P. v. Audon

Filed 7/11/06 P. v. Audon CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Following a jury trial, on November 8, 2004, appellant Jose Audon was found guilty of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1).) Further, the jury found true an allegation that appellant personally used a dangerous and deadly weapon. (Pen. Code, §§ 667, 1192.7.) However, the jury found not true an allegation that appellant personally inflicted great bodily injury on Gildardo Manuel Rivas. (Pen. Code, §§ 12022.7, subd. (a), 1203 subd. (e)(3).)

Facts and Proceedings Below

On June 10, 2004, at around midnight, Gildardo Manuel Rivas (Manuel) went to Tres Gringos, a bar in San Jose with his friend Ivan Lomeli (Ivan),[1] Ivan's sister Rosanna, her friend Jessica, and Sandra Alvarado (Sandra). Accompanying this group were two more of Ivan's friends, Andy Rodriguez and someone who went by the name of Chamas, but was known as George.[2] At the bar, the group spent their time socializing and drinking. At this time, everyone was friendly towards each other. Manuel had a beer in his hand "pretty much" all night.

The group left Tres Gringos at closing time, which was around 1:45 a.m. George suggested that they go to Andy's house. After stopping at a 7-Eleven store to buy more beer, Andy decided to get into the front seat of Ivan's SUV. Manuel, who had been sitting in the front seat of the SUV, told Andy "to get in the back seat." According to Ivan, Manuel was cocky and self-confident and sometimes would "rub certain people the wrong way." When the group arrived at Andy's house the lights were off. Andy asked everyone to wait outside for a minute while he made sure that it was "okay" to go inside. Andy invited the whole group into the kitchen and living room. Andy lived in the house with his girlfriend, his brother Ruben and his girlfriend, appellant, and appellant's two brothers Henry[3] and Richard.

Appellant was sleeping on the couch and Andy woke him up. Appellant was wearing only blue jean cutoff shorts. Manuel noticed many tattoos on appellant's body, including an Aztec tattoo on his right forearm that looked "fresh." Manuel also noticed tattoos on appellant's back. Manuel talked to appellant about his tattoos and offered him a beer.

The group from the bar sat together in the living room and began socializing. Appellant joined them in the living room. He had put on a shirt and was wearing prescription glasses. Rosanna and Jessica complained to Ivan that they wanted to go home because they were tired and had to go to work the next day. They went outside, as did George.[4] Another man, who turned out to be appellant's brother Henry, emerged from somewhere inside the house, grabbed a beer and joined the party in the living room. Appellant and Henry sat together on one couch while Manuel sat next to Sandra on another couch. Ivan sat on a third couch while Andy was "crouched down, sitting on the floor." They played music softly because other people were sleeping in the bedrooms of the house. Manuel was drunk, but was not having any problems with coordination.

Around 3 a.m. Manuel became bored and asked Ivan if he could take him home. Andy became offended by this and said that Ivan was staying with him. Andy testified that he did not want Ivan and Manuel to leave because they were drunk. Andy took off his shirt and challenged Manuel to a fight. Sandra left the house. According to Andy, he punched Manuel three times. Manuel countered with a couple of punches. Manuel grabbed Andy and threw him onto the couch, got on top of him and tried to control him. According to Manuel, he expected someone to come to his aid, help calm down Andy, and stop what was going on. Instead, appellant and his brother Henry wanted to get into the fight and help Andy.

The fight between Andy and Manuel spilled over into the kitchen. Appellant and Henry went into the kitchen via a second entrance. According to Manuel, appellant's friends came out of the hallway and attacked him. Reluctantly, Andy testified that appellant, Henry, Ruben and Richard were all involved in the fight. Ivan testified that he saw several people come down the hallway and he tried unsuccessfully to stop them from entering the kitchen. At the time Ivan was trying to stop the people from entering the kitchen, he heard, but did not see appellant, Henry, and Andy attacking Manuel in the kitchen. Ivan heard Manuel say, "He has a knife." Manuel said this as he was running out of the kitchen.

According to Manuel, as he was trying to get out of the house, about five people attacked him and pulled at his clothes. Appellant ran at him and stabbed him twice, once on the arm and once in the chest. Manuel was certain that it was appellant that stabbed him. He saw appellant with the knife, "calculating his . . . next move . . . tr[ying] to get an open shot" at him. Manuel broke free and ran outside. He ran to a neighboring house and asked a woman inside to call the police and an ambulance. Manuel testified that while he was outside, Andy and some other people approached. Andy called Manuel names and threatened to kill him. Priscilla Buantello testified that she heard someone yelling profanities at a person who was on her neighbor's front porch. She called 911 after she heard what she thought was a gunshot.

