Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F16854
Premo, J.
Defendant Blake Albert Macierez pleaded guilty to one count of driving under the influence causing injury (Veh. Code, § 23153, subd. (a)), and one count of leaving the scene of an accident (id., § 20001, subd. (a)). He was sentenced to three years and eight months in prison, and ordered to pay victim restitution.
On appeal, Macierez contends that the trial court abused its discretion in awarding victim restitution by: (1) failing to offset amounts paid to the victims by his own insurer; (2) awarding restitution to the mother of one of the victims for paid sick leave she took to provide care for that victim; and (3) awarding restitution to one of the victims for the nominal amount of her medical bills, rather than the amount actually paid by that victim’s insurer. He further argues that the restitution order violated his constitutional rights to a jury trial and to due process, and that the restitution award constitutes an excessive fine. Macierez also claims that, to the extent his trial counsel failed to adequately object to the restitution order, he received ineffective assistance of counsel. Finally, Macierez claims that he was entitled to two days of conduct credits in addition to custody credits.
With respect to the restitution order, we find that Macierez was entitled to an offset for amounts paid to the victims by his insurance, but that the trial court otherwise acted within its discretion in awarding restitution. We also disagree that Macierez’s constitutional rights were violated.
As to the issue of conduct credits, we agree that Macierez is entitled to two days of such credits.
We therefore modify and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are derived from the probation report.
A. The collision and investigation
On June 21, 2008, at approximately 3:00 a.m., officers were dispatched to a report of a vehicular accident with injuries on State Route 9. Upon arrival, officers found Ryan Lane-Lutter, the driver of a Honda, lying on the ground near his vehicle. Katie Golsh was unconscious in the passenger seat, and rescue personnel had to cut her out of the vehicle. Katie was transported by air ambulance to Stanford Hospital with an open head injury and a broken right arm. Lane-Lutter was taken by ambulance to Valley Medical Center.
Since the award of restitution to Katie’s mother, Jill Golsh, is also addressed in this appeal, we refer to these individuals by their first names in the interests of clarity. We intend no disrespect.
Lane-Lutter’s vehicle had been involved in a collision with an Audi which had drifted over the solid double yellow lines. The Audi then collided with a power pole before coming to a stop. Lane-Lutter told officers he saw the driver of the Audi climb out of the driver’s side window and run off.
At approximately 4:18 a.m., officers found Macierez in the middle of the road on Roberts Street, unconscious. As they approached, they detected a strong odor of alcohol, and performed a “sternum rub” to get Macierez to respond. When Macierez identified himself to the officers, one of them recognized his name as that of the registered owner of the Audi involved in the earlier collision.
Macierez’s speech was slurred and his eyes were red and watery. As he was searched for weapons, officers found a key with an Audi emblem on it in his right front pocket. Macierez was transported to the hospital, where he was contacted by a California Highway Patrol officer.
Macierez initially told the CHP officer he was at a party in Boulder Creek and, when he went to leave the party at approximately 3:00 a.m., discovered his car was gone. However, Macierez continued to change his story during his conversation with the CHP officer, and the officer noted objective signs of intoxication and could smell the odor of an alcoholic beverage on Macierez’s breath and person. Macierez’s demeanor was belligerent and abusive. He admitted to smoking marijuana at least five hours beforehand, but refused to submit to a field sobriety test.
Macierez was arrested and a chemical blood test was performed. His blood alcohol level measured 0.16 percent.
On June 27, 2008, Lane-Lutter was interviewed by officers via telephone and told them that he and Katie were driving northbound on State Route 9 when he heard skidding tires. He then saw approaching headlights and could see a vehicle fish-tailing sideways. Lane-Lutter veered left, but could not avoid the collision. X-rays revealed torn cartilage in his sternum and possible rib fractures. After his release from the hospital, Lane-Lutter continued to suffer from severe back pain, which he characterized as “the worst pain I have experienced in my life.”
B. The probation report and sentencing hearing
When interviewed by the probation department in September 2008, Lane-Lutter said that his “back is ruined,” and he has difficulty sleeping. He also said “he suffered 13 to 15 spots of rib fractures, his sternum was pushed back, and he has ligament damage in his arm and back.”
Lane-Lutter submitted a restitution claim in the amount of $39,918.72, supported by a number of documents appended to the report. The probation officer noted that Macierez’s insurer had paid Lane-Lutter $15,000 for his bodily injury claim and therefore recommended that the court award Lane-Lutter restitution of $24,918.72.
