Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA054405, Martin L. Herscovitz, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, David C. Cook and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Robert Nunez appeals from the judgment entered following a jury trial that resulted in his convictions for attempting to dissuade a witness, attempted carjacking, making criminal threats, and attempted robbery, all for the benefit of a criminal street gang. Nunez was sentenced to a term of 32 years, 10 months in prison.
Nunez contends the trial court committed instructional error; the gang enhancements related to the attempted carjacking and robbery counts were not supported by substantial evidence; and the trial court improperly ordered victim restitution paid to the Los Angeles County Witness Protection Program. We agree that the victim restitution award to the Witness Protection Program must be stricken because the program was not a direct victim of the offense. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People’s evidence.
(i) Crimes against Gabriela Ochoa.
On April 21, 2006, Gabriela Ochoa witnessed a murder on Calvert Street in Los Angeles, near her residence. She identified the shooter, Romero Munoz, to police. Munoz was a member of the Barrio Van Nuys criminal street gang, with the moniker “ ‘Criminal.’ ” Nunez and co-defendant Hernandez were also members of the gang, and Hernandez had dated Munoz’s sister, Veronica. Nunez’s gang moniker was “ ‘Sleepy’ ” and Hernandez’s was “ ‘Cuete.’ ” Due to her identification of Munoz, Gabriela was afraid of Barrio Van Nuys gang members.
For ease of reference, we hereinafter sometimes refer to members of the Ochoa family by their first names.
On December 25, 2006, Gabriela was celebrating Christmas with her family and friends at her Calvert Street apartment in Van Nuys. Her brother, David Ochoa, went outside to make a cellular telephone call. While he was doing so, Nunez approached and asked about David’s brother, Rubin, and Rubin’s girlfriend, Lily. David stated he did not know where they were, and asked who Nunez was. Nunez gave his name as “ ‘Sleepy’ ” and asked, “ ‘Where [is] Gaby?’ ” Nunez departed, and David continued his telephone conversation.
Nunez returned with a gun. David, frightened, headed toward the apartment. Hernandez joined Nunez and the two men began whispering. David reached the apartment door and told Gabriela’s husband, Eduardo, what was happening. Eduardo told Gabriela, who became very frightened. David entered the apartment. Gabriela peered out the front window and called police. Nunez and Hernandez approached the apartment. Nunez aimed a black handgun at the apartment window and he and Hernandez repeatedly yelled, “ ‘bitch, ’ ” and “ ‘Rata, ’ ” which meant “ ‘snitch.’ ” Gabriela called police. Minutes later, she observed Nunez fighting with a man near a red car.
(ii) Crimes against Manuel Acevedo.
The same evening, December 25, 2006, Manuel Acevedo was visiting his girlfriend at her residence on Calvert Street, near Gabriela’s apartment. At approximately 8:00 p.m., he placed some chocolates in his car. As he crossed the street to return to his girlfriend’s apartment, Nunez approached, placed a gun against Acevedo’s rib cage, and demanded, “ ‘Give me your keys, mother fucker.’ ” When Acevedo asked what was going on, Nunez repeated, “ ‘Give me your keys, mother fucker, or I’m going to kill you.’ ” Acevedo was frightened. He told Nunez to remain calm and placed his hand in his pocket to retrieve his car keys. While Nunez was distracted, Acevedo grabbed the gun and punched Nunez, causing Nunez to fall to the ground and release the gun. Acevedo removed the gun’s magazine and kicked it under a car. Acevedo then fired the gun toward the ground to be sure no bullets were in the chamber. Meanwhile, Nunez grabbed Acevedo and punched him in the stomach. Acevedo struck Nunez in the head with the bottom of the gun. Nunez fell to the ground, but grabbed Acevedo around the waist. Acevedo hit Nunez in the head with the gun twice more.
