1 never saw his face. 

2 In a bifurcated proceeding, the court found defendant had four prior 

felony convictions, two of those convictions resulted in prison terms, and one 

was a “strike” under sections 667 and 1170.12. 
4

At first, the man had Doe 1 continue walking in the direction she had 

been heading. After about a block, he turned around, and he and Doe 1

walked back the way they had come from. 

The man pulled Doe 1 into a yard past a fence. They walked down a 

driveway and to a side yard. The man told Doe 1 to open her backpack and 

take her wallet out. She saw what appeared to be the “tip of a gun” with the 

rest of the gun in the man’s sleeve. Doe 1 told him she had $15 and showed 

him her wallet. He said it was not enough. He told her to take out her I.D.,

and she showed him her school I.D. Doe 1 asked if she could go, and the man 

said something like “I’m thinking about it” or “maybe.” 

The man started feeling Doe 1’s body under her clothes. He commented 

on her body and asked whether she had ever had sex. She said no. He said 

something along the lines of “we can do this the easy way or the hard way.” 

He pressed something Doe 1 thought was a gun against her neck. The man 

pulled her pants and underwear down. Standing behind her, he put his 

fingers “in between the curtains” of her vagina. He tried to put his penis in 

her vagina. He pressed hard and it hurt. Doe 1 tried to resist by keeping her 

legs closed. He asked why she was resisting and she said, “Because I don’t 

want to do this.” 

The man forced Doe 1 on her knees. He told her to spit on his penis 

and put it in her mouth. His penis went “all the way into [her] mouth.” He 

moved his body back and forth for a few seconds. Then he “tried to insert his 

penis into [her] vagina again.” The man used more force than he used the 

first time. He was able to fully insert his penis into her vagina and it hurt a 

lot. Eventually, the man let Doe 1 leave and said, “Just keep walking and 

don’t look back.” 
5

The same day, Doe 1 met with a police officer and showed him the 

house where she had been raped. She also had a sexual assault forensic 

examination. The examiner collected DNA swab samples from Doe 1’s

vaginal cavity and observed multiple injuries to her vagina. The DNA profile 

of a sperm cell fraction recovered from the vaginal swabs matched the 

defendant’s DNA.

3 

DISCUSSION

A. Vagueness Challenge

Defendant contends the One Strike Law aggravated kidnapping finding 

in counts 2 through 4 and the aggravated kidnapping conviction (count 5) 

must be reversed on the ground the crime of aggravated kidnapping is void 

for vagueness.

“The constitutional interest implicated in questions of statutory 

vagueness is that no person be deprived of ‘life, liberty, or property without 

due process of law,’ as assured by both the federal Constitution (U.S. Const., 

Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7). 

Under both constitutions, due process of law in this context requires two 

elements: a criminal statute must ‘ “be definite enough to provide (1) a 

standard of conduct for those whose activities are proscribed and (2) a 

standard for police enforcement and for ascertainment of guilt.” ’ ” (Williams 

v. Garcetti (1993) 5 Cal.4th 561, 567; see Kolender v. Lawson (1983) 461 U.S. 

352, 357 [“the void-for-vagueness doctrine requires that a penal statute 

define the criminal offense with sufficient definiteness that ordinary people 

3 We do not describe the evidence related to counts 6 and 7 involving

Jane Doe 2 (described in the parties’ appellate briefs) because the jury found 

defendant not guilty of count 7 and count 6 was dismissed.
6

can understand what conduct is prohibited and in a manner that does not 

encourage arbitrary and discriminatory enforcement”].) 

Aggravated kidnapping under section 209(b) is defined as kidnapping 

or carrying away an individual to commit robbery, rape, oral copulation, or 

other specified sex crime where “the movement of the victim is beyond that 

merely incidental to the commission of, and increases the risk of harm to the 

victim over and above that necessarily present in, the intended underlying 

offense.” (§ 209, subd. (b)(2).) 