While Manuel was at the neighbor's house, he heard Ivan calling for him to leave with him, but Manuel told Ivan that he had to wait for the ambulance. Manuel saw a patrol car and heard sirens. Andy, whoever was with him, and Ivan left the scene. Police and paramedics met Manuel.

Before he was taken to the emergency room, Manuel gave the responding officer a description of the person who stabbed him. Manuel told the police that the attack occurred at 2064 Mendota. Manuel was rushed to the hospital. Nine staples were put in his chest and three in his arm. It took about two months for him to recover.

Officer Jacob Ferguson was one of the officers who responded to the scene following a report of shots being fired. He drove onto the street just behind Mendota, the street where the stabbing occurred. As he turned onto the street, Officer Ferguson saw appellant running from in between two houses and through the front yard of a house. As Officer Ferguson approached, appellant changed from a run to a walk and took out his cell phone. He noticed that appellant was sweating profusely and out of breath. Appellant was wearing prescription glasses. When Officer Ferguson asked appellant why he was running from the yard, appellant responded that he had been at a house drinking with friends. He was awakened from his sleep and told to run. He put on some clothes, went out the back door and through the back yard fence.

Using his radio, Officer Ferguson told his supervisor that he had stopped someone possibly connected with the call to the emergency services. Officer Ferguson was told to hold appellant. Accordingly, he handcuffed him and placed him in the back of his patrol car. Officer Ferguson saw two other males running out from between the same two houses, but he could not leave appellant. He radioed in what he had seen and other officers went looking for the two men. Appellant kept asking Officer Ferguson what was going on and what had happened. Appellant volunteered information about where he had been, and what had happened earlier in the evening. According to Officer Ferguson, appellant kept changing his story.

Meanwhile, at the hospital, Officer Michael Pifferini interviewed Manuel. Although Manuel appeared to be intoxicated, Officer Pifferini did not have any difficulty communicating with him. Manuel sounded logical and coherent, was aware of his surroundings, and was able to describe what happened that night without any difficulty. The information was relayed to officers at the scene of the stabbing. In the early morning hours, while still in the hospital, Manuel agreed to view an in field identification. Manuel was placed in a patrol car and two individuals were brought separately to the patrol car for viewing. Manuel identified one person, appellant's brother, as the one of the men who had been hitting him. Manuel identified appellant as the person who stabbed him. Manuel was positive of his identification of appellant. According to Officer Pifferini, Manuel's description of his assailant's build and clothing matched appellant, including appellant's complexion, age, height, weight, shorts, hairstyle, tattoo, and glasses.

Defense Case

Anne Imobersteg, a forensic toxicologist, testified that an individual's memory and cognitive functioning becomes more impaired as their blood alcohol level increases. At a blood alcohol level of .01 to.04 percent there is little effect on cognitive functioning. At .03 to .12 percent, one begins to see some short-term memory effects and there is a decline in information processing. More profound effects on the brain begin to appear when the blood alcohol level reaches .09 to .25 percent. An individual will have difficulty fully understanding the ramifications of what he or she is doing. There is a decline in sharpness of vision. At a blood alcohol level of .18 to .30 percent, an individual will have problems comprehending or understanding. There is confusion. Memory gets worse and there is a greater chance of blackouts. In addition, one's vision gets worse and an individual will experience double vision. Finally, with a blood alcohol level of .25 to .40 percent, an individual will be disoriented and there will be a "marked chance" in having blackouts. Vision becomes very blurry.

Imobersteg admitted that no controlled studies demonstrate how alcohol affects a person's ability to perceive a person's height, weight or body shape. Further, there have been no studies done to compare the effect of alcohol on a person's ability to make an accurate identification.

Rebuttal

Manuel testified that he was drinking that evening, but no more than he would usually drink when he goes out. When he left the hospital at 6 a.m., he did not feel hung over. Manuel did admit that he was drunk during the altercation at the house, but he was positive that appellant was the person who stabbed him.

