Opinion
2d Crim. No. B143261
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. IVAN AMBRIZ, Defendant and Appellant.
Michael B. Dashjian, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Roy C. Preminger, Deputy Attorney General, for Plaintiff and Respondent.
Ivan Ambriz appeals a judgment after his conviction of four counts of corporal injury to a child resulting in a traumatic condition (Pen. Code, § 273d, subd. (a)) with findings that he personally inflicted great bodily injury (& sect; 12022.7, subds. (a) & (b)). He also appeals a second judgment which reduced his sentencing credits.
On the first appeal, we conclude, among other things, that substantial evidence supports the judgment, the court did not commit reversible error by failing to instruct on the defense of accident, and there was no prosecutorial misconduct. The court erred, however, by ordering Ambriz to pay restitution to a treatment facility. On the second appeal, we conclude the court erred by reducing his sentencing credits without a hearing. We reverse the reduction in sentencing credits and remand for a new hearing on that issue.
FACTS
On November 18, 1998, paramedics transported Denise, Ambrizs four-month-old daughter, to the hospital. She was in critical condition with skull and rib fractures, injuries to her foot and wrist, pulmonary contusions, and swelling on her leg and chest.
Three treating physicians, Steven Hartzman, Ricardo Flores and Arturo Sidransky, testified that Denises injuries were the result of intentional child abuse. Sidransky said her injuries were inflicted on the day she went to the hospital. Hartzman said her wrist injury was a "fresh fracture." Someone had stepped on her wrist and foot and slammed her against a wall or the floor. Doctor Flores said Denise suffered "at least" two blows to her head. Ambriz told Doctor Flores he "may have slammed" Denise against the wall, the floor and "stepped on her." Doctor Flores said the force used to inflict her injuries was "on the order of falling downstairs or being in a motor vehicle accident where youre bounced around quite a bit."
Esther Villavicencio testified that before the incident Ambriz told her that Denise cried too much and "he couldnt take it anymore" and "would lose it."
Detective Bruce Reed testified that during questioning, Ambriz referred to Denise as the daughter of Diane Chuc. Chuc was Ambrizs girlfriend and is Denises mother.
Detective David Klug testified that in the first interview, Ambriz did not mention that his one-year-old son, Jacob, did anything to Denise. In a second interview, Ambriz said he "left out a part of the story," and added that Jacob had climbed on Denise and Ambriz accidentally dropped a plate on her head. He said Denise would not have been injured had Chuc been home. Ambriz said, among other things, that he "felt like he had done it on purpose."
In the defense case, Doctor William Goldie testified that Denises wrist injury "could have occurred previously" and her other injuries may have been accidentally inflicted by Ambriz. He previously told a social worker the injuries were intentionally inflicted and described Denise as a "battered child." Doctor Goldies expert witness fee was $750.
Chuc testified that when she left for work on November 18 there was nothing wrong with Denise, except for a carpet burn on her face.
Ambriz testified that because Denise was crying, he asked Chuc to leave work and come home to take care of "your daughter," but Chuc would not do that. He was "upset" because of this. While washing dishes, he accidentally dropped a plate on Denise. She cried and then "calmed down." Later, she "passed out" so he "panicked" and "started shaking her." He may have broken her ribs, put his knee on her and hit her against an object when he performed cardiopulmonary resuscitation (CPR) on her. He said he routinely visited her at the House of Grace rehabilitation facility after the incident.
The Offer of Proof About Visits With Denise After the Incident
Ambrizs counsel stated, "I have a witness [who] observed the interaction of [Ambriz] with [Denise] for almost a year. So Im just going to put her on to show . . . how appropriate that interaction was." The court ruled this evidence was irrelevant and stated, "Ive given you all the latitude in the world . . . you can discuss all the attributes . . . you want to up until this incident and right thereafter . . . . But as far as visitations afterwards, no."
Instructions
Ambriz requested an instruction on the defenses of accident and necessity. (CALJIC Nos. 4.45, 4.43.) He withdrew his request for a necessity instruction and requested an instruction on the defense of duress. The court ruled that the accident instruction could not be given in a corporal injury case, and rejected Ambrizs request for an instruction on duress.
Arguments to the Jury
In her argument to the jury, Ambrizs counsel conceded that a person looking at the photographs of Denises injuries could say, "`Gee, that looks like child abuse . . . ." But everything else in the prosecutions case were accusations, not facts. She argued that there was a delay in arresting Ambriz, suggesting "[m]aybe [the police] believed him."
