PEOPLE v. DJOU (1995)

Andrew Djou appeals from his conviction of second-degree burglary (Pen.Code, § 459)¹ and from orders that he and his co-defendant jointly and severally pay $43,865 in direct restitution to the victim (Gov.Code, former § 13967, subd. (c)), as well as a $200 fine to the Victim Restitution Fund (Gov.Code, former § 13967, subd. (a)).²  Djou and co-defendant Huong Lu were charged by information with the offense.³  The defendants were tried by a jury and convicted as charged.   Djou was sentenced to the middle term of two years in the state prison.   He and Lu were jointly and severally ordered to pay direct restitution in the amount of $43,865.00 to the victim, as well as a $200 fine to the Victim Restitution Fund.

We find no prejudicial errors in the proceedings below.   We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Prosecution's Case.

On August 20, 1992, at approximately 6:30 in the evening, Martin Licon was standing inside his business, a dye shop, located on East 11th Street in the City of Los Angeles, California.   From Licon's shop, he could observe Pin–Pin Imports (“Pin–Pin”), an importer and distributor of children's clothing, which was located across the street.   He saw Djou, whom he recognized as a former employee of Pin–Pin, drive up to Pin–Pin in a blue Chevrolet Lumina van.   After stepping from the van, Djou approached Licon and asked whether Licon or his employees owned any of a group of cars that were blocking Pin–Pin's driveway.   In the past, Djou had frequently asked Licon and his employees to move cars of theirs which were blocking the same driveway.   On this occasion, none of the cars belonged to Licon or his employees.   He suggested they might belong to neighbors on either side of Pin–Pin.   Shortly after Djou arrived at Pin–Pin, Licon observed Huong Lu, another former employee of Pin–Pin, arrive in a Mazda RX–7.   At approximately the same time, the cars that had been blocking Pin–Pin's driveway were moved away.   A metal gate which led into Pin–Pin's parking lot was then raised, and Lu and Djou drove into the parking lot in the Lumina and parked near Pin–Pin's office.

Approximately a half hour later, Licon saw the Lumina being driven out of the parking lot, accompanied by a white truck which belonged to Pin–Pin.   Two hours after this, the white truck returned to Pin–Pin's parking lot, and Licon saw Lu get out and lock the gate.   Fifteen minutes later, two people whom Licon could not see well drove away in the Mazda.

The following morning, Chielie Chien, Pin–Pin's owner, discovered that approximately 16 boxes of merchandise were missing from her warehouse.   The following Monday, when she recounted her inventory, Chien discovered that approximately 100 boxes of merchandise, each containing between 48 and 100 garments, were missing.   She also noticed that the stolen merchandise included many of the best selling items.   She valued the missing merchandise at $42,326.50.

Djou had been employed at Pin–Pin as its sales manager from September 1991 through May 1992, but was laid off when Pin–Pin experienced a downturn in its business.   As sales manager he was familiar with the merchandise and knew which clothing lines were the best sellers.   In his capacity as sales manager, Djou hired Lu, who was employed as a warehouse manager and truck driver from January of 1992 until just a few days before the burglary, when he abruptly left in the middle of the day, complaining that Chien was overworking him.   During their employment, both Djou and Lu had keys to the business premises and were familiar with the alarm system.   Lu also had keys to Pin–Pin's white truck.

Djou was arrested at his home approximately a week after the burglary.   The arresting officer observed Djou arrive at home driving a Chevrolet Lumina.   Clothing which came from Pin–Pin was found inside the van.   However, Chien testified this clothing had not been taken in the burglary.

2. The Defense.

Lu presented no defense.   Djou testified in his own behalf that he had been employed as a manager at Pin–Pin, but was laid off in May of 1992.   When he departed, he turned in all of his keys and did not duplicate them.   He was not acquainted with Lu except as a co-worker.   It was not part of his duty as manager to ask Martin Licon to move cars from the Pin–Pin driveway, and he never did so, either on the night of the burglary or previously.

