Opinion
A166544
10-31-2023
THE PEOPLE, Plaintiff and Respondent, v. TYLER CHRISTIAN ABRIL, Defendant and Appellant.
NOT TO BE PUBLISHED
San Francisco County Super. Ct. Nos. CRI19017837, SCN 233044
Markman, J. [*]
Tyler Christian Abril pleaded no contest to assault after he attacked a pedestrian who was crossing the street ahead of where Abril was driving. He appeals from the trial court's award of medical expenses as restitution to the pedestrian on the ground that the award was not supported by substantial evidence. We affirm.
BACKGROUND
A. The Incident, Charges, and Plea
The facts concerning the incident are taken from the transcript of Abril's preliminary hearing, since Abril stipulated to the factual basis for his plea of no contest to a charge of assault with force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(4).)
On November 12, 2019, the victim, S.K., was walking home on Capitol Avenue in San Francisco, holding a guitar. As he was crossing the street, he saw a car driving "really fast" toward him. S.K. waived his hand to get it to "stop and see him." The car stopped and Abril got out. Abril and S.K. argued, then S.K. began to walk away. Abril punched S.K. in the back of the head and knocked him to the ground. S.K. fell, hitting his face and also hitting his guitar as he fell. Abril punched S.K. again in the face with a closed fist. S.K.'s teeth punctured his lip and his mouth started bleeding. Abril walked back to his car, which S.K. was able to photograph. Abril got out and threatened to hurt S.K. if he called the police. Then Abril drove away.
S.K. called the police, and officers responded to the scene and photographed his injuries. In a follow-up interview some weeks later, S.K. reported that his pain on the day of the incident was a 10 out of 10. He continued to have pain in his teeth and had difficulty eating for a few weeks.
The People charged Abril with two counts of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)), and that caused great bodily injury (§ 12022.7, subd. (a)); one count of making criminal threats (§ 422); and one count of preventing or dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). On October 14, 2021, per a negotiated agreement, Abril pleaded no contest to a single count of misdemeanor assault with force likely to produce great bodily injury. The trial court dismissed all other counts. The court ordered probation for one year. Among other conditions, the court ordered Abril to pay restitution to S.K., who appeared remotely at the time of the plea via Zoom.
Undesignated statutory references are to the Penal Code.
B. The Restitution Hearing
Nearly a year after the plea, on October 5, 2022, the trial court held a restitution hearing. The trial court relied on a restitution report prepared in February 2022. The report described that S.K. had "the recurring memory of being attacked from behind, having my face and head punched and smashed against the wall and sidewalk." S.K. reported that his injuries "have caused a burning, painful, chronic nerve pain in my neck and shoulders that is with me every moment of every day since." S.K. continued to suffer "anxiety and discomfort" and saw an "odyssey of doctors . . . in an effort to solve" his condition. Still, he had not found relief and was "faced with the possibility that [he] may be living with this for the rest of [his] life," which "negatively impacted [his] mental health ...."
S.K. requested $10,967.66 in restitution for medical expenses that his insurance did not cover. He broke these expenses down by category and provided supporting documentation.
The trial court rejected many of S.K.'s requests due to a lack of sufficient support. The court did find that a total of $2,095 in restitution had adequate support. The court explained: "I've made some adjustments. With respect to the doctor's appointments, . . . I don't think the victim has sustained his burden for the full [$]5,447, there just isn't enough information. Given the date of these . . . expenses came some months after the incident, and without kind of a further explanation, we just see a lot of charges, withdrawals from his wellness account, and without more, it is hard for me to . . . make a reasoned comparison. However, . . . he does state that he suffered injuries to his neck and to his shoulders, and he has chronic nerve pain, . . . and that's been going on for a while, and that's substantiated by the-at least from the chronology report-as to the nature of the injuries that he has.... [¶] What I will do is, I will award one of the earliest dates is 6/18, where there's a withdrawal for $500. That amount indicates to me that may be to match some deductible .... I can infer that some of the medical expenses that he incurred were related, may be delayed in some way, to the incident, and so I will award the medical expenses, the $500, that was withdrawn on 6/18 of 2020."