Hernandez ran toward the struggling pair. Acevedo threw the gun on the ground and made a run for his girlfriend’s apartment, but slipped and fell on the stairs. Hernandez caught up with Acevedo, pointed a gun at Acevedo’s chest, and pulled the trigger twice. The gun made a clicking sound, but did not fire. Nunez approached and handed Hernandez the magazine that Acevedo had previously removed. While Hernandez was attempting to replace the magazine in the gun, Acevedo ran into his girlfriend’s apartment.
(iii) Arrest and investigation.
Hernandez and Nunez fled. They were pursued and apprehended by police. As he ran, Nunez threw a cellular telephone over a fence. Nunez was bleeding from his head where Acevedo had struck him. An officer recovered a loaded handgun from a nearby bush along the route where the two men had run. DNA testing confirmed that blood found on the gun belonged to Nunez. Gabriela identified Nunez and Hernandez in a pretrial photographic lineup, at the preliminary hearing, and at trial.
(iv) Threats against Gabriela during trial.
Gabriela began testifying on Friday, May 23, 2008. Her testimony was not completed before the trial adjourned for the weekend and the Memorial Day holiday. She resumed her testimony on Tuesday, May 27, 2008. After the lunch break, the prosecutor informed the court that Gabriela had been threatened over the weekend and was “extremely emotional” about testifying. When Gabriela’s testimony resumed, the prosecutor elicited that over the weekend, Gabriela had attended a Dodger baseball game. A Barrio Van Nuys gang member whom she refused to name in court told her that if “Cuete” was found guilty, he would kill Gabriela’s young daughters. The individual led her to believe she was being followed, stated that he knew where she was living, and stated the name of her oldest daughter’s school.
(v) Gang evidence.
Los Angeles Police Department Officer Todd Costello testified as a gang expert for the People. As relevant here, his testimony was as follows. The Barrio Van Nuys gang claimed the area where Gabriela’s apartment and Acevedo’s girlfriend lived. The gang’s primary activities included, inter alia, robbery, homicide, narcotics sales, weapons possession, assault with a deadly weapon, carjacking, and witness intimidation. The gang used distinctive hand signs and graffiti, and had between 100 and 150 active members. A person who testifies against a gang member is labeled a “snitch” by the gang. In gang culture, a “snitch” is typically “dealt with” by violence “ranging from getting beat[en] up to being killed.” Given a hypothetical based on the facts of the case, Costello opined that the crimes were committed for the benefit of a criminal street gang. He explained that gang members typically intimidate persons who talk to the police in order to keep their fellow gang members out of jail, and to keep the witness from testifying in court. A carjacking and robbery such as those committed against Acevedo would benefit the gang by creating fear and intimidation in the community.
b. Defense evidence.
Francisco Jaurgui testified for the defense that Hernandez had Christmas dinner with him on the night of December 25, 2006, at Jaurgui’s residence on Calvert Street. Hernandez went outside to make a telephone call. Jaurgui also went outside and observed police on the street. He then “lost track” of Hernandez’s whereabouts. Nunez testified in his own behalf, as follows. On December 25, 2006, he was celebrating Christmas with his family. He became drunk. A friend arrived and offered him drugs. The friend pulled out a gun, stating he had found it in a trash can behind his house. The friend proposed that if Nunez could sell the gun, they would split the proceeds. Nunez walked over to Calvert Street, to the home of Rubin, with whom he used to drink. He saw David, showed him the gun, and asked him to inquire whether Rubin and Lily would like to purchase it when they arrived home. Nunez then observed Acevedo. Mistakenly thinking Acevedo was an acquaintance, Nunez approached Acevedo with the gun and asked if he wished to purchase it. Acevedo misunderstood his intent and began punching him. Hernandez, believing that Nunez was being attacked, went to Nunez’s aid. Nunez did not know Hernandez. Nunez picked up his gun and put it in his pants. Nunez was not a gang member and both the incident involving David and the incident involving Acevedo were misunderstandings. Nunez fled because he heard sirens and did not wish to be arrested.
