PEOPLE v. GOUGH

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. William Lawrence GOUGH, Defendant and Appellant. IN RE: William Lawrence GOUGH, on Habeas Corpus.

Nos. D015780, D018087.

Decided: October 18, 1993

Robert F. Howell, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Janelle B. Davis and William M. Wood, Deputy Attys. Gen., for plaintiff and respondent.

A jury convicted William Lawrence Gough of second degree murder (Pen.Code,1 § 187) and found an allegation of firearm use (§ 12022.5) to be true.   Following a nonjury trial, the court found true allegations Gough had suffered two prior felony convictions resulting in separate prison terms (§ 667.5, subd. (b)) and a prior serious felony conviction for robbery (§ 667, subd. (a)).  The trial court sentenced Gough to 15 years to life on the murder conviction.   An additional four years was added for the firearm use enhancement as well as two years for the prison prior enhancements and five years for the prior serious felony conviction enhancement.   Also, the trial court ordered Gough to pay $5,078 in restitution to the hospital that treated the victim.

Gough appeals, contending (1) the trial court gave improper instructions on Gough's imperfect self-defense theory, (2) character evidence of prior violent conduct was improperly admitted, (3) it was an abuse of discretion to admit evidence of Gough's 23–year–old robbery conviction for purposes of impeachment, (4) the terms of his sentence were improperly recorded on court documents and (5) it was error to order restitution to a party other than the victim of the crime.   On appeal and in his petition for writ of habeas corpus, Gough also contends the failure of trial counsel to preclude admission of character evidence of prior violent conduct deprived him of his right to effective assistance of counsel.

FACTS

Gough and Phillip Manlove lived in neighboring duplexes on Laurel Street in Lakeside.   On September 8, 1990, between 1:30 and 2 p.m., Manlove drove a vehicle into and knocked down the fence that separated his duplex from Gough's.   The impact knocked the fence into Gough's barbecue, which broke, and onto lawn chairs on Gough's patio.   When Manlove tried to push the fence back into an upright position, he broke a window in Gough's duplex.

Gough arrived home between 3 and 3:30 p.m., was advised by a neighbor about what had happened to the fence and went inside his duplex.   Later, Gough came back outside and after a while approached Manlove, who was sitting in a vehicle.   Gough confronted Manlove and an argument followed.   Gough reached through an open window and punched or grabbed Manlove around the face or neck.

Manlove got out of the vehicle and the two men continued to argue and struggle with each other.   Among other things, Gough told Manlove:  “You always fuck up.”   Gough also said several times he was going to kill Manlove.   The men abruptly stopped fighting and Gough walked into his duplex with Manlove following him, saying it was an accident.

While they were inside the duplex, the two men engaged in an animated discussion, and after about two minutes a shot was fired.   Manlove hurriedly walked out of the duplex;  as he went around the fence, he punched a sign and broke the sign post.   Gough came outside almost immediately, but after Manlove broke the sign post, Gough went back inside.

Gough came outside and walked next to the top of the fence, upon which he steadied a sawed-off .22 caliber rifle.   Manlove, who was standing next to a vehicle, looked back at Gough and said:  “Are you going to shoot me now?”   Gough pointed his rifle over the fence and shot Manlove from about five to ten feet away.   At the time of the shooting, Manlove either had nothing in his hands, or he had his hands up and was putting on his hat.

Manlove received a gunshot entry wound to his outer left upper arm, an exit wound to his inner left upper arm and an entry wound to his left chest near the armpit.   All three wounds were most likely caused by a single bullet.   Manlove's left elbow was away from his side and slightly forward, a position consistent with putting on a hat.

