Docstoc

Filed 5710 P. v. Scott CA41 NOT

Document Sample
Filed 5710 P. v. Scott CA41 NOT Powered By Docstoc
					Filed 5/7/10 P. v. Scott CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           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

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.




                                             2
                              FACTUAL BACKGROUND2

       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
hearing.
                                             3
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.



                                              4
       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

                                              5
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

                                                6
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

                                               7
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

                                               8
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-

                                              9
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

                                             10
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.)

                                             11
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.




                                             12
                               DISPOSITION

    The order is affirmed.



                                             NARES, Acting P. J.

I CONCUR:



                O'ROURKE, J.




                                   13
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.




                                                                          McDONALD, J.




                                             2

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:8
posted:8/9/2010
language:English
pages:15