Opinion
B162993
7-23-2003
THE PEOPLE, Plaintiff and Respondent, v. JOHN C. NGUYEN, Defendant and Appellant.
Jeffrey S. Kross, 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, Steven D. Matthews and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
John C. Nguyen set fire to the home of his former girlfriend causing her to be severely burned. He was thereafter
charged with attempted murder, torture, aggravated mayhem, burglary, arson, and assault with a deadly weapon by means likely to produce great bodily injury, as well as the enhancement of personally inflicting bodily injury on his victim. (Pen. Code, §§ 664, 187; 206; 205; 459; 451, subd. (d); 245 subd. (a)(1); 12022.7.) Nguyen entered a plea of not guilty and not guilty by reason of insanity. (Pen. Code, § 1026.)
A jury convicted Nguyen as charged and subsequently found him to have been sane when he committed the charged offenses. The court sentenced Nguyen to an indeterminate life term for attempted murder, enhanced by three years for personally inflicting great bodily injury. The court also imposed the two-year middle term for arson and the three-year enhancement, to be served concurrently to the sentence for attempted murder. The court stayed sentencing on the remaining counts pursuant to Penal Code section 654.
On appeal from the judgment, Nguyens sole contention is the abstract of judgment should be corrected to delete a victim restitution order. We affirm the judgment as modified.
RELEVANT
PROCEDURAL BACKGROUND
During sentencing on November 12, 2002, the prosecutor informed the trial court the victims father had "been billed in excess of $ 25,000 for her injuries." In response, the court imposed a victim restitution order in the amount of $ 25,000. Defense counsel objected and requested a formal restitution hearing to prove the "actual expenses" incurred by the victim. The court decided to allow the restitution order to stand at $ 25,000 subject to modification by the court following the restitution hearing. The prosecutor agreed.
On November 15, 2002, the abstract of judgment was filed. It reflected a victim restitution order in the amount of $ 25,000. (Pen. Code, § 1203.04.)
On December 12, 2002, the restitution hearing was held. The proceedings were not transcribed, but according to the minute order from that hearing, states: "As there is no appearance or communique from the victim with a specific amount for restitution; the court grants the Peoples request for restitution pursuant to civil judgment."
DISCUSSION
Appellant contends, respondent acknowledges and we agree the abstract of judgment should be corrected to delete the $ 25,000 victim restitution order.
Penal Code section 1202.4, subdivision (f) entitles the defendant to a hearing to dispute the determination of the amount of restitution and allows the court to modify the amount on its own motion or on the motion of the parties.
In light of what occurred in this case, the abstract of judgment incorrectly orders Nguyen to "make restitution to the victim . . . in the sum [of] $ 25,000.00." Defense counsel objected to the $ 25,000 victim restitution order, and the court set a restitution hearing, allowing the victim one month to provide proof of medical expenses. At the hearing, the victim failed to appear or otherwise submit such proof. As a result, the court and prosecutor agreed the victim would pursue her available civil remedies. An amended abstract of judgment should be prepared striking the $ 25,000 victim restitution order.
DISPOSITION
The abstract of judgment is ordered corrected by deleting the order that Nguyen "make restitution to the victim pursuant [to] section 1203.04 PC in the sum [of]
$ 25,000.00." The superior court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections. As modified, the judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.