P. v. Rivera

 

 

 

 

 

 

 

 

 

Filed 9/4/13  P. v. Rivera CA4/3

 

 

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   LUIS ROSALES RIVERA,         Defendant and Appellant.

G046458            (Super. Ct. No. 08CF0989)            O P I N I O N

 

                        Appeal from a judgment
and postjudgment order of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Steven D. Bromberg, Judge.  Judgment affirmed.  Postjudgment order affirmed as modified.

                        Michelle May, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Lilia E. Garcia and Felicity Senoski,
Deputy Attorneys General, for Plaintiff and Respondent.

*               
*                *

Introduction

Defendant
Luis Rosales Rivera was convicted of first
degree murder, having struck his roommate three or four times in the head
with a sledgehammer.  Defendant first
argues that there was insufficient evidence of premeditation and
deliberation.  The evidence of motive,
planning, and the manner of killing, however, supports the jury’s finding that
defendant committed first degree murder.

Defendant
next argues the jury was incorrectly instructed regarding the ways in which it
could consider evidence of defendant’s voluntary intoxication, both at the time
the crime was committed and during defendant’s police interrogation.  These arguments were forfeited because they
were not raised in the trial court.  We
have nevertheless considered whether the failure to request additional or
modified instructions constituted ineffective assistance of counsel, and we
conclude that there was no violation of defendant’s right to effective
counsel.  We therefore affirm the
judgment.

Finally,
defendant argues that the trial court erred in imposing an administrative fee
under Penal Code section 1203.1, subdivision (l).  We agree, and direct the
trial court to amend the restitution order to delete the reference to the
administrative fee. 

 

Statement of Facts and Procedural History

Manuel
Ramirez is the owner of a property located on Sycamore
Avenue in Stanton.href="#_ftn1" name="_ftnref1" title="">[1]  Defendant lived with two other men—Ruben Rojo
and Miguel Delacruz—in a garage on the property.  On March
26, 2008, Rojo arrived at the garage about 4:00 p.m., after work. 
Delacruz was in the garage at that time. 
Rojo left to do his laundry between 5:00
and 6:00 p.m.; he saw defendant
at a pizza parlor during that time. 
After returning to the garage, Rojo watched television with Delacruz for
about an hour; about 9:00 p.m., they
turned off the lights and went to sleep.

Rojo
awakened to the sound of thumping and moaning. 
The overhead garage light came on, and Rojo saw defendant next to his
own bed; defendant put on a sweater and then left “[f]ast.”

Rojo
saw that Delacruz’s face was bloody and injured.  Rojo went to Manuel’s residence on the
property.  About a half hour later,
Manuel and his son, Alberto, arrived in the garage.  Using a blanket, Manuel and Alberto carried
Delacruz’s dead body into a nearby alley. 
Alberto tried to clean the bloody trail from the sidewalk, and to clean
the garage.  Manuel and Alberto discarded
Delacruz’s bloody mattress and bedding in a nearby vacant lot.

Investigators
from the Orange County Sheriff’s Department responded to a report of a body in
an alley.  Extensive blood spatter was
found on the ceiling and on various items in the garage.  A sledgehammer found in the garage tested
positive for Delacruz’s blood.  No knife
was found at the scene.

A
forensic pathologist testified that Delacruz died as a result of severe blunt
head trauma.  Delacruz had suffered a
crushing-type injury at the lower forehead and upper nasal area, which had been
inflicted by a heavy object.  The sledgehammer
was consistent with the type of instrument that could have caused the type of
injuries Delacruz had suffered. 
Delacruz’s body showed no signs of defensive wounds.

About
6:30 a.m. on March 27, police
investigators encountered defendant in front of the house next door to Manuel’s
house.  Defendant was holding a 12-pack
of beer, less one beer, and had a slight odor of alcohol about him.  He did not attempt to run from the
investigators.  Defendant was observed to
have what appeared to be blood on his shoe. 
He had no injuries on his hands or other parts of his body.

