Not to be published

V.

The alleged prosecutorial misconduct issue provides a nice segue into defendant’s contention that he was punished twice for the same conduct in violation of Penal Code section 654, because we must once again closely scrutinize the prosecutor’s closing argument to determine whether the trial court abused its discretion by punishing him for torture and the many individual counts. Defendant uses the same excerpts from the closing argument that the torture count constituted the “umbrella charge” and that torture “is kind of the all inclusive charge as to all of their conduct” to demonstrate the prosecutor relied on the same conduct in urging the jury to convict on all charges. A prosecutor’s election, he reminds us, concerning the factual basis for each count controls in the determination whether section 654 applies. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345-1346.)

Penal Code section 654, subdivision (a) provides, in pertinent part: “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.”

“Whether [Penal Code] section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

“ ‘ “[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.” [Citation.]’ [Citation.]” (People v. Spirlin (2000) 81 Cal.App.4th 119, 129.) However, if the defendant harbored “multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)

Here the question is whether the trial court abused its discretion by implicitly finding that defendant harbored independent multiple objectives when he committed aggravated mayhem, corporal injury on a child, child abuse, false imprisonment, criminal threats, and assault with caustic chemicals and also aided and abetted Kyle’s torture. Because there is substantial evidence to support the trial court’s sentence, we cannot say the court abused its discretion. The prosecutor telegraphed the conduct she was relying on to support each count during her closing argument, an argument that makes our job considerably easier in resolving the double punishment claim.

First, we must disagree with defendant’s premise. He berates the prosecutor’s choice of language in referring to the torture count as the “umbrella charge” and referring to the “all inclusive” nature of the charge. According to defendant, the prosecutor’s sweeping language constituted a fatal election to designate all of his criminal conduct as torture. We do not understand her argument to mean that she based the torture on the identical conduct on which she based the individual counts. In fact, we believe a more reasonable interpretation of her arguments leads to the opposite conclusion—she carefully selected specific events to support the individual counts, which she methodically described, and relied on different incidents or different objectives to support the torture count. In other words, she structured her argument so that the jury clearly understood how defendant personally perpetrated each of the individual crimes and concluded with a course-of-conduct crime that included other incidents he perpetrated and many more that he aided and abetted.

The prosecutor identified two occasions when defendant personally maimed Kyle: the first, constituting count two, referred to defendant’s burning Kyle with the aluminum bat, and the second, constituting count four, encompassed defendant’s slicing of Kyle’s arm with the knife. In closing, the prosecutor did not mention the knife incident when describing the conduct that constituted torture. She did refer to Kyle’s burns and scars, but she distinguished between defendant’s personal conduct and his responsibility for aiding and abetting the others. She argued: “You put the bat in there and you take turns burning this child. So when [defendant] held the bat, is he responsible for the bat? Absolutely. When he handed the bat to Carmen or Kelly or Michael, whoever, and they burned Kyle, is [defendant] responsible for that? Yes.”

The crux of the prosecutor’s argument regarding torture was aiding and abetting. She stated plainly, “[D]efendant did not have to be there. He helped create the environment, he facilitated, promoted and encouraged it for these injuries to occur, even outside of his presence.”

As to count seven, the prosecutor emphasized that defendant had only been charged with one count of hitting Kyle with the bat despite his testimony that defendant regularly beat him with the bat several times a week. She admonished the jury to agree on one incident. The many other beatings over several months are more than ample to support the torture charge, separate and apart from count seven.

Count eight involved the time defendant struck Kyle with a boxing glove. The prosecutor did not rely on this incident in arguing torture to the jury.

To support a conviction of child abuse as alleged in count nine, the prosecutor did mention the incident in which defendant poured bleach on Kyle’s knife wound, but not to prove that the conduct was torture. Rather, she provided the jury with a litany of examples of the collective behavior that demonstrated the cruel intent necessary to find torture, including treating wounds with a cocktail of bleach, salt, and butter, and administering hot candle wax or glue to the abrasions Kyle suffered on his head, and failing to seek medical care or to call 911, and beating Kyle while he was shackled or zip-tied, and putting him on the bricks of the fireplace without a blanket or pillow, and forcing him to urinate and defecate on himself, and not allowing him to shower or to eat much besides alcohol and marijuana. All of this conduct, the prosecutor insisted, was designed to humiliate him.

As for the false imprisonment count, the prosecutor relied on an aiding and abetting theory. She maintained that defendant was as guilty as his neighbors for the fact Kyle was chained to the table next to the fireplace. In arguing torture, she did mention the chains but in the context of Kyle’s humiliation in being chained and required to defecate and urinate on himself, cruelty far beyond the mere restraint necessary to confine him.

The prosecutor explained how defendant had threatened to chop up Kyle and throw him into the “Delta River” to support the criminal threat charge set forth in count eleven. She never mentioned the threats in arguing torture to the jury.

And finally, the prosecutor told the jury that when defendant poured lighter fluid on Kyle he committed the crime of assault with a caustic chemical (count twelve). Her only reference to Kyle’s sitting in lighter fluid was again in demonstrating the foursome’s cruel intent. She recounts, “Kelly is cooking the meal, [defendant] comes over, these terrible thing[s] happen, he is sitting there in the lighter fluid, letting it soak up, while they are cooking turkey and mashed potatoes and pumpkin pie and stuffing.” She did not elect the conduct to constitute both torture as well as assault.

In sum, there is, as the Attorney General points out, an abundance of physical and mental abuse of Kyle by defendant that was not encompassed in any of the other counts and was more than sufficient to support the torture charge. The prosecutor effectively selected other incidents of abuse to substantiate the torture count. As a result, the trial court was well within its discretion in sentencing defendant for torture and the other crimes. There was no double punishment for the same conduct.

Finally, defendant argues that he could not be punished for both aggravated mayhem and child abuse for the same conduct. But the two counts did not necessarily involve the same conduct. The prosecutor argued that the mayhem involved defendant’s slicing Kyle’s arm, whereas the child abuse involved the separate act of pouring bleach on the wound after it was inflicted. While it is true that all of defendant’s macabre conduct could fall within the rubric of torture and mayhem, it is also true that the court could find he entertained an objective in slicing his arm, separate from the subsequently formed intent to exacerbate the pain by pouring bleach into the wound. Again, we cannot say the court abused its discretion.

B. Administrative Surcharge

The Attorney General concedes that the $1,000 administrative surcharge to his restitution fine must be stricken because it was not part of the trial court’s oral pronouncement of judgment. (People v. Zackery (2007) 147 Cal.App.4th 380, 386-387.) As we held in Zackery, “The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.” (Id. at pp. 387-388.) We will order the administrative surcharge stricken.

DISPOSITION

We concur: