Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 08CEJ601738-1. David C. Kalemkarian, Judge.
Kristen Elizabeth Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys, for Plaintiff and Respondent.
OPINION
Ardaiz, P. J.
Seventeen-year-old F. R. was driving without a valid driver’s license and with a blood alcohol level above the legal limit when she collided with a vehicle driven by Maria Depazchajaj and caused injuries to Depazchajaj. In a juvenile court proceeding, the minor admitted committing these offenses. (See Veh. Code, §§ 12500, subd. (a), & 23153, subd. (b).) The juvenile court’s disposition of the case included an order that the minor pay restitution to the victim in the amount of $16,952.19. The minor appeals from this restitution order. The restitution awarded was entirely for the victim’s medical expenses.
APPELLANT’S CONTENTION
The minor contends on this appeal that the court erred in concluding, as a matter of law, that the correct amount of restitution could be determined solely from medical bills submitted to the court, and without regard to any evidence as to whether the victim was in fact liable to the medical provider for the amounts reflected in the medical bills. As we shall explain, appellant is correct. Although a court could, in the absence of any other evidence, treat medical bills sent by a medical provider to a victim as evidence of the dollar amount of the victim’s medical expenses “incurred as the result of the minor’s conduct for which the minor was found to be a person described in Section 602” (Wel. & Inst. Code, § 730.6, subd. (h)), the court’s restitution award “shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred.” (Welf. & Inst. Code, § 730.6, subd. (h).) Thus, as case law has unanimously held, if a victim is in fact liable to a medical provider for an amount less than the amount of medical expenses reflected in a medical bill (such as when a medical provider has agreed with a victim’s insurer to accept a lesser amount as full payment for the insured victim’s medical expenses), this lesser amount is “all determined economic losses incurred” by the victim for the billed medical services. Under such circumstances, restitution in the billed amount would be restitution in an amount that is more than “sufficient to fully reimburse the victim... for all determined economic losses incurred” and thus would violate Welfare and Institutions Code section 730.6, subdivision (h).
DISCUSSION
Welfare & Institution Code § 730.6 states in pertinent part:
“(a)(1) It is the intent of the Legislature that a victim of conduct for which a minor is found to be a person described in Section 602 who incurs any economic loss as a result of the minor’s conduct shall receive restitution directly from that minor.
“(2) Upon a minor being found to be a person described in Section 602, the court shall consider levying a fine in accordance with Section 730.5. In addition, the court shall order the minor to pay, in addition to any other penalty provided or imposed under the law, both of the following: [¶] … [¶]
“(B) Restitution to the victim or victims, if any, in accordance with subdivision (h). [¶] … [¶]
“(h) restitution ordered pursuant to subparagraph (B) of paragraph (2) of subdivision (a) shall be imposed in the amount of the losses, as determined. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. A minor’s inability to pay shall not be considered a compelling or extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of the restitution order. A restitution order pursuant to subparagraph (B) of paragraph (2) of subdivision (a), to the extent possible, shall identify each victim, unless the court for good cause finds that the order should not identify a victim or victims, and the amount of each victim’s loss to which it pertains, and shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor’s conduct for which the minor was found to be a person described in Section 602, including all of the following: [¶] … [¶]
“(2) Medical expenses.”
People v. Bergin (2008) 167 Cal.App.4th 1166 is directly on point. There, the victim was named Armstrong. The People contended that restitution to Armstrong should have been in the amount billed by her medical providers ($138,667.03). “The People... insist that the trial court was required to order restitution in the amount billed by Armstrong’s medical providers, even though neither Armstrong nor her insurers paid that amount.” (Id. at p. 1170.) The court, however, ruled that “the amount the medical providers accepted from Armstrong’s insurer as full payment for their services, plus the deductible paid by Armstrong” (id. at p. 1168), an amount of $36,900.39, was the economic loss incurred by Armstrong for her medical expenses. The appellate court agreed and affirmed the restitution order. “‘[I]ncur’ means ‘to become liable or subject to’ (Webster’s 9th New Collegiate Dict. (1989) p. 611), and there is no suggestion in the record that Armstrong was at any time liable for the amounts billed by her medical providers.” (People v. Bergin, supra, 167 Cal.App.4th at p. 1170, fn. 2.) “Armstrong’s medical providers agreed with Blue Cross to accept the amounts Blue Cross paid on Armstrong’s behalf; neither Armstrong nor her insurer expended more than the trial court ordered to be paid to Armstrong as restitution.” (Ibid. at p. 1170, fn. omitted.) It is not some hypothetical or even real actual value of the medical services themselves that is reimbursed by restitution. (Ibid.) It is the victim’s actual economic loss that is reimbursed. The “victim has the right to restitution based on the full amount of her losses ‘without regard to full or partial recoupments from other sources.’” (People v. Bergin, supra, 167 Cal.App.4th at p. 1170, citing People v. Birkett (1999) 21 Cal.4th 226, 229.)