Defendant
was arrested, and interviewed by homicide investigator Daniel Salcedo at the
sheriff’s department.  Defendant was read
his rights under Miranda v. Arizona (1966)
384 U.S. 436, and
waived those rights.  Defendant was calm
and cooperative throughout the interview, and did not appear intoxicated.  Some of defendant’s responses to Salcedo’s
questions were nonresponsive or responsive to a different subject matter.

When
pressed by Salcedo, defendant admitted he had attacked Delacruz.  Defendant told Salcedo that when he returned
to the garage on the evening of March 26, he turned on the light, and saw
Delacruz, who was lying in his bed, “straighten[] up” or “get[] up
somehow.”  Defendant then lunged at
Delacruz and hit him with whatever he could grab.  He stated that Delacruz was not able to
defend himself because defendant “didn’t give him a chance.”  Defendant stated that he thought Delacruz was
going to hit him, so he hit him first.  He did not see Delacruz holding a knife that
night, but assumed he had one because he always did.  Defendant told Salcedo that, if given the
chance, he would attack Delacruz again. 
He also accepted responsibility for committing the crime.  When asked why he had attacked Delacruz that
night, rather than at some other time, defendant responded that he had more
anger inside him.  He believed that
Delacruz was “watching [him] sleep.”

Defendant
told Salcedo he did not have a good relationship with Delacruz, and defendant
had wanted to fight Delacruz for about a year. 
He claimed Delacruz ordered him to clean the garage and the bathroom,
and humiliated him.  Defendant also told
Salcedo that Delacruz had tried to pull down defendant’s pants or underwear,
and had twice tried to stab him. 

Defendant
told Salcedo he drank five Bud Light beers at a pizza parlor after work on
March 26.  He denied being drunk, and
said he knew what he was doing when he attacked Delacruz.  After the attack, defendant went to a bar,
and had “a good time” drinking and dancing until the bar closed.  Defendant fell asleep under a tree; when he
woke up, he bought more beer before returning home.

Defendant’s
blood was drawn after his interview with Salcedo; at that time, defendant had a
blood alcohol level of 0.11 percent.

Defendant
was charged in an information with one count of first degree murder.  (Pen. Code, § 187, subd. (a).)  The information alleged, as a sentencing
enhancement, that defendant personally used a deadly weapon in the commission
of the crime.  (Id., § 12022, subd. (b)(1).)  A jury convicted defendant of first degree
murder, and found the enhancement to be true. 
The trial court sentenced defendant to one year plus 25 years to life,
with the possibility of parole. 
Defendant timely appealed.

 

Discussion

I.

>Sufficiency
of the Evidence

Defendant
argues there was insufficient evidence to support an inference of premeditation
and deliberation, and therefore contends the judgment should be reversed as to
degree.  “When considering a challenge to
the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. 
[Citation.] . . . We presume in support of the
judgment the existence of every fact the trier of fact reasonably could infer
from the evidence.  [Citation.]  If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding.  [Citation.]  A reviewing court neither reweighs evidence
nor reevaluates a witness’s credibility. 
[Citation.]”  (People
v. Lindberg (2008) 45 Cal.4th 1, 27.)

“‘An intentional killing is premeditated and
deliberate if it occurred as the result of preexisting thought and reflection
rather than unconsidered or rash impulse.’ 
[Citation.]  In this context,
‘“premeditated” means “considered beforehand,” and “deliberate” means “formed
or arrived at or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.”’  [Citation.] 
We normally consider three kinds of evidence to determine whether a
finding of premeditation and deliberation is adequately supported—preexisting
motive, planning activity, and manner of killing—but ‘[t]hese factors need not
be present in any particular combination to find substantial evidence of
premeditation and deliberation.’ 
[Citation.]”  (>People v. Jennings (2010) 50 Cal.4th
616, 645.)  “‘The process of
premeditation and deliberation does not require any extended period of
time.  “The true test is not the duration
of time as much as it is the extent of the reflection.  Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at
quickly. . . . â€ 
[Citations.]’  [Citation.]”  (People
v. Koontz (2002) 27 Cal.4th 1041, 1080.) 
Premeditation and deliberation may be shown by circumstantial
evidence.  (People v. Anderson (1968) 70 Cal.2d 15, 25.)