Similarly, the One Strike Law aggravated kidnapping circumstance of 

section 667.61(d)(2) applies when a defendant has committed rape, oral 

copulation, or other specified sex crime with the additional circumstance that 

the “defendant kidnapped the victim . . . and the movement of the victim 

substantially increased the risk of harm to the victim over and above that 

level of risk necessarily inherent in the underlying offense.” The movement 

required for the aggravated kidnapping circumstance must “not [be] merely 

incidental to the commission of the” underlying offense. (People v. Perkins

(2016) 5 Cal.App.5th 454, 466.) 

Defendant claims the section 209, subdivision (b)(2) phrase “merely 

incidental to the commission of, and increases the risk of harm to the victim 

over and above that necessarily present in, the intended underlying offense” 

is unconstitutionally vague under Johnson v. United States (2015) 576 U.S. 

591 (Johnson). He acknowledges this contention was rejected in People v. 

Ledesma (2017) 14 Cal.App.5th 830, 839 (Ledesma), but he argues Ledesma

was wrongly decided. 

1. Johnson

In Johnson, the United States Supreme Court held the residual clause 

of the Armed Career Criminal Act of 1984 (ACCA) was impermissibly vague. 
7

(Johnson, supra, 576 U.S. at p. 597.) The ACCA forbids certain individuals

from possessing firearms and punishes a person with three or more prior 

convictions for a “violent felony” more harshly. (Id. at p. 593.) The ACCA 

defines a violent felony to include any crime punishable by more than a year 

in prison that “ ‘is burglary, arson, or extortion, involves use of explosives, or 

otherwise involves conduct that presents a serious potential risk of physical 

injury to another.’ ” (Id. at pp. 593–594, quoting 18 U.S.C. § 924(e)(2)(B).) 

The italicized phrase is known as the residual clause. (Id. at p. 594.)

Previously, the Supreme Court had held the residual clause of the 

ACCA was to be interpreted using the categorical approach, which meant a 

sentencing court had to assess whether a prior conviction qualified as a 

violent felony “ ‘in terms of how the law defines the offense and not in terms 

of how an individual offender might have committed it on a particular 

occasion.’ ” (Johnson, supra, 576 U.S. at p. 596.) Thus, a court deciding 

whether a crime fell within the residual clause was required “to picture the 

kind of conduct that the crime involves in ‘the ordinary case,’ and to judge 

whether that abstraction presents a serious potential risk of physical injury.” 

(Ibid.)4 

4 The Johnson majority also observed that the inclusion of burglary and 

extortion among the listed offenses preceding the residual clause confounded 

the task because the elements of burglary and extortion do not “normally 

cause physical injury.” (Johnson, supra, 576 U.S. at p. 596.) This suggested

a court had to do more than evaluate “the chances that the physical acts that 

make up the crime will injure someone. The act of making an extortionate 

demand or breaking and entering into someone’s home does not, in and of 

itself, normally cause physical injury. Rather, risk of injury arises because 

the extortionist might engage in violence after making his demand or because 

the burglar might confront a resident in the home after breaking and 

entering.” (Ibid.) In other words, a court must not only imagine an idealized 

ordinary case of a crime, it must also imagine how events will unfold after the 

crime is committed. 
8

The majority in Johnson concluded that “the indeterminacy of the wideranging inquiry required by the residual clause” was void for vagueness. 

(Johnson, supra, 576 U.S. at p. 597.) It found “[t]wo features of the residual 

clause conspire to make it unconstitutionally vague.” (Ibid.) First, the 

residual clause “leaves grave uncertainty about how to estimate the risk 

posed by a crime. It ties the judicial assessment of risk to a judicially 

imagined ‘ordinary case’ of a crime, not to real-world facts or statutory 

elements. How does one go about deciding what kind of conduct the ‘ordinary 

case’ of a crime involves? . . . To take an example, does the ordinary instance 

of witness tampering involve offering a witness a bribe? Or threatening a 

witness with violence? Critically, picturing the criminal’s behavior is not 

enough; . . . assessing ‘potential risk’ seemingly requires the judge to imagine 

how the idealized ordinary case of the crime subsequently plays out.” (Ibid.) 