Before the matter was submitted to the jury, the parties stipulated that a knife Detective Hutson delivered to the crime lab was examined for fingerprints and blood and none was found. Furthermore, the shorts, shoes and sweater worn by appellant on the night of the incident were examined by the crime lab and were negative for the presence of blood. Manuel's medical records were admitted without objection as People's exhibit 22.[5]

After deliberating for over two days, the jury returned its verdict. On December 6, 2004, the court denied appellant probation and sentenced him to serve the midterm of three years in state prison. In addition, the court ordered appellant to pay a $600 restitution fine pursuant to Penal Code section 1202.4, subdivision (b). The court imposed and suspended a parole revocation fine pursuant to Penal Code section 1202.45. The court ordered appellant to pay $15,355.71 in restitution to Manuel, $2500 in attorney fees, $144 to reimburse the victim witness program and a $20 court security fee. Appellant received credit for 179 days actual custody and 88 days of conduct credit for a total of 267 days credit. Appellant filed a timely notice of appeal.

On appeal, appellant raises four issues. First, he contends that he was denied due process and a fair trial because the trial court erroneously refused a defense request to modify CALJIC No. 2.92. Second, appellant contends that he was denied due process and a fair trial because the trial court gave an incomplete and confusing instruction on the defense of another. Third, the order to pay attorney fees is based on insufficient evidence of his present or future ability to pay. Lastly, the order to pay victim restitution should be reversed because the evidence was insufficient to support the amount of loss awarded. For the reasons outlined in this opinion we disagree with appellant's first, second and fourth contentions. However, we will strike the attorney fees awarded under Penal Code section 987.8.

Discussion

CALJIC 2.92

Appellant contends that his conviction must be reversed because he was denied due process and a fair trial when the court refused a defense request to modify CALJIC No. 2.92.

After the defense rested its case, based on the testimony of the forensic toxicologist, defense counsel requested that the court add to the list of factors the jury could consider in proving identity by eyewitness testimony the effect of alcohol. Specifically, defense counsel requested that "additional language be inserted to [CALJIC No.] 2.92 that one of the factors for the jury to look at in this eyewitness identification issue is whether the witness was under the influence of alcohol at the time of the event."

Judge Hyman expressed his concern about the requested modification, noting that he "question[ed] whether or not, just because there has been some evidence, whether or not that's sufficient in and of itself to go beyond what is already provided in 2.92. The Court notes that the blood alcohol levels that the witness has testified to were rather broad with respect to the amounts of alcohol." Judge Hyman went on to note that the expert witness "testified that while she was certainly aware of different kind[s] of cognitive studies having to do with memory, vision and cognitive functioning, that there are no specific studies having to do with eyewitness testimony that she's aware of, or relied upon. She has not conducted any research in that particular area, not that that's required in order to, for that to be considered by the jury." Judge Hyman said that his other concern was that there was "evidence with respect to other persons who have testified and other persons who were present that other people were drinking, as well. And we do not have their blood alcohol levels and we do not have any additional, really, information in terms of their own particular impairments." Judge Hyman went on to say his concern was that by "doing something specific as to alcohol in this particular case, that might have an effect with respect to the jury's determination or the jury's decision making with respect to all witnesses who have been drinking without there being any additional information. [¶] While there's going to be a stipulation between the parties as to . . . the victim's blood alcohol level at a certain point in time, there has certainly been testimony by the victim, as well as by one or two other witnesses that he was, in fact, obviously intoxicated. Which in terms of his . . . behavior, the evidence is . . . lacking in terms of what kind of objective findings or what might be considered objective finding other witnesses in that regard."

After hearing from defense counsel, Judge Hyman denied the defense motion to modify CALJIC No. 2.92 with the following statement. "The Court's of the opinion, for the reasons stated, that counsel is not prohibited from arguing consistent with the expert testimony with respect to the effects of alcohol on the witnesses. And with respect to the, . . . victim, specifically, given the last sentence in the instruction, any other evidence relating to the witness' ability to make an identification, and that, therefore, doesn't need to be a specific instruction with respect to, or specific notation with respect to alcoholic beverage, and the court denies the request for the [addition] to the instruction."

