Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court No. SWF027701 of Riverside County. F. Paul Dickerson III, Judge. Affirmed with directions.
Vicki Marolt Buchanan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
J.King
I. INTRODUCTION
A jury found defendant Charles Douglas Smith guilty as charged of two crimes: (1) making criminal threats, a felony (Pen. Code, § 422; count 1) and (2) battery against a cohabitant, a misdemeanor (§ 243, subd. (e)(1); count 2). Defendant was sentenced to three years in prison, and appeals.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant first claims there is insufficient evidence to support his criminal threats conviction because there is no evidence that the victim, Priscilla Poor, was in sustained fear for her safety, a requisite element of the crime. (§ 422.) We conclude that, based on the evidence, the jury could have reasonably determined that Poor was in sustained fear for her safety.
Second, defendant claims the prosecutor committed prejudicial misconduct during closing remarks to the jury by arguing facts not in evidence. We conclude the prosecutor’s statements were either fair comments on the evidence or only slightly misstated the evidence, and in all events it is not reasonably probable that any of the prosecutor’s statements misled the jury.
Though defense counsel did not object to any of the prosecutor’s closing remarks, defendant argues he has not forfeited this claim because his counsel’s objections would have been futile. In the alternative, he argues his counsel rendered ineffective assistance in failing to object to the prosecutor’s misstatements. In view of our conclusion that the prosecutor did not commit prejudicial misconduct in any of his closing statements, we do not reach these claims.
Third, defendant claims the sentencing court erroneously ordered him to pay $600 in victim restitution (§ 1202.4, subd. (f)) though there was no evidence Poor suffered any economic losses. The People argue the matter must be remanded for clarification because it appears the court erroneously imposed two $600 restitution fines pursuant to section 1202.4, subdivision (b). We find no need to remand the matter for clarification. It is clear the court did not impose two $600 restitution fines (§ 1202.4, subd. (b)); instead, it imposed a $600 restitution order (§ 1202.4, subd. (f)), in addition to a $300 restitution fine (§ 1202.4, subd. (b)) and a $300 parole revocation fine (§ 1202.45). And, as defendant points out, there was no evidence Poor suffered $600 in economic losses or any other losses as a result of defendant’s criminal conduct. (§ 1202.4, subd. (f).) We therefore strike the $600 restitution order.
Finally, defendant argues, and the People agree, that the court erred in imposing a $10 fine pursuant to section 1202.5. We agree the $10 fine must be stricken because section 1202.5 does not authorize the imposition of any fine for a defendant convicted of violating section 422 or 243, subdivision (e), as defendant was here. We therefore strike the $10 fine and the $600 restitution order, and in all other respects we affirm the judgment.
II. STATEMENT OF FACTS
Defendant and Priscilla Poor began dating in October 2008. Poor moved into defendant’s house in October, but decided to leave toward the end of the month after their relationship turned violent.
On October 23, Poor got into a disagreement with one of defendant’s friends. Defendant pushed Poor to the ground and punched her, giving her a bloody nose; he told her not to embarrass him again. Poor did not report the incident to the police because, she explained, defendant’s friends were “bad people” and she thought defendant would turn them against her.
On the morning of October 25, Poor got up while defendant was still asleep, grabbed her belongings, and left the house. Defendant emerged from the house and began shouting at Poor as she was walking down the street. Poor then walked around a corner and began shouting back at defendant as she approached an American Legion building.
J.W. Morris, an American Legion member, arrived in the parking lot of the American Legion building as Poor was nearby. Morris heard Poor saying something and asked her, “Are you speaking to me?” Poor replied, “No... I’m talking to this son of a bitch over there[.]” Morris could tell Poor had been crying. He then turned to see defendant standing 60 to 70 feet away and shouting threats at Poor.
Defendant had a large rock in his hand, moved to within 15 to 25 feet of Poor, and said to her, “I’m going to smash your God damn head in... and anybody else’s that interferes.” Morris then told Kathryn Tuthill, a volunteer bartender at the American Legion, to call 911 because “there was a guy out here threatening to kill a lady.” Tuthill later told police that the rock in defendant’s hands was the size of two men’s fists, and that she heard defendant say to Poor that he was “going to fuckin’ kill her.”
Tuthill called 911, described the situation, and during the call saw defendant and Poor walk away in separate directions. Poor walked around to the front of the American Legion building. Tuthill opened the front door of the building and asked Poor to come inside, but Poor did not respond. Tuthill could hear Poor crying. Poor then walked to a bus bench across the street and sat down. At that point, defendant was still in front of the American Legion building, pacing back and forth.
Deputy Seth Kuoha responded to the 911 call and observed Poor “sitting on the bus bench, kind of distraught, [and] appearing to be crying.” While Poor was talking to the deputy, defendant approached Poor and shouted, “You’re not going to snitch off anyone in this town[.]” According to Poor, this comment stemmed from an argument she and defendant had around a week earlier when Poor told defendant she planned to go to the police to report “who was selling drugs in the neighborhood.” After defendant made the comment, Deputy Kuoha detained him, placed him in the back of the patrol car, and returned to talk with Poor.
Poor told Deputy Kuoha that defendant had just threatened to kill her and punched her in the nose two days earlier. The deputy noticed that Poor's nose was swollen and she complained of pain from the injury, but he did not take any photographs of the injury because his attention was focused on defendant’s alleged threats to Poor.
Poor testified she was afraid during the October 25 incident. She said, “a couple [of] days earlier, [defendant] had pushed [her] on the ground and gave [her] a bloody nose and hit [her]. So, yes, I was afraid.” She also feared he might use the rock he had in his hands.
Poor thought Deputy Kuoha arrived five minutes after she left defendant’s house. According to Tuthill, the argument between defendant and Poor went on for seven to eight minutes.
III. DISCUSSION
A. Substantial Evidence Shows Poor Was in Sustained Fear for Her Safety
Defendant contends there is insufficient evidence to support a finding of sustained fear under section 422, criminal threats, because Poor’s fear was nothing more than “momentary, fleeting or transitory.” We disagree.
1. Standard of Review
“The standard for appellate review of the sufficiency of the evidence to support a criminal conviction is well established. ‘Claims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard. Under that standard, “‘an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt.’” [Citations.]’” (People v. Fierro (2010) 180 Cal.App.4th 1342, 1347 (Fierro).)
We “‘presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment’” in order to test “‘whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.) “‘“‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’” [Citations.]’” (Fierro, supra, 180 Cal.App.4th at p. 1347.)
2. Analysis
The crime of criminal threats consists of five elements. (People v. Toledo (2001) 26 Cal.4th 221, 227.) These are: “(1) The defendant willfully threatened to commit a crime that will result in death or great bodily injury to another person. (2) The defendant had the specific intent that the statement be taken as a threat. (3) The threat was on its face and under the circumstances ‘“so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat.”’ (4) The threat caused the victim ‘“to be in sustained fear for his or her own safety or for his or her immediate family’s safety.”’ (5) The victim’s fear was reasonable under the circumstances. [Citations.]” (People v. Jackson (2009) 178 Cal.App.4th 590, 596, italics added; People v. Toledo, supra, at pp. 227-228; see § 422.)
Section 422 reads, in relevant part: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
Defendant challenges the sufficiency of the evidence supporting the fourth element-whether his threat caused Poor to be in sustained fear for her safety. Sustained fear has been defined as fear for “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen).) “Sustained fear” refers to the victim’s state of mind (ibid.), and fear “describes the emotion the victim experiences” (Fierro, supra, 180 Cal.App.4th at p. 1349). “The victim’s knowledge of defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear. [Citation.]” (Allen, supra, at p. 1156.) Further, the sustained fear element “has [both] a subjective and an objective component. [The] victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140 (Ricky T.).)
