P. v.
Filed 9/16/13
P. v. Clinton CA2/6
NOT TO BE PUBLISHED IN THE
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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
DEWITT JOHN
CLINTON, JR., et al.,
Defendants and Appellants.
2d Crim. No. B245758
(Super. Ct. No. 1386337)
(Santa Barbara County)
DeWitt John Clinton, Jr., and David Jason
Prekker appeal judgments entered after they pleaded nolo contendere to
after he pleaded nolo contendere to attempted
murder, possession of heroin for sale, and possession of an assault weapon,
and admitted that he personally used a firearm during commission of attempted
murder, personally inflicted great bodily injury upon his victim, suffered a
prior narcotics conviction, and served a prior prison term. (§§ 664, 187, subd. (a); Health &
Saf. Code, § 11351; §§ 12280, subd. (b), 12022.5, subd. (a)(1),
12022.7, subd. (a); Health & Saf. Code, § 11370.2, subd. (a);
§ 667.5, subd. (b).) We conclude
that the trial court properly ordered victim restitution, and affirm. (People
v. Hove (1999) 76 Cal.App.4th 1266, 1272-1273.)
FACTS AND PROCEDURAL HISTORY
On February 21,
2012,
the Santa
Barbara County prosecutor filed an information against Clinton, Prekker,
and Major, alleging that on July 16, 2011, they committed attempted
murder and assault against J.S. Kinsey.
The prosecutor also alleged that Major alone committed several drug and
firearm crimes.
Following a February
8, 2012, preliminary examination at which Kinsey and others testified, Clinton,
Prekker, and Major entered nolo contendere pleas to certain charged
counts. On July
17, 2012, Clinton and Prekker pleaded nolo contendere to assault with a
semiautomatic firearm and admitted that they participated as aiders and
abettors in the assault upon Kinsey with a .22 semiautomatic pistol. (§ 245, subd. (b).) In accordance with a
Clinton and Prekker to three-year (low-term) prison terms. The court also imposed a $240 restitution
fine and a $240 parole revocation restitution fine (stayed). (§§ 1202.4, subd. (b), 1202.45.) It awarded Clinton 777 days of presentence
custody credit and Prekker 578 days of presentence custody credit.
On July 17,
2012,
Major pleaded nolo contendere to attempted murder, possession of heroin for
sale, and possession of an assault weapon.
(§§ 664, 187, subd. (a); Health & Saf. Code, § 11351;
§ 12280, subd. (b).) He also
admitted that he personally used a firearm during commission of attempted
murder, personally inflicted great bodily injury upon the victim, suffered a
prior narcotics conviction, and served a prior prison term. (§§ 12022.5, subd. (a)(1), 12022.7,
subd. (a); Health & Saf. Code, § 11370.2, subd. (a); § 667.5,
subd. (b).) Major also admitted that he
"unlawfully and with malice aforethought attempted to kill J.
Kinsey." In accordance with a plea
agreement, the trial court sentenced him to a 17-year prison term. The court also imposed a $240 restitution
fine and a $240 parole revocation restitution fine (stayed). (§§ 1202.4, subd. (b), 1202.45.) It awarded Major 402 days of presentence
custody credit.
On the prosecutor's motion, the trial court
dismissed the remaining charged counts against Clinton, Major, and
Prekker. (§ 1385.)
(§ 1202.4, subd. (f).)
On November 20, 2012, and December 11, 2012,
the trial court held a contested hearing regarding victim restitution. Kinsey did not appear at the hearing; he also
did not submit a request for restitution to the prosecutor or the probation
officer. The prosecutor stated that
Kinsey had not been in contact with her office.
She added that she had "spoken to his attorney . . .
since the plea and sentence of the defendants, it's [her] understanding he has
some concern for his safety." The
prosecutor presented an $11,411.82 invoice for medical services rendered by
Cottage Hospital, including "a discount of thirty percent from the
original balance owed of over $16,000."
The invoice was billed to Kinsey.
The defendants argued that Kinsey did not
establish that he suffered a loss and that it was possible that the hospital
would discount its billing in an additional amount. Defense counsel argued, "[W]hat if
[Kinsey's] girlfriend, or, . . . girlfriends paid the bill;
. . . [Kinsey] has not suffered loss." Following discussion between the trial court
and counsel, the court ordered defendants jointly and severally to pay
restitution of $11,411.82 to Kinsey.
