Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SCN 244158, David G. Brown, Judge.
NARES, Acting P. J.
This case arose out of a February 2008 automobile accident. Peter Dixon Scott pleaded guilty to one count of misdemeanor driving with a blood alcohol level of 0.08 percent or greater causing injury to Cheryl Monreal (Pen. Code, §§ 23153, subd. (b), 17, subd. (b)(4)). The court suspended imposition of sentence for a period of five years and granted Scott summary probation.
All further statutory references are to the Penal Code.
Following a victim restitution hearing at which Monreal testified about her physical condition and her medical expenses and other economic losses, the court ordered Scott under section 1202.4, subdivision (f) (hereafter section 1202.4(f)) to pay victim restitution to Monreal for her economic losses in the total amount of $39,192.36. The court calculated her medical expenses based on her medical providers' billed rates, rather than on the lower negotiated rates actually paid by her insurer to those medical providers on her behalf.
The court later denied Scott's motion for reconsideration, in which he claimed the court had erred by ordering him to pay the amount her medical providers billed, because (he maintained) the amount of his victim restitution obligation for Monreal's medical expenses was limited by law to the amount her insurers actually paid to her medical providers.
Scott appeals the restitution order, contending the amount of restitution ($39,192.36) was not authorized by statute, and the court abused its discretion by calculating Monreal's medical expenses based on the amounts her medical providers billed rather than on the amounts the medical providers accepted from her insurer. We conclude the court did not abuse its discretion in calculating the medical expense portion of Scott's victim restitution obligation based on the charges billed by the medical providers.
The facts are primarily taken from the transcript of the July 2008 preliminary hearing.
On February 15, 2008, at around 5:15 p.m., Monreal stopped her car (a Toyota Camry) behind several other cars that were stopped at an intersection in Cardiff by the Sea, waiting for the stoplight to turn green. Suddenly, another car hit Monreal's car hard from behind, causing her car to rear-end the car in front of her, which was driven by Aina Grant. Monreal felt a very sharp and constant pain in her jaw, neck and lower back after the collision, and an ambulance transported her to Scripps Encinitas Hospital.
San Diego County Sheriff's Deputy Steven Owens investigated the accident at the scene and spoke with Monreal and Grant. Officer Owens learned from another officer that Scott had said he had been drinking at the Shanty Bar, he had had three vodka cranberries, he did not see the cars stopped in front of him because the sun had blinded him, and he ran into the back of the Camry. The other officer told Officer Owens that when he spoke with Scott, Scott displayed symptoms of possible alcohol intoxication and performed poorly on a series of field coordination tests. Scott agreed to submit to preliminary alcohol screening (or PAS) tests, and the results showed blood alcohol levels of 0.148 and 0.155 percent.
Officer Owens determined that Scott was at fault in the collision. After forming the opinion that Scott had been driving under the influence of alcohol, the other officer arrested Scott and transported him to the Encinitas sheriff's station, where he agreed to take breath tests. The first breath test was administered at 6:30 p.m. and showed a blood alcohol level of 0.14. The second breath test was administered at 6:33 p.m. and showed a blood alcohol level of 0.15.
Officer Owens consulted with a certified forensic alcohol analyst, who opined that Scott had consumed eight or eight-and-a-half standard drinks, and his blood alcohol level was between 0.15 and 0.16 at the time of the accident.
DISCUSSION
Scott claims the restitution order was not authorized by statute, and the court abused its discretion by calculating Monreal's medical expenses based on the amounts her medical providers billed rather than on the lesser, negotiated amounts the medical providers accepted from her insurer. In support of these claims, he maintains the court's use of Monreal's medical bills "was not a rational method of calculating the amount of [her] economic loss because it enabled [her] to receive much more than any full reimbursement; it constituted a windfall far beyond the medical expenses that she actually incurred." We reject these claims.
A. Background
1. Preliminary hearing
At the July 17, 2008 preliminary hearing in this matter, Monreal testified that following her release from the hospital, she received follow-up treatment from two general practitioners, an orthopedic doctor, a neurologist, a chiropractor, two acupuncturists, and a physical therapist. With the exception of the neurologist, she was still under the care of those health care providers.
