Pam Kershaw by IGv7Td

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									Filed 10/7/99
                       CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION FIVE



THE PEOPLE,                                         B124974

        Plaintiff and Respondent,                   (Super. Ct. No. GA031453)

        v.

MARK EDWARD DORSEY,

        Defendant and Appellant.




        APPEAL from a judgment of the Superior Court of Los Angeles County, Teri
Schwartz, Judge. Affirmed in part, modified in part.
        Carlo Andreani, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney
General, Carol Wendelin Pollack, Senior Assistant Attorney General, Chung L. Mar, and
Kerrigan M. Keach, Deputy Attorneys General, for Plaintiff and Respondent.




*      Pursuant to California Rules of Court, rules 976(b) and 976.1, the indicated
portions of parts I, IV, and V are certified for publication.
                                       I. INTRODUCTION


       Defendant, Mark Edward Dorsey, appeals from his convictions for: two counts of

kidnapping for robbery (Pen. Code,1 § 209, subd. (b)); two counts of second degree

robbery (§ 211); a single count of attempted second degree robbery (§§ 664, 211); and

one count of possession of a firearm by a felon. (§ 12021, subd. (a)(1).) It was also

determined that defendant: personally used a firearm in the commission of the

kidnappings, robberies, and the attempted robbery (§ 12022.5, subd. (a)(1)); had

previously been convicted of a serious felony (§§ 667, subds. (b)-(i), 1170.12,

subds. (a)-(d)); and had served a prior prison term. (§ 667.5.) Defendant has received a

sentence of two consecutive life terms plus 37 years. Additionally, the trial court imposed

a direct victim restitution order pursuant to section 1202.4, subdivision (f). In the

published portion of this opinion, we address the question of whether penalty assessments

mandated by section 1464, subdivision (a) and Government Code section 76000,

subdivision (a) must be added to the direct victim restitution award. We conclude such

penalty assessments may not be imposed on a direct victim restitution award.



                [The portions of the opinion that follow are deleted from
              publication. See post, at page 30 where publication resumes.]




1      All further statutory references are to the Penal Code unless otherwise indicated.

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                            II. UNPUBLISHED DISCUSSION

                                      A. Contentions

       Defendant argues: (1) his constitutional right to an attorney was violated because

the trial court improperly denied his continuance and substitution of counsel motions; (2)

the trial court had a sua sponte duty to instruct the jury with CALJIC No. 17.01; (3) the

trial court erroneously instructed the jury with a definition of the “increased risk of harm”

element of kidnapping for robbery; (4) there was insufficient evidence that he used a

weapon in the attempted robbery; (5) there was insufficient evidence pursuant to section

667, subdivision (d)(3)(A), that he was 16 years old when he committed the robbery for

which he was sentenced to the California Youth Authority; and (6) the trial court

improperly sentenced him to full, consecutive enhancements and doubled life terms. The

Attorney General argues the abstract of judgment must be corrected to reflect the fine

imposed pursuant to section 1202.45 and penalty assessments.



                             B. Factual and Procedural Background

       At 7:30 a.m. on February 20, 1997, defendant entered a Smart and Final store. He

asked Assistant Manager Arturo Rodriguez whether they sold hard liquor. Defendant

then approached the manager, Michael Franco, who was working at the cash register.

Defendant patted his jacket and said he had a gun. Defendant instructed Mr. Franco to go

to the office and open the safe. Defendant also demanded he be given money from the

safe. When Mr. Franco hesitated, he was struck in the eye with what felt like a hard

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object. Mr. Franco was hit with such force that he almost blacked out. By the following

day, Mr. Franco’s eye was swollen shut. Defendant and Mr. Franco walked to the office.

Mr. Franco attempted to open the safe. Defendant gave instructions to hurry and

threatened to kill Mr. Franco. Once the safe was opened, defendant gave Mr. Franco a

trash bag. Mr. Franco was instructed to put the money from the safe inside. Mr. Franco

placed a box of quarters and nickels in the bag. Mr. Franco was unable to open the top

part of the safe. As defendant attempted to pick up the bag, it tore. Defendant left

without the bag or money.

       At approximately 10 a.m. the same day, defendant went to the jewelry department

of a Sears department store. When Mari Markosyan asked if she could help him,

defendant asked to see a manager. Ms. Markosyan telephoned the loss prevention agent

Ronney Wong. She observed defendant’s hand to be in his right pocket. She then called

the operator to page staff to come to the jewelry department. Pam Kershaw, who was the

hardware department manager, responded. Defendant asked Ms. Kershaw if she had ever

been shot. He told her he had a gun. He also told her he wanted all of her money or he

would kill her. Defendant told her he wanted the money from the safe. Ms. Kershaw told

defendant she could only open the top part of the safe. Defendant instructed

Ms. Kershaw to get someone to open the bottom of the safe or he would kill her and shoot

everyone else. In the meantime, Ms. Markosyan gestured to an employee in the cosmetics

department to call the loss prevention office. Ms. Kershaw called John Bostrom, who




                                             4
was also a manager on duty. Defendant told Ms. Kershaw to tell Mr. Bostrom what was

happening.

      Ms. Kershaw and Mr. Bostrom left the jewelry department with defendant walking

behind them. They walked through the store to the cashier’s office, where the safe was

located. Mr. Bostrom opened the door using the keypad and a key. The three entered the

room. Defendant told Ms. Kershaw and Mr. Bostrom to hurry. If anything went wrong,

defendant threatened to kill Ms. Kershaw. Defendant pulled a gun from the right pocket

of his jacket and cocked it. Defendant pointed the gun at Ms. Kershaw. Mr. Bostrom

opened the safe and filled a plastic trash bag that defendant had provided. There was

approximately $58,000 in cash in the bag. Defendant directed Ms. Kershaw and

Mr. Bostrom to walk out of the store with him through the receiving area. Defendant told

them if they saw any police, he would not be the only one to “go down.” Mr. Bostrom

carried the bag of money. Ms. Kershaw and defendant followed.

      Once they exited the store, they heard a siren. Defendant looked at Ms. Kershaw,

stating, “‘This is it.’” Defendant gestured with his right hand. Ms. Kershaw turned and

ran back into the store. Defendant stepped in front of Mr. Bostrom. Mr. Bostrom

dropped the money bag and grabbed defendant’s right arm. Mr. Bostrom then tripped

defendant. When five police officers approached, Mr. Bostrom left defendant on the

ground. Defendant was detained by police officers. A .380 caliber handgun, which had a

live round in the chamber, was found in defendant’s jacket pocket. The security video




                                            5
cameras operated by the Sears loss prevention office captured the entire incident on

videotape. The videotape was played for the jury at trial.



                                     C. Unpublished Analysis

       1. Substitution of counsel

       Defendant argues that the trial court’s refusal to allow him to continue the trial and

substitute counsel violated his right to an attorney of choice as protected by the Sixth and

Fourteenth Amendments to the United States Constitution. Preliminarily, this

constitutional contention was not the basis of an objection in the trial court and thus is the

subject of waiver, forfeiture, and procedural default. (United States v. Olano (1993) 507

U.S. 725, 731; People v. Williams (1997) 16 Cal.4th 153, 250; People v. Vera (1997) 15

Cal.4th 269, 274; People v. Padilla (1995) 11 Cal.4th 891, 971, overruled on another

point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Rodrigues (1994) 8

Cal.4th 1060, 1116, fn. 20; People v. Garceau (1993) 6 Cal.4th 140, 173; People v.

