Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA284883, Ruth Ann Kwan, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
A jury convicted Ardiste Tann of assault with a firearm and found true a related firearm enhancement allegation. The trial court sentenced Tann to an aggregate state prison term of eight years and ordered him to pay $9,905.58 in victim restitution. On appeal Tann contends there was insufficient evidence to support his conviction. He also challenges the court’s restitution order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Tann was charged in an amended information with the attempted premeditated murder of Steven Talbert (Pen. Code, §§ 664, 187(a)) (count 1) and assault with a firearm on Talbert’s nine-year-old stepson, Jabil Muhammad (§ 245, subd. (a)(2)) (count 2). As to count 1, it was specially alleged that Tann had personally and intentionally used and discharged a firearm proximately causing great bodily injury to Talbert (§ 12022.53, subds. (b), (c), (d)). As to count 2, it was alleged that Tann had personally used a firearm (§ 12022.5, subd. (a)).
Statutory references are to the Penal Code.
According to the evidence at trial, Tann, an invited guest at Talbert’s house for a barbeque, pulled out a gun and fired several shots. Tann, who had been drinking alcohol throughout the day, deliberately fired two of the shots into the sidewalk in front of Talbert. The first bullet ricocheted off the sidewalk and hit Talbert in the leg. The second bullet ricocheted off the sidewalk and came within one or two feet of Muhammad, who was standing near Talbert. Talbert called Tann a “bitch” and moved toward him. Tann shot Talbert in the hip, then raised the gun again, pointed it at Talbert’s head and pulled the trigger. Talbert raised his arm in front of his face, and the bullet struck Talbert in the forearm. Tann drove away. Talbert underwent two surgeries to repair injuries caused by the gunshots.
The jury convicted Tann on count 2 and found the special allegation true. The court declared a mistrial as to count 1 after the jury informed the court it could not reach a verdict on that count. In a retrial on count 1, a second jury acquitted Tann of the attempted murder charge.
The court sentenced Tann to the upper term of four years in state prison for his aggravated assault plus the middle term of four years for the firearm-use enhancement. The trial court imposed a $200 restitution fine, imposed and stayed a $200 parole revocation fine and, pursuant to Tann’s stipulation to the People’s request, ordered Tann to pay $9,905.58 in victim restitution.
DISCUSSION
1. Standard of Review
Tann contends his conviction for assault with a firearm is not supported by sufficient evidence. To assess a claim of insufficient evidence in a criminal case, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
2. Substantial Evidence Supports Tann’s Conviction for Assault with a Firearm
Assault is a general intent crime. (People v. Wyatt (2010) 48 Cal.4th 776, 780.) “[A]ssault does not require a specific intent to injure the victim” but rather “‘the general intent to willfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another, ’” “i.e. a battery.” (Ibid.; accord, People v. Williams (2001) 26 Cal.4th 779, 788; People v. Rocha (1971) 3 Cal.3d 893, 899.)
Tann contends there was no evidence he intended to injure Muhammad. However, that Muhammad was not Tann’s target is immaterial in the context of this general intent crime. “‘[A]n intent to do an act [the natural and probable consequences of which] will injure any reasonable foreseeable person is sufficient for an assault charge.’” (People v. Felix (2009) 172 Cal.App.4th 1618, 1628 (italics added); see id. at p. 1630 [defendant who intended to shoot girlfriend’s uncle by firing gun into uncle’s house also guilty of assault on two children he knew lived in house]; People v. Tran (1996) 47 Cal.App.4th 253, 262 [man who brandished knife at man carrying baby was guilty of assault on both intended victim and baby even though there was no intent to harm the child]; see also People v. Riva (2003) 112 Cal.App.4th 981, 998 [recognizing defendant who shot at intended target and narrowly missed injuring pedestrian passing by could be found guilty of assault on pedestrian; “when the defendant shoots into a crowd the People do not have to prove he was aiming at a particular target”].)
Citing language in People v. Williams, supra, 26 Cal.4th 779, Tann contends there was no evidence from which the jury could reasonably infer he was aware of Muhammad’s presence when he fired the shots, explaining that Muhammad had been in the house playing video games just before Tann began shooting. In Williams the Supreme Court explained, “[A] defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known.” (Id. at p. 788.) On this last point, the Williams court clarified, “[A] defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally, and probably result in a battery.” (Id. at p. 788, fn. 3; accord, People v. Wyatt, supra, 48 Cal.4th at p. 781.)
Here, both Richard Williams, a guest at the barbeque, and Talbert testified Muhammad had been standing on the porch by the door, near Talbert, when Tann began firing at Talbert. Muhammad also testified he had been talking to Talbert when the shooting occurred. From this evidence, the jury could reasonably infer Tann was aware of Muhammad’s presence and either knew or should have known that his conduct would likely result in a battery on Muhammad. Accordingly, we have no difficulty finding Tann’s aggravated assault conviction supported by substantial evidence.
3. Tann’s Stipulation to the Victim Restitution Order Precludes His Challenge to the Order on Appeal
Article I, section 28, subdivision (b)(13)(A), of the California Constitution provides, “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.” Victim restitution is governed by section 1202.4, which provides in part, “[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require the defendant make restitution to the victim or victims in an amount established by court order, based upon the amount of loss claimed by the victim or victims or any other showing to the court.... The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (§ 1202.4, subd. (f).)
This provision was added to the Constitution in 1982 by Proposition 8, the initiative also known as the Victims’ Bill of Rights. (See People v. Giordano(2007) 42 Cal.4th 644, 652.)
