Filed 8/17/20 P. v. Corona CA2/7
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION SEVEN


 THE PEOPLE,                                                  B297528

           Plaintiff and Respondent,                          (Los Angeles County
                                                              Super. Ct. No. VA143941)
           v.

 FRANCISCO CORONA,

           Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael A. Cowell, Judge. Affirmed.
      Alex Coolman, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, and David W. Williams,
Deputy Attorney General, for Plaintiff and Respondent.

                                      INTRODUCTION
       A jury convicted Francisco Corona of second degree murder
(Pen. Code, § 187, subd. (a))1 for killing Joseph Barela. The jury
also found true the allegation Corona personally and
intentionally discharged a firearm causing great bodily injury or
death (§ 12022.53, subd. (d)). Corona argues that the trial court
should have instructed the jury on voluntary manslaughter
because there was substantial evidence he killed Barela in the
heat of passion and that his trial counsel was ineffective in failing
to ask the court to sanitize, or give an instruction limiting the use
of, certain gang evidence. Finally, Corona argues the court erred
in ordering him to pay 10 percent interest on his deposit in the
Restitution Fund, which is administered by the Victim
Compensation Board, because the Board is not a “victim” within
the meaning of section 1202.4, subdivision (k).
       We conclude the trial court did not err in failing to instruct
on voluntary manslaughter because substantial evidence did not
support such an instruction. We also conclude Corona did not
receive ineffective assistance of counsel because his trial attorney
had a rational tactical reason for not asking the court to sanitize
the gang evidence or give a limiting instruction and because
Corona cannot show prejudice. Finally, we conclude section
1202.4 required the trial court to order Corona to pay interest on
the entire amount of the restitution award, including his deposit
to the Board. Therefore, we affirm.




1     Undesignated statutory references are to the Penal Code.




                                 2
      FACTUAL AND PROCEDURAL BACKGROUND

       A.    Corona “Taxes” Barela’s Girlfriend
       Corona was a member of the Bell Gardens Locos criminal
street gang. His gang moniker was “Flaco,” and he had a Bell
Gardens Locos tattoo on his face. Barela was a former member of
the North Hollywood Boys criminal street gang. He was
“involved in drugs,” had “money problems,” and had many
enemies. According to one of his friends, Barela was often
running from people and “lived his life watching his back.”
Barela’s girlfriend, Laura Rice, used to live with Corona.
       In May or June 2016 Rice was selling drugs in territory
claimed by Bell Gardens Locos. Corona came to “tax” Rice, which
a Bell Gardens police detective explained occurs when “someone
is conducting business in the area that [gangs] claim as their
territory.” Corona collected the tax by taking Rice’s cell phone
and some drugs worth $10 or $20. Rice told Barela what
happened.

      B.    Barela Confronts Corona
      Soon after Barela learned Corona had taken Rice’s
cellphone and drugs, he confronted Corona. Barela’s brother-in-
law Maxwell Huerta, who had known Corona for several years
and had also been taxed by him, witnessed the argument.
According to Huerta, Barela and Corona argued and called each
other names, and Corona pulled out a knife. Huerta saw that
Barela also had a sharp object in his hand, which may have been
a knife, and that both men “were up to stabbing each other.”
Huerta said that, until he intervened, Barela “did not want to get
away” from Corona and “didn’t want to stop messing with him.”




                                3
Barela and Corona eventually calmed down, and Huerta later
told police he believed the two men at that point were “cool” with
each other. Rice, however, testified “it was all bad” after that
incident.
      Corona later told Rice he “didn’t want to pop his cherry on
Joey,” which she understood meant Corona did not want Barela
to be his first “kill.” In late June or early July, several days
before the shooting, Corona and Barela saw each other again.
Although Rice was not there, she said the encounter left Barela
upset.