Other cases are in accord. “[T]he statutory language makes clear that the Legislature intended to limit restitution to the victim’s economic losses and to mitigate those losses to the extent possible.” (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017.) “The [restitution] order is not... intended to provide the victim with a windfall.” (Ibid.) In Anthony M. the court ruled that where the medical provider was paid a certain amount by Medi-Cal and was precluded by law from seeking any further payment from the victim, the victim’s economic loss was the amount paid by Medi-Cal to the medical provider on the victim’s behalf. “Accordingly, we find the juvenile court erred when it imposed a restitution order in excess of the amount paid by Medi-Cal.” (Ibid. at p. 1019.)
Respondent contends that In re K.F. (2009) 173 Cal.App.4th 655 holds otherwise. It does not. In re K.F. applied the same principle of law, but in that case the only evidence of the victim’s actual loss was a medical bill. No other evidence of the victim’s actual economic loss was presented. “We are … left with the uncontested recital in the quoted document that the victim was ‘billed’ for the stated amount. This makes it unnecessary, and indeed impossible, to consider the effect on criminal restitution of a victim’s having received treatments for which he in fact was not billed.” (Id. at p. 664, fn. omitted.) In re K.F. in fact agreed with all other case authority on the subject that “[t]o constitute evidence of a ‘loss incurred,’ there must be some basis to conclude that that the victim is ‘liable or subject to’ a charge.” (Id. at p. 663.)
Similarly, in People v. Millard (2009) 175 Cal.App.4th 7, the court stated: “To ‘fully reimburse’ the victim for medical expenses means to reimburse him or her for all out-of-pocket expenses actually paid by the victim or others on the victim’s behalf (e.g., the victim’s insurance company). The concept of ‘reimbursement of medical expenses generally does not support inclusion of amounts of medical bills in excess of those amounts accepted by medical providers as payment in full.” (People v. Millard, supra, 175 Cal.App.4th at p. 27.)
In the present case neither of the parties called People v. Bergin, supra, to the juvenile court’s attention. Nor did the juvenile court have the benefit of In re K.F., supra, or People v. Millard, supra, both of which had not yet been decided. The juvenile court correctly observed that there is a difference between Medi-Cal and private insurance, in that “if a medical provider bills Med-i-Cal, then by law they are prevented from seeking any further payment from the recipient of the services for the unpaid balance.” This is correct so far as it goes, but in this case counsel for the minor subpoenaed the records of medical provider Community Regional Medical Center, which had sent the victim’s insurer notice of a lien in the amount of $14,185.19 on any recovery by the victim. The minor’s counsel wished to show the court how much the victim’s insurer had paid to Regional Community Medical Center and whether that amount paid was to constitute payment in full. The medical provider did not comply with the subpoena and did not produce the records. Minor’s counsel told the court “I don’t think we’re ready to proceed with this hearing” without the subpoenaed records. Also, the victim provided the court with a document which does not appear in the record on appeal, but which was described by the minor’s counsel at the restitution hearing as a “one-page memo from the victim in this case indicating the claim number 500418774, a total paid amount to be $6,600 to Community Medical Center is paid by the victim’s insurance company Infinity.” The parties and the court had no way of knowing from this document whether this was an amount the insurer had agreed to accept as payment in full, or whether the victim would still be obligated to pay Community the difference between the $6,600 paid by the insurer and the $14,185.19 lien amount. The juvenile court did not appear to be of the view that the Community Regional Medical Center billing records would matter, and awarded restitution to the victim in the full $14,185.19 lien amount. (The remaining $2,767.00 of the $16,952.19 medical expenses restitution order was not in dispute.) Under these circumstance, the juvenile court abused its discretion in denying appellant the opportunity to demonstrate whether the victim did in fact incur medical expenses in an amount less than the $14,185.19 lien amount. (See In re Anthony M., supra, 156 Cal.App.4th at p. 1016.)
DISPOSITION
The $16,952.19 restitution order is reversed. The matter is remanded for further proceedings at which appellant will be permitted to present evidence of the total amount of the medical expense obligation actually incurred by the victim to Community Regional Medical Center.
WE CONCUR: Levy, J., Kane, J.