Filed 11/12/14 P. v. Warne CA5 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

WILLIAM DEVORE WARNE, 

 Defendant and Appellant. 

F067225 

(Super. Ct. No. CRF39466) 

O P I N I O N

THE COURT

 APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor 

Provost, Judge. 

 Law Offices of Kenneth M. Foley and Kenneth M. Foley, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity 

S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo- 

 

 Before Gomes, Acting P.J., Franson, J., and Peña, J. 
2 

 After the charges were reduced to misdemeanors, appellant, William Devore 

Warne, pled no contest to inflicting corporal injury on a cohabitant (count I/Pen. Code, 

§ 273.5, subd. (a))1 and vandalism (count II/§ 594, subd. (a)) and was placed on 

probation for two years. 

 On appeal, Warne contends the court erred in its award of restitution to the victim 

for the costs of an emergency room visit, repairs to her truck, and an office visit to a 

doctor. We affirm. 

FACTS 

 On September 21, 2012, while at a bar in Tuolumne County, Warne got in an 

argument with his girlfriend. After both of them got into her truck, Warne struck his 

girlfriend on the face. He then got out of the truck and damaged the passenger’s door and 

the driver’s door. 

 On September 25, 2012, the district attorney filed a complaint charging Warne 

with two felonies, inflicting corporal injury on a cohabitant (count I) and vandalism 

(count II). 

 On November 2, 2012, after the court granted the prosecutor’s motion to amend 

the complaint to reduce the charges to misdemeanors, appellant pled no contest to both 

counts. The court then placed Warne on two years’ probation. 

 On February 22, 2013, the court held a restitution hearing. 

 On March 28, 2013, the court ordered Warne to pay the victim a net restitution 

amount of $7,520.59, which represented full restitution of $10,520.59 less $3,000 Warne 

had already paid. The court’s restitution order included the following amounts that 

Warne challenges on appeal: $4,363 for a hospital emergency room visit, $4,310.04 for 

repairs to the victim’s truck, and $410 for a doctor’s bill for an office visit. 

 

1 All further statutory references are to the Penal Code. 
3 

DISCUSSION 

Legal Principles 

 Section 1202.4 provides: “It is the intent of the Legislature that a victim of crime 

who incurs an economic loss as a result of the commission of a crime shall receive 

restitution directly from a defendant convicted of that crime.” (§ 1202.4, subd. (a)(1).) 

Subject to exceptions not relevant here, “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.” (§ 1202.4, subd. (f).) 

 “In [People v.] Birkett [(1999)] 21 Cal.4th 226, the Supreme Court considered the 

impact that reimbursement of losses by a victim’s own insurance carrier may have on a 

defendant’s restitution obligation under former [Penal Code] section 1203.04. After an 

extensive review of the legislative history behind both the constitutional and statutory 

mandates for victim restitution [citation], the court held that restitution awards cannot be 

split between the victim and the insurer that had partially reimbursed the victim. The 

court reasoned as follows: ‘[T]he Legislature intended to require a probationary 

offender, for rehabilitative and deterrent purposes, to make full restitution for all “losses” 

his crime had caused, and that such reparation should go entirely to the individual or 

entity the offender had directly wronged, regardless of that victim’s reimbursement from 

other sources. Only the Restitution Fund was eligible to receive any part of the full 

restitutionary amount otherwise due to the immediate victim. [¶] Thus, except as against 

the Restitution Fund, the immediate victim was entitled to receive from the probationer 

the full amount of the loss caused by the crime, regardless of whether, in the exercise of 

prudence, the victim had purchased private insurance that covered some or all of the 
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same losses....’ [Citation.]” (People v. Hamilton (2003) 114 Cal.App.4th 932, 940-941, 

(Hamilton) italics added, fn. omitted.) 

 “At a victim restitution hearing, a prima facie case for restitution is made by the 

People based in part on a victim’s testimony on, or other claim or statement of, the 

amount of his or her economic loss. [Citations.] ‘Once the victim has [i.e., the People 

have] 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. 

[Citations.]’ [Citation.] 

 “‘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.] “‘Where 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. 

Millard (2009) 175 Cal.App.4th 7, 26.) 