      C.     Corona Kills Barela
      On July 4, 2016, approximately one month after Huerta
witnessed the argument between Barela and Corona, Barela
visited Huerta in a tent by a riverbed near Bell Gardens where
Huerta lived. The tent was at the bottom of steps that led up to
the top of the riverbed.
      Huerta gave two versions of the incident that day involving
Corona and Barela. In a videotaped police interview in
September 2016, a few months after Barela was killed, Huerta
said that at approximately 5:00 p.m. or 6:00 p.m. he heard the
sounds of an argument coming from the top of the riverbed.
Huerta went up the steps to investigate and saw Corona and
Barela about 120 feet away from him. Huerta initially thought
“everything was cool,” but then he heard Barela call Corona “a
bitch” and yell, “You gonna take me out, fuckin’ take me out.”
Huerta saw Corona had a gun. Huerta continued to walk
forward until he was 15 feet away from the two men. Huerta
said Corona looked at him, looked at Barela, and shot Barela in
the side. Barela fell to the ground and began screaming, as




                                4
Corona was holding the gun and “looking at [Huerta] in [his]
eyes.” Before getting on Barela’s bicycle and fleeing, Corona said
to Huerta, “You better not say nothing.”
       In another interview and at trial, however, Huerta said
that, while he was in his tent, he heard what he thought were
fireworks, turned around, saw Barela, and ran up the steps.
When he got to the top, he saw that what he believed were
fireworks was actually a gunshot and that Barela was down on
the ground screaming. Huerta said he saw a person with a gun
in his hand whom he described as tall, skinny, and wearing
“something black,” like a mask. The shooter, whom Huerta said
he could not identify, ran to a car and drove away.
       An autopsy concluded Barela had been shot from an
indeterminate range. The cause of death was a single gunshot
wound from a bullet that entered the left side of Barela’s body
and exited his back, injuring several organs and his aorta.
       The police did not find any forensic evidence, such as
fingerprints or DNA, connecting Corona to the shooting. Corona
denied he killed Barela, claiming his friend “Smash” did it.
Corona acknowledged his prior confrontations with Barela, but
claimed he had been in Huntington Park with two friends, Maria
Gonzalez and Jose Lopez, at the time of the shooting.
Investigators were unable to find either individual.

        D.    The Jury Convicts Corona of Murder
        The jury found Corona guilty of second degree murder and
found true the firearm allegation. The trial court sentenced
Corona on the murder conviction to a prison term of 15 years to
life, plus 25 years to life for the firearm enhancement. The trial
court ordered Corona to pay a relative of Barela restitution in the




                                 5
amount of $1,359.85, plus 10 percent interest from the date of
sentencing, and to deposit $7,500, plus 10% interest from the
date of sentencing, in the Restitution Fund to reimburse the
Board for assistance to Barela’s family. Corona timely appealed.

                           DISCUSSION

      A.     The Trial Court Did Not Err in Failing To Instruct on
             the Heat of Passion Form of Voluntary Manslaughter

            1.      Applicable Law and Standard of Review
       “‘“[I]t is the ‘court’s duty to instruct the jury not only on the
crime with which the defendant is charged, but also on any lesser
offense that is both included in the offense charged and shown by
the evidence to have been committed.’”’ [Citations.] ‘Speculation
is an insufficient basis upon which to require the giving of an
instruction on a lesser offense.’” (People v. Westerfield (2019)
6 Cal.5th 632, 718.) “A trial court must instruct a jury on lesser
included offenses when the evidence raises questions regarding
whether every element of a charged offense is present. [Citation.]
No instruction on lesser included offenses is required if there is
no evidence that there was any offense less than that charged.
Instructing the jury on a lesser included offense is not required
when the evidence supporting such an instruction is weak, but
‘“‘whenever evidence that the defendant is guilty only of the
lesser offense is “substantial enough to merit consideration” by
the jury,’”’ such an instruction is required. [Citation.] Whether
the evidence is substantial is tested by considering whether a
jury would conclude the lesser but not the greater offense was
committed.” (People v. Vargas (2020) 9 Cal.5th 793, 827.) “[W]e