In
this case, evidence of all three factors supports the jury’s finding of
premeditation and deliberation.  The
evidence showed defendant had a motive for murder.  He stated during his police interrogation
that his relationship with Delacruz was not friendly.  He thought Delacruz had belittled and
humiliated him.  Defendant did not like
Delacruz, thought he had a “big mouth,” and believed Delacruz was “going to die
anyway.”  Defendant told Salcedo that he
hated Delacruz and would “kill him again” because of the way he had treated
defendant.  Defendant knew what he was
doing when he killed Delacruz.

The
evidence of the manner of the killing also supports the finding of
premeditation and deliberation.  Striking
Delacruz three or four times in the head with a sledgehammer was so
“‘“particular and exacting”’ to warrant an inference that defendant was acting
according to a preconceived design. 
[Citations.]”  (>People v. Thomas (1992) 2 Cal.4th
489, 518.)

Finally,
the evidence of defendant’s planning further supports the jury’s finding of
premeditation and deliberation.  In >People v. Morris (1959) 174 Cal.App.2d
193, 197-198, the court held the jury properly found a killing was
premeditated, based on the evidence of planning.  In that case, the victim was stabbed in the
heart with a knife with a six‑ to seven-inch blade, and the defendant
“‘did not slash wildly or without aim.’” 
(Id. at p. 197.)  Other circumstances showing the defendant’s
planning included the time and pretext for the defendant entering the premises,
lack of verbal communication between the defendant and the two others he was
with, the lack of surprise by one of the defendant’s companions when the
defendant attacked the victim, “the complete absence of any immediate
provocation,” and the defendant’s ready access to the weapon.  (Ibid.)  All of these factors led the appellate court
to conclude the jury could reasonably have found the killing was not a result
of “‘rash impulse hastily executed.’”  (>Id. at pp. 197‑198.) 

In
this case, defendant, without any reasonable provocation, attacked Delacruz
almost immediately after entering the garage and seeing Delacruz straighten up
or get up.  Defendant was prepared to
quickly get an instrument capable of inflicting severe injury when used on a
human head, and used that instrument to prevent Delacruz from having any chance
to defend himself.  He then left and went
drinking and dancing, admittedly having a “good time.”  The evidence supported a finding that the
killing of Delacruz was not a rash act, and “demonstrate[d] a choice and plan
of conduct inconsistent with a conclusion that [defendant] did not premeditate
the killing.”  (People v. Morris, supra,
174 Cal.App.2d at p. 197.) 

 

II.

>Instructional
Error

Defendant makes
two claims of instructional error, both involving the jury instruction on
voluntary intoxication.  The jury was
instructed with CALCRIM No. 625, as follows: 
“You may consider evidence, if any, of the defendant’s voluntary
intoxication only in a limited way.  You
may consider that evidence only in deciding whether the defendant acted with an
intent to kill or the defendant acted with deliberation and premeditation.  [¶] A person is voluntarily intoxicated if he
or she becomes intoxicated by willingly using any intoxicating drug, drink, or
other substance knowing that it could produce an intoxicating effect, or
willingly assuming the risk of that effect. 
[¶] You may not consider evidence of voluntary intoxication for any
other purpose.”  This instruction
correctly states the law on the admissibility of evidence of voluntary
intoxication.  (Pen. Code, § 29.4;href="#_ftn2" name="_ftnref2" title="">[2]
People v. Turk (2008) 164 Cal.App.4th
1361, 1381; People v. Timms (2007)
151 Cal.App.4th 1292, 1298.)

Because the
trial court does not have a sua sponte duty to provide modifications or
additions to accurate statements of law, defendant was required to request any
modifications or additions to the voluntary intoxication instruction.  (People
v. Lee (2011) 51 Cal.4th 620, 638 [“failure to request clarification of an
otherwise correct instruction forfeits the claim of error for purposes of
appeal”]; People v. Verdugo (2010) 50
Cal.4th 263, 295 [trial court not required to give pinpoint instruction on
voluntary intoxication unless requested to do so].)  Defendant did not do so, and the Attorney
General argues that he has therefore forfeited those arguments on appeal.