CALJIC No. 2.92 provides: "Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness' identification of the defendant, including, but not limited to, any of the following:

"[The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;]

"[The stress, if any, to which the witness was subjected at the time of the observation;]

"[The witness' ability, following the observation, to provide a description of the perpetrator of the act;]

"[The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;]

"[The cross-racial [or ethnic] nature of the identification;]

"[The witness' capacity to make an identification;]

"[Evidence relating to the witness' ability to identify other alleged perpetrators of the criminal act;]

"[Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;]

"[The period of time between the alleged criminal act and the witness' identification;]

"[Whether the witness had prior contacts with the alleged perpetrator;]

"[The extent to which the witness is either certain or uncertain of the identification;]

"[Whether the witness' identification is in fact the product of [his] [her] own recollection;]

"[_____________________________________________________________________________ ____________________;] and

"Any other evidence relating to the witness' ability to make an identification."

Relying on People v. Wright (1988) 45 Cal.3d 1126, 1137, appellant argues that the trial court erred in refusing to add alcohol to the list of factors the jury could consider under CALJIC No. 2.92. Appellant asserts that CALJIC No. 2.92 "is a flexible instruction that should be readily tailored to include defense-requested factors that are supported by the evidence and that could give rise to a reasonable doubt as to defendant's guilt. Indeed, the instruction itself provides a blank space for the inclusion of factors tailored to fit the facts of the particular case, and in any event, CALJIC instructions are not sacrosanct, they are not the law, they only restate the law."

In People v. Wright, supra, 45 Cal.3d 1126 (Wright), the California Supreme Court distinguished between instructions that properly pinpoint the theory of the defense and those that improperly imply certain conclusions from specified evidence. (Id. at p. 1137.) In Wright, the court gave as an example of the former an alibi instruction that directed the jury to acquit a defendant if it believed him not to be present at the time the crime was committed. (See CALJIC No. 4.50.) Thus, the Wright court approved of People v. Wilson (1929) 100 Cal.App. 428, in which the court reversed the conviction of a robbery defendant who put on an alibi defense and was refused an alibi instruction. (Wright, supra, 45 Cal.3d at p. 1137.) On the other hand, the Wright court disapproved as "argumentative" the instruction requested by the defendant, which would have instructed the jury to "consider" various pieces of evidence, such as the fact that all the robbers wore ski masks, in assessing the defendant's guilt. (Id. at p. 1138.)

The Wright court noted, "CALJIC No. 2.92 or a comparable instruction should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence." (Wright, supra, 45 Cal.3d. at p. 1144.) Further, defense counsel should be given "an opportunity to suggest additional factors to supplement those listed in the standard instruction." (Id. at p. 1143.) An appropriate "instruction should list the applicable factors in a neutral and nonargumentative instruction, thus effectively informing the jury without improperly invading the domain of either jury or expert witness. It should list only factors applicable to the evidence at trial, and should refrain from being unduly long or argumentative." (Ibid.)

After examining the historical underpinnings of CALJIC No. 2.92, the Wright court concluded that "[t]his model instruction, with appropriate modifications to take into account the evidence presented at trial, will usually provide sufficient guidance on eyewitness identification factors." (Wright, supra, 45 Cal.3d at p. 1141, italics added.)[6]

It is on the italicized language that appellant relies to argue that it was error to refuse to modify CALJIC No. 2.92 to add that the jury could consider the victim's intoxication as a factor in proving identity by eyewitness testimony.

In this case, the modification sought by appellant was duplicative of the factors listed in CALJIC No. 2.92. Specifically, the instruction, as given, told the jury to consider the "witness' capacity to make an identification" and "any other evidence relating to the witness' ability to make an identification." It is not error to give, unmodified, CALJIC No. 2.92 in lieu of proposed factors that are "in substance included in CALJIC No. 2.92." (People v. Frank (1990) 51 Cal.3d 718, 739.)

Furthermore, the crux of the Wright case is that trial courts are not required to give or modify instructions so that they imply "certain conclusions from specified evidence. . . ." (Wright, supra, 45 Cal.3d. at p. 1137.) Here, appellant's proposed modification would have done more than pinpoint the theory of appellant's case. It verged on being argumentative. That is, it invited the jury to draw inferences favorable to appellant from a specified item of evidence--Manuel's intoxication--on a disputed question of fact--whether Manuel's intoxication did in fact impair his ability to perceive the person that stabbed him. "In a proper instruction, '[w]hat is pinpointed is not specific evidence as such, but the theory of the defendant's case.' [Citation.]" (Ibid.)

