Filed 11/25/13 P. v. Vogel CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064302
    Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1401530)
    v.

ERICK JOHN VOGEL,                                                                        OPINION
    Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas
D. Zeff, Judge.
         Kyle Gee, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
          A jury found appellant Erick John Vogel guilty of first degree murder (Pen. Code,
§§ 187, subd. (a)/189)1 and first degree burglary (§ 459). The jury also found true the
personal use of a deadly and dangerous weapon enhancement (§ 12022, subd. (b)).
Vogel admitted out-on-bail enhancements attached to both counts (§ 12022.1). He earlier
entered a no contest plea to violating a protective order (§ 273.6). The trial court
sentenced Vogel to an indeterminate term of 25 years to life for first degree murder, plus
a determinate term of three years on the enhancements. The trial court stayed the
remaining imposed terms. Various fines were imposed and restitution ordered.
          On appeal, Vogel contends that the trial court abused its discretion in denying his
request for substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118
(Marsden) and erred in admitting statements Vogel made to an officer in violation of
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He also contends there is
insufficient evidence to find that the killing was the result of premeditation or
deliberation. He finally contends that, because victim restitution is punitive, imposition
of a restitution order on judicially determined facts violated his constitutional right to a
jury trial and the requirement of proof beyond a reasonable doubt. We disagree and
affirm.
                               STATEMENT OF THE FACTS
          Katherine Voelker and Vogel lived together and had two children, a girl in April
of 2005 and a boy in October of 2006. In March of 2009, Voelker and the children
moved out of their residence, and the following month they moved into a motel room.
Voelker and Vogel were in a custody dispute and Vogel had recently commenced legal
proceedings to obtain joint custody.
          On April 22, 2009, Carrie Sacher, who was staying in the motel room down from
Voelker’s, woke during the early morning hours to the sound of glass breaking. She then
1         All statutory references are to the Penal Code unless otherwise stated.



                                               2.
heard children screaming and then a woman scream. The woman’s scream was “really
intense” and then suddenly stopped. Sacher heard more glass breaking. The children
stopped screaming and then cried. Sacher saw a man pass by her window, walking
briskly. The man got into a dark-colored car and sped off through a chain-link fence that
blocked the motel lot from another business lot.
        Sacher opened her room door and went to the area where she saw broken glass.
She looked into the window and saw two young children sitting on the edge of the bed
crying. Another motel occupant climbed through the window to unlock the motel door
from the inside. A woman was lying on the bed gasping for air. Sacher and other motel
guests noticed a cut in the women’s neck region. Sacher picked up the children and took
them to the doorway of her room. The little girl told Sacher several times, “That was my
daddy.”
        Police officers arrived and found Voelker on the bed with a large laceration in her
chin and throat area and multiple fresh puncture wounds on her chest and abdomen areas.
She was still alive, but gasping for air and losing consciousness. A community service
officer spoke with the children and observed that they were scared and crying. The girl
said to the officer, “My daddy came through the window and hurt mommy.” A crowbar
was found inside the motel room under the broken window.
        Voelker was transported to a hospital, where she died. The cause of death was
found to be loss of blood from multiple stab wounds. One stab wound was eight inches
deep.
        On April 25, 2009, Sheriff’s Deputy David Thompson was working with a canine
partner when he saw Vogel hiding in the vegetation at a park. Thompson twice directed
Vogel to surrender. When he did not get a response, Thompson warned Vogel that the
dog would bite him and he ordered Vogel to put his hands up. Vogel began to comply
and then refused, so Thompson commanded the dog to apprehend Vogel. The dog bit