We agree with
the Attorney General.  Both of
defendant’s arguments of instructional error—that CALCRIM No. 625 improperly
precluded the jury from considering his intoxication on his defense of
unreasonable self-defense, and on his inability to correctly express himself
during his police interrogation—are modifications of or additions to the
standard, correct legal statement included in the pattern instruction.  Contrary to defendant’s argument that the
trial court erroneously limited the jury’s ability to consider evidence of
voluntary intoxication, defendant is actually asking us to increase the jury’s
ability to consider evidence of voluntary intoxication beyond what is permitted
by statute.  Both arguments have been
forfeited.

Defendant
argues, in the alternative, that his trial counsel’s failure to object to
CALCRIM No. 625, or to propose modifications or additions to it, constitutes
ineffective assistance of counsel.  In
order to successfully claim ineffective assistance of counsel, a defendant must
prove two components:  “First, the
defendant must show that counsel’s performance was deficient.  This
requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.  Second, the defendant must
show that the deficient performance prejudiced the defense.  This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.”  (Strickland v. Washington
(1984) 466 U.S. 668, 687.)  The first
prong of the Strickland v. Washington standard is met only “if the record on appeal
demonstrates there could be no rational tactical purpose for counsel’s
omissions.”  (People
v. Lucas (1995) 12 Cal.4th 415,
442.)  The second prong requires a
showing of “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.  A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”  (Strickland v.
Washington, supra,> at p. 694.)  We conclude that defendant cannot sustain his
burden under either prong of the Strickland
v. Washington test.

 

 

A.

>Voluntary Intoxication as Having an Effect
on the Defense of Imperfect Self-defense

Defendant
argues he was prejudiced by the jury instructions, claiming the jury was
prevented from considering whether his voluntary intoxication affected his
belief in the need to use deadly force to save his life.

The jury was
instructed on the defense of imperfect self-defense with CALCRIM No. 571,
as follows:  “A killing that would
otherwise be murder is reduced to voluntary manslaughter if the defendant
killed a person because he acted in imperfect self-defense.  If you conclude that the defendant acted in
complete self-defense, his action was lawful and you must find him not guilty
of any crime.  The difference between
complete self-defense and imperfect self-defense depends on whether the
defendant’s belief in the need to use deadly force was reasonable.  [¶] The defendant acted in imperfect
self-defense if:  one, the defendant
actually believed he was in imminent danger of being killed or suffering great
bodily injury; and two, the defendant actually believed that the immediate use
of deadly force was necessary to defend against the danger; but, three, at
least one of those beliefs was unreasonable. 
Belief in future harm is not sufficient, no matter how great or how
likely the harm is believed to be.  [¶]
In evaluating the defendant’s beliefs, consider all the circumstances as they
were known and appeared to the defendant. 
If you find that Miguel Martel Delacruz threatened or harmed the
defendant or others in the past, you may consider that information in
evaluating defendant’s beliefs.  If you
find that the defendant knew that Miguel Martel Delacruz had threatened or
harmed others in the past, you may consider that information in evaluating the
defendant’s beliefs.  [¶] Great bodily
injury means significant or substantial physical injury.  It is an injury that is greater than minor or
moderate harm.  [¶] The People have the
burden of proving beyond a reasonable doubt that the defendant was not acting
in imperfect self-defense.  If the People
have not met this burden, you must find the defendant not guilty of murder.”

In People
v. Turk, supra, 164 Cal.App.4th
at page 1381, the appellate court addressed the same issue we face
here:  “[The defendant] claims that the
trial court erred in instructing the jury pursuant to CALCRIM No. 625 because
the instruction erroneously informed the jury that it could not consider [the
defendant]’s voluntary intoxication in determining whether he harbored malice
aforethought.  [The defendant]’s primary
contention is that while CALCRIM No. 625 informed the jury that it could
consider his voluntary intoxication in determining whether he acted with the
intent to kill, the instruction implied that the jury could not consider his
voluntary intoxication in determining whether he acted with malice
aforethought.”  The jury had been
instructed with CALCRIM No. 520, regarding the crime of murder, as well as
CALCRIM No. 625.  (People v. Turk, supra, at
p. 1381.)  “[T]he trial court specifically instructed
the jury that, ‘The defendant acted with express malice if he unlawfully
intended to kill.’  The court further
instructed the jury that it could consider evidence of [the defendant]’s
voluntary intoxication in deciding whether he had acted ‘with an intent to
kill.’  Thus, considering the
instructions as a whole, as we must [citation], the trial court adequately
informed the jury that it could consider evidence of [the defendant]’s
voluntary intoxication on the issue of express malice.”  (Id.
at pp. 1382-1383.) 