Furthermore, the concept that intoxication might impair a witness's perceptive abilities is not so far beyond common experience that failing to instruct the jury on that point would place the defense at a disadvantage. With or without instructional language specifically addressing the issue, appellant had ample opportunity to cross-examine Manuel about his impaired condition at the time of the offenses and to argue to the jury that his testimony was unreliable because he was so drunk that he was mistaken as to who stabbed him. Moreover, the court instructed the jury with CALJIC No. 2.30 that "[i]n determining the believability of a witness, you may consider . . . the extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified." (Italics added.) This instruction along with CALJIC No. 2.92 adequately instructed the jury.

Accordingly, we are convinced that appellant was not denied due process and a fair trial when the trial court refused to modify CALJIC No. 2.92.

Self-Defense/Defense of Others Instruction

Appellant contends that he was denied due process and a fair trial because the court gave an incomplete and confusing instruction on the defense of another.

The court instructed the jury with CALJIC No. 9.00 as follows: "Every person who commits an assault upon the person of another is guilty of a violation of Penal Code section 240. [¶] In order to prove an assault, each of the following elements must be proved: [¶] A person willfully and unlawfully committed an act which by its nature would probably and directly result in the application of force on another person; [¶] The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; and [¶] At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another. [¶] The word willfully means that the person committing the act did so intentionally. However, an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person. [¶] To constitute an assault, it is not necessary that any actual injury be inflicted. However, if an injury is inflicted it may be considered in connection with other evidence in determining whether an assault was committed and, if so, the nature of the assault."

Judge Hyman omitted the concluding paragraph in CALJIC No. 9.00, which states, "A willful application of physical force upon the person of another is not unlawful when done in lawful [self-defense] [or] [defense of others]. The People have the burden to prove that the application of physical force was not in lawful [self-defense] [defense of others]. If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty.]"

According to the use notes in CALJIC No. 9.00, the concluding paragraph should be used only where there is a defense of self-defense and should be given with CALJIC No. 5.30 and other appropriate instructions. (CALJIC No. 9.00)

Written instructions were provided to the jury, which included the concluding paragraph in CALJIC No. 9.00. During deliberations, the jury had several questions for the court including a request that the court "clearly define assault as related to the penal code in this charge." In response, the court reread the instructions on assault with a deadly weapon (CALJIC No. 9.02), assault defined (CALJIC No. 9.00), assault, present ability to commit injury necessary (CALJIC No. 9.01), as well as the instruction on personal use of a dangerous or deadly weapon (CALJIC No. 17.16), and infliction of great bodily injury (CALJIC No.17.20). When the court reread the instruction defining assault (CALJIC No. 9.00), Judge Hyman included the concluding paragraph of the instruction, but changed the language as follows: "A willful application of force upon the person of another is not unlawful when done in lawful self-defense of others. The People have the burden to prove that the application of physical force was not unlawful self-defense of others. If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty." (Italics added.)

Appellant argues that this instruction as given by the court was incorrect and incomplete, because the court twice used the phrase self-defense of others, a contradictory and confusing term. Furthermore, he argues, at no time did the court instruct the jury with CALJIC No. 5.32[7] defining the use of force in defense of another. Appellant asserts that this was error because the court failed to instruct on an affirmative defense after referring to the affirmative defense, or justification, in the instruction on assault found in CALJIC No. 9.00. Appellant contends that he was prejudiced by the court's failure to so instruct. He asserts that in this case, defense of another negated an element of the charged offense of assault, namely, the unlawful application of force upon the person of another.

Appellant fails to recognize that his defense at trial was not that he was acting in defense of another. Rather, his only defense was that the victim was mistaken in identifying him as the stabber. In fact, defense counsel began her closing argument by stating that the "state has put the wrong man on trial. [Manuel] was hurt that night, but he was so intoxicated, this all happened so fast, and was so chaotic that he is simply wrong about who did this to him."

For the trial court to have given an instruction on self-defense or defense of others was inconsistent with appellant's defense. In addition to its general duty to instruct on the law, the court " 'has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.]' " (People v. Barker (2001) 91 Cal.App.4th 1166, 1172.)

"An abstract instruction (i.e., one that is correct in law but irrelevant) may be prejudicial error when it could confuse the jury. . . . But in most cases the giving of an abstract instruction is only a technical error that does not constitute ground for reversal. [Citations.]" (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial § 669, pp. 960-961.) For example, in People v. Hairgrove (1971) 18 Cal.App.3d 606, the court found an aiding and abetting instruction irrelevant and then held that, "[b]ecause the erroneous instructions were so clearly inapplicable, we are convinced the jury disregarded them in reaching its verdict." (Id. at p. 609.)