After leaving Pin–Pin's employ, Djou rented space at two swap meets, where he sold children's clothing.   He purchased his merchandise from Coco Denwood, a Los Angeles supplier, and from other swap meet vendors.   The Pin–Pin merchandise which was found in his van was purchased from a swap meet vendor.

Djou testified that he spent the evening of August 20, 1992, at home, talking with his mother and making telephone calls.   He admitted that telephone company records indicated all of his telephone calls were made after 9:00 in the evening.

Based upon all of the above evidence, the jury convicted Djou and Lu of burglary.   This timely appeal followed.

CONTENTIONS

Djou contends that:  (1) the court prejudicially erred by failing to instruct the jury with CALJIC No. 2.01 regarding circumstantial evidence;  and (2) the restitution fine which the court imposed was unauthorized, and the amount of direct restitution was unsupported by the evidence.

1. Instruction on Circumstantial Evidence.

 Djou contends his conviction was based substantially upon circumstantial evidence, and consequently the court had a sua sponte duty to instruct the jury with CALJIC No. 2.01, which prohibits conviction based upon circumstantial evidence unless the proven circumstances are not only consistent with guilt, but irreconcilable with any other rational conclusion.⁴  The instruction was not given.   Thus, Djou contends his conviction must be reversed.   We disagree.   Where circumstantial evidence is substantially relied upon to prove guilt in a criminal trial, the court on its own motion must instruct the jury that to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with guilt but must be inconsistent with any other rational conclusion.  (People v. Wright (1990) 52 Cal.3d 367, 405–406, 276 Cal.Rptr. 731, 802 P.2d 221;  People v. Yrigoyen (1955) 45 Cal.2d 46, 49, 286 P.2d 1.)   There is no requirement to give such an instruction where there is direct proof of guilt.  (People v. Wright, supra, 52 Cal.3d at p. 406, 802 P.2d 221;  People v. Wiley (1976) 18 Cal.3d 162, 175, 133 Cal.Rptr. 135, 554 P.2d 881.)   Where the prosecution relies upon circumstantial evidence, but such evidence is merely incidental to, or corroborative of, direct evidence, there is likewise no obligation to instruct with CALJIC No. 2.01.   (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142, 36 Cal.Rptr.2d 235, 885 P.2d 1;  People v. Malbrough (1961) 55 Cal.2d 249, 250–251, 10 Cal.Rptr. 632, 359 P.2d 30.)

 Where the defendant's conduct is proven by direct evidence, and circumstantial evidence is relied upon only to prove specific intent or mental state, the court must instruct with CALJIC No. 2.02, rather than CALJIC No. 2.01.  (People v. Bloyd (1987) 43 Cal.3d 333, 352, 233 Cal.Rptr. 368, 729 P.2d 802;  People v. Mitchell (1995) 30 Cal.App.4th 783, 810–811, 36 Cal.Rptr.2d 150.)   CALJIC No. 2.02 is essentially identical with CALJIC No. 2.01, except that CALJIC No. 2.02 refers expressly to specific intent and mental state.⁵  The jury in this case was instructed with CALJIC No. 2.02.

 The direct evidence of Djou's guilt consisted of testimony by an eye witness, Martin Licon.   Licon saw Djou and Lu enter the parking lot of Pin–Pin Imports in Djou's Chevrolet Lumina.   A half hour later, Licon saw the Lumina drive away, accompanied by a white truck, which belonged to Pin–Pin.

Although the record which has been provided to us is not completely clear on the point, it appears Pin–Pin's “parking lot” was actually a covered lot or garage, so that, upon entering the “lot,” Djou and Lu, in fact, entered the Pin–Pin building.   Licon described the gate to the parking lot as a “curtain,” and Chien, Pin–Pin's owner, described it as a “roll gate” or “roll-up gate,” a form of gate which is ordinarily installed in the wall of an enclosed building.   Chien testified that the gate, or curtain, was locked when she left the premises on August 20, and an alarm was set.   When Licon saw Pin–Pin's white truck being returned two hours after it was taken, he testified he saw it being returned to the “garage.”   This word was actually used by the prosecutor;  Licon answered “yes” to the question in which it occurred.   Licon stated in his own words that he saw Lu stepping from the truck when the truck was “inside the building.”   Licon's testimony thus constituted sufficient direct evidence to prove Djou and Lu entered Pin–Pin's building, leaving only the defendants' intent to commit a theft or other felony to be proven by circumstantial evidence.   As to that element, Djou does not deny the jury was properly instructed.