The probation report indicates that Katie reported she was working full time before the incident, but could no longer do so and was receiving disability instead. She suffered a broken ankle, broken arm, broken nose and facial lacerations, requiring over 100 stitches, in the collision. Her hip was broken in two places and her elbow was shattered. She spent five days in the intensive care unit at Stanford Hospital.
After her release from the hospital, Katie was immobile and in tremendous pain. She celebrated her 19th birthday in a wheelchair, and continues to undergo physical therapy. She said it was uncertain if she would ever regain full function of her arm, which she could no longer bend or straighten.
Katie submitted a restitution claim in the amount of $325,566, as evidenced by a “Description of Loss” worksheet attached to the report. The report notes that Katie’s medical insurance covered all but approximately $4,000 to $5,000 of those costs, and that Macierez’s insurer paid her $15,000 for her bodily injury claim. The probation officer recommended that the court award Katie restitution in the amount of $310,566.
Finally, the report notes that Katie’s mother, Jill, “used 22 days of sick days and had 10 unpaid work days,” while caring for her daughter. After calculating her daily wage to be $140, the probation report calculated her total wage “loss [as] $4,480.00... ($140 per day x 32 days).”
The probation department arrived at this figure by dividing her monthly salary of $2,800 by 20, the average number of weekdays in a month.
At sentencing, the trial court stated it had reviewed the probation report and the documents attached thereto, as well as the sentencing memoranda filed by Macierez and the People. When the subject of restitution came up, the following exchange took place:
“[DEFENSE COUNSEL]: Your Honor, we would actually ask the Court to leave restitution open. I think that we need--I don’t have any records on the victim restitution.
“THE COURT: This is the time for setting restitution. The documents are attached to the probation report.
“[DEFENSE COUNSEL]: I only have receipts from one victim. I have no receipts from Katie. I just have an outline. So we would actually like to have a hearing on that to see if those are accurate and to see if some of those were paid down by Medi-Cal. If Medi-Cal paid less than what the actual bills are
“[PROSECUTOR]: We have hundreds of pages of medical bills here.
“THE COURT: I am going to make a finding here. You can request a restitution hearing. We will have an evidentiary hearing to some extent if you want. But I have sufficient information in front of me to make an award. And, as you’ve indicated, funds that Mr. Macierez has available are a pittance compared to the damage that he has caused.
“So there will be a restitution award in favor of Ryan Lane-Lutter in the amount of $39,918.72. I don’t agree that the defendant gets a discount if some insurance company pays that down to some extent. Particularly the defendant’s own insurance. So part of that may be payable to a third party. [¶]... [¶] With regard to Katie Golsh, there will be an award for $325,566 for her previously incurred medical expenses. There will also be an open award for wage loss or any kind of counseling or any future medical expenses that may be incurred in the course of providing further treatment or care to her with regard to her injuries that she suffered for which she has not yet actually had all the rehabilitation surgeries done that may be necessary. [¶]... There will be an award in favor of Jill Golsh in the amount of $4,480 for wage loss.”
II. DISCUSSION
Proposition 8, also known as the Victims’ Bill of Rights, which was passed in 1982, established the right of crime victims to receive restitution directly “ ‘from the persons convicted of the crimes for losses they suffer.’ ” (People v. Giordano (2007) 42 Cal.4th 644, 652.) Proposition 8 added new article I, section 28 to the California Constitution, which at the time of the offenses in this case provided: “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer.” (Former Cal. Const., art. I, § 28, subd. (b).)
Former California Constitution article I, section 28 was amended by initiative measure (Proposition 9) on November 4, 2008. Former subdivision (b) was renumbered subdivision (b)(13) and the text of the subdivision was amended.
To implement Proposition 8, the Legislature enacted Penal Code section 1202.4 which provides that the court must order direct victim restitution in “every case in which a victim has suffered economic loss as a result of the defendant’s conduct.” (§ 1202.4, subd. (f); see also id., subd. (a)(1).) The court “shall require” the defendant to make restitution “based on the amount of loss claimed by the victim... 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.” (Id., subd. (f).)
All further unspecified statutory references are to the Penal Code.
Section 1202.4, subdivision (f)(3) provides that “[t]o the extent possible, the restitution order... 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 the defendant’s criminal conduct.” Economic loss for the purposes of victim restitution includes “[m]edical expenses.” (§ 1202.4, subd. (f)(3)(B).)
A restitution hearing is usually held at the time of sentencing and the probation report is often the primary source of information about the victim’s loss. (§ 1203, subd. (b)(2)(C)(ii).) The standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.)
