Filed 8/25/15 P. v. George CA4/1
                     NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                          STATE OF CALIFORNIA



THE PEOPLE,                                                            D067420

         Plaintiff and Respondent,

         v.                                                            (Super. Ct. No. FVI1200784)

SAMMIE KALEI GEORGE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Victor R. Stull, Judge. Affirmed as modified, remanded for further proceedings.

         Donna L. Harris, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney

General, Barry J. Carlton and Christopher P. Beesley, Deputy Attorneys General, for

Plaintiff and Respondent.



         A jury convicted Sammie Kalei George of attempted criminal threats against

victim Aidee Quinones and found George personally used a deadly or dangerous
weapon during the crime. The trial court sentenced her to two years in prison, but

because she had accrued sufficient presentence custody credits, referred her to the

parole department. George appeals, contending the trial court erred: (1) by failing to

instruct the jury on voluntary intoxication and (2) in its restitution order. We reject her

claim of instructional error, but conclude the trial court abused its discretion in its

restitution order and remand the matter for a new restitution hearing.

       George also asserts, and the Attorney General concedes: (1) the trial court's

minutes and abstract of judgment reflect an unauthorized or illegal sentence and

should be corrected to reflect the lawful sentence contemplated by the trial court at

sentencing; and (2) the trial court intended to impose the minimum restitution fine in

effect at the time of George's crime, but failed to do so and that this fine and the parole

revocation fine should also be corrected. We agree.

                  FACTUAL AND PROCEDURAL BACKGROUND

       George lived in a house near another home occupied by Quinones, Quinones's

husband, her two teenage children, Victor and Jazmin, adult cousin Rodrigo Cabrera

and two roommates. On an evening in March 2012, George came to the back door of

Quinones's house and frantically knocked, asking to use the telephone. Cabrera

refused the request. As George started to walk away, Quinones came out and asked

Cabrera what was happening.

       George turned around. She was swinging an axe, screaming, "I'm going to kill

you, fucking bitch." George continued her threats as Quinones fled inside the house

and called 911. George eventually left.

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                                      DISCUSSION

                          I. Voluntary Intoxication Instruction

       George asserts the trial court prejudicially erred when it failed to instruct the

jury on voluntary intoxication as a defense negating specific intent. The Attorney

General contends George forfeited this claim because an instruction on involuntary

intoxication is a pinpoint instruction that defense counsel must request. Even

assuming the claim was preserved and the court erred, it is not reasonably likely the

jury would have returned a more favorable verdict if the court had provided the

voluntary intoxication instruction. Although the record suggests George forfeited this

issue, we address it on its merits and conclude any error was harmless.

       George was charged with making a criminal threat and assault. A defendant's

voluntary intoxication may not be considered in determining whether the defendant

committed assault, which is a general intent crime. (People v. Williams (2001) 26

Cal.4th 779, 790; People v. Atkins (2001) 25 Cal.4th 76, 81.) Voluntary intoxication,

however, may be considered in determining whether a defendant had the specific

intent to commit the crime of criminal threats or the lesser offense of attempted

criminal threats. (People v. Toledo (2001) 26 Cal.4th 221, 227-231; People v.

Williams (1997) 16 Cal.4th 635, 677 (Williams).) A voluntary intoxication instruction,

however, is akin to a pinpoint instruction to which a defendant is entitled, if at all, only

upon request. (People v. Verdugo (2010) 50 Cal.4th 263, 295.)

       At the hearing regarding jury instructions, the topic of voluntary intoxication

came up within the context of the assault instructions which provide that voluntary

                                             3
intoxication was not a defense to assault. (CALCRIM No. 875, 915.) The court

decided it would include this sentence because the police had testified they detected

the odor of alcohol when they met George. During the discussion of the jury

instructions, the issue of voluntary intoxication never arose in any other context. After

the jury rendered its verdict, defense counsel stated she had asked the court to instruct

on voluntary intoxication as a defense to the threat crimes, the court agreed to so

instruct, but the instruction was not given. The court indicated that the issue of

voluntary intoxication came up during the first discussion or a later discussion, that it

intended to instruct on voluntary intoxication for the specific intent crime, but "Why I

didn't, I don't know."

       George moved for a new trial noting this issue and stating, without citation to

the record, that the trial court had agreed to instruct the jury that voluntary intoxication

was a defense to the threat crimes. The People opposed the motion, stating the issue of

voluntary intoxication never arose in the context of the threat crimes and the court had

no sua sponte duty to instruct on this principle. At the hearing on the motion, the trial

court indicated it no longer remembered what had been discussed either on or off the

record, but the court accepted defense counsel's representations at face value that it had

agreed to instruct on voluntary intoxication and the failure to instruct was error. The

court nonetheless denied the new trial, finding the error harmless. We agree.