Further, even if Licon had not actually seen Djou and Lu enter Pin–Pin's structure, numerous other facts and circumstances were proven at trial which, considered together, were completely damning.   These facts and circumstances included:  (1) the defendants remained on the Pin–Pin premises for approximately a half hour, then left, taking Pin–Pin's truck;  (2) both defendants had been provided with keys to the building and were familiar with the alarm system, and Lu had been provided with keys to the white truck;  (3) the day after the defendants were seen in the parking lot and driving the truck, Chien discovered that merchandise was missing from the warehouse;  but (4) no signs of forcible entry were found;  (5) the missing merchandise included a substantial amount which Djou, as sales manager, knew to be Pin–Pin's best selling merchandise.

 These facts were not logically reconcilable with any rational conclusion other than the conclusion that the defendants entered Pin–Pin's warehouse and stole approximately $44,000 worth of merchandise.   No rational juror, if fully and correctly instructed, could find otherwise.   The jury was, of course, instructed on the elements of burglary (CALJIC No. 14.50), was instructed that each of these elements must be proven beyond a reasonable doubt (CALJIC No. 2.90), and was instructed that the defendants' identity as the burglars must be proven beyond a reasonable doubt (CALJIC No. 2.91).   Any possible error in failing to instruct the jury with CALJIC No. 2.01 was thus harmless.

2. Restitution.

At the time of sentencing, the court imposed both a restitution fine of $200 (Gov.Code, former § 13967, subd. (a)) and direct restitution to the victim in the amount of $43,865, the estimated amount of the property taken in the burglary (Gov.Code, former § 13967, subd. (c).) ⁶  Djou contends the amount ordered as direct restitution is not supported by the evidence, and further contends that, because the amount ordered as direct restitution exceeds $10,000, the restitution fine exceeds the statutory limit.   We cannot agree with either contention.

a. Direct Restitution.

 The amount of direct restitution was supported by the evidence.   The owner of Pin–Pin, Ms. Chien, testified at trial that the value of the merchandise stolen from her was $42,326.50.   In the probation report, the amount stated was somewhat higher—$43,865, a figure which the probation officer obtained from the investigating officer.   In imposing sentence, the court was, of course, required to consider the probation report, including the officer's recommendation of the amount of restitution to be paid to the victim.  (§ 1203, subd. (b).)

 The court ordered the defendants jointly and severally to pay $43,865.   Before making that order, the court referred to the amount of Chien's losses as “almost $44,000 worth of property․”  The defendants had a clear due process right, as well as a right expressly provided in section 13967, subdivision (c), to dispute the amount of restitution.   However, neither defendant challenged either of the amounts that were mentioned by the court.   Thus, any issue as to the amount of restitution is waived.  (People v. Zito (1992) 8 Cal.App.4th 736, 742–743, 10 Cal.Rptr.2d 491.)   Moreover, the amount actually ordered was substantially supported by unchallenged information in the probation report.   The court's statement that the amount ordered as restitution was the value of the stolen property constituted sufficient identification of the losses to which the restitution order pertained.   There is thus no occasion to disturb the court's order for direct restitution.

b. The Restitution Fine.

 Djou next contends that no restitution fine may be imposed, because he was ordered to pay more than $10,000 in direct restitution.   He cites People v. Cotter (1992) 6 Cal.App.4th 1671, 8 Cal.Rptr.2d 606 (hereafter, “Cotter”) for this proposition.

