P. v.
Filed 8/6/12 P. v. Burton CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
BEN BURTON,
Defendant and Appellant.
D060824
(Super. Ct.
No. SCS247109)
APPEAL from
a judgment of the Superior Court
of
County, Kathleen M. Lewis, Judge. Affirmed.
Ben Burton pled guilty to
prior conviction. The court sentenced
him to prison and ordered him to pay restitution to the victim. On appeal, he contends the court erred in
refusing his request for a restitution hearing distinct from the
judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
name="_ftnref1" title="">[1]
The events
giving rise to the charged offenses occurred during a three-day period at Burton's
residence after Burton and his
girlfriend (M.G.) engaged in an argument over her seeing a male friend. On Friday,
March 25, 2011, Burton
pushed M.G. into a closet door, which broke the door, and he pushed her to the
bathroom floor, causing her to hit the floor and her back to arch over the edge
of the bathtub. M.G. stayed the weekend at Burton's
residence because she was too intimidated to leave. During an attempt to leave, she picked up her
shoes and Burton kicked her three
times in the buttocks and vagina. Burton
then told her to remove her clothes and to orally copulate him. She did this, and he had sexual intercourse
with her. M.G. complied with his sexual
demands because she was afraid he would hit her again.
M.G. was
finally able to leave Burton's
residence on Monday, March 28, 2011. She went to her mother's residence and then
to the hospital. She suffered bruises
under her left eye, and on her shoulders, ribs, and lower back.
Burton
was charged with assault by means of force likely to produce great bodily
injury, making a criminal threat, and false
imprisonment by violence, menace, fraud or deceit, with prior prison term
and strike allegations. He pled guilty
to the false imprisonment charge and admitted the strike prior. He was sentenced to two years eight months in
prison. He was ordered to pay
restitution, including $10,099.34 to the victim to compensate her for her
medical expenses.
DISCUSSION
Burton
argues the trial court abused its discretion and violated his
request for a separate restitution hearing after the sentencing hearing.
The probation report included the
following information relevant to the victim's medical expenses. The victim and Burton
had been in a relationship for about three months, and there was one incident
of previous domestic violence prior to the charged incident. After the charged incident, the victim left
defendant's residence and went to her mother's residence. She suffered "bruises on her ribs, back
and shoulder, and left eye area" and she "had to go to the hospital
for her injuries." Her mother drove
her to the hospital. She requested
"restitution in the amount of $9,000.00 for her emergency room
bills."
At
sentencing, the prosecution presented two documents to show the victim's
economic losses from the incident. These
documents are not included in the appellate record; however, they are described
in the record by the trial court.
According to the trial court's description, one document was a letter
from Sharp Hospital
to the victim stating that there was a "balance due" of $8,962.50 for
emergency procedures on March 28. The
second document was a "late notice" from American Medical Response
for $1,136.84 for ambulance services.
The court reviewed the documents and stated that they constituted
sufficient proof by a preponderance of the evidence to set the amount of victim
restitution at $10,099.34.
Defense counsel objected and
requested that the court set a separate restitution hearing. Defense counsel stated that she would like
the opportunity to subpoena the victim (who was not present at the hearing),
and that Burton had "a very
long story" to present to the court that necessitated a longer
hearing. Defense counsel explained that
she did not believe the victim's injuries were all sustained from her encounter
with Burton, and that there were "many indications that [the victim] had
been injured before." Defense
counsel acknowledged that "the court could find the documents themselves
seem to be sufficient," but stated there was a "a long history in
this case with many developments and issues
that . . . cannot be captured in a short
hearing . . . ."
The court
rejected defense counsel's request for a separate restitution hearing. The court stated that the probation report
showed the victim went to the hospital for the injuries she had suffered from
the assault, and the two documents provided by the prosecution "clearly
show that on the dates involved" the victim incurred medical expenses in
the amounts indicated by the court. The
court also commented that the victim and Burton
had been in a relationship for three months, and if the victim had any prior
injuries, the court would not "doubt that those prior injuries were also
the result of that type" of action.
The trial court is required to
award restitution to a victim who has suffered economic loss as a result of the
defendant's conduct. (Pen. Code, § 1202.4, subd. (f).)
"sufficient to fully reimburse the victim or victims for every determined
economic loss incurred as the result of the defendant's criminal
conduct . . . ."
(§ 1202.4, subd.
(f)(3).) The restitution amount should
be "based on the amount of loss claimed by the victim or victims or any
other showing to the court." (§ 1202.4, subd. (f).)
To comport with basic due
process, a defendant must be given notice and the opportunity to be
heard. (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1547.) Consistent with this dictate, the victim
restitution statutory scheme provides that the defendant has the right to a
restitution hearing "to dispute the determination of the amount of
restitution." (§ 1202.4, subd. (f)(1).) The statute contemplates that the restitution
amount will be determined at sentencing, unless the amount cannot be
ascertained at that time. (§ 1202.4, subd. (f); see
Cal.App.4th 1310, 1319.)
name="_ftnref3" title="">[3] The defendant's right to notice and a hearing
is protected if the amount claimed by the victim is set forth in the probation
report, and the defendant has an opportunity to challenge the figures in the
probation report at the sentencing hearing.