       Our Supreme Court has held "[a] defendant is entitled to such an instruction

only when there is substantial evidence of the defendant's voluntary intoxication and

the intoxication affected the defendant's 'actual formation of specific intent.' "

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(Williams, supra, 16 Cal.4th at p. 677; accord, People v. Verdugo, supra, 50 Cal.4th at

p. 295; People v. Ramirez (1990) 50 Cal.3d 1158, 1181.) Stated differently, the fact a

defendant may have been drinking before committing a crime does not establish

intoxication or require the giving of an instruction on intoxication. Rather, to be

entitled to an instruction on voluntary intoxication, the defendant must show not only

the consumption of intoxicating substances, but also intoxication to the point the

defendant failed to form the requisite intent. (People v. Ivans (1992) 2 Cal.App.4th

1654, 1661.)

       Here, the record contains some evidence that George may have been under the

influence of alcohol when she threatened Quinones. George testified that she was an

alcoholic and drank every day. On the day of the incident, she consumed some beer

and a pint of vodka by 1:00 p.m., when she stopped drinking. The incident occurred

about ten hours later at around 11:00 p.m. Although there is no direct evidence that

George continued to drink during these ten hours, when deputies responded to the 911

call made by Quinones at about 11:44 p.m., one of the deputies smelled the odor of

alcohol on George. The other deputy smelled alcohol when he entered George's home

and noticed that George slurred her speech. Thus, the jury could have reasonably

inferred that George drank some alcohol during this ten-hour period.

       Without any direct evidence regarding how much George may have drank, or

expert testimony, the jury would have been left to speculate whether George was

intoxicated at all during the incident. Even assuming, without deciding, the record

contained substantial evidence of George's intoxication, the voluntary intoxication

                                            5
instruction would still be unwarranted because, as in Williams, there was no evidence

of the effect any such intoxication had on George's ability to formulate intent.

(Williams, supra, 16 Cal.4th at pp. 677-678.) We conclude the evidence was

insufficient to support an instruction on voluntary intoxication because there was

absolutely no evidence George was intoxicated to the point where she was unable to

formulate specific intent. (Ibid.; People v. Ivans, supra, 2 Cal.App.4th at p. 1661.)

Thus, any error in failing to instruct on voluntary intoxication was harmless.

                               II. Victim Restitution Order

       The prosecutor requested the court order victim restitution in the amount of

$8,605, payable to the California Victim Compensation and Government Claims

Board (the Board). George argued at the restitution hearing that the victim was not

credible, the claim for victim restitution was exaggerated and the records were so

completely redacted that defense counsel had no information to use to subpoena

records to challenge the validity of the claim. She also urged that the victim's son did

not qualify as a derivative victim because he did not observe the crime. At the

restitution hearing, the court ordered victim restitution in the amount requested by the

prosecutor together with a 10 percent collection fee for a total amount of $9,465.50.

       George contends her arguments required the trial court to conduct a more

searching inquiry into the validity and legitimacy of the victim restitution claims and

required the court to release the records of the Board to her so she could prove that the

requested victim restitution amount was inappropriate. Because the trial court did not

do either, she argues the court abused its discretion in its victim restitution order.

                                             6
       California crime victims have the right to receive restitution for losses

attributable to the defendant's actions. (Cal. Const., art. I, § 28, subd. (b)(13)(B); Pen.

Code, § 1202.4, subd. (a)(1), undesignated statutory references are to this code.) "To

the extent possible, the restitution order . . . shall be of a dollar amount that is

sufficient to fully reimburse the victim or victims for every determined economic loss

incurred as the result of the defendant's criminal conduct." (§ 1202.4, subd. (f)(3).)

The types of economic losses recoverable by victims include losses for stolen or

damaged property, medical expenses and mental health counseling expenses. (Id. at

subd. (f)(3)(A)-(C).)

