Opinion
H036021
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID BOSSI DELREAL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Benito County Super. Ct. No. CR0800333)
I. INTRODUCTION
Defendant David Bossi DelReal was charged by information with one count of attempted first degree murder of Jose Avalos. (Pen. Code, §§ 187, subd. (a), 664.) The amended information also alleged that in the commission of the attempted murder defendant personally used or discharged a firearm (§ 12022.53, subds. (b)-(d)) and that he personally inflicted great bodily injury (GBI) upon the victim (§ 12022.7, subd. (a)). The gun-use and GBI allegations were bifurcated for trial by the court.
Further undesignated section references are to the Penal Code.
The jury found defendant not guilty of attempted murder but guilty of the lesser included offense of attempted voluntary manslaughter. (§§ 192, 664.) The court found the GBI allegation to be true. But because section 12022.53 does not apply to attempted voluntary manslaughter, defendant's sentence could not be enhanced under any of the section 12022.53 subdivisions alleged in the amended information. The trial court decided that section 12022.5, subdivision (a) was a lesser included enhancement to section 12022.53, and found it to be true. The trial court sentenced defendant to total of 19 years and two months in prison, which included 10 years for the section 12022.5 enhancement plus three years for the section 12022.7 enhancement. Defendant was also ordered to pay victim restitution of $73,591.51.
A separate information charged defendant with carrying a concealed dirk or dagger. (§ 12020, subd. (a)(4).) The two cases were consolidated for trial and the jury found defendant guilty of the concealed weapon charge. That charge is not an issue in this appeal.
Defendant raises four arguments on appeal. He maintains that the prosecutor committed prejudicial misconduct by misstating the law pertaining to voluntary intoxication; the trial court erred in adjudicating the section 12022.5 allegation because it had not been pleaded; section 654 precludes punishment for both the firearm and the GBI enhancements; and, there is no factual basis for the amount of the victim restitution ordered. We agree that the GBI enhancement must be stayed and shall modify the judgment accordingly.
II. FACTS
A. The Prosecution Case
1. José Avalos
On February 20, 2008, Jose Avalos and Richard Huerto had parked Richard's car by a friend's house when they observed nearby two people they recognized to be rival gang members. Richard called defendant and defendant's brother, Martin, for protection. When defendant and Martin arrived, Jose saw defendant reach his hand into his belt, pull out a gun, and point it toward the sky. Jose heard him announce: "This is what I got for them" or something like that. But by then the two rival gang members were no longer present. Defendant and Martin got into Richard's car and the group drove around for about an hour.
In order to make the factual narrative as clear as possible we shall refer to the men other than defendant who were present at the time of the incident by their first names.
Eventually, the men stopped at Jose's house where they met up with some other men. They had "two thirty-packs of Budweiser" and drank with a "beer bong," which is a funnel that allows one to drink two or three beers at a time. Everybody got "messed up." Jose denied having drunk very much himself but he thought "everyone else" drank "probably like six beers they had within ten minutes." Martin started fighting with Richard and tried to break a lamp over his head. They were not fighting really hard but "just like that[,] [defendant] pulled out his gun, put it in the back of [Martin] and told him calm the F down."
Jose tried to throw the brothers out of the house and "[t]he next thing I know, [defendant] hits me once on the nose, I am checking for blood, I know he has a gun, so I tell him [g]ive the gun to [Richard]." When defendant shook his head "no" Jose said that he could not control himself and "went after him." Jose punched defendant in the face a few times. Jose stated that, probably because he (Jose) had the upper hand, defendant "stepped back like two steps and shot me in my stomach." Defendant was standing in front of Jose and Jose saw defendant pull out his gun and fire. Jose felt a burning and fell to the ground. Martin immediately started kicking and punching Jose. Jose's brother Fernando punched Martin off Jose and the brothers ran away.
Soon an ambulance and the police arrived. Jose told the police that "David" had shot him. While in the hospital recovering from the surgery to repair the gunshot wound, Jose identified defendant in a photo lineup. He identified Martin as the one who kicked him after he was shot.
