Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 92F11292
BUTZ, J.In a previous trial, a jury convicted defendant Long Phi Le of first degree premeditated murder and found he personally used a firearm to commit the offense. (Pen. Code, §§ 187, subd. (a), 12022.5, subd. (a).) We reversed, concluding that the trial court erred prejudicially in refusing to instruct on the heat of passion/provocation theory of voluntary manslaughter.
Undesignated statutory references are to the Penal Code.
Upon retrial, another jury once again convicted defendant of first degree premeditated murder and found he personally used a firearm. (§§ 187, subd. (a), 12022.5, subd. (a).)
On appeal, defendant contends the trial court erred (1) in denying a continuance so defendant could substitute retained counsel, (2) in refusing to appoint new counsel for a new trial motion based on ineffective assistance of trial counsel, (3) in denying a mistrial motion based on the prosecutor’s reference to gang connections, (4) in admitting evidence of defendant’s prior convictions, (5) in refusing to instruct on the voluntary manslaughter theory of imperfect defense of another, and (6) in imposing a parole revocation fine, restitution fines, and victim restitution. We shall strike the parole revocation and the restitution fines, remand for a restitution hearing, but otherwise affirm the judgment.
FACTUAL BACKGROUND
Late into the night and early morning of December 12 to 13, 1992, defendant was at a restaurant with, among others, Khanh (Danny) Tran, Tuan Nguyen and Phuc Tran. Around 1:00 a.m., the eventual victim, Tot Nguyen, his younger brother Sanh, and Tot’s friend, Viliami (Fua) Mataele, arrived at the restaurant. (For simplicity, we will use first rather than last names because many of the individuals share the same last name.)
A dispute arose between the two groups when Danny (of defendant’s group) adversely interpreted a look from Fua (of Tot’s group). Danny angrily confronted Fua and slapped him several times on the back of the head.
Danny’s companions then surrounded Fua and Tot’s table. Tot tried to calm the situation. Defendant asked Sanh to step back and attempted to hold Danny back. Sanh was then pushed from behind and threw a punch, which apparently landed in defendant’s face.
A five-minute melee then ensued, with Tot, Sanh and Fua fighting defendant and several members of his group. Punches and kicks were exchanged, and at least one chair was used to threaten Sanh. Defendant’s group apparently received the worst of it and left the restaurant.
Defendant’s group drove away in three or four cars. Defendant was in Danny’s car. Shortly after leaving, the group stopped at a parking lot. Upset, defendant told the others they were going back to the restaurant to (depending on some ambiguity in the translation) fight, shoot, or kill.
When defendant’s group returned to the restaurant shortly thereafter, Danny immediately got out of his car and challenged Tot to fight him one-on-one. The evidence is conflicting as to whether a fistfight with Tot ensued (the weight of the evidence shows that Tot and his group were moving back, away from Danny, although defendant claimed that Tot initially moved away from Danny and then moved toward Danny from behind. Defendant then approached Tot and shot him in the head, killing him. (Defendant concedes he shot and killed Tot.)
Defendant testified that, in addition to having inflamed passions, he believed his actions were necessary to protect his friend Danny from an ambush and severe beating (more on this in our discussion of the issue of imperfect defense of another).
After the shooting, defendant fled California and settled in Ohio under an alias. After being apprehended in Ohio in 2002, defendant told a fellow inmate that he had shot someone in the head at a restaurant in California.
DISCUSSION
I. Denial of Request for Continuance to Substitute Retained Counsel
Defendant contends the trial court abused its discretion in denying his request for a continuance to substitute counsel he had retained. We disagree.
The constitutional rights of due process and of effective assistance of counsel encompass a right to defend with privately retained counsel of one’s own choice. (People v. Courts (1985) 37 Cal.3d 784, 789; People v. Crovedi (1966) 65 Cal.2d 199, 206.) Given this weighty constitutional backdrop, “trial courts are required to ‘make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney.’” (Courts, supra,37 Cal.3d at p. 790, quoting Crovedi, supra,65 Cal.2d at p. 207.) Nevertheless, this right of retained counsel is not absolute. For example, a defendant may not demand a continuance to exercise this right if he has been “‘unjustifiably dilatory’ in obtaining counsel,” or if he “‘arbitrarily chooses to substitute counsel at the time of trial.’” (Courts, supra,at pp. 790-791.) The decision to grant or deny a continuance in this context is within the trial court’s sound discretion. (Id. at p. 790; Crovedi, supra,65 Cal.2d at pp. 206-207.)
Here, the trial court denied defendant’s request for a continuance to substitute retained counsel, Richard Dudek, finding the request dilatory and a delay tactic. The trial court did not abuse its discretion in doing so.
Defendant did not make his request for continuance until July 3, 2007 (a Tuesday). At this point, the trial court had ruled on in limine motions, the jury selection process had begun (questionnaire answers submitted and being reviewed; voir dire to begin), and an evidentiary admissibility hearing (Evid. Code, § 402) had been scheduled for that morning and another a week later. Defendant had not contacted Attorney Dudek until the Thursday preceding his Tuesday request, and retained Dudek only during the intervening weekend. The earliest that Dudek could be ready to go was early September, two months away. And our opinion in defendant’s first appeal was filed on December 29, 2005. Remittitur issued on February 28, 2006. Under these facts, the trial court did not abuse its discretion in denying defendant’s request for a continuance to substitute retained counsel.
Defendant points out, though, that Attorney Dudek agreed to be bound by the in limine rulings already made, that voir dire had not actually begun, and that the trial court was aware of defendant’s desire for retained counsel through a quartet of Marsden-Faretta motions that defendant had made earlier. However, the in limine concession did not alter significantly the time equation facing the trial court. Although voir dire had not actually started, it was about to, based on questionnaires that had already been answered and were being reviewed. And while defendant had mentioned during at least one of his Marsden-Faretta motions that his objective was to look for his own counsel, defendant did not make the first such motion until June 21, 2007, which was shortly before his belated request for continuance on July 3. Furthermore, during these motions, defendant’s objective was just that only an objective. (In the end, the trial court did allow defendant to substitute his second choice for retained counsel, Alec Rose, on the agreed condition that he would proceed to trial without a continuance. Attorney Rose substituted in on July 9, 2007.)
People v. Marsden (1970) 2 Cal.3d 118; Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].
II. Refusal to Appoint New Counsel for New Trial Motion Alleging Ineffective Assistance of Trial Counsel
Defendant contends the trial court erroneously refused to provide him with appointed counsel to argue a motion for new trial based on retained trial counsel’s alleged ineffectiveness. Additionally, defendant asserts that the court’s refusal denied him an attorney at a critical stage of the proceedings and created an attorney-client conflict. We find no prejudicial error.
“‘When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request.’” (People v. Smith (1993) 6 Cal.4th 684, 692 (Smith), quoting People v. Diaz (1992) 3 Cal.4th 495, 573.) The applicable standard for appointment is whether the defendant has shown that trial counsel has not been providing adequate representation; the trial court exercises its discretion in making this determination. (Smith, supra, at pp. 692-696; see People v. Ortiz (1990) 51 Cal.3d 975, 984.)
Besides moving for appointed counsel to allege the trial counsel’s ineffectiveness in a new trial motion, defendant here also submitted the new trial motion. The trial court held a hearing on these two intertwined motions.
At the hearing, defendant noted that after the trial court had denied his request for a continuance to substitute Attorney Dudek as his first choice for retained trial counsel, defendant went with his second choice, Attorney Rose. Defendant argued that Rose: (1) did not have time to prepare because the trial court denied Rose’s request for continuance, and therefore Rose used the “old defense” that had failed in the first trial; (2) effectively forced defendant to testify; (3) opened the door to defendant’s prior convictions being admitted; and (4) promised defendant that he would get manslaughter (based on heat of passion) and time served. (In his opening brief on appeal, defendant also lists several avenues of witness impeachment that Rose failed to use during the second trial, but these were not presented to the trial court as a part of defendant’s motions for appointed counsel/new trial.)
At the hearing, the trial court noted that Attorney Rose had not asked the court for a continuance, but had represented that he had read everything from the prior trial and was ready for the current one. The court informed defendant that there was a record of his testimony from the first trial, and that defenses cannot be changed simply because the previous one did not work. “The case is what it is. There’s a record of the case,” the trial court explained. Had defendant not testified in the second trial, his testimony from the first would simply have been used. And since defendant testified, his prior felony convictions were disclosed. At the hearing, Attorney Rose stated that he had not promised any outcome to defendant, and noted that his retainer agreement explicitly disclaims any guarantees. Finally, the court cited the two-pronged legal standard for showing ineffectiveness of counsel deficient performance and prejudice and concluded: “Regardless of whether or not [Attorney] Rose made errors,... there is no way I can see that any errors would have changed the outcome. The case against [defendant] was extremely strong, evidentiar[il]y speaking.”
Defendant also argues that Attorney Rose, in a letter to defendant, stated that he believed a new trial motion was appropriate. Rose, however, based this potential motion on the prosecutor’s mention of gangs and on the trial court’s denial of the theory of imperfect defense of another, not on ineffectiveness of counsel.
In light of what was disclosed at the hearing held by the trial court, the court did not abuse its discretion in denying defendant’s motion to appoint counsel to move for a new trial based on trial counsel’s alleged ineffectiveness. For the same reasons, we reject defendant’s two additional derivative claims that he was denied counsel during a critical stage of the proceedings (i.e., during the motions for appointed counsel/new trial), and that trial counsel was improperly allowed to argue against defendant, his client. Furthermore, as for these two derivative claims, given the nature of the hearing that must be held when a defendant asks the trial court to appoint new counsel for a motion for new trial alleging trial counsel’s ineffectiveness, trial counsel will usually have to present his side of the story, just as is done in a similarly related Marsden hearing. This places the trial counsel and client in “an awkward position,” but “the conflict is unavoidable.” (Smith, supra, 6 Cal.4th at p. 694.) Recognizing these realities, it has been deemed better procedurally to hold a court hearing (as was done here) at which the defendant can express any specific complaints about his attorney and the attorney can respond, than to adopt the extreme position that a defendant may obtain substitute appointed counsel “on demand,” a position rejected in Marsden. (Smith, at p. 694.)
III. Mistrial Motion Based on Reference to Gang Connections
Defendant contends the trial court abused its discretion when it denied his motion for mistrial after the prosecutor violated the court’s order not to mention gangs.
The trial court had previously ruled that, since there was little or no evidence of gang activity and no evidence that defendant was a gang member, the probative value of gang evidence was outweighed by its prejudicial effect.
In cross-examining Danny Tran, the prosecutor, reading from a police report, asked:
“Q. After this shooting had occurred, we talked about you being interviewed by one officer originally, but then ultimately you were interviewed again by [two detectives]. You do recall that, right?
“A. Yes.
“Q. All right. Now, in addition to telling them that [defendant] has many gang connections in the Bay Area
“[DEFENSE COUNSEL]: May we approach?
“THE COURT: Sure.”
At the sidebar, Attorney Rose indicated he wanted a mistrial. Later, outside the jury’s presence, defendant moved for the mistrial.
In denying the mistrial, the trial court stated that the following curative instruction it had devised (and read to the jury) would be sufficient to remedy the prosecutor’s misstep: “I’m [going to] read you an instruction. [¶] As I told you at the beginning of this trial, the attorneys’ questions are not evidence. A question was asked that may have implied that defendant had gang connections. There is no evidence to support that implication. [¶] You are not to speculate about that subject, consider it or allow it to enter into your deliberations in any way.”
In light of this curative instruction, we do not think the trial court abused its discretion in denying defendant’s motion for mistrial. A mistrial should be granted only when a party’s chances of receiving a fair trial have been irreparably damaged. (People v. Burgener (2003) 29 Cal.4th 833, 873.) Irreparable damage did not occur here.
The phrasing of the trial court’s curative instruction was short, sweet and effective. It neatly referenced the previously given instruction about attorney questions not being evidence. It noted that the prosecutor’s question “may have implied” (italics added) that defendant had gang connections, and then flatly shut the door on that implication: “There is no evidence to support that implication.” All of this was likely effective with lay jurors, many of whom may believe that lawyers often use insinuating questions devoid of answers to try to slip something in as “evidence.” Furthermore, the curative instruction also admonished that the overall “subject” (i.e., gangs) and not simply the prosecutor’s question played no part in the trial.
Needless to say, defendant is not as enamored of the curative instruction as are we. He had proposed that the instruction state that the gang implication was false. However, the trial court thought it better, given the nature of a trial, to merely say that no evidence supported the implication. This sound logic also served to reiterate the evidentiary basis of a trial and the fact that attorney questions are not evidence.