2. Procedure.
Nunez and Hernandez were tried together by a jury. Nunez was convicted of attempting to dissuade a witness (Pen. Code, § 136.1, subd. (a)(2)), attempted carjacking (§§ 664, 215, subd. (a)), making criminal threats (§ 422), and attempted robbery (§§ 664, 211). The jury found all the offenses were committed to benefit a criminal street gang (§ 186.22, subd. (b)); that Nunez personally used a firearm during commission of the offenses (§§ 12022.5, subd. (a) [counts 1 and 4], 12022.53, subd. (b) [counts 2 and 5]; and that a principal was armed with a firearm (§ 12022, subd. (a)(1) [counts 1, 2, and 4]). In a bifurcated proceeding, the trial court found Nunez had served two prior prison terms within the meaning of section 667.5, subdivision (b). It sentenced Nunez to a term of 32 years, 10 months in prison. It imposed a restitution fine, a suspended parole restitution fine, and a court security assessment. The court also ordered Nunez to pay restitution to the Los Angeles County Witness Protection Program in the amount of $11,050. Nunez appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. Instruction with CALCRIM No. 370 was proper.
a. Additional facts.
The trial court instructed with the standard version of CALCRIM No. 370, regarding motive. That instruction provided: “The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.”
The trial court also instructed on the intent elements for the crimes. CALCRIM No. 252 informed the jury that dissuasion of a witness, making criminal threats, attempted robbery, and attempted carjacking all required a specific intent or mental state. CALCRIM No. 2622 informed jurors that the crime of intimidating a witness had three elements: (1) the defendant maliciously tried to prevent or discourage Gabriela from attending or giving testimony at a trial or preliminary hearing; (2) Gabriela was a witness; and (3) “[t]he defendant knew he was trying to prevent or discourage Gabriela Ochoa from attending or giving testimony at a preliminary hearing or trial and intended to do so.” CALCRIM No. 1300 informed the jury that the crime of making criminal threats included six elements, including that the defendant willfully made an oral threat to kill or cause great bodily injury to Gabriela. and that he “intended that his statement be understood as a threat and intended that it be communicated to Gabriella Ochoa.”
The instruction provided in pertinent part: “The following crimes and allegations require a specific intent or mental state: attempted witness intimidation, attempted murder, attempted carjacking, attempted robbery, criminal threats... and all allegations reg[ar]ding a criminal st[r]eet gang, ... and the allegation that a principal was armed with a firearm. For you to find a person guilty of these crimes or to find the allegations true, that person must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instruction for that crime or allegation.”
b. Discussion.
Nunez contends that the motive instruction undermined the prosecution’s burden of proof on the attempted dissuasion of a witness and criminal threats charges, counts 1 and 4. He urges that both offenses have an intent element, and that on the facts presented, “appellant’s motivation for his actions in respect [to] Gabriela Ochoa was synonymous with his intent.” While acknowledging the general precept that motive and intent are not synonymous, Nunez contends that in the instant case, the two were one and the same. We discern no error.
Preliminarily, we address the People’s contention that Nunez’s argument has been forfeited by his failure to object to the instruction below. “Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant’s substantial rights.” (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) Despite a defendant’s failure to preserve an instructional issue for appeal, we may review his claim of instructional error to the extent his substantial rights were affected. (§ 1259; People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421.) Because Nunez contends the instruction reduced the prosecutor’s burden of proof, thus affecting one of his fundamental constitutional rights, we entertain the claim on its merits. (People v. Salcido (2008) 44 Cal.4th 93, 155.)
“The standard of review applicable to an instruction challenged on appeal as ambiguous is whether there is a reasonable likelihood that the jury applied the instruction in a way that denied the defendant a fair trial. [Citations.]” (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1181; People v. Thornton (2007) 41 Cal.4th 391, 436; People v. Richardson (2008) 43 Cal.4th 959, 1028.) Here, no reasonable jury was likely to misapply the challenged instruction.