Second, the majority concluded, “the residual clause leaves uncertainty 

about how much risk it takes for a crime to qualify as a violent felony. It is 

one thing to apply an imprecise ‘serious potential risk’ standard to real-world 

facts; it is quite another to apply it to a judge-imagined abstraction. By 

asking whether the crime ‘otherwise involves conduct that presents a serious 

potential risk,’ moreover, the residual clause forces courts to interpret 

‘serious potential risk’ in light of the four enumerated crimes—burglary, 

arson, extortion, and crimes involving the use of explosives. These offenses 

are ‘far from clear in respect to the degree of risk each poses.’ [Citation.] 

Does the ordinary burglar invade an occupied home by night or an 

unoccupied home by day? Does the typical extortionist threaten his victim in 

person with the use of force, or does he threaten his victim by mail with the 

revelation of embarrassing personal information? By combining 

indeterminacy about how to measure the risk posed by a crime with 
9

indeterminacy about how much risk it takes for the crime to qualify as a 

violent felony, the residual clause produces more unpredictability and 

arbitrariness than the Due Process Clause tolerates.” (Johnson, supra, 576 

U.S. at p. 598.)

Reviewing its four prior decisions on interpreting the residual clause, 

the court observed its “repeated attempts and repeated failures to craft a 

principled and objective standard out of the residual clause confirm its 

hopeless indeterminacy.” (Johnson, supra, 576 U.S. at p. 598.)

The Johnson majority rejected the suggestion of the Government and 

the dissent that its holding could place in doubt “dozens of federal and state 

criminal laws [that] use terms like ‘substantial risk,’ ‘grave risk,’ and 

‘unreasonable risk.’ ” (Johnson, supra, 576 U.S. at p. 603.) “[A]lmost all of 

the cited laws require gauging the riskiness of conduct in which an individual 

defendant engages on a particular occasion. As a general matter, we do not 

doubt the constitutionality of laws that call for the application of a qualitative 

standard such as ‘substantial risk’ to real-world conduct; ‘the law is full of 

instances where a man’s fate depends on his estimating rightly . . . some 

matter of degree,’ [citation]. The residual clause, however, requires 

application of the ‘serious potential risk’ standard to an idealized ordinary 

case of the crime. Because ‘the elements necessary to determine the 

imaginary ideal are uncertain both in nature and degree of effect,’ this 

abstract inquiry offers significantly less predictability than one ‘[t]hat deals 

with the actual, not with an imaginary condition other than the facts.’ ” (Id. 

at pp. 603–604.) 

2. Ledesma

Defendant Ledesma argued that the offense of aggravated kidnapping 

under section 209(b) and the One Strike Law aggravated kidnapping 
10

circumstance of section 667.61(d)(2) are unconstitutionally vague under 

Johnson, supra, 576 U.S. 591. (Ledesma, supra, 14 Cal.App.5th at p. 835.)

Like defendant, Ledesma challenged the language related to the movement 

(also called “asportation”) requirement.

The Ledesma court rejected the argument because “[u]nlike the 

residual clause at issue in Johnson, California’s asportation requirement 

compels juries and courts to apply a legal standard to real-world facts. As 

Johnson itself recognizes, this difference is crucial.” (Ledesma, supra, 14 

Cal.App.5th at p. 838.) The court reasoned, “Unlike the categorical analysis 

courts were required to engage in under the ACCA, the asportation 

requirements in sections 209 and 667.61 require no hypothetical case of the 

underlying crime that determines the statutes’ applicability. Rather, the jury 

in this case (and in all aggravated kidnapping cases) assessed whether [the 

defendant’s] movement of [the victim] was merely incidental to the rape and 

whether that movement substantially increased the risk of harm over and 

above the risk of harm inherent in rape. This is precisely the type of 

determination that Johnson held was beyond the void-for-vagueness problem 

presented by the residual clause.” (Id. at pp. 838–839.) 