In a related vein, defendant argues that the “no evidence” instruction could have inferred that no evidence was admitted at trial on this point; but that there was evidence, outside the confines of the courtroom in the police report the prosecutor had read from, that was withheld from the jury. This argument is based in excessive speculation. Again, the trial court’s phrasing on this point was direct and effective: There was no evidence to support the implication contained in the prosecutor’s mere question.
Finally, defendant points to other evidence, which was admitted (and often is equated with gangs), that the victim had intruded into defendant’s “territory” and that a few of the witnesses feared retribution for informing on defendant. In light of the effective curative instruction given here, however, the jury could not deem this evidence gang related.
IV. Evidence of Defendant’s Assault Convictions After Evidence of Victim’s Character
Defendant contends the trial court abused its discretion by admitting into evidence defendant’s two prior convictions for assault and domestic violence. This evidence was admitted after the defense had elicited testimony from Tot’s (i.e., the victim’s) friend, Fua, that Tot was a “hot-tempered guy,” and that Fua was surprised that Tot had backed down from a fight when confronted by Danny upon Danny and defendant’s return to the restaurant.
In our prior opinion, we considered this issue and concluded: “[W]e also find the trial court did not abuse its discretion in admitting into evidence to show defendant’s character for violence an additional prior conviction for domestic violence as well as additional information on a previously admitted prior conviction for assault. This evidence was admitted after defense counsel had elicited testimony that Tot, the victim, had a reputation for being ‘hot-tempered.’ (Evid. Code, § 1103, subd. (b) [in a criminal action, if a defendant presents evidence of the victim’s character for violence, the prosecutor may do likewise with respect to the defendant]; Evid. Code, § 352 [probative value versus prejudicial effect of evidence]; People v. Scheid (1997) 16 Cal.4th 1, 14 [abuse of discretion standard].)”
Defendant claims things are different this time around because it was the prosecution, not the defense, that initially presented this evidence, and Fua also testified that he never saw Tot use his temper. We are not persuaded.
It is true that the prosecution, during direct examination of Fua, refreshed Fua’s memory by playing a tape of his interview with the police that included statements from Fua that Tot was a “hot-tempered guy” and that he (Fua) was surprised Tot would “give in” and back down from a challenge to fight. The prosecutor, however, did not question Fua about these two statements. But during cross-examination of Fua, the defense did, and elicited these statements once again. In this way, the defense, as the trial court found, “open[ed] the door” to presenting the evidence of defendant’s assault convictions under the Evidence Code section 1103 avenue of the victim’s violent character. Fua’s added remark that he had never seen Tot use his temper did nothing to change this equation.
V. Refusal to Instruct on Imperfect Defense of Another Voluntary Manslaughter
Defendant contends the trial court erroneously failed to instruct on the defense-requested theory of voluntary manslaughter of imperfect defense of another (actual but unreasonable belief in need to defend another). We disagree.
We rejected this same contention in our previous opinion, stating: “[W]e agree with the trial court that the evidence is insufficient to warrant instruction on the voluntary manslaughter theory of an actual but unreasonable belief in the need to defend another. Danny and defendant were the aggressors at the time of the shooting, and Tot’s response at that point was legally justified. Consequently, this theory is unavailable to defendant. (People v. Seaton (2001) 26 Cal.4th 598, 664.)”
We do not see anything in the record to change our minds the second time around.
A court is required to give a requested instruction if there is substantial evidence to support it. In this context, substantial evidence means substantial enough to deserve consideration by the jury; in other words, evidence that a reasonable jury could find persuasive. (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8; People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1243.)
Danny and defendant were still the initial aggressors at the time of the shooting, and Tot’s response was still legally justified. Defendant essentially admitted that he never saw anyone from Tot’s group with a weapon. In this initial aggressor context, there is no evidence here that would support a right to defend another; that is, there is no evidence that, although Danny started the fight using nondeadly force, Tot or someone in his group responded so quickly with deadly force that a counter-response of deadly force was justified. (See People v. Quach (2004) 116 Cal.App.4th 294, 301-302.)