       Where, as here, state funds are used to provide assistance to or on behalf of a

victim, "the amount of assistance provided shall be presumed to be a direct result of

the defendant's criminal conduct and shall be included in the amount of the restitution

ordered." (§ 1202.4, subd. (f)(4)(A).) This language establishes a rebuttable

presumption that the amount paid by the Board was proper and "imposes upon

defendant the burden to prove the nonexistence of the presumed fact—that is, to prove

his conduct is not a cause in fact of the Board's payment." (People v. Lockwood

(2013) 214 Cal.App.4th 91, 101 (Lockwood).) If a defendant offers evidence tending

to rebut the presumption, the defendant may obtain the sealed Board records in order

to challenge the presumption. (§ 1202.4, subd. (f)(4)(C); Lockwood, at p. 101.) The

trial court must then "examine the sealed records in camera to determine whether the

information is necessary for the defendant to dispute the amount of restitution. If the

court finds that the sealed records are necessary, the defendant is entitled to use both

                                              7
his original evidence and the sealed material in his effort to rebut the subdivision

(f)(4)(A) presumption." (Lockwood, at p. 101.) We review a restitution order for

abuse of discretion. (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) Where

there is a rational basis for the amount of restitution ordered by the trial court, no

abuse of discretion will be found by the reviewing court. (Ibid.)

        In Lockwood, the trial court concluded that the defendant had rebutted the

presumption that the entire amount of assistance provided was a direct result of

defendant's criminal conduct, an incident of domestic violence, because the victim's

declaration established consistent acts of domestic violence committed by the victim's

husband (not the defendant) that could have contributed to the amount of assistance

provided to the victim. (Lockwood, supra, 214 Cal.App.4th at pp. 95, 98.) The

appellate court agreed, as the declaration "suggest[ed] the medical treatment

underlying the Board's payment had resulted from marital strife and injury inflicted by

the victim's husband rather than from defendant's criminal conduct." (Id. at pp. 101-

102.)

        Here, George concedes she did not provide the trial court with new witnesses or

other evidence at the restitution hearing, but asserts section 1202.4 does not require

any specific form of evidence to rebut the presumption and her reference to the trial

testimony should have been sufficient. On the record before us, we conclude the court

abused its discretion in not reviewing the Board's records in camera and remand the

matter for a new restitution hearing.



                                             8
       The Board sought reimbursement of $1,000 for medical expenses and mental

health services as follows: $1,125 for Rodrigo Cabrera, $4,050 for Quinones and

$2,430 for Victor. The prosecutor presented no bill for the $1,000 paid for medical

expenses. Rather, the record contains two store receipts showing the purchase of two

"4 CHANNEL DVR[s]" (digital video recorders) for a combined purchase price of

about $1,099. The Board's records show that about $1,099 was billed for medical

expenses and $1000 paid. Thus, the Board denoted the two DVRs as medical

expenses. A "medical expense" is generally defined as "[a]n expense for medical

treatment or healthcare, such as drug costs and health-insurance premiums." (Black's

Law Dict. (10th ed. 2009) p. 659, col. 2.) On its face, a DVR does not qualify as a

medical expense. The trial court abused its discretion in ordering George to reimburse

for the DVRs as there is no rational basis for concluding these devices constituted

medical expenses.

       The incident occurred in March 2012. The redacted bills show Quinones

received unknown care for an unknown injury or illness from November 2012 to

September 2013. Quinones testified the incident caused her to fear for her life and the

life of her family. At the time of the incident, however, Quinones told the 911

dispatcher, "I'm not afraid of her. But I am not going to go and sit and deal with a 50-

year-old." A friend of Quinones testified the incident appeared to have had no impact

on Quinones and she always acted like the incident "was nothing to her."

       This evidence comports with the fact Quinones did not seek counseling until

November 2012, almost eight months after the incident. Additionally, a probation

                                           9
officer reported in July 2013 that Quinones never responded to the restitution claim

letter and that he could not reach her by telephone. Moreover, the jury likely found

George guilty of the lesser offense of "attempted" criminal threats based on this

evidence and the lack of evidence showing George's acts placed Quinones in sustained

fear for her safety or the safety of her immediate family. (People v. Toledo, supra, 26

Cal.4th at p. 231 [defendant can be convicted of the lesser offense of attempted

criminal threats if threat does not cause the threatened person to be in sustained fear

for his or her safety even though, under the circumstances, that person reasonably

could have been placed in such fear].) The totality of the evidence tends to suggest the

mental health services Quinones received did not stem from the incident with George.

       The evidence suggests the same result as to Cabrera and Victor. Cabrera

testified that "[w]e were frightened at the moment" of the incident. Starting about nine

months after the incident, Cabrera received unknown care for an unknown injury or

illness from December 2012 to January 2013, with an additional expense in June 2013.

Victor also received unknown care for an unknown injury or illness from December

2012 to June 2013. Victor did not testify at trial. Rather, his sister Jazmin testified

that she and Victor were in her room when she heard yelling. After instructing Victor

to stay in her room, Jazmin went out and saw Quinones arguing with George. A

deputy who was trained to identify and take statements from all witnesses, only

interviewed Quinones, Cabrera and Jazmin.

