Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF125610A, Colette M. Humphrey, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman Acting P.J., Cornell, J., and Poochigian, J.
STATEMENT OF THE CASE
On January 8, 2009, appellant, Tierre Maurice Hester, entered into a plea agreement wherein he waived his constitutional rights and admitted assault with a firearm (Pen. Code, § 245, subd. (a)(2), count two). Appellant also admitted enhancements for personally using a firearm (§ 12022.5, subd. (a)) and committing his offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The parties stipulated to a factual basis for the plea and appellant agreed to a stipulated prison term of 17 years.
Unless otherwise noted, all statutory references are to the Penal Code.
Appellant executed a felony advisement and waiver of rights form.
According to the probation officer’s report, on November 9, 2008, J.H. got into an argument with C.M. Appellant became involved in the dispute and then fired two shots at the victim. The victim was taken to Kern Medical Center and suffered a gunshot wound to the right pectoral muscle. The bullet dropped down and was possibly lodged in the victim’s stomach.
On April 27, 2009, appellant was sentenced to prison for 17 years. In addition to various fines and fees, appellant was ordered to pay direct victim restitution of $75,069.34. Appellant contends there was insufficient evidence of some of the restitution amounts awarded. Respondent argues that because appellant did not object to the amount of restitution awarded, he has forfeited appellate review of the issue. Respondent alternatively argues that there is substantial evidence of the victim’s medical claim, but if we find errors in the trial court’s calculation of victim restitution, we should remand the case for the trial court to address the ambiguity in the challenged amount of the restitution fine.
We agree with appellant that the court reporter misreported the amount of direct victim restitution at $7,069.34.
VICTIM RESTITUTION
Introduction
The victim’s family submitted a restitution form detailing their expenses and financial losses as a result of appellant’s crime. The form states that the victim’s parents lost wages and had to pay a late fee for their rent. These expenses equaled $1,950. A detailed statement of charges from Kern Medical Center totaled $67,908.34. A bill from Physician’s Automated Laboratory set forth $356 in charges, but after insurance adjustments, the patient balance was $205.96. A bill from Quest Imaging set forth total charges of $2427.50, with credits of $1116.87, and a patient balance of $1310.63. At the restitution hearing, defense counsel noted he wanted to have a hearing on the amount of restitution pursuant to People v. Cervantes (1984) 154 Cal.App.3d 353 (Cervantes). A Cervantes motion was never filed.
The statement from Kern County Medical Center notes: “THIS IS NOT A BILL” and “INSURANCE WILL BE BILLED.”
There are only four charges on the Quest Imaging bill for: $842, $710, $683, and $192.50. Added together, these charges equal $2427.50. Adding these four charges to the “Total” of $2427.50, one obtains the total of $4855, or, double the claim.
It is unclear from the record, but a clerk, the probation officer, or the court added up the restitution claim in handwriting as follows: $67,908.34, $950, $1,000, $356, and $4855. These sums total $75,069.34. Appellant initially challenged the $356 and $4855 expenses. Appellant argues he is only responsible, respectively, for the amounts of $205.96 and $1,310.63. Respondent contends the issue is forfeited because appellant failed to object to the court’s restitution order.
It appeared to us on the face of the documents that insurance payments and adjustments were pending on the large claim of $67,908.34 and that this entire amount constituted an excessive amount of restitution. We sought further briefing from the parties pursuant to Government Code section 68081. Because the evidence presents clear legal error susceptible to correction on appeal, we reject the respondent’s forfeiture argument and will remand to the trial court for further proceedings.
Discussion
Appellant challenges the $356 and $4855 expenses. Appellant argues he is only responsible, respectively, for the amounts of $205 and $1,310.63. In his letter brief, appellant further argues that he should not have to pay for hospital expenses that were reimbursed by insurance. Respondent reiterates its argument that the issue is forfeited because appellant failed to raise any objection to the findings of the trial court.
In People v. Bergin (2008) 167 Cal.App.4th 1166 (Bergin), the People contended that restitution to the victim should have been in the amount billed by her medical providers in the amount of $138,667.03 even though neither the victim nor her insurers paid that amount. (Id. at p. 1170.) The trial court found that the amount accepted by the medical providers from the victim’s insurer as full payment for their services, plus the deductible paid by the victim, an amount of $36,900.39, was the economic loss incurred by the victim for her medical expenses. (Id. at p. 1168) The appellate court agreed and affirmed the restitution order. (Bergin, supra, 167 Cal.App.4th at p. 1170, fn. 2.)