The court also observed, “[A]ppellate courts have routinely assessed the 

validity of aggravated kidnapping convictions in published decisions without 

suggestion that the section 209, subdivision (b)(2) asportation requirement is 

unworkable or too vague to be constitutional.” (Ledesma, supra, 14 

Cal.App.5th at p. 836.) 

The court concluded with a quote from our Supreme Court. “ ‘ “The law 

is replete with instances in which a person must, at his peril, govern his 

conduct by such nonmathematical standards as ‘reasonable,’ ‘prudent,’ 

‘necessary and proper,’ ‘substantial,’ and the like. Indeed, a wide spectrum of 
11

human activities is regulated by such terms: thus one man may be given a 

speeding ticket if he overestimates the ‘reasonable or prudent’ speed to drive 

his car in the circumstances (Veh. Code, § 22350), while another may be 

incarcerated in state prison on a conviction of wil[l]ful homicide if he 

misjudges the ‘reasonable’ amount of force he may use in repelling an assault 

[citation]. . . . ‘There is no formula for the determination of reasonableness.’ 

Yet standards of this kind are not impermissively vague, provided their 

meaning can be objectively ascertained by reference to common experiences 

of mankind.” ’ (People v. Morgan (2007) 42 Cal.4th 593, 606.)” (Ledesma, 

supra, 14 Cal.App.5th at pp. 839–840.) 

3. Analysis

We agree with Ledesma that Johnson does not require us to find the 

crime and special circumstance of aggravated kidnapping unconstitutionally 

vague. The Johnson majority “d[id] not doubt the constitutionality of laws 

that call for the application of a qualitative standard such as ‘substantial 

risk’ to real-world conduct” (Johnson, supra, 576 U.S. at pp. 603–604), and 

that is what the aggravated kidnapping statutes involve, the application of a 

qualitative standard to real-world conduct. 

Defendant offers five reasons he believes Ledesma was incorrectly 

decided. First, he asserts the court’s observation that “appellate courts have 

routinely assessed the validity of aggravated kidnapping convictions . . . 

without suggestion that the . . . asportation requirement is unworkable or too 

vague to be constitutional” (Ledesma, supra, 14 Cal.App.5th at p. 836) is 

irrelevant because cases are not authority for propositions not considered and 

because Johnson was not decided until 2015. We find the observation 

relevant, however, because it contrasts California appellate courts’ routine 

application of the aggravated kidnapping statutes with the Supreme Court’s 
12

“repeated attempts and repeated failures to craft a principled and objective 

standard out of the residual clause” of the ACCA. (Johnson, supra, 576 U.S. 

at p. 598.) The Johnson majority pointed out that in three of the court’s

previous four decisions on the residual clause, “we found it necessary to 

resort to a different ad hoc test to guide our inquiry.” (Ibid.) Further, lower 

federal courts found the residual clause “ ‘nearly impossible to apply 

consistently,’ ” and their decisions indicated “pervasive disagreement about 

the nature of the inquiry one is supposed to conduct and the kinds of factors 

one is supposed to consider.” (Id. at p. 601.) It is relevant that California 

appellate court decisions on aggravated kidnapping do not demonstrate a 

similar pervasive disagreement or difficulty regarding the nature of the 

inquiry. 

Second, defendant suggests the Ledesma court incorrectly rejected the

argument that Johnson announced a new test for unconstitutional

vagueness. Defendant cites Welch v. United States (2016) ___ U.S. ___, ___

[136 S.Ct. 1257, 1264], as support that Johnson announced a “new rule.” But 

the “new rule” of Johnson was its holding that the residual clause of the 

ACCA was void for vagueness. (Welch, supra, 136 S.Ct. at p. 1265 [“By 

striking down the residual clause as void for vagueness, Johnson changed the 

substantive reach of the Armed Career Criminal Act, altering ‘the range of 

conduct or the class of persons that the [Act] punishes’ ”].) Johnson did not 

purport to set forth a new test for determining whether a law is

unconstitutionally vague. 