The prosecutor argued Doctor Goldie was a "biased advocate" and his "opinion was a $750 opinion." He said Ambriz "was willing to lie, and he did" and his defense is "to blame someone else." He said, "defense [counsel] talked about the timing of the arrest . . . . [& para;] For her to ask you to consider something like that is a desperate argument, not appropriate." He argued the defense was "desperate" because it belatedly raised the issue of a language difficulty to explain Ambrizs inconsistent statements. Ambriz did not object to these statements.
Restitution
Denise received treatment at the House of Grace for her injuries at a cost of more than $4,000 a month. The court ordered Ambriz to pay $109,300 restitution to the House of Grace.
Second Judgment Reducing Sentencing Credits
Almost a year after the initial judgment, the California Department of Corrections (CDC) sent a letter to the court stating the presentence credits in the judgment were too high. Ambrizs counsel responded with a letter stating that the CDC was wrong and the "abstract and judgment are correct . . . ." The court entered a second judgment which reduced Ambrizs sentencing credits from 108 days to 82 days. It did not hold a hearing.
DISCUSSION
(Ambrizs First Appeal)
I. Instructions on Defenses
Ambriz contends the court committed reversible error by not giving instructions on the defenses of innocent intent, justification, necessity and accident.
For defenses, "a sua sponte instructional duty arises `only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 157.) "`"Appellate insistence upon sua sponte instructions which are . . . not clearly demanded by the evidence would . . . put trial judges under pressure to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions."" (People v. Barton (1995) 12 Cal.4th 186, 197.)
A. Innocent Intent
Ambriz did not request an instruction on the defense of innocent intent. He now claims the court had a duty to give it because he denied having a "wrongful intent." He relies on People v. Osborne (1978) 77 Cal.App.3d 472. There the appellate court held it was error not to instruct on the defense of "innocent intent" where a defendant is charged with receiving stolen property. (Id. at p. 478; CALJIC No. 14.66 [Receiving Stolen Property With Innocent Intent Instruction].) But "[w]e do not understand . . . the law to be . . . that an instruction on innocent intent is necessary whenever a defendant disclaims guilty intent." (People v. Wielograf (1980) 101 Cal.App.3d 488, 495.)
Ambrizs counsel apparently concluded it was unnecessary to request an innocent intent instruction. She told the jury, "It seems obvious . . . that a person who acts in an emergency to save somebodys life does not have criminal intent. They seem to me to be mutually exclusive." The instruction the court gave on general criminal intent (CALJIC No. 3.30) was "sufficient to allow the jury" to decide whether Ambriz acted with innocent intent. (People v. Honig (1996) 48 Cal.App.4th 289, 339.)
B. Justification
Ambriz contends the court erred by not instructing the jury on the defense of justification. He did not request this instruction at trial, but he argues the court had a duty to give it because he "probably" broke Denises ribs while giving CPR. A parent may apply force on a child where it is "warranted by the circumstances" and reasonable. (People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050.)
Ambriz did not testify that he was justified in inflicting massive injuries on Denises body. He speculated he "may" have injured her while trying to revive her. He said he was trained to give CPR by using two fingers on a baby. But he did not do that. He said he used the force of his entire hand. His expert witness testified that doing that was dangerous and not a CPR method for an infant. But neither Ambriz nor his expert witness testified that there was any justification for Ambriz to fracture Denises skull. Doctor Goldie testified that none of Denises injuries could have been caused by slight force.
Using appropriate force to revive a child supports the defense of justification. (People v. Sargent (1999) 19 Cal.4th 1206, 1224.) But endangering a babys life by fracturing her skull, breaking her ribs, knocking her into objects, kneeling on her and inflicting injuries throughout her body, does not. (Ibid .) This instruction on this defense was not "`. . . clearly demanded by the evidence . . . ." (People v. Barton,supra, 12 Cal.4th at p. 197.)
C. Necessity
Ambriz contends the court erred by not giving the instruction he requested on the defense of necessity. But he withdrew it and sought an instruction on the defense of duress. Because his counsel made a "tactical" decision to withdraw the necessity instruction, Ambriz may not claim that the court erred by not giving it. (People v. Bohana (2000) 84 Cal.App.4th 360, 367.)