Defendant finds support for the theory of imperfect defense of another by noting in his opening brief that, “[i]n addition to hav[ing] inflamed passions, [defendant] testified that he believed his actions were necessary to protect [Danny] from an ambush. To [defendant], it appeared that Tot... and his friends were about to attack [Danny] and beat him severely.” However, this view is belied by the following sentences in defendant’s opening brief that immediately precede this quoted passage and that cite the same sections of defendant’s testimony: “[Defendant] did not have time to stop and think that he should not fire a gun.... He fired without having time tothink.” (Italics added.) Again, then, the evidence is insufficient to support an instruction on the voluntary manslaughter theory of imperfect defense of another.
Defendant also claims that many of the aforementioned errors were cumulatively prejudicial and deprived him of federal due process. The only error we have found was the prosecutor’s mention of gang connections. The trial court promptly rectified that error. Consequently, defendant’s cumulative error argument fails, and his trial was not fundamentally unfair for due process purposes.
VI. Parole Revocation and Restitution Fines
Noting that we did not address the imposition of fines in our prior opinion, the trial court imposed the same fines that were imposed previously: a parole revocation fine of $10,000 (§ 1202.45); a restitution fine of $10,000 (§ 1202.4, subd. (b)) and restitution of $3,500 to the Victims of Violent Crime Program (Restitution Fund) (§ 1202.4, subd. (f)); and restitution in an amount to be determined for Tot’s family. Defendant contends these fines are unconstitutional under ex post facto and cruel/unusual provisions, as well as unauthorized.
A. Parole Revocation Fine
Everyone agrees the parole revocation fine must be stricken. We agree. Defendant committed his crime in December 1992. The statute requiring parole revocation fines, section 1202.45, was not enacted until 1995. (People v. Callejas (2000) 85 Cal.App.4th 667, 669 [applying ex post facto to this situation]; Stats. 1995, ch. 313, § 6, p. 1758, eff. Aug. 3, 1995.)
B. Restitution Fine and Victim Restitution
Because a restitution fine is deemed to be “punishment” and victim restitution has been similarly characterized in the ex post facto context, we find it prudent to apply the restitution statutes in effect at the time of defendant’s crime. (People v. Callejas, supra, 85 Cal.App.4th at p. 670; People v. Zito (1992) 8 Cal.App.4th 736, 740-741; cf. People v. Harvest (2000) 84 Cal.App.4th 641, 650 [“victim restitution does not constitute punishment for double jeopardy purposes”].)
The applicable restitution statutes in effect at the time of defendant’s 1992 crime were Penal Code section 1202.4 and former Government Code section 13967, which provided as pertinent:
“(a) In any case in which a defendant is convicted of a felony, the court shall order the defendant to pay a restitution fine as provided in subdivision (a) of Section 13967 of the Government Code. Such restitution fine shall be in addition to any other penalty or fine imposed and shall be ordered regardless of the defendant’s present ability to pay. However, if the court finds that there are compelling and extraordinary reasons, the court may waive imposition of the fine. When such a waiver is granted, the court shall state on the record all reasons supporting the waiver.” (Historical and Statutory Notes, 50D West’s Ann. Pen. Code (2004 ed.) foll. § 1202.4, pp. 175-176.)
Former Government Code section 13967:
“(a) Upon a person being convicted of any crime..., the court shall... order the defendant... to pay restitution to the victim in accordance with subdivision (c). In addition, if the person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than... $200..., subject to the defendant’s ability to pay, and not more than... $10,000.... Except as provided in Section 1202.4 of the Penal Code and subdivision (c) of this section, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section.... [¶]... [¶]
“(c) In cases in which a victim has suffered economic loss as a result of the defendant’s criminal conduct, and the defendant is denied probation, in lieu of imposing all or a portion of the restitution fine, the court shall order restitution to be paid to the victim.... Notwithstanding subdivision (a), restitution shall be imposed in the amount of the losses, as determined. The court shall order full restitution unless it finds clear and compelling reasons for not doing so, and states them on the record. A restitution order imposed pursuant to this subdivision shall identify the losses to which it pertains, and shall be enforceable as a civil judgment.... [¶] Restitution ordered pursuant to this subdivision shall, to the extent possible, be of a dollar amount that is sufficient to fully reimburse the victim... for all determined economic losses incurred as the result of the defendant’s criminal conduct.... [¶] For any order of restitution made pursuant to this subdivision, the defendant shall have the right to a hearing before the judge to dispute the determination made regarding the amount of restitution.” (Stats. 1992, ch. 682, §§ 4, 12, pp. 2922-2923, 2928, urgency provision eff. Sept. 12, 1992.)