Saunders (1993) 5 Cal.4th 580, 590; People v. McPeters (1992) 2 Cal.4th 1148, 1174;

People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Ashmus (1991) 54 Cal.3d 932,

972-973, fn. 10; People v. Yarbrough (1997) 57 Cal.App.4th 469, 477-478.)

       Notwithstanding that procedural default, we find no abuse of discretion.

Defendant was arrested in this case on February 20, 1997. On May 27, 1997, Deputy

Public Defender Janet Greenberg was appointed to represent defendant. A series of

proceedings followed regarding defendant’s competency to stand trial. (§ 1368.) On


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February 18, 1998, defendant was found competent to stand trial. Defendant made three

motions to relieve his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d

118, 123-126 and its extensive progeny. On May 28, 1998, the case was called for a jury

trial. Defendant indicated that he was requesting a new attorney be appointed. The trial

court asked the prosecutor to leave the courtroom and conducted a Marsden hearing.

Defendant indicated that he wanted another attorney because Ms. Greenberg had no

defense and that there was “material evidence” that she had not discussed with him. He

stated that he had jury instructions that could help with his defense. Ms. Greenberg stated

that she had worked on this case for over a year. However, during the competency

proceedings, defendant refused to speak with her. Defendant finally began speaking with

her two months before trial. Ms. Greenberg indicated that defendant was receiving

advice from a cellmate. Ms. Greenberg explained to defendant that there was no

corroborative evidence that he was intoxicated at the time of the offenses. Ms. Greenberg

indicated that she would do the best that she could for defendant under the unfavorable

circumstances. In denying the motion, the trial court stated: “Mr. Dorsey, it is the court’s

opinion that you are currently represented by one of the finest lawyers in this courthouse.

Ms. Greenberg is one of the outstanding defense attorneys in this courthouse, and I do not

believe that you have given me reasons sufficient for relieving her from the case and

bringing in another lawyer, particularly in light of the fact that you are here for trial and

this is the last day for trial.”




                                               7
       On June 1, 1998, the matter was transferred to a different courtroom for trial. The

second Marsden hearing was then conducted. Defendant again moved to relieve counsel

and substitute a Ms. Ballantyne as retained counsel. Ms. Ballantyne indicated that she

believed there was an unspecified “change of circumstances” because defendant felt there

were defenses that were not pursued. She further stated she would need a continuance of

the trial. The prosecutor argued that the case commenced on February 20, 1997, and was

followed by competency hearings, during which defendant exhibited elective mutism.

The prosecutor stated that it was too late to substitute counsel on the eve of trial when all

parties were ready to proceed. Because the trial judge had not been present at the

previous Marsden hearing, she determined that “in an abundance of caution” another

hearing would be conducted. The prosecutor was excused. During that hearing,

defendant reiterated that Ms. Greenberg had no defense for him. Ms. Greenberg stated

that both offenses were captured on videotape and defendant was apprehended as he left

the store. She stated that she had discussed the defense of intoxication with defendant.

She further indicated that: it was not a good case; the prosecutor had not made an offer;

she had very little to work with; but she would give defendant the best defense she could.

The trial court denied the motion to substitute counsel. Ms. Ballantyne stated that she had

not had an opportunity to review the police reports or any evidence in the case. She stated

that she had made an offer to the prosecutor about a possible disposition. However, it

was rejected. Ms. Ballantyne stated that, based on defendant’s representations, she

understood that he wanted certain issues pursued.



                                              8
       Thereafter, the proceedings continued with the prosecutor once again present.

Ms. Greenberg stated that she was: willing to go forward; was ready; knew the facts; and

would do the best that she could for defendant. However, Ms. Greenberg requested that

the trial court seriously consider defendant’s request for substitution of counsel in order

that he might feel comfortable with a retained attorney. The trial court stated that it did

not feel there was a breakdown in the attorney-client relationship. The trial court looked

to the fact that the offense occurred in February 1997, indicating that it was concerned

about the rights of the victims in the matter to have a speedy resolution of the case. The

trial judge further stated that it was rare to secure such a request for substitution of

counsel after a year of delays and on the eve of trial. The trial court stated substitution of

counsel would only be permitted if Ms. Ballantyne could commence trial the following

week. Ms. Ballantyne stated that she could not be ready for trial by then. The trial court

noted that critical prosecution witnesses were unavailable later in the month.

Furthermore, Ms. Ballantyne stated that she and the prosecutor had a trial set in another

serious case on June 22, 1998. The trial court stated that to allow Ms. Ballantyne to

represent defendant would delay the matter a few months. The trial court noted: “And in

light of the age of the case, the date of the offense, the victim’s rights, the People’s right,

and in an effort to move this case along without shortchanging the defendant but []

getting this case to trial, I will deny Mr. Dorsey’s request to permit Ms. Ballantyne to

substitute in. [¶] I’m going to keep Ms. Greenberg on the case. She’s ready to go. She’s




                                               9
an excellent lawyer, and I’m confident she’ll give you the best defense possible at this

point.”

          On June 8, 1998, defendant brought a third Marsden motion. Defendant repeated

that he believed Ms. Greenberg did not have a defense for him. He also stated: “All the

stuff and everything they say that is against me, I haven’t seen it. I hadn’t seen nothing.”

The trial court explained that oftentimes a defense strategy may be to require the

prosecution to prove the elements of the crimes charged. Ms. Greenberg explained that

although she had discussed the video and audio tapes with defendant, she had not had an

opportunity to play them for him. The trial court agreed to afford time for defendant to

view the videotape. The trial court denied the Marsden motion stating: “I do think that

while you may be disappointed with some of the things she’s told you, she is doing the

best she can for you. She’s an excellent lawyer.”

          In People v. Marsden, supra, 2 Cal.3d at page 124, the California Supreme Court

held: “Thus, a judge who denies a motion for substitution of attorneys solely on the basis

of his courtroom observations, despite a defendant’s offer to relate specific instances of

misconduct, abuses the exercise of his discretion to determine the competency of the

attorney. A judicial decision made without giving a party an opportunity to present

argument or evidence in support of his contention ‘is lacking in all the attributes of a

judicial determination.’ (Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [].)”

However, the Supreme Court subsequently clarified, “The mere fact that there appears to

be a difference of opinion between a defendant and his attorney over trial tactics does not



                                             10
place a court under a duty to hold a Marsden hearing.” (People v. Lucky (1988) 45

Cal.3d 259, 281; see also People v. Padilla, supra, 11 Cal.4th at p. 927.) The California

Supreme Court recently reiterated: “The governing legal principles are well settled.

‘“When a defendant seeks to discharge his appointed counsel and substitute another

attorney, and asserts inadequate representation, the trial court must permit the defendant

to explain the basis of his contention and to relate specific instances of the attorney’s

inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly

shows that the first appointed attorney is not providing adequate representation [citation]

or that defendant and counsel have become embroiled in such an irreconcilable conflict

that ineffective representation is likely to result [citations].” [Citations.]’” (People v.

Hart (1999) 20 Cal.4th 546, 603, quoting People v. Fierro (1991) 1 Cal.4th 173, 204 and

People v. Crandell (1988) 46 Cal.3d 833, 854; see also People v. Barnett (1998) 17

Cal.4th 1044, 1085; People v. Hines (1997) 15 Cal.4th 997, 1025.)