                                   6
review independently the question whether the trial court
improperly failed to instruct on a lesser included offense.”
(People v. Souza (2012) 54 Cal.4th 90, 113.)
       “‘Murder is the unlawful killing of a human being . . . with
malice aforethought.’” (People v. Nelson (2016) 1 Cal.5th 513,
538.) “Voluntary manslaughter, a lesser included offense of
murder, is defined as the unlawful killing of a human being
without malice. [Citations.] Manslaughter instructions are
warranted when substantial evidence exists to support a jury’s
determination that the killing was committed in the heat of
passion and thus does not constitute a first degree murder.”
(People v. Vargas, supra, 9 Cal.5th at p. 827; see People v. Smith
(2018) 4 Cal.5th 1134, 1163.)
       “‘Heat of passion is a mental state that precludes the
formation of malice and reduces an unlawful killing from murder
to manslaughter.’ [Citation.] Heat of passion killing is distinct
from malice murder because thought in some form is necessary
‘to form either an intent to kill or a conscious disregard for
human life.’ [Citation.] A heat of passion killing . . . is one
caused by an unconsidered reaction to provocation rather than
the result of rational thought. If reason ‘“‘was obscured or
disturbed by passion’”’ to so great a degree that an ordinary
person would ‘“‘act rashly and without deliberation and
reflection,’”’ . . . that killing arose from ‘“‘passion rather than
from judgment.’”’” (People v. Vargas, supra, 9 Cal.5th at
pp. 827-828; see People v. Soto (2018) 4 Cal.5th 968, 974; People v.
Avila (2009) 46 Cal.4th 680, 705.) “Heat of passion, then, is a
state of mind caused by legally sufficient provocation that causes
a person to act, not out of rational thought but out of
unconsidered reaction to the provocation. While some measure of




                                 7
thought is required to form either an intent to kill or a conscious
disregard for human life, a person who acts without reflection in
response to adequate provocation does not act with malice.”
(People v. Beltran (2013) 56 Cal.4th 935, 942.)
      “‘The heat of passion requirement for manslaughter has
both an objective and a subjective component. [Citation.] The
defendant must actually, subjectively, kill under the heat of
passion. [Citation.] But the circumstances giving rise to the heat
of passion are also viewed objectively . . . . “[T]his heat of passion
must be such a passion as would naturally be aroused in the
mind of an ordinarily reasonable person under the given facts
and circumstances . . . .”’” (People v. Rountree (2013) 56 Cal.4th
823, 855.) “‘To be adequate, the provocation must be one that
would cause an emotion so intense that an ordinary person would
simply react, without reflection. . . . [T]he anger or other passion
must be so strong that the defendant’s reaction bypassed his
thought process to such an extent that judgment could not and
did not intervene.’ [Citation.] ‘[P]rovocation is sufficient not
because it affects the quality of one’s thought processes but
because it eclipses reflection.’” (People v. Beck and Cruz (2019)
8 Cal.5th 548, 650.)

            2.     Substantial Evidence Did Not Support an
                   Instruction on the Heat of Passion Form of
                   Voluntary Manslaughter
       Corona argues the evidence of his prior arguments with
Barela supported instructing the jury on the heat of passion form
of voluntary manslaughter. He contends that the jury could have
found that his passions were aroused when Barela called him a
“bitch” and told him “You gonna take me out, fuckin’ take me out”




                                  8
and that Barela provoked him to act rashly and without
reflection in their subsequent encounter. But because there was
no substantial evidence of subjective or objective provocation, the
trial court did not err in failing to instruct on voluntary
manslaughter based on heat of passion.
       There was no evidence Corona was actually provoked. The
only evidence of Corona’s demeanor or emotional state at the
time of the shooting was Huerta’s statement in his police
interview that he heard Corona and Barela arguing. Huerta
initially thought “everything was cool” despite the argument,
until he heard Barela call Corona a “bitch” and challenge Corona
to “take [him] out.” While there was circumstantial evidence
Barela was angry with Corona, there was no evidence Corona
“was subjectively roused to ‘the actual influence of a strong
passion’” or experienced “‘“‘[v]iolent, intense, high-wrought or
enthusiastic emotion’”’ . . . at the time of the shooting.” (People v.
Smith, supra, 4 Cal.5th at p. 1166; see People v. Vargas, supra,
9 Cal.5th at p. 828 [trial court did not err in failing to instruct
sua sponte on voluntary manslaughter because the witness’s
“scant evidence regarding the struggle would not permit a
reasonable jury to conclude that defendant acted under the
influence of a strong passion inflamed by the victim, nor that this
was the sort of fight that would lead an ordinary person to act
rashly and without deliberation and reflection, and from a heat of
passion rather from judgment”].) Moreover, after Barela made
these statements, Huerta had time to walk 105 feet (120 - 15)
toward Corona and Barela, and Corona had time to look at
Huerta and then back at Barela before shooting Barela,
suggesting that Corona’s reaction to Barela’s words hardly
“bypassed his thought process to such an extent that judgment