The court in Allen concluded that “[fifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, [was] more than sufficient to constitute ‘sustained’ fear for purposes of this element of section 422.” (Allen, supra, 33 Cal.App.4th at p. 1156, fn. omitted.) Similarly, in Fierro, the court concluded the victim was in sustained fear for “up to one minute” while the “appellant was close to [the victim’s] car, displaying [a] weapon, making pejorative statements about [the victim] and his son, and saying words to the effect that he could and would kill them.” (Fierro, supra, 180 Cal.App.4th at p. 1348.)
And, in People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 and 1341, the court concluded there was sufficient evidence of sustained fear based on the defendant’s threat to the victim and the surrounding circumstances. The defendant, a gang member, threatened the victim that he was going to “‘talk to some guys’” in his gang about how the victim had “‘fucked up [his] brother’s testimony’” by testifying against the brother, a fellow gang member, at the brother’s preliminary hearing. (Id. at pp. 1337, 1341.) Less than 30 minutes after the defendant made the threat, two other gang members parked in front of the victim’s house and honked their horn to get her attention. (Id. at pp. 1338, 1341.) The court reasoned that, though the defendant’s “words alone” did not “articulate a threat to commit a specific crime, ” based on the defendant’s and the victim’s “history and their mutual involvement” in the gang, the victim knew the defendant’s words meant “‘they were going to kill [her]’” in retaliation for her damaging testimony against the defendant’s brother. (Id. at pp. 1340-1341.)
Defendant emphasizes several facts in support of his claim there is insufficient evidence that Poor was in sustained fear for her safety as a result of defendant’s threats to kill her or “smash her head in” on October 25. These are: (1) Poor was crying before defendant verbally threatened her or picked up the rock; (2) after defendant threatened Poor, defendant and Poor engaged in a shouting match; (3) Poor chose not to take refuge in the American Legion building, but instead walked to the bench across the street where she could still see defendant pacing; and (4) according to Poor, the entire incident lasted only five minutes. None of these facts compel the conclusion that Poor was not in sustained fear for her safety, however.
Rather, substantial evidence shows that Poor was actually and reasonably in sustained fear for her safety. Two days before defendant threatened to kill Poor, he punched her in the nose, causing her nose to bleed and swell. Poor then decided to end her relationship with defendant and move out of his house. As Poor left the house, defendant ran out and began shouting at her. Defendant then followed Poor down the street and threatened her with a large rock, telling her he was going to “smash her head in” with it. He also threatened to kill her. Poor was distraught and crying when Officer Kuoha arrived on the scene, and Poor testified she was in fear because defendant punched her two days earlier and she believed he would carry out his threats.
Defendant relies on Ricky T., supra, 87 Cal.App.4th 1132 to support his claim that Poor’s fear was only fleeting or transitory, rather than sustained. There, Ricky, a 16-year-old student, returned from the restroom to find his classroom door locked. He pounded on the door and when the teacher opened it, the door swung outward and hit him in the head. Angry and embarrassed, Ricky cursed the teacher saying, “‘I’m going to get you, ’” or “‘I’m going to kick your ass.’” (Id. at pp. 1135-1136.) The teacher ordered Ricky to the school office and he complied. The next day, the teacher contacted the police and said he felt “threatened” by Ricky’s comment, though Ricky did not make a specific threat to the teacher or “further the act of aggression.” (Id. at p. 1135.) The court concluded there was no indication the teacher’s fear “was more than fleeting or transitory” and the teacher was therefore not in “sustained fear.” (Id. at p. 1140.) The court based its conclusion on the context in which the threat was made and the other surrounding circumstances, including the lack of any prior history of disagreements between the teacher and Ricky. (Id. at pp. 1137-1139.)