                                             3.
Vogel in the wrist and forearm and pulled him out of the vegetation. Vogel was then
handcuffed and paramedics called.
       Another deputy, Deputy Green transported Vogel to a hospital. En route, while
seated in the backseat of the patrol vehicle, which was pulled over in a parking lot,
Sergeant Marc Nuno asked Vogel about his injuries. During their conversation, Vogel
said, “Man, I fucked up, [Deputy Nuno]” and “I loved that girl.”
       Photos were taken of Vogel at the hospital. Sacher picked Vogel’s picture out of a
photo lineup as the person who she saw walk by her motel window, but she was not 100
percent sure.
       Swabs of bloodstains from the motel room’s window frame and drapery fabric
contained DNA consistent with Vogel.
                                       DISCUSSION
I.     MARSDEN MOTION
       Vogel contends that the trial court’s Marsden inquiry was inadequate before
denying his motion for new counsel because “significant factual issues were not explored
[or] resolved.” We disagree.
       Procedural Record
       On the date set for the preliminary hearing, Vogel filed a written Marsden motion.
On the form motion, Vogel said he had “not receiv[ed] adequate representation by
counsel” and checked boxes that counsel had failed and/or refused to do various things
critical to his defense: to confer with him; to subpoena favorable witnesses; to perform
critical investigation; to secure expert witnesses; to prepare and file motions; and to
present evidence at motion/writ hearings. Vogel also checked a box labeled “other,” and
then handwrote:

       “[H]ave not received discovery, have not talked to psychologist, or
       investigators. And when I call for him the secretary[] want to no [sic] why
       I want to talk to him in details and thats [sic] none of th[ei]r [business] 5-6-


                                              4.
         10 at 320 to be exact[.] I have a high profile case and cannot talk my
         [business] over the phone to be recorded.”
         The trial court immediately held a hearing on the motion. After reviewing the
written motion, the trial court asked Vogel if he had “any additional statements … to
make with regard to th[e] Marsden motion?” Vogel replied:

         “Yeah. I mean, [counsel] came and seen me Friday. He’s like telling me
         that the investigation don’t start until after the prelim exam and that’s
         today. [¶] You are supposed to investigate all that before. You got to
         come in here with everything investigated, you know? I got some
         witnesses that I want to help me. [¶] … [W]e’re bumping heads or
         something.… [¶]…[¶] … I’ve been here 14 months, you know? I haven’t
         got nothing. I’ve talked to him twice in 14 months for my case. Two
         minutes. Five minutes. You know what I mean?”
         In response to the trial court’s questioning, defense counsel stated that he had been
practicing with the Public Defender’s Office for almost seven years and had tried serious
cases, including other homicide clients. Defense counsel stated he had been representing
Vogel since the inception of the case. When asked what he had done in his
representation of Vogel, defense counsel stated he had: (1) reviewed all discovery, along
with a summer intern and co-counsel, in anticipation of the preliminary hearing; (2)
contacted Vogel numerous times as to whether there were any witnesses that needed to be
interviewed, but Vogel had not provided any names; (3) asked Vogel numerous times if
there were any witnesses to the incident, but Vogel told him there were not; and, (4) in
response to Vogel’s request that defense counsel investigate his state of mind at the time
of the event for “a possible commitment to BHRS,” defense counsel had Vogel sign a
medical release. He got Vogel’s medical records and reviewed them. Defense counsel
refuted Vogel’s claim that he left defense counsel messages at the office, but defense
counsel had spoken to Vogel the Friday before for about 45 minutes and “none of these
issues were raised.” Defense counsel did not know of any conflicts between Vogel and
himself and that the two of them had “open communications since the inception of the
case.”


                                               5.
       The trial court reviewed the form motion again and noted that defense counsel had
addressed various issues. When asked about Vogel’s complaint that defense counsel had
failed or refused to secure expert witnesses, defense counsel stated that he did not think
there were any expert witnesses necessary. The only possible useful expert witness
would have been on the issue of Vogel’s mental state, but according to defense counsel,
based on the review of his medical records, no such expert witness was needed.
       As for failing or refusing to file motions critical to the defense, defense counsel
stated that, “[a]t this point, no motions that I believe are necessary for the preliminary
hearing have been filed, but not needed as well.” Defense counsel did state that they
would be making a Miranda motion concerning the statement Vogel made.
       As for the allegation that Vogel had not received discovery, defense counsel stated
that his office sends discovery to a defendant when the defendant requests it, and Vogel
never made such a request. Vogel claimed, however, that he had requested it from the
secretary “[m]ore than once.”
       As for the claim that Vogel had not talked to psychologists or investigators,
defense counsel acknowledged that Vogel had not been interviewed “at this point” by a
psychologist, but determined none was needed after his medical records were received.
And because Vogel had not given defense counsel any witness information, no interview
with an investigator was needed either.
       When asked if there was anything else for the trial court to consider, Vogel said,
“No.” The trial court then denied the motion, finding defense counsel had “properly
represented [Vogel] and will continue to do so.”
       Vogel then asked if he could “fire” defense counsel. The trial court explained that,
if Vogel wished to hire private counsel, he could do so, but he would not get his choice of
appointed counsel. !(RT 9-10)! Vogel then asked to put the matter “off for a couple
weeks,” so he could try to retain private counsel. After further discussion, the trial court
reluctantly agreed Vogel could have two weeks to obtain private counsel. The trial court

