Filed 2/25/15 P. v. Ranger CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B254763

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA083271)
         v.

MICHAEL SHAUN RANGER,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County. Teri
Schwartz, Judge. Reversed and remanded.


         Jean Ballantine, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Robert
M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Michael Shaun Ranger (defendant) appeals from an order
for direct victim restitution. He contends that the order was not supported by substantial
evidence and that the trial court applied the incorrect measure of compensation. In
addition, defendant contends that counsel retained for the restitution hearing provided
ineffective assistance, and that the restitution amount should have been determined by a
jury. We agree that the order must be reversed and the matter remanded for a new
hearing, however, we reject defendant’s claim that he has a right to a jury determination
and we find defendant’s claim of ineffective assistance of counsel to be moot.
                                      BACKGROUND
       In 2012, a jury convicted defendant of assault with a deadly weapon and found
that defendant personally inflicted great bodily injury upon the victim, which caused the
victim to become comatose due to brain injury and to suffer paralysis. After the trial
court sentenced defendant to eight years in prison and ordered defendant to pay victim
restitution, we affirmed the judgment.1
       After several continuances and the substitution of defense counsel, the restitution
hearing was held on September 24, 2013.2 The People did not file a written motion, the
victim did not testify, and the only evidence presented was a bill from Huntington
Hospital for $176,254.46 and an explanation of benefits from Health Net Insurance
Company. Also included were spreadsheets summarizing hospital, physician, and
prescription charges. However, there was no testimony or other evidence indicating
whether the hospital accepted the insurance payment as payment in full or how much the
victim actually paid out of pocket.
       The trial court heard the argument of counsel. The prosecutor represented that the
insurance company had paid a portion of the hospital bill, and that $176,254.46 was not
unreasonable for a 30-day hospital stay. Defense counsel argued that charges that were


1      (See People v. Ranger (Oct. 9, 2013, B242414) [nonpub. opn.].)

2     In a letter to the court, defendant waived his appearance at the hearing and
expressly requested that he not be transported from prison.

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unrelated to that hospital stay or the victim’s injuries were included in the material before
the court. The matter was then submitted and the trial court entered a restitution order for
$176,254.46.
       Defendant failed to file a timely notice of appeal, and on March 7, 2014, filed a
petition for writ of habeas corpus. We treated the petition as a request to file a belated
notice of appeal and granted the request.
                                        DISCUSSION
I. Restitution order
       Defendant contends that the trial court erroneously awarded restitution in the total
amount billed by the victim’s medical provider, and that the award should have been
limited to $40,600, the amount allowed by the victim’s insurance company as shown in
the insurance company’s explanation of benefits. Respondent agrees that the proper
measure of compensation is not necessarily the entire amount billed by Huntington
Hospital, but disagrees with the measure suggested by defendant and requests a remand
for further evidence. We agree with respondent.
       As relevant here, Penal Code section 1202.4 provides that “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 . . . in an amount established by
court order, based on the amount of loss claimed by the victim . . . or any other showing
to the court. . . . The court shall order full restitution unless it finds compelling and
extraordinary reasons for not doing so and states them on the record.” (Pen. Code,
§ 1202.4, subd. (f); see Cal. Const., art. I, § 28(b).)
       Although the trial court is vested with discretion in calculating the victim’s
economic loss, the “court must demonstrate a rational basis for its award, and ensure that
the record is sufficient to permit meaningful review. The burden is on the party seeking
restitution to provide an adequate factual basis for the claim.” (People v. Giordano
(2007) 42 Cal.4th 644, 664.) “Once the prosecution has made a prima facie showing of
the victim’s loss, ‘the burden shifts to the defendant to demonstrate that the amount of the
loss is other than that claimed by the victim.’ [Citation.] [¶] On appeal, we review a


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restitution award for abuse of discretion. [Citations.]” (People v. Jessee (2013) 222
Cal.App.4th 501, 506-507.) A trial court abuses its discretion when the order rests upon
a demonstrable error of law or its factual basis is unsupported by substantial evidence.
(People v. Millard (2009) 175 Cal.App.4th 7, 26.)
       A restitution order must fully compensate the victim without regard to potential
reimbursement by the victim’s insurance company. (People v. Duong (2010) 180
Cal.App.4th 1533, 1537-1538 (Duong); see People v. Birkett (1999) 21 Cal.4th 226,
246.) When treatment of the victim’s injuries is covered by health insurance, the measure
of compensation is not simply the amount billed by the medical providers, but the
expenses actually paid by the victim or the insurance company on the victim’s behalf and
accepted by the medical providers as payment in full. (Duong, supra, at pp. 1538-1539;
People v. Bergin (2008) 167 Cal.App.4th 1166, 1170-1171.)
       Defendant suggests that we modify the restitution order downward to $40,600. He
contends that the explanation of benefits can be construed as demonstrating that the
hospital accepted $40,600, the amount allowed by the insurance company, as payment in
full plus the victim’s out-of-pocket expenses. Defendant points out that the sum of the
amount “previously paid by Health Net” ($38,640.02), plus the victim’s coinsurance
($1,816.69) and copay ($250) equals the amount allowed; and further, that the
explanation of benefits states that the sum of the coinsurance and co-pay ($2,066.69) is
the total amount the “provider may bill [the insured].”
       In general, an explanation of benefits provides substantial evidence of the amounts
billed by the medical providers and the amounts the insurance company will pay under
the victim’s policy, but does not provide sufficient evidence that such amounts were
accepted as payment in full by the medical providers. (Duong, supra, 180 Cal.App.4th at
pp. 1538-1539.) Such is the case here. Defendant’s construction of the explanation of
benefits would require that we make certain assumptions about the terms of the hospital’s
contract with the insurance company, the actual amount the medical providers accepted
as payment in full, and the amounts actually paid or owing by the victim. However, we
do not reweigh or reinterpret the evidence; our task is solely to determine whether there