When asked on cross examination what had started the fight, Jose said, "The beer, we drank it too fast, next thing you know everyone is fighting each other, you know. Martin is the one who initiated the fight against [Richard]. And then [defendant] pulled out the gun, put [it] in the back of his brother and said [c]alm down or I'm going to F-ing shoot you." Martin showed signs of being drunk in that he was "overaggressive." Jose threw Martin's shirt at him, called him a "tweaker" because he believed that he and defendant used methamphetamine, and told him to get out of the house. That was when defendant got mad and punched him in the nose and Jose lost control and started punching defendant. Jose was certain that it was defendant who shot him; "[w]ithout a shadow of a doubt in my mind, I am a hundred percent sure who shot me."
2. Captain Carlos Reynoso
Captain Carlos Reynoso interviewed Jose after his first surgery. Reynoso had supervised the crime scene and was aware that Jose's brother Fernando had identified Martin as the shooter. Indeed, by the time Reynoso interviewed Jose at the hospital, Martin was in custody. He had been found about 300 yards away from the crime scene, so drunk he could not stand up straight. He had vomited "all over himself, and was incoherent," "mumbling," "very intoxicated." Defendant had not been located.
When Reynoso met with Jose at the hospital, Jose could not speak but he appeared awake and alert and answered questions by nodding or shaking his head or giving a thumbs-up or thumbs-down sign. Jose wrote a note saying he wanted Martin arrested. He denied that Martin had shot him, stating that defendant had shot him but that Martin had kicked him after he was shot. He identified Martin from a photo lineup. He also identified defendant and wrote next to defendant's photo, "shoot me." Jose asked Reynoso if he wanted the whole story, and then wrote, "attempted murder" on the captain's clipboard. Jose wanted both men prosecuted for attempted murder.
About a month later, Reynoso interviewed Jose in the hospital after he had been re-admitted for complications from the previous surgery. He was "in pretty bad shape" but could speak. At that interview Jose said that he did not want to prosecute his assailants; he "was intoxicated at the time of the shooting" and was "under the influence of morphine" when he made his initial statement at the hospital. When asked if he was worried about retaliation, Jose responded, "of course." Upon questioning a few days later, Jose confirmed his original story.
3. Officer Heather Dorman
Officer Heather Dorman responded to a report of a gunshot on February 20, 2008. She found Jose lying on the ground with blood on his face and blood coming through his shirt. She asked him who shot him and he said "David" but did not know his last name.
4. Officer David Blair
Officer David Blair also responded to the report of a shooting. He searched for suspects and came across Martin, who was extremely intoxicated, sweaty, and had trouble standing on his own.
5. Officer Don Magnuson
On December 19, 2009, Officer Don Magnuson conducted a probation search at a residence where he found defendant hiding under a pile of laundry.
B. The Defense Case
1. Fernando Avalos
Fernando Avalos, Jose's brother, was called by the defense. On the night his brother was shot he was inside the house eating dinner with his mother. He heard a gunshot and ran outside to see what was going on. He saw one man over Jose punching him. Fernando punched that man off his brother. A second man was already down the block. The two ran away. Fernando was later taken to where Martin had been detained. He identified Martin as the person that had been on top of his brother. He denied identifying him as the shooter and disputed the statement to that effect in the police report. He said, "[Y]eah, that was him" not that that was the man who shot Jose. He admitted that when he ran out of the house he heard Jose say, "He shot me," so it was possible he thought that Martin had shot Jose. He had not seen the shooting.
2. Officer Heather Dorman
Officer Dorman was also called by the defense. She testified that prior to the field show-up Fernando reported that "Nick," was the younger brother of "David," and that David was the person who shot Jose.
3. Louis Sumaya
Louis Sumaya was present in the vicinity when Jose was shot. He denied seeing the shooting or any fighting. He did not recall seeing defendant at the scene.
4. Officer Jeffrey Caires
Officer Jeffrey Caires transported Fernando to the in-field show-up. Fernando saw Martin in the back of the police vehicle and stated, "That's him, that's the mother fucker who shot my brother." Fernando was positive the person was the same person who he saw with his brother; he did say that he sometimes got the names of the two DelReal brothers mixed up.