                                              6.
noted that, in its view, Vogel’s request was “not timely” and “frivolous,” and that “the
only reason” for granting the continuance was “the seriousness nature of the charge.”
!(RT 5/17/10 10-15)!
       Following the continuance, the same defense counsel subsequently represented
Vogel through trial and at sentencing. !(CT 24; RT 5/17/10 15; RT 17)!
       Applicable Law and Analysis
       Marsden motions are subject to the following well-established rules. Under
Marsden, when a defendant in some manner moves to discharge current counsel, the trial
court’s duty is to inquire as to the reasons for the dissatisfaction and exercise its
discretion in deciding whether to replace counsel. (Marsden, supra, 2 Cal.3d at p. 124;
People v. Lucky (1988) 45 Cal.3d 259, 281.) A defendant is entitled to relief if he can
show inadequate representation or that the attorney-client relationship is irreparably
broken down. (People v. Smith (1993) 6 Cal.4th 684, 696; People v. Crandell (1988) 46
Cal.3d 833, 854, abrogated by People v. Crayton (2002) 28 Cal.4th 326, 364-365.) The
trial court should appoint new counsel only when a proper showing under Marsden has
been made. (People v. Smith, supra, at p. 696.)
       A defendant does not have the right to present a defense of his own choosing, but
merely the right to an adequate and competent defense. (See People v. Hamilton (1989)
48 Cal.3d 1142, 1162.) “Tactical disagreements between the defendant and his attorney
do not by themselves constitute an ‘irreconcilable conflict.’ ‘When a defendant chooses
to be represented by professional counsel, that counsel is “captain of the ship” and can
make all but a few fundamental decisions for the defendant.’” (People v. Welch (1999)
20 Cal.4th 701, 728-729.)
       “Denials of Marsden motions are reviewed under an abuse of discretion standard.
[Citation.] Denial ‘is not an abuse of discretion unless the defendant has shown that a
failure to replace the appointed attorney would “substantially impair” the defendant’s



                                              7.
right to assistance of counsel. [Citations.]’ [Citation.]” (People v. Barnett (1998) 17
Cal.4th 1044, 1085.)
       In People v. Silva (2001) 25 Cal.4th 345, 365-366, the trial court read a document
submitted by defendant that outlined the reasons for his Marsden motion. The trial court
then asked defendant three times to state the grounds for his request to replace his
attorney, and the trial court did not interrupt defendant’s explanation. Defense counsel
was then asked to respond to defendant’s allegations. The Supreme Court found the
court’s actions satisfied the requisite duty of inquiry. (People v. Silva, supra, at p. 367.)
       In People v. Hines (1997) 15 Cal.4th 997, 1021, the defendant made three
Marsden motions. In the first, when defendant asserted that his attorney was “‘not doing
his job,’” the trial court asked defendant for specifics and then asked counsel to comment.
(People v. Hines, supra, at p. 1022.) In the second hearing, the trial court also questioned
defendant closely about the basis for his complaints. (Id. at pp. 1022-1023.) In a third
hearing, the defendant asserted there was “‘confusion’” between him and his attorneys,
and the court again asked defendant to elaborate. When defendant had difficulty doing
so, the court suggested that defendant take some time to think about specific reasons for
his dissatisfaction with counsel and bring them to the court’s attention. (Id. at p. 1023.)
       The Supreme Court concluded:

       “On each occasion, the court repeatedly asked defendant to clarify the
       reasons for his dissatisfaction with counsel, and thereafter questioned
       defendant’s lead attorney at length to determine whether defendant’s
       allegations warranted counsel’s replacement. Although the third hearing
       was not as thorough as the first two, the court again made great efforts to
       have defendant explain the nature of the difficulties defendant was having
       with counsel. When defendant was unable to do so, the court gave
       defendant as much time as needed to formulate his reasons for wanting
       different counsel. In short, at each of the three Marsden hearings the trial
       court fully complied with its duty to ascertain the nature of the problems
       defendant claimed he was having with his appointed counsel.” (People v.
       Hines, supra, 15 Cal.4th at p. 1024.)