                                  9
could not . . . intervene.” (People v. Beltran, supra, 56 Cal.4th at
p. 949; see People v. Millbrook (2014) 222 Cal.App.4th 1122, 1139
[“‘[i]f sufficient time has elapsed for one’s passions to “cool off”
and for judgment to be restored,’ malice is not negated”].)
         Corona argues his two prior confrontations with Barela,
one a month and the other a few days before the shooting, showed
Corona “acted under the influence of heat of passion.” The two
prior altercations between Corona and Barela, however, quickly
de-escalated and did not become physical. More important, the
weeks and days between the prior arguments and the shooting
were more than enough time for Corona to “cool off” and for any
passion or emotion he may have had to subside. (See People v.
Beck and Cruz, supra, 8 Cal.5th at p. 649 [“‘“‘if sufficient time has
elapsed for the passions of an ordinarily reasonable person to
cool, the killing is murder, not manslaughter’”’”]; People v.
Beltran, supra, 56 Cal.4th at p. 951 [“‘if sufficient time has
elapsed between the provocation and the fatal blow for passion to
subside and reason to return, the killing is not voluntary
manslaughter’”]; People v. Daniels (1991) 52 Cal.3d 815, 868 [for
a killing to be manslaughter, it must be “‘suddenly as a response
to the provocation, and not belatedly as revenge or punishment’”];
see, e.g., People v. Rangel (2016) 62 Cal.4th 1192, 1225 [two-week
period between when the victim shot at the defendant’s son and
when the defendant killed the victim was sufficient for “‘“‘passion
to subside and reason to return’”’”]; People v. Moye (2009) 47
Cal.4th 537, 551 [physical fight the evening before the defendant
beat victim to death with a baseball bat “did not itself constitute
legally sufficient provocation to require instruction on sudden
quarrel/heat of passion voluntary manslaughter”].)




                                 10
       Nor was the verbal exchange of insults and taunts between
Barela and Corona the day of the shooting “‘“sufficient to cause
an “‘ordinary [person] of average disposition . . . to act rashly or
without due deliberation and reflection, and from this passion
rather than from judgment.”’”’” (People v. Landry (2016)
2 Cal.5th 52, 97.) Barela taunted Corona and called him a name.
Such verbal insults and challenges do not provoke ordinary
people of average disposition to act rashly or without reason.
(See People v. Enraca (2012) 53 Cal.4th 735, 759 [insults or
challenges are not “sufficient provocation in an ordinary person
to merit an instruction on voluntary manslaughter”]; People v.
Gutierrez (2009) 45 Cal.4th 789, 826 [“a voluntary manslaughter
instruction is not warranted where the act that allegedly
provoked the killing was no more than taunting words”]; People v.
Manriquez (2005) 37 Cal.4th 547, 586 [taunting the defendant
that, if he had a weapon, he “should take it out and use it” and
calling the defendant a “‘mother fucker’” were not enough to
cause an average person to become so enraged as to lose all
reason and judgment]; People v. Wang (2020) 46 Cal.App.5th
1055, 1073 [“‘“A provocation of slight and trifling character, such
as words of reproach, however grievous they may be, or gestures,
or an assault, or even a blow, is not recognized as sufficient to
arouse, in a reasonable man, such passion as reduces an unlawful
killing with a deadly weapon to manslaughter.’’”]; People v.
Najera (2006) 138 Cal.App.4th 212, 226 [using a homophobic slur
“would not drive any ordinary person to act rashly or without due
deliberation and reflection”].)