Our Supreme Court has observed that CALJIC No. 2.51, the precursor to CALCRIM No. 370, did not “ ‘ “undercut other instructions that correctly informed the jury that the prosecution had the burden of proving guilt beyond a reasonable doubt.” ’ ” (People v. Wilson (2008) 43 Cal.4th 1, 22; People v. Cleveland (2004) 32 Cal.4th 704, 750.) Motive and intent “ ‘are separate and disparate mental states. The words are not synonyms. Their separate definitions were accurate and appropriate.’ [Citation.] Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent....” (People v. Hillhouse (2002) 27 Cal.4th 469, 504; see also People v. Cash (2002) 28 Cal.4th 703, 738-739; People v. Guerra (2006) 37 Cal.4th 1067, 1135, disapproved on other grounds in People v. Rundle, supra, 43 Cal.4th at p. 151.)
People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes), is instructive. There, the defendant was charged with special circumstance murder under section 190.2, subdivision (a)(22), and with a gang enhancement under section 186.22, subdivision (b)(1). To prove the special circumstance, the People had to establish the murder “ ‘was carried out to further the activit[ies] of the criminal street gang.’ ” (Fuentes, at p. 1139.) An element of the gang enhancement was that the defendant had the intent to “ ‘assist, further or promote... criminal conduct by gang members.’ ” (Ibid.) On appeal, Fuentes argued that the motive instruction at issue here, CALCRIM No. 370, conflicted with the intent instructions on the gang enhancement and special circumstance, thereby lessening the prosecution’s burden of proof. (Fuentes, at p. 1139.)
Fuentes noted the “superficial attractiveness” of the argument that the motive instruction undercut the special circumstance and gang enhancement instructions. (Fuentes, supra, 171 Cal.App.4th at p. 1140.) The court explained, “[a]ny reason for doing something can rightly be called a motive” and there are “reasons that stand behind other reasons.” (Ibid.) The instructions, however, “[b]y listing the various ‘intents’ the prosecution was required to prove (the intent to kill, the intent to further gang activity), while also saying the prosecution did not have to prove a motive, ... told the jury where to cut off the chain of reasons.” (Ibid.) Fuentes thus rejected the notion that the motive instruction contradicted the instructions regarding intent. “An intent to further criminal gang activity is no more a ‘motive’ in legal terms than is any other specific intent. We do not call a premeditated murderer’s intent to kill a ‘motive, ’ though his action is motivated by a desire to cause the victim’s death. Combined, the instructions... told the jury the prosecution must prove that Fuentes intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it.” (Id. at pp. 1139-1140.)
In so holding, Fuentes distinguished People v. Maurer (1995) 32 Cal.App.4th 1121, upon which Nunez relies. “Maurer held that the standard motive instruction was erroneous when given in conjunction with an instruction on section 647.6, which prescribes punishment for ‘[e]very person who, motivated by an unnatural or abnormal sexual interest in children, engages in conduct with an adult whom he or she believes to be a child’ where the conduct would be an offense if the other person really were a child. Since this offense includes a ‘motivation’ as one of its elements, a jury naturally would be confused by an instruction saying the prosecution need not prove the defendant’s motive. Due to this peculiarity in the definition of the offense (the Maurer court called the section ‘a strange beast’ [citation]), the combination of instructions could not successfully tell the jury where to cut off the chain of reasons for the defendant’s action which the prosecution had to prove.” (People v. Fuentes, supra, 171 Cal.App.4that p. 1140, italics added.) Had the statutory language at issue in Maurer referred to an intent rather than a motivation, instruction with the standard motive instruction would not have been error. (Ibid.)
In the instant case, there was no error in instructing the jury that the prosecution did not need to prove motive, while also instructing the jury regarding the specific intents required for dissuading a witness and making criminal threats. It is not reasonably likely that jurors misunderstood or misapplied CALCRIM No. 370. Viewing the instructions as a whole (People v. Guerra, supra, 37 Cal.4th at p. 1148), the jury was informed that the prosecution had to prove Nunez intended to discourage Gabriela from giving testimony, intended that his statements be understood as threats, and intended that the threats be communicated to Gabriela, but did not need to show what motivated his wish to intimidate her. (See People v. Fuentes, supra, 171 Cal.App.4th at p. 1139.) “This was not ambiguous and there is no reason to think the jury could not understand” the instructions. (Id. at p. 1140.) The instructions given did not refer to motive and intent interchangeably, and there was no reasonable likelihood the jury understood the terms to be synonyms. (People v. Wilson, supra, 43 Cal.4th at p. 22.) Accordingly, there was no error.
