Filed 5/7/10 P. v. Scott CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
THE PEOPLE, D055333
Plaintiff and Respondent,
v. (Super. Ct. No. SCN 244158)
PETER DIXON SCOTT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David G.
Brown, Judge. Affirmed.
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,1 §§ 23153, subd. (b), 17,
subd. (b)(4)). The court suspended imposition of sentence for a period of five years and
granted Scott summary probation.
1 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
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
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
2 The facts are primarily taken from the transcript of the July 2008 preliminary
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.
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.
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
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,
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.)
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.3 (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.)
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
3 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.)
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.
The order is affirmed.
NARES, Acting P. 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