                                11
      B.     Corona Was Not Denied Effective Assistance of
             Counsel
       Huerta testified at trial that Corona was a member of the
Bell Gardens Locos gang, that the name of his gang was “written
on his face,” and that Corona went by the name Flaco. Rice
testified Corona taxed her because she had been selling drugs “in
his gang area.” Corona argues his trial counsel was ineffective
because he did not ask the court to sanitize this testimony by
requiring the witnesses to characterize the taxing as “simply
related to the world of drug sales,” rather than an “activity
related to a gang, per se.” Corona also argues his trial counsel
should have “sought an instruction limiting the use of” the gang
evidence, although he does not suggest what that instruction
should have been.

             1.     Applicable Law and Standard of Review
       “A criminal defendant’s federal and state constitutional
rights to counsel [citations] include the right to effective legal
assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) To show
ineffective assistance of counsel, the defendant must show that
his trial counsel’s performance was deficient and that the
deficient performance prejudiced his defense. (People v.
Cowan (2010) 50 Cal.4th 401, 493, fn. 31.) To show deficient
performance, the defendant must show counsel’s representation
fell below an objective standard of reasonableness “as measured
by ‘“prevailing professional norms.”’” (In re Gay (2020) 8 Cal.5th
1059, 1073.) To show prejudice, the defendant must show “‘a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine




                               12
confidence in the outcome.’” (Id. at p. 1086.) “‘It is not enough for
the defendant to show that the errors had some conceivable effect
on the outcome of the proceeding.’” (People v. Bradford (1997) 14
Cal.4th 1005, 1051.) “The defendant has the burden on appeal to
show by a preponderance of the evidence that he or she was
denied effective assistance of counsel and is entitled to relief.”
(People v. Pettie (2017) 16 Cal.App.5th 23, 81.)
       On direct appeal, “a conviction will be reversed for
ineffective assistance only if (1) the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation. All
other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding.” (People v. Mai,
supra, 57 Cal.4th at p. 1009.) “Judicial scrutiny of counsel’s
performance must be highly deferential, and . . . [a] court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”
(Strickland v. Washington (1984) 466 U.S. 668, 669
[104 S.Ct. 2052]; see People v. Weaver (2001) 26 Cal.4th 876, 928
[“‘even “debatable trial tactics” do not “constitute a deprivation of
the effective assistance of counsel”’”]; see also Harrington v.
Richter (2011) 562 U.S. 86, 105 [131 S.Ct. 770] [“The question is
whether an attorney’s representation amounted to incompetence
under ‘prevailing professional norms,’ not whether it deviated
from best practices or most common custom.”].)




                                 13
            2.      Corona Has Not Demonstrated His Trial
                    Counsel Provided Ineffective Assistance
       California courts have recognized the potential prejudicial
effect of gang evidence and have “condemned the introduction of
such evidence ‘if only tangentially relevant, given its highly
inflammatory impact.’” (People v. Samaniego (2009) 172
Cal.App.4th 1148, 1167.) Nevertheless, “‘[g]ang evidence is
admissible if it is logically relevant to some material issue in the
case other than character evidence, is not more prejudicial than
probative, and is not cumulative. [Citations.] . . . [¶] However,
gang evidence is inadmissible if introduced only to “show a
defendant’s criminal disposition or bad character as a means of
creating an inference the defendant committed the charged
offense. [Citations.]” [Citations.] . . . Even if gang evidence is
relevant, it may have a highly inflammatory impact on the jury.
Thus, “trial courts should carefully scrutinize such evidence
before admitting it.”’” (People v. Coneal (2019) 41 Cal.App.5th
951, 964; see People v. Avitia (2005) 127 Cal.App.4th 185, 192.)
Gang evidence is also relevant to a witness’s credibility. (People
v. Ayala (2000) 23 Cal.4th 225, 277; Samaniego, at p. 1168.)
       Here, the limited gang evidence the prosecution introduced
was relevant to motive and witness credibility. The entire
confrontation between Corona and Barela arose from Corona’s
conduct in imposing a tax on Rice to enforce the Bell Gardens
Locos gang’s claim to territory. It was Barela’s response to that
quintessential gang activity that led to the shooting. Any
objection to the admission of this evidence (which Corona does
not even argue his trial counsel should have made) or request to
scrub it of its gang-related context would have been meritless.
(See People v. Garlinger (2016) 247 Cal.App.4th 1185, 1193