       We review the trial court’s denial of the motion for substitution of counsel for

abuse of discretion. (People v. Hart, supra, 20 Cal.4th at pp. 603-604; People v. Horton

(1995) 11 Cal.4th 1068, 1102; People v. Memro (1995) 11 Cal.4th 786, 857; People v.

Berryman (1993) 6 Cal.4th 1048, 1070, overruled on another point in People v. Hill

(1998) 17 Cal.4th 800, 823, fn. 1.) Although a defendant has a right to an adequate and

competent defense, he does not have the right to present a particular theory of exculpation

of his choosing. (People v. Welch (1999) 20 Cal.4th 701, 728-729; see People v.

Hamilton (1989) 48 Cal.3d 1142, 1162.) Tactical disagreements between a defendant and



                                              11
counsel do not alone establish “irreconcilable conflict.” (People v. Welch, supra, 20

Cal.4th at pp. 728-729; People v. Hines, supra, 15 Cal.4th at p. 1025; People v.

Carpenter (1997) 15 Cal.4th 312, 376.) In this instance, the circumstances of the

offenses, coupled with the videotapes of the crimes, left defense counsel few options. As

the trial court noted, the best defense was often to force the prosecutor to prove the

elements of the crimes. Defendant did not state an adequate basis for substitution of

counsel. (Hudson v. Rushen (9th Cir. 1982) 686 F.2d 826, 831-832; People v. Freeman

(1994) 8 Cal.4th 450, 481; People v. Smith (1993) 6 Cal.4th 684, 696-697.) The trial

court gave defendant the opportunity to explain his concerns on three separate occasions.

The motions were all made on the eve of trial. Retained counsel could not begin trial for

approximately two months. It does not appear that defendant’s situation could have been

improved by a continuance or representation by new counsel. Moreover, the record is

devoid of any evidence that the denial of the motion substantially impaired defendant’s

right to effective assistance of counsel. (People v. Webster (1991) 54 Cal.3d 411, 435;

People v. Moore (1988) 47 Cal.3d 63, 76; People v. Smith (1985) 38 Cal.3d 945, 956.)

Substitution of counsel would have led to a continuance of a trial which was set to occur

over one year, three months after defendant’s apprehension. (Cf. LaGrand v. Stewart

(9th Cir. 1998) 133 F.3d 1253, 1276; Bland v. California Dept. of Corrections (9th Cir.

1994) 20 F.3d 1469, 1476.) There was no abuse of discretion in either denying any of the

three Marsden motions or declining to substitute counsel. (People v. Hart, supra, 20

Cal.4th at p. 729; People v. Fierro, supra, 1 Cal.4th at pp. 206-207.)



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       2. Instructions

              a. unanimity instruction

       Defendant argues that the trial court had a sua sponte duty to instruct the jury with

CALJIC No. 17.01, because the evidence “discloses two different acts by which the

accused could have violated a single charge.” CALJIC No. 17.01 provides: “The

defendant is accused of having committed the crime of ___________ []. The prosecution

has introduced evidence for the purpose of showing that there is more than one [act] [or]

[omission] upon which a conviction [] may be based. Defendant may be found guilty if

the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of

the [acts] [or] [omissions]. However, in order to return a verdict of guilty [], all jurors

must agree that [he] [she] committed the same [act] [or] [omission] []. It is not necessary

that the particular [act] [or] [omission] agreed upon be stated in your verdict.” He argues

that the evidence disclosed different movements of the kidnapping victims. As a result,

he suggests the jurors may have not have been unanimous in determining which act

constituted the requisite movement not merely incidental to the commission of the

robbery and which substantially increased the risk of harm. We disagree. As our

colleagues in the Sixth District Court of Appeal have noted, “‘[A] unanimity instruction is

not required when the case falls within the continuous course of conduct exception.’

(People v. Melendez (1990) 224 Cal.App.3d 1420, 1428[].) This exception is applicable

where, by its very nature, the charged offense consists of a continuous course of conduct.


                                              13
(People v. Deidrich (1982) 31 Cal.3d 263, 282[].) Kidnapping inherently involves a

continuous course of conduct. (People v. Ordonez (1991) 226 Cal.App.3d 1207, 1231

[].)” (People v. Cortez (1992) 6 Cal.App.4th 1202, 1209.) Defendant first moved

Ms. Kershaw and Mr. Bostrom to the cashier’s office to have them open the safe. He

then led them to the receiving area exit to facilitate the unsuccessful escape. However,

the entire episode was a continuous course of conduct that constituted kidnapping for

purposes of robbery. As a result, no unanimity instruction was required. (Ibid.; People v.

Melendez (1990) 224 Cal.App.3d 1420, 1428, overruled on another point in People v.

Majors (1998) 18 Cal.4th 385, 408.) We agree with the Attorney General that

defendant’s mere contention that his Sixth and Fourteenth Amendment rights were

violated without further argument or citation to authority requires no discussion. (Jones

v. Superior Court (1994) 26 Cal.App.4th 92, 99; Woods v. Superior Court (1994) 25

Cal.App.4th 178, 187; People v. Callegri (1984) 154 Cal.App.3d 856, 865; People v.

Ham (1970) 7 Cal.App.3d 768, 783, overruled on other grounds in People v. Compton

(1971) 6 Cal.3d 55, 60, fn. 3; People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)



              b. instruction defining increased risk of harm

       Defendant argues that the prosecutor’s instruction, which was given, defining the

increased risk of harm element for the kidnapping offenses violated his Sixth and

Fourteenth Amendment rights. Defendant argues that the alleged instructional error




                                            14
prejudicially lightened the prosecution’s burden and adversely affected his defense to the

increased risk of harm element. We disagree.

       The jury was instructed as follows: “As used in these instructions, movement

which substantially increased the risk of harm to the person moved, over and above that

necessarily present in the crime of robbery, may include consideration of such factors as:

[¶] 1. The decreased likelihood of detection; [¶] 2. The danger inherent in person’s

foreseeable attempts to escape by the person moved; [¶] 3. The attacker’s enhanced

opportunity to commit additional crimes. [¶] Any determination of the increase in the

risk of harm involves a comparison of the victim’s physical location before and after the

movement.” In People v. Rayford (1994) 9 Cal.4th 1, 13, the California Supreme Court

looked to its decision in People v. Daniels (1969) 71 Cal.2d 1119, 1131-1134, for

guidance on the issue of the substantial increase in risk of harm above and beyond that

inherent in kidnapping for robbery. The Rayford court noted, “This includes

consideration of such factors as the decreased likelihood of detection, the danger inherent

in a victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to

commit additional crimes.” (People v. Rayford, supra, 9 Cal.4th at p. 13; see also People

v. Lara (1974) 12 Cal.3d 903, 908 & fn. 4; In re Earley (1975) 14 Cal.3d 122, 132;

People v. Caudillo (1978) 21 Cal.3d 562, 574, overruled on another point in People v.

Martinez (1999) 20 Cal.4th 225, 236.) Defendant does not object to these factors being

set forth in the special instruction. He does object, however, to the language, “Any

determination of the increased risk of harm involves the victim’s physical location before



                                            15
and after the movement.” Defendant claims this sentence improperly charged the jury

since only the physical location before and after “non-incidental movement affected and

governed the increased risk of harm element.” As the California Supreme Court recently

held, “The two prongs of aggravated kidnapping are not distinct, but interrelated, because

a trier of fact cannot consider the significance of the victim’s changed environment

without also considering whether that change resulted in an increase in the risk of harm to

the victim.” (People v. Martinez, supra, 20 Cal.4th at p. 236.) The instruction at issue

here did not alter those considerations. Furthermore, the language in question was used to

define the increased risk of harm in People v. Salazar (1995) 33 Cal.App.4th 341, 348,

“Any determination of the increase in the risk of harm involves a comparison of the

victim’s physical location before and after the asportation.”