We reach a similar conclusion here. The court instructed the jury to determine if appellant committed an assault, that is, whether he willfully and unlawfully committed an act, which by its nature would probably and directly result in the application of force on another person. Given that appellant's position was that it was someone other than him that committed the assault, defense of another was clearly irrelevant to the analysis of the case. Furthermore, the court instructed the jury with CALJIC No. 17.31 as follows: "The purpose of the Court's instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend on what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist." Thus, we are convinced the jurors must have understood the instructions in accordance with the common meaning of their plain words, judged the instruction on self defense/defense of others to be mere surplusage, and passed over it without further thought. (People v. Rowland (1992) 4 Cal.4th 238, 282.)

Accordingly, we conclude that appellant was not denied due process and a fair trial.

Attorney Fees

At appellant's sentencing hearing, the court ordered appellant to pay $2500 in attorney fees.[8] Appellant did not object at the time. However, on appeal, he contends that the court had no evidence supporting the implied finding of his ability to pay or overcoming the presumption that a defendant, who has been sentenced to prison, is unable to pay his public defender. The Attorney General asserts that this challenge has been waived.

In the absence of a guilty plea, the sufficiency of the evidence to support a finding is an objection that can be made for the first time on appeal. (People v. Rodriguez (1998) 17 Cal.4th 253, 262.)

Penal Code section 987.8[9] authorizes the court to order criminal defendants to pay all or part of the cost of their appointed counsel after the trial court determines the defendant has a present ability to pay. The ability to pay includes the defendant's reasonably discernible future financial position, limited to the next six months. (Pen. Code, § 987.8, subd. (g)(2)(B).)

Ordinarily, while this statute may not require an express finding of ability to pay (cf. People v. Phillips (1994) 25 Cal.App.4th 62, 76), it contains a presumption that those sentenced to prison are unable to pay. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.) "Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense." (Pen. Code, § 987.8, subd. (g)(2)(B).) "We construe this part of the statute to require an express finding of unusual circumstances before ordering a state prisoner to reimburse his or her attorney." (People v. Lopez, supra, 129 Cal.App.4th at p. 1537.)

A determination that a defendant has the ability to pay is a prerequisite for entry of an attorney fee order. (Pen. Code, § 987.8, subd. (e).) While such a determination may be implied, the order cannot be upheld on review unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) When the issue on appeal is sufficiency of the evidence, "we must draw all reasonable inferences in favor of the judgment." (People v. Mercer (1999) 70 Cal.App.4th 463, 467.)

Drawing all inferences in favor of the judgment, we cannot agree with the Attorney General that the record here contains substantial evidence of appellant's ability to pay attorney fees. Although the record indicates that appellant was working before his arrest, he had been in custody for 179 days since his arrest and lost his job because of his incarceration. Further, there is no evidence that he had any source of income available to him at that time. Moreover, there is some indication in the record that appellant had two children to support. Finally, the court sentenced appellant to three years in state prison.[10]

Here, the court made no express finding of an unusual circumstance to rebut the statutory presumption, and the record does not support an implied finding of one. We conclude that, here, as in People v. Kozden (1974) 36 Cal.App.3d 918, 920, "there is no substantial evidence to support the trial court's determination that [defendant] possessed the present ability to pay the sum assessed . . . ." Nor is this an appropriate case to remand to the trial court. This is not a case such as People v. Flores (2003) 30 Cal.4th 1059, 1068, in which "a showing of unusual circumstances was conceivable because, according to the probation report, defendant possessed $1,500 worth of jewelry at the time of sentencing."

In the absence of any "unusual circumstances," the presumption of Penal Code section 987.8, subdivision (g)(2)(B) controls. Appellant's imprisonment also eliminates the "likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing," except for the employment opportunities that prison offers. (Pen. Code, § 987.8, subd. (g)(2)(C).) Accordingly, in light of appellant's circumstances, the statutory presumption in Penal Code section 987.8, subdivision (g)(2)(B), and the relatively modest fee order,[11] a further judicial proceeding would only generate more costs. In the interests of judicial economy and efficiency, therefore, we will strike the order assessing attorney fees.

The Victim's Lost Wages

Appellant contends that the order to pay victim restitution for lost wages should be reversed because there was insufficient evidence presented to support the amount of loss awarded.