2. The evidence was sufficient to prove the gang enhancement.
Nunez next asserts the evidence was insufficient to prove the section 186.22, subdivision (b) gang enhancement on counts 2 and 5, the attempted carjacking and attempted robbery of Acevedo. When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine “ ‘whether it discloses substantial evidence––that is, evidence which is reasonable, credible, and of solid value––such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Hillhouse, supra, 27 Cal.4th at p. 496; People v. Halvorsen (2007) 42 Cal.4th 379, 419; People v. Carter (2005) 36 Cal.4th 1215, 1257-1258.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.) Reversal for insufficient evidence is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Zamudio (2008) 43 Cal.4th 327, 357.) The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. (People v. Zamudio, supra, at p. 357; People v. Maury (2003) 30 Cal.4th 342, 396.)
Section 186.22, subdivision (b)(1), provides for a sentence enhancement when a defendant is convicted of enumerated felonies “ ‘ “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” ’ ” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047; see also People v. Gardeley (1996) 14 Cal.4th 605, 617; People v. Hill (2006) 142 Cal.App.4th 770, 773.) In addition to the foregoing elements, the People must prove the gang “ ‘(1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a “pattern of criminal gang activity” by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called “predicate offenses”) during the statutorily defined period. (§ 186.22, subds. (e) and (f).)’ ” (People v. Hernandez, supra, 33 Cal.4th at p. 1047.) “It is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation.” (People v. Ferraez (2003) 112 Cal.App.4th 925, 930; see also People v. Romero (2006) 140 Cal.App.4th 15, 18-19.) However, “A gang expert’s testimony alone is insufficient to find an offense gang related.” (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.)
Nunez does not challenge the sufficiency of the evidence establishing that Barrio Van Nuys was a criminal street gang, that he and Hernandez were gang members, or that the crimes charged in counts 1 and 4 (attempting to dissuade a witness and making criminal threats, respectively), were carried out for the benefit of a criminal street gang. However, he asserts that there was insufficient evidence to prove the remaining counts, i.e., the attempted carjacking and robbery of Acevedo, were committed to benefit the Barrio Van Nuys gang. He further contends the evidence was insufficient to show he committed the attempted carjacking and robbery with the intent to promote, further, or assist in any criminal conduct by gang members. He accurately points out that, as to the crimes against Acevedo, he did not identify himself as a gang member, did not ask for Acevedo’s gang affiliation, did not flash gang signs, and did not do anything indicating the crime was gang-related.
We conclude the evidence was sufficient to prove the crimes were committed in association with the Barrio Van Nuys gang. As noted, the enhancement applies when the crimes were committed “for the benefit of, at the direction of, or in association with any criminal street gang.” (§ 186.22, subd. (b)(1), italics added.) “The crucial element... requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang. Thus, the typical close case is one in which one gang member, acting alone, commits a crime. Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Here, there was sufficient evidence the crimes were committed in association with the gang, in that both Nunez and Hernandez were active Barrio Van Nuys gang members, and had just been down the street, attempting to intimidate a witness on behalf of the gang. As in Morales, the jury could reasonably infer the requisite association from the fact Nunez committed the crimes in association with Hernandez. (Ibid.; People v. Williams (2009) 170 Cal.App.4th 587, 625.)
Nunez contends the associational element was unmet because Hernandez was not by his side when he initiated the attempted carjacking and robbery. We are unpersuaded. Nunez approached Acevedo by himself, but Hernandez almost immediately came to his aid. Hernandez not only assisted Nunez in fending off Acevedo, but also pursued Acevedo and attempted to shoot him. The pair had been together minutes before, on what was obviously a preplanned excursion to intimidate a witness. It was a reasonable inference that the attempted carjacking was likewise a collaborative effort, even though Hernandez did not initially participate in the demands for Acevedo’s keys and vehicle. The jury could reasonably infer that Hernandez was an accomplice in the attempted carjacking and robbery. Thus, the associational element was met.
