Filed 11/12/14 P. v. Warne CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F067225

                   v.                                                    (Super. Ct. No. CRF39466)

WILLIAM DEVORE WARNE,                                                             OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor
Provost, Judge.
         Law Offices of Kenneth M. Foley and Kenneth M. Foley, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity
S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Gomes, Acting P.J., Franson, J., and Peña, J.
       After the charges were reduced to misdemeanors, appellant, William Devore
Warne, pled no contest to inflicting corporal injury on a cohabitant (count I/Pen. Code,
§ 273.5, subd. (a))1 and vandalism (count II/§ 594, subd. (a)) and was placed on
probation for two years.
       On appeal, Warne contends the court erred in its award of restitution to the victim
for the costs of an emergency room visit, repairs to her truck, and an office visit to a
doctor. We affirm.
                                           FACTS
       On September 21, 2012, while at a bar in Tuolumne County, Warne got in an
argument with his girlfriend. After both of them got into her truck, Warne struck his
girlfriend on the face. He then got out of the truck and damaged the passenger’s door and
the driver’s door.
       On September 25, 2012, the district attorney filed a complaint charging Warne
with two felonies, inflicting corporal injury on a cohabitant (count I) and vandalism
(count II).
       On November 2, 2012, after the court granted the prosecutor’s motion to amend
the complaint to reduce the charges to misdemeanors, appellant pled no contest to both
counts. The court then placed Warne on two years’ probation.
       On February 22, 2013, the court held a restitution hearing.
       On March 28, 2013, the court ordered Warne to pay the victim a net restitution
amount of $7,520.59, which represented full restitution of $10,520.59 less $3,000 Warne
had already paid. The court’s restitution order included the following amounts that
Warne challenges on appeal: $4,363 for a hospital emergency room visit, $4,310.04 for
repairs to the victim’s truck, and $410 for a doctor’s bill for an office visit.

1      All further statutory references are to the Penal Code.


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                                        DISCUSSION
Legal Principles
       Section 1202.4 provides: “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.” (§ 1202.4, subd. (a)(1).)
Subject to exceptions not relevant here, “in every case in which a victim has suffered
economic loss as a result of the defendant’s conduct, the court shall require that the
defendant make restitution to the victim or victims in an amount established by court
order, based on the amount of loss claimed by the victim or victims or any other showing
to the court.” (§ 1202.4, subd. (f).)
       “In [People v.] Birkett [(1999)] 21 Cal.4th 226, the Supreme Court considered the
impact that reimbursement of losses by a victim’s own insurance carrier may have on a
defendant’s restitution obligation under former [Penal Code] section 1203.04. After an
extensive review of the legislative history behind both the constitutional and statutory
mandates for victim restitution [citation], the court held that restitution awards cannot be
split between the victim and the insurer that had partially reimbursed the victim. The
court reasoned as follows: ‘[T]he Legislature intended to require a probationary
offender, for rehabilitative and deterrent purposes, to make full restitution for all “losses”
his crime had caused, and that such reparation should go entirely to the individual or
entity the offender had directly wronged, regardless of that victim’s reimbursement from
other sources. Only the Restitution Fund was eligible to receive any part of the full
restitutionary amount otherwise due to the immediate victim. [¶] Thus, except as against
the Restitution Fund, the immediate victim was entitled to receive from the probationer
the full amount of the loss caused by the crime, regardless of whether, in the exercise of
prudence, the victim had purchased private insurance that covered some or all of the