At the sentencing hearing, the court awarded Manuel a total of $15,355.72 in victim restitution. This amounted consisted of $14,342.11 for medical bills, $600 for lost apparel and jewelry plus $557.60 for loss of sick-time pay or lost wages, less $144 paid by the victim restitution fund.

Defense counsel questioned the amount of the loss for clothing and jewelry, but was satisfied with Manuel's explanation of the how he reached that total. Further, defense counsel objected to Manuel being awarded the gross amount of the medical bills. Counsel argued that since the insurance company had paid the bill, appellant should not be "billed" in this case. The court pointed out that he could not award restitution to the insurance company with the following explanation. "The law is clear that if it's a loss and if the victim was fortuitous enough to have insurance, that the defendant does not benefit by that. The law is clear that I must impose the gross amount and that the victim has responsibility . . . to pay the health care providers."

While looking at the summary of Manuel's losses, the court noticed that he had not included loss of earnings. When questioned by the court, Manuel explained that he had "charge[d] it to [the] sick time" he had accumulated. The court pointed out that he was still entitled to be reimbursed for that and asked Manuel for his best estimate in terms of loss of money. Manuel calculated that he had lost two and one half days at a rate of $27.88 an hour. The court clerk calculated this to be $557.60. The court asked defense counsel if she had any questions for Manuel. Defense counsel stated that she did not.

Later, when the court expressed its intention to award Manuel $557.60 in lost wages, the court asked defense counsel if she wished to be heard. Defense counsel replied that she did not. Further, defense counsel commented that the testimony she heard was "sufficient to justify the $557.60."

Appellant contends that defense counsel's objection to the amount of the award for medical expenses was sufficient to preserve this issue for appeal. The Attorney General disagrees and argues that appellant agreed that there was sufficient evidence to justify an award of $557.60 in lost wages. Therefore, appellant has waived this issue on appeal.

Relying on this court's opinion in People v. Viray (2005) 134 Cal.App.4th 1186 (Viray), appellant counters that a challenge to the sufficiency of the evidence requires no predicate objection in the trial court.

In Viray, the defendant challenged the trial court's order to reimburse the public defender's office in the amount of $9,200 pursuant to Penal Code section 987.8. (Viray, supra, 134 Cal.App.4th at p. 1213.) The defendant argued that the record failed to disclose that she received adequate notice of the hearing at which the court imposed the order; the hearing itself was inadequate in that defendant's position regarding reimbursement was not solicited or otherwise made known; insufficient evidence was adduced to establish that she was able to pay the fees; and the amount allowed was excessive and unsupported by evidence of the actual cost to the county. (Id. at p. 1214.)

In Viray, we found that defendant's third and fourth contentions were meritorious. However, first we addressed the issue raised by the Attorney General that defendant had failed to preserve her challenge to the reimbursement order for appeal because she lodged no predicate objection in the trial court. (Viray, supra, 134 Cal.App.4th at p. 1214.)

We acknowledged that such a view had been adopted by published authority, but found that authority distinguishable. We concluded that we did not believe it should be rationally extended to bar objections to an order for reimbursement of counsel fees. We reasoned that unless the defendant "has secured a new, independent attorney when such an order is made, she is effectively unrepresented at that time, and cannot be vicariously charged with her erstwhile counsel's failure to object to an order reimbursing his own fees." (Viray, supra, 134 Cal.App.4th at p. 1214.)

Accordingly, we concluded that an appellate forfeiture could not be predicated on the failure of a trial attorney to challenge an order concerning his own fees. (Viray, supra, 134 Cal.App.4th at pp. 1215-1216, ["It seems obvious to us that when a defendant's attorney stands before the court asking for an order taking money from the client and giving it to the attorney's employer, the representation is burdened with a patent conflict of interest and cannot be relied upon to vicariously attribute counsel's omissions to the client. In such a situation the attorney cannot be viewed, and indeed should not be permitted to act, as the client's representative. Counsel can hardly be relied upon to contest an order when a successful contest will directly harm the interests of the person or entity who hired him and to whom he presumptively looks for future employment"].)

Furthermore, because the defendant's contentions went to the sufficiency of the evidence to support the order we found that no predicate objection in the trial court was necessary. (Viray, supra, 134 Cal.App.4th at p. 1217.)

Here, as in Viray, because appellant challenges the sufficiency of the evidence to support the order we find that no predicate objection in the trial court was necessary.