       In any event, we find that even if the sentence misstated the element of increased

risk of harm, it was harmless beyond a reasonable doubt. In People v. Flood (1998) 18

Cal.4th 470, 475, this court determined that the harmless error standard set forth in

Chapman v. California (1967) 386 U.S. 18, 22, applies in those cases where an element

of the offense is omitted from the instructions. (People v. Avila (1995) 35 Cal.App.4th

642, 653-662.) In Avila, no instruction on the element of increased risk of harm was

given. In this case, the instruction did not omit, but added clarification of the element of

increased risk of harm. Here, as was the case in Avila, there can be no question that the

uncontroverted testimony of Ms. Kershaw and Mr. Bostrom, coupled with the videotape,

established that the risk of harm occasioned by their movement from the jewelry counter



                                             16
to the enclosed cashier’s office through a department store occupied by other customers

and employees and the movement outside the store certainly increased the risk of harm.

During the course of that asportation, defendant drew his automatic weapon, chambered a

round, pointed it at Ms. Kershaw, and threatened to kill her. He also repeatedly told the

victims that if things went wrong, he would kill them. When defendant heard the police

siren as they exited the store, he told the victims, “This is it[,]” implying they would be

killed. Furthermore, the instruction on kidnapping to commit robbery clearly set forth the

requisite finding of increased risk of harm. Any error in the definition of the offense was

harmless. (Pope v. Illinois (1987) 481 U.S. 497, 503, fn. 6; Chapman v. California,

supra, 386 U.S. at pp. 22-24; People v. Avila, supra, 35 Cal.App.4th at p. 665.)



       3. Sufficiency of the evidence

              a. standard of review

       We review the evidence in a light most favorable to the judgment. (Jackson v.

Virginia (1979) 443 U.S. 307, 319; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-

909; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Barnes (1986) 42 Cal.3d 284,

303.) Our sole function is to determine if any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra,

443 U.S. at p. 319; People v. Marshall, supra, 15 Cal.4th at p. 34.) The standard of

review is the same in cases where the prosecution relies on circumstantial evidence.




                                             17
(People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919,

932-933.)



              b. asportation related to the kidnappings in counts four and five

       Defendant argues that there was insufficient evidence that the following movement

was merely incidental to the robbery: the movement of Ms. Kershaw and Mr. Bostrom

285 feet from the jewelry counter to the cashier’s office; the movement of 113 feet from

the cashier’s office to the exit; and the movement of 45 feet from the exterior doors into

the parking area. As a result, defendant argues they do not support the kidnapping

convictions. We disagree.

       Section 209 provides in pertinent part: “(b)(1) Any person who kidnaps or carries

away any individual to commit robbery . . . shall be punished by imprisonment in the state

prison for life with possibility of parole. [¶] (2) This subdivision shall only apply if the

movement of the victim is beyond that merely incidental to the commission of, and

increases the risk of harm to the victim over and above that necessarily present in, the

intended underlying offense.” In People v. Rayford, supra, 9 Cal.4th at page 12, the

California Supreme Court held, “Kidnapping for robbery, or aggravated kidnapping,

requires movement of the victim that is not merely incidental to the commission of the

robbery, and which substantially increases the risk of harm over and above that

necessarily present in the crime of robbery itself.” (Ibid. [victim’s forcible movement 105

feet at night from parking lot of a closed store to the other side of a wall located on the



                                              18
edge of the lot supported finding of aggravated kidnapping]; see also People v. Bradley

(1993) 15 Cal.App.4th 1144, 1153-1154 [movement of the victim to a secluded dumpster

area from a public phone area was neither trivial nor inconsequential and provided the

necessary environment to commit the targeted crime without interruption]; People v.

Daniels, supra, 71 Cal.2d at p. 1139.)

       The Rayford court explained: “[W]hether the movement is merely incidental to the

[underlying] crime . . . the jury considers the ‘scope and nature’ of the movement.

[Citation.] This includes the actual distance a victim is moved. However, we have

observed that there is no minimum number of feet a defendant must move a victim in

order to satisfy the first prong.” (People v. Rayford, supra, 9 Cal.4th at p. 12; People v.

Daniels, supra, 71 Cal.2d at p. 1131, fn. 5; People v. Salazar, supra, 33 Cal.App.4th at

p. 346.) In this case, there is substantial evidence defendant’s movement of Ms. Kershaw

and Mr. Bostrom was not merely incidental to the robbery. They were moved substantial

distances for purposes above and beyond obtaining the money in the safe. Defendant

utilized the victims as virtual hostages to assure his safe passage through the store as well

as to insure his escape. Although the movement of the victims to the office where the

safe was located was an essential part of defendant’s plan to obtain the money, it was not

necessarily related to the robbery offense itself. (See People v. Salazar, supra, 33

Cal.App.4th at p. 347.) In fact, the robbery could have been completed any place within

the store. There was substantial evidence of substantial movement that was neither

trivial, nor slight, and not incidental to the robbery.



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              c. elements of robbery

       Defendant argues that the property was not taken from the immediate presence of

the victims. This he contends is because the property remained within their immediate

presence, thereby negating an essential element of robbery. We disagree. Robbery is

defined as follows, “Robbery is the felonious taking of personal property in the

possession of another, from his person or immediate presence, and against his will,

accomplished by means of force or fear.” (§ 211.) The California Supreme Court in

People v. Hayes (1990) 52 Cal.3d 577, 626-627 held: “The generally accepted definition

of immediate presence . . . is that ‘“[a] thing is in the [immediate] presence of a person, in

respect to robbery, which is so within his reach, inspection, observation or control, that he

could, if not overcome by violence or prevented by fear retain his possession of it.”’”

(Ibid. [victim is assaulted in a motel room 107 feet away from the office, where property

is stolen]; People v. Ramos (1982) 30 Cal.3d 553, 587-589 [victims placed in a walk-in

refrigerator while money is taken from cash registers]; People v. Douglas (1995) 36

Cal.App.4th 1681, 1691; People v. Prieto (1993) 15 Cal.App.4th 210, 214 [the taking of

victim’s purse while she was four or five feet away was from her immediate presence].)

In this case, the money taken from the safe was placed in a plastic bag. When taken, the

victims were standing nearby. The victims could not retake possession of the money

because of defendant’s threats. The element of immediate presence was sufficiently




                                             20
established by the evidence. (People v. Webster, supra, 54 Cal.3d at p. 440; People v.

Hayes, supra, 52 Cal.3d at pp. 626-627.)



               d. defendant’s weapon use

       Defendant argues there was insufficient evidence that he used a gun in the robbery

of the Smart and Final store within the meaning of section 12022.5. In People v.