       Cabrera and Victor lived with Quinones at the time of the incident and may

qualify as victims of the crime entitled to restitution if they sustained economic loss as

                                            10
the result of the crime. (§ 1202.4, subd. (k).) Alternatively, they may qualify as

derivative victims. (Gov. Code, §§ 13951, subd. (c), 13955.) Here, however, the trial

testimony together with the timing of the mental health services received by Cabrera

and Victor suggest the mental health services they received did not stem from the

incident with George.

       Because the evidence tended to rebut the statutory presumption that the Board's

payments resulted from George's criminal conduct, the trial court should have

reviewed the Board's records in camera to determine whether the information was

necessary for George to dispute the amount of the restitution order. (§ 1202.4, subd.

(f)(4)(C).) Thus, we reverse the restitution award against George and remand for a

new restitution hearing. (People v. Harvest (2000) 84 Cal.App.4th 641, 650 [victim

restitution does not constitute punishment for double jeopardy purposes].) If the trial

court finds the Board's records are necessary for George to dispute the restitution

order, George is entitled to the sealed material in her effort to rebut the statutory

presumption. (Lockwood, supra, 214 Cal.App.4th at p. 101.)

                                    III. Conceded Issues

A. Sentence Issue

       Based on George's conviction of attempted criminal threats (§§ 422, 664) and

true finding that she personally used a dangerous or deadly weapon (§ 12022, subd.

(b)(1)), she faced a possible mid-term sentence of one year for the attempted criminal

threat and a consecutive one-year sentence for the weapon enhancement.



                                            11
       At the sentencing hearing, the court stated, "[A]s to Count 1, attempted terrorist

threat, the Court will impose middle term of two years, which is consecutive to one

year. Consecutive to that will be imposed an enhancement for the use of a deadly

weapon, under Penal Code Section 12022, subsection B, paragraph 1. Total

commitment, therefore, will be for two years." The parties assert, and we agree, it

appears the court intended to impose a two-year aggregate sentence and misspoke

when it stated it was imposing a two-year term for the attempted criminal threats as

such a term was not a sentencing option; the only sentencing options for attempted

criminal threats were eight months, one year, and eighteen months, which constitute

half the available punishment for criminal threats. (§§ 18, subd. (a), 422, subd. (a),

664, subd. (b).)

       The court's minutes and the abstract of judgment reflect that the court imposed

a two-year term for the attempted criminal threat conviction and a concurrent one-year

term for the weapon enhancement. The parties assert, and we agree, a concurrent term

for the weapon enhancement was not a valid sentencing option. (§ 12022, subd. (b)(1)

[providing for an "additional and consecutive term of imprisonment in the state

prison"].)

       The oral pronouncement of judgment controls where it conflicts with the

abstract of judgment or minute order. (People v. Zackery (2007) 147 Cal.App.4th 380,

385.) Accordingly, we order the abstract of judgment and minute order amended to

reflect the only lawful sentence the trial court could have intended: one year for the



                                           12
attempted criminal threat conviction with a consecutive year for the weapon

enhancement.

B. Fines

       At the sentencing hearing, the court stated it would "impose the minimum

restitution fine of $280, plus a 10 percent collection fee, a total of $308." The minutes

reflect that the court imposed this fine under section 1202.4. The court also imposed a

"parole revocation . . . fine in the same amount" as required under section 1202.45 and

stayed this fine "until and unless the defendant violates parole."

       George committed the offense on March 31, 2012, when the minimum

restitution fine was $240. The trial court is required to apply the statutory scheme in

existence in 2012 at the time of the crime. (People v. Martinez (2005) 36 Cal.4th 384,

389.) Although the trial court had the discretion to impose any restitution fine ranging

from $240 up to $10,000 (see §1202.4, subd. (b)(1)), the record reflects the trial court

intended to impose only the minimum restitution fine required under section 1202.4,

subdivision (b). Accordingly, the judgment shall be modified to reflect a restitution

fine of $240 instead of $280. Additionally, the stayed parole revocation fine must be

modified as the law requires that fine equal the restitution fine. (§ 1202.45, subd. (a).)

                                     DISPOSITION

       The judgment of conviction is affirmed. The judgment is modified to:

(1) reflect a sentence of one year for the attempted criminal threat conviction with a

consecutive year for the weapon enhancement and (2) impose a restitution fine and a

parole revocation fine in the amount of $240. The restitution award is reversed and the

                                            13
matter is remanded to the trial court for a new restitution hearing. The trial court is

directed to amend its minutes and the abstract of judgment to reflect the modifications

and to forward a certified copy of the amended abstract to the Department of

Corrections and Rehabilitation.



                                                             MCINTYRE, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.




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