Filed 12/9/14 In re D.G. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re D.G., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A141000
v.
(Contra Costa County
D.G., Super. Ct. No. J11-00533)
Defendant and Appellant.
Minor D.G. admitted being an accessory after the fact to an assault with a firearm
(Pen. Code, § 32). The assault left the victim seriously wounded and with a hospital bill
in excess of $400,000. D.G. challenges a juvenile court restitution order requiring him
and his codefendant to pay 20 percent of the victim’s hospital bill. D.G. contends that the
juvenile court abused its discretion because the victim’s debt was written off by the
hospital and, accordingly, there is no evidence of economic loss. In the alternative, D.G.
maintains that the restitution order does not serve the juvenile court’s rehabilitation goals.
We affirm the restitution order.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of the crime in this case are not particularly relevant and we
state them only briefly. D.G., who was 16 years old at the time, admitted being an
accessory after the fact to an assault with a firearm, as alleged in the first count of a
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wardship petition filed pursuant to Welfare and Institutions Code section 602.1
Specifically, D.G. admitted that he provided a gun to his codefendant, Anthony S., was
present when Anthony fired shots at the victim, and hid and sold the gun after the
shooting. As a result of the shooting, the victim sustained injuries to his buttocks,
rectum, pelvic artery and vein, as well as five areas of his bowel. He was treated at John
Muir Medical Center. Multiple surgeries were required to repair the damage and extract
the bullet.
The juvenile court accepted D.G.’s admission, sustained the petition as to
count one, and dismissed an additional charge that D.G. unlawfully possessed a firearm
(Pen. Code, former § 12101, subd. (a)), as well as criminal street gang enhancements. At
the disposition hearing on April 25, 2011, the juvenile court received a probation report,
which included details regarding D.G.’s learning disabilities and D.G.’s statement
regarding threats from other gang members and his plans to disassociate from the gang.
The probation officer recommended, “[D.G.] needs to be held accountable for his
participation in such a dangerous crime. . . . He should be partially responsible for
making the victim whole.” The court concluded that D.G. was a person described by
section 602, ordered his placement outside his mother’s home, and ordered restitution to
be determined at a later date.2
On August 8 and September 12, 2013, the Honorable Barry Baskin presided over a
restitution hearing in Anthony’s case. A billing statement from John Muir, addressed to
the victim, was entered into evidence. It showed the victim’s account balance was
$412,546.89.
Anthony’s counsel called Larry Blythe, John Muir’s manager of patient billing, as
a witness. Blythe testified that nothing had been paid on the victim’s bill and that the
hospital had “written off the balance based [on] the patient’s indigent status.” Blythe also
1 Undesignated statutory references are to the Welfare and Institutions Code.
2D.G. returned home, in October 2012, after approximately a year and a half in
out-of-home placement.
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testified that the balance had been written off some time ago and no effort would be made
to collect from the victim on the debt.
On cross-examination, Blythe explained that when an outstanding bill was written
off, “[i]t is considered uncollectible debt and we claim it as charitable dollars.” Blythe
explained, “It’s a debt that we would not pursue or expect to recover funds from.” Judge
Baskin asked Blythe: “[A]ssuming the patient were to hit the lottery or get some kind of
restitution recovery from a third party, your actions in writing off the debt [are] not final;
is that right?” Blythe replied, “Sir, . . . there is no attempt to retro-recover. But if the
ability to recover the debt presented itself, settlement options or ability or transparency on
someone hitting the lottery, then we would accept that recovery.”
Judge Baskin also asked, “Does John Muir actively monitor which of their patients
have potential restitution recoveries from related accident or criminal proceedings?”
Blythe replied, “To the best of our ability, prior to write off, we do. Once the account
balance is written off, we generally do not go back and look for other methods of
reimbursement.” Blythe stated that at the time the victim’s debt was written off, the
hospital was not aware of a criminal proceeding in which Anthony or D.G. would be
asked to pay the amount due John Muir.
After the matter had been submitted, Judge Baskin stated: “It seems to me that the
restitution amount should be considered regardless of the . . . financial circumstances of
the victim. [¶] . . . There’s also no dispute . . . that it would be a serious burden, probably
for the remainder of their lives, for these two minors . . . to pay [$412,546.89.] [¶] And so
it seems to me that the Court is required, in the exercise of its discretion and the
circumstances as a whole, as presented here at this hearing, to fashion a remedy that is
taking into account the fact of the hospital having made this accounting . . . entry and also
the fact that the minor must be held accountable together with the co-responsible. It
seems to me that under the circumstances as a whole, the total amount that equals to
20 percent of the amount that was owing is a reasonable amount.” The court set
restitution at $81,509.38 with a credit of $1,000 for the amount that Anthony had already
paid to the victim restitution fund. Judge Baskin indicated that Anthony “will be
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responsible for that jointly and severally with [D.G.]” and directed the probation
department “to get [D.G.’s] case on calendar after notice to [D.G.] so that restitution is
scheduled in his case.”