Defendant argues that Poor’s fear, like the teacher’s fear in Ricky T., was not felt “‘beyond the time of [defendant]’s angry utterances.’” Not so. The evidence showed that Poor was still distraught and crying after defendant was detained and as she was telling Deputy Kuoha what had happened. Further, the facts of the present case are readily distinguishable from Ricky T. The student’s threat in Ricky T. was both vague and happened only once; the student threatened to “get” his teacher or “kick his ass” after the classroom door hit the student in the head. By contrast, defendant threatened Poor with serious physical harm more than once; he was screaming at her that he was going to kill her and he threatened to “smash her head in” with a large rock. Moreover, there was no history of violence or disagreements between the teacher and student in Ricky T., whereas here defendant had previously threatened Poor and had punched and bloodied her nose.
Defendant further argues that Poor could not have been in sustained fear because, according to the testimony of Poor and Tuthill, the interaction between defendant and Poor lasted only five to eight minutes. A similar argument was rejected in Fierro.There the court concluded that a minute-long interaction between the defendant and the victim at a gas station-where the defendant displayed a gun and threatened to kill the victim and his son-was sufficient to reasonably place the victim in sustained fear. (Fierro, supra, 180 Cal.App.4th at p. 1349.) The court explained: “When one believes he is about to die, a minute is longer than ‘momentary, fleeting, or transitory.’” (Ibid.) Thus, even if, as defendant argues, Poor was only in sustained fear for a “mere” five to eight minutes, this was more than sufficient to satisfy the sustained fear element of section 422.
B. Defendant’s Claims of Prejudicial Prosecutorial Misconduct Lack Merit
Defendant next contends he was denied due process of law and a fair trial because the prosecutor engaged in misconduct during his closing remarks by arguing facts not in evidence. Specifically, he complains the prosecutor made a total of eight statements based on facts not in evidence, all for the purpose of bolstering or misrepresenting the evidence that Poor was in sustained fear for her safety.
We conclude the prosecutor’s statements either fairly commented on the evidence or misstated the evidence only slightly, and did not deny defendant a fair trial. Nor is it reasonably probable that any of the prosecutor’s comments misled the jury. Thus, we find no prejudicial error.
1. Standard of Review and Applicable Law
The standard for evaluating claims of prosecutorial misconduct is well settled. A prosecutor’s conduct violates a defendant’s federal due process rights only if it is “‘so egregious that it infects “‘the trial with unfairness as to make the resulting conviction a denial of due process.’ [Citation.]” [Citation.]’” (People v. Hamilton (2009) 45 Cal.4th 863, 920; People v. Dykes (2009) 46 Cal.4th 731, 760.) By contrast, conduct that does not render a trial fundamentally unfair is error under state law when it involves the use of “deceptive or reprehensible methods” to attempt to persuade the court or the jury, and it is reasonably probable the defendant would have realized a more favorable outcome had such methods not been used. (People v. Dykes, supra, at p. 760.)
“‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’ [Citations.]” (People v. Dykes, supra, 46 Cal.4th at pp. 771-772.)
“A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence.” (People v. Ledesma (2006) 39 Cal.4th 641, 726.) Though a prosecutor may not misstate facts or refer to facts not in evidence (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 95), “‘[h]e has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper. Opposing counsel may not complain on appeal if the reasoning is faulty or the conclusions are illogical because these are matters for the jury to determine.’” (People v. Thomas (1992) 2 Cal.4th 489, 526.)
For example, in People v. Hill (1998) 17 Cal.4th 800, 828, the prosecutor “committed misconduct by suggesting, with no factual support in the record, that she had information not presented to the jury that pointed to defendant’s guilt.” In People v. Varona (1983) 143 Cal.App.3d 566, 569 and 570, the prosecutor committed reversible error by arguing facts he knew to be false. As will appear, none of this type of misconduct occurred here.
2. Analysis
Defendant argues the prosecutor made eight statements based on facts not in evidence. We address each of the statements in the order raised.