                                 14
[“failure to object to the admission of evidence is not ineffective
assistance where ‘there was no sound legal basis for objection’”].)
       The record also shows counsel for Corona had rational,
tactical reasons for not seeking to sanitize the gang evidence in
this case: He wanted to show Barela was a gang member and
Corona had reason to fear him. Counsel for Corona
acknowledged before trial that gang evidence “may come up,” but
he made no effort to exclude, sanitize, or limit the jury’s
consideration of such evidence. During the trial, counsel for
Corona questioned Huerta about Barela’s gang ties to show that
Barela had enemies who may have had a motive to, and did, kill
Barela. (See People v. Lewis (2001) 25 Cal.4th 610, 661 [counsel’s
performance was not deficient where “counsel could reasonably
have viewed the [witness’s] testimony as further support for the
defense position”].) Counsel for Corona also used gang evidence
in his closing argument to undermine Huerta’s credibility.
Counsel for Corona argued that, while Huerta was in custody
awaiting trial on other charges, the police “gang detail show[ed]
up” wanting to get “gang guys” like Corona “off the street” and
told Huerta that if he “give[s] up” Corona he would be released
and “cited out.”
       Finally, Corona has not demonstrated prejudice. There is
no reasonable probability that, had Corona’s trial counsel
convinced the court to require Huerta and Rice to use the phrase
“world of drug sales” rather than “gang,” the result of the trial
would have been any different. “Drug world” isn’t much better
than “gang world.” And, as the People point out, the “proposed
sanitization would . . . have been pointless” because Corona had
the name of his gang tattooed on his face, and any reasonable
jury would have connected drug sales with gang activity.




                                15
      C.     The Trial Court Did Not Err in Ordering Corona To
             Pay Interest on Restitution Paid to the Victim
             Compensation Board
      The trial court ordered Corona under section 1202.4,
subdivision (f), to pay $1,359.85 in restitution to one of Barela’s
relatives, plus 10 percent interest from the date of sentencing, for
out-of-pocket funeral expenses. Corona does not challenge this
order. The trial court also ordered Corona to pay $7,500 in
restitution to the Victim Compensation Board, which paid that
amount from the Restitution Fund to Barela’s family for funeral
expenses, plus 10 percent interest from the date of sentencing.
Corona does not challenge the order requiring him to deposit
$7,500 in the Restitution Fund, but he does challenge the order
requiring him to pay 10 interest on that amount. Corona argues
that, because the Board is not a “victim” within the meaning of
section 1202.4, subdivisions (f) and (k), it is not entitled to
interest.2
      When interpreting a statute, our “‘fundamental task . . . is
to determine the Legislature’s intent so as to effectuate the law’s


2     We review an order of victim restitution for abuse of
discretion, unless the argument “hinges on an issue of statutory
interpretation, which we review de novo.” (People v. Montiel
(2019) 35 Cal.App.5th 312, 318; People v. Saint-Amans (2005)
131 Cal.App.4th 1076, 1084.) In addition, while a defendant
usually must object to a restitution award to preserve the issue
for appeal (People v. Gonzalez (2003) 31 Cal.4th 745, 755), where,
as Corona argues and the People concede, the court imposed an
unauthorized sentence, the failure to object is not a forfeiture.
(People v. Mendez (2019) 7 Cal.5th 680, 716; People v. Ruiz
(2018) 4 Cal.5th 1100, 1104, fn. 2; People v. Barnwell (2007) 41
Cal.4th 1038, 1047-1048.)