The court declined to award amounts claimed by the victim for lab and dental work, but awarded amounts claimed for mental health therapy and acupuncture. The court explained: "With respect to the mental health therapy appointments, I looked at the invoices on that, and I've looked at the claim, and I've looked at his injuries and his statements with respect to that, and I don't think that that is unreasonable. I think it's supported, even though there was some time between when these therapy appointments took place. His statement indicates there's some ongoing trauma with respect to this. These invoices that I've looked at are based on five therapy sessions, which I do not think is excessive or unreasonable. In fact, I think it is reasonable. [¶] Same thing with the acupuncture co-pays, that's $220. That's not an excessive amount, and . . . I see the reasonable connection between that and . . . his narrative of the injuries that he suffered and what was contained in the police report."
In total, the court awarded "[$]1375 for the therapy, $500 connected to the doctor's appointments, and $220 with respect to the acupuncture co-pays, which is a total restitution in the amount of $2,095." The court entered judgment. Abril appealed.
DISCUSSION
Abril contends that the trial court's restitution award lacked substantial evidence. He further claims the court's award "raises serious due process considerations." We reject these contentions.
I. Standard of Review and Applicable Law
We review the trial court's restitution order for abuse of discretion. (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1173.) We determine whether there is any substantial evidence, contradicted or uncontradicted, to support the trial court's findings at the restitution hearing. (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).)
Victim restitution is a right under the California Constitution. (People v. Shah (Oct. 24, 2023, A162676) __ Cal.App.5th __ [p. 24], quoting Cal. Const., art. I, § 28.) "Statutes like section 1202.4 implement this constitutional mandate. Section 1202.4, subdivision (a)(1) explains, 'It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.'" (Shah, supra, __ Cal.App.5th __ [p. 25].) "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. The court shall order full restitution." (§ 1202.4, subd. (f).)
"' " '[Sentencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes.' [Citation.]" [Citation.] [¶] This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.]'" (People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) At the restitution hearing, "a prima facie case for restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss." (Millard, supra, 175 Cal.App.4th at p. 26.) The burden then shifts to the defendant to show the amount of the loss is other than that claimed by the victim. (Ibid.) "[T]he court need not order restitution in the precise amount of loss." (People v. Chappelone, supra, 183 Cal.App.4th at p. 1172.) The court must use a rational method that could reasonably be said to make the victim whole and may not make an order which is arbitrary or capricious. (Ibid.) The standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. (Millard, at p. 26.) "Documentary evidence, such as bills, receipts, . . . and similar documents" relevant to medical expenses and other losses "shall not be excluded as hearsay." (§ 1203.1d, subd. (d).)
II. Substantial Evidence Supports the Restitution Award A. Forfeiture
The People contend that Abril forfeited any argument that the restitution award was not supported by substantial evidence, including the specific challenges he raises on appeal. We disagree. At the restitution hearing, Abril's counsel specifically "object[ed] to all of [the victim's] claims" based on the lack of evidence linking the claims to the underlying assault.
B. Analysis
The trial court awarded restitution in connection with three categories of medical expenses. First, the court awarded $500 out of $5,447 claimed by the victim for "doctor appointments." This was the amount of a June 2020 withdrawal from an account to pay a medical provider. Considering the date and the amount of the $500 transaction, which the court stated, "indicates to me that may be to match some deductible," the court inferred it was related to the assault. However, the court found several other withdrawals from the same account to pay the same provider were inadequately supported.
The People made a prima facie showing on behalf of S.K. supporting the court's restitution award. (See People v. Keichler (2005) 129 Cal.App.4th 1039, 1048 [affirming victim restitution awarded based on victim's statements and recitation of medical bills in probation report]; but see People v. Harvest (2000) 84 Cal.App.4th 641, 653 ["mention" of claim in probation report without supporting documentation or testimony "cannot take the place of evidence"].) Specifically, S.K. explained in the statement described in the restitution report that he continued to suffer from pain "every day since" the assault and consulted an "odyssey of doctors" as a result, requested expenses associated with "doctor appointments," and provided documentation of the charges. The trial court reasonably inferred that the requested expenses were connected to the assault-related doctor appointments the victim described. (See In re S. S. (1995) 37 Cal.App.4th 543, 548 (S.S.) [in awarding victim restitution under the Welf. &Inst. Code, trial court "was entitled to infer that [items] referred to by the victim were in the car when appellant stole it"].)