(a) Statement (1)
The prosecutor argued that when Morris asked Poor, “Are you talking to me?, ” Poor replied, “No. That man down there, the one who’s threatening to kill me.”
Defendant argues this misstated the evidence because Morris testified that Poor told him she was speaking to that “so and so” or that “son of a bitch” down there; Poor did not tell Morris defendant was threatening her, and Morris’s conversation with Poor occurred before defendant picked up the rock and threatened to kill Poor.
Though defendant correctly points out that Poor did not tell Morris defendant was threatening her, Morris testified that immediately after Poor responded to his question, he saw defendant standing 60 to 70 feet away, shouting threats at Poor. Additionally, Morris testified defendant again threatened Poor after he picked up the rock. Based on this evidence-that defendant was threatening Poor immediately after Morris spoke to Poor-it is not reasonably probable that the prosecutor’s slight misstatement misled the jury.
(b) Statements (2), (3), and (4)
These statements share the common theme that Poor was “frozen” or “paralyzed” with fear of defendant. The prosecutor argued: (2) “Kathy [Tuthill] and Jay [Morris] tried to get [Poor] to come inside, but they both said she was sort of frozen”; (3) “[Poor] didn’t know what to do. She was afraid. She was frozen like a [deer] in the headlights”; and (4) Poor “was so paralyzed with fear that she couldn’t recognize anything but the fact that her boyfriend, who she was leaving, was threatening to kill her. That’s all she had. That’s all she could remember.”
Defendant argues there is no evidence to support the prosecutor’s statements that Poor “froze” or was “paralyzed with fear.” Though we agree that none of the witnesses, including Poor, specifically testified that Poor was “frozen” or “paralyzed with fear, ” the prosecutor’s characterization of Poor's demeanor fairly represented the evidence. To be sure, Tuthill and Morris both testified that Poor was “just standing there” after her encounter with defendant outside the American Legion building, and Poor did not respond when Tuthill invited her into the building. Moreover, Poor testified she believed defendant would carry out his threats to harm her. It was therefore reasonable for the prosecutor to argue and for the jury to infer that Poor was “frozen” with fear of defendant. It is not reasonably probable the prosecutor’s characterization of Poor's state of mind misled the jury.
Defendant advances two additional arguments regarding statements (2) and (4). Regarding statement (2), he correctly points out there was no evidence that both Tuthill and Morris asked Poor to come inside the building. Rather, only Tuthill invited Poor in. The distinction is trivial. Even defense counsel mentioned in his closing argument that both Tuthill and Morris “offered [Poor] shelter.”
Regarding statement (4), defendant further argues that Poor’s testimony did not support the prosecutor’s characterization that she was so fearful all she could remember was that defendant was threatening to kill her. Though Poor did testify to some specifics concerning defendant’s threats, for the most part she did not recall a number of specifics of the incident while testifying at trial. Based on the tenor and substance of Poor’s testimony as a whole, the prosecutor’s argument that “all Poor could remember” was that defendant was threatening to kill her constituted a fair comment on the evidence.
(c) Statements (5), (6), (7), and (8)
The prosecutor argued: (5) Tuthill and Morris “could both tell [Poor] was afraid, because of the fact she was crying”; (6) “The fact that [Poor’s] afraid 10 minutes later when Deputy Kuoha arrives, that’s sustained fear. The fact that he could tell she was still distraught and crying, that’s sustained fear”; (7) “That whole time while [Poor] was waiting, she was still afraid. And she came in here and she told you she was afraid”; and (8) “[Poor] told Deputy Kuoha even when the defendant was in custody that she was afraid, when she was telling him everything. Significant time later, she was still afraid. That’s sustained fear, ladies and gentlemen.”