Monreal indicated that while under the care of her orthopedist, she underwent "C spine" and "T spine" MRI's and, during the previous week, had undergone a lumbar spine MRI because she was continuing to suffer "a lot of pain." When asked about the current level of pain in her back, she indicated she was having trouble sitting, and her pain level on a scale of 1-to-10 was "maybe seven or eight today." With regard to the pain in her neck, Monreal testified the pain level was "more like a four."
Monreal also stated she was still taking Naproxen for the pain, and she was putting "pain patches" on her back. She also indicated she had had about 25 appointments with the physical therapist, and she was still seeing a chiropractor once or twice each week.
2. Victim restitution hearing
At the May 2009 victim restitution hearing, the prosecutor introduced into evidence an Excel spreadsheet listing Monreal's economic losses, including (among other things not relevant here) her medical bills, and asked the court to order victim restitution in the total amount of $41,700.84. The prosecutor indicated that the information listed on the spreadsheet was based on bills that Monreal had provided. The prosecutor informed the court that Scott's insurer, Mercury Insurance, paid for the damage to the car Monreal was driving at the time of the accident, and thus "the only thing that we're talking about is the medical damages and her rehab[ilitation]."
The prosecutor stated that Monreal "brought all her doctor bills" and that her rehabilitation "has been a long one because[, ] as you look at the bills, you can see that from the time of the accident, you have the hospitalization, and you have referrals to different specialists in acupuncture, physical therapy, and even pain specialists." The prosecutor argued that "the fact that [Monreal's] insurance company has paid some of these losses is of no consequence, and [Scott] does not get a direct benefit."
Defense counsel objected to the spreadsheet on the ground it lacked foundation and argued that medical expenses in the amount of $30,000 "in less than a year to treat soft-tissue damage" was "over the top" and "just overtreatment." He characterized Monreal's medical bills as "retail rather than the actual amounts that are going to be paid the doctors" and indicated the amount of the claim was a "windfall" to Monreal, rather than an amount that would make her "whole." The court indicated it would overrule the defense objection if Monreal testified she received the medical bills in question.
Monreal testified that the list of medical expenses and other economic losses listed on the Excel spreadsheet was accurate. She also testified that she was still experiencing pain.
The court ordered Scott to pay victim restitution to Monreal for her economic losses under section 1202.4(f) in the total amount of $39,192.36, at the monthly rate of $500. Indicating the amount of collateral source insurance payments made by Monreal's insurer on her behalf were not relevant, the court calculated her medical expenses based on her medical providers' billed rates, rather than on the lower, negotiated rates actually paid to those medical providers on her behalf by her insurer.
3. Scott's motion for reconsideration
Scott filed a motion for reconsideration, claiming the amount of his victim restitution obligation for Monreal's medical expenses was limited by law to the amount her insurers actually paid to her medical providers, and thus the court erred by ordering him to pay the amount her medical providers billed. The court denied Scott's motion. However, at a later ability-to-pay hearing, the court modified the victim restitution order by reducing the amount of Scott's monthly restitution payment from $500 to $50.
B. Applicable Legal Principles
1. Victim restitution
When a criminal defendant's conduct causes economic loss to the victim, the trial court must order the defendant to make restitution to the victim. (Cal. Const., art. I, § 28, subd. (b), par. (13); § 1202.4(f).) The trial court determines the amount of the restitution "based on the amount of loss claimed by the victim... or any other showing to the court." (§ 1202.4(f).)
The court must order "full restitution unless it finds compelling and extraordinary reasons for not doing so" and states the reasons on the record. (§ 1202.4(f), italics added.) "[T]he restitution order... shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct, including, but not limited to... [¶]... [¶] [m]edical expenses." (§ 1202.4, subd. (f)(3)(B) (hereafter section 1202.4 (f)(3)(B), italics added.)
" '[T]he concept of restitution embodies not only the notion that people who suffer loss as a result of criminal activity should be compensated for those losses [citation], but also a perception of the value of restitution as a "deterrent to future criminality" [citation], and "to rehabilitate the criminal." ' " (People v. Crow (1993) 6 Cal.4th 952, 957.)
"At the core of the victim restitution statutory scheme is the mandate that a victim who suffers economic loss is entitled to restitution and that the restitution is to be 'based on the amount of loss claimed by the victim.' Thus, a victim seeking restitution... initiates the process by identifying the type of loss [citation] he or she has sustained and its monetary value." (People v. Fulton (2003) 109 Cal.App.4th 876, 885-886.) "Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim." (Ibid.; People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543.)