Gough testified that on the day of the shooting he had gone to work but after the job was canceled had spent the day drinking beer.   When Gough came home and saw the broken fence, he became upset;  Manlove had run into the fence on other occasions.   When Gough confronted Manlove and demanded to talk, Manlove told Gough to “go fuck myself,” which made Gough more upset.   Gough grabbed Manlove by the shirt, pulled him out of the vehicle and punched him.   Gough told Manlove he had “fucked up again.”   Manlove hit Gough and they struggled.   Gough, who was 55 years old, tired during the struggle and walked away, going into his duplex.   Manlove, who was not invited, followed Gough inside.   Despite Gough's effort to calm Manlove with an offer of beer, Manlove attempted to continue the confrontation, which made Gough even more upset.   When Manlove refused to leave, Gough grabbed his weapon and fired it into the couch.   Manlove left, saying he was going to get something to “fuck you up with.”   Gough took the statement as a threat and followed the victim outside.   When Gough saw Manlove break the sign post, Gough became angry.   Gough said he fired the gun at Manlove because he thought Manlove was going to get something with which to hurt him.   Gough did not intend to kill Manlove, but planned only on scaring him, or, if Manlove had a weapon, on disarming him.

DISCUSSION

I

 Gough contends the trial court's instructions vitiated his primary defense that he acted in an honest but unreasonable belief in the necessity to defend himself by requiring the jury to find that the peril he perceived was imminent and the issue of imminence had to be resolved according to an objective standard.   The contention is without merit.

 Here, we are concerned with the doctrine of imperfect self-defense, as opposed to perfect (also referred to as “reasonable” or “complete”) self-defense.   Perfect self-defense requires both the subjective honesty and objective reasonableness of the defendant in believing there is a need to defend.   A homicide can be justified on the basis of perfect self-defense, completely exonerating the defendant.  (§§ 197, 198.)   The theory of imperfect self-defense comes into play when the defendant has an honest but unreasonable belief in the need to defend;  in such cases this honest but unreasonable belief is sufficient to negate malice aforethought and reduce murder to manslaughter.  (People v. Flannel (1979) 25 Cal.3d 668, 674, 160 Cal.Rptr. 84, 603 P.2d 1.)   In Flannel, the California Supreme Court reasoned that a defendant who killed under an honestly held but mistaken belief that his own life was in peril, could not harbor malice, the requisite mental state for murder.  (Id. at pp. 679–680, 160 Cal.Rptr. 84, 603 P.2d 1.)   While the absence of malice does not provide a complete defense, it does reduce the defendant's culpability from murder to the lesser offense of manslaughter.  (Ibid.) 2

Here, the trial court gave two instructions regarding Gough's theory of imperfect self-defense.   We consider the instructions in seriatim.

The trial court instructed the jury pursuant to CALJIC No. 5.17 as follows:

“A person, who kills another person in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully, but does not harbor malice aforethought and is not guilty of murder.   This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief.   Such an honest but unreasonable belief is not a defense to the crime of voluntary or involuntary manslaughter.”

 Gough argues that while CALJIC No. 5.17 adequately states a subjective standard to gauge a defendant's assessment of the need to defend, the instruction is ambiguous on whether the defendant's belief of imminent peril is to be judged on a subjective or objective standard.   We discern no such ambiguity.   There is nothing in the instruction that limits the language of CALJIC No. 5.17 advising the jury that a subjective standard is appropriate—“This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief”—to the defendant's assessment of the need to defend.   Rather, we read the instruction to apply the subjective standard language to the defendant's belief in the necessity to defend against imminent peril as well as to the need to defend with deadly force.   CALJIC No. 5.17 was crafted as a result of the Supreme Court giving its imprimatur to the imperfect self-defense theory in Flannel, supra, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, and was worded accordingly.   CALJIC No. 5.17 has been on the books since 1980,3 and Gough can point to no authority critical of the instruction.   In any event, the significant point is that Flannel teaches that in order for the imperfect self-defense doctrine to apply, the defendant must honestly (if unreasonably) believe that danger is imminent and that lethal force is necessary to prevent death or great bodily injury.   In other words, the defendant's subjective belief must be two-pronged.   We believe CALJIC No. 5.17 reflects this requirement.

Gough's attempts to dispense with the requirement that the defendant believe the danger is imminent are unavailing.   We reject Gough's tortured analysis of cases preceding Flannel, supra, in which he concludes “the sine qua non of the imperfect self-defense theory is not that there be a reasonable perception of ‘imminent’ peril, but that the deadly act be committed by the defendant under the influence of an uncontrollable fear of death or great bodily injury.”   As we recently stated in People v. Uriarte (1990) 223 Cal.App.3d 192, 197, 272 Cal.Rptr. 693:

“Consistent with its doctrinal foundations, Flannel recognizes that in order to warrant a conviction of manslaughter rather than murder, the defendant must honestly (if unreasonably) believe that serious injury is imminent and that lethal force is necessary.  (25 Cal.3d at p. 674 [160 Cal.Rptr. 84, 603 P.2d 1].)”