Caires returned to the scene and interviewed Louis Sumaya. Louis said that he had been looking down at his cell phone when he heard a shot. He looked up and saw "DelReal" and an unidentified person walk away from the scene. Louis also said that he saw DelReal put something in his pocket or down the side of his pants while he was walking away. He then saw Jose drop to the ground bleeding. Louis began to walk toward Jose when he saw DelReal turn around, look toward him, and place his hands in his pocket as if to grab something.
III. DISCUSSION
A. Prosecutorial Misconduct
Defendant first argued that the prosecutor misled the jury with regard to the intent necessary for attempted voluntary manslaughter. In his opening argument the prosecutor spoke about the attempted murder charge, arguing that defendant had acted with the intent to kill and with premeditation. The prosecutor touched upon the court's instructions regarding deliberation, then noted, "The judge also mentioned involuntary [sic] intoxication. I'm going to remind you at this point the defense put up the Soddi defense. Their defense was some other dude did it, not some other dude did it and, oh, by the way, if it was my guy he was intoxicated. Or oh, by the way, if it was my guy he acted in heat of passion or was imperfectly defending himself. [¶] But let's talk about that. Defendant had to be so intoxicated he did not know what he was doing when he pointed the gun to the victim and pulled the trigger. He had to be so drunk that he didn't realize, gee, if I point this gun and I shoot it I'm not [sic] going to kill this guy. The other thing you need to remember is the issue of intoxication only comes into your thinking, your decision making with respect to the crime of attempted murder. [¶] Was there intent to kill and was there deliberation and premeditation only? That means you can look and say, yeah, he had some drinks-- I will talk to you more about that later because he wasn't that drunk, but you can look at that and deliberate that on those issues only."
The trial court overruled a defense objection to the prosecutor's "definition of voluntary intoxication." The prosecutor went to argue, "Once you got that intent to kill, as far as that part of it's done, you can't say, well, he was really drunk and so if I—if someone was that drunk they might have been that passionate because they really didn't know what was going on. Doesn't matter, it's a reasonable person only. Alcohol doesn't come in."
Defendant argues that the prosecutor misstated the law pertaining to voluntary intoxication by telling the jury that it could consider intoxication only with regard to the intent necessary for murder and that it was not to be considered in connection with the lesser included offense of voluntary manslaughter. The Attorney General responds that defendant misreads the argument, defendant waived the error by not objecting on the ground he raises on appeal, and, in any event, if there was a misstatement, it was harmless. We agree with the Attorney General's final point.
A close reading of the prosecutor's argument indicates that there was no clear misstatement of the law. The alleged misstatement was made in the context of the prosecutor's discussion of the crime of attempted murder. He noted that the issue of intoxication "only comes into your thinking, your decision making with respect to the crime of attempted murder. [¶] Was there intent to kill and was there deliberation and premeditation only?" The statement could be read two ways: that intoxication is relevant only to the crime of attempted murder or that intoxication relates only to the elements of intent and deliberation. The latter reading is supported by the very next comment the prosecutor made: "Once you got that intent to kill, as far as that part of it's done, you can't say, well, he was really drunk and so if I—if someone was that drunk they might have been that passionate because they really didn't know what was going on. Doesn't matter, it's a reasonable person only. Alcohol doesn't come in." That is, the argument was that intoxication plays no role "[o]nce you got that intent to kill." Thus, the argument does not disclose a patent misstatement of the law. At worst, the argument is ambiguous. For the reasons that follow, any ambiguity was harmless.
The voluntary intoxication instruction was supported by the slimmest of evidence. The only evidence that defendant was intoxicated was Jose's use of the plural pronoun. Furthermore, the defense did not turn upon defendant's state of mind. Defendant's theory was that he was not the shooter. In his argument to the jury, defense counsel focused upon inconsistencies between Jose's trial testimony and reports he made after the shooting, in an effort to show that Martin, not defendant, was the shooter. His only mention of voluntary intoxication came toward the end of his argument, when he told the jury, "And it's true by law we have to give, whenever there is a serious crime, lesser crime and defenses with supporting evidence. If some of you--if some of you say, you know what, I don't care what [defense counsel] says, he pulled that trigger, somebody say [sic] that you still have to go down that line of involuntary intoxication—voluntary intoxication and imperfect self-defense." Counsel concluded, "But I am confident at the end of this deliberation every one of you is going to say we just didn't have enough, that it is not guilty, that you just didn't give us the information to prove that [defendant] did the shooting."