Granado (1996) 49 Cal.App.4th 317, 326, our colleagues in the First District Court of

Appeal recently held: “Nothing in the language of section 12022.5(a) discloses a

legislative intent to limit its application to situations where the gun is pointed at the

victim or the defendant issues explicit threats of harm. ‘“Use” means, among other

things, “to carry out a purpose or action by means of,” to “make instrumental to an end or

process,” and to “apply to advantage.” [Citation.] The obvious legislative intent to deter

the use of firearms in the commission of the specified felonies requires that “uses” be

broadly construed.’” (Id. at p. 322, quoting People v. Chambers (1972) 7 Cal.3d 666,

672.) The Granado court determined, “[W]hen a defendant deliberately shows a gun, or

otherwise makes its presence known, and there is no evidence to suggest any purpose

other than intimidating the victim (or others) so as to successfully complete the

underlying offense, the jury is entitled to find a facilitative use . . . .” (People v.

Granado, supra, 49 Cal.App.4th at p. 325, italics added; see also People v. Lucas (1997)

55 Cal.App.4th 721, 745; People v. Escobar (1992) 11 Cal.App.4th 502, 505 [victim’s

awareness that the defendant had a gun inside a leather purse and had the present ability



                                               21
to commit a violent injury sufficiently established use of a firearm].) In People v. Jacobs

(1987) 193 Cal.App.3d 375, 381, the Court of Appeal held that in order to give the term

“use” a broad construction, the firearm need not be visually observed: “[A] firearm is

displayed when, by sensory perception, the victim is made aware of its presence. Once

displayed in such fashion, the threat of use sufficient to produce fear of harm becomes a

use of that firearm proscribed by Penal Code section[] 12022.5 . . . .” (See also People v.

Dominguez (1995) 38 Cal.App.4th 410, 421-422 [the threat to kill the victim coupled with

the sensation of a cold steel cylindrical object at the back of his neck and resultant fear of

harm was sufficient to support a jury finding of the use of a firearm].)

       Defendant stated that he had a gun and patted his right pocket of his jacket.

Defendant made this statement directly to Mr. Franco. Defendant instructed Mr. Franco

to go to the office and open the safe. When Mr. Franco hesitated, he was struck in the eye

with what felt like a hard object. Mr. Franco was hit with such force that he almost

blacked out. By the following day, Mr. Franco’s eye was swollen shut. Defendant and

Mr. Franco walked to the office. Mr. Franco attempted to open the safe. Defendant told

Mr. Franco to hurry. Defendant further threatened to kill Mr. Franco. This was

substantial evidence of firearm use. (See also People v. Alvarez (1996) 14 Cal.4th 155,

224-225 [use of a deadly weapon could be inferred from the nature and extent of the

victim’s injuries, which required 20 stitches, prevented her from opening her mouth and

blackened the left side of her face].)




                                              22
              e. age of defendant at time of prior robbery conviction

       Defendant argues that there was insufficient evidence that he was 16 years old at

the time of his juvenile adjudication for robbery. As a result, defendant argues that he

should not have been sentenced as a repeat offender pursuant to section 667. The

prosecution has the burden to prove beyond a reasonable doubt those alleged prior felony

convictions that defendant challenges. (In re Yurko (1974) 10 Cal.3d 857, 862; People v.

Jones (1995) 37 Cal.App.4th 1312, 1315.) As is the case in other claims of insufficient

evidence, the test is whether “‘“substantial evidence supports the [conclusion of the

(jury)], not whether the evidence proves guilt beyond a reasonable doubt.”’” (People v.

Jones, supra, 37 Cal.App.4th at p. 1315, quoting People v. Crittenden (1994) 9 Cal.4th

83, 139 and People v. Mincey (1992) 2 Cal.4th 408, 432.)

       Section 667, subdivision (d), provides in pertinent part: “Notwithstanding any

other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a

felony shall be defined as: [¶] . . . [¶] (3) A prior juvenile adjudication shall constitute

a prior felony conviction for purposes of sentence enhancement if: [¶] (A) The juvenile

was 16 years of age or older at the time he or she committed the prior offense. . . .” In

this case, defendant was born on March 14, 1969; a petition for robbery with use of a

firearm was filed on September 5, 1986; and defendant was committed to the California

Youth Authority on March 25, 1987, with credit for 52 days served. Defendant argues

that because neither the commitment nor the minute order from the disposition hearing

reflect what date the robbery actually occurred, there was insufficient proof that it did not


                                             23
occur prior to March 14, 1985. The trial court found: “[T]he petition date of 9/5/86 and

52 days in custody, evidence I have before me and a birth date of 3/14/69 so on -- 3/14/86

he would have been seventeen, is that right? [¶] . . . [¶] And the petition date is 9/5/86.

I don’t have any problem finding him over sixteen years of age at the time. [¶] I mean,

there is no evidence to the contrary and that’s all the evidence that I have. So I find only

one reasonable interpretation not two.” Substantial evidence supported the trial court’s

conclusions.



       4. Sentencing

       Defendant was sentenced to: the high term of 3 years doubled [6 years, § 667,

subd. (e)(1)] for the attempted robbery [count one] plus 10 years consecutive [§ 12022.5,

subd. (a)(1)]; the high term of 5 years doubled [10 years, § 667, subd. (e)(1)] for the

second degree robbery [count two] plus 10 years consecutive [§ 12022.5, subd. (a)(1)];

the high term of 5 years doubled [10 years, § 667, subd. (e)(1)] for the second degree

robbery [count three] plus 10 years consecutive [§ 12022.5, subd. (a)(1)]; 10 years

[§ 12022.5, subd. (a) (1)] as a determinate term plus a consecutive indeterminate term of

life with the possibility of parole doubled [§ 667, subd. (e)(1)] for the kidnapping for

robbery [count four]; 10 years [§ 12022.5, subd. (a) (1)] as a determinate term plus a

consecutive indeterminate term of life with the possibility of parole doubled [§ 667, subd.

(e)(1)] for the kidnapping for robbery [count five]; the high term of 3 years doubled [6

years, § 667, subd. (e)(1)] for the possession of a firearm by a felon; and 1 year [§ 667.5,



                                             24
subd. (b)]. The total determinate term imposed was 37 years. The trial court also

ordered: the terms imposed as to counts two, three, and six [§ 654] be stayed; the

Department of Corrections should determine the minimum amount of time defendant is to

serve before parole consideration; and counts one, four, and five shall run consecutive to

one another.



               a. doubling of terms

       Following our request for further briefing regarding the effect of the California
Supreme Court’s recent decision in People v. Nguyen (1999) 21 Cal.4th 197, defendant
argues2 and the Attorney General concedes that the trial court improperly doubled the full
term on the consecutive determinate sentences imposed in counts two and three. We
agree. The Nguyen court looked to the legislative intent in the enactment of sections 667,
subdivision (e)(1), and 1170.12, subdivision (c)(1). The court determined that in the case
of a defendant who has one prior serious felony conviction, the following must occur,
“[T]he sentencing court must designate principal and subordinate terms as one-third of
the middle term (except when full-term consecutive sentences are otherwise permitted or
required), and then double each of the resulting terms.” (Id. at p. ___.) In this case, the
trial court should have doubled one third the mid-term of three years (two years) in count
two and three. As to count two, one-third of the three year middle term for second degree
robbery is one year. It is doubled pursuant to sections 667, subdivision (e)(1) and
1170.12, subdivision (c)(1) for a total of two years. The same is true as to count three.
The judgment is so modified and the sentences as to counts two and three are ordered




2      Defendant also argues that the consecutive enhancements may not be doubled. As
will be discussed further below, we disagree.