Gough also attacks the following instruction on the definition of imminent peril:

“ ‘Imminent peril,’ as used in these instructions, means that the peril must have existed or appeared to the defendant to have existed at the very time the fatal shot was fired.   In other words, the peril must appear to the defendant as immediate and present, and not prospective or even in the near future.   An imminent peril is one that from appearances must be instantly dealt with.”

This instruction was given under the authority of People v. Aris (1989) 215 Cal.App.3d 1178, 1187, 264 Cal.Rptr. 167.

Gough argues the final sentence of the instruction—“An imminent peril is one that from appearances must be instantly dealt with”—implies an objective standard.   We disagree.   Gough has taken the sentence out of context and has failed to consider earlier language in the instruction that clearly sets forth the subjective standard.   This subjective standard language (“the peril must have existed or appeared to the defendant to have existed at the very time the fatal shot was fired” and “the peril must appear to the defendant as immediate and present”) advises the jury to consider the defendant's belief, not the belief of a reasonable person.   As our Supreme Court said in People v. Warren (1988) 45 Cal.3d 471, 487, 247 Cal.Rptr. 172, 754 P.2d 218:

“In deciding whether an instruction is erroneous, we ascertain at the threshold what the relevant law provides.   We next determine what meaning the charge conveys in this regard.   Here the question is, how would a reasonable juror understand the instruction.  [Citation.]  In addressing this question, we consider the specific language under challenge and, if necessary the charge in its entirety.  [Citation.]  Finally, we determine whether the instruction, so understood, states the applicable law correctly.”

Gough's attempt to assign error on the basis of the final sentence not only ignores the rest of the instruction but is inferential or speculative at best.   As the Warren court observed:  “A reasonable juror ․ would not undertake such tortuous analysis.”  (Id. at p. 488, 247 Cal.Rptr. 172, 754 P.2d 218.)   We conclude the instruction defining imminent peril when read in context correctly states the law concerning the doctrine of imperfect self-defense.   We also reject Gough's arguments that Aris, supra, 215 Cal.App.3d 1178, 264 Cal.Rptr. 167, was incorrectly decided.

In sum, the jury was correctly instructed as to the doctrine of imperfect self defense.  “ ‘In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole.   We must also assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.   [Citation.]’ ”  (People v. Yoder (1979) 100 Cal.App.3d 333, 338, 161 Cal.Rptr. 35.)

II

 Gough contends the admission of evidence that in 1978 he had been involved in a bar fight in which he had hit a man with a pool cue and then broke the man's jaw by punching him was prejudicial error.

On direct examination, Gough was asked if he was ever convicted of a felony.   This testimony included the following excerpt:

“Q. What about your next conviction.   Do you remember what that was?

“A. Can I have a minute?   This is quite a few years later.   I'm not sure what the charge was because I had a fight in a bar with a guy.

“Q. We're talking about this is a felony conviction?

“A. I, I think I was charged with a felony and it was reduced to a misdemeanor, I'm not sure, you know.   I don't have nothing to recall with.

“Q. Were you convicted?   If you don't recall, Mr. Gough, just say you don't recall because there is no sense in guessing about these things.

“A. I recall the incident.   I can't recall when.”

On cross-examination, the prosecutor revisited the bar incident as reflected in the following excerpt of testimony:

“Q. You also mentioned some kind of assault arising from an incident in a bar?

“A. Yes, sir.

“Q. What was that?

“A. To describe it fully?

“Q. Yes.

“A. Me and a man had a fight.   A guy hit me with a pool cue.   I grabbed one and hit him back.

“Q. So, you hit him with a pool cue.   That is when you broke his jaw;  is that correct?

“A. No, sir.

“Q. Is that Mr. Dale Harper?

“A. I don't recall his name, sir.

“Q. Was that back in 1978?

“A. Yes, sir.

“Q. Was that in a bar in Santee?

“A. Yes, sir.

“Q. You hit him and broke his jaw?