And finally, there is no dispute that the trial court properly instructed the jury in the elements of attempted murder, attempted voluntary manslaughter, and voluntary intoxication. The trial court also instructed the jury to follow the instructions and the law as the court explained it. If counsel's description of the law was different, the jury was to ignore it. We presume the jury followed the instructions it was given. (People v. Cain (1995) 10 Cal.4th 1, 34.) In light of all this, and applying the more stringent federal test (Chapman v. California (1967) 386 U.S. 18, 24), we are convinced beyond a reasonable doubt that, absent the ambiguity in the prosecutor's argument, the jury would nevertheless have reached the same result.
B. The Section 12022.5 Enhancement
The amended information alleged that defendant had committed the crime of attempted murder under the circumstances described in section 12022.53, subdivisions (b), (c) and (d), which provide for enhanced punishment where a person uses a firearm in the commission of a crime described in subdivision (a) of that section. The crimes listed in subdivision (a) of section 12022.53 include attempted murder; they do not include attempted voluntary manslaughter. Thus, when the jury found defendant not guilty of attempted murder but guilty of attempted voluntary manslaughter, the section 12022.53 allegations no longer applied. The prosecutor urged the trial court to use section 12022.5 instead. Defendant countered that because the section 12022.5 allegation was never pleaded, he had no notice and had not waived his right to a jury trial on that enhancement.
Relying upon People v. Dixon (2007) 153 Cal.App.4th 985 (Dixon), the trial court concluded that defendant had notice of the allegations contained in section 12022.5 and that he had waived his jury trial right as to those allegations when he waived the right in connection with section 12022.53. The court then found both the section 12022.5 gun- use allegation and the section 12022.7 GBI allegation to be true. Defendant argues on appeal that this was error, depriving him of due process and the right to a jury. The issue presents a question of law we review de novo. (Cf. People v. Cromer (2001) 24 Cal.4th 889, 894.)
" '[T]he role of the accusatory pleading is to provide notice to the defendant of the charges that he or she can anticipate being proved at trial. "When an accusatory pleading alleges a particular offense, it thereby demonstrates the prosecution's intent to prove all the elements of any lesser necessarily included offense. Hence, the stated charge notifies the defendant, for due process purposes, that he must also be prepared to defend against any lesser offense necessarily included therein, even if the lesser offense is not expressly set forth in the indictment or information." [Citation.]' (People v. Anderson (2006) 141 Cal.App.4th 430, 445.)" (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581.)
Here we are not concerned with a substantive offense but with an enhancement allegation. The pleaded enhancements, subdivision (b), (c), and (d) of section 12022.53, provide that anyone who, in the commission of a felony specified in subdivision (a), "personally uses a firearm" (id. subd. (b)), "personally and intentionally discharges a firearm" (id. subd. (c)), or "personally and intentionally discharges a firearm and proximately causes great bodily injury" (id. subd. (d)), shall be punished by an additional 10, 20, or 25 years to life. Section 12022.5, subdivision (a), which is the enhancement the trial court applied, provides for an additional term of three, four, or 10 years where the person "personally uses a firearm in the commission of a felony or attempted felony." Thus, the facts necessary for a true finding under section 12022.5 were necessarily alleged by virtue of the section 12022.53 allegations.
Dixon, supra, 153 Cal.App.4th at pages 1001 through 1002, is almost precisely on point. In Dixon, the accusatory pleading alleged that the defendant had committed second degree robbery (§ 211) and alleged that he had personally used a firearm within the meaning of section 12022.53, subdivision (b), in the commission of that crime. The defendant waived his right to a jury trial on the enhancement allegation. He was convicted of the robbery, but the trial court found that his weapon, a BB gun, was not a "firearm." (Dixon, supra, at pp. 988, 1001.) Accordingly, the trial court found that the defendant had personally used a deadly weapon within the meaning of section 12022, subdivision (b). (Dixon, supra, at p. 1001.) On appeal, the defendant argued that, because the section 12022 enhancement had not been pleaded, he had not had adequate notice and had not waived his jury-trial right. (Dixon, supra, at pp. 1001-1002.) The appellate court rejected the argument: "Since section 12022, subdivision (b), is included within section 12022.53, subdivision (b), Dixon was adequately apprised that the prosecution was seeking to prove the elements which comprise a section 12022, subdivision (b), enhancement. Consequently, there was no lack of notice or due process violation. [¶] Likewise, when Dixon waived his right to a jury trial on the allegations of the enhancement, he waived his rights to be tried on the lesser-included enhancements. (§ 1159; People v. Beller (1985) 172 Cal.App.3d 904, 911 [jury or court may find defendant guilty of offense charged, necessarily included offense, or attempt to commit offense].)" (Id. at p. 1002.)