Here, too, the instructions given adequately
informed the jury that it could consider evidence of defendant’s voluntary
intoxication in determining whether defendant acted with an intent to kill
(CALCRIM No. 625), that defendant acted with express malice if he unlawfully
intended to kill (CALCRIM No. 520), and that murder would be reduced to
voluntary manslaughter if defendant acted in imperfect self-defense (CALCRIM
No. 571).  Before the jury could consider
whether defendant acted in imperfect self-defense, it must have found that
defendant acted with malice.  Considering
the instructions as a whole, we conclude the jury was adequately informed it
could consider defendant’s voluntary intoxication in deciding whether imperfect
self-defense applied to negate the finding of malice.  No modification to the instruction was
necessary, and there is no error in defendant’s trial counsel’s failure to
request one.

Additionally, there is no evidence from which
the jury could have concluded defendant’s claim of imperfect self-defense was
valid, even if it had considered the possible effect of his intoxication.  Defendant’s statements to Salcedo made clear
that defendant did not see a knife in Delacruz’s hand; Delacruz was in bed when
defendant arrived at the garage; Delacruz did not move toward defendant (much
less lunge toward him or attempt to attack him), but rather got up or
straightened up; defendant brutally attacked Delacruz before he had a chance to
defend himself; and defendant hated Delacruz and was happy he was dead.  Defendant’s actions after the killing—quickly
putting on a sweater and going out drinking and dancing, and having a good time
at a bar—are inconsistent with a claim that defendant attacked Delacruz because
he reasonably believed Delacruz was about to kill him.  Under any standard of prejudice, defendant’s
claim of ineffective assistance of counsel fails.

 

B.

>Voluntary Intoxication as Having an Effect
on Defendant’s Ability to Express Himself in the Police Interrogation

Defendant also
argues that by instructing the jury with CALCRIM No. 625, the trial court
prejudicially “prevented jurors from considering voluntary intoxication as it
related to the content and completeness of [defendant]’s law enforcement
interview.”  At root, defendant’s
argument on appeal is that his responses during the police interrogation did
not explain what Delacruz had done on one or more previous occasions, which
caused defendant to be in fear of his life just before he attacked Delacruz,
and that the jury should have been able to consider his voluntary intoxication
to explain why he did not provide that information to Salcedo.  Even if it were proper for the jury to
consider defendant’s voluntary intoxication on this point (a point with which
we do not agree, but need not address for purposes of this opinion), to accept
defendant’s argument would require the jury to speculate about what defendant’s
answers would have been to the questions Salcedo did not ask, or how
defendant’s incomplete or incomprehensible answers should be interpreted.  Defendant provides us with no authority
justifying such speculation by the jury.

Defendant also
fails to establish prejudice.  There was
no evidence that defendant’s voluntary intoxication affected his responses
during the interrogation.  Salcedo
testified defendant did not appear intoxicated, and was calm and cooperative
during his interrogation.  Defendant was
able to clearly and remorselessly express himself when implicating himself in
Delacruz’s murder; there would be no reason for the jury to believe he could
not have clearly expressed himself in trying to mitigate his responsibility for
the crime.