There was likewise sufficient evidence to show Nunez committed the crimes with the specific intent to promote, further, or assist in criminal conduct by gang members. Nunez may well be correct that the mere facts he and Hernandez, both gang members, committed crimes in gang territory, standing alone, would not have sufficed to establish the intent element. (See, e.g., People v. Ochoa, supra, 179 Cal.App.4th at p. 661; People v. Ramon (2009) 175 Cal.App.4th 843, 851.) That was not all the evidence showed, however. Nunez’s argument ignores the events immediately preceding the attempted carjacking and robbery. Nunez and Hernandez, both gang members, went to the home of a prosecution witness in the murder trial of a fellow Barrio Van Nuys gang member. They pointed guns at her home and yelled “Rata” in an obvious, and concerted, effort to intimidate her. The jury could reasonably infer the duo assumed Gabriela’s family would inform police, who would arrive on the scene shortly. Nunez attempted the carjacking and robbery of Acevedo’s vehicle’s keys minutes after threatening Gabriela. From these facts, the jury could reasonably infer that the carjacking and robbery were attempted in order to provide Nunez and Hernandez with a getaway vehicle which would enable them to flee the neighborhood before police arrived to apprehend them. Thus, the jury could infer that the crimes were connected to the witness intimidation, and the entire course of conduct was carried out with the intent to benefit the gang. The evidence was therefore sufficient.
3. The restitution award to the Witness Protection Program must be stricken.
At sentencing the People sought restitution from Nunez for funds expended by the Witness Protection Program to move Gabriela’s family as a result of the threats made in December 2006. The prosecutor presented memoranda in support of the amounts sought. Defense counsel stipulated to the amount and, without objection, pursuant to section 1202.4, subdivision (f), the trial court imposed restitution of $11,050, payable to the Los Angeles County Witness Protection Program. The court also imposed a $10,000 restitution fine pursuant to section 1202.4, subdivision (b), and a suspended parole restitution fine pursuant to section 1202.45.
Nunez contends that, because the Witness Protection Program was not a direct victim of the crimes, the victim restitution award constituted an unauthorized sentence and must be stricken. We agree.
We review a restitution order for abuse of discretion. (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409.) Section 1202.4, subdivision (f), provides that, subject to exceptions not relevant here, “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims....” Thus, the trial court “must order direct victim restitution in ‘every case in which a victim has suffered economic loss as a result of the defendant’s conduct.’ [Citations.]” (People v. Maheshwari, supra, at p. 1409.) Under the plain language of this statute, the court may order restitution only to a “victim.” (People v. Slattery (2008) 167 Cal.App.4th 1091, 1095-1096; People v. Martinez (2005) 36 Cal.4th 384, 392.)
“The term ‘victim, ’ as it relates to any kind of business or governmental entity, is defined in section 1202.4, subdivision (k)(2): ‘(k) For purposes of this section, “victim” shall include all of the following: [¶]... [¶] (2) Any corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime.’ [Citation.]” (People v. Slattery, supra, 167 Cal.App.4th at p. 1095.) “Penal Code section 1202.4, subdivision (k) permits restitution to a business or governmental entity only when it is a direct victim of crime.” (People v. Martinez, supra, 36 Cal.4th at p. 393; People v. Duong (2010) 180 Cal.App.4th 1533, 1537 [“Only the ‘direct victim’ of a crime is entitled to restitution from the perpetrator of the offense”]; People v. Slattery, supra, at p. 1095.)
