COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 20, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
THOMAS EDWARD BROWN, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed. (Super. Ct. No. SCD200806)
The opinion of the court was delivered by: McDONALD, J.
P. v. Brown 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Thomas Edward Brown pleaded guilty to one count of misdemeanor workers' compensation fraud. Brown admitted to unlawfully making knowingly fraudulent statements to obtain workers' compensation benefits in violation of Insurance Code section 1871.4, subdivision (a)(1). The court placed him on three years' probation.
On January 28, 2010, the court held a victim restitution hearing and thereafter ordered Brown to pay the victim, Zenith Insurance Company (Zenith), $151,612.20 in reimbursement for its workers' compensation expenditures for his medical expenses and disability payments purportedly made as a result of his fraudulent statements. Brown appeals, claiming the restitution amount should be reduced by the amounts Zenith was obligated to pay for his work-related injury that was unrelated to his fraudulent statements.
On September 26, 2001, while employed for the Ramada Plaza Hotel in San Diego, Brown filed a workers' compensation claim for injuries allegedly sustained from a slip and fall that occurred in the kitchen while at work on September 21, 2001. Brown claimed he slipped on liquid on the floor and sustained injuries to his forearms, ribs, and head. Brown was terminated from employment for unrelated reasons soon thereafter.
On November 7, 2001, an orthopedic surgeon examined Brown. He told the doctor he sustained an injury to his left knee during a work-related accident on September 21, 2001. Brown also told the doctor he had no pre-existing injuries to that knee. In November 2001, Zenith authorized and paid for Brown's arthroscopic surgery to his left knee. Zenith also paid for Brown's workers' compensation disability, and other fees.
In October 2003, Zenith was notified that Brown had a pre-existing injury to his left knee. Brown had filed an earlier workers' compensation claim with a different insurance carrier in 1998. Brown also saw a doctor relating to pain in his left knee in February 2000. The doctor notified Brown that he had a tear to his meniscus, and recommended surgery. Had Brown disclosed his earlier knee injury, the Zenith workers' compensation claim would have been apportioned based on the prior injury. Based on the above facts, the People in 2007 charged Brown with a violation of Insurance Code section 1871.4, subdivision (a)(1).
I LEGAL STANDARDS
People v. Prosser (2007) 157 Cal.App.4th 682, 691 holds that "[o]nce the victim has made a prima facie showing of his or her [economic] loss [ incurred as a result of the defendant's criminal acts], the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim." The defendant has the burden of rebutting the victim's statement of losses. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.)
Brown asserts that the court abused its discretion when it failed to offset the restitution award by that portion of expenses attributable to his alleged claim of a September 21, 2001, knee injury. The court stated it "is not required to go into some form of analysis of whether expenses are appropriately paid due to one or another injury, as the defendant risks the consequences and burden of paying restitution when he accepts responsibility for his criminal conduct by entering a guilty plea on the record." Brown contends the court's rationale is contrary to the holding in People v. Giordano (2007) 42 Cal.4th 644, in which a court was required to perform "complicated calculations" before entering a victim restitution order. According to Brown, Zenith "never presented any evidence" placing Brown's current workers' compensation claim in doubt. Instead, the restitution order was based on evidence of misrepresentation by Brown to several doctors and a deposition statement that he had never suffered a prior left knee injury when in fact he had. Consequently, Brown contends providing Zenith with the ordered restitution amount results in a windfall to Zenith by not requiring it to bear the expense of his September 21, 2001, injury.
The defendant is entitled to a hearing to challenge the amount of restitution awarded. (Pen. Code, § 1202.4, subd. (f)(1).) The trial court has broad discretion in choosing how to calculate the amount of restitution but the method must be rationally designed to determine the victim's economic loss. (People v. Giordano, supra, 42 Cal.4th at pp. 663-664.) We review the award of victim restitution for abuse of discretion. (Id. at p. 663.) The trial court abuses its discretion if its restitution order is arbitrary or capricious (People v. Akins (2005) 128 Cal.App.4th 1376, 1382) or based on a demonstrable error of law (People v. Jennings (2005) 128 Cal.App.4th 42, 49). However, when there is a factual and rational basis for the amount of restitution ordered, there is no abuse of discretion. (People v. Prosser, supra, 157 Cal.App.4th at p. 686.) If the circumstances reasonably justify the court's findings, we may not overturn the order on grounds the circumstances might support a contrary finding. (Id. at pp. 686-687.) We do not reweigh or reinterpret the evidence but simply determine " 'whether there is sufficient evidence to support the inference drawn by the trier of fact.' " (Id. at p. 687.)
II AMOUNT OF RESTITUTION
Brown contends the court abused its discretion by imposing a restitution award against him that does not reflect the benefits to which he is entitled for his September 21, 2001, injury. Brown asserts that "[i]n calculating the restitution award, the trial court refused to take the present knee injury into consideration and offset the amount of the restitution award by the present knee injury." Brown asserts that, as a result, Zenith received a windfall.
Penal Code section 1202.4, subdivision (f), authorizes victim restitution and provides: "in every case in which a victim has suffered economic loss as a result of the defendant's conduct," the trial court must order the defendant to make "full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." The court shall base its order for victim restitution "on the amount of loss claimed by the victim or victims or any other showing to the court." (Ibid.) The order must "fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct" (Pen. Code, § 1202.4, subd. (f)(3)); but a restitution order is not intended to provide a victim with a windfall and it must be limited to economic losses. (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017.)
To have the restitution offset sought by Brown, there must be evidence that a work-related injury occurred on September 21, 2001, for which workers' compensation benefits were payable to Brown by Zenith. The amount of those benefits would not be the result of the criminal offense to which Brown pleaded guilty. Here, the record does not contain evidence to support Brown's allegation that the trial court abused its discretion in determining the restitution amount without considering an offset because of the September 21, 2001, injury. The court found that Brown did not refute the prima facie case that no evidence exists to support this contention.
Brown contends this court should reverse the trial court's order so he can present evidence of the workers' compensation benefits to which he is entitled because of his September 21, 2001, knee injury. Brown argues that had he not misled the doctors as to his pre-existing left knee injury, he would still have been entitled to relief. In his reply brief, Brown argues the People's restitution claims are not supported by the record. However, he did not testify or call a witness at the restitution hearing to support these allegations. The People presented a prima facie case for the court to calculate the restitution amount. After the People did so, it was incumbent upon Brown to rebut the amount of restitution. Brown did not provide any evidence he suffered a knee injury that would have entitled him to any workers' compensation benefits from Zenith.
The court did not find and we cannot conclude that a work-related injury occurred on September 21, 2001. A mere possibility that Brown received an injury on September 21, 2001, is insufficient, and there is no evidence Brown is entitled to any benefits for this alleged knee injury. With the evidence presented to us, we conclude there is a rational and factual basis for the amount of restitution ordered. In determining the restitution amount, we are not in a position to reweigh the evidence, especially when there is no evidence presented to us contrary to the award. As a result, we find that the restitution amount would not provide a windfall to Zenith.
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J. HALLER, J.
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