                                16
purpose.’ [Citations.] ‘Because the statutory language is
generally the most reliable indicator of that intent, we look first
at the words themselves, giving them their usual and ordinary
meaning.’ [Citations.] ‘If the statutory language is
unambiguous, then its plain meaning controls. If, however, the
language supports more than one reasonable construction, then
we may look to extrinsic aids, including the ostensible objects to
be achieved and the legislative history.’” (People v. Ruiz (2018)
4 Cal.5th 1100, 1105-1106; see In re C.H. (2011) 53 Cal.4th 94,
100.)
       The statutory language does not support Corona’s
interpretation. Section 1202.4, subdivision (f), provides that the
court must order the defendant to make “full restitution” to the
victim. Section 1202.4, subdivision (f)(3), states that the court
must set the “dollar amount” of restitution “to fully reimburse the
victim or victims for every determined economic loss incurred as
the result of the defendant’s criminal conduct,” including medical
expenses, lost wages, payment for the value of lost or damaged
property, and “[i]nterest, at the rate of 10 percent per annum,
that accrues as of the date of sentencing or loss, as determined by
the court.”
       Section 1202.4, subdivision (f)(2), provides that “the
amount of restitution ordered pursuant to this subdivision shall
not be affected by the indemnification or subrogation rights of a
third party,” such as an insurer or the Board. Among the things
included in the amount of restitution that indemnification and
subrogation rights (whether of an insurer or the Board) do not
affect, and that the court must award, is interest at 10 percent.
(§ 1202.4, subd. (f)(3)(G).) This is true even if the defendant has
to pay some or all of the restitution amount to the Board for




                                17
deposit in the Restitution Fund. Section 1202.4, subdivision
(f)(2), provides that restitution “ordered pursuant to this
subdivision shall be ordered to be deposited” in the Restitution
Fund to the extent a victim has received assistance from the
Board. Under section 1202.4, subdivision (f)(3)(G), restitution
ordered “pursuant to this subdivision” (i.e., section 1202.4.
subdivision (f)) must include 10 percent interest. (See In re S.E.
(2020) 46 Cal.App.5th 795, 809-810 [“[w]here a victim, or, as in
this case, the state, pays out money for expenses incurred by the
victim as a result of a defendant’s . . . criminal conduct, the use of
that money for other purposes is lost until reimbursed by the
payment of restitution,” and under section 1202.4, subdivision
(f)(3)(G), “the Legislature has determined 10 percent per annum
is appropriate recompense for this loss of use”]; People v. Pangan
(2013) 213 Cal.App.4th 574, 581 [“the point of a restitution award
is that the crime perpetrator is indeed responsible to pay the
award now, which is why the award carries interest from the
date of sentencing or date of loss”].)
        Corona argues he does not have to pay interest on amounts
paid to the Board because the Board is not a “victim” within the
meaning of section 1202.4, subdivision (k). Corona contends
section 1202.4, subdivision (k), which defines “victim” for
purposes of restitution under section 1202.4 to include family
members, direct victims of a crime, and persons who receive
assistance from the Restitution Fund, does not list the Board as a
“victim.” Corona’s conclusion, however, does not follow from his
premise. Section 1202.4, subdivision (k), does not include the
Board as a victim; the victim is the person the Board assists. But
section 1202.4, subdivision (f), requires the defendant to pay full
restitution to the victim, including 10 percent interest, even if a