Defendant cites
People v. Wiidanen (2011) 201
Cal.App.4th 526 (Wiidanen), in
support of his argument.  In that case,
the appellate court held the trial court erred by instructing the jury with
both CALCRIM No. 362 (regarding consciousness of guilt)href="#_ftn3" name="_ftnref3" title="">[3]
and CALCRIM No. 3426 (regarding voluntary intoxication),href="#_ftn4" name="_ftnref4" title="">[4]
but that the error was harmless.  (>Wiidanen, supra, at p. 528.)  The
court held, “a defendant’s false or misleading statements made when he was
intoxicated may not be probative of the defendant’s veracity, if the jury
believed the defendant was too intoxicated to know his statements were false or
misleading.”  (Id. at p. 533.) 
Defendant concedes that Wiidanen
is not on point, but argues that its “broader holding” applies here.  We disagree that Wiidanen stands for any broad principle that Penal Code
section 29.4 can be ignored to allow a jury to consider a defendant’s
voluntary intoxication for any purposes other than those specified in the
statute. 

 

III.

>Cumulative Error

Defendant
also argues that the cumulative nature of the errors, addressed >ante, requires reversal.  Because we have concluded that the trial
court did not err, we reject defendant’s claim of cumulative error.

 

IV.

>Administrative Fee

Before
defendant’s sentencing, the California Victim Compensation and Government
Claims Board submitted a request for restitution from defendant.  The request sought a restitution order in the
amount of $7,500, which the board had paid to Delacruz’s family for funeral and
burial expenses.  The trial court entered
a restitution order in the amount requested. 
Defendant does not challenge the amount of the restitution order.

The
court’s restitution order includes “an administrative fee at 10 percent of the
restitution owed,” citing Penal Code section 1203.1, subdivision (>l). 
Defendant contends the administrative fee is statutorily unauthorized,
and must be stricken.href="#_ftn5"
name="_ftnref5" title="">[5]

Defendant
argues, and the Attorney General concedes, that an administrative fee could not
be imposed under Penal Code section 1203.1, subdivision (>l), because that statute applies only
when a defendant is placed on probation. 
(People v. Robertson (2009)
174 Cal.App.4th 206, 210-211; People
v. Eddards (2008) 162 Cal.App.4th 712, 716.)  We agree, and accept the Attorney General’s
concession that the reference in the restitution order to section 1203.1,
subdivision (l) must be
stricken. 

The
Attorney General argues that this court should amend the abstract of judgment
to replace the reference to an administrative fee under Penal Code section 1203.1,
subdivision (l), with a
reference to an administrative fee under Penal Code section 2085.5,
subdivision (e).href="#_ftn6"
name="_ftnref6" title="">[6]  Section 2085.5 provides, in relevant
part:  “(c) In any case in which a
prisoner owes a restitution order imposed pursuant to . . . subdivision (f)
of Section 1202.4, the Secretary of the Department of Corrections and
Rehabilitation shall deduct a minimum of 20 percent or the balance owing on the
order amount, whichever is less, up to a maximum of 50 percent from the wages
and trust account deposits of a prisoner, unless prohibited by federal
law.  The secretary shall transfer that
amount to the California Victim Compensation and Government Claims Board for
direct payment to the victim, or payment shall be made to the Restitution Fund
to the extent that the victim has received assistance pursuant to that
program.  The sentencing court shall be
provided a record of the payments made to victims and of the payments deposited
to the Restitution Fund pursuant to this subdivision.  [¶] . . . [¶] (e) The
secretary shall deduct and retain from the wages and trust account deposits of
a prisoner, unless prohibited by federal law, an administrative fee that totals
10 percent of any amount transferred to the California Victim Compensation and
Government Claims Board pursuant to
subdivision . . . (c).” 


Penal
Code section 2085.5 creates an administrative duty on the part of the
Department of Corrections and Rehabilitation to add an administrative fee to
the amounts being withheld from a prisoner’s wages to pay the amounts included
in the restitution order entered by the trial court.  As the statute already so requires, there is
no need for the trial court’s restitution order or the abstract of judgment to
include reference to section 2085.5. 
We therefore decline the Attorney General’s request that the restitution
order and the abstract of judgment be modified to refer to section 2085.5.

 

Disposition

The
judgment is affirmed.  We direct the
trial court to amend the restitution order by deleting the reference to Penal
Code section 1203.1, subdivision (l);
in all other respects, the restitution order is affirmed.

 

 

                                                                                   

                                                                                    FYBEL,
J.

 

WE CONCUR:

 

 

 

MOORE, ACTING P. J.

 

 

 

IKOLA, J.