When determining the amount of restitution, the trial court is entitled to consider the probation report. (People v. Foster (1993) 14 Cal.App.4th 939, 946.) The victim’s statement about the amount of his or her loss, without supporting documentation, is prima facie evidence of that loss for the purpose of restitution. (People v. Prosser (2007) 157 Cal.App.4th 682, 690 (Prosser).) “Once the victim has made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim.” (Id. at p. 691.) Furthermore, while there must be a rational relationship between the restitution order and the victim’s loss, “[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion. (People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407.)
A. Sufficiency of the evidence to support the restitution order
1. Standard of review
In general, restitution awards will be disturbed on appeal only where an abuse of discretion appears. (People v. Fortune (2005) 129 Cal.App.4th 790, 794.) Issues of law are typically reviewed independently of a lower tribunal’s ruling. (See Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 558 [“we will not defer to a trial court’s determination on a question of law”].) The trial court’s determination on issues of fact is reviewed under the substantial evidence standard. (See People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) The standard of review therefore depends on the nature of the question presented.
We say “typically” to acknowledge that an administrative agency’s interpretation of a law may be entitled to deference on appellate review. (See MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 219.)
2. Forfeiture of objections
The People contend that Macierez has forfeited his objections to the restitution orders since he failed to object at the trial court that the evidence was insufficient to support the restitution order and he failed to seek a hearing on the amount of restitution. However, as we recently observed, “[s]ufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requir[es] no further steps by the aggrieved party to be preserved for appeal.” (In re K.F. (2009) 173 Cal.App.4th 655, 660.) Consequently, we will address Macierez’s claims that there was insufficient evidence to support the restitution order, in spite of the failure to object or request a hearing below.
3. Credit for payments by Macierez’s insurer
Macierez claims that the trial court erred by refusing to offset the payments made to the victims by his insurer. The People concede this error, and we agree that Macierez was entitled to a credit for the amounts that his insurer paid to Lane-Lutter and Katie for their injuries. (People v. Jennings (2005) 128 Cal.App.4th 42, 50.) We will direct the trial court to correct this error.
4. Paid sick leave
Macierez contends that there is insufficient evidence to support the trial court’s award of compensation to Jill for the 22 days of paid sick leave she took to care for Katie following the collision. He claims because she was paid by her employer for these days, and there was no evidence her employer either would or could seek reimbursement, there was no compensable economic loss.
In In re K.F., supra, 173 Cal.App.4th 655 we addressed this same question and determined that the use of paid sick leave does amount to a compensable economic loss for restitution purposes, since “the [sick leave] credits consumed would not be available to cover future illnesses or for whatever other beneficial purpose the employer might allow.” (Id. at p. 666.) There is no requirement that the person claiming restitution for paid sick leave first establish that her employer either would or could demand reimbursement for the salary paid. (Ibid.)
As a result, we find that the trial court did not abuse its discretion in compensating Jill for the paid sick leave she took to care for Katie.
5. Restitution for amounts paid versus amounts billed
Macierez next argues that section 1202.4 permits reimbursement only for demonstrated “actual economic loss” to the victim, rather than the “nominal value of a good or service,” citing In re Anthony M. (2007) 156 Cal.App.4th 1010 (Anthony M.). He contends that the materials submitted to the trial court failed to show that Katie sustained $325,566 in actual loss on account of medical treatment necessitated by the collision, since there was no evidence that either she or her insurer paid the nominal amounts billed.
In Anthony M., supra, 156 Cal.App.4th 1010, the appeal court reversed the trial court’s order to pay restitution of more than $1 million based on services rendered by a medical provider. The medical provider had sought payment from Medi-Cal, and was thus precluded from “seeking payment from the [victim] for any unpaid balance other than the nominal deductible or cost-sharing amount.” (Id. at p. 1018, citing 42 C.F.R. § 447.15; Welf. & Inst. Code, §§ 14019.3, subd. (d), 14019.4, subd. (a).) Consequently, the court held the victim’s losses were limited to the sums paid by Medi-Cal, and since Medi-Cal had not yet made final payment to the provider, the trial court should have deferred a decision on the appropriate level of restitution until such payment was made. (Anthony M., supra, at p. 1018.)
Similarly, in People v. Bergin (2008) 167 Cal.App.4th 1166 (Bergin), the court held that a restitution award should be limited to the amounts paid by a victim’s medical insurer, rather than the amounts billed by the medical providers. (Id. at p. 1170.) In Bergin, the defendant struck a pedestrian in a crosswalk and pleaded no contest to a charge of driving with a blood alcohol level in excess of 0.08 percent and of causing bodily injury to another person (Veh. Code, § 23153, subd. (b)). (Bergin, supra, at p. 1168.) The victim sought restitution, including a claim of $138,667.03 for medical expenses. However, prior to the restitution hearing, the victim had obtained a civil judgment against the defendant based on the accident, which included an award of $36,744.24 for medical expenses. (Ibid.) The trial court decided to “ ‘follow the civil judgment’ ” and awarded restitution in the amount of $36,900.39. (Id. at p. 1169.)