                                             25
remanded stayed pursuant to section 654. The clerk of the superior court is directed to
prepare an abstract of judgment which reflects the duration of the determinate terms.


              b. full consecutive sentences for weapon use enhancements

       Defendant argues that the trial court improperly imposed full, consecutive 10-year

enhancements for the use of a firearm in counts four and five. Defendant argues that

counts four and five, section 12022.5 enhancements, were determinate terms. As a result,

he argues they were subject to the provisions of section 1170.1, subdivision (a), which

limits the enhancement of determinate consecutive terms to one-third of the middle term.

Section 1170.1, subdivision (a), provides in pertinent part: “[W]hen any person is

convicted of two or more felonies . . . and a consecutive term of imprisonment is imposed

under Sections 669 and 1170, the aggregate term of imprisonment for all these

convictions shall be the sum of the principal term, the subordinate term, and any

additional term imposed for applicable enhancements for prior convictions, prior prison

terms, and Section 12022.1. The principal term shall consist of the greatest term of

imprisonment imposed by the court for any of the crimes, including any term imposed [by

the court] for applicable specific enhancements. . . . The subordinate term for each

consecutive offense which is a ‘violent felony’. . . shall consist of one-third of the middle

term of imprisonment prescribed for each other felony conviction for an offense that is a

violent felony for which a consecutive term of imprisonment is imposed, and shall

include one-third of the term imposed for any specific enhancements applicable to those




                                             26
subordinate offenses.” Section 1170.11 includes enhancements pursuant to section

12022.5 as a “specific enhancement” as used in section 1170.1.

       We agree with the Attorney General that because kidnapping for robbery is subject

to an indeterminate term imposed under section 1168, the limitations of section 1170.1,

subdivision (a), do not apply to section 12022.5 enhancements imposed under section

669. (People v. Miles (1996) 43 Cal.App.4th 364, 368-370; People v. Jackson (1993) 14

Cal.App.4th 1818, 1832.) As a result, the full 10-year enhancements were properly

imposed as consecutive to the indeterminate terms for both kidnapping for robbery

counts.



              c. doubled life terms

       Defendant also argues that the trial court should not have imposed double life

terms for the two kidnapping for robbery counts. We disagree. Section 667, subdivision

(e)(1) provides: “If a defendant has one prior felony conviction that has been pled and

proved, the determinate term or minimum term for an indeterminate term shall be twice

the term otherwise provided as punishment for the current felony conviction.” The

minimum term for an indeterminate life sentence is seven years. (§ 3046.) The

California Supreme Court recently looked to the statutory construction of these two

sections and determined that a defendant with one prior serious felony conviction who is

subsequently sentenced to an indeterminate term of life with the possibility of parole

should be sentenced to twice the minimum term of his indeterminate sentence. (People v.



                                            27
Jefferson (1999) 21 Cal.4th 86, ___.) In this case, defendant’s minimum parole eligibility

date is 14 years for each of his two consecutive life sentences. (Id. at p. ___; see also

People v. McKee (1995) 36 Cal.App.4th 540, 546-548, overruled on another point in

People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10; People v. Martin (1995) 32

Cal.App.4th 656, 665-666, overruled on another point in People v. Deloza, supra, 18

Cal.4th at p. 600, fn. 10.)



              d. penalty assessments and fines imposed

       Defendant was ordered to pay a direct restitution fine to one of the victims in the

amount of $800 pursuant to section 1202.4, subdivision (f). It is presumed that the trial

court intended to impose the direct restitution pursuant to section 1202.4, subdivision (f),

rather than section 1203.04, as the minute order of August 26, 1998, and abstract of

judgment reflect. The trial court did not make reference to a Penal Code section at the

time the direct restitution was imposed. An abstract of judgment may be corrected to

reflect the intent of the trial court. (See In re Candelario (1970) 3 Cal.3d 702, 705 [“The

distinction between clerical error and judicial error is ‘whether the error was made in

rendering the judgment, or in recording the judgment rendered.’”]; People v. Trotter

(1992) 7 Cal.App.4th 363, 370 [abstract of judgment may be corrected where the revision

affects only the jury’s recordation of its verdict, not the actual verdict rendered]; see also

People v. Williams (1980) 103 Cal.App.3d 507, 517[“[A] discrepancy between the

judgment as orally pronounced and as entered in the minutes is presumably the result of



                                              28
clerical error.”]; In re Daoud (1976) 16 Cal.3d 879, 882, fn. 1 [trial court could properly

correct a clerical error in a minute order nunc pro tunc to conform to the oral order of that

date if there was a discrepancy between the two]; § 1207.) Also we agree with the

Attorney General that the abstract of judgment must be amended to reflect the $4,200 fine

imposed pursuant to section 1202.45. (People v. Martinez (1998) 65 Cal.App.4th 1511,

1523; People v. Hong (1998) 64 Cal.App.4th 1071, 1075-1084; People v. Sanchez (1998)

64 Cal.App.4th 1329, 1331-1332.)



                             IV. PUBLISHED DISCUSSION


           [The following portion of the opinion that follows is to be published.
                    See post, at page 41 where publication is to cease.]

       The trial court imposed an order that defendant make direct restitution to a victim

in the sum of $800. The Attorney General argues the $800 direct victim restitution order

is subject to the section 1464, subdivision (a) and Government Code section 76000,

subdivision (a) penalty assessments. Section 1464, subdivision (a) provides in relevant

part, “[T]here shall be levied a state penalty, in an amount equal to ten dollars ($10) for

every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed

and collected by the courts for criminal offenses. . . .” Similarly, Government Code

section 76000, subdivision (a) provides in part, “In each county there shall be levied an

additional penalty of seven dollars ($7) for every ten dollars ($10) or fraction thereof

which shall be collected together with and in the same manner as the amounts established



                                             29
by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and

collected by the courts for criminal offenses . . . .” The Attorney General argues that the

failure to impose the section 1464, subdivision (a) and Government Code section 76000,

subdivision (a) penalty assessments was jurisdictional error. (People v. Martinez, supra,

65 Cal.App.4th at pp. 1515, 1519; People v. Hong, supra, 64 Cal.App.4th at p. 1084.)

The Attorney General points to our decision in People v. Martinez, supra, 65 Cal.App.4th

at pages 1520-1522, where we held section 1464, subdivision (a) and Government Code

section 76000, subdivision (a) penalty assessments must be added to the laboratory

analysis fee imposed in compliance with Health and Safety Code section 11372.5,

subdivision (a) in the case of enumerated drug offenses.3 In a similar vein, the Attorney

General argues that direct victim restitution is punishment and thereby falls within the

meaning of the term “penalty” as used in section 1464, subdivision (a) and Government

Code section 76000, subdivision (a). (E.g., People v. Walker, supra, 54 Cal.3d at p. 1024

[a restitution fine is a “punishment” for purpose of plea negotiations]; People v. Zito

(1992) 8 Cal.App.4th 736, 741 [for purposes of ex post facto analysis, direct victim

restitution is “‘punishment’”].) In terms of whether section 1464, subdivision (a) and



3       Health and Safety Code section 11372.5, subdivision (a) states: “Every person
who is convicted of a violation of Section 11350, 11351, 11351.5, 11352, 11355, 11358,
11359, 11361, 11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5,
11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or subdivision (a) or (c)
of Section 11357, or subdivision (a) of Section 11360 of this code, or Section 4230 of the
Business and Professions Code shall pay a criminal laboratory analysis fee in the amount
of fifty dollars ($50) for each separate offense. The court shall increase the total fine
necessary to include this increment.”