But even on the merits the result is the same. The instruction Ambriz requested states, "A person is not guilty of a crime when he engages in an act, otherwise criminal, through necessity." (CALJIC No. 4.43.) For this defense to apply, he had to show: 1) his criminal act "was done to prevent a significant and imminent evil"; 2) "[t]here was no reasonable legal alternative"; 3) "[t]he reasonably foreseeable harm likely to be caused by the act was not disproportionate to the harm avoided"; 4) he had a "good-faith belief that his [actions were] necessary to prevent the greater harm"; 5) "[t]hat [the] belief was objectively reasonable under all the circumstances; and" 6) he "did not substantially contribute to the creation of the emergency." (Ibid. ; In re Eichorn (1998) 69 Cal.App.4th 382, 389.)
But Ambrizs evidence did not support the instruction. He did not testify that he had a good-faith belief that he had to inflict massive injuries to revive Denise. By his account, he was not even sure that he caused the injuries while giving CPR. Doctor Goldie did not testify that it was objectively reasonable for him to inflict life-threatening injuries. In fact, he said the way Ambriz gave CPR was dangerous. Moreover, Ambriz did not show that he did not "substantially contribute" to the emergency. His theory was that Denises first injury occurred when he dropped a plate on her, causing a head fracture.
D. Accident
Ambriz requested an instruction on the defense of accident. The instruction he requested states, "When a person commits an act or makes an omission through misfortune or by accident under circumstances that show no criminal intent he does not thereby commit a crime." (CALJIC No. 4.45.) Ambriz contends the court erred because it ruled that the accident instruction may not be given in a corporal injury case. We agree. (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.)
The Attorney General argues that Ambrizs testimony would not support that instruction. He correctly notes that Ambriz speculated that he "may have" put his knee on her, "could have" hit her against an object and "probably" broke her ribs in performing CPR. "`[S]peculation is not evidence, less still substantial evidence." (People v. Waidla (2000) 22 Cal.4th 690, 735.) But Ambriz also testified that he accidentally dropped a plate on Denise and Doctor Goldie said that was enough force to cause a head fracture. This evidence was sufficient to support the instruction. But the trial courts error will not change the result. "A conviction may be reversed [for instructional] error only if . . . it appears `reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. [Citation.]" (People v. Breverman, supra, 19 Cal.4th at p. 178.) That is not the case here. In fact, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The court instructed the jury that it had to find Ambriz acted willfully and intentionally in order to convict him. (CALJIC Nos. 1.20, 3.30.) His counsel told the jury he had no criminal intent because he was trying to save Denises life. But it rejected that claim and the lesser included offense of misdemeanor corporal injury. It found him guilty of felonies with great bodily injury findings.
The evidence of Ambrizs guilt was overwhelming. Three of Denises treating doctors testified her injuries were the result of severe and intentional "child abuse." Doctor Goldies statement to the social worker was consistent with their opinions and he conceded that Denises head injuries could have resulted from "striking her head against a wall." Ambriz told Villavicencio he was losing control because he could not tolerate Denise crying. He yelled at Denise because of that. He was upset because Chuc called him and said she would not come home to take care of her. Denise sustained injuries shortly after that call. Ambriz told Doctor Flores he "may have slammed" Denise against the wall, the floor and "stepped on" her. Ambriz gave conflicting versions of the event and his testimony gave largely speculative explanations for her massive injuries. He told Klug, among other things, that "he was feeling guilty that he had done it on purpose."
II. Evidence About Ambrizs Visits With Denise After the Incident
Ambriz contends the trial court erred by excluding evidence about his visits with Denise at the House of Grace. We disagree. The trial court may exclude evidence which involves speculative inferences (People v. Lewis (2001) 26 Cal.4th 334, 373), is of marginal relevance (People v. Frye (1998) 18 Cal.4th 894, 946), remote (People v. Burwell (1955) 44 Cal.2d 16, 35), or not linked to the defendants conduct at the time of the offense (People v. Jones (2003) 29 Cal.4th 1229, 1253).
The court could reasonably find that Ambrizs subsequent conduct toward Denise involved speculative inferences about his motives, including guilt or fear of prosecution. It could find it was not relevant to his actions on November 18. Moreover, the court gave him wide latitude to present evidence of his good relations with Denise. He testified that he routinely visited her at the House of Grace and introduced a photograph of him holding her at one of those visits.
III. Substantial Evidence
Ambriz contends that there was no substantial evidence to support his convictions on counts 3, 4 and 5 which alleged he unlawfully injured Denises wrist and ribs and bruised and abraded her face and body. We disagree.