                                              8.
       The same can be said here. For each alleged deficiency in representation voiced
by Vogel, the trial court invited responses from defense counsel. After each complaint
was addressed, the trial court asked Vogel if he had anything to add, to which Vogel said
he did not. “To the extent there was a credibility question between defendant and counsel
at the hearing, the court was ‘entitled to accept counsel’s explanation.’” (People v. Smith,
supra, 6 Cal.4th at p. 696.) We find that the trial court conducted an appropriate
Marsden inquiry and reject Vogel’s claim to the contrary.
II.    MIRANDA VIOLATION
       Vogel argues that the incriminating statements he made to Sergeant Nuno -- “Man,
I fucked up” and “I loved that girl” -- was the result of interrogation under Miranda. We
disagree.
       Procedural Record
       Prior to trial, Vogel moved to preclude incriminating statements he made to
Sergeant Marc Nuno. After Vogel was arrested and placed into a patrol car, the
following colloquy occurred between Sergeant Nuno and Vogel:

       “NUNO: Erick,

       “VOGEL: Yeh.

       “NUNO: How’re you doin?

       “VOGEL: Um …

       “NUNO: Not good? No? What’s wrong?

       “VOGEL: Dog chewed me up.

       “NUNO: How bad’s your arm?

       “VOGEL: It’s … can’t feel it.

       “NUNO: Do you need to go to the hospital?

       “VOGEL: No.



                                             9.
       “NUNO: What’d they say how bad his arm was? What’d they say how
       bad his arm was? Does it need stitches or anything? You remember me,
       Erick?

       “VOGEL: Yeh. I know you. How’re you doing Marc?

       “NUNO: Not too bad, buddy. Hangin in there?

       “VOGEL: Man, I fucked up, Marc.

       “NUNO: You know .…

       “VOGEL: I loved that girl.”
       Prior to testimony on the statements, the trial court held a hearing, pursuant to
Evidence Code section 402, in which Deputy David Thompson, Deputy Brandon Green,
and Sergeant Nuno testified.
       Deputy Thompson testified that, on April 25, 2009, he and his canine partner
found a person suspected of being Vogel hiding in the ivy at the park. After he identified
himself and announced that he had a police dog, the deputy warned the person that the
dog would bite him if he did not surrender. The person did not respond. After two more
announcements to surrender, Deputy Thompson began walking toward to the ivy.
Deputy Thompson saw the person raise his hands, as if to surrender, and then drop them
quickly. Thinking the person might have a weapon, Deputy Thompson released the dog
and commanded him to apprehend the person. The dog bit the person on the upper left
back and then his forearm/wrist area. Deputy Thompson and the dog pulled the person
out of the ivy and handcuffed him. The person identified himself as Vogel.
       According to Deputy Thompson, paramedics checked Vogel’s injuries and advised
him that the injuries were fairly minor in nature but that, if they wished, he could be
transported to the hospital by the deputies. Deputy Thompson then placed Vogel into
Deputy Green’s patrol vehicle for transport to the hospital.
       Deputy Green testified that he had a tape recorder with him in his patrol vehicle.
With Vogel seated in the back of the patrol vehicle Green activated the recorder and


