IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sutter
March 14, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ARMANDO GUADALUPE ROJO ET AL., DEFENDANTS AND APPELLANTS.
Super. Ct. No. CRF082435
The opinion of the court was delivered by: Hull ,j.
P. v. Rojo CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Armando Guadalupe Rojo pleaded no contest to voluntary manslaughter (Pen. Code, § 192, subd. (a); statutory references that follow are to the Penal Code), assault with a firearm (§ 245, subd. (a)(2)), and admitted gang (§ 186.22, subd. (b)(1)(c)) and personal use of a firearm allegation (§ 12022.5, subd. (a)(1)).
Defendant David Guadalupe Rojo pleaded no contest to two counts of attempted murder (§§ 664/187), and to a single count each of voluntary manslaughter (§ 192, subd. (a)), and carrying a concealed, loaded firearm in a vehicle (§ 12031, subd. (a)(1)). Defendant also admitted street gang and personal use of a firearm allegation (§§ 12022.5, subd. (a)(1), 186.22, subd. (b)(1)(C)).
The court imposed a stipulated term of 32 years on Armando Rojo, and a stipulated term of 36 years and four months on David Rojo. The court ordered both defendants to pay $12,608.95 in victim restitution.
On appeal, the defendants argue the award of victim restitution was excessive. We shall modify the restitution award and affirm the judgments as modified.
On September 1, 2008, Francisco Prior was sitting in the front passenger seat of a van driving down Bridge Street in Yuba City. A Honda Civic driven by defendant Armando Rojo pulled up alongside the van. Defendant David Rojo, a passenger in the Civic, began shooting at the van. Francisco Prior died from multiple gunshot wounds as a result of the attack. Two other people were in the van when David Rojo shot at it.
The Probation Department reported that Prior's family was entitled to victim restitution of $7,796.50 in economic damages related to lost wages and funeral expenses. It also determined the family was entitled to restitution for medical expenses as follows: (1) $2,663.41 for medical expenses paid by Medi-Cal for Prior's treatment, consisting of $1,185.75 paid to the hospital, $121.66 to the ambulance service, and $1,356 to the UC Davis School of Medicine Billing Professional Group (the hospital submitted a $22,386.30 bill and UC Davis a $84,849 bill, but UC Davis wrote off the portion of the bill not paid by Medi-Cal); (2) the entire $1,001 bill from Sutter Buttes Imaging (SBI), even though Medi-Cal paid $790, since SBI asked for the total bill so they could reimburse Medi-Cal on their own; and (3) $1,148.04, the remaining balance on the $1,269.70 bill from the ambulance company after Medi-Cal paid $121.66. The total restitution recommended was $12,608.95.
At the restitution hearing, the trial court indicated it was inclined to follow the Probation Department's recommendation. Counsel for both defendants objected to everything but the $7,796.50 in economic losses for the Prior family. Finding Medi-Cal could seek reimbursement from the Prior family in the future, the trial court ordered the full $12,608.95 in restitution.
Defendant Armando Rojo contends the trial court was not authorized to order victim restitution for medical bills beyond the amount reimbursed by Medi-Cal. The Attorney General agrees. Defendant David Rojo contends the trial court was not authorized to award any of the $4,812.45 in restitution for medical expenses. He argues that Medi-Cal and the medical providers were third parties rather than victims of the crimes entitled to restitution. We agree with the Attorney General and defendant Armando Rojo.
Restitution is constitutionally and statutorily mandated in California. (Cal. Const., art. I; § 28, subd. (b); People v. Mearns (2002) 97 Cal.App.4th 493, 498.) Section 1202.4, subdivision (f) provides in pertinent part: "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. . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." Under section 1202.4, subdivision (f)(2), "[d]etermination of the amount of restitution ordered pursuant to this subdivision shall not be affected by the indemnification or subrogation rights of any third party." Further, restitution under this provision "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of defendant's criminal conduct, including, but not limited to" medical expenses. (§ 1202.4, subd. (f)(3).)
"'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.] "'When 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. Baker (2005) 126 Cal.App.4th 463, 467.) "In reviewing the sufficiency of the evidence, the '"power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the trial court's findings.' [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]" (Id. at pp. 468-469.) "'[T]he trial court must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.'" (People v. Mearns, supra, 97 Cal.App.4th at p. 498.)
"[T]he criminal restitution scheme should always require the offender to pay the full cost of his crime, receiving no windfall from the fortuity that the victim was otherwise reimbursed . . . ." (People v. Birkett (1999) 21 Cal.4th 226, 246.) There is no impropriety in the court ordering restitution to the victim even though the victim's medical bills were paid by Medi-Cal. (People v. Hove (1999) 76 Cal.App.4th 1266, 1272-1273 (Hove).)
However, where Medi-Cal pays the medical bill, the victim is ordinarily not entitled to compensation beyond what Medi-Cal has paid. In In re Anthony M. (2007) 156 Cal.App.4th 1010, a panel of this court reversed a restitution order to the extent it reimbursed the victim for the amount billed by the medical provider rather than the amount paid to the provider by Medi-Cal for services rendered to the victim. (Id. at pp. 1013, 1019.) Providers are prohibited from seeking reimbursement from the victim for any portion of the bill not paid by Medi-Cal. (Id. at pp. 1018-1019.) We concluded that any restitution in excess of the amount paid by Medi-Cal was an unauthorized windfall to the victim. (Id. at p. 1019.)
We agree with the Attorney General and defendant Armando Rojo that the trial court could not authorize restitution for medical expenses beyond the amount paid by Medi-Cal. Defendant David Rojo's contention that the court could not order restitution for any medical expenses is contrary to section 1202.4, subdivision (f)(2) and the decision in Hove. He has provided no reason for us to ignore the directive of the Legislature or the Hove decision.
The court awarded $1,148.04 restitution for the portion of the ambulance bill not paid by Medi-Cal and the entire $1,001 from SBI, even though Medi-Cal paid only $790. This was unauthorized to the extent it exceeded the amount paid by Medi-Cal, an excess award totaling $1,359.04. We shall modify the restitution award to reduce it by that amount, for a total of $11,249.91 in victim restitution.
Finally, we note that the recent amendments to section 4019 do not operate to modify defendants' entitlement to presentence custody credit as they were convicted of serious felonies. (Pen. Code, §§ 1192.7, subd. (c)(1), 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
The judgments are modified to delete $1,359.04 from the victim restitution order as specified above, leaving the total amount of direct victim restitution ordered pursuant to section 1202.4, subdivision (f), as $11,249.91. The trial court shall prepare modified abstracts of judgments reflecting this change and forward certified copies to the Department of Corrections and Rehabilitation. As modified, the judgments are affirmed.
We concur: BLEASE , Acting P.J. ROBIE ,J.
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