Third, defendant argues the Ledesma court’s reasoning is flawed 

because the aggravated kidnapping statute requires a jury to “compare real 

world facts to a hypothetical rape or robbery,” and this is contrary to the rule 

in Johnson. We disagree with the premise of this argument. Johnson did not 
13

condemn the comparison of real-world facts to hypothetical offenses. It found 

fault with asking courts to imagine how an idealized ordinary version of a 

crime would play out as the test for determining whether the crime qualified 

as a violent felony under the residual clause. (Johnson, supra, 576 U.S. at p. 

597.) Aggravated kidnapping does not suffer from this fault. As our high 

court has explained, “[F]or aggravated kidnapping, the victim must be forced 

to move a substantial distance, the movement cannot be merely incidental to 

the target crime, and the movement must substantially increase the risk of 

harm to the victim. Application of these factors in any given case will 

necessarily depend on the particular facts and context of the case.” (People v. 

Dominguez (2006) 39 Cal.4th 1141, 1153, italics added and original italics 

deleted.) 

Fourth, quoting the Johnson court’s observation that the residual 

clause of the ACCA “has proved ‘nearly impossible to apply consistently’ ” 

(Johnson, supra, 576 U.S. at p. 601), defendant claims the asportation 

standard of aggravated kidnapping is similarly suspect because it is applied 

inconsistently. Defendant cites various robbery and rape cases; in some 

cases, the movement of the victim was sufficient to support aggravated 

kidnapping, in others it was not. These cases do not show that the 

asportation requirement of aggravated kidnapping is impossible to apply 

consistently; they show only that the application of the law to the facts yields, 

not surprisingly, different results in different cases.

5 As the Johnson

5 Defendant notes that the jury asked for clarification about the 

“substantial distance” definition in the jury instructions on aggravated 

kidnapping and simple kidnapping and requested additional argument on 

“substantial distance” and “beyond merely incidental.” But a jury request for 

clarification does not necessarily suggest that a law is unconstitutionally 

vague. The jury here also asked for a definition of “minor or moderate bodily 

harm.”
14

majority observed, “even clear laws produce close cases.” (576 U.S. at p. 601.) 

The problem with the residual clause was that cases demonstrated a

“pervasive disagreement about the nature of the inquiry one is supposed to 

conduct and the kinds of factors one is supposed to consider.” (Ibid.) The 

Ledesma court explained, “In contrast, California cases on the asportation 

element of aggravated kidnapping . . . show broad agreement on both the 

nature of the inquiry required and the relevant factors to evaluate when 

deciding whether the facts in a case are sufficient to satisfy the asportation 

element of the aggravated kidnapping statute and the One Strike Law.” 

(Ledesma, supra, 14 Cal.App.5th at p. 839.)

Fifth, defendant notes the United States Supreme Court has 

invalidated another federal statute on vagueness grounds in Sessions v. 

Dimaya (2018) ___ U.S. ___ [138 S.Ct. 1204]. Dimaya involved a 

“straightforward application” of Johnson to a statute that defines a “crime of 

violence” to include “ ‘any other offense that is a felony and that, by its 

nature, involves a substantial risk that physical force against the person or 

property of another may be used in the course of committing the offense.’ ” 

(138 S.Ct. at pp. 1211, 1213; 18 U.S.C. § 16(b).) The statute at issue in 

Dimaya, like the residual clause in Johnson, first, required “a court to 

identify a crime’s ‘ordinary case’ in order to measure the crime’s risk” and, 

second, required application of an uncertain standard of “violence” to this 

“ ‘judge-imagined abstraction.’ ” (138 S.Ct. at pp. 1215–1216.) As we have 

explained, the California aggravated kidnapping statutes do not suffer from 

these two infirmities. 

In short, defendant has not persuaded us to depart from Ledesma. 