                                            10.
placed it behind the passenger seat headrest. Deputy Green and Deputy Thompson
traveled caravan to the hospital. En route to the hospital, Deputy Thompson spoke with
Sergeant Nuno, who then instructed Green to stop at a restaurant parking lot, halfway
between the park and the hospital.
       Sergeant Nuno testified that he wanted to see Vogel’s injuries to determine
whether he should be taken to the hospital or directly to jail. At the restaurant parking
lot, Sergeant Nuno opened the door to Deputy Green’s patrol vehicle and spoke to Vogel.
Sergeant Nuno testified that he wanted to see Vogel’s injuries and ask how he was doing.
Sergeant Nuno had been told by Deputy Green that there was a tape recorder in the patrol
vehicle.
       After hearing argument from the parties, the trial court denied Vogel’s motion and
admitted his incriminating statements. The trial court determined that, while Vogel was
clearly under arrest and had not been advised of his rights, the statements were made
within the “first 30 seconds” of Sergeant Nuno’s conversation with Vogel and Sergeant
Nuno’s questions “were strictly asked for purposes of determining if the defendant was in
need of medical care and was not seeking to elicit incriminating information.” The trial
court determined that there was no interrogation at that point for purposes of Miranda.
The trial court determined that Vogel’s “volunteering or making statements that were not
directly responsive to those questions was … no fault of the officer. And I find no
evidence that the officer was attempting to trick Mr. Vogel into making these statements,
which are sought to be excluded.”
       At trial, the taped conversation between Vogel and Sergeant Nuno was played for
the jury.
       Applicable Law and Analysis
       Miranda admonitions -- advising a suspect of his or her right to remain silent, to
the presence of an attorney and, if indigent, to appointed counsel -- must be given and an
individual in custody must knowingly and intelligently waive those rights before being

                                            11.
subjected to either express questioning or its “functional equivalent.” (Rhode Island v.
Innis (1980) 446 U.S. 291, 300-301; People v. Ray (1996) 13 Cal.4th 313, 336.) Miranda
applies only to “custodial interrogation.” (Rhode Island v. Innis, supra, at p. 298;
Miranda, supra, 384 U.S. at p. 444.) “By custodial interrogation, we mean questioning
initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” (Miranda, supra, at
p. 444.)
       “When there is custody, but not interrogation, Miranda does not apply.” (People
v. Harmon (1992) 7 Cal.App.4th 845, 853.) “‘Interrogation’ consists of express
questioning, or words or actions on the part of the police that ‘are reasonably likely to
elicit an incriminating response from the suspect.’” (People v. Cunningham (2001) 25
Cal.4th 926, 993.) Whether particular questioning amounts to an interrogation depends
on the “‘total situation,’” including the length, place and time of the questioning, the
nature of the questions, the conduct of the police and all other relevant circumstances.
(People v. Terry (1970) 2 Cal.3d 362, 383, disapproved on another ground in People v.
Carpenter (1997) 15 Cal.4th 312, 383, superseded by statute on another ground as noted
in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)
       When reviewing a trial court’s decision denying a motion to suppress statements
purportedly obtained in violation of the defendant’s rights under Miranda, we defer to the
court’s resolution of disputed facts if supported by substantial evidence. (People v.
Stansbury (1995) 9 Cal.4th 824, 831; People v. Siripongs (1988) 45 Cal.3d 548, 575.)
Based on those facts, as found, and the undisputed facts, we independently review the
trial court’s rulings. (People v. Weaver (2001) 26 Cal.4th 876, 918.)
       There is no question, and indeed the People do not dispute, that Vogel, who was
handcuffed and placed by sheriff’s deputies in the back of the patrol car, was in
“custody” for purposes of Miranda. The issue, therefore, is simply whether the questions
posed to him while in custody constituted an interrogation.

                                             12.
       We find that no interrogation occurred. The conversation Sergeant Nuno initiated
with Vogel was unrelated to the killing of Voelker. Sergeant Nuno simply asked Vogel,
who was just bitten by a dog, about his injuries, whether Vogel remembered him, and
whether Vogel was “[h]angin in there.” Not all conversations between a police officer
and a suspect constitutes interrogation. (People v. Ray, supra, 13 Cal.4th at p. 338.)
“The police may speak to a suspect in custody as long as the speech would not reasonably
be construed as calling for an incriminating response.” (People v. Clark (1993) 5 Cal.4th
950, 985, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.)
       In People v. Roldan (2005) 35 Cal.4th 646, the defendant was standing in the jail
food line when he saw a deputy he knew. The defendant asked the deputy, “‘“What’s
happening .…?”’” The deputy recognized the defendant and asked if he was going to
stay out of trouble. The defendant responded, “‘“Yeah, it was nothing. I don’t know
why they are bothering with all this court. I am guilty. I [stabbed] that guy in the
yard.”’” Later when the deputy transported the defendant back to a high security area,
the defendant asked why he was being moved. The deputy said it was for his own
protection. The defendant replied, “‘“It is no big deal. I don’t know why. I am probably
going to face the death penalty anyway.”’” Our Supreme Court held that defendant’s
statements were volunteered and not made in response to interrogation. (Id. at pp. 735-
736, overruled on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn.
22.)
       Here, the questions Sergeant Nuno asked of Vogel cannot “reasonably be
construed as calling for an incriminating response.” (People v. Clark, supra, 5 Cal.4th at
p. 985.) We agree with the trial court that Vogel’s response to Sergeant Nuno’s questions
was not the product of an interrogation under Miranda.