The statutory restitution provisions are to be construed broadly to achieve the goals of public safety, victim compensation and offender rehabilitation. (People v. Carbajal (1995) 10 Cal.4th 1114, 1126; People v. Mearns (2002) 97 Cal.App.4th 493, 500-501.) We review restitution orders for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) “Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the surviving victim’s economic loss. To facilitate appellate review of the trial court’s restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered.” (Id. at pp. 663-664.) If there is a “‘factual and rational basis’” for the amount ordered, no abuse of discretion is present. (Mearns, at p. 499; Carbajal, at p. 1126.)
At the sentencing hearing, Tann stipulated (personally, as well as through his counsel) to the order of victim restitution in the amount of $9,905.58 based upon the People’s sentencing memorandum, which sought $9,533.17 for “lost wages” and $372.41 for “medical expenses” for “the victim.” Neither the People’s sentencing memorandum nor the court’s order specified the “victim” to whom the restitution order pertained. Tann now contends the victim restitution order was improper because it was “obviously” based on Talbert’s injuries, not Muhammad’s. (See People v. Percelle (2005) 126 Cal.App.4th 164, 180-181 (Percelle) [victim restitution for economic losses not authorized when “defendant’s only relationship to the victim’s loss is by way of a crime of which the defendant was acquitted”]; see also § 1202.4, subd. (a)(1) [“[i]t is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime”] (italics added).)
Because Tann stipulated to the amount of restitution at trial, any error in the calculation of the victim restitution award was invited. Generally, invited errors are not cognizable on appeal. (See, e.g., People v. Seaton (2001) 26 Cal.4th 598, 638-639 [due to defendant’s stipulation to excuse juror, any error in excusing juror was invited and not subject to appellate review]; In re Griffin (1967) 67 Cal.2d 343, 345 [if the defendant invites court, by moving for a continuance, to do in excess of its jurisdiction what it otherwise could have done properly, the defendant is estopped from complaining of the error]; Mt. Holyoke Homes, LP v. California Costal Com. (2008) 167 Cal.App.4th 830, 842 [“‘“[i]t is settled that where a party by his conduct induces the commission of an error, under the doctrine of invited error he is estopped from asserting the alleged error as grounds for reversal”’”].)
To avoid the ramifications of the invited error doctrine, Tann, citing Percelle, supra, 126 Cal.App.4th 164, contends the restitution order resulted in an unauthorized sentence and thus falls within a narrow exception to the invited error doctrine. (See People v. Smith (2001) 24 Cal.4th 849, 852 [although generally only claims properly raised and preserved by the parties at trial are reviewable on appeal, there is a “narrow exception” for “unauthorized sentences” that are “‘“clear and correctable independent of any factual issues presented by the record at sentencing”’”]; In re Andrews (1976) 18 Cal.3d 208, 212 [doctrine of invited error does not apply to unauthorized sentences, which are void and may be challenged at any time].)
In Percelle, supra, 126 Cal.App.4th 164 the defendant, Steven Percelle, was convicted of several counts of using altered, stolen, or counterfeit credit cards. The jury acquitted Percelle of stealing a rental car he had allegedly rented with the use of a credit card belonging to Tom Spade. Notwithstanding the acquittal on that count, the court’s victim restitution order included a $3,989.32 payment to Spade in connection with the car rental. On appeal Percelle challenged the propriety of the restitution order, arguing it required him to pay victim restitution in connection with a crime for which he had been acquitted. The court agreed and rejected the People’s argument that Percelle’s failure to object to the restitution order in the trial court forfeited the issue on appeal. The court explained, in the context of a nonprobation prison sentence, the award of restitution to a victim of a crime for which the defendant had been acquitted resulted in “an unauthorized sentence” subject to correction on appeal. (Id. at pp. 180-181.)
The instant case is materially different from Percelle, supra, 126 Cal.App.4th 164, in which the restitution order clearly (and erroneously) included payment to a victim in connection with a crime for which the defendant had been acquitted. Here, the court’s order required Tann to make restitution to “the victim.” Because Tann was acquitted of the crime against Talbert, a reasonable inference from the court’s ruling is that “victim, ” in the singular, refers to Muhammad, not his stepfather. (See People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 356 [whenever possible court construes sentence or judgment imposed as statutorily authorized]; see generally Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [a judgment or order of lower court is presumed correct]; accord, People v. Nitschmann (2010) 182 Cal.App.4th 705, 708 [all intendments and presumptions are made in favor of judgment and error must be affirmatively shown].)
Tann insist the victim restitution order, which includes an amount for “lost wages, ” must refer to Talbert’s injuries, not Muhammad’s, because Muhammad, who was nine-years old at the time of the shooting, could not have suffered lost “wages.” Whatever common sense basis there may be to Tann’s otherwise unsupported assertion, his challenge to the restitution award is not, as in Percelle, to the court’s jurisdiction to award victim restitution to Muhammad—indeed, such restitution is mandatory (see Cal. Const., art. I, § 28, subd. (b)(13)(A); § 1202.4)—but to the sufficiency of the evidence supporting the amount awarded. In light of Tann’s stipulation to that amount of victim restitution at the sentencing hearing, his belated challenge to the sufficiency of the evidence supporting the award is, quite simply, not cognizable on appeal. (See generally People v. Smith, supra, 24 Cal.4th at p. 852 [narrow exception to forfeiture doctrine applies only when error is independent of any factual issues that were or could have been presented at sentencing].)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.