The California Supreme Court has explained that while a trial court has "broad discretion" in choosing a method for calculating the amount of restitution, it must employ a "rational" method for determining the victim's economic loss. (People v. Giordano (2007) 42 Cal.4th 644, 663-664 (Giordano).)
2. Standard of review
"[W]e review the trial court's restitution order for abuse of discretion." (Giordano, supra, 42 Cal.4th at p. 663.) The trial court does not abuse its discretion "as long as the determination of economic loss is reasonable, producing a nonarbitrary result. Factors relevant to that determination will necessarily depend on the particular circumstances before the court." (Id. at p. 665.) Our review is " 'deferential, ' but it 'is not empty, ' [asking] 'whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts.' " (Id. at p. 663.)
C. Analysis
Scott's claims are premised on his assertion that "[t]he purpose of restitution is to make the victim whole─not to provide the victim with a windfall which far exceeds actual economic losses." This assertion is unavailing because the purpose of victim restitution is not solely to "make the victim whole" in terms of out-of-pocket pecuniary losses, as Scott suggests. Although a victim restitution order serves the legislative goal of fully reimbursing the victim for economic losses she has incurred as a result of the defendant's criminal conduct, it is imposed primarily for the benefit of the state to promote the state's dual interests in rehabilitating the criminal and deterring future criminality. (People v. Hove (1999) 76 Cal.App.4th 1266, 1273 (Hove); People v. Moser (1996) 50 Cal.App.4th 130, 135-136 (Moser); see also People v. Crow, supra, 6 Cal.4th at p. 957.)
In Moser, the Court of Appeal explained that, "[r]estitution 'is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.' " (Moser, supra, 50 Cal.App.4th at pp. 135-136, italics added; see also Hove, supra, 76 Cal.App.4th at p. 1273.)
Here, Scott does not address the rehabilitative and deterrent purposes of the court's victim restitution order. However, these purposes should be considered in determining whether the court employed a rational method for calculating the amount of the medical expenses portion of Monreal's economic loss, and whether it abused its broad discretion in determining the amount of restitution. (See Giordano, supra, 42 Cal.4th at pp. 663-664.) We conclude the court's use of the medical providers' billed rates rather than the negotiated rates in this case was a rational method for calculating the amount of medical expense losses that Monreal incurred as a result of Scott's criminal act. The use of either the billed rates or the negotiated rates serves the rehabilitative and deterrent purposes of victim restitution by forcing Scott to confront, in concrete terms, the medical expense harm his actions have caused.
Quoting this court's opinion in People v. Millard (2009) 175 Cal.App.4th 7, 27 (Millard), Scott also maintains that "the amount of [section 1202.4(f)(3)(B) victim] restitution must completely cover '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 [within the meaning of section 1202.4(f)(3)(B)] generally does not support inclusion of amounts of medical bills in excess of those amounts accepted by medical providers as payment in full.' "
Scott's reliance on Millard in support of his claim that the court abused its discretion by ordering restitution in the full amount of the incurred medical bills is unavailing because, as this court acknowledged in that case, trial courts have legal discretion to base a section 1202.4(f)(3)(B) victim restitution order on the billed rates charged by the victim's medical providers, rather than on the negotiated rates those providers have agreed to accept, particularly when the victim is facing continuing care costs. (Millard, supra, 175 Cal.App.4th at pp. 28-29, citing Hove, supra, 76 Cal.App.4th 1266.) As we noted in Millard, the Court of Appeal in Hove held that the victim in that case (who was severely injured and required long-term medical care as a result of the defendant's criminal act of driving while under the influence of a controlled substance) was entitled to restitution for medical expenses even though his medical expenses were paid by Medicare and/or Medi-Cal, and he therefore did not suffer any direct economic losses. (Millard, supra, at p. 28; see Hove, supra, 76 Cal.App.4th at pp. 1268, 1272-1273.) Hove upheld the trial court's restitution order that was based on the higher amount that the medical providers billed to Medi-Cal, reasoning that the victim would incur "continuing care costs." (Hove, supra, 76 Cal.App.4th at pp. 1274-1275.)