                                            13.
III.    SUFFICIENCY OF THE EVIDENCE
       Vogel contends that there was insufficient evidence to support the jury’s finding
that the murder was willful, deliberate, and premeditated. We disagree.
       “Review on appeal of the sufficiency of the evidence supporting the finding of
premeditated and deliberate murder involves consideration of the evidence presented and
all logical inferences from that evidence in light of the legal definition of premeditation
and deliberation .… Settled principles of appellate review require us to review the entire
record in the light most favorable to the judgment below to determine whether it discloses
substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -
- from which a reasonable trier of fact could find that the defendant premeditated and
deliberated beyond a reasonable doubt. [Citations.]” (People v. Perez (1992) 2 Cal.4th
1117, 1124.) The hurdle to secure a reversal is just as high when the prosecution’s case
depends on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) As
long as there is reasonable justification for the findings made by the trier of fact, a
reviewing court’s opinion that contrary findings might also have been reasonable does
not require a reversal. (Id. at p. 793.)
       We determine the issue of whether a murder was willful, deliberate, and
premeditated under familiar principles. “‘[W]illful’” means intentional; “‘deliberate’”
means formed and arrived at as a result of careful thought and weighing of considerations
for and against the proposed course of action; and “‘premeditated’” means considered
beforehand. (People v. Perez, supra, 2 Cal.4th at p. 1123.) “An intentional killing is
premeditated and deliberate if it occurred as the result of preexisting thought and
reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite
reflection need not span a specific or extended period of time.” (People v. Stitely (2005)
35 Cal.4th 514, 543.) “[P]remeditation can occur in a brief period of time. ‘The true test
is not the duration of time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated judgment may be arrived at

                                              14.
quickly .…’ [Citations.]” (People v. Perez, supra, at p. 1127.) Premeditation and
deliberation can thus occur in rapid succession. (People v. Bloyd (1987) 43 Cal.3d 333,
348.) The act of obtaining a weapon is evidence of planning consistent with a finding of
premeditation and deliberation. (People v. Koontz (2002) 27 Cal.4th 1041, 1081-1082.)
The method of killing alone “can sometimes support a conclusion that the evidence
sufficed for a finding of premeditated, deliberate murder.” (People v. Memro (1995) 11
Cal.4th 786, 863-864.) For instance, an execution-style shooting at close range may
establish premeditation and deliberation (People v. Bloyd, supra, at p. 348); the
assailant’s use of a firearm against a defenseless person may show sufficient deliberation
(People v. Bolin (1998) 18 Cal.4th 297, 332-333); and firing at vital body parts shows
preconceived deliberation (Ibid.; People v. Thomas (1992) 2 Cal.4th 489, 518.)
       Vogel disputes the existence of the premeditation and deliberation, claiming those
findings cannot be made without resorting to speculation and conjecture. We disagree
with Vogel and believe there is ample evidence from which a reasonable jury could
conclude Vogel acted willfully and with premeditation and deliberation.
       With respect to planning, Vogel, a little after 2:00 a.m., armed himself with a
crowbar and knife and drove to the motel room where Voelker was staying. He did not
enter through the door to talk to Volker, but shattered the window and entered the room.
Sacher, next door, heard screaming, first coming from the children and then “really
intense” screaming coming from a woman. As for deliberation, Vogel inflicted several
numerous stab wounds to Voelker, including to her neck and abdomen areas. Voelker
was undoubtedly surprised by Vogel’s entry through her window at night and was
unarmed. Vogel fled the scene by speeding away through a chain-link fence and down an
alley to avoid detection.
       There was ample evidence showing that the killing “occurred as the result of
preexisting thought and reflection rather than unconsidered or rash impulse.” (People v.
Stitely, supra, 35 Cal.4th at p. 543.) We reject Vogel’s claim to the contrary.