Defendants appeal and contend that the trial
court did not possess the authority to order victim restitution because Kinsey
did not file a claim therefor, and there is no showing that he suffered an
economic loss.
DISCUSSION
Defendants argue that the trial court
improperly ordered victim restitution because Kinsey did not submit a claim for
restitution, orally or in writing. They
also assert that the restitution order is premature because there is a
possibility that the hospital may discount its invoice further or accept a
lesser amount in settlement.
subdivision (b)(13)(B) of the California Constitution provides that crime
victims have the right to restitution for losses they suffer and that
"[r]estitution shall be ordered from the convicted wrongdoer in every
case, regardless of the sentence or disposition imposed, in which a crime
victim suffers a loss." Section
1202.4, subdivision (a) expresses "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." Moreover, section 1202.4,
subdivision (f) states that, except in inapplicable circumstances, "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. . . ."
In addition to
compensating the victim, a restitution order rehabilitates and deters the
defendant. (People v. Hove, supra, 76
Cal.App.4th 1266, 1273.) Restitution is
an effective rehabilitation method because it forces the defendant to confront
in concrete terms the harm that his acts have caused. (Ibid.)
On appeal, a restitution
order is reviewed pursuant to the abuse of discretion standard. A restitution order may not rest upon an
error in law, however. (People v.
Duong (2010) 180 Cal.App.4th 1533, 1537; In re K.F. (2009) 173 Cal.App.4th 655, 661 ["No court has
discretion to make an order not authorized by law, or to find facts for which
there is not substantial evidence"].)
We independently review issues of law decided by the trial court. (In re
K.F., at p. 661.)
A business entity is a
"victim" pursuant to section 1202.4 only if it is "a direct
victim of a crime." (§ 1202.4,
subd. (k)(2).) For restitution purposes,
a "victim" is one who is "the object of a
crime." (People v. Birkett
(1999) 21 Cal.4th 226, 232.) When a
defendant is sentenced to prison and not granted probation, a hospital that
incurs expenses in treating a victim is not itself a direct victim entitled to
restitution under section 1202.4. (People
v. Slattery (2008) 167 Cal.App.4th 1091, 1095–1098; cf. People v.
Anderson (2010) 50 Cal.4th 19, 26 [when defendant is granted probation,
trial court has discretion to order him to pay restitution to hospital pursuant
to section 1203.1].)
The trial court acted properly
by ordering restitution expressly payable to Kinsey. Section 1202.4, subdivision (f) requires the
court to order victim restitution "based upon the amount of loss claimed
by the victim or victims or any other showing to the court." The prosecutor presented an invoice from
Cottage Hospital billed to Kinsey, already discounted by 30 percent. Kinsey "incur[red]" the economic
loss "as a result of the commission of a crime." (§ 1202.4, subd. (a).) "To constitute evidence of a 'loss
incurred,' there must be some basis to conclude that the victim is 'liable or
subject to' a charge." (
Cal.App.4th 1266, 1268 [crime victim in persistent vegetative state entitled to
full amount of economic loss although Medicare paid medical expenses].) The hospital's demand to Kinsey for payment
here is sufficient evidence that he is liable for the charges. Moreover, the 30 percent discount regarding
the charges permits a reasonable inference that Kinsey or someone on his behalf
had discussed the billed charges or negotiated the discount with the hospital.
The prosecutor also stated
that she had been in contact with Kinsey's attorney to discuss restitution and
his whereabouts. Although Kinsey may not
have made an express claim for restitution, it is a reasonable inference that
his attorney authorized the prosecutor to proceed on Kinsey's behalf.
The judgment is affirmed.
NOT
TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
PERREN,
J.
HOFFSTADT,
J
Brian E. Hill, Judge
Superior Court County
of Santa Barbara
______________________________
Wayne
C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant
DeWitt John Clinton, Jr.
Susan
S. Bauguess, under appointment by the Court of Appeal, for Defendant and
Appellant David Jason Prekker.
Richard
C. Gilman, under appointment by the Court of Appeal, for Defendant and Appellant
Chad Ryan Major.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General,
for Plaintiff and Respondent.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code unless otherwise stated. References to
sections 12022.5, 12022.7, and 12280 are to versions in effect prior to repeal
effective January 1, 2012.
name="_ftn2" title="">* (Judge of the
Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to
art. 6, § 6 of the Cal. Const.)