Although the jury awarded the victim $129,269.53 for medical expenses, the trial court reduced the amount to $36,744.24, in accordance with Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, since an injured plaintiff may not recover more than the actual amount she paid, or for which she incurred liability, for medical services.
The court in Bergin does not explain the $156.15 difference between the victim’s civil judgment and the restitution award.
On appeal, the court affirmed the trial court’s decision, noting that the victim’s medical providers had agreed to accept the amounts paid by the victim’s insurer on her behalf and thus neither the victim nor her insurer had expended more than the defendant had been ordered to pay in restitution. (Bergin, supra, 167 Cal.App.4th at p. 1170.) The restitution award thus fully compensated the victim for her economic loss as required by section 1202.4, subdivision (f)(3). (Bergin, supra, at p. 1172.)
Coincidentally, the victim in Bergin was, like Golsh, insured by Blue Shield. (Bergin, supra, 167 Cal.App.4th at p. 1170.)
More recently, in People v. Millard (2009) 175 Cal.App.4th 7 (Millard), the appellate court determined that restitution for medical expenses under section 1202.4 should be limited to “all out-of-pocket expenses actually paid by the victim or others on the victim’s behalf (e.g., the victim’s insurance company),” noting that the “concept of ‘reimbursement’ of medical expenses generally does not support inclusion of amounts of medical bills in excess of those amounts accepted by medical providers as payment in full.” (Millard, supra, at p. 27, italics added.)
Although we concur with the analysis set forth in Bergin and Millard, those cases are distinguishable, because, in this case we do not know whether the $325,566 set forth in the probation report was what Katie was nominally billed by her medical providers or was what Blue Shield actually paid to satisfy those bills. Macierez assumes that the figure represents the nominal amount billed, but there is nothing in the record which indicates that it is. The bills and receipts which would reflect the amounts billed and the amounts paid by insurance are not included in the record, nor need they have been. As the weight of authority recognizes, there is no requirement “that the victim must supply a sworn proof of loss or detailed documentation of costs and expenses.” (In re S. S. (1995) 37 Cal.App.4th 543, 547, fn. 2.) The worksheet constituted prima facie evidence of Katie’s loss, and once that showing was made, the burden shifted to Macierez to “demonstrate that the amount of the loss is other than that claimed by the victim.” (Prosser, supra, 157 Cal.App.4th 682 at p. 691.) Macierez did not meet that burden.
Nor is there any suggestion that Macierez did not have “sufficient notice in advance of the hearing to investigate and oppose the probation officer’s recommendation.” (In re S. S., supra, 37 Cal.App.4th at p. 548.) “[T]here is no basis for a conclusion that he lacked the information sought, or could not by reasonable efforts obtain it.... If further details were needed, appellant could attempt to procure them, either by contacting the victim or by requesting that the probation officer do so. Having done none of these things, appellant cannot complain about the lack of detail in the statement.” (Ibid.)
The probation report, dated September 26, 2008, advised Macierez that Katie was asserting a restitution claim of $325,566 for medical costs. We see no reason why Macierez could not have sought the documents underlying that claim prior to the October 8, 2008 sentencing hearing or requested a continuance of his sentencing to obtain such documents. He cannot now complain that he did not have the evidence necessary to challenge the restitution award when he made no effort to obtain that evidence.
B. Constitutional issues regarding restitution
Macierez also raises a variety of constitutional challenges to the restitution order, claiming that the procedure by which restitution is awarded violates due process, imposes an excessive fine under the federal and state Constitutions, and also that he was entitled to a jury trial on the subject of restitution. We find no merit in any of these arguments.
A defendant’s due process rights are satisfied where the defendant is given notice of the amount of restitution sought and a hearing at which he has an opportunity to challenge the amount requested. (People v. Thygesen (1999) 69 Cal.App.4th 988, 993.) The probation report has been found to provide sufficient notice. (People v. Harvest (2000) 84 Cal.App.4th 641, 653 (Harvest).)
Here, Macierez was provided with the probation officer’s report, dated September 26, 2008, sufficiently in advance of sentencing to allow him to attempt to obtain evidence to challenge the restitution requested therein or perhaps request a continuance of sentencing in order to pursue that evidence.