(People v. Cain (2000) 82
Cal.App.4th 81, 86; see
745, 754.)
If the defendant objects to the
amount of victim restitution set forth in the probation report, the prosecution
is required to support the amount by a preponderance
of the evidence. (See
1037, 1074-1075; People v. Holmberg,
supra, 195 Cal.App.4th at pp. 1319-1320.)
Once the prosecution has made a prima facie showing to support the
amount of loss, the burden shifts to the defendant to demonstrate that the
amount is other than that claimed by the victim. (People
v. Millard (2009) 175 Cal.App.4th
7, 26.)
On appeal, we review the trial
court's restitution order for abuse of discretion. (People
v. Giordano (2007) 42 Cal.4th 644, 663.)
We draw all reasonable inferences in favor of the court's order, and
affirm if there is substantial evidence to support it. (Id.
at p. 666; People v. Millard, supra,
175 Cal.App.4th at p. 26.) The statute
does not require "any particular kind of proof" and "[n]o abuse
of discretion will be found where there is a rational and factual basis for the
amount of restitution ordered." (
1539, 1542-1543.)
Preliminarily,
to the extent Burton asserts that the trial court erred because he was not
afforded a restitution hearing at all,
the contention fails. The record shows
he was afforded a restitution hearing in conjunction with the sentencing
hearing, which comports with the statutory
scheme. (§ 1202.4, subd. (f); see People
v. Holmberg, supra, 195 Cal.App.4th at p. 1319.) Thus, the question before us is whether the
court abused its discretion in not granting a continued restitution hearing to allow for the presentation of
additional evidence. To review this
claim, we evaluate Burton's contentions concerning the two expense items
(emergency room services and ambulance services) that comprise the restitution
order.
Burton argues the court should have
granted his request for a separate restitution hearing based on his claim that
the emergency medical treatment at the hospital was attributable to the
victim's preexisting injuries, not to the injuries he inflicted.
Generally, a criminal wrongdoer, like a tortfeasor, "
'takes his victim as he finds him.' "
(People v. Taylor (2011) 197
Cal.App.4th 757, 764; People v. Cameron
(1975) 53 Cal.App.3d 786, 789-790.)
Thus, a defendant is liable for loss arising from his conduct even if
"by reason of some preexisting condition, his victim is more susceptible
to injury . . . ."
(Rideau v. Los Angeles Transit
Lines (1954) 124 Cal.App.2d 466, 471.)
Thus, to the extent Burton is asserting that he had the right to present
evidence to show that the victim received emergency medical treatment for
preexisting injuries that were aggravated by his assaultive conduct, the
contention is unavailing.
name="_ftnref4" title="">[4]
Further, to obtain an additional
restitution hearing, defense counsel
was required to make an offer of proof demonstrating that there was material
evidence warranting further hearing.
(See People v. Riggs (2008) 44
Cal.4th 248, 296-297; People v. Beeler
(1995) 9 Cal.4th 953, 1003.) Defense
counsel did not proffer any information suggesting that Burton's conduct was
not the cause of the emergency room medical expenses claimed by the
victim. Causation is established if the
defendant's conduct was a substantial factor in bringing about the loss. (People
v. Holmberg, supra, 195 Cal.App.4th at pp. 1321-1322.) The evidence before the court showed that the
victim was injured by Burton; that she went to the emergency room for treatment
of these injuries; and that she owed the hospital money for this
treatment. Defense counsel's general
assertions that the victim had been injured before and that Burton had a
"long story" to tell did not provide the court with any information
suggesting that Burton's conduct did not cause the need for the victim to be
treated at the hospital. For example,
defense counsel did not proffer that
the victim went to the hospital and obtained treatment due to an incident and
injury that was unrelated to defendant's conduct.
To support his argument, Burton
notes that the court posited that he was the likely cause of any
suffered by the victim. Burton asserts
that this speculative comment cannot provide evidentiary support for the
restitution order. Given our conclusions
above, we need not evaluate this contention.
Even if Burton did not cause any preexisting injuries, he was responsible
for his conduct aggravating the injuries, and he made no offer of proof that
the expenses were incurred for reasons apart from the injuries he inflicted.
Burton further asserts that the
emergency room bill may ultimately have been discounted so that the victim
actually owed less money (see People v.
Millard, supra, 175 Cal.App.4th at pp. 27-29; People v. Duong (2010) 180 Cal.App.4th 1533, 1539-1540), and his
counsel should have been allowed to explore this issue at a continued
restitution hearing. Generally, to
preserve a restitution issue for appellate review, the defendant must raise the
objection to the trial court. (
p. 755; People v. Whisenand (1995) 37
Cal.App.4th 1383, 1395-1396; In re S.S.