We review the evidence in the light most favorable to the judgment and draw all reasonable inferences to support it. We do not decide the credibility of the witnesses. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Ambriz contends he accidentally injured Denise. But Doctors Hartzman, Flores and Sidransky testified that her injuries were intentionally inflicted. The jury could also infer from Ambrizs statements to Doctor Flores and Klug that the injuries were not accidental.
Ambriz argues there was no evidence about when the injuries occurred. For example, Doctor Goldie said the wrist injury was an old one. But Doctor Sidransky testified her injuries occurred on the day she went to the hospital. Chuc testified Denise only had a carpet burn on her face at the time she left for work. Doctor Hartzman said the wrist and foot injuries were "fresh" fractures. Moreover, Doctor Goldie conceded he "wasnt really asked to focus on the hand and foot." He did not review the conclusions of a team of radiologists that those injuries were fresh. He also conceded her head injuries could have resulted from someone "striking her head against a wall." From the evidence, the jury could reasonably infer that Ambriz intentionally inflicted each of Denises injuries.
IV. Multiple Counts for an Alleged Single Act
Ambriz contends that he committed only one act and may not be convicted of four counts involving multiple injuries to various parts of Denises body. We disagree.
Doctor Flores testified Denises injuries were not the result of a "single event" and she had "a lot of things done to her." From his and Doctor Hartzmans testimony, the jury could infer that Ambriz slammed Denise against a wall, the floor, stepped on her and hit her head twice. It could find her injuries were the result of multiple intentional acts.
Ambriz contends that the information "charged five different body parts," not "five different criminal acts," and argues there was only one valid count for all the injuries on November 18. But each count in the information alleged a separate offense that Ambriz committed against Denise. That these offenses took place on the same day to a single victim, did not prevent the prosecution from alleging more than one count. (People v. Lofink (1988) 206 Cal.App.3d 161, 165 [conviction affirmed for multiple counts of inflicting corporal punishment to a child where "`facial injuries" and "`bone fractures" were alleged in different counts].) The prosecution properly alleged different counts for Ambrizs separate offenses which caused separate injuries. (Ibid.)
V. Instruction on Multiple Crimes
Ambriz contends the court did not properly instruct the jury on how to "distinguish among different acts" and return "legally permissible multiple convictions." We disagree. The court instructed the jury with CALJIC No. 17.02, the multiple counts instruction. It told the jury that each count was a separate offense, the "defendant may be found guilty or not guilty of any or all of the crimes charged" and each count "must be stated in a separate verdict" (ibid.) and all 12 jurors had to agree to any verdict (CALJIC No. 17.50).
The court instructed the jurors that for a conviction on each count, they had to find that Ambriz "willfully inflicted cruel or inhuman punishment or injury upon [Denises] body," that this "resulted in a traumatic condition," and this condition was "caused by a physical force." (CALJIC No. 9.36.). Each count specified the distinct injuries Ambriz allegedly inflicted. The court properly instructed the jury. (People v. Catlin (2001) 26 Cal.4th 81, 153; People v. Lofink,supra, 206 Cal.App.3d at p. 165.)
VI. Prosecutorial Misconduct
Ambriz contends the prosecutor committed numerous acts of misconduct. But he waived these issues by not objecting at trial. (People v. Hardy (1992) 2 Cal.4th 86, 210.) He contends the misconduct was pervasive and repeated objections would be futile. But "[t]he problem is that [Ambriz] made no objections whatever to the various instances of asserted misconduct . . . ." (People v. Dennis (1998) 17 Cal.4th 468, 521.) Yet, even on the merits the result is the same.
A. Remarks About Doctor Goldie
Ambriz relies, in part, on cases from other jurisdictions in discussing the standards of prosecutorial misconduct relating to expert witnesses. But he does not cite California Supreme Court cases on this issue. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Ambriz contends the prosecutor improperly argued to the jury that Doctor Goldie was not credible, was dishonest, unprepared, had changed his opinion and was not competent. But Doctor Goldies conclusions at trial were not consistent with what he told the social worker. He testified that when he told the social worker Denise was a victim of child abuse, he did not have all the information to make that assessment. This raised questions about his credibility.