Furthermore, victim restitution is not a form of punishment; rather, it is a means to compensate the victims of a crime for the economic losses they have incurred as a consequence of the defendant’s criminal act(s). (Harvest, supra, 84 Cal.App.4th at p. 649.) Macierez thus had no constitutional right to a jury trial on the issue of restitution, nor is the excessive fines clause of the Eighth Amendment to the United States Constitution implicated by the restitution award. (Compare People v. Hanson (2000) 23 Cal.4th 355 with Harvest, supra, 84 Cal.App.4th 641.)
Finally, it is well-settled that a defendant is not entitled to a jury trial on the issue of restitution, nor need the restitution hearing be conducted with the formality of a civil trial. (People v. Narron (1987) 192 Cal.App.3d 724, 737.)
C. Ineffective assistance of counsel
Macierez argues that, to the extent his claims of error were not adequate preserved for appeal because of his counsel’s failure to object below, he received ineffective assistance of counsel. He fails to carry his burden on this claim.
To prevail on a claim of ineffective assistance of counsel, defendant “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.” (People v. Bolin (1998) 18 Cal.4th 297, 333.) “[P]rejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (Ibid., quoting Strickland v. Washington (1984) 466 U.S. 668, 694.)
As discussed above, there is no merit to the constitutional objections Macierez has raised on appeal, and thus his trial counsel cannot have provided ineffective assistance of counsel by failing to raise those objections to the trial court. Similarly, it was not ineffective assistance of counsel to fail to object to the award of restitution to Jill for her 22 days of paid sick leave.
There also was no ineffective assistance of counsel for failing to object to inclusion of amounts paid to the victims by Macierez’s insurer. The probation officer’s report correctly gave credit for these amounts in its recommendations, but the trial court expressly disagreed “that the defendant gets a discount if some insurance company pays [the victim’s losses] down to some extent. Particularly the defendant’s own insurance.” Under these circumstances, any objection by trial counsel would have been futile.
Finally, as to the claim that his trial counsel was ineffective for failing to object to the amount awarded to Katie for her medical bills, counsel did make that objection, but was advised that Macierez could seek a subsequent restitution hearing on the subject. As discussed above, it was the failure to obtain evidence to challenge the restitution amount listed in the probation report prior to the sentencing hearing that precludes Macierez from successfully disputing the sufficiency of that evidence on appeal. The reasons why trial counsel may have made no such inquiry or sought a separate restitution hearing are not apparent on this record. The California Supreme Court has “repeatedly stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
D. Custody credits
Finally, Macierez contends that he is entitled to two days of conduct credits because he spent four days in custody prior to sentencing. The People counter that Macierez is not entitled to any such credit because he was not committed for at least six days, citing section 4019, subdivision (e).
After the opening briefs were filed, the California Supreme Court resolved this exact issue in People v. Dieck (2009) 46 Cal.4th 934 (Dieck). In Dieck, after being sentenced to two years and eight months in prison, the defendant was given credit for time served of five days, but no conduct credits. (Id. at p. 938.) In an unpublished decision, the Court of Appeal found that the defendant was not entitled to conduct credits, based on its conclusion “that the language of section 4019, subdivision (e) unambiguously requires that a defendant serve six days in presentence custody in order to receive conduct credit under section 4019.” (Ibid.) The Supreme Court reversed, interpreting section 4019, subdivision (e) to “set[] forth a minimum duration of ordered commitment, not a minimum term of presentence incarceration.” (Dieck, supra, at p. 940.) Consequently, “[a] defendant who spends at least four days in presentence custody is entitled to conduct credit under section 4019 if that defendant is sentenced or otherwise ‘committed’... for a period of at least six days, assuming he or she satisfies the eligibility criteria set forth in the statute.” (Ibid.)
In this case, Macierez spent four days in presentence custody and was then sentenced to three years and eight months in prison. He was thus entitled to two days of conduct credit under section 4019. (Dieck, supra, 46 Cal.4th at p. 940.)
III. Disposition
The judgment is modified to reduce the amount that Macierez must pay as restitution to Lane-Lutter from $39,918.72 to $24,918.72 and the amount that Macierez must pay as restitution to Katie Golsh from $325,566 to $310,566. The judgment is further modified to give Macierez six days of presentence custody credit, consisting of four days’ credit for his days of confinement and two days’ conduct credit. The clerk of the Santa Cruz County Superior Court is directed to prepare an amended minute order reflecting the changes to the amounts of restitution awarded and to prepare an amended
abstract of judgment reflecting the additional conduct credit, a certified copy of which shall be forwarded to the Department of Corrections and Rehabilitation.
As so modified, the judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.