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In re N.P.

California Court of Appeals, Fourth District, Second Division
Feb 25, 2011
No. E050407 (Cal. Ct. App. Feb. 25, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Inyo County Nos. JV-09-0065901, JV-09-0065902. Phillip J. Argento, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

RAMIREZ P. J.

Defendant and appellant N.P. (minor), was found to have disturbed the peace by fighting in public. (Pen. Code, § 415, subd. (1).) Minor’s sole contention on appeal is that the trial court erred by setting restitution based upon the amount recited on the victim’s hospital bill rather than the amount the victim and her insurer would ultimately be obligated to pay. We modify the order to correct the failure to include minor’s share of a $1.10 charge that was in the hospital bill, and affirm.

Minor’s father also appealed, but he failed to file an opening brief and his appeal was dismissed.

BACKGROUND

On the afternoon of February 11, 2009, minor engaged in a physical altercation with the victim. That night, the victim sought medical attention at a hospital. The bill from the hospital was included in the probation officer’s dispositional report. The probation officer recommended restitution of $6,127.90. However, the total charges were $6,129.00, which included an additional $1.10 for a single tablet of ibuprofen. The bill recites an insurer, and states: “We have billed your insurance. You will be billed for this balance in 30 days if your insurance does not respond, or for any remaining balance.” X-rays and CT scans were among the services provided; the bill includes charges for those services, but also states: “You will also be receiving an additional bill from the radiologist physician who read the X-Ray.” After reciting the total amount due, the bill concludes with: “If you are a district resident, you may be entitled to a 20% discount on the balance owed by you (after insurance payments) if paid in full within 30 days.”

A restitution hearing was held on November 13, 2009, and December 10, 2010. At the hearing, the victim’s mother testified that the family did not have insurance, and the bill had not been paid. She also said she had not received any additional bills or notices that she was not covered by insurance. After a recess in which additional information was obtained by the victim/witness advocate, the parties stipulated that the remaining balance on the hospital bill was $1,056.77, and the victim’s family had an application pending with the state victim restitution fund. The trial court took the issue of restitution under submission.

On January 5, 2010, the trial court ordered restitution in the amount of $3,676.74, and ordered the victim and her parents to report to the probation department any amounts received from the victim restitution fund so that the department could “recommend to the court disposition of those funds.” The trial court stated that “[t]here was insufficient evidence to overcome the presumption of accuracy that the bill for $6127.90, which appears in a probation report was a reasonable amount incurred for the diagnosis and treatment of the minor victim’s injuries sustained as a result of her being involved in a fight with [minor].” The trial court relied on In re Brittany L. (2002) 99 Cal.App.4th 1381, 1387-1388, for the proposition that it had to base its award on the reasonable amount billed rather than just the amount unpaid by the victim’s insurance. Lastly, the trial court, applied comparative fault, determined the victim’s fault to be 40 percent, and arrived at the figure of $3,676.74 as 60 percent of $6,127.90.

DISCUSSION

Minor contends the trial court erred by setting restitution based upon the amount recited on the victim’s hospital bill rather than the amount the victim would ultimately be obligated to pay. However, minor acknowledges “there is no evidence as to what is the precise figure which the hospital accepted as full payment.” Because it was incumbent on minor to produce such evidence, we affirm.

“The standard of review of a restitution order is abuse of discretion.” (In re Dina V. (2007) 151 Cal.App.4th 486, 490.) “No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. ‘ “[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.” ’ [Citation.]” (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542 [Fourth Dist., Div. Two].) “That a defendant was not personally or immediately responsible for the victim’s loss does not render an order of restitution improper.” (In re I.M. (2005) 125 Cal.App.4th 1195, 1210.) The juvenile court is entitled to consider the probation report, and even a victim’s mere statement of loss included in a probation report is sufficient to establish prima facie evidence of loss. (Gemelli, at p. 1543.) “Once the victim makes a prima facie showing of economic losses incurred as a result of... criminal acts, the burden shifts to the [minor] to disprove the amount of losses claimed by the victim. [Citation.]” (Ibid.)

The purposes of requiring a minor to pay restitution “would be thwarted if a minor was relieved from responsibility for making her victims whole simply because the victims had been farsighted enough to purchase insurance.” (In re Brittany L., supra, 99 Cal.App.4th at p. 1387.) When victims are insured by Medi-Cal, restitution is appropriate only for the amount expended by Medi-Cal because, by statute, providers are barred from seeking an unpaid balance from their patients. (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1014.) When a health care bill states an amount charged but also advises that a reduction of 20 percent would be accepted, restitution should be set at the reduced amount because “ ‘ “[t]he 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.” ’ [Citations.]” (In re Eric S. (2010) 183 Cal.App.4th 1560, 1566 [Kaiser member using Kaiser facility issued statement of benefits listing charges but advising reduction of 20 percent would be accepted for charges incurred at Kaiser facilities]; see also People v. Duong (2010) 180 Cal.App.4th 1533, 1538-1539.)

Prima facie evidence of a loss of $6,129.00 was established by the inclusion of the hospital bill in the probation officer’s disposition report. Even though the bill itself stated that a 20 percent discount was available for “district resident[s], ” minor failed to introduce any evidence that the victim qualified for the district resident discount or that the hospital would otherwise accept a lesser payment as part of its relationship to the victim’s insurer. Accordingly, there is no evidence that the amount billed by the hospital was more than the hospital would accept as payment in full for treating the victim.

We note that the trial court set restitution based upon a total bill of $6,127.90 rather than the actual total of $6,129.00. Accordingly, applying the trial court’s unchallenged apportionment of fault, restitution should have been set at $3,677.40.

DISPOSITION

The order is modified to increase the restitution award to $3,677.40. In all other respects, the judgment is affirmed.

We concur: HOLLENHORST J., CODRINGTON J.


Summaries of

In re N.P.

California Court of Appeals, Fourth District, Second Division
Feb 25, 2011
No. E050407 (Cal. Ct. App. Feb. 25, 2011)
Case details for

In re N.P.

Case Details

Full title:In re N.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 25, 2011

Citations

No. E050407 (Cal. Ct. App. Feb. 25, 2011)