Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC502421
Mihara, J.
An information, filed August 18, 2006, charged defendant Louie Floyd Bucao with murder (Pen. Code, § 187) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The information further alleged that defendant personally used a knife in the commission of the offenses (§§ 667, 1192.7, 12022, subd. (b)(1)). On November 27, 2006, defendant entered into a plea agreement and pleaded no contest to second degree murder. On February 23, 2007, the trial court dismissed the assault count and personal use allegation in accordance with the plea agreement, and sentenced defendant to 15 years-to-life in prison. On appeal, defendant contends that the court’s orders of victim restitution are unclear and inconsistent. We agree. We therefore reverse the judgment and remand with directions to the trial court.
All further statutory references are to the Penal Code unless otherwise noted.
I. Factual Background
Defendant dated Sokim C. in August 2005. Sokim confided in defendant that her uncle, Saran Uy, raped her when she was younger. Defendant and Saran met on occasion and exchanged words. About 2:00 a.m. on August 24, 2005, defendant called Sokim at home, and Saran came to the phone while the two were speaking. A few hours later, Sokim’s mother entered one of the home’s bedrooms to find Saran fighting with another man. The man turned towards Sokim’s mother and swung a knife at her. He then stabbed Saran several times and fled through the bedroom window. Saran died from his injuries. Defendant’s friend told police officers that defendant arrived at his home later that morning and admitted to stabbing Saran. At his friend’s house, defendant removed bloody clothes and washed a bloody knife. Shortly after the stabbing, a piece of latex glove was found near Sokim’s house that contained both defendant’s and Saran’s blood.
Because defendant pleaded guilty, the facts are taken from the preliminary hearing transcript.
II. Discussion
Defendant’s only contention on appeal is that the court issued erroneous and inconsistent orders of victim restitution.
Prior to sentencing, the probation officer prepared a written report that addressed victim restitution. The report references the probation officer’s meetings with two of the victim’s brothers—Johnny Uy and Vanny Uy (also referred to as Vanna Uy). According to the report, Vanny (or Vanna) Uy estimated that he spent a total of $7,500 “out of his own pocket” for the victim’s funeral and was “assisted by Victim Witness with $5000.00” for expenses. Victim Witness confirmed that $5,000 was paid to the victim’s family.
At the sentencing hearing on February 23, 2007, the court began to order restitution to “Danny Vuy” in the amount of $7,500, but defense counsel interjected. Counsel stated that because the victim’s family had received $5,000, “Danny Vuy” should receive the difference between that and the total expenses, $2,500. Defense counsel noted defendant would stipulate to that amount, and to $5,000 in restitution to the Compensation and Government Claims Board. Accordingly, the court ordered payment of $2,500 to “Danny Vuy, V-U-Y” “as stipulated restitution to the victim” and $5,000 in restitution to the Compensation and Government Claims Board. The Department of Corrections was ordered to collect the restitution from the defendant’s earnings while in prison or on parole.
The court’s sentencing minute order reports, however, that $2,500 in restitution was awarded to “Danny Uy.” The abstract of judgment also refers to $2,500 in restitution to “Danny Uy.” Meanwhile, a “Judgment and Victim Restitution Order” entered on February 26, 2007, states that “Vanna Uy may recover . . . the sum of $7500.00, as and for unpaid balance of restitution[.]” The same document indicates elsewhere that the restitution ordered is $2,500 to “Vanny Uy.” A separate “Judgment and Victim Restitution Order” entered on the same date orders $5,000 in restitution to the Victim Compensation and Government Claims Board. Both documents state that the restitution is a “condition of probation or of a conditional sentence.”
Because defendant stipulated to the restitution amounts, each order to pay restitution is deemed a money judgment and is enforceable as if it were a civil judgment. (See § 1214, subd. (b).)
Defendant requests that the cause be remanded for the trial court to clarify the intended recipient of restitution, to correct the February 26, 2007 judgment relating to the victim’s family member to reflect only the sum of $2,500 actually ordered by the court, and to delete the notation in both February 26, 2007 judgments that the restitution orders were imposed as a condition of probation or a conditional sentence.
The People concede that the February 26, 2007 judgment relating to the victim’s family member should reflect the oral order of $2,500 and that the reference to $7,500 should be amended. The People also concede that the notation in both February 26, 2007 judgments referring to restitution as a condition of probation or a conditional sentence is in error. They request that this court modify the orders accordingly.
The People argue, however, that because it is clear that the victim’s brother is due restitution regardless of the spelling of his name, there is no error. We cannot agree. We acknowledge the general rule that a record that is in conflict should be harmonized, if possible. (People v. Harrison (2005) 35 Cal.4th 208, 226.) However, if the record “cannot be harmonized, whether one portion of the record shall prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case.” (Ibid.) Not only should the criminal judgment contain no ambiguity, but the February 26, 2007 order relating to Vanny/Vanna Uy is an enforceable money judgment that should be both accurate and internally consistent. (See generally § 1214, subd. (b).) Although it appears that the surname of the intended recipient is “Uy” and that the reference to “Vuy” by the court is an error, the first name of the brother is not apparent from the record. The victim’s brother was alternately referred to as Vanny, Vanna, and Danny and there is evidence that defendant had at least two brothers. The matter therefore must be remanded to the trial court to determine the correct recipient. (See People v. Mitchell (2001) 26 Cal.4th 181, 188 [if there is a discrepancy the appellate court cannot resolve, the court should remand and order the trial court to correct the error]; People v. Garcia (1997) 59 Cal.App.4th 834, 839 [remanding to the trial court to clarify its sentencing intention].) As we are remanding with instructions to clarify, we leave it to the trial court to correct the additional errors identified above.
At the preliminary hearing, witnesses testified that the victim’s surname was “Uy.” The spelling of the family’s surname was confirmed in testimony relating to one of the victim’s brothers, Johnny Uy, and to his father, Youm Uy.
III. Disposition
The judgment is reversed and remanded to the trial court with the following directions: (1) to clarify the victim’s family member that is the intended recipient of $2,500 in victim restitution; (2) to file an amended abstract of judgment that includes the corrected restitution order; (3) to enter a new “Judgment and Victim Restitution Order” relating to the victim’s family member with the corrected name and amount ($2,500) and omission of the notation that the restitution was imposed as a condition of probation or a conditional sentence; and (4) to enter a new “Judgment and Victim Restitution Order” relating to the Victim Compensation and Government Claims Board that omits the notation that the restitution was imposed as a condition of probation or a conditional sentence.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.