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was a factual basis for the trial court’s discretion, supported by substantial evidence and
not resting on a demonstrable error of law. (People v. Millard, supra, 175 Cal.App.4th at
p. 26.) The trial court ordered the full amount of the hospital bill based upon an
erroneous measure of compensation and with insufficient admissible evidence to properly
determine how much the medical providers accepted as payment in full or whether the
victim remains liable for any part of that amount. We thus conclude the order must be
vacated and a new restitution hearing must be held.
II. Assistance of counsel
       Defendant contends that the restitution order must be reversed and the matter
remanded for a new restitution hearing on the ground that his counsel rendered
ineffective assistance, resulting in an erroneous order. As we have already determined
that the order must be reversed, we need not reach this contention. (C.f. People v. Reyes
(1997) 52 Cal.App.4th 975, 986 & fn. 8 [reversal of judgment moots ineffective
assistance claim].)
III. Jury trial
       Citing Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey
(2000) 530 U.S. 466 (Apprendi), which require a jury determination of any facts which
might increase criminal punishment beyond the prescribed statutory maximum, defendant
contends that victim restitution is a form of punishment which may not be imposed
absent a jury determination. Defendant also relies on Southern Union Co. v. United
States (2012) 567 U.S. __ [132 S.Ct. 2344] (Southern Union), which held that the
Apprendi rule applies to the imposition of criminal fines.
       As defendant acknowledges, numerous courts of appeal have held that as direct
victim restitution is not punishment, there is no right to a jury in restitution hearings, and
that such hearings require fewer due process protections than civil or criminal trials.
(See, e.g., People v. Wasbotten (2014) 225 Cal.App.4th 306, 308-309; People v. Pangan
(2013) 213 Cal.App.4th 574, 585-586; People v. Smith (2011) 198 Cal.App.4th 415, 433;
People v. Chappelone (2010) 183 Cal.App.4th 1159, 1183-1184; People v. Millard,
supra, 175 Cal.App.4th at p. 35.) Further, courts have held that orders for direct victim


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restitution are not criminal fines, and have thus rejected efforts to apply the rule of
Southern Union to extend the right of a jury trial to the imposition of criminal fines.
(E.g., People v. Wasbotten, supra, at pp. 306, 308-309; People v. Pangan, supra, at pp.
585-586.) We also note that those federal circuit courts that have considered the issue
have also held that Southern Union does not apply to direct victim restitution. (United
States v. Rosbottom (5th Cir. 2014) 763 F.3d 408, 420, cert. den. (2015) __ U.S. __ [2015
U.S. LEXIS 166, 2015 U.S. LEXIS 577]; United States v. Green (9th Cir. 2013) 722 F.3d
1146, 1150-1151, cert. den. (2013) __ U.S. __ [134 S.Ct. 658, 187 L.Ed.2d 422, 2013
U.S. LEXIS 8201]; United States v. Day (4th Cir. 2012) 700 F.3d 713, 732, cert. den.
(2013) __ U.S. __ [2013 U.S. LEXIS 3384]; United States v. Wolfe (7th Cir. 2012) 701
F.3d 1206, 1216-1217, cert. den. (2013) __ U.S. __ [2013 U.S. LEXIS 4416].)
       Although the United States Supreme Court has not reached the issue of whether
Apprendi applies to direct victim restitution, defendant suggests that Southern Union and
some of the court’s comments in other cases indicate that it is prepared to do so. (E.g.,
Paroline v. United States (2014) __ U.S. __ [134 S.Ct. 1710, 1726] [“primary goal of
restitution is remedial or compensatory . . . but it also serves punitive purposes”];
Pasquantino v. United States (2005) 544 U.S. 349, 365 [“purpose of awarding restitution
in this action is not to collect a foreign tax, but to mete out appropriate criminal
punishment”]; Kelly v. Robinson (1986) 479 U.S. 36, 49, fn. 10 (Kelly) [restitution
imposed as a condition of probation can be “an effective rehabilitative penalty”].)
       We disagree and find persuasive the reasoning of the above-cited state and federal
cases which have refused to extend Southern Union and Apprendi to direct victim
restitution. Defendant will thus not have a jury trial on remand.




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                                     DISPOSITION
      The restitution order is vacated and the matter is remanded with directions to
conduct a new restitution hearing consistent with the views expressed in this opinion.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                ____________________________, J.
                                                CHAVEZ

We concur:



__________________________, Acting P. J.
ASHMANN-GERST



__________________________, J.
HOFFSTADT




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