Accordingly, we reject his contention that the aggravated kidnapping statutes 

are void for vagueness. 
15

B. Consecutive Terms

1. Background

Before pronouncing the sentence, the trial court stated, “The factors in 

circumstances in aggravation, number one, the crime involved great violence, 

bodily harm, threat of great bodily harm, and other acts disclosing a high 

degree of cruelty, viciousness and callousness.” 

“The victim was particularly vulnerable. [¶] The manner in which the 

crime was carried out indicated planning, sophistication and professionalism. 

[¶] The defendant engaged in violent conduct that indicates a danger to 

society. [¶] The defendant’s prior convictions as an adult are numerous and 

are of increasing seriousness. [¶] The defendant has served a prior prison 

term. [¶] The defendant was on parole when the crime was committed. 

[¶] The defendant’s prior performance on probation and parole were 

unsatisfactory. [¶] There are no factors in mitigation.” 

Immediately following this statement, the court imposed a term of life 

without the possibility of parole (LWOP) for count 2 pursuant to section 

667.61, subdivision (l). It then imposed the same punishment for count 3, 

stating, “And that’s consecutive. [¶] The reason I’m doing that and not 

making it concurrent is because I’m just concerned that there might be some 

problem with the appeal on Count Two for some reason.· I don’t think there 

will be, but just out of an abundance of caution.” The court then imposed 

another consecutive sentence for count 4 “for the same reason.” 

2. Analysis

A trial court is required to state its reasons for imposing consecutive 

terms. (Cal. Rules of Court, rule 4.406(b)(5).)6 Defendant contends the trial 

6 “Factors affecting the decision to impose consecutive rather than 

concurrent sentences include: 
16

court erred in relying on the possibility of appellate relief as to one or more of 

the counts as a reason to impose consecutive rather than concurrent terms. 

He seeks remand for resentencing for the trial court to appropriately exercise 

its discretion in determining whether to impose consecutive or concurrent

sentences for counts 3 and 4. The Attorney General does not dispute that the 

trial court’s stated reason for imposing consecutive terms was improper. 

Instead, he argues any error is harmless because the court found multiple 

aggravating factors, any one of which justified the imposition of consecutive 

terms. In response, defendant asserts the trial court was “quite specific” 

about its reason for imposing consecutive terms. 

We agree with defendant that the trial court was clear about why it 

chose consecutive rather than concurrent LWOP terms, and that its sole 

reason (the possibility of appellate relief on one or more counts) was not an

appropriate basis for imposing consecutive terms. As defendant points out, 

when a defendant has an aggregate sentence and a count is reversed on 

appeal, the trial court may reconsider its prior sentencing choices. (People v. 

Burbine (2003) 106 Cal.App.4th 1250, 1253.) Burbine expressly cautioned

“(a) Facts relating to crimes [¶] Facts relating to the crimes, including 

whether or not: [¶] (1) The crimes and their objectives were predominantly 

independent of each other; [¶] (2) The crimes involved separate acts of 

violence or threats of violence; or [¶] (3) The crimes were committed at 

different times or separate places, rather than being committed so closely in 

time and place as to indicate a single period of aberrant behavior.” 

“(b) Other facts and limitations [¶] Any circumstances in aggravation or 

mitigation may be considered in deciding whether to impose consecutive 

rather than concurrent sentences, except: [¶] (1) A fact used to impose the 

upper term; [¶] (2) A fact used to otherwise enhance the defendant’s sentence 

in prison or county jail under section 1170(h); and [¶] (3) A fact that is an 

element of the crime may not be used to impose consecutive sentences.” (Cal. 

Rules of Court, rule 4.425.) 
17

against sentencing courts attempting “to take into account the likelihood of 

certain counts surviving appeal—a sentencing algorithm which might 

unnecessarily lead to longer original sentences.” (Id. at p. 1258.) 

Accordingly, we will remand to the trial court to resentence defendant using 

appropriate sentencing factors. 

C. Parole Revocation Fine

Section 1202.45, subdivision (a), provides the court “shall . . . assess an 

additional parole revocation restitution fine” “[i]n every case where a person

is convicted of a crime and his or her sentence includes a period of parole.” 