“A. No, the, not with the pool cue, sir.   Can I explain the rest?

“Q. Yeah, if you would.

“A. The man wouldn't let me leave the bar.   He had a pool cue standing in the door and he was mad.  [¶] If you want to know the whole story, he was mad because he didn't like Gordon Lightfoot.   I played it on the juke box.   He said, ‘I'm going to bust your head if you play it again.’   I said, ‘It's my quarter.’  [¶] So, he hit me with a pool cue.   I hit him back.   Then I threw it down.  ‘Now,’ I said, ‘Now that's enough.’  [¶] He went over, got in the door with another pool cue, kind of blocked my way.   I said, ‘I have to go home because I have to work.’   He wouldn't get out of my way, so I punched him then and broke his jaw.

“Q. You broke his jaw with your punch, okay.   And you went to court on that of course?

“A. Yes.”

Gough complains the evidence adduced during cross-examination was improper character evidence that was inadmissible under Evidence Code section 1101.   (See, e.g., People v. Alcala (1984) 36 Cal.3d 604, 205 Cal.Rptr. 775, 685 P.2d 1126.)   However, at no point during this portion of the cross-examination did Gough object to the questions or the testimony.   Therefore, any claim of erroneous admission of this evidence is waived.  (People v. Green (1980) 27 Cal.3d 1, 21–22, 164 Cal.Rptr. 1, 609 P.2d 468, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3, 226 Cal.Rptr. 112, 718 P.2d 99.)

 In the alternative, Gough argues his trial counsel's failure to object to the testimony on cross-examination concerning the bar fight deprived him of his right to effective assistance of counsel.

A criminal defendant has the right to effective assistance of counsel.   (Strickland v. Washington (1984) 466 U.S. 668, 691–693, 104 S.Ct. 2052, 2066–68, 80 L.Ed.2d 674;  People v. Pope (1979) 23 Cal.3d 412, 422–424, 152 Cal.Rptr. 732, 590 P.2d 859.)

 The burden of proving a claim of ineffective assistance of counsel is on Gough.  (Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859.)   To establish ineffective assistance of counsel, “a defendant must show that counsel (1) performed at a level below an objective standard of reasonableness under prevailing professional norms;  and thereby (2) subjected the defense to prejudice, i.e., in the absence of counsel's failings a more favorable outcome was reasonably probable.  (People v. Ledesma (1987) 43 Cal.3d 171, 216–218 [233 Cal.Rptr. 404, 729 P.2d 839].)”  (People v. Hamilton (1988) 45 Cal.3d 351, 377, 247 Cal.Rptr. 31, 753 P.2d 1109.)

Gough has not met the burden of this two-prong test.   First, on this record, we are not convinced that trial counsel's actions “ ‘fell below an objective standard of reasonableness ․ under prevailing professional norms.’ ”   (People v. Ledesma (1987) 43 Cal.3d 171, 216, 233 Cal.Rptr. 404, 729 P.2d 839, quoting Strickland v. Washington (1984) 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674.)   In this regard, we note that “[w]hether to object to inadmissible evidence is a tactical decision;  because trial counsel's tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel's incompetence.  [Citations.]”  (People v. Hayes (1990) 52 Cal.3d 577, 621, 276 Cal.Rptr. 874, 802 P.2d 376.)   Here, trial counsel has related to appellate counsel he does not recall his reason for not objecting.   This failure of recollection does not establish he had no tactical reason.   On the contrary, from this record we can glean some possible tactical reasons for not objecting.   The first thing Gough's trial counsel elicited on direct examination was his criminal record.   It is not unreasonable to assume counsel wanted to present Gough as forthright in admitting his past.   In any event, it was during this direct examination that Gough mentioned the 1978 bar fight.   Having raised the subject himself, a later objection to answering the prosecutor's questions may have made Gough look less than forthright.   Also, the version that Gough gave on cross-examination was similar to his version of what happened on September 8, 1990—namely, that Gough reacted to provocation and responded with force because he was threatened.