In Cotter, supra, the trial court ordered direct restitution to the victim in an unspecified amount and ordered a restitution fine of $10,000.   The Court of Appeal remanded the matter for a determination of the amount of direct restitution (6 Cal.App.4th at p. 1674, 8 Cal.Rptr.2d 606), and also concluded that if direct restitution in any amount was imposed, the maximum allowable restitution fine of $10,000 must be reduced by that same amount.   (Id., at p. 1677, 8 Cal.Rptr.2d 606.)

At the time of the offense in Cotter, section 13967, subdivision (a) required that if a defendant was convicted of a felony, then the court must order direct restitution “in accordance with subdivision (c),” and must also impose “a separate and additional restitution fine of not less than one hundred dollars ($100) and not more than ten thousand dollars ($10,000)․”  Subdivision (c) required that if the victim suffered economic loss as a result of the crime, and the defendant was denied probation, then “in lieu of imposing all or a portion of the restitution fine ․,” the court must order direct restitution in an amount sufficient to fully compensate the victim for his or her losses, even if that amount was greater than $10,000.⁷  (6 Cal.App.4th at pp. 1674–1675, fn. 3, 8 Cal.Rptr.2d 606, citing Stats.1990, ch. 45, § 2.)   The Cotter court believed reducing a defendant's restitution fine by the amount of direct restitution was necessary in order to resolve a conflict which the court perceived between the language in section 13967, subdivision (a), which limited restitution fines to $10,000, and the language in subdivision (c), which required full direct restitution to the victim and provided for direct restitution to be imposed “in lieu of” all or part of a restitution fine.  (Id. at pp. 1676–1677, 8 Cal.Rptr.2d 606.)

At the time of the offense in this case, section 13967 was substantially the same in relevant parts as the version construed in Cotter (See footnote 6, ante), although other parts had been amended.⁸  After the completion of briefing in this case, the Legislature deleted from section 13967 all provisions relating to the imposition of fines and the ordering of restitution (Stats.1994, ch. 1106 (Assem. Bill No. 3169) § 2.) ⁹  Substantially similar provisions are now enacted as portions of Penal Code section 1202.4, as amended by the same measure which deleted those provisions from section 13967. (§ 1202.4;  Stats.1994, ch. 1106, § 3.) ¹⁰

Cotter concluded that, to reconcile the $10,000 limit on restitution fines with the provision for direct restitution “in lieu of” all or part of the fine, a defendant who was ordered to pay $5,000 in direct restitution could be ordered to pay no more than $5,000 as a restitution fine;  a defendant ordered to pay $10,000 or more in direct restitution could not be required to pay a restitution fine.   The court believed “[a]ny other interpretation would render the ‘in lieu of’ language surplusage.”  (Id. at p. 1677, 8 Cal.Rptr.2d 606;  see also People v. Franco (1993) 19 Cal.App.4th 175, 185, fn. 18, 23 Cal.Rptr.2d 475 [following Cotter without analysis];  People v. Zito, supra, 8 Cal.App.4th at p. 743, 10 Cal.Rptr.2d 491 [reaching same conclusion as Cotter, without citing Cotter, and without analysis].) ¹¹

The People contend Cotter was wrongly decided, and we agree.   The 1990 and 1991 versions of section 13967 were emphatic in requiring both a restitution fine and direct restitution to be imposed for felonies which caused economic harm.   Subdivision (a) of both versions required that for such felonies, “[i]n addition” to a penalty assessment and restitution fine, the defendant must be ordered to pay a “separate and additional” restitution of not less than $100 and not more than $10,000.   Except as provided in subdivision (c) and in section 1202.4 of the Penal Code, the statute provided that “under no circumstances shall the court fail to impose the separate and additional restitution fine․”  Section 1202.4 at that time provided for:  (1) a discretionary waiver of the restitution fine if the court found compelling and extraordinary reasons and stated such reasons on the record (§ 1202.4, subd. (a));  (2) a discretionary stay of the fine if probation was granted, the stay to become permanent upon successful completion of probation (§ 1202.4, subd. (b));  (3) a mandatory lift of such stay if probation was revoked (§ 1202.4, subd. (c));  and (4) a mandatory set-off against the restitution fine for any direct restitution actually paid during probation (§ 1202.4, subd. (c)).  (Stats.1990, ch. 45, § 4;  see Historical and Statutory Notes, 51 West's Ann.Pen.Code, supra, § 1202.4, p. 34.)