Regarding statement (5), defendant argues there was no evidence that Tuthill or Morris could tell Poor was afraid. He points out that neither witness testified they could see that Poor was afraid, though Morris testified he could tell Poor had been crying and Tuthill testified she heard Poor crying. Based on the testimony of both witnesses that Poor was crying, the prosecutor reasonably argued that both witness could tell Poor was in fear of defendant.
In statements (6), (7), and (8), defendant argues the prosecutor misstated the evidence in arguing that Poor was in sustained fear for 10 minutes, while speaking to Deputy Kuoha, and after defendant was taken into custody. We disagree any of these statements were inappropriate argument.
From the evidence, the prosecutor reasonably argued, and the jury could have reasonably concluded, that Poor’s crying at various stages of the incident showed not only that she was afraid but that it was indicative of sustained fear. And though Poor did not testify she was crying because she was afraid, she did testify that she was afraid and she was crying. And though no one specifically testified that Poor was afraid “10 minutes later” when the deputy arrived, or after defendant was taken into custody, the testimony supported the prosecutor’s assertion. Tuthill testified that Poor and defendant were shouting at each other for seven to eight minutes. Deputy Kuoha testified Poor was distraught and crying when he arrived on the scene and after he took defendant into custody and Poor explained what had happened.
3. Conclusion
In sum, most of the prosecutor’s complained-of statements fairly commented on the evidence, and the few that were unsupported misstated the evidence only slightly. None of the statements rendered the trial fundamentally unfair or deprived defendant of his due process right to a fair trial. Nor, as defendant argues, did any of the statements, viewed separately or as a whole, “make up for the insufficiency of the ‘sustained fear’ element by falsely augmenting witness testimony” to sway the jury. As discussed, substantial evidence showed that Poor was in sustained fear for her safety, and it is not reasonably probable that any of the prosecutor’s slight misstatements of the evidence affected the verdicts. (People v. Dykes, supra, 46 Cal.4th at p. 760.)
C. Sentencing Issues
Defendant challenges two portions of the court’s sentencing order. He first claims he was erroneously ordered to pay $600 in victim restitution (§ 1202.4, subd. (f)), because there was no evidence Poor suffered any economic losses. Second, he claims he was erroneously ordered to pay a $10 fine under section 1202.5 though the statute did not apply to his convictions.
The People agree the $10 fine was erroneously imposed and must be stricken, but argue the matter must be remanded for clarification regarding the $600 restitution order. We agree the $10 must be stricken, but we find no need to remand the matter for clarification regarding the $600 restitution order. Instead, we strike the restitution order because we agree it was imposed without any supporting evidence that Poor suffered any economic losses.
1. Background
The probation department recommended in its report that defendant be ordered to “[p]ay restitution to the extent the victim has received assistance from [the] Victim’s [sic] of Violent Crimes Program in an amount to be determined, said amounts to be deposited in the Restitution Fund pursuant to [section 1202.4, subdivision (f)(2)], any dispute to be resolved in a court hearing.” (Italics added.) Two paragraphs later, the department further recommended that defendant be ordered to “[p]ay restitution as determined by the Enhanced Services Division in the amount of $600.00, and any additional amounts incurred pursuant to [section] 1202.4.... Enhanced Services Division to forward Court’s findings to Division of Adult Institutions; pursuant to [section] 2085.5..., Division of Adult Institutions Authorized to collect restitution obligations[.]” (Italics added.)
The court categorically followed both recommendations. Following the probation department’s report almost verbatim, the court announced: “He’s to pay restitution to the extent the victim has received assistance from Victims of Violent Crimes Program in an amount to be determined. Said amounts to be deposited in the restitution fund pursuant to Penal Code [section] 1202.4, [subdivision] (f)(2), any dispute to be resolved in court hearing.” Two paragraphs later, the court announced: “He’s to pay restitution as determined by Enhanced Services Division in the amount of $600 and any additional amounts incurred pursuant to Penal Code section 1202.4.”