Citing People v. Majors (1998) 18 Cal.4th 385, 410-411, defendant argues that Dixon ignores the distinction between offenses and enhancements. Under the present circumstances, that distinction makes no difference. Majors ruled that the trial court had no sua sponte duty to instruct the jury on lesser included enhancements. As the Majors court explained, one of the main reasons for requiring instructions on lesser included offenses is to eliminate the risk that the jury will convict just to avoid setting the defendant free. "This risk is wholly absent with respect to enhancements, which a jury does not even consider unless it has already convicted defendant of the underlying substantive offenses." (Id. at p. 410.) Majors says nothing about whether pleading a greater enhancement is adequate notice of a lesser. People v. Botello (2010) 183 Cal.App.4th 1014, 1027, upon which defendant also relies, is inapt because in that case, the enhancement at issue, section 12022.53, subdivision (e)(1), had its own express pleading requirements with which the prosecution had not complied.
Following the reasoning of Dixon, we conclude that the pleaded section 12022.53, subdivision (b) allegation, that defendant was the one who "personally use[d] a firearm" in the commission of a specified felony, incorporates the elements of section 12022.5, which are that the person have "personally use[d] a firearm in the commission of [any] felony." Accordingly, defendant had adequate notice that the prosecution was seeking to prove the elements of a gun-use enhancement and his waiver of a jury trial on the truth of the gun use allegations applies to the lesser as well as to the greater. (Dixon, supra, 153 Cal.App.4th at p. 1002.)
C. Section 654
Defendant argues that the trial court erred by imposing consecutive sentences for both the section 12022.5 and the 12022.7 enhancements because section 654 prohibits multiple punishment for the same act. The Attorney General argues that even if section 654 applies, section 1170.1, subdivisions (f) and (g) exempt these enhancements from the operation of section 654. We agree with defendant.
The question whether section 654 applies to enhancements based upon the nature of the conduct, as opposed to the defendant's status, is presently pending before the Supreme Court. (See People v. Robinson, S193289, review granted Jul. 13, 2011; People v. Ahmed, S191020, review granted Apr. 20, 2011.)
Prior opinions of the Supreme Court suggest that section 654 applies to conduct enhancements. Section 654, subdivision (a) provides, in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Italics added.) In People v. Coronado (1995) 12 Cal.4th 145 (Coronado), the Supreme Court held that enhancements directed at a defendant's "status," such as those based upon prior convictions, are not subject to the limitations of section 654 because status enhancements "are not imposed for 'acts or omissions' within the meaning of [section 654]. . . ." (Coronado, supra, at p. 157.) Status enhancements "are attributable to the defendant's status as a repeat offender [citations]; they are not attributable to the underlying criminal conduct which gave rise to defendant's prior and current convictions." (Id. at p. 158.)
Coronado did not decide whether section 654 applies to sentence enhancements based on conduct, such as the infliction of great bodily injury and the personal use of a firearm. But the rationale for the court's holding implies that section 654 does apply. That is, status enhancements are not subject to section 654 limitations because status enhancements are not encompassed by the "act or omission" language of section 654. But conduct enhancements, which do punish acts or omissions, fall within the plain language of the statute and, logically, are subject to it. (See People v. Arndt (1999) 76 Cal.App.4th 387, 394-395 [concluding that where an enhancement looks to conduct of the defendant underlying the current offense, section 654 applies].)
