P. v. Orozco
Filed 10/11/07 P. v. Orozco CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. PEDRO FERNANDEZ OROZCO, Defendant and Appellant. | C053756 (Super. Ct. No. 04F08248) |
A jury found defendant Pedro Fernandez Orozco guilty of first degree murder and false imprisonment and found true the special circumstance that the murder was intentional and involved infliction of torture. The trial court sentenced defendant to life in prison without the possibility of parole, imposed a $10,000 restitution fine, and stayed a $10,000 parole revocation fine.
On appeal, defendant contends: 1) the torture special circumstance must be stricken as it was necessarily included within his first degree murder conviction; 2) punishment for the special circumstance should be stayed pursuant to Penal Code section 654; and 3) the parole revocation fine was unauthorized in light of his life-without-possibility-of-parole sentence. We shall strike the parole revocation fine and otherwise affirm the judgment.
BACKGROUND
Defendant was married to Ana Fernandez while maintaining a romantic relationship with Margarita Cortez for 15 years. Cortez and defendant had a son, whom Fernandez helped raise.
Cortezs body was discovered in a field off of 44th Street in Sacramento. She was lying face down covered in dirt underneath some plywood or particle board which had been nailed together at a 90-degree angle to form a pup tent.
Cortez had suffered numerous severe injuries. The front of her body showed no face, as it had been pulled over the scalp and the eyes extruded. There was a deep horizontal cut from a sharp edged instrument on her neck, and her heart had been extruded approximately four feet from her body. Cortezs thorax and ribs were crushed, she sustained a hinge fracture to the base of the skull, and multiple fractures to the head, spine, pelvis, legs, and ankles. The cause of death was multiple blunt force injuries, and her injuries were consistent with Cortez having been run over by a car four times, having her throat slit, and then run over by a car two more times.
Defendant was brought in for questioning by the police after Cortezs body was discovered. After defendant was read his Miranda[1]warnings, he acknowledged understanding his rights and agreed to talk to the detectives. Initially denying responsibility for Cortezs death, defendant eventually admitted to running over her several times with his car, slitting her throat, and then running over her again. He believed he ran over Cortez a total of six times with his car. Defendant told the officers Cortez had made his married life miserable by calling his wife and taunting her about Cortezs involvement with him.
Defendant, who testified, recalled telling the police he did not remember what happened when Cortez died. He did not remember telling the police any details about her death.
According to defendant, his wife had thrown him out of the house because of Cortezs phone call. Defendant felt like the lowest man in the world and that it was Cortezs fault. He remembered going to the field while being angry at Cortez. He killed her because he was in a rage at Cortez for making his life impossible.
DISCUSSION
I
The Special Circumstance As A Lesser Included Offense
A defendant may not be convicted of both a greater and a lesser included offense. (People v. Pearson (1986) 42 Cal.3d 351, 355.) Defendant contends the torture-murder special circumstance is necessarily included in his first degree murder conviction and therefore the true finding of the special circumstance violates the state and federal prohibitions against double jeopardy. We disagree. In People v. Sloan (2007) 42 Cal.4th 110 and People v. Izaguirre (2007) 42 Cal.4th 126, our Supreme Court rejected arguments virtually identical to those defendant makes here. Under these decisions, it is now clear that enhancement allegations, including the special circumstance allegation at issue here, may not be considered in applying the multiple conviction rule from Pearson.
II
Punishment For Both Murder And The Special Circumstance
Defendant argues that Penal Code section 654 prohibits his punishment for both first degree murder and the torture special circumstance because both the murder and the torture special circumstance arise from a single act, the torture of Cortez which led to her death.
Penal Code section 654, subdivision (a), provides: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.
Even assuming, for purposes of argument, Penal Code section 654 applies to special circumstances, defendants contention still fails. Defendant is not being punished twice for a single act or omission. The punishment for special-circumstance first degree murder is not in addition to the punishment for first degree murder. Rather, the special circumstance finding elevates the punishment for first degree murder from 25 years to life (Pen. Code, 190, subd. (a)) to life without possibility of parole or death (Pen. Code, 190.2, subd. (a)). Penal Code section 654 is simply not relevant to the imposition of defendants sentence, and we reject his novel contention.
III
The Parole Revocation Fine
Defendant contends, and the People concede, the trial
court erred by imposing a parole revocation fine (Pen. Code, 1202.45), even though defendant was sentenced to state prison for life without possibility of parole. We accept the Peoples concession and shall order the fine stricken. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183; accord, People v. Jenkins (2006) 140 Cal.App.4th 805, 819.)
DISPOSITION
The judgment is modified by striking the Penal Code section 1202.45 parole revocation fine. As so modified, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment deleting the fine and to forward a certified copy of the abstract of judgment to the Department of Corrections and Rehabilitation.
ROBIE , J.
We concur:
DAVIS, Acting P.J.
BUTZ , J.
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[1]Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