                                             30
Government Code section 76000, subdivision (a) penalty assessments must be imposed

on direct victim restitution, we, with respect, disagree with the position articulated by the

Attorney General.

       This is an issue of statutory interpretation. We apply the following standard of

statutory review described by the California Supreme Court: “When interpreting a statute

our primary task is to determine the Legislature’s intent. [Citation.] In doing so we turn

first to the statutory language, since the words the Legislature chose are the best

indicators of its intent.” (Freedom Newspapers, Inc. v. Orange County Employees

Retirement System (1993) 6 Cal.4th 821, 826; People v. Jones (1993) 5 Cal.4th 1142,

1146.) The Supreme Court has emphasized that the words in a statute selected by the

Legislature must be given a “common sense” meaning when it noted: “‘Our first step [in

determining the Legislature’s intent] is to scrutinize the actual words of the statute, giving

them a plain and commonsense meaning. (Mercer v. Department of Motor Vehicles

(1991) 53 Cal.3d 753, 763 []; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [].)’

(People v. Valladoli (1996) 13 Cal.4th 590, 597 [].)” (California Teachers Assn. v.

Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633.) Further, our

Supreme Court has noted: “‘If the language is clear and unambiguous there is no need for

construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the

case of a statute) . . . .’” (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.)

However, the literal meaning of a statute must be in accord with its purpose as the

Supreme Court noted in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644,



                                               31
658-659 as follows: “We are not prohibited ‘from determining whether the literal

meaning of a statute comports with its purpose or whether such a construction of one

provision is consistent with other provisions of the statute. The meaning of a statute may

not be determined from a single word or sentence; the words must be construed in

context, and provisions relating to the same subject matter must be harmonized to the

extent possible. [Citation.] Literal construction should not prevail if it is contrary to the

legislative intent apparent in the [statute] . . . .’” In Lungren v. Deukmejian (1988) 45

Cal.3d 727, 735, our Supreme Court added: “The intent prevails over the letter, and the

letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An

interpretation that renders related provisions nugatory must be avoided [citation]; each

sentence must be read not in isolation but in light of the statutory scheme [citation] . . . .”

The Supreme Court has held: “‘The courts must give statutes a reasonable construction

which conforms to the apparent purpose and intention of the lawmakers.’ (Clean Air

Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 813 [].)”

(Webster v. Superior Court (1988) 46 Cal.3d 338, 344.) Further, the Supreme Court has

held: “We have recognized that a wide variety of factors may illuminate the legislative

design, ‘“such as context, the object in view, the evils to be remedied, the history of the

time and of legislation upon the same subject, public policy and contemporaneous

construction.”’ (In re Marriage of Bouquet [(1976)] 16 Cal.3d 583, 587 [] quoting Alford

v. Pierno (1972) 27 Cal.App.3d 682, 688 [].)” (Walters v. Weed (1988) 45 Cal.3d 1, 10.)




                                              32
       As mandated by the Supreme Court, we look first to the statutory language to

determine if the Legislature intended to require trial judges to impose the section 1464,

subdivision (a) and Government Code section 76000, subdivision (a) penalty assessments

on direct victim restitution. As noted previously, the statutory language indicates a

penalty assessment is to be imposed on “every fine, penalty, or forfeiture imposed and

collected by the courts for criminal offenses . . . .” (§ 1464, subd. (a); Gov. Code,

§ 76000, subd. (a); italics added.) The Legislature has explicitly required the section

1464, subdivision (a) and Government Code section 76000, subdivision (a) assessments

be imposed when the penalty is “collected by the courts for criminal offenses.” No

statute directly authorizes a court in a case where the defendant has been sentenced to

prison, to collect direct victim restitution. Section 1202.4, subdivisions (f) and (g) require

the trial court to enter a direct restitution order. They do not require the court to collect

the restitution. The Attorney General argues that two provisions of law warrant the legal

conclusion that courts in effect “collect” direct restitution within the provisions of

Government Code section 76000, subdivision (a) and section 1464, subdivision (a). The

Attorney General admits that the actual collection of the direct restitution is performed by

the Department of Corrections pursuant to section 2085.5, subdivision (b) where the

defendant, in a case such as this, is sentenced to prison. A claim is filed by the victim

with the Board of Control which provides: “(b) In any case in which a prisoner owes a

restitution order imposed pursuant to subdivision (c) of Section 13967 of the Government

Code, as operative prior to September 28, 1994, or subdivision (f) of Section 1202.4, the



                                              33
Director of Corrections 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. If the restitution is owed

to a person who has filed an application with the Victims of Crime Program, the director

shall transfer that amount to the State Board of Control 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. No deductions shall be made on behalf of victims

who have not filed an application with the Victims of Crime 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.” The Attorney General

also cites to a second provision of law concerning direct victim restitution, section

1202.4, subdivision (i) which states, “A restitution order imposed pursuant to subdivision

(f) shall be enforceable as if the order were a civil judgment.” Based on these two

provisions of law, the Attorney General argues that the direct victim restitution is

therefore “collected by the court” within the meaning of section 1464, subdivision (a) and

Government Code section 76000, subdivision (a). We do not agree. In a case such as this

where the accused is sentenced to the penitentiary for two consecutive life terms plus 37

years, the actual deduction from prison wages and trust account deposits will be made by

the Department of Corrections if the victim filed a claim with the Board of Control. We

cannot equate issuance of writs execution and related creditor’s remedies or being

notified of a collection by the Department of Corrections with being the equivalent of a



                                             34
penalty or fine “imposed and collected by the courts for criminal offenses.” (Gov. Code,

§ 76000, subd. (a); § 1464, subd. (a).) However, the problems with forcing the language

in sections 1202.4, subdivision (i) and 2085.5, subdivision (b) into the context of actual

collection of direct victim restitution does not end the matter.

       There is no evidence in legislative committee reports that the Legislature intended

that the section 1464, subdivision (a) and Government Code section 76000, subdivision

(a) penalty assessments be added to direct victim restitution. In the case of direct victim

restitution where the defendant was sentenced to prison, that right did not accrue

statutorily until 1986. The legislative history of the development of the 1986 law which

for the first time mandated direct victim restitution in the case of a defendant sentenced to

prison was described by the California Supreme Court in People v. Broussard (1993) 5

Cal.4th 1067, 1074 as follows: “Senator Gary Hart in 1986 proposed to add a new

statute, Penal Code section 1202b, that would require trial courts to order restitution ‘to

the victim’ (if the crime had a victim) in ‘any case where a person is convicted of a crime

and probation is denied.’ (Sen. Bill No. 2404 (1985-1986 Reg. Sess.); hereafter SB

2404).) [] [¶] After the Senate’s adoption of SB 2404, the bill moved to the Assembly.

There it was changed to provide for an amendment to section 13967 of the Government

Code, rather than an addition of a new statute to the Penal Code, as originally

contemplated. The proposed amendment to Government Code section 13967 retained

those portions of the statute authorizing the imposition of a fine and penalty assessment.