Medicare is a federal health insurance program for persons age 65 and over, and Medi-Cal is a medical cost assistance program that pays medical costs for financially needy persons. (Hove, supra, 76 Cal.App.4th at p. 1272.)
Here, the court's order imposing on Scott the restitution obligation of paying Monreal the full billed amount of the medical expenses she incurred was a proper exercise of the court's broad discretion under Hove. As already noted, Scott injured Monreal in February 2008. At the time of the preliminary hearing in July of that year, Monreal testified that she was still taking pain medication and she was still seeing a chiropractor once or twice each week. When asked about the level of pain in her back at that time, she testified about the difficulty she was having in sitting and stated her pain level on a scale of 1-to-10 was "maybe seven or eight." When she testified at the May 2009 restitution hearing, Monreal stated she was still experiencing pain, indicating a need for continuing care.
Scott's reliance on People v. Bergin (2008) 167 Cal.App.4th 1166 (Bergin) and In re Anthony M. (2007) 156 Cal.App.4th 1010 (Anthony M.) is also unavailing. In both cases, the Court of Appeal concluded that the trial court did not abuse its discretion in reducing the amount of victim restitution for medical expenses to the amount negotiated by the health care insurers (in Bergin, the victim's private health care insurance company and Medi-Cal in Anthony M.). (See Bergin, supra, 167 Cal.App.4th at p. 1169; Anthony M., supra, 156 Cal.App.4th at p. 1019.) However, Bergin and Anthony M., like Millard, supra, 175 Cal.App.4th 7, acknowledged that trial courts have legal discretion to base a victim restitution order on the billed rates charged by the victim's medical providers, rather than on the negotiated rates those providers have agreed to accept, when the victim is facing continuing care costs. (See Bergin, supra, 167 Cal.App.4th at pp. 1170-1171 ["Hove does not support the proposition that a trial court must order restitution in amounts billed by medical providers."]; Anthony M., supra, 156 Cal.App.4th at p. 1019.)
In light of the rehabilitative and deterrent purposes of California's victim restitution legislation and the uncontested evidence presented at the restitution hearing showing Monreal continued to suffer pain from the injuries she suffered as a result of Scott's criminal actions, indicating a need for continuing care, we conclude the court did not abuse its broad discretion by choosing to base the amount of Scott's section 1202.4(f)(3)(B) victim restitution obligation on the billed rates charged by Monreal's medical providers, rather than on the negotiated rates those providers accepted. Accordingly, we affirm the restitution order.
DISPOSITION
The order is affirmed.
I CONCUR: O'ROURKE, J., McDONALD, J., concurring in the result.
The appellate briefing by the parties, and the majority opinion, posit the issue raised in this appeal to be whether victim restitution under Penal Code section 1202.4 for medical expenses is to be calculated as the medical expenses billed to the victim or as the lesser medical expenses paid by the victim's medical insurance and accepted as full payment by the medical providers. Under these circumstances, the debt of the victim to his or her medical providers is extinguished and the victim is not obligated to pay the medical providers the difference between the amount billed and the amount accepted in full payment. (Parnell v. Adventist Health System/West (2005) 35 Cal.4th 595.) The issue then becomes whether the victim is entitled to restitution for economic loss for which there is no economic obligation. The cases have struggled with this issue and the majority opinion holds the victim is so entitled while People v. Millard (2009) 175 Cal.App.4th 7, People v. Bergin (2008) 167 Cal.App.4th 1166 and In re Anthony M. (2007) 156 Cal.App.4th 1010 suggest the contrary.
The premise of the appellate briefs and the majority opinion-that the medical providers have accepted a lesser payment in full for their billings and the victim has been relieved of further obligation to them-is not reflected in the appellate record. The appellate record contains no information regarding acceptance in full by the medical providers of amounts less than their billings and, to the contrary, contains the testimony of the victim that she anticipates having to pay additional amounts to those providers. Furthermore, there is no evidence in the appellate record of the amounts that have been paid to the medical providers, and the defendant's attorney requested a continuance of the restitution hearing to await further information on payment to be made to them.
Because there is no evidence the victim is not obligated to pay the amount billed by the medical providers, the amount billed remains an economic loss authorized as victim restitution under Penal Code section 1202.4. I therefore concur in the result of the majority opinion.