Doctor Goldie also conceded on cross-examination that some of Denises injuries could have been the result of someone slamming her head against a wall. That undermined some of his testimony on direct. When the prosecutor asked him about some of his conclusions about Denises hand and foot injuries, he responded that he "was not asked to focus on" those areas. The prosecutor had the right to ask the jury to draw negative inferences about his testimony. (People v. Dennis,supra , 17 Cal.4th at p. 522.) He could also "urge, in colorful terms, that [he was] not entitled to credence . . . ." (People v. Pinholster (1992) 1 Cal. 4th 865, 948.)
Ambriz contends the prosecutor improperly ridiculed Doctor Goldie by telling the jury he was "a paid witness," a professional witness, biased, and his theory "was a $750 opinion." But he testified he was a paid expert retained by the defense. He had testified as an expert in other cases and his usual fee is $750. He admitted that he did not review the conclusions of a team of radiologists who reached a different conclusion about Denises injuries. The prosecutor had the right to ask the jury to draw inferences about factors which showed a potential for bias. (People v. Dennis,supra, 17 Cal.4th at p. 519.) Moreover, "[s]uch an attack is not improper simply because it includes epithets intended to ridicule the witnesss testimony." (People v. Arias (1996) 13 Cal.4th 92, 182 [referring to an experts opinion as "`tonic water" was not misconduct].)
Ambriz contends the prosecutor cross-examined Doctor Goldie in an excessively harsh and inappropriate manner. But from our review of the record, we conclude that these contentions are without merit. Moreover, "counsel may cross-examine an expert more extensively . . . than a lay witness, and . . . attempt to discredit the experts opinion. [Citation.]" (People v. Dennis,supra, 17 Cal.4th at p. 519.)
Ambriz contends the prosecutor made statements about Doctor Goldies testimony which misstated the record. But they "`. . . were not so extreme or so divorced from the record that they could not have been cured by prompt objections and admonitions. . . . [Citation.]" (People v. Dennis,supra, 17 Cal.4th at p. 521.)
B. Remarks About Ambriz
Ambriz contends that the prosecutor committed misconduct by stating several times that he lied. But a prosecutors repeated reference to the defendant as a liar, based on inferences from the evidence, is not misconduct. (People v. Boyette (2002) 29 Cal.4th 381, 433.) He properly asked the jury to draw negative inferences about Ambrizs credibility because he gave evasive answers and conflicting accounts about how Denise was injured. (Ibid.)
C. Remarks About Ambrizs Counsel
Ambriz contends the prosecutor committed misconduct by attacking his lawyer. "[I]t is improper . . . to resort to personal attacks on the integrity of opposing counsel. [Citation.]" (People v. Bell (1989) 49 Cal.3d 502, 538.) But the prosecutor may vigorously challenge defense counsels tactics. (People v. Cunningham (2001) 25 Cal.4th 926, 1002-1003 [prosecutors statement that defense counsel "`. . . put up smoke, red herrings . . ." was not misconduct].)
Ambriz notes the prosecutor said "the defense was so desperate . . . suddenly we hear about the Spanish language for the first time." But this was a comment on the evidence. The prosecution showed Ambriz made inconsistent statements. Ambrizs counsel on redirect asked him whether his primary language was Spanish to explain the inconsistencies. The prosecutor was suggesting this was a new explanation. The "desperate" remark was spirited, but not misconduct. (People v. Pinholster,supra, 1 Cal.4th at p. 948.)
Ambriz claims the prosecutor disparaged his counsel by arguing, "For her to ask you to consider [the timing of the arrest] is a desperate argument, not appropriate." But his counsel asked the jury to speculate that a delay in Ambriz arrest meant the police initially believed him. The prosecutor properly challenged such speculation and the use of colorful language was not misconduct. (People v. Pinholster, supra, 1 Cal.4th at p. 948.)
Ambriz contends the prosecutor said his counsel fabricated a defense. The prosecutor argued, "[W]hen the defendant does something like this, hes got some choices. He can claim he wasnt there. Pretty tough to do in this case. [¶] Try to blame someone else, pretty tough to do but hes done it. Hes tried to blame his girlfriend. You heard his own words. [& para;] He tried to blame Jacob. You heard his own words again." But this was an attack on Ambrizs testimony, not his counsel, and the suggestion that Ambriz tried to "blame someone else" was a reasonable inference from Klugs testimony. The prosecution may "argue on the basis of inference from the evidence that a defense is fabricated . . . ." (People v. Pinholster,supra , 1 Cal.4th at p. 948.)