Second, Gough has failed to demonstrate prejudice.   As Gough points out his defense depended on convincing the jury that he shot Manlove because he feared he was in imminent jeopardy.   The uncontroverted evidence is that when Gough fired the fatal shot Manlove either had nothing in his hands or had his hands raised to put on a hat.   We have no doubt the evidence of the 1978 bar fight could have been excluded upon proper motion,4 but there is no reasonable probability that such exclusion would have led to a different result in this case.

In sum, any error in admitting the evidence was waived, and Gough has failed to demonstrate he was deprived of his right to effective assistance of counsel.

III

 Gough contends the trial court abused its discretion by admitting evidence of his 23–year–old robbery conviction for purposes of impeachment.   The contention is without merit.

At the outset of the trial, the prosecution indicated it wanted to use three prior felony convictions for purposes of impeachment:  (1) a 1967 robbery conviction, (2) a 1983 conviction for forgery, and (3) a 1986 conviction for unlawfully driving or taking a vehicle.   The defense objected to use of the 1967 robbery conviction on the grounds of remoteness and that it would be more prejudicial than probative.

In ruling that the 1967 robbery conviction would be admissible, the trial court stated:

“Again on the 1967 robbery conviction, violation of Penal Code section 211, of course robbery is a crime of moral turpitude.

“People v. Rodriguez [177 Cal.App.3d 174, 222 Cal.Rptr. 809] [ (1986) ] ․ and looking under the analysis of Evidence Code section 352, it is a prior conviction that reflects adversely on the defendant's honesty, and it is a prior conviction involving dissimilar conduct.

“So, looking at the third factor whether the prior conviction is near in time, People v. Collins at 42 Cal.3d 378 [228 Cal.Rptr. 899, 722 P.2d 173] [ (1986) ] sets forth a list of factors for the court to consider in determining whether to exclude a prior as too remote and suggesting the court look at five different factors.

“One, the time that has elapsed since the conviction which in this case appears to be approximately 24 years.

“The time the defendant was free between the offenses which appears to not necessarily be, not the entire time, certainly there was time in custody on the 211, time in custody on the forgery, time in custody on the auto theft and perhaps some time in custody on these other half dozen or more offenses.

“The nature of the conviction, I'm not quite sure how to weigh that.   I suppose that it is a serious felony prior.   The age of the defendant․

“․

“Finally, and most importantly, the defendant's subsequent conduct, whether he or she lead [sic ] a generally law abiding life.

“And without any evidence to the contrary, it appears that the defendant did not lead a ‘generally law abiding life’ in the interim between the robbery conviction and this date, and so in light of that, I think the court ought to find that the prior conviction is not remote.

“Let me just say that for this case, I think that if this conviction of robbery in 1967 was the defendant's only offense, then it would be remote in time and the court should exclude it.

“But, with this long history of other offenses, I think the court feels, on balance, it ought not exclude it.

“And I'm not sure that it will make that much difference in whether or not the defendant testifies, in light of the court's rulings on the auto theft and forgery.

“At any rate, the court at this point is not going to exclude it, period.   If there is some evidence that all these other matters that were suggested by the prosecution were truly only arrests and not convictions, if you want to revisit the issue, I'll let you.

“But it seems to me there was [sic ] considerable things that went on between the robbery conviction and 1983 when we know we have a forgery conviction.

“So, the court's ruling that it's admissible under 352, that the probative value outweighs the prejudice․”

 Admission of a prior conviction for purposes of impeachment is vested in the sound discretion of the trial court.  (People v. Beagle (1972) 6 Cal.3d 441, 452, 99 Cal.Rptr. 313, 492 P.2d 1;  see also People v. Clair (1992) 2 Cal. 4th 629, 655, 7 Cal.Rptr.2d 564, 828 P.2d 705;  People v. Stewart (1985) 171 Cal.App.3d 59, 215 Cal.Rptr. 716.)   In Stewart, the Court of Appeal set forth settled principles applicable when a trial court has discretion to act:

“[T]he term judicial discretion implies the absence of arbitrary determination, capricious disposition, or whimsical thinking.   The term means the exercise of discriminating judgment within the bounds of reason.   To exercise judicial discretion, a court must know and consider all material facts and all legal principles essential to an informed, intelligent, and just decision.

“When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion.   An appellate tribunal is not authorized to substitute its judgment for that of the trial judge.   A trial court's exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice.   In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.”  (171 Cal.App.3d 59, 65, 215 Cal.Rptr. 716, citations omitted.)