Restitution for the Bill for the Emergency Room Expenses 

 Warne contends the victim is not entitled to restitution of $4,363 for the 

emergency room expenses she incurred because her insurance company paid this bill 

directly to the hospital and the insurance company is an indirect victim in this case. He 

further contends that the $4,363 the insurance paid represents the gross amount due, not 

the lower amount for charges that often are negotiated and paid by insurance companies 

and that requiring him to pay this gross amount is contrary to the Supreme Court’s 

decision in Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 (Howell). 

Warne is wrong. 

 As noted above, a victim is entitled to receive from the probationer “the full 

amount of the loss caused by the crime, regardless of whether, in the exercise of 

prudence, the victim had purchased private insurance that covered some or all of the 

same losses.” (Hamilton, supra, 114 Cal.App.4th at p. 941, italics added.) Thus, there is 
5 

no merit to Warne’s claim that the victim here was not entitled to the restitution of $4,363 

for the expenses she incurred for her emergency room visit because her insurance 

company paid the bill directly to the hospital. 

 The collateral source rule “dictates that an injured plaintiff may recover from the 

tortfeasor money an insurer has paid to medical providers on his or her behalf.” (Howell, 

supra, 52 Cal.4th at p. 551.) In Howell, the Supreme Court held that a “plaintiff may not 

recover as past medical damages the amount of a negotiated rate differential,” i.e., the 

amount billed for medical services that exceeds the amount accepted in full payment. (Id. 

at p. 565.) 

 Warne contends that the logic of Howell is clearly applicable to criminal 

restitution orders and that the court’s order requiring payment of the emergency room 

expenses without taking into account how much the insurance company actually paid is 

contrary to Howell. 

 However, “[e]rror will never be presumed and must be affirmatively shown. 

Appellant bears the burden to provide a record on appeal which affirmatively shows that 

there was an error below and any uncertainty in the record must be resolved against 

appellant. [Citations.]” (People v. $17,522.08 United States Currency (2006) 142 

Cal.App.4th 1076, 1084.) 

 Warne did not provide a copy of the reporter’s transcript of the restitution hearing 

which might have shed some light on whether the $4,363 the court ordered Warne to pay 

as restitution for the victim’s emergency room visit included an amount negotiated as a 

rate differential. Nor has Warne cited any evidence in the record that supports his claim 

that the $4,363 he was ordered to pay included such an amount. Therefore, even 

assuming Howell applies to criminal restitution proceedings, since Warne has not met his 

burden of affirmatively showing error, we summarily reject his contention that the 

restitution amount of $4,363 includes a negotiated rate differential. 
6 

The Truck Repair Expense 

 Warne contends the court abused its discretion in ordering him to reimburse the 

insurance company $4,310.04 for the cost of the repairs to the victim’s truck because the 

insurance company was not a direct victim of his offenses. We summarily reject this 

contention because the court ordered Warne to pay restitution for this expense to the 

victim, not the insurance company. 

The Doctor’s Office Visit Expense 

 Warne appears to contend that the prosecutor failed to establish a prima facie case 

of an economic loss of $410 for the doctor’s bill the victim received for an office visit 

because: 1) a doctor’s bill in the victim’s name does not confirm an economic loss; 

2) the victim never submitted the bill to her insurance company as directed by the court at 

the restitution hearing; and 3) there is no indication in the record that the doctor is 

seeking collection directly from the victim. We summarily reject this contention because 

Warne has not advanced any argument or authority in support of it. (People v. Ham

(1970) 7 Cal.App.3d 768, 783, [“Where a point is merely asserted by counsel without any 

argument of or authority for its proposition, it is deemed to be without foundation and 

requires no discussion”].) Nevertheless, we note that in our view, the victim’s receipt of 

a doctor’s bill for $410, which Warne concedes occurred, is sufficient to establish a prima 

facie showing that the victim suffered an economic loss in that amount.2

DISPOSITION 

 The judgment is affirmed. 

 

2 To the extent Warne challenges the $410 doctor bill because the prosecutor did not 

show whether this amount included a negotiated rate differential, we reject it for the same 

reasons that we rejected this claim with respect to the emergency room visit expenses the 

victim incurred.