Abril contends that the account history the court relied on gave no information about the transaction involving an unidentified treatment provided in exchange for the $500. Specific documentary detail is not required to make a prima facie showing, given the victim's statement set out in the restitution report. (See S.S., supra, 37 Cal.App.4th at p. 548, fn. 2 ["None of the cases hold that the victim must supply a . . . detailed documentation of costs and expenses"].)
Abril further urges that nothing in the record supports the court's hypothesis about a deductible, making this charge akin to those the court declined to award because there was "just not enough information in the record." On appeal, however, the trial court's decision is presumed correct. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Again, we conclude the People did make a prima facie showing that the victim incurred documented medical expenses as a result of the assault. To the extent the court could have awarded more than $500 of the claimed expenses associated with doctor appointments, this error was in Abril's favor. (See Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963 [appellants have the burden not only to show error, but resulting prejudice, or their claim of error fails].)
Finally, Abril notes that the transaction history appears to identify an individual other than the victim as the account holder. But other documents link the victim to both the apparent account holder and the medical provider identified on the transaction history. "If further details were needed, appellant could attempt to procure them, either by contacting the victim or by requesting that the probation officer do so." (S.S., supra, 37 Cal.App.4th at p. 548.) The record indicates that Abril did neither.
Second, based on the nature of the victim's injuries and his impact statement "indicat[ing] there's some ongoing trauma" from the assault, the trial court awarded claimed costs associated with five therapy sessions. As with the award for medical care, this award is supported by substantial evidence. Abril protests that there is no evidence of a causal connection between the therapy sessions and the assault, considering the sessions took place several months later. The victim's statement, however, was sufficient. S.K. reported that he continued to suffer frightening recurring memories, anxiety, and mental health issues, providing substantial evidence that the therapy sessions were connected to the incident. (See People v. Cain (2000) 82 Cal.App.4th 81, 89 [therapist's statement that services were rendered to ameliorate the negative effect of defendant's criminal conduct sufficed to support restitution award].)
Abril further contends that the victim provided invoices for only three of the five claimed sessions. While this is true, the court's award of costs associated with a further two sessions is supported by documents showing account withdrawals in the same amount as the invoiced therapy sessions. The total claimed by the victim for therapy appointments matches the cost of five sessions. The court's finding that the victim incurred these costs for therapy is supported by substantial evidence.
Third, the trial court awarded acupuncture copayments based on the victim's statement that he suffered ongoing nerve pain from his injuries. The victim's statement and supporting documentation again provided substantial evidence to support this award. Abril argues that these treatments were too removed in time from the incident and the supporting receipts do not show they were related to the assault, but again the victim's statement is enough to show that connection. And while Abril contends the receipts "do not reflect the nature of what was provided," the victim's statement explains the receipts are for "acupuncture co-pays." The court could credit this evidence. (See People v. Hove, supra, 76 Cal.App.4th at p. 1275.)
III. Due Process
Finally, Abril argues that his right to due process was violated by the trial court's order or would be violated if we affirm. He asserts that a constitutional provision protecting confidential communications in the course of crime victims' medical treatment would have prevented him from offering evidence contradicting the People's showing. (Cal. Const., art. I, § 28, subd. (b), par. 4.) Abril does not claim, however, that he had such evidence or attempted to discover it, and he did not raise this issue before the trial court. As urged by the People, he has forfeited this argument. (See People v. Bell (2019) 7 Cal.5th 70, 98, fn. 14.)
DISPOSITION
We affirm the restitution order.
We concur: Richman, Acting P.J., Miller, J.
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.