The victim’s medical providers agreed with the insurance company to accept the amounts the insurer paid on the victim’s behalf. Neither the victim nor her insurer expended more than the trial court ordered to be paid to the victim as restitution. (Bergin, supra, 167 Cal.App.4th 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.) Only the victim’s actual economic loss 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.’” (Bergin, supra, 167 Cal.App.4th at p. 1170, citing People v. Birkett (1999) 21 Cal.4th 226, 229.)
The purposes of an order for victim restitution are to rehabilitate the defendant, deter future criminal behavior, and to make the victim whole by compensating him or her for economic losses. (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017 (Anthony M.).) “The [restitution] order is not however, 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 because under some circumstances Medi-Cal. can seek reimbursement from the victim. (Id. at pp. 1018-1019.) The Anthony M. court found the juvenile court erred when it imposed a restitution order in excess of the amount paid by Medi-Cal. (Id. at pp. 1018-1019.)
In People v. Millard (2009) 175 Cal.App.4th 7 (Millard), 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.” (Millard, supra, 175 Cal.App.4th at p. 27.)
In re K.F. (2009) 173 Cal.App.4th 655 (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 the victim is ‘liable or subject to’ a charge.” (Id. at p. 663.)
In examining the two claims disputed by appellant, there are handwritten computations indicating that claims for $356 from Physician’s Automated Laboratory and $4,855 from Quest Imaging were included in the victims’ claim. On the face of each bill there are notations indicating reimbursements, credits, or adjustments. The $356 claim included $150.04 in insurance adjustments and payments. The actual restitution for this claim should have been only $205.96. The $4,855 claim was based on four charges that total only $2,427.50. The four separate charges totaling $2,427.50 were added to a line in the statement for “Totals, ” also in the amount of $2,427.50. This effectively doubled the actual charges of $2,427.50 to $4,855. The amount submitted for restitution left out a credit for $1,116.87. On the face of this bill, the only evidence submitted for this claim at the restitution hearing, the actual restitution claim should have been $2,427.50 minus the $1,167.87 credit for a total of $1,310.63. On remand, the trial court should correct these two restitution claims.
Because the trial court cannot grant the victim a windfall, and because the billing statements on their face indicate insurance payments and adjustments were made or to be made to the total bill, it appears that the trial court’s restitution order was unauthorized by statute and appellant is not subject to waiver or forfeiture for his failure to object to a legally flawed victim restitution order. (People v. Brasure (2008) 42 Cal.4th 1037, 1074-1075; People v. Smith (24 Cal.4th 849, 851-853 (Smith).) The obvious errors that occurred in calculating victim restitution in this case present pure questions of law. (See Smith, supra, 24 Cal.4th at p. 852.)
We recognize, as set forth in K.F., that the statement from Kern Medical Center constitutes evidence of the victim’s hospital bill. The hospital statement in K.F. stated it constituted “billed charges.” (K.F., supra, 173 Cal.App.4th at p. 663.) The K.F. court acknowledged there was uncertainty concerning the victim’s financial obligation to the hospital because the hospital bill came from Kaiser Hospitals which were well known as health maintenance organizations rather than medical service providers with a debtor-creditor relationship with the patient. (Id. at pp. 663-664.)
Here, in contrast to K.F., the hospital bill states: “THIS IS NOT A BILL” and “[YOUR] INSURANCE WILL BE BILLED.” Thus, the only evidence presented at the hearing indicates on its face that the document is not a final bill and that the insurance company would be billed. Because there were insurance adjustments indicated in the other bills, it would be highly unlikely for there not to have been some adjustments to the hospital bill. Furthermore, it would be inconsistent to permit recalculation of the $356 and $4,855 restitution charges but to not permit evidence of insurance adjustments for the hospital bill.
DISPOSITION
The trial court’s restitution order is reversed and remanded for it to correct the victim restitution order concerning the Physician’s Automated Laboratory and Quest Imaging charges and to recalculate the hospital bill, taking into account any adjustments. The judgment is otherwise affirmed.
In exchange for appellant’s plea, allegations of attempted murder, possession of a loaded firearm in a public place, participation in a criminal street gang, residential burglary, grand theft, and vehicle theft were dismissed. Appellant was over 16 when he committed the instant offense but was tried as an adult.