Ambriz argues that the prosecutor misrepresented his counsels arguments by stating, "Defense counsel is going to get up here and give you her strongest argument first. Makes sense. First thing she told you, she conceded that on the photographs alone a lay person would say, `Gee, that looks like child abuse. [& para;] The People . . . dont argue with her one single bit. Gee, that looks like child abuse because it is child abuse."
Ambriz contends that was not her first or best argument. But the prosecutor accurately quoted the third sentence of her opening argument. Ambrizs counsel attacked the prosecution. The prosecutor responded with humor and no reasonable juror would conclude that Ambrizs best argument was that the photographs looked like child abuse.
D. Misstating the Burden of Proof
Ambriz contends the prosecutor incorrectly said "Proof beyond a reasonable doubt equals proof that the charges are true . . . ." But he also said the jury must have "an abiding conviction that the charges are true." That language is consistent with the proper jury instruction on the burden of proof (CALJIC No. 2.90) which the court gave. (People v. Light (1996) 44 Cal.App.4th 879, 888.) The prosecutor told the jury to follow that instruction. There was no misconduct.
E. Disruption of Defense Testimony and "Badgering" the Defendant
Ambriz contends the prosecutor committed misconduct by objecting 44 times when the defense questioned witnesses Caroline Flores and Chuc. A pattern of numerous frivolous objections solely to disrupt the defense is misconduct. (People v. Hill (1998) 17 Cal.4th 800, 833.) But that did not happen here. The testimony of these witnesses is contained in over 70 pages of transcript. The court sustained 17 objections and noted that several objections were overruled, even though the prosecutor properly raised them. Ambriz has not shown the objections were either a tactic to disrupt the defense or "deceptive or reprehensible" conduct. (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Ambriz contends the prosecutor committed "severe" misconduct by "badgering" Ambriz and "engaging in excessive" disruption of his testimony during cross-examination. But based on our review of the record, we conclude he has not shown prosecutorial misconduct. (People v. Samayoa,supra, 15 Cal.4th at 841.)
F. Asking the Jury to Consider Matters Not in Evidence
Ambriz contends the prosecutor asked the jury to take notes on charts he prepared on intent, which were neither in evidence nor an exhibit allowed in the jury room. The prosecutor told the jury, "[Y]ou wont have my charts back in the deliberation room. If theres anything you want to write down on these charts, please feel free to do so . . . ." The record does not reflect the content of these charts and Ambriz did not request a settled statement to describe them. But, the prosecutor did not say the charts were evidence and there was no objection to them. The court instructed the jury that statements by the attorneys "are not evidence." (CALJIC No. 1.02.) Ambriz has not shown that the charts were inconsistent with any jury instructions. The jurors had the right to take notes and Ambriz has not shown prejudice. (People v. Thompson (1990) 50 Cal.3d 134, 173.)
G. Asking Questions Which Called For Hearsay Answers
Ambriz contends the prosecutor intentionally asked questions to introduce inadmissible hearsay evidence which was prejudicial. We disagree. "`The deliberate asking of questions calling for inadmissible and prejudicial answers is misconduct. [Citation.]" (People v. Bell ,supra, 49 Cal.3d at p. 532.)
Ambriz objected to a question to Klug about why he questioned Ambriz about stepping on Denise. The court sustained a hearsay objection which prevented Klug from disclosing a conversation he had with Doctor Flores about Denises injuries. Ambriz has not shown that asking the question amounted to reprehensible conduct or that there was prejudice. Doctor Flores later testified about those injuries and was subject to cross-examination. (People v. Bell , supra, 49 Cal.3d at p. 531.) Moreover, the court instructed the jury, "If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection." (CALJIC No. 1.02.)
Ambriz objected to a question to Reed about the name of a witness who provided new information about Ambriz. But he has not shown that the prosecutor deliberately asked this question for the purpose of introducing inadmissible evidence. Moreover, there was no prejudice because the court sustained a hearsay objection before Reed could answer and the witness subsequently testified at trial.
H. Not Correcting Misleading Evidence
Ambriz contends Klug and Reed misled the jury by testifying that Ambriz referred to Denise as Chucs daughter several times in interviews. Ambriz concedes he did that once. But he claims the prosecutor should have corrected their testimony and played the other portions of his police interview tapes which show he repeatedly called her "my daughter."
