The People v. Hove
| Decision Date | 14 December 1999 |
| Citation | 91 Cal.Rptr.2d 128,76 Cal.App.4th 1266 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 4 Dist. 1999) THE PEOPLE, Plaintiff and Respondent, v. SCOTT ANDREW HOVE,Defendant and Appellant. E022305 Filed |
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Affirmed.
(Super.Ct.No. FCH 02081) O P I N I O N
James R. Mc Grath, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle M. Boustany, Supervising Deputy Attorney General, and Marilyn L. George, Deputy Attorney General, for Plaintiff and Respondent.
CERTIFIED FOR PARTIAL PUBLICATION*
In this case, we apply the principles stated by our Supreme Court in People v. Birkett (1999) 21 Cal.4th 226 and conclude that the trial court did not err in ordering victim restitution in the full amount of the economic loss (in this case medical expenses) caused by defendant's criminal conduct, even though the victim had no actual economic losses because the victim's medical expenses were paid by Medicare and/or Medi-Cal benefits.
On May 18, 1996, defendant Hove was driving his car on the wrong side of the road in the Chino Hills area when he struck Guadalupe Prieto. Mr. Prieto, then age 65, was transported to Loma Linda University Medical Center by helicopter. He was treated for substantial injuries and, at the time of the probation report, he was totally incapacitated in a vegetative state. His prognosis is poor and he will always require long-term care in a subacute nursing facility.2
Defendant was given various field sobriety tests at the scene of the accident. Those tests indicated that he was under the influence of a controlled substance. Defendant subsequently gave a blood sample which tested positive for methamphetamine. He was arrested and charged with driving a motor vehicle while under the influence of a controlled substance, in violation of Vehicle Code section 23153, subdivision (a), and proximately causing injury to Mr. Prieto.
Four prior felony convictions for residential burglary were alleged under the Three Strikes Law. (Pen. Code, 667, subds. (b) through (i).) Defendant subsequently entered into a plea bargain in which he pled guilty to the crime charged and admitted one prior strike conviction. The form he signed also states his understanding that the maximum punishment he could receive includes: "A FINE up to $10,000.00 and actual Restitution or a fine of up to $10,000 plus a Restitution fine up to $10,000."
The trial court accepted the plea and sentenced defendant to four years in prison. It imposed two restitution fines of $500 each under Penal Code sections 1202.45 and 1202.4, respectively. It also set a hearing to determine the amount of actual restitution. Defendant waived his right to be present at that hearing.
At the restitution hearing, the court received a memorandum from the probation officer which detailed the costs which had been charged to Mr. Prieto's Medi-Cal claims file. The memorandum showed that the total amount of Medi-Cal claims billed through December 11, 1997, was $286,565.92. The victim's daughter told the probation officer that there was no monetary loss to the family because all of the medical bills were paid by Medicare and Medi-Cal. However, the trial court ordered victim restitution of $286,565.92.
Defendant appeals the restitution order, contending (1) the order for actual restitution has no statutory basis because the victim did not suffer any economic loss; (2) the restitution order is not supported by substantial evidence; (3) defendant's right to be present at the restitution hearing was violated; and (4) the restitution order violates the plea agreement.3
California Constitution, article I, section 28, subsection (b) states:
Implementing legislation was passed and, at the time of the crime, former Penal Code section 1202.4 was effective.4 (Stats. 1995, ch. 313.) That section provided, in relevant part: (Stats. 1995, ch. 313, 5, pp. 1536-1537, emphasis added.)
In Birkett, our Supreme Court considered "whether the 1994 laws governing mandatory restitution as a condition of adult probation gave insurers a right to restitution insofar as they had reimbursed their insureds for crime-related losses, and . . . if not, whether the trial courts nonetheless had discretion to allocate mandatory probationary restitution awards between insurers and insureds to reflect such reimbursements." (People v. Birkett, supra, 21 Cal.4th 226, 228.)
The court answered both questions negatively, finding that the version of Penal Code section 1203.04 in effect in November 1994, the time of defendant's crimes, did not give insurers a right to restitution of any amounts paid to reimburse the crime-related losses of their policyholders. (People v. Birkett, supra, 21 Cal.4th 226, 229.) Nor did the statute permit a trial court to order restitution to insurers because the statute "gave 'direct victim[s]' a right to restitution based on the full amount of their losses, without regard to full or partial recoupment from other sources . . . ." (Id., at p. 229, original italics.)
Birkett is not direct authority here because (1) it concerns a defendant who was granted probation; (2) it was decided under a different restitution statute (former Pen. Code, 1203.04); and (3) it deals with the rights of a private insurer.
Nevertheless, we find the reasoning of the case dispositive because our Supreme Court held that the 1994 statutory scheme gave direct victims a right to restitution based on the full amount of their losses, without regard to full or partial recoupments from other sources except the Restitution Fund. (People v. Birkett, supra, 21 Cal.4th 226, 228-229.) Its holding that the 1994 statutory scheme created an "inescapable inference" that the right to restitution did not extend to insurance companies is consistent with the 1995 amendments, quoted above, which expressly provided that the amount of the restitution should not be affected by the existence of indemnification or subrogation rights. (Id., at p. 233.)
Birkett also reviews the statutory history of mandatory restitution in nonprobationary cases. (People v. Birkett, supra, 21 Cal.4th 226, 235-237.) In particular, it discusses People v. Broussard (1993) 5 Cal.4th 1067, which held that the term "victim" as used in former Penal Code section 13967 was not limited to persons who were killed or injured, but also included persons who had only suffered an economic loss. (Birkett, supra, at pp. 235-236, 238-239.)
The court also discusses People v. Crow (1993) 6 Cal.4th 952, in which a county welfare agency was held to be a direct victim of fraud. The Crow court spoke in terms of "'. . . loss flowing from a defendant's criminal conduct . . . ,'" saying "'. . . the 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." [Citation.] . . .'" (Id., at p. 957.)
Similarly, in Birkett, after holding that an insurance company did not become a direct victim of crime entitled to restitution, our Supreme Court considered whether the trial court nevertheless had the discretion to allocate restitution between the victim and an insurance company. It held that the trial court did not have such discretion because the 1994 statutory scheme gave the victim the right to recovery of the full amount of his losses, regardless of insurance payments. (People v. Birkett, supra, 21 Cal.4th 226, 228-229, 245-246.) It found that the legislation "made clear that . . . the immediate victim of the probationer's crime was entitled to receive restitution 'directly' from the...
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