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In re Eric S.

April 23, 2010


(San Francisco County Super. Ct. No. JW08-6067). Trial judge: Hon. Newton J. Lam.

The opinion of the court was delivered by: Needham, J.


Welfare and Institutions Code section 730.6 requires a juvenile ward to pay victim restitution for economic losses incurred as a result of the ward's criminal conduct. In People v. Duong (2010) 180 Cal.App.4th 1533 (Duong), the court held that victim restitution ordered against adult offenders under Penal Code section 1202.4 may include amounts billed for medical services provided by a health maintenance organization (HMO), even when the victim is an HMO member not required to pay for those medical services. We conclude the reasoning in Duong applies equally to direct victim restitution ordered in wardship cases under Welfare and Institutions Code section 730.6. We affirm the order requiring appellant Eric S. to pay direct victim restitution that included the cost of medical treatment the victim received as a member of Kaiser California North (Kaiser), although we modify that portion of the award to the amount of Kaiser's lien rather than the full cost of the services.


The underlying facts of the crime in this case are not particularly relevant to the issues in this appeal. Suffice it to say that 17-year-old appellant and two teenage companions attacked the 44-year-old victim, during which time appellant hit the victim in the head with a two by four. As a result of the attack, the victim suffered serious injuries including a gash in his head requiring seven staples, a fractured cheekbone and swelling to the face, a contusion on his right forearm, a sprained knee and torn ligaments, a black eye, and severe swelling in the forearm and knee area. He was a member of Kaiser and received extensive medical treatment at a Kaiser facility.

Appellant was declared a ward of the juvenile court after he admitted a felony count of assault by means of force likely to cause great bodily injury. (Welf. & Inst. Code, § 602; Pen. Code, § 245, subd. (a)(1).) He was ultimately released on home probation subject to various conditions, including an order that he pay direct victim restitution. A restitution hearing was held at which the district attorney asked the court to include the cost of the victim's medical treatment at Kaiser. Appellant argued that restitution should be limited to the victim's out-of-pocket expenses. Appellant reasoned that because the victim was a member of the Kaiser HMO and would not be required to pay for the medical services he received there, restitution for those expenses was not required to make the victim whole.

In support of the request that the restitution order include the expenses from Kaiser, the district attorney submitted documentation from Kaiser's collection agency, an entity called "Healthcare Recoveries." A representative of Healthcare Recoveries had written to the district attorney referencing the victim as "Our Insured/Member" and indicating that his health plan was "Kaiser California North." The body of the letter stated: "Attached is an updated Consolidated Statement of Benefits provided by the above-referenced Health Plan to date. It is our understanding that all of these benefits are related to the date of injury shown. [¶] The statement may contain capitated charges. These providers receive a set dollar amount determined by a per member/per month calculation to deliver medical services to a specified group of people. [¶] At settlement, Kaiser will accept a 20% reduction on all capitated charges with dates of service after April 1, 2001 unless a compromise is negotiated based on other factors. Only Kaiser facility charges are subject to this reduction. . . . An additional reduction for attorney fees will also be allowed if the member is represented. With the 20% reduction for capitated charges, the lien amount associated with the attached Consolidated Statement of Benefits is $32,249.48. . . ."

Two documents entitled "Consolidated Statement of Benefits" were attached to the letter from Healthcare Recoveries itemizing the medical services rendered to the victim as a Kaiser member. The statements were comprised of four columns listing the "Date of Service," "Procedure Code," "Billed Am[oun]t" and "Provided Benefits" for each service. The "Billed Am[oun]t" was the same as the "Provided Benefit" in all of the entries. One of the statements reflected "Total Billed Charges," "Total Benefits Provided" and a "Balance Due," each in the amount of $40,311.85. The second statement reflected "Total Billed Charges," "Total Benefits Provided," and "Balance Due," each in the amount of $8,308.05.

Based on this documentation, the court ordered that appellant pay direct victim restitution in the amount of $51,270.06, which included $48,619.90 ($40,311.85 $8,308.05) for the cost of services at Kaiser and $2650.16 for additional out-of-pocket expenses incurred by the victim. This appeal follows.


Appellant contends the restitution order must be reduced by $48,619.90, the amount attributable to the services rendered by Kaiser. He argues that direct restitution is limited to economic losses actually incurred by the victim and should not include medical expenses the victim is not obligated to pay for personally. Because the relevant facts are essentially undisputed and our primary concern is the interpretation of the restitution statute, we review the claim de novo. (See In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016 (Anthony M.); In re K.F. (2009) 173 Cal.App.4th 655, 661 (K.F.).)

Welfare and Institutions Code section 730.6, subdivision (a) provides, "It is the intent of the Legislature that a victim of conduct for which a minor is found to be a person described in Section 602 who incurs any economic loss as a result of the minor's conduct shall receive restitution directly from that minor." Under subdivision (h) of that same section, direct victim restitution "shall be imposed in the amount of the losses, as determined. . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. A minor's inability to pay shall not be considered a compelling or extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of the restitution order. A restitution order . . . shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor's conduct for which the minor was found to be a person described in Section 602, including all of the following: [¶] . . . . [¶] (2) Medical expenses." (Welf. & Inst. Code, § 730.6, subd. (h).)

The purpose of a victim restitution order in a juvenile case is threefold: "to rehabilitate the defendant, deter future delinquent behavior, and make the victim whole by compensating him for his economic losses." (Anthony M., supra, 156 Cal.App.4th at p. 1017.) To achieve these purposes, the restitution order must be in an amount sufficient to fully compensate the victim "without regard to potential reimbursement from a third party insurer." (Ibid.; In re Brittany L. (2002) 99 Cal.App.4th 1381, 1387 (Brittany L.); see also People v. Birkett (1999) 21 Cal.4th 226, 246.) Similarly, it has been held that a victim whose medical treatment was covered by Medicare/Medi-Cal is entitled to restitution for the total costs that had been charged to his Medi-Cal file. (People v. Hove (1999) 76 Cal.App.4th 1266, 1272-1273 (Hove).) "[T]he fortuity that the victim here was over age 65, and thus covered by Medicare, should not shield defendant from a restitution order which requires him to pay the full amount of the losses caused by his crime. . . . [¶] We therefore find the restitution order proper, even though the victim had no direct economic losses, and even though the victim could conceivably profit from recovering restitution if defendant complies with the restitution order and if Medicare and/or Medi-Cal does not pursue reimbursement." (Ibid.; see also Anthony M., supra, 156 Cal.App.4th at pp. 1015-1019 [victim restitution properly ordered for amount of medical expenses that were paid by Medi-Cal].)

In this case, the victim was a member of Kaiser California North. Although the record is not explicit on this point, it is well-known that Kaiser is an HMO "providing medical services to its members rather than a medical service provider with a conventional creditor-debtor relationship to its patients." (K.F., supra, 173 Cal.App.4th at pp. 663-664.) Assuming the victim was not obligated to pay Kaiser for any amount above his membership fee in the HMO, charges were nonetheless incurred on his behalf as a result of appellant's criminal conduct. The fortuity that the victim had purchased membership in an HMO, like the fortuity that a victim has purchased third party insurance (Brittany L., supra, 99 Cal.App.4th at p. 1387), or the ...

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