                                            15.
IV.    VICTIM RESTITUTION
      At sentencing, the trial court ordered Vogel to pay actual restitution, pursuant to
section 1202.4, subdivision (f), in the amount of $7,500 for Voelker’s funeral and burial
costs to the California Victim Compensation and Government Claims Board. !(RT 632;
CT 304)! He now contends that the restitution is punishment and, as such, cannot be
imposed on judicially determined facts without violating the Sixth Amendment, citing
the recent United States Supreme Court case of Southern Union Co. v. United States
(2012) 567 U.S. ___ [132 S.Ct. 2344; 183 L.Ed.2d 318] (Southern Union), and Apprendi
v. New Jersey (2000) 530 U.S. 466 (Apprendi), as well as Blakely v. Washington (2004)
542 U.S. 296 (Blakely). We disagree.
      In Apprendi, supra, 530 U.S. at p. 490, the United States Supreme Court held that
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” As the Court explained in Blakely, supra, 542 U.S. at p.
303, “[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant.” (Some italics omitted.) It follows that a judgment may not “inflict[]
punishment that the jury’s verdict alone does not allow.” (Blakely, supra, at p. 304.)
      In Southern Union, the Court held Apprendi applies to the imposition of criminal
fines. (Southern Union, supra, 132 S.Ct. at p. 2356.) The statutory fine imposed in
Southern Union was $50,000 for each day of violation; the trial court, rather than the
jury, determined the number of days of violation. Because the amount of the fine was
directly tied to the number of days of violation, the Court held the trial court’s factual
finding as to the number of days of violation ran afoul of Apprendi. (Southern Union,
supra, at p. 2356.)
      Southern Union does not support Vogel’s argument. First, unlike the criminal fine
in Southern Union, the restitution to the California Victim Compensation and

                                             16.
Government Claims Board is direct victim compensation. The California Constitution
provides, in relevant part, that “[r]estitution shall be ordered from the convicted
wrongdoer in every case, regardless of the sentence or disposition imposed, in which a
crime victim suffers a loss.” (Cal. Const. art. I, § 28, subd. (b)(13)(B).) Subdivision (f)
of section 1202.4 implements the constitutional directive to require restitution for crime
victims. A court must order “full restitution unless it finds compelling and extraordinary
reasons for not doing so, and states them on the record.” (§ 1202.4, subd. (f).)
      Neither Southern Union, Apprendi nor Blakely have any application to direct
victim restitution, because victim restitution is not a criminal penalty. (People v. Pangan
(2013) 213 Cal.App.4th 574, 585.) Instead, victim restitution is a substitute for a civil
remedy so that victims of crime do not need to file separate civil suits; it is not increased
“‘punishment.’” (Ibid.; see also People v. Chappelone (2010) 183 Cal.App.4th 1159,
1185; People v. Millard (2009) 175 Cal.App.4th 7, 35 [“the primary purpose of a victim
restitution hearing is to allow the People to prosecute an expedited hearing before a trial
court to provide a victim with a civil remedy for economic losses suffered, and not to
punish the defendant for his or her crime”]; accord People v. Harvest (2000) 84
Cal.App.4th 641, 645, 650.)
      Moreover, the restitution statute itself characterizes victim restitution awards as
civil (see § 1202.4, subd. (a)(3)(B) [victim restitution imposed pursuant to subdivision (f)
“shall be enforceable as if the order were a civil judgment”]) and federal cases
addressing the issue have likewise concluded that a restitution hearing does not implicate
the Sixth Amendment right to a jury trial. (People v. Chappelone, supra, 183
Cal.App.4th at p. 1184 [collecting numerous federal cases holding that, because victim
restitution does not constitute increased punishment for crime, judges may find the facts
necessary to impose a restitution order].)
      We conclude that the trial court did not err in imposing a restitution order without
a jury determination of the restitution amount, and reject Vogel’s claim to the contrary.

                                             17.
                                 DISPOSITION
     The judgment is affirmed.



                                               _____________________
                                                            Franson, J.
WE CONCUR:


 _____________________
Cornell, Acting P.J.


 _____________________
Peña, J.




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