Undoubtedly, it is the policy of this state to insure compensation for victims of crime. (Cal. Const, art. I, § 28, subd. (b); Pen. Code, § 1202.4, subd. (a).) However, the trial court must have a factual and rational basis for the amount of restitution it orders. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)

Appellant maintains that the evidence was insufficient to establish that Manuel actually lost wages. Appellant argues that Manuel did not claim lost wages because he did not actually lose any compensation; he lost only accumulated sick time. However, the evidence did not establish that the loss of accumulated sick days resulted in any actual loss of wages to Manuel.

We note that a victim restitution order should not exceed the victim's actual loss. (People v. Nguyen (1994) 23 Cal.App.4th 32, 45.) However,"[a] victim's restitution right is to be broadly and liberally construed." (People v. Mearns (2002) 97 Cal.App.4th 493, 500; accord, People v. Baker (2005) 126 Cal.App.4th 463, 467.)

Restitution "has been judicially defined to mean 'reimbursement to the victims of crime for actual loss flowing from the charged offense or from related misconduct.' [Citations.]" (People v. Vournazos (1988) 198 Cal.App.3d 948, 954. See also, e.g., People v. Phelps (1996) 41 Cal.App.4th 946, 950-951.) It "is statutorily defined as 'full or partial payment for . . . losses . . . caused by the defendant as a result of committing the crime for which he or she was convicted.' [Citation.]" (People v. Vournazos, supra, 198 Cal.App.3d at p. 954.) "The term 'economic losses' is [ ] entitled to an expansive interpretation." (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1133.)

We review a restitution order for an abuse of discretion. (People v. Mearns, supra, 97 Cal.App.4th at p. 498.) "Under that standard, we are required to keep in mind that even though the trial court has broad discretion in making a restitution award, that discretion is not unlimited. While it is not required to make an order in keeping with the exact amount of loss, the trial court must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary and capricious. [Citations.]" (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.)

Here, essentially, appellant contends that he was not responsible for the victim's loss for two and one half missed workdays because the absence was covered by the victim's sick leave. We disagree. The court's calculation although termed "lost wages" was in fact a loss of sick leave for which appellant was responsible. The court's estimate of the value of the sick leave was based on Manuel's testimony that he lost two and one half sick days, or 20 hours, at a rate of $27.88 per hour. In the absence of any challenge by appellant to the actual sums used by the court, we find that the court used a rational method to calculate the loss of sick time that was not arbitrary and capricious. We find no abuse of discretion.

Accordingly, we reject appellant's challenge to the court's order that he pay $557.60 for the victim's "lost wages."

Disposition

The attorney fees order is stricken. In all other respects, the judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

______________________________

MIHARA, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Real Estate Attorney.

[1] We refer to Ivan and others by their first name to avoid any confusion and not out of disrespect.

[2] It appears that Andy's girlfriend also accompanied the group.

[3] Henry is appellant's twin brother, but they do not look the same.

[4] It appears that George answered a cell phone call.

[5] The medical records contain a notation regarding Manuel's blood alcohol level. One hour after the fight, Manuel's blood alcohol level was measured at .178 percent.

[6] The Wright court held that a proper instruction on eyewitness identification factors should focus the jury's attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence. (Wright, supra, 45 Cal.3d at p. 1141.)

[7] CALJIC No. 5.32 provides: "It is lawful for a person who, as a reasonable person, has grounds for believing and does believe that bodily injury is about to be inflicted upon another person to protect that individual from attack. [¶] In doing so, [he] [she] may use all force and means which that person believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent."

[8] The probation report recommended that appellant pay "[a]ttorney fees if appropriate."

[9] Penal Code section 987.8, subdivision (f) provides in part: "Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost." "In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, . . . the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof." (Pen. Code, § 987.8, subd. (b).) "If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county." (Pen. Code, § 987.8, subd. (e).) At an ability to pay hearing, the court shall consider a defendant's present financial position. (Pen. Code, § 987.8, subd. (g)(2)(A).)

[10] Penal Code section 987.8, subdivision (g)(2)(B) stipulates that "[i]n no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernible future financial position." Furthermore, the statute presumes that unless the court finds unusual circumstances, a defendant sentenced to state prison does not have a reasonably discernible future financial ability to reimburse the costs of his or her defense.

[11] That is not to say that generally $2500 is an insubstantial sum.