 Gough argues the trial court did not conduct an exercise of sound judicial discretion.   He is wrong.   The trial court's ruling, quoted above, demonstrates the court thoroughly evaluated the admission of the 1967 robbery conviction following the guidelines set forth in Beagle, supra, 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1:  the probative value of the prior conviction on the issue of credibility;  the nearness or remoteness of the prior conviction;  whether the prior conviction is for the same or substantially similar conduct charged in the trial, and whether the defendant will elect not to testify if subject to the impeachment.

Of these criteria, the only one seriously at issue here is remoteness, which, of course, is “ ‘a factor of no small importance.   Even [a prior conviction] involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness.’ ”  (Beagle, supra, at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)

Here, it is clear the robbery conviction was remote in time.   However, it is equally clear that Gough had not led a “legally blameless life” in the interim.   The record indicates he has numerous convictions, including at least two felonies, between 1971, when he was released from custody for the robbery and a parole violation, and 1990.5  Given Gough's repeated criminal conduct since the robbery conviction, we do not discern an abuse of discretion in this respect.

 We also reject the suggestion that a robbery conviction does not have a high probative value on the issue of credibility.   While a robbery conviction is obviously not as probative as a perjury conviction, it is a crime of moral turpitude.  (People v. Rodriguez (1986) 177 Cal.App.3d 174, 178, 222 Cal.Rptr. 809.)   Because robbery involves the specific intent to commit a theft, a robbery conviction is highly probative on the question of the defendant's honesty.

 Gough also argues unpersuasively the conviction should have been excluded because robbery involves the use of force and therefore the prior was substantially similar to the murder charge for which he was standing trial.   While both crimes share a violent quality, we are confident murder and robbery are sufficiently distinguishable that use of the robbery conviction here for impeachment purposes did not operate as improper character evidence.   Moreover, the passage of time would have removed any prejudicial effect in this regard.   (See People v. Mickle (1991) 54 Cal.3d 140, 172, 284 Cal.Rptr. 511, 814 P.2d 290.)

In sum, there was no abuse of discretion in admitting the 1967 robbery conviction for impeachment purposes.

IV

 Gough contends the records of the trial court (the abstract of judgment and court minutes) should be corrected to reflect a determinate term of 11 years and the consecutive indeterminate term of 15 years to life—not a total of 26 years to life—in order to assure a proper award of work time credits.

We do not discern prejudicial error.   In fact, the abstract of judgment and court minutes properly reflect the determinate and indeterminate components of the sentence.   We are confident that prison authorities are able to accurately interpret these documents and apply the appropriate credits under sections 2931 and 2933.   If we are wrong about that in this case, Gough can file a petition for writ of habeas corpus to seek a remedy.

V

 Gough contends the trial court erred in ordering him to pay restitution to the hospital that treated Manlove.   As the Attorney General properly concedes, Gough is correct.

Government Code section 13967, subdivision (c), provides in part that “[i]n cases in which a victim has suffered economic loss as a result of the defendant's criminal conduct, and the defendant is denied probation, in lieu of imposing all or a portion of the restitution fine, the Court shall order restitution to be paid to the victim.”  (Italics added.)   For purposes of restitution, “victim” is defined as any of the following residents of California:  a person who sustained injury as a direct result of the crime;  anyone legally dependent for support upon that person;  certain family members or close relations of the victim;  and in the event that the crime resulted in death, any individual who assumes the deceased's medical or burial costs either because of legal obligation or voluntarily.  (Gov.Code, § 13960, subd. (a).)  The hospital does not meet any of these definitions.

In People v. Williams (1989) 207 Cal.App.3d 1520, 1523, 255 Cal.Rptr. 778, the Court of Appeal discussed the purposes of restitution and why it cannot be ordered to a third party:

“Restitution serves the dual purpose of rehabilitating the offender and deterring future criminal conduct.  [Citation.]  When appropriately imposed, restitution ‘may serve the salutory purpose of making a criminal understand that he harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to make them whole.’  [Citation.]  The trial court's restitution order here makes Allstate Insurance whole, not the victim of the crime.”

