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The People v. Britton Edward Mcfetridge

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


October 4, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BRITTON EDWARD MCFETRIDGE, DEFENDANT AND APPELLANT.

(Super. Ct. No. 09F01696)

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

P. v. McFetridge

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After a jury deadlocked and the trial court declared a mistrial, defendant Britton Edward McFetridge entered a plea of no contest to committing a battery that inflicted serious bodily injury, in exchange for the dismissal of the other charge, the suspension of imposition of sentence, and a grant of probation. Among the conditions were payment to the victim of restitution. The trial court granted two days of conduct credits for two days of presentence custody, and ordered defendant to report to jail on June 4, 2010.

Following a contested restitution hearing, the court took the matter under submission. After determining there had been nearly $18,000 in medical expenses, it set restitution in that amount.

On appeal, defendant argues the trial court erred when it impliedly overruled his objection to evidence the prosecutor submitted in support of the request for restitution. We affirm the order.

FACTS AND PROCEEDINGS

The prosecutor recited the stipulated factual basis for the plea. Defendant struck the victim in the face. This resulted in three fractures, and required the insertion of a metal plate.

At the restitution hearing, the prosecutor submitted the matter on an exhibit. It contained two letters from collection agents of a health plan that had a member with the same name as the victim (and included the superior court case number), which sought subrogation based on attached summaries of expenses paid to health-care providers on the date of the battery for injuries to a jaw and cheekbone (with two follow-up visits for eye problems). The total was approximately $18,000.

The prosecutor argued only that the victim was entitled to restitution for these expenses even though his insurance coverage meant that he did not pay them out of pocket. Defense counsel lodged objections "on foundation and hearsay grounds," which the court agreed to consider after reviewing the exhibit. Defense counsel argued that restitution for the medical expenses would be a windfall to the victim (ignoring the insurer's claim for subrogation). The parties agreed that the court could take the matter under submission without further argument. The court's subsequent order awarding the requested restitution did not include any express ruling on defendant's objections.

DISCUSSION

Defendant argues only that the prosecutor failed to provide any evidence to satisfy the criteria for admission of a business record under that exception to the hearsay rule. (Evid. Code, § 1271.) Therefore, he argues the court abused its discretion in impliedly overruling his objection.

The People cite the general proposition that as long as a defendant has notice of the amount claimed in restitution and an opportunity to contest it, a trial court does not violate due process in considering any type of evidence from any source without regard to the ordinary rules of evidence at trial. (E.g., People v. Prosser (2007) 157 Cal.App.4th 682, 692 [award based on victim's uncorroborated estimation of loss is proper]; People v. Foster (1993) 14 Cal.App.4th 939, 946-947 (Foster) [award based on victim's hearsay uncorroborated estimation of loss is proper]; People v. Hove (1999) 76 Cal.App.4th 1266, 1274-1276 (Hove) [defendant failed to provide any basis to doubt hearsay basis for restitution--Medi-Cal's statement to probation officer--which was substantial evidence for award]; cf. People v. Cain (2000) 82 Cal.App.4th 81, 86-87 [defendant not entitled to call or cross-examine witness regarding relation of expenses claimed for counseling to crime]; see People v. Millard (2009) 175 Cal.App.4th 7, 42 [trial courts have discretion regarding the formalities they follow at restitution hearings and the evidence they consider].) The People argue that even though the letters are hearsay for which the prosecutor did not provide any foundation to establish the exception for business records, defendant did not establish that they were inaccurate or inauthentic in any respect, and the letters consequently are substantial evidence to support the award. We agree.

Raising a distinction without a difference, defendant replies that the hearsay letters were not contained in the probation report, as in Hove (and Foster). The manner of the prosecution's proffer of the evidence, however, does not change the underlying principle. Defendant otherwise simply argues, ipse dixit, that restitution hearings are evidentiary in nature and therefore the Evidence Code must apply. But hearsay was sufficient in Hove and Foster and the Evidence Code, to that extent, does not apply.

If on some future date we are confronted with defendant's hypothetical (the proffer of a crayoned note stating only that "I lost [a sum] as the result of this crime" and lacking any other indicia of authenticity or accuracy), we will at that time determine if that is substantial evidence. The documents in the present case are not in any manner analogous.

DISPOSITION

The restitution order is affirmed.

We concur: BLEASE , Acting P. J. MAURO , J.

20111004

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