“The term ‘direct victim’ ‘carried a precise meaning’ before it was added to section 1202.4 in 1994, and courts have ‘preserved’ that meaning. [Citation.] In the context of entities, the California Supreme Court has defined ‘direct victim’ as: ‘entities that are the “immediate objects of the... offenses” ’; or ‘ “entities against which the... crimes [have] been committed.” ’ [Citations.]” (People v. Slattery, supra, 167 Cal.App.4th at p. 1095, citing People v. Martinez, supra, 36 Cal.4th at p. 393.) “Employing this definition of ‘direct victim, ’ our Supreme Court has held that insurance companies that reimburse their insureds whose cars were stolen are not direct victims of car theft. ([People v. Birkett (1999) 21 Cal.4th 226, 245–247].) Similarly, the high court has held that California’s Department of Toxic Substances Control is not a direct victim of attempted methamphetamine production in incurring costs cleaning up waste material from the production. (Martinez, supra, at pp. 386, 393–394.) And appellate courts have held that a police department is not a direct victim when it incurs economic losses in the course of a criminal investigation. (People v. Torres (1997) 59 Cal.App.4th 1, 4-5; People v. Ozkan (2004) 124 Cal.App.4th 1072, 1077.)” (People v. Slattery, supra, 167 Cal.App.4th at p. 1096, fn. omitted.) Slattery held that a hospital that treated the defendant’s mother for injuries caused by the defendant was not itself a direct victim because it was not the immediate object of the conduct or the entity against which the crimes had been committed. Instead, the victim was the defendant’s mother. The hospital’s loss was indirectly linked to the defendant’s conduct: the defendant inflicted injuries upon her mother; the hospital treated the mother; the mother did not pay the bills. (People v. Slattery, supra, 167 Cal.App.4th at pp. 1095-1096.) Accordingly, Slattery struck the restitution awarded to the hospital. (Id. at p. 1098.)
Here, the Witness Protection Program is not a direct victim of Nunez’s crimes, and therefore the restitution order was improper. Nunez’s crimes of witness intimidation and making criminal threats were committed against Gabriela, not the program. The Witness Protection Program’s loss was only indirectly linked to Nunez’s conduct: Nunez threatened Gabriela, and the program expended funds moving her and her family as a result. Thus, section 1202.4, subdivision (f) was an improper basis for the restitution order because the program was not a direct victim of defendant's criminal conduct. (People v. Martinez, supra, 36 Cal.4th at p. 386.)
The People contend that Nunez’s challenge to the restitution order has been forfeited by his failure to object below. They are incorrect. The restitution award falls within the “ ‘unauthorized sentence’ ” exception to the forfeiture doctrine. (People v. Slattery, supra, 167 Cal.App.4th at pp. 1094-1095.) “ ‘[T]he “unauthorized sentence” concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.]’ [Citation.] An unauthorized sentence is one that ‘could not lawfully be imposed under any circumstance in the particular case.’ [Citation.] In such contexts, failure to object at trial does not forfeit the claim on appeal. This is because ‘[a]ppellate courts are willing to intervene in the first instance because such error is “clear and correctable” independent of any factual issues presented by the record at sentencing.’ [Citations.]” (Ibid. [claim that restitution to hospital was improper under section 1202.4 because hospital was not a direct victim was not forfeited, as the restitution order was unauthorized]; see also People v. Scott (1994) 9 Cal.4th 331, 354.)
The People further argue that Los Angeles County was a direct victim, in that Nunez “targeted [Gabriela] for intimidation only because she was a witness for [the] prosecution in a murder trial” and “it was only [her] association with Los Angeles County that made her a victim in this case.” Because the Witness Protection Program is run by Los Angeles County, the People contend, the Witness Protection Program was a direct victim. The People’s conclusion does not follow from their premise, however. Gabriela was indeed targeted because of her status as a witness for the People, but the People fail to bridge the logical leap that by this fact, Los Angeles County somehow became a direct victim. Further, the cases cited by the People are inapposite, in that they involved crimes in which the business entities were direct victims of the defendants’ crimes.
DISPOSITION
The judgment is modified by striking the $ 11, 050 in restitution awarded to the Los Angeles County Witness Protection Program. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: KLEIN, P. J.CROSKEY, J.