Moreover, subdivision (c) of the 1990 and 1991 versions of the statute expressly and straightforwardly provided that “[r]estitution collected pursuant to this subdivision shall be credited to any other judgments for the same losses obtained by the victim against the defendant arising out of the crime for which the defendant was convicted.”   The Legislature could have provided just as straightforwardly and expressly for a credit against any allowable restitution fine, had it intended such result.  (§ 13967, subd. (c), as amended by Stats.1990, ch. 45, § 2, and as further amended by Stats.1991, ch. 657.) ¹²

Finally, in our view, the materials from the legislative history of the 1990 version of section 13967, which the Cotter cited in support of its construction of the statute, tend rather to support the opposite construction.   Those materials state, “The likely increase of payments made directly to the victim under AB 1893 could impact the Restitution fund.   Court orders to pay restitution to the victim can be made in lieu of part or all of restitution fines․”  (General Services, State and Consumer Services, Enrolled Bill Report on Assem. Bill No. 1893, Mar. 31, 1990) p. 3, attached to letter to governor Deukmejian from the Legis. Counsel, dated Apr. 6, 1990, cited in People v. Cotter, supra, 6 Cal.App.4th at p. 1677, 8 Cal.Rptr.2d 606;  italics added.)

In view of the Legislative determination, expressed in the statute, that both restitution fines and direct restitution be ordered except in limited circumstances, and in the absence of a clear expression to the contrary in the legislative history, we can discern no reason in law or logic why the “in lieu of” language used in connection with direct restitution cannot be construed to mean that whenever a victim of crime suffers economic loss, the court must order direct restitution and, upon doing so, may reduce or waive a restitution fine.   The “in lieu of” language can, at most, be construed as precluding imposition of the maximum restitution fine when direct restitution is ordered.   However, as the maximum fine was not imposed in this case, we need not determine whether even this much of a restriction upon a sentencing court's discretion was intended by the Legislature.

 We are not constrained to accept Cotter 's construction of section 13967 by the circumstance that the Legislature has amended the statute since Cotter was decided and has not altered the “in lieu of” language.   When the Legislature amends a statute without altering provisions that have been judicially construed, the Legislature is generally presumed to have been aware of, and acquiesced in, the previous judicial construction.   (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 727–728, 257 Cal.Rptr. 708, 771 P.2d 406.)   However, the presumption of legislative acquiescence in prior judicial decisions is not conclusive in determining legislative intent.   Legislative silence after a court has construed a statute gives rise at most to an arguable inference of acquiescence or passive approval.   But something more than mere silence is required before that acquiescence is elevated into a species of implied legislation.   In the area of statutory construction, an examination of what the Legislature has done, as opposed to what it has left undone, is considered to be the more fruitful inquiry.  (People v. Escobar (1992) 3 Cal.4th 740, 751, 12 Cal.Rptr.2d 586, 837 P.2d 1100;  Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1156, 278 Cal.Rptr. 614, 805 P.2d 873;  accord Moradi–Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 300–301, 250 Cal.Rptr. 116, 758 P.2d 58.)

The Legislature has actually amended section 13967 twice since Cotter was decided.   By the first of these amendments, enacted in 1992, the Legislature raised the minimum restitution fine for a felony from $100 to $200 and added a provision that the amount of a restitution fine would be subject to the defendant's ability to pay.  (Stats.1992, ch. 682, § 4.)