(See pp. 1072-1073, ante.) It added, however, subdivision (c), stating that when ‘a victim



                                             35
has suffered economic loss as a result of the defendant’s criminal conduct, and the

defendant is denied probation, . . . the court shall order restitution to be paid to the

victim.’ (Italics added.) [¶] The Legislative Counsel’s Digest explained SB 2404’s

purpose as follows: ‘Existing law provides that in every case in which a person is

convicted of a crime and is granted probation the court is required to order as a condition

of probation that he or she make restitution to the victim, if the crime involved a victim,

or to the Restitution Fund, if the crime did not involve a victim. Existing law also

provides that in any case in which a defendant is convicted of a felony the court is

required to order the defendant to pay a restitution fine, which is deposited into the

Restitution Fund, as specified. [¶] This bill would provide that in cases in which a victim

has suffered economic loss as a result of the defendant’s criminal conduct, and the

defendant is denied probation, in lieu of imposing all or a portion of the restitution fine,

the court is required to order restitution to be paid to the victim, as specified.’ (Legis.

Counsel’s Dig., Sen. Bill No. 2404, 4 Stats. 1986 (Reg. Sess.) Summary Dig., p. 557,

italics added.) [¶] On September 30, 1986, SB 2404, as amended, was signed into law.

(Stats. 1986, ch. 1438, pp. 5140-5141.)” (Original italics.)

       We have reviewed each of the legislative committee reports prepared in

connection with the 1986 adoption of Senate Bill No. 2404 described by our Supreme

Court in Broussard. None of those reports reflect any legislative intention that direct

victim restitution in a case where the accused is sentenced to prison be the subject of

section 1464, subdivision (a) and Government Code section 76000, subdivision (a)



                                              36
penalty assessments. (E.g., Sen. Com. on Judiciary, Rep. on Sen. Bill No. 2404 (1985-

1986 Reg. Sess.) as amended April 1, 1986; Legislative Analyst, Analysis of Sen. Bill

No. 2404 (1985-1986 Reg. Sess.) May 1, 1986; Sen. Rules Com., Office of Sen. Floor

Analyses, third reading (Sen. Bill No. 2404) May 6, 1986; Assem. Com. on Public Safety,

Rep. on Sen. Bill No. 2404 (1985-1986 Reg. Sess.) Further, the April 30, 1986,

Department of Finance “Fiscal Analysis” of Senate Bill No. 2404 provided to both the

Senate and Assembly prior to its passage did not indicate there would be any additional

revenues provided to local government because the section 1464, subdivision (a) and

Government Code section 76000, subdivision (a) penalty assessments would be available

as a funding source when direct victim restitution was imposed when the defendant was

sentenced to prison. In fact, April 30, 1986, the Department of Finance reported to the

Legislature that there would be “No Fiscal Impact” through July 1, 1988. (Analysis by

Dept. of Finance of Sen. Bill No. 2402 (1985-1986 Reg. Sess.) April 30, 1986.) The

absence of any indication in any committee reports that direct victim restitution when the

defendant is sentenced to prison would result in section 1464, subdivision (a) and

Government Code section 76000, subdivision (a) penalty assessments is persuasive

evidence of the Legislature’s intentions in this regard. Apart from the suggestion that the

use of the word “penalty” in section 1464, subdivision (a) and Government Code section

76000, subdivision (a) evidenced an intent to require penalty assessments; the Attorney

General has presented no documentary evidence of a legislative intention that penalty

assessments are applicable in a case of direct victim restitution where the defendant is



                                            37
sentenced to prison. (People v. Eubanks (1996) 14 Cal.4th 580, 591, fn. 3 [judicial notice

taken of legislative history related to statute in question]; People v. Cruz (1996) 13

Cal.4th 764, 773-774, fn. 5 [legislative committee reports utilized to interpret statute].)

Given the statutory language at issue as well as the pertinent legislative history, a forced

reading of Government Code section 76000, subdivision (a) and section 1464,

subdivision (a) so as to apply them to this case would contravene our duty to read civil

and criminal statues in a “common sense” fashion. (California Teachers Assn. v.

Governing Bd. of Rialto Unified Dist., supra, 14 Cal.4th at p. 633; Lungren v.

Deukmejian, supra, 45 Cal.3d at p. 735.)

       One final note is in order concerning our prior decision in People v. Martinez,

supra, 65 Cal.App.4th at page 1520, where we held that the Health and Safety Code

section 11372.5, subdivision (a) drug laboratory fee which is statutorily defined as an

increment of a fine was subject to section 1464, subdivision (a) and Government Code

section 76000, subdivision (a) penalty assessments. The Attorney General relies on

Martinez to support the argument the penalty assessments must be imposed on the direct

victim restitution order in this case. However, the Health and Safety Code section

11372.5, subdivision (a) assessment is payable to the court. (Health & Saf. Code,

§§ 11372.5, subd. (b); 11502.4) No such statutory enactment requiring payment to the



4      Health and Safety Code section 11372.5, subdivision (b) states In pertinent part:
“The county treasurer shall maintain a criminalistics laboratories fund. The sum of fifty
dollars ($50) shall be deposited into the fund for every conviction under Section 11350,
11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 11375,

                                              38
court in a case where the defendant is sentenced to prison applies to direct victim

restitution. Our prior decision in Martinez involving a Health and Safety Code section

11372.5, subdivision (a) laboratory fee is not controlling authority in the present case. In

failing to impose the section 1464, subdivision (a) and Government Code section 76000,

subdivision (a) penalty assessments on the direct victim restitution, the trial court did not

commit any jurisdictional error.




11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11382, 11383, 11390,
11391, or 11550, subdivision (a) or (c) of Section 11357, or subdivision (a) of Section
11360 of this code, or Section 4230 of the Business and Professions Code, in addition to
fines, forfeitures, and other moneys which are transmitted by the courts to the county
treasurer pursuant to Section 11502. The deposits shall be made prior to any transfer
pursuant to Section 11502.” Health and Safety Code section 11502 states: “All moneys,
forfeited bail, or fines received by any court under this division shall as soon as
practicable after the receipt thereof be deposited with the county treasurer of the county in
which such court is situated. Amounts so deposited shall be paid at least once a month as
follows: 75 percent to the State Treasurer by warrant of the county auditor drawn upon
the requisition of the clerk or judge of said court to be deposited in the State Treasury on
order of the State Controller; and 25 percent to the city treasurer of the city, if the offense
occurred in a city, otherwise to the treasurer of the county in which the prosecution is
conducted. [¶] Any money deposited in the State Treasury under the provisions of this
section which is determined by the State Controller to have been erroneously deposited
therein shall be refunded by him, subject to approval of the State Board of Control prior
to the payment of such refund, out of any money in the State Treasury which is available
by law for such purpose.”

                                              39
                  [The heading for part V is to be deleted from publication.]

                                         V. DISPOSITION

                       [The balance of the opinion is to be published.]

       The judgment is modified as follows. Defendant is sentenced to two consecutive

life sentences for the kidnapping for robbery counts. The minimum parole eligibility date

of each life sentence is 14 years each, consecutively. The determinate sentences for

counts two and three are reduced to two years each without reference to the enhancements

on those charges which are to remain as previously imposed. The abstract of judgment is

modified to reflect: the minimum parole eligibility information for each life sentence; the

corrected sentences of two years each on counts two and three which remain stayed

pursuant to Penal Code section 654, subdivision (a); direct restitution to the victim was

ordered pursuant to Penal Code section 1202.4, subdivision (f); and to include the fine

imposed pursuant to Penal Code section 1202.45. Upon issuance of the remittitur, the

clerk of the superior court is directed to forward a copy of the amended abstract of

judgment to the California Department of Corrections. The judgment is affirmed in all

other respects.

                             CERTIFIED FOR PARTIAL PUBLICATION


                             TURNER, P.J.


We concur:



                                              40
ARMSTRONG, J.




GODOY PEREZ, J.




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