Similarly, the hospital here is not the victim of Gough's crime for purposes of restitution.6

Accordingly, the trial court's order that restitution of $5,078 be paid to the hospital should be stricken and the case remanded for a new restitution hearing.7

VI

Gough recognizes that we are bound by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321 to follow the California Supreme Court decisions upholding the constitutionality of the CALJIC No. 2.90 definition of “reasonable doubt.”  (See People v. Sims (1993) 5 Cal.4th 405, 456–457, 20 Cal.Rptr.2d 537, 853 P.2d 992;  People v. Sandoval (1993) 4 Cal.4th 155, 185–186, 14 Cal.Rptr.2d 342, 841 P.2d 862;  People v. Noguera (1992) 4 Cal.4th 599, 633–634, 15 Cal.Rptr.2d 400, 842 P.2d 1160;  People v. Johnson (1992) 3 Cal.4th 1183, 1234–1235, 14 Cal.Rptr.2d 702, 842 P.2d 1;  People v. Jennings (1991) 53 Cal.3d 334, 385–386, 279 Cal.Rptr. 780, 807 P.2d 1009.)   Gough nevertheless asks us to address the issue in light of the United States Supreme Court's having granted certiorari on the issue in Sandoval v. California, ––– U.S. ––––, 114 S.Ct. 40, 125 L.Ed.2d 789.   Under Auto Equity Sales and the cited California Supreme Court cases, we decline Gough's invitation.

DISPOSITION

The restitution order is stricken and the case is remanded for the limited purpose of conducting a new restitution hearing.   In all other respects, the judgment is affirmed.   The petition is denied.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   At this time, we reject the Attorney General's suggestion that the doctrine of imperfect self-defense is no longer viable.   We do note, however, the question is presently before the California Supreme Court in In re Christian S., 15 Cal.App.4th 1566 [13 Cal.Rptr.2d 232] review granted (1993) 17 Cal.Rptr.2d 121, 846 P.2d 703.

3.   See CALJIC (4th ed.) Supplemental Service Pamphlet No. 1 (1980).

4.   We disagree with the Attorney General's argument that Gough's direct examination opened the door to the prosecutor delving into the details of the bar fight.   We do not read the transcript of the direct examination as an attempt by Gough to minimize the facts of the earlier conviction that would have permitted the prosecutor to more fully explore the details of the offense.  (See People v. Heckathorne (1988) 202 Cal.App.3d 458, 462, 248 Cal.Rptr. 399;  see also 2 Jefferson, Cal.Evidence Benchbook (Cont.Ed.Bar.1982) § 28.8, p. 932.)

5.   Gough complains that oral representations made by the prosecutor as to his criminal history were improperly relied upon by the trial court in assessing the remoteness factor.   Specifically, Gough says that some of the numerous convictions the prosecutor referred to were arrests rather than convictions.   We conclude the trial court did not improperly rely on the prosecutor's representations.   There is no dispute that Gough had at least two subsequent felony convictions as well as various misdemeanor convictions.   Further, the trial court expressly gave Gough the opportunity to revisit the issue with proof that he had only suffered arrests and not convictions.

6.   It is not entirely clear if the trial court intended to impose a restitution award of $5,078 under Government Code section 13967, subdivision (c), or a restitution fine of $5,078 under Government Code section 13967, subdivision (a).   As discussed above, the trial court could not make a restitution award to the hospital.   If the trial court intended to impose a restitution fine of $5,078 under Government Code section 13967, subdivision (a), such fine is payable only to the state restitution fund.  (See People v. Miller (1989) 216 Cal.App.3d 758, 761–763, 265 Cal.Rptr. 77.)

7.   On remand, the trial court can consider, among other things, whether any of the statutory victims have incurred economic loss that would justify a direct restitution award under Government Code section 13967, subdivision (c).   If there are such victims, then the court may order direct restitution alone, or both direct restitution and a restitution fine under Government Code section 13967, subdivision (a).   If there is no such victim, then the court may only impose a restitution fine under Government Code section 13967, subdivision (a).  (Miller, supra, 216 Cal.App.3d at p. 762, 265 Cal.Rptr. 77.)

TODD, Acting Presiding Justice.

HUFFMAN and NARES, JJ., concur.