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same losses....’ [Citation.]” (People v. Hamilton (2003) 114 Cal.App.4th 932, 940-941,
(Hamilton) italics added, fn. omitted.)
       “At a victim 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. [Citations.] ‘Once the victim has [i.e., the People
have] made a prima facie showing of his or her loss, the burden shifts to the defendant to
demonstrate that the amount of the loss is other than that claimed by the victim.
[Citations.]’ [Citation.]
       “‘The standard of review of a restitution order is abuse of discretion. “A victim’s
restitution right is to be broadly and liberally construed.” [Citation.] “‘Where there is a
factual and rational basis for the amount of restitution ordered by the trial court, no abuse
of discretion will be found by the reviewing court.”’ [Citations.]’ [Citation.]” (People v.
Millard (2009) 175 Cal.App.4th 7, 26.)
Restitution for the Bill for the Emergency Room Expenses
       Warne contends the victim is not entitled to restitution of $4,363 for the
emergency room expenses she incurred because her insurance company paid this bill
directly to the hospital and the insurance company is an indirect victim in this case. He
further contends that the $4,363 the insurance paid represents the gross amount due, not
the lower amount for charges that often are negotiated and paid by insurance companies
and that requiring him to pay this gross amount is contrary to the Supreme Court’s
decision in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 (Howell).
Warne is wrong.
       As noted above, a victim is entitled to receive from the probationer “the full
amount of the loss caused by the crime, regardless of whether, in the exercise of
prudence, the victim had purchased private insurance that covered some or all of the
same losses.” (Hamilton, supra, 114 Cal.App.4th at p. 941, italics added.) Thus, there is

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no merit to Warne’s claim that the victim here was not entitled to the restitution of $4,363
for the expenses she incurred for her emergency room visit because her insurance
company paid the bill directly to the hospital.
       The collateral source rule “dictates that an injured plaintiff may recover from the
tortfeasor money an insurer has paid to medical providers on his or her behalf.” (Howell,
supra, 52 Cal.4th at p. 551.) In Howell, the Supreme Court held that a “plaintiff may not
recover as past medical damages the amount of a negotiated rate differential,” i.e., the
amount billed for medical services that exceeds the amount accepted in full payment. (Id.
at p. 565.)
       Warne contends that the logic of Howell is clearly applicable to criminal
restitution orders and that the court’s order requiring payment of the emergency room
expenses without taking into account how much the insurance company actually paid is
contrary to Howell.
       However, “[e]rror will never be presumed and must be affirmatively shown.
Appellant bears the burden to provide a record on appeal which affirmatively shows that
there was an error below and any uncertainty in the record must be resolved against
appellant. [Citations.]” (People v. $17,522.08 United States Currency (2006) 142
Cal.App.4th 1076, 1084.)
       Warne did not provide a copy of the reporter’s transcript of the restitution hearing
which might have shed some light on whether the $4,363 the court ordered Warne to pay
as restitution for the victim’s emergency room visit included an amount negotiated as a
rate differential. Nor has Warne cited any evidence in the record that supports his claim
that the $4,363 he was ordered to pay included such an amount. Therefore, even
assuming Howell applies to criminal restitution proceedings, since Warne has not met his
burden of affirmatively showing error, we summarily reject his contention that the
restitution amount of $4,363 includes a negotiated rate differential.

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The Truck Repair Expense
       Warne contends the court abused its discretion in ordering him to reimburse the
insurance company $4,310.04 for the cost of the repairs to the victim’s truck because the
insurance company was not a direct victim of his offenses. We summarily reject this
contention because the court ordered Warne to pay restitution for this expense to the
victim, not the insurance company.
The Doctor’s Office Visit Expense
       Warne appears to contend that the prosecutor failed to establish a prima facie case
of an economic loss of $410 for the doctor’s bill the victim received for an office visit
because: 1) a doctor’s bill in the victim’s name does not confirm an economic loss;
2) the victim never submitted the bill to her insurance company as directed by the court at
the restitution hearing; and 3) there is no indication in the record that the doctor is
seeking collection directly from the victim. We summarily reject this contention because
Warne has not advanced any argument or authority in support of it. (People v. Ham
(1970) 7 Cal.App.3d 768, 783, [“Where a point is merely asserted by counsel without any
argument of or authority for its proposition, it is deemed to be without foundation and
requires no discussion”].) Nevertheless, we note that in our view, the victim’s receipt of
a doctor’s bill for $410, which Warne concedes occurred, is sufficient to establish a prima
facie showing that the victim suffered an economic loss in that amount.2
                                       DISPOSITION
       The judgment is affirmed.




2      To the extent Warne challenges the $410 doctor bill because the prosecutor did not
show whether this amount included a negotiated rate differential, we reject it for the same
reasons that we rejected this claim with respect to the emergency room visit expenses the
victim incurred.


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