(Italics added.) 

The trial court imposed and suspended a parole revocation restitution 

fine under section 1202.45. Defendant argues this was error because he 

received a sentence with no possibility of parole. The Attorney General 

responds that section 1202.45 applies here because defendant received a 

stayed term of life with the possibility of parole for count 5. 

In People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan), cited 

by defendant, the Court of Appeal rejected the Attorney General’s position. 

The issue was whether section 1202.45 applied where a defendant received 

an indeterminate term for one offense and LWOP for a different offense. (Id. 

at p. 1181.) The court concluded it did not, reasoning: “[T]he language of 

section 1202.45 indicates that the overall sentence is the indicator of whether 

the additional [parole revocation] restitution fine is to be imposed. Section 

1202.45 indicates that it is applicable to a ‘person . . . whose sentence 

includes a period of parole.’ At present, defendant’s ‘sentence’ does not allow 

for parole. When we apply a commonsense interpretation to the language of 

section 1202.45 [citations], we conclude that because the sentence does not 
18

presently allow for parole and there is no evidence it ever will, no additional 

restitution fine must be imposed.” (Id. at p. 1185.) 

Courts have followed Oganesyan in People v. Battle (2011) 198 

Cal.App.4th 50, 63 (Battle) [improper to impose parole revocation fine where 

the defendant received an indeterminate term of 25 years to life for one count 

and LWOP for another count] and People v. Jenkins (2006) 140 Cal.App.4th 

805, 819 (Jenkins) [error to impose section 1202.45 fine where the defendant 

was sentenced to 35 years to life and LWOP]. 

The Attorney General does not address Oganesyan, and the cases he 

cites do not involve defendants who received LWOP terms.7 We think the 

reasoning in Oganesyan, Battle, and Jenkins is sound, and we conclude 

section 1202.45 is inapplicable to defendant. (See Couzens et al., Sentencing 

Cal. Crimes (The Rutter Group September 2020 update) § 17:13; cf. People v. 

Brasure (2008) 42 Cal. 4th 1037, 1075 [distinguishing Oganesyan and holding 

a determinate term includes a parole revocation fine even when coupled with 

an LWOP term].) The $10,000 parole revocation fine will be stricken. 

D. Error in the Abstract of Judgment 

As to counts 2, 3, and 4, defendant was sentenced under section 667.61, 

subdivision (l), of the One Strike Law. The abstract of judgment, however, 

incorrectly shows that defendant was sentenced pursuant to section 667.7. 

The parties agree this is a clerical error that should be corrected. We agree 

7 The Attorney General cites cases (People v. Calabrese (2002) 101 

Cal.App.4th 79 and People v. Tye (2000) 83 Cal.App.4th 1398) that hold only 

that when execution of sentence is suspended (and the defendant is placed on 

probation), section 1202.45 still requires imposition of a restitution fine. But 

those cases did not involve LWOP sentences and the present case does not 

involve a suspended sentence. Defendant’s term for count 5 was stayed 

under section 654; it was not suspended for probation. 
19

with the parties, and we instruct the trial court to reflect the correct 

sentencing statute, section 667.61, when it issues a new abstract of judgment.

DISPOSITION

The matter is remanded for resentencing in accordance with this 

opinion. The parole revocation fine under section 1202.45 is stricken. The 

new abstract of judgment shall reflect (1) that the parole revocation fine has 

been stricken and (2) that defendant was sentenced pursuant to section 

667.61. In all other respects, the judgment is affirmed.
20

_________________________

Miller, J.

WE CONCUR:

_________________________

Kline, P.J.

_________________________

Stewart, J.

A159194, People v. McInnis
21

Court: Alameda County Superior Court

Trial Judge: Hon. Thomas Rogers

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

Appellant

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Rene A. 

Chacon, Julia Y. Je, Deputy Attorneys General, for Plaintiff and Respondent

A159194, People v. McInnis