By the second of the two amendments, as we have observed, the Legislature deleted from section 13967 the provisions relating to the ordering of restitution and restitution fines (Stats.1994, ch. 1106 (Assem. Bill 3169), § 2) and added substantially similar provisions to Penal Code section 1202.4.  (Stats.1994, ch. 1106, § 3.)   Substantive changes in the deleted and reenacted provisions include a new provision for a restitution fine of $100 to $1,000 for misdemeanor convictions, in addition to the $200 to $10,000 fine for felonies (§ 1202.4, subd. (b), as amended by Stats.1994, ch. 1106, § 3), and a nonexclusive list of categories of losses which should be compensated by direct restitution (§ 1202.4, subd. (g), as amended by Stats.1994, ch. 1106, § 3).

Section 1202.4 still includes provisions which were included before the 1994 amendment, and which bear upon the relationship between direct restitution and restitution fines.  Section 1202.4 now, as before:  (1) authorizes the sentencing court to waive the restitution fine for compelling and extraordinary reasons which must be stated on the record (§ 1202.4, subd. (c));  (2) authorizes (but does not require) the court to stay all or a portion of a restitution fine pending successful completion of probation, when direct restitution is ordered as a condition of probation;  the stay to become permanent upon the successful completion of probation (§ 1202.4 subd. m));  (3) requires any such stay to be lifted if probation is revoked (§ 1202.4, subd. (n));  but (4) requires, in such cases, that the amount of the restitution fine be offset by any direct restitution payments that were actually made as a condition of probation (§ 1202.4, subd. (n)).  The present version of section 1202.4 incorporates the provision added by the 1992 amendment to Government Code section 13967 that a defendant's ability to pay should be considered in setting the amount of a restitution fine, as well as the provisions from earlier versions of section 1202.4 that at least the minimum restitution fine must be ordered regardless of the defendant's ability to pay unless the court finds “compelling and extraordinary reasons” to waive the fine and states such reasons on the record.  (§ 1202.4, subds. (c), (d).)  Section 1202.4 has at all times provided that an order for direct restitution may not be stayed.  (§ 1202.4, subd. (n);  see Historical and Statutory Notes, 51 West's Ann.Pen.Code, supra, § 1202.4, p. 34.)

When we examine what the Legislature has done in successive enactments with respect to the relationship between direct restitution and restitution fines, it does not appear that the Legislature intends, or has ever intended, to require all amounts ordered as direct restitution to be set off against the amount which can be ordered as a restitution fine.   If such a mandatory set-off were provided in the statutory provisions which existed at the time of the offense in this case, and which still exist, it would render superfluous the provisions which authorize all or a portion of a restitution fine to be stayed pending payment of direct restitution that is ordered as a condition of probation, and which require amounts actually paid as direct restitution during probation to be set off against a restitution fine that is imposed upon revocation of probation.

 Finally, the policy underlying the restitution statutes—that of assuring that crime victims are compensated—is obviously best served by liberally construing a court's ability to impose restitution fines.   Language which requires direct restitution “in lieu of all or a portion” of the restitution fine can logically be read to require direct restitution and to authorize, but not require, a dollar-for-dollar reduction in the restitution fine.   Such a reading would further the policy of the statute by enabling a sentencing court to eliminate even the minimum fine for defendants of meager means, yet to impose both full restitution and a fine upon defendants who are able to pay both.   Such reading would thus ensure that funds are available in the Restitution Fund to compensate victims who cannot otherwise be compensated.¹³

The present case, the court appropriately exercised the discretion which it had under the statute.   There is no occasion to disturb either the order for restitution or the order for a restitution fine.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Unless otherwise noted, further statutory references are to the Penal Code.

2.   A 1994 amendment to section 13967 deleted the provisions under which Djou's restitution fine and order for direct restitution were imposed.  (Stats.1994, ch. 1106, § 2.)   Substantially similar provisions are now found in Penal Code section 1202.4, subdivisions (a), (b) and (f).

3.   Lu was also charged with a previous felony prison term (§ 667.5, subd. (b)), which he admitted.   He was sentenced to four years in state prison, and ordered to pay restitution in the same amounts as Djou.   Lu has not appealed his conviction or prison term.