The sentencing minute order reflects the “to be determined” and $600 restitution orders, and the abstract of judgment states that defendant is to pay $600 to the Restitution Fund pursuant to section 1202.4, subdivision (f)(2). Defendant was also ordered to pay a $10 fine under section 1202.5. The abstract of judgment also reflects this fine.
2. Applicable Law and Analysis
“Restitution is constitutionally and statutorily mandated in California.” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) Section 1202.4 authorizes the court to require that the defendant “make restitution” to the victim “in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be determined at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court.”
“The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (§ 1202.4, subd. (f)(1).) And to the extent the victim has received assistance from the “Victim Compensation Program, ” any restitution ordered pursuant to subdivision (f) “shall be ordered to be deposited to the Restitution Fund[.]” (Id., subd. (f)(2).)
The sentencing court is to order restitution for “every determined economic loss incurred as the result of the defendant’s criminal conduct” and to identify the victim to which the loss pertains. (§ 1202.4, subd. (f)(3).) If the Restitution Fund has provided assistance to or on an behalf of a victim, the amount of assistance provided “shall be presumed to be a direct result of the defendant’s criminal conduct and shall be included in the amount of the restitution ordered.” (Id., subd. (f)(4)(A).)
The amount of assistance provided by the Restitution Fund “shall be established by copies of bills submitted to the California Victim Compensation and Government Claims Board reflecting the amount paid by the board” and the nature of the services or losses for which payment was made. (§ 1202.4, subd. (f)(4)(B).) Certified copies of these bills, together with a statement by the custodian of records of the board that the bills were submitted to and paid by the board, are sufficient to meet this requirement. (Ibid.)
We review a restitution order for an abuse of discretion. (People v. Millard (2009) 175 Cal.App.4th 7, 26.) “‘“When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found....”’ [Citations.]” (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132, italics added.) But a restitution order “resting upon a ‘“demonstrable error of law”’ constitutes an abuse of the court’s discretion. [Citations.]” (People v. Jennings (2005) 128 Cal.App.4th 42, 49.)
Here, the $600 restitution order was erroneously imposed because, as defendant points out, there was no showing that Poor suffered a $600 economic loss or any other loss as a result of defendant’s criminal conduct. The probation officer’s report merely recommended that defendant be ordered to pay $600 in restitution, but the recommendation was not accompanied by any evidence, including any statements by Poor or any certified copies of bills submitted to and paid by the California Victim Compensation and Government Claims Board on her behalf. Nor did Poor testify at the sentencing hearing or at trial that she suffered any economic loss. For this reason, the $600 restitution order was unlawfully imposed and must be stricken.
The People maintain the matter should be remanded for clarification because “it appears the court imposed two different restitution amounts under Penal Code section 1202.4, subdivision (b).” We disagree. The court imposed a $300 restitution fine pursuant to section 1202.4, subdivision (b), and a $300 parole revocation fine pursuant to section 1202.45, and suspended the latter pending revocation of defendant’s parole. These fines were imposed separately from and in addition to the $600 restitution order. Though the court did not specify that the $600 restitution order was being imposed under section 1202.4, subdivision (f), the probation officer’s report, which the court tracked almost verbatim in pronouncing sentence, indicates it was to be imposed under subdivision (f).
Lastly, we agree with both parties that the $10 section 1202.5 fine was erroneously imposed. The statute authorizes a $10 fine in any case in which a defendant is convicted of certain offenses, but these do not include violations of section 422 or 243, subdivision (e), the offenses for which defendant was convicted here. (§ 1202.5.) The $10 fine must therefore be stricken. (See People v.Crittle (2007) 154 Cal.App.4th 368, 371-372.)
IV. DISPOSITION
The $600 section 1202.4, subdivision (f) restitution order and the $10 section 1202.5 fine are hereby stricken. The matter is remanded to the trial court with directions to modify defendant’s abstract of judgment accordingly, and forward a copy of the revised abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: McKinster Acting P.J., Richli J.