Filed 6/28/17 P. v. Rivas 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
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THE PEOPLE,

Plaintiff and Respondent,

v.

DALTON JACK RIVAS,

Defendant and Appellant.


C082335

(Super. Ct. No. P15CRF0069)






Defendant Dalton Jack Rivas pleaded no contest to misdemeanor corporal injury on a present or former cohabitant. (Pen. Code, § 273.5, subd. (a).) The trial court placed defendant on probation and ultimately ordered him to pay a total of $19,506 in restitution: $2,100 to the victim and $17,406 to the victim’s health plan.
Defendant now contends there is insufficient evidence to support the restitution award to the victim’s health plan. We conclude the restitution amount is supported by sufficient evidence but the restitution award must be directed to the victim and not the health plan.
We will modify the restitution order to award $19,506 in restitution to the victim and affirm the order as modified.
ADDITIONAL BACKGROUND
After the victim submitted a restitution claim form, the trial court held a contested restitution hearing. According to the evidence, the victim received treatment for depression and posttraumatic stress disorder and paid $2,100 as follows: $2,000 in insurance deductibles for four hospital stays following a suicide attempt, and $100 in copayment for psychiatric treatment.
The victim attached to her restitution claim form a statement from Heritage Oaks Hospital and two Explanation of Member Benefit statements from health plan Western Health Advantage. One of the health plan statements identified a hospital stay at Heritage Oaks Hospital from September 4, 2015 through September 10, 2015, indicating the amount billed as $7,944. The other health plan statement identified treatment by Dr. Nicholas Freudenberg on the following dates in 2015: July 30 and 31, August 1, 3 and 4, and September 4 through 10. The health plan statements said the amounts billed were not covered but asked the victim to provide additional information and complete a confirmation of benefits form to permit further consideration of the claims. The health plan statements explained that failure to provide additional information might result in the victim being financially responsible for the charges.
The statement from Heritage Oaks Hospital indicated that the victim was admitted to the hospital on July 29, 2015 and discharged August 4, 2015. There was a balance of $6,462, the estimated amount due from insurance. The hospital statement said the victim’s health plan had been billed and any self-pay portion was due.
The victim’s restitution claim form stated under penalty of perjury that the health plan paid for her hospital stays. When asked at the restitution hearing if the health plan paid for the services she received at Heritage Oaks Hospital, the victim answered, “I believe so, yes.”
Defendant’s counsel raised issues at the restitution hearing regarding delay in seeking treatment and preexisting conditions that were arguably not caused by defendant’s criminal conduct. Defense counsel also questioned whether certain billed amounts were duplicative.
The trial court found the victim to be very credible. It found the victim paid $2,100 for medical expenses, the health plan paid $17,406, the need for treatment was caused by defendant’s criminal conduct, and none of the billing documentation was duplicative. The trial court ordered defendant to pay a total of $19,506 in restitution as follows: $2,100 to the victim and $17,406 to the health plan.
DISCUSSION
Defendant contends there is insufficient evidence to support the restitution award to the victim’s health plan. He argues the two health plan statements and the hospital statement only identify amounts billed by the hospital, not the amounts paid by the health plan.
We issued the following request for supplemental briefing:
“1. It appears from the record that testimony and statements made under penalty of perjury indicated amounts billed by medical providers were paid by insurance. Under the circumstances, did the People make a prima facie showing to support the restitution order in the amount of $17,406? If so, did defendant meet his burden to demonstrate the amount of the loss was other than that claimed by the victim? (People v. Millard (2009) 175 Cal.App.4th 7, 26; People v. Prosser (2007) 157 Cal.App.4th 682, 691-692.)
“2. Did the trial court err in ordering the defendant to pay restitution to the victim’s insurance company, rather than paying full restitution to the victim, for all losses caused by defendant’s crime? (People v. Birkett [(1999)] 21 Cal.4th 226, 234, 241-245.)”
Defendant argues in supplemental briefing that the People did not make a prima facie showing. According to defendant, although the victim testified that hospital services were paid by her health plan, she did not testify the payment was in the amount billed. Defendant notes the amount paid by a health plan is invariably less than the amount billed by the hospital.
The parties agree restitution should not be paid directly to the health plan.
Crime victims have a right to restitution for losses caused by criminal activity. (Cal. Const., art. I, § 28, subd. (b); see People v. Giordano (2007) 42 Cal.4th 644, 652.) Restitution shall be in an amount established by the trial court based on the amount claimed by the victim. (§ 1202.4, subd. (f).) “To 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, including . . . [¶] . . . [¶] Medical expenses.” (§ 1202.4, subd. (f)(3)(B).) “To ‘fully reimburse’ the victim for medical expenses means to reimburse him or her for all out-of-pocket expenses actually paid by the victim or others on the victim’s behalf (e.g., the victim’s insurance company). 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.” (People v. Millard, supra, 175 Cal.App.4th at p. 27; see also In re Anthony M. (2007) 156 Cal.App.4th 1010, 1019.) Only the “direct victim” of a crime is entitled to restitution from the perpetrator of the offense. (People v. Birkett, supra, 21 Cal.4th 226, 234.) Determination of the amount of restitution shall not be affected by the indemnification or subrogation rights of any third party. (§ 1202.4, subd. (f)(2).)
The standard of proof at a restitution hearing is preponderance of the evidence. (See People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.) “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.]” (People v. Millard, supra, 175 Cal.App.4th at p. 26; see People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172.)
Here, the victim submitted a claim form under penalty of perjury estimating insurance had paid almost $25,000 in medical expenses. She submitted documents in support of that estimate that showed billed medical expenses of $17,406. The victim’s restitution claim form stated under penalty of perjury that the health plan paid for her hospital stays. When asked at the restitution hearing if the health plan paid for the services she received at Heritage Oaks Hospital, the victim answered, “I believe so, yes.” At the hearing defendant did not question the amount paid by the health plan; instead, defendant asserted issues regarding causation and duplicate billing.
The health plan and hospital statements submitted by the victim reflect billed charges in specified amounts. They constitute substantial evidence the charges were incurred by the victim absent evidence to the contrary. (In re K.F. (2009) 173 Cal.App.4th 655, 663.) Defendant had notice of the amount of restitution sought and also had a reasonable opportunity to contest the amount. (See People v. Foster (1993) 14 Cal.App.4th 939, 947, superseded by statute on other grounds as stated in People v. Birkett, supra, 21 Cal.4th 226, 238-245.) Defendant did not present contrary evidence and failed to rebut the victim’s statement of losses. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543; see People v. Collins (2003) 111 Cal.App.4th 726, 734.) On this record we have no basis to find the restitution amount unreasonable.
But as the parties agree, restitution must be ordered paid to the victim, not the health plan. Insurance companies that reimburse victims for their crime-related losses cannot be awarded restitution. (People v. Birkett, supra, 21 Cal.4th at pp. 234, 241-245.) Except in cases involving the state Restitution Fund, restitution must be paid directly to the actual victim of the crime even if, in the exercise of prudence, the victim purchased private insurance covering some or all of the losses. (Id. at p. 246.)
Here, as in People v. Birkett, supra, 21 Cal.4th 226, while the order correctly required defendant to pay full restitution, it incorrectly diverted a portion of the award from the victim to her health plan. We will modify the restitution order accordingly.
DISPOSITION
The restitution order is modified to provide that defendant shall pay $19,506 in restitution to the victim. The order is affirmed as modified.



/S/
MAURO, J.



We concur:



/S/
NICHOLSON, Acting P. J.



/S/
HOCH, J.