This court, in People v. Frye (1994) 21 Cal.App.4th 1483 (Frye), harmonized the “ability to pay” provisions found in subdivision (a) of these two statutes and concluded: “[I]n imposing a restitution fine, the trial court must consider a defendant’s ability to pay. However, the trial court is not limited to a consideration of a defendant’s present ability to pay but may consider defendant’s ability to pay in the future.” (Frye, at p. 1485.)
In applying these principles, we conclude that the restitution fines of $10,000 and $3,500, as well as the victim restitution in the undetermined amount, must be stricken, and the matter remanded for the trial court to determine an appropriate restitution fine and/or victim restitution. If the victim restitution is determined to be $10,000 or more, the “in lieu of” language of former Government Code section 13967, subdivision (c), will reduce the maximum allowable restitution fine of $10,000 to zero. (People v. Cotter (1992) 6 Cal.App.4th 1671, 1677.) If the victim restitution is determined to be under $10,000, the trial court may impose a restitution fine and victim restitution that does not exceed the sum of $10,000. (Ibid.) For any restitution fine imposed, the trial court must consider defendant’s ability to pay, which may include defendant’s “future financial prospects.” (Frye, supra, 21 Cal.App.4th at p. 1487.) If the trial court makes a determination of the amount of victim restitution, defendant shall have the right to a hearing before the judge to dispute the determination made.
Contrary to defendant’s contention, the statutory maximum restitution fine of $10,000 was not “grossly disproportionate” to his crime of first degree murder, and therefore did not violate the cruel-unusual/excessive fine provisions of the state or federal Constitutions. (See Ewing v. California (2003) 538 U.S. 11, 21, 23 [155 L.Ed.2d 108, 117, 119].)
DISPOSITION
We strike those portions of the judgment that impose a parole revocation fine of $10,000, a restitution fine of $10,000, restitution of $3,500 to the Victims of Violent Crime Program (Restitution Fund), and victim restitution in an amount to be determined. We remand the case with directions to redetermine the restitution fine and/or the victim restitution in accord with the statements in part VI.B. of this opinion. In all other respects, the judgment is affirmed.
I concur: SIMS, Acting P. J.
Nicholson, J., Concurring.
I concur in the result of the majority opinion and concur in the majority opinion except as to part VI B of the discussion, relating to the restitution fine and victim restitution. As to that part, I disagree with the reasoning.
The majority opinion treats victim restitution as punishment for the purpose of ex post facto analysis, citing People v. Callejas (2000) 85 Cal.App.4th 667, 670 (Callejas), and People v. Zito (1992) 8 Cal.App.4th 736, 740-741 (Zito). In my opinion, victim restitution is not punishment.
The Callejas court did not consider victim restitution; the opinion states only that restitution fines are punishment for ex post facto purposes. (Callejas, supra, 85 Cal.App.4th at p. 670.) In Zito, the court quoted authority for the proposition that restitution fines are punishment for plea bargain purposes and reasoned that they are punishment also for ex post facto purposes. The opinion then uncritically jumped to calling victim restitution punishment for ex post facto purposes. (Zito, supra, 8 Cal.App.4th at pp. 740-741.) It appears that the Zito court did not have the difference between a restitution fine and victim restitution clearly in mind.
I believe the law is to the contrary. Victim restitution is not punishment. (People v. Harvest (2000) 84 Cal.App.4th 641, 650.) In Harvest, the court concluded that victim restitution is not punishment for the purpose of double jeopardy analysis. (Ibid.) I see no difference between double jeopardy analysis and ex post facto analysis with regard to what is punishment.
In any event, regardless of whether victim restitution is punishment and whether application of current restitution law, instead of the law existing in 1992, violates ex post facto principles, we must remand for the trial court to determine the amount of victim restitution. That is because, in order to determine the amount of the restitution fine under 1992 law, it is necessary to know the amount of restitution. At that time, a court could impose a restitution fine up to $10,000, but only in lieu of victim restitution, meaning that, for every dollar of victim restitution ordered, the restitution fine must be decreased by a dollar from the $10,000 maximum. (See Zito, supra, 8 Cal.App.4th at pp. 740-741.)
Accordingly, I agree that the case must be remanded for the trial court to determine the proper victim restitution and restitution fine amounts.