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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 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 Superi or 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, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Louis M. Vasquez and Charity S. Whitney, Deputy Attorneys Genera l, 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 th e passenger’s door and the driver’s door. On September 25, 2012, the district a ttorney filed a compla int 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, appe llant pled no contest to both counts. The court then placed Warn e on two years’ probation. On February 22, 2013, the cour t held a restitution hearing. On March 28, 2013, the court ordered Wa rne to pay the victim a net restitution amount of $7,520.59, which re presented 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 ho spital 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 refere nces are to the Penal Code.3 DISCUSSION Legal Principles Section 1202.4 provides: “It is the intent of the Legislat ure 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 victim s 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 vic tim’s own insurance carrier may have on a defendant’s restitution obligati on 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 [c itation], the court held that restitution awards cannot be split between the victim and th e insurer that had partially reimbursed the victim. The court reasoned as follows: ‘[T]he Legisl ature intended to require a probationary offender, for rehabilitative and deterrent purposes, to make fu ll restitution for all “losses” his crime had caused, and that such reparati on 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 eligib le to receive any part of the full restitutionary amount otherwise due to the imme diate victim. [¶] Th us, 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 crim e, regardless of whether, in the exercise of prudence, the victim had purchased private in surance that covered some or all of the4 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 testim ony 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 he r 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 broa dly and liberally construed.” [Citation.] “‘Where there is a factual and rational basis for the amount of re stitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.”’ [C itations.]’ [Citation.]” ( People v. Millard (2009) 175 Cal. App.4th 7, 26.) Restitution for the Bill for the Emergency Room Expenses Warne contends the vic tim is not entitled to res titution of $4,363 for the

emergency room ex penses she incurred because her in surance 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 insuranc e 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 Meat s & Provisions, Inc. (2011) 52 Cal.4th 541 ( Howell ). Warne is wrong. As noted above, a victim is en titled 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 in surance that covered some or all of the same losses .” ( Hamilton , supra , 114 Cal.App.4th at p. 941, italics added.) Thus, there is5 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 emer gency room visit because her insurance company paid the bill dire ctly to the hospital. The collateral source rule “dictates that an injured plaintiff may recover from the tortfeasor money an insurer has paid to me dical 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 servi ces that exceeds the amount ac cepted 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 orde r requiring payment of the emergency room expenses without taking into account how much the insuranc e 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 Un ited 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 whethe r 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 ev idence in the record that supports his claim that the $4,363 he was ordered to pay in cluded such an amount. Therefore, even assuming Howell applies to criminal restitution proc eedings, 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 disc retion in ordering him to reimburse the insurance company $4,310.04 for the cost of th e 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 prosecut or failed to establish a prima facie case of an economic loss of $410 fo r the doctor’s bill the victim re ceived 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 in surance company as directed by the court at the restitution hearing; and 3) there is no indication in th e record that the doctor is seeking collection directly from the victim. We summarily reject th is 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”].) Nevert heless, 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 suffer ed an economic loss in that amount. 2
DISPOSITION The judgment is affirmed.

2 To the extent Warne cha llenges the $410 doctor bill be cause the prosecutor did not show whether this amount included a negotiated ra te differential, we reject it for the same reasons that we rejected this claim with resp ect to the emergency room visit expenses the victim incurred.