D.G.’s restitution hearing was held on February 6, 2014, before the Honorable
Thomas Maddock. D.G.’s counsel argued that because the hospital was not a direct
victim and the victim himself had not paid anything on the debt, there was no actual loss
and nothing was owed in restitution. D.G.’s counsel also argued that imposing
approximately $80,000 in restitution would be punitive, rather than rehabilitative. Judge
Maddock took judicial notice of the restitution proceedings in Anthony’s case and
entered a final restitution order in the amount of $82,509.38, for which D.G., Anthony,
and their respective parents were jointly and severally liable. Judge Maddock explained:
“When a minor does something that causes an extreme amount of expense to be incurred,
there’s a consequence for that. That’s part of being personally responsible for your
actions. That’s what restitution is for. Restitution has long been acknowledged as part of
the rehabilitative process. That is why in all juvenile delinquency cases where there is
appropriate restitution it’s ordered. . . . [¶] . . . [¶] I am also satisfied that Judge Baskin’s
determination of an 80-percent reduction is appropriate given all the circumstances.”
D.G. filed a timely notice of appeal from the restitution order.3
II. DISCUSSION
“In proceedings involving minors, the juvenile court is vested with discretion to
order restitution consistent with the goals of the juvenile justice system. [Citation.] The
goal of the juvenile justice system is to provide minors under the jurisdiction of the court
with care, treatment, and guidance that is consistent with their best interests and to hold
them accountable for their behavior as appropriate under the circumstances, consistent
with the interests of public safety and protection. [Citation.] In enforcing, interpreting
and administering the juvenile court law, the trial court also is to consider the safety and
3 The restitution order is appealable as a postjudgment order. (§ 800, subd. (a);
In re Julian O. (1994) 27 Cal.App.4th 847, 852.)
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protection of the public, the importance of redressing injuries to victims and the best
interests of the minor. [Citation.]” (In re Alexander A. (2011) 192 Cal.App.4th 847,
853.)
“Generally speaking, restitution awards are vested in the trial court’s discretion
and will be disturbed on appeal only where an abuse of discretion appears. . . . A
reviewing court will generally examine an issue of law independently of a lower
tribunal’s ruling. [Citation.] Its determination on an issue of fact is reviewed under the
substantial evidence standard. [Citation.]” (In re K.F. (2009) 173 Cal.App.4th 655, 661,
fn. omitted (K.F.).) Here, D.G. argues the evidence before the trial court was insufficient
to establish the statutory conditions for an award of restitution. Such an argument
“necessarily implies two component questions: the nature and meaning of the statutory
conditions for an award, and the sufficiency of the evidence to establish those conditions.
The former is a question of law, which we will consider without deference to the trial
court’s action. The latter we will review with the usual deference to the court’s
resolution of any factual issues tendered.” (Id. at pp. 661–662.)
“In 1982, by initiative measure, the voters passed Proposition 8 giving all crime
victims the constitutional right to receive restitution from the offender who was convicted
of committing a crime against them. (Cal. Const., art. I, § 28, subd. (b).) The Legislature
implemented this section by amending the restitution statutes applicable to adult
offenders [citation] and section 730.6, which is the parallel provision applicable to
juvenile offenders. [Citation.]” (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016,
fn. omitted (Anthony M.).)
In relevant part, section 730.6 provides: “(a)(1) It is the intent of the Legislature
that a victim of conduct for which a minor is found to be a person described in Section
602 who incurs any economic loss as a result of the minor’s conduct shall receive
restitution directly from that minor. [¶] (2) Upon a minor being found to be a person
described in Section 602, . . . the court shall order the minor to pay, in addition to any
other penalty provided or imposed under the law, both of the following: [¶] (A) A
restitution fine in accordance with subdivision (b). [¶] (B) Restitution to the victim or
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victims, if any, in accordance with subdivision (h). [¶] . . . [¶] (h) Restitution ordered
pursuant to subparagraph (B) of paragraph (2) of subdivision (a) shall be imposed in the
amount of the losses, as determined. . . . The court shall order full restitution unless it
finds compelling and extraordinary reasons for not doing so, and states them on the
record. A minor’s inability to pay shall not be considered a compelling or extraordinary
reason not to impose a restitution order, nor shall inability to pay be a consideration in
determining the amount of the restitution order. A restitution order pursuant to
subparagraph (B) of paragraph (2) of subdivision (a), to the extent possible, shall identify
each victim, unless the court for good cause finds that the order should not identify a
victim or victims, and the amount of each victim’s loss to which it pertains, and shall be
of a dollar amount sufficient to fully reimburse the victim or victims for all determined
economic losses incurred as the result of the minor’s conduct for which the minor was
found to be a person described in Section 602, including all of the following: [¶] . . .
[¶] (2) Medical expenses.” (Italics added.)
D.G. contends that the restitution order exceeded this statutory authority because
there was no substantial evidence that the victim incurred an economic loss after John
Muir’s write-off. Our colleagues in Division Two of this court have recently rejected
precisely the same argument on appeal from the restitution order entered against D.G.’s
codefendant. (In re Anthony S. (2014) 227 Cal.App.4th 1352, 1356 (Anthony S.).)
The Anthony S. court began by observing that “without substantial evidence that
[the victim] incurred an economic loss, a restitution order is not authorized by
section 730.6.” (Anthony S., supra, 227 Cal.App.4th at p. 1356.) However, the court
determined that “incur” means “to become liable or subject to.” (Id. at pp. 1358–1359,
citing K.F., supra, 173 Cal.App.4th at pp. 662–663.) The court explained: “The billing
statement from John Muir was addressed to [the victim] and is substantial evidence that
he incurred the charges stated. That the billed amount was the true value of the services
provided to [the victim] was not disputed at the hearing to set restitution. Despite
evidence that John Muir had written off the charges to [the victim] as uncollectible debt