The Attorney General implicitly concedes that section 654 applies to conduct enhancements and, if applicable here, that it would operate to stay the term for the GBI enhancement. But according to the Attorney General, section 1170.1, subdivisions (f) and (g) exempt firearm and GBI enhancements from the operation of section 654. Resolution of the question requires that we interpret the statute. As always, our task in interpreting a statute is to ascertain the intent of the Legislature. (People v. Connor (2004) 115 Cal.App.4th 669, 678.) We do that by examining the statutory language and giving the words their usual and ordinary meaning. If the statutory language permits more than one reasonable interpretation, we may resort to extrinsic aids, including the rules of statutory construction to help us select the interpretation that comports most closely with the lawmakers' intent. (Ibid.)
Subdivision (f) of section 1170.1 provides: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury."
Section 1170.1, subdivision (g) applies the subdivision (f) provisions to GBI enhancements: "When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm."
The Attorney General maintains that these subdivisions create an exception to section 654 because they expressly allow both gun-use and GBI enhancements to be applied in connection with a single offense. We disagree. Section 1170.1, subdivisions (f) and (g), clearly allow imposition of both types of enhancements but neither requires it. They merely state, "This subdivision shall not limit the imposition of any other enhancements," which means that the provision limiting the court to the longest of the available gun use or GBI enhancements is not to be construed as limiting the court in any other way.
When the Legislature wants to exempt a sentencing law from the operation of section 654 it does so in unambiguous language. For example, People v. Palacios (2007) 41 Cal.4th 720, 725-733 (Palacios), held that section 654 does not bar punishment for more than one gun use enhancement under section 12022.53 because each of the enhancement subdivisions specify that it is to apply, "Notwithstanding any other provision of law." The "notwithstanding" preamble is an express exception to the application of section 654. (Palacios, supra, at pp. 728-730.) Section 1170.1, subdivisions (f) and (g) contain no similar language.
Another example is section 667, subdivision (e), which states that the defendant's sentence shall be extended as specified "in addition to any other enhancement or punishment provisions which may apply." Such language unequivocally exempts the enhancement from the operation of section 654. (People v. Ramirez (1995) 33 Cal.App.4th 559, 573.) None of the statutes at issue here contains any express statement excluding section 654 or otherwise indicate that the enhancement must be applied in addition to any other enhancement or without regard to any other law.
In contrast to subdivisions (f) and (g) of section 1170.1, subdivision (h) of section 1170.1 expressly states: "For any violation of an offense specified in Section 667.6, the number of enhancements that may be imposed shall not be limited, regardless of whether the enhancements are pursuant to this section, Section 667.6, or some other provision of law. Each of the enhancements shall be a full and separately served term." This language plainly exempts enhancements for a section 667.6 conviction from any "other provision of law." Subdivisions (f) and (g) of section 1170.1 contain no similar language. We presume that the difference is deliberate. (Cf. Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 18.)
We conclude that, based upon the reasoning implicit in Coronado, supra, 12 Cal.4th 145, section 654 applies to conduct enhancements and further that section 1170.1 does not operate to exclude the GBI and gun use enhancements from application of that law. Accordingly, where use of the firearm was the act that caused the great bodily injury, application of section 654's proscription against multiple punishment requires the court to stay imposition of punishment for the lesser of the two enhancements. Here, that means that the court should have stayed the term for the section 12022.7 GBI enhancement.
D. Victim Restitution
Defendant argues that the trial court abused its discretion by imposing $73,591.51 in victim restitution (§ 1202.4) because the hospital bills attached to the probation report total only $60,815.31. The Attorney General points out that defendant's total ignores one bill for $10,776.25. The Attorney General is correct about the omission but the exact amount of the omitted bill is not clear since the bill in the record is incomplete. Thus, the record reflects a minimum of $71,591.56. But more importantly, since the probation report specified that the victim had an open claim with the Victim's Compensation Board of $73,591.51, defendant had notice of the total victim restitution being recommended and was entitled to, but did not, challenge it. Absent objection, an award of the amount specified in the probation report is not an abuse of discretion. (People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407.)
The items listed on the hospital bill at page 291 add up to over $10,000 but there is no total on that page. The total on page 292 is for a different bill.
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IV. DISPOSITION
The judgment is modified to stay the three-year term imposed under Penal Code section 12022.7, subdivision (a). As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
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Premo, J.
WE CONCUR:
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Rushing, P.J.
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Elia, J.