(1995) 37 Cal.App.4th 543, 547-548.)
Defense counsel did not raise the possibility of a discounted bill when
requesting an additional restitution hearing.
The prosecution's presentation of documentary evidence showing a
"balance due" of $8,962.50 for emergency treatment was sufficient to
create a prima facie showing that the victim owed this money. (See In
re K.F. (2009) 173 Cal.App.4th 655, 663-664.) Defense counsel had notice from the probation
report that the victim was claiming $9,000 restitution for her emergency room
bills, and any challenges to this amount should have been presented to the
trial court. Because the
discount-billing issue was not mentioned to the trial court, Burton cannot rely
on this matter to support his claim that the court erred in denying his request
for a separate hearing.
To support
his challenge to the court's refusal to grant him an additional hearing, Burton
also cites the fact that the probation report states the victim's mother drove
her to the hospital, and there was no mention of ambulance use prior to the
sentencing hearing. Although the record
shows a lack of notice and a discrepancy in the probation report concerning the
ambulance expense, we conclude that this issue is forfeited on appeal because
Burton's counsel did not complain about this matter to the trial court
notwithstanding a full opportunity to do so.
Further, even if we review the matter for ineffective representation, on
this record there is no showing of prejudice.
At the sentencing/restitution
hearing, the court described the two documents (including the document
referring to the ambulance services) as "clearly show[ing] that on the
dates involved" the expenses were incurred. Defense counsel made no objection that an
ambulance expense was not incurred when the victim went to the hospital due to
Burton's assault. To the contrary, the
record supports that defense counsel saw no basis to challenge the
applicability of the ambulance expense.
At the commencement of the hearing, defense counsel stated that
"apparently there were some documents," but that Burton was not
prepared to stipulate to an amount of restitution because the defense
"need[ed] to review any documentation." However, after the court reviewed and
summarized the documents on the record, defense counsel stated: "I understand the court could find the
documents themselves seem to be
sufficient . . . ."
By acknowledging the sufficiency of the documents, defense counsel
implicitly conceded that they correlated with the criminal incident, and she
focused her request for an additional restitution hearing solely on the
preexisting injury claim.
To avoid a forfeiture on appeal,
the defendant must generally raise restitution objections (including those
based on lack of notice) to the trial court.
(People v. Gonzalez, supra, 31
Cal.4th at p. 755; People v. Whisenand,
supra, 37 Cal.App.4th at pp. 1395-1396.)
This principle applies here. If
defense counsel had objected based on the omission and discrepancy in the
probation report concerning the ambulance services, the court could have taken
measures to ensure that the matter was clarified.
Further, this is not a case where
the court summarily imposed restitution in excess of the amount in the
probation report without providing the defendant an opportunity to challenge
the amount. (See, e.g.,
98, 111-114, & fn. 11 [reversal required due to lack of notice and no
opportunity to object to restitution award].)
Here, the parties and court discussed the appropriate amount of
restitution; the court explicitly asked defense counsel to explain why she
objected to the prosecution's claimed amounts; and defense counsel made no
argument pertaining to the claimed ambulance services. Because defense counsel had the opportunity
to raise an objection concerning the ambulance expense but did not do so, the
issue is forfeited on appeal. (See
pp. 749-750, 755 [challenge based on imposition of victim restitution (which
was not mentioned in probation report) forfeited on appeal due to failure to
object on this ground before trial court].)
Although Burton does not raise an
issue of ineffective representation based on his counsel's failure to
specifically object to the ambulance expense, even if we consider such a claim,
there is no basis for reversal on this record.
To show ineffective representation, the defendant must establish that
counsel's performance fell below an objective standard of reasonableness, and
there is a reasonable probability that absent counsel's deficiency the result
would have been different. (People v.
Weaver (2001) 26 Cal.4th 876, 925.) If the record does not show prejudice from
counsel's alleged deficiency, we may reject the claim without determining whether
counsel's performance was deficient. (
Despite the statement in the
probation report indicating that the victim's mother drove her to the hospital,
the trial court was presented with a documentary item showing that the victim
incurred an ambulance expense. After
reviewing the document, the trial court was satisfied the ambulance expense was
tied to the injuries incurred from Burton's assault. Likewise, the record supports that defense
counsel reached the same conclusion, as shown by her statement acknowledging
that the documents were sufficient evidence to support the claimed
expenses. Because the actual
ambulance-expense document is not included in the appellate record, we cannot
independently examine it and instead rely on the court's and counsel's
assessments of its applicability to the charged incident. On this record, Burton has not shown a
reasonable probability that the victim did not incur an ambulance expense
because of his crime.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
name="_ftn1" title="">[1] Because Burton pled guilty, our factual summary is derived
from the probation report.
name="_ftn2" title="">[2] Subsequent statutory references are to the Penal Code.