                                 18
victim has received assistance from the Restitution Fund, not
because the Board is a “victim,” but because section 1202.4,
subdivision (f)(3)(G), requires the restitution award to include 10
percent interest. The “restitution ordered pursuant to” section
1202.4, subdivision (f), always reimburses the victim or victims,
even if part of the restitution amount is “deposited” in the
Restitution Fund. As section 1202.4, subdivision (f)(2), makes
clear, the court orders full restitution to the victim, including 10
percent interest, and the Board receives satisfaction of its
indemnification or subrogation rights when the defendant makes
a deposit in the Restitution Fund. In criminal restitution orders,
“there is no escaping the time value of money.” (People v.
Pangan, supra, 213 Cal.App.4th at p. 582.)
       Corona also argues that “the purpose of restitution is to
repair actual ‘loss,’ not to provide a windfall to victims or to state
agencies.” But under Corona’s theory, the convicted defendant
would receive a windfall when the Board provides assistance to
victims of the defendant’s criminal conduct. That unreasonable
interpretation of the statute penalizes the state for providing
financial assistance to crime victims and rewards the defendant
whose crimes caused those victims economic loss. (See People v.
Bullard (2020) 9 Cal.5th 94, 106 [courts must “choose a
reasonable interpretation that avoids absurd consequences that
could not possibly have been intended”]; People v. Loeun (1997)
17 Cal.4th 1, 9 [“‘Interpretations that lead to absurd results or
render words surplusage are to be avoided.’”].) Relieving the
defendant of his or her obligation to pay full restitution, including
interest, would allow the defendant to benefit from a state
program established to assist those whom the defendant has
harmed. (See People v. Evans (2019) 39 Cal.App.5th 771, 778




                                 19
[“We see no reason that defendant should receive a windfall—and
the Restitution Fund should suffer a loss—simply because the
victims exercised their right to apply to the . . . Board rather than
waiting for the victim restitution order.”].)
       People v. Martinez (2005) 36 Cal.4th 384 and People v.
Wardlow (1991) 227 Cal.App.3d 360, cited by Corona, are
distinguishable. Neither case involved payment of interest as
restitution for victims’ economic losses or deposits in the
Restitution Fund after victim assistance from the Board. In
Martinez the Supreme Court held that, although a state agency
could not recover from the defendant the costs of disposing
hazardous substances recovered at a crime scene under section
1202.4 because the agency was not a direct victim under section
1202.4, subdivision (k), the agency could recover those costs
under Health and Safety Code section 11470.1 or 11470.2.
(Martinez, at pp. 393-394.) As stated, the Board is not seeking
restitution as a direct victim; it is seeking reimbursement
because it provided assistance to a direct victim. In Wardlow the
court held that, although the trial court could not impose as a
condition of probation restitution by a defendant convicted of
child molestation to Medi-Cal or the Victim’s Assistance Fund for
the costs of the victim’s psychological treatment under section
1203.1g, the court could “order a defendant convicted of child
abuse or neglect to reimburse a law enforcement agency for the
costs of any medical examinations of the victim” under section
1203.1h. (Wardlow, at pp. 365, 368, 371.) Like Martinez,
Wardlow involved a different statutory scheme, and the court in
Wardlow emphasized that “section 1203.1g must be read in light
of the statutory scheme for probation conditions . . . .” (Id. at




                                 20
p. 371.)3 Moreover, Wardlow was decided in 1991, before the
Legislature enacted section 1202.4, subdivision (f)(2), in 1996.
(See Stats. 1996, ch. 629, § 3.) Finally, as the People point out,
applying Wardlow to section 1202.4 as Corona suggests would
preclude the Board from receiving any money, let alone interest,
from the defendant, which would eviscerate section 1202.4,
subdivision (f)(2). (See People v. Korwin (2019) 36 Cal.App.5th
682, 685 [courts should reject an interpretation of a statute that
“is contrary to both the plain meaning of the statute and its
purpose”]; In re Kacy S. (1998) 68 Cal.App.4th 704, 709 [courts
“may not, under the guise of construction, rewrite” a statute or
“ignore the plain meaning of its terms”].)




3     In particular, the court in Wardlow observed there “would
be no need for [section 1203.1h] authorizing the reimbursement
of law enforcement agencies for medical examinations if section
1203.1g were construed . . . to encompass indirect victims and
government agencies which made payments for a child abuse
victim’s medical or psychological treatment.” (People v. Wardlow,
supra, 227 Cal.App.3d at p. 371.)




                                21
                         DISPOSITION

     The judgment is affirmed.




             SEGAL, J.



We concur:




             PERLUSS, P. J.




             FEUER, J.




                              22