4.   CALJIC 2.01 instructs as follows:  “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.“Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt.   In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt.“Also, if the circumstantial evidence [as to any particular count] is susceptible of two reasonable interpretations, one of which points to the defendant's guilt and the other to [his] [her] innocence, you must adopt that interpretation which points to the defendant's innocence, and reject that interpretation which points to [his] [her] guilt.“If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”

5.   The jury in this case was instructed substantially in the language of CALJIC No. 2.02 as follows:  “The specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act.   However, you may not find the defendant guilty of the crime of burglary unless the proved circumstances are not only consistent with the theory that the defendant had the required specific intent but cannot be reconciled with any other rational conclusion.   Also, if the evidence as to such specific intent is susceptible of two reasonable interpretations, one of which points to the existence of the specific intent and the other to the absence of the specific intent, you must adopt that interpretation which points to the absence of the specific intent.“If, on the other hand, one interpretation of the evidence as to such specific intent appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”

6.   At the time of the offense in this case, Government Code section 13967 provided in pertinent part as follows:“(a) Upon a person being convicted of any crime in the State of California, the court shall ․ order the defendant ․ to pay restitution to the victim in accordance with subdivision (c).   In addition, if the person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than one hundred dollars ($100) and not more than ten thousand dollars ($10,000)․   Except as provided in Section 1202.4 of the Penal Code and subdivision (c) of this section, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section․“․“(c) In 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․  Notwithstanding subdivision (a), restitution shall be imposed in the amount of the losses, as determined.   The court shall order full restitution unless it finds clear and compelling reasons for not doing so, and states them on the record.   A restitution order imposed pursuant to this subdivision shall identify the losses to which it pertains, and shall be enforceable as a civil judgment․  Restitution collected pursuant to this subdivision shall be credited to any other judgments for the same losses obtained by the victim against the defendant arising out of the crime for which the defendant was convicted.  [¶] Restitution ordered pursuant to this subdivision shall, to the extent possible, be of a dollar amount that is sufficient to fully reimburse the victim, or victims, for all determined economic losses incurred as the result of the defendant's criminal conduct․”  (Stats.1991, ch. 657 (Sen. Bill No. 736;  see Historical and Statutory Notes, 32D West's Ann.Gov.Code (1992 ed.) § 13967, pp. 433–436.)

7.   Prior to January 1, 1992, section 13967, read, in pertinent part:  “Upon a person being convicted of any crime in the State of California, the court shall ․ order the defendant ․ to pay restitution to the victim in accordance with subdivision (c).   In addition, if the person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than one hundred dollars ($100) and not more than ten thousand dollars ($10,000)․ [¶] (c) In 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.   Notwithstanding subdivision (a), restitution shall be imposed in the amount of the losses, as determined.   The court shall order full restitution unless it finds clear and compelling reasons for not doing so, and states them on the record․  Restitution collected pursuant to this subdivision shall be credited to any other judgments for the same losses obtained by the victim against the defendant arising out of the crime for which the defendant was convicted.   [¶] Restitution ordered pursuant to this subdivision shall, to the extent possible, be of a dollar amount that is sufficient to fully reimburse the victim, or victims, for all determined economic losses incurred as the result of the defendant's criminal conduct․”  (Stats.1990, ch. 45 (Assem.Bill No. 1893) § 2;  see Historical and Statutory Notes, 32D West's Ann.Gov.Code, supra, § 13967, pp. 433–435.)

8.   Effective January 1, 1992, provisions were added to § 13967(c), which authorized an order for direct restitution to the victim of a felony violation of section 288 (lewd conduct upon a child), whether or not the defendant was granted probation, and further authorized direct restitution for noneconomic harm in such cases, including, but not limited to, psychological harm.  (Stats.1991, ch. 657 (Sen.Bill 736).)

9.   Djou's reply brief was filed on August 23, 1994.   On September 28, 1994, the Governor signed Assem.Bill No. 3169 into law.  Section 13967 now provides for a continuous appropriation from proceeds of the Restitution Fund for indemnification of crime victims.

10.   The portions of Penal Code section 1202.4 which include the provisions here at issue read as follows:  “(a)(2) Upon a person being convicted of any crime in the State of California, ․ [¶] (3) The court ․ shall order the defendant to pay both of the following:  [¶] (A) A Restitution fine in accordance with subdivision (b).  [¶] (B) Restitution to the victim or victims, if any, in accordance with subdivision (f).  [¶] (b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine.   The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollar ($10,000) if the person is convicted of a felony․  [¶] (f) In every case in which a victim has suffered economic loss as a result of the defendant's conduct, and the defendant is denied probation, in lieu of imposing all or a portion of the restitution fine pursuant to subdivision (b), the court shall require that the defendant make restitution to the victim or victims․  [¶] (g) Restitution ordered pursuant to subdivision (f) shall be imposed in the amount of the losses, as determined.   The court shall order full restitution unless it finds clear and compelling reasons for not doing so, and states them on the record.   Restitution shall, to the extent possible, 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․  [¶] (h) A restitution order imposed pursuant to subdivision (f) shall identify the losses to which it pertains and shall be enforceable as a civil judgment․  Restitution collected pursuant to this subdivision shall be credited to any other judgments for the same losses obtained against the defendant arising out of the crime for which the defendant was convicted.”  (§ 1202.4, as amended by Stats.1994, ch. 1106 Assem.Bill No. 3169), § 3.)

11.   For purposes of this discussion we find no significance in the circumstance that the Supreme Court denied review in Franco (see 19 Cal.App.4th at p. 186, 23 Cal.Rptr.2d 475) and Zito (see 8 Cal.App.4th at p. 747, 10 Cal.Rptr.2d 491).   The holding in Franco was that a city, which made more than $10,000 in worker's compensation payments to the victim, was not, by virtue of those payments, a “victim” entitled to restitution.  (19 Cal.App.4th at pp. 184–185, 23 Cal.Rptr.2d 475.)   The court merely observed in dictum in a footnote that a restitution fine could be imposed upon remand, as the trial court presumably had refrained from imposing a fine in the first instance because of the rule stated in Cotter.  (Id. at p. 186, fn. 18, 23 Cal.Rptr.2d 475.)   In Zito, the court did directly hold that a restitution fine could not be imposed in addition to an order for more than $10,000 in direct restitution.  (8 Cal.App.4th at p. 743, 10 Cal.Rptr.2d 491.)   However, this was a minor holding in the case, and the People had not disputed the point.   (Ibid.)  The major holdings in Zito were that (1) the restitution fine violated the ex post facto prohibition, as some of the stolen funds for which restitution was ordered were taken before section 13967 was amended to authorize restitution in excess of $10,000 (8 Cal.App.4th at pp. 741–742, 10 Cal.Rptr.2d 491);  and (2) it was permissible to make the defendant and his codefendant jointly and severally liable for any amounts properly ordered as restitution.  (Id. at 746, 10 Cal.Rptr.2d 491.)   Only the defendant petitioned for review, presumably on the issue of joint and several liability and on two additional issues respecting restitution, which the Court of Appeal had found to be waived by failure to raise them in the trial court.

12.   Substantially identical provisions appear in the present version of Penal Code section 1202.4.  Section 1202.4, subdivision (c) also provides that the “if the court finds that there are compelling and extraordinary reasons, the court may waive imposition of the fine.   When the waiver is granted the court shall state on the record all reasons supporting the waiver.”  (Italics added.)

13.   In this regard, we note that the 1992 amendment to Government Code section 13967 was enacted as an urgency measure, made necessary by a serious depletion of the Restitution Fund.  (Stats.1992, ch. 682, § 12.)   The 1994 amendment which moved the provisions here at issue to Penal Code section 1202.4 was also enacted as an urgency measure “[i]n order to create financial stability for, and to establish procedures to derive a greater level of savings in connection with, the Restitution Fund as soon as possible․”  (Stats.1994, ch. 1106, § 9.)

CROSKEY, Acting Presiding Justice.

KITCHING and ALDRICH, JJ., concur.