Portions of the tapes were played for the jury, but the record does not reflect which portions. Ambriz augmented the record with a transcript of the tapes, but did not request a settled statement to identify the portions played to the jury. We may not speculate about what it heard. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517; In re Kathy P. (1979) 25 Cal.3d 91, 102.) Ambriz has not shown that his references to "my daughter" on the tapes were not played to the jury.
The Attorney General objects to the transcript of the tapes and argues we may not use it to make the fact findings that Ambriz wants on this issue. He correctly notes it was not before the jury, was not authenticated below, and even assuming it accurately reflects the tapes, the record is unclear as to whether the tapes are the complete record of all the interviews. Neither the reporters certificate on the transcript nor the declaration supporting his motion to augment adequately cover these issues. There was at least one home interview with Ambriz which apparently was not taped. We do not know how the officers would have responded to Ambrizs accusations about false or perjured testimony because he did not raise them below. He has neither produced a sufficient record nor adequately preserved this issue for appeal. (People v. Waidla,supra, 22 Cal.4th at p. 703; In re Kathy P., supra, 25 Cal.3d at p. 102.)
But even on the merits, Ambriz has not shown that the prosecutors conduct was either reprehensible or prejudicial. His suggestion that the prosecutor tried to conceal the references to "my daughter" is without merit. He gave the tapes to Ambrizs counsel who told the court she had reviewed all of them. Moreover, Ambriz testified he referred to Denise as "your daughter" when he talked to Chuc and conceded "thats what we usually say."
Ambrizs remaining contentions about prosecutorial misconduct are either without merit or were waived by his failure to object.
VII. The Restitution Order
Ambriz contends that the restitution order to the House of Grace was unauthorized. We agree. At the time of the offenses, the victim restitution statute defined a victim as "[t]he immediate surviving family of the actual victim" (§ 1202.4, subd. (k)(1)) or a business or other entity that "is a direct victim of a crime" (Id. at subd. (k)(2)). A business or other entity is not a victim for restitution purposes unless it was the object of the crime. (People v. Birkett (1999) 21 Cal.4th 226, 232-233.) Ambriz and the Attorney General agree that the House of Grace was not the object of Ambrizs offenses. There is no evidence in the record which supports the finding that it was a victim within the meaning of the statute. The restitution order must be stricken.
Ambrizs remaining contentions are without merit and the cumulative effect of any errors was not prejudicial. (People v. Bell,supra , 49 Cal.3d at p. 542.)
(Ambrizs Second Appeal)
VIII. Judgment Reducing His Sentencing Credits
Ambriz contends that the second judgment which reduced his sentencing credits was void because the court did not hold a hearing and give him the opportunity to be present. We agree. A "`. . . judgment and sentence in felony cases may be imposed only in the presence of the accused . . . . [Citation.]" (In re Williams (2001) 83 Cal.App.4th 936, 943.) This is a fundamental requirement of due process. (Id. at p. 942.) Here the Department of Corrections requested the court to correct the sentencing credits. But "[b]efore the trial court could correct the sentence in accordance with the departments suggestion, the matter should have been returned for a hearing with petitioner present." (Ibid .) A reduction in sentencing credits increases prison time and "involves a liberty interest." (Ibid.) "[T]he judgment . . . cannot be amended without affording petitioner the same due process rights which accrued when it was first imposed. [Citation.]" (Id. at p. 943.)
The Attorney General contends that dispensing with a hearing in this case was proper because Ambrizs objections to the reduction in credits are meritless. But "[t]he right to be heard does not depend upon an advance showing that one will surely prevail at the hearing." (Fuentes v. Shevin (1972) 407 U.S. 67, 87.) "[I]t is no answer to say that in his particular case due process of law would have led to the same result . . . ." (Coe v. Armour Fertilizer Works (1915) 237 U.S. 413, 424.) Ambriz had the constitutional right to an adequate hearing to raise his challenges and preserve a record on appeal. Entering a new judgment to increase prison time without a hearing was not appropriate. (People v. Mora (2002) 99 Cal.App.4th 397, 398; People v. Arbee (1983) 143 Cal.App.3d 351, 356.) We do not discuss Ambrizs remaining challenges to the reduction in credits because he may raise them in the trial court on remand.
Disposition
On the first appeal we strike the restitution order to the House of Grace. In all other respects the judgment is affirmed. On the second appeal we reverse the judgment which reduced Ambrizs sentencing credits and remand for a hearing to decide whether reduction of the credits is appropriate.
We concur: YEGAN, J. and COFFEE, J. --------------- Notes: All statutory references are to the Penal Code.