(Super. Ct. No. 07CR12902)
The opinion of the court was delivered by: Robie, J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Carrie Renee McAlister shot her estranged husband, Jerad McAlister (Jerad). After she pled guilty to assault with a firearm and received probation, the trial court ordered her to pay victim restitution in the sum of $69,585.61, including $44,288 for lost wages.*fn1 She now contends: (1) The court erred by imposing restitution without regard to comparative fault and the victim's role in the offense. (2) No substantial evidence supports the lost wages award. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
An information filed in Amador County Superior Court on March 24, 2008, charged defendant with attempted murder, assault with a firearm, and infliction of corporal injury on her spouse, on or about August 24, 2007; Jerad was the alleged victim on all counts. As to all counts, it was alleged that defendant personally used a firearm and personally inflicted great bodily injury under circumstances involving domestic violence. As to the attempted murder count, it was also alleged that defendant used and personally and intentionally discharged a firearm, proximately causing great bodily injury.
On April 30, 2008, defendant pled guilty to assault with a firearm pursuant to People v. West (1970) 3 Cal.3d 595 (West), in exchange for the trial court's agreement to dismiss the remaining counts and allegations and not to sentence her to prison.
By stipulation of the parties and the trial court, the preliminary hearing was used as the factual basis for defendant's plea.
Jerad testified that on August 24, 2007, he and defendant were temporarily separated; he was staying with his father, while she remained in the marital house. Jerad had promised defendant's father, Bill Sullivan, that he would not come in contact with defendant for two weeks.*fn2 Around noon on August 24, however, after unsuccessfully trying to contact defendant and her parents by phone, Jerad went to the house to try to get his Social Security card. He got into an argument with Sullivan, who struck him. He eventually left.
Later that day, Jerad bought a country music CD with a song on it that expressed his feelings for defendant. He called the marital house and left her a message that he loved her and needed to talk to her. Around 7:00 p.m., he went to the house.
After parking and walking to the front door, he saw defendant through the window. He asked if he could speak with her; she said "Yes," and let him in. She added, "Oh, we just got here," meaning herself and her parents. He asked to speak to her alone; she agreed.
Jerad followed defendant into the house as she walked toward a bookcase. At some point, Jerad stopped. When defendant reached the bookcase, she pulled out a gun from a bag around her waist and shot him. He was hit in his left side around the middle of his rib cage. She tried to shoot him again, but the gun jammed. He screamed "Why?" as he ran out the door. Reaching his parked truck, he called his father on his cell phone and told his father to call 911.
As he lay on the ground, defendant ran out and said, "You're never going to tell me you're going to fucking kill me again." He had never threatened to kill her.
Transported to Sacramento, he was operated on for four hours and hospitalized for about a week. It took him a couple of months to recover physically.
On cross-examination, defendant's counsel asked Jerad whether he had repeatedly threatened to kill defendant or had threatened to have her committed; whether he had physically and emotionally abused her; whether he had raped her and forced her to orally copulate him; and whether he had told her as he entered the house on the night of the shooting: "This time we're both dead." From documents and testimony presented later in the proceedings, it became apparent that this line of questioning was based on defendant's claim that she ...