Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 6247531
CANTIL-SAKAUYE, J.
A jury convicted defendant Aaron Ray Allman of misdemeanor battery (Pen. Code, § 242) as a lesser included offense of battery with great bodily injury (§ 243, subd. (d)). The court suspended imposition of sentence, placed defendant on three years’ probation, and ordered him to serve 120 days in county jail, pending a further hearing on imposition of victim restitution as a condition of probation.
Hereafter, undesignated statutory references are to the Penal Code.
Defendant appealed his conviction, which was affirmed by the appellate division of the Placer County Superior Court. The trial court subsequently ordered $22,558.92 in victim restitution as a condition of probation while reserving jurisdiction on the amount of restitution owed for physical therapy. After the victim submitted physical therapy bills, the court modified the restitution order to include an additional amount of $1,620 for physical therapy, raising the total restitution to $24,178.92.
This court has jurisdiction over appealable orders from “felony case[s].” (§ 1235, subd. (b); see Cal. Const., art. VI, § 11.) Defendant was initially charged with a felony, which gives this court jurisdiction over his appeal of the restitution order even though he was only convicted of a misdemeanor. (People v. Nickerson (2005) 128 Cal.App.4th 33, 36; § 691, subds. (f), (g).) For the same reason, this court had jurisdiction over defendant’s appeal of his conviction instead of the appellate division of the superior court. However, we shall not consider an appeal from his conviction even though that appeal was heard in the wrong court. Neither party has raised this issue. Defendant was responsible for filing the appeal from his conviction in the wrong court, and the time for filing an appeal from his conviction with this court has long since passed. Although counsel should take care to file the appeal in the proper court, the appellate division should also take care to screen out those appeals properly belonging in this court.
Defendant appeals the restitution order, asserting: 1) his acquittal on the principal offense of battery causing serious bodily injury (§ 243, subd. (d)) estopped the court from imposing restitution; 2) imposition of restitution violated his jury trial and due process rights; 3) the court was not authorized to impose restitution for losses incurred by the victim’s wife; and 4) ordering restitution for physical therapy costs not billed to the victim or his insurance was an abuse of discretion. We shall affirm the order.
BACKGROUND
John Bartholomew and his wife Linda were driving east on Interstate 80 to work at the Sams’s Club in Roseville when defendant cut in front of them in his Ford Expedition. Bartholomew, who had to slow down to keep from hitting the Expedition, beeped his horn and shook his fist at defendant.
Bartholomew took the Galleria exit from Highway 65, and defendant drove through a divider to follow him. Defendant was following very closely, so Bartholomew signaled, made a turn and pulled into a parking area, with defendant parking behind him.
Bartholomew walked halfway to defendant’s Expedition and asked what was the problem. After a verbal altercation, Bartholomew called defendant an “asshole” and told him “People like you ought to be shot.” As Bartholomew headed back to his car, defendant ran after him and hit Bartholomew from behind, sending him flying into his car and falling to the ground. Defendant then returned to his SUV and drove away. The force of the impact dented Bartholomew’s car, and Bartholomew broke his left arm which had to be surgically repaired.
Defendant, testifying, claimed self-defense as he thought Bartholomew was going to his car to get a gun. The jury acquitted defendant of the charged offense of battery with serious bodily injury and convicted him of the lesser included offense of misdemeanor battery.
DISCUSSION
I.
Defendant observes that section 1202.4 limits restitution to a victim “who has sustained economic loss as the result of a crime[.]” (§ 1202.4, subd. (k)(3).) Since he was acquitted of causing serious bodily injury to the victim, defendant reasons the trial court was estopped from finding the victim’s injury was a result of defendant’s crime. Defendant’s claim, which relies on the wrong statute, fails as his criminal conduct is the sole cause of his victim’s injuries.
The court ordered restitution as a condition of probation, not as an adjunct to a prison sentence. Restitution as a condition of probation is governed by section 1203.1 rather than section 1202.4, which governs restitution orders when the defendant is sentenced to prison. The distinction between the two statutes is important, because “the scope of a trial court’s discretion is broader when restitution is imposed as a condition of probation.” (People v. Giordano (2007) 42 Cal.4th 644, 664, fn. 7 (Giordano).) In granting probation, a court may impose such reasonable conditions, including a requirement of restitution, which “are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . .” (§ 1203.1, subd. (j).)
An order of restitution is valid as a probation condition so long as it “can be reasonably related to the offense underlying the conviction and can serve the purposes of rehabilitating the offender and deterring future criminality.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1119 (Carbajal).)
Defendant was acquitted of battery causing great bodily injury, but he was convicted of the lesser offense of battery. The restitution order compensates Bartholomew for the economic losses associated with his broken left arm. Defendant’s conduct which led to his battery conviction -- pushing Bartholomew from behind and causing him to hit his car and then the ground -- is the sole cause of Bartholomew’s broken arm. As his crime of battery is indisputably linked to Bartholomew’s broken arm, there is no doubt that the restitution order was proper under the standards for restitution as a condition of probation.
We also recognize restitution as a condition of probation does not have to be directly based on the conduct for which the defendant stands convicted. (Carbajal, supra, 10 Cal.4th at p. 1121.) For example, “restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation] . . . [citation], and by conduct resulting in an acquittal [citation].” (Ibid.) While there is a direct link between defendant’s crime and the victim’s losses, the restitution is also appropriate as a probation condition under this standard.
Requiring defendant to pay restitution for the losses stemming from his crime fosters his rehabilitation and is related to his criminal conduct. “‘Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused.’” (Carbajal, supra, 10 Cal.4th at p. 1124, quoting Kelly v. Robinson (1986) 479 U.S. 36, 49, fn. 10 [93 L.Ed.2d 216, 228, fn. 10].)
As the restitution order meets all the requirements set forth for a condition of probation, the order was a proper exercise of the court’s authority.
In Giordano, the California Supreme Court held section 1202.4 did not preclude a court from ordering a defendant convicted of vehicular manslaughter to pay restitution to the surviving spouse for “future economic losses attributable to the deceased victim’s death.” (Giordano, supra, 42 Cal.4th at p. 649.) In support of its holding, the Supreme Court cited the many decisions stating defendants have reduced due process protections at restitution hearings. (Id. at p. 662, fn. 6.) The high court also acknowledged these decisions were decided before Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham), People v. Black (2007) 41 Cal.4th 799, and People v. Sandoval (2007) 41 Cal.4th 825, which applied the rights to jury trial and proof beyond a reasonable doubt to the determinate sentencing law. (Giordano, supra, 42 Cal.4th at p. 662, fn. 6.) Since the defendant did not raise any constitutional challenge to the restitution order, the Supreme Court did not consider the effect of Cunningham and related decisions on restitution. (Giordano, supra, at p. 662, fn. 6.)
Relying on footnote 6 of Giordano, defendant argues that since the exact amount of restitution a court can order is not limited by statute, the order imposing restitution increased his punishment beyond the statutory maximum without the benefit of a jury trial or proof beyond a reasonable doubt, thus violating the rule of Cunningham. Defendant is wrong as his argument is premised on a misunderstanding of the role of probation.
In Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], the United States Supreme Court held that any circumstance other than the fact of a prior conviction that is relied on by a trial court to increase the penalty for a crime beyond the statutory maximum must be tried before a jury and proved beyond a reasonable doubt. (Id. at pp. 301, 303 [159 L.Ed.2d at pp. 412, 413].) In Cunningham, the Supreme Court analyzed California’s determinate sentencing law and held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, at p. ___ [166 L.Ed.2d at p. 864].) As we have already discussed, in Giordano the California Supreme Court explicitly declined to consider how this ruling applied to restitution hearings.
The holdings in Blakely and Cunningham and the Giordano dicta have no bearing on the validity of the probation order. Blakely and Cunningham pertain, inter alia, to increased penalties and restrict increasing a defendant’s prison sentence beyond the statutory maximum through judicial fact finding. These decisions are irrelevant to the validity of a probation condition.
“[C]ourts deem probation an act of clemency in lieu of punishment [citation], and its primary purpose is rehabilitative in nature. [Citation.]” (People v. Howard (1997) 16 Cal.4th 1081, 1092.) “[T]he granting of probation is not a right but a privilege, and that if the defendant feels that the terms of probation are harsher than the sentence for the substantive offense he is free to refuse probation. [Citations.]” (People v. Miller (1967) 256 Cal.App.2d 348, 356; see also In re Osslo (1958) 51 Cal.2d 371, 377.) Accordingly, a probation condition is not considered punishment for a defendant’s criminal conduct. (People v. Superior Court (Kirby) (2003) 114 Cal.App.4th 102, 105-106.)
Since defendant is not punished by the grant of probation or any of the conditions imposed by the court, it follows that the restitution order does not implicate the rule of Blakely, which is limited to increases in the penalty for a crime. The dicta in Giordano, which addressed restitution in the context of a defendant sentenced to prison (see Giordano, supra, 42 Cal.4th at pp. 649-650), is likewise irrelevant to restitution ordered as a condition of probation. The restitution order thus did not offend defendant’s constitutional rights.
II.
The victim and his wife have the same employer. According to their employer, the victim lost $9,900 in lost wages during his convalescence, and his wife lost the same amount in caring for the victim during this time. Both sums were included in the court’s restitution order.
Defendant contends the court was not authorized to order restitution for the wife’s lost wages as her lost earnings were not a direct result of defendant’s crime, but came from her own decision to help her husband. We disagree.
In support of his contention, defendant argues Bartholomew’s wife was not a victim under section 1202.4. Defendant’s reliance on this statute is misplaced as section 1202.4 governs restitution to the victim when a defendant is sent to prison. Here, the restitution order is governed by the more liberal authority to order restitution as a probation condition under section 1203.1 rather than section 1202.4. Restitution for a wife who foregoes wages in order to care for her husband, the victim of defendant’s battery, is certainly related to defendant’s crime, and, by requiring him to compensate all of his victims, fosters defendant’s rehabilitation. It is therefore an appropriate exercise of the court’s authority in fashioning probation conditions. (See Carbajal, supra, 10 Cal.4th at p. 1119; § 1203.1, subd. (j).)
As a result of defendant’s crimes, Bartholomew’s wife suffered an economic loss by having to take care of him as opposed to hiring professional assistance. She is entitled to restitution.
Contrary to defendant’s claim, we find the order of restitution for the wife’s lost earnings to be supported by substantial evidence. The letter from Bartholomew’s employer states Bartholomew lost “an approximate income of $9,900” during his convalescence, and his wife lost “approximately the same” amount while she cared for him “as she and he did the same work together.” Defendant argues this evidence was too vague to support the order as it involved “approximate” income, is contradicted by the police officer’s report, and should have been verified over a 12-month period pursuant to section 1202.4, subdivision (f)(3)(D).
Section 1202.4, subdivision (f)(3)(D) mandates restitution for lost commission income. Commission income is established under this provision by evidence of commissions “during the 12-month period prior to the date of the crime” absent a showing of good cause. (§ 1202.4, subd. (f)(3)(D).) Defendant claims the award of restitution for lost income is improper because Bartholomew and his wife had not worked with their employer for a year at the time the crime was committed.
Aside from our refrain that section 1202.4 does not apply here, the employer’s letter plainly spells out that the estimated income lost by Bartholomew and his wife were for lost wages. The letter further provides that missed bonuses during Bartholomew’s convalescence were not included in the calculation of lost income. Nothing in the record supports the contention that the 12-month requirement for commission income applies to the lost wages estimated by Bartholomew’s employer.
Defendant argues there is insufficient evidence to support the $9,900 award for the wife’s lost income because Bartholomew told an officer he thought his wife lost about $5,000 in income.
“‘The standard of review of a restitution order is abuse of discretion. “A victim’s restitution right is to be broadly and liberally construed.” [Citation.] “‘When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.’” [Citations.]’ [Citation.]” (People v. Baker (2005) 126 Cal.App.4th 463, 467.) “In reviewing the sufficiency of the evidence, the ‘“power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the trial court’s findings.’ [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]” (Id. at pp. 468-469.)
After the prosecution establishes a prima facie case of the victim’s loss, the burden shifts to the defendant to prove the amount is excessive. (See People v. Fulton (2003) 109 Cal.App.4th 876, 886.) “Once the record contains evidence showing the victim suffered economic losses . . . this showing establishes the amount of restitution the victim is entitled to receive, unless challenged by the defendant.” (Ibid.)
The employer’s letter established prima facie evidence of the wife’s lost wages from her caring for her husband as a result of defendant’s criminal conduct. Although the police report stated that Bartholomew related a $5,000 loss of his wife’s income “in sales,” the employer’s letter verified the wife’s approximate loss of $9,900 in “wages.” The employer’s estimate did not include various bonuses missed during Bartholomew’s convalescence. The court could reasonably conclude that the employer’s letter provided the more accurate accounting of the wife’s lost wages. Defendant failed to rebut the evidence in the letter, and the order awarding restitution in the amount estimated by the wife’s employer was not an abuse of discretion.
III.
Defendant’s final contention is the court abused its discretion in ordering restitution for the full amount billed for physical therapy because some of those expenses were not paid by the victim or his insurance.
At the hearing on restitution for physical therapy, the People submitted a bill for physical therapy from Carmel Orthopedic and Sports Therapy totaling $1,620 for a series of sessions running from November 15, 2005, to January 17, 2006. The bill separately listed the charges for each session, and, in a column titled “Adjusts & Ins Paid,” listed an amount paid equal to the amount billed. In another column, the bill showed a running balance of zero.
The bill also shows a series of entries for various dates the victim was billed for physical therapy. Each entry listed “Veterans pd.” an amount, and an “Insurance Writeoff” for a different sum. Added together, these two sums corresponded to the amount billed for that day’s services. The various insurance write-offs in the bill totaled $603.37. The bill also lists a “Per Bud Adjust cr.” of $361.50. Finally, the bill shows nothing billed to Bartholomew during the period covered by the bill and a net amount of zero owed by Bartholomew. The court ordered restitution for the full $1,620.
Citing In re Anthony M. (2007) 156 Cal.App.4th 1010 (Anthony M.), defendant argues the court abused its discretion by refusing to reduce the restitution by the write-off credits and the budget adjustment credit.
In Anthony M., a panel of this court reversed a restitution order to the extent it reimbursed the victim for the amount billed by the medical provider rather than the amount paid to the provider by Medi-Cal for services rendered to the victim. (Anthony M., supra, 156 Cal.App.4th at pp. 1013, 1019.) Providers are prohibited from seeking reimbursement from the victim for any portion of the bill not paid by Medi-Cal. (Id. at pp. 1018-1019, fn. omitted.) The panel concluded that any restitution in excess of the amount paid by Medi-Cal was an unauthorized windfall to the victim. (Ibid.) Defendant claims this rule applies to the portions of the bill not paid by the Veterans Administration and not charged to defendant.
The Attorney General contends defendant forfeited this issue on appeal by failing to object at the second restitution hearing. At this hearing, defendant made a hearsay objection to the bill and claimed some therapy may have been related to prior injuries. Both were rejected.
Defendant never raised the issue that defendant now claims on appeal -- compensating the victim for the amount of the bill his insurance did not pay is a windfall. Neither of defendant’s objections preserved this claim, and nothing in the record supports concluding that further objections would have been futile. We conclude defendant’s claim is forfeited on appeal. (People v. O’Neal (2004) 122 Cal.App.4th 817, 820.)
DISPOSITION
The order is affirmed.
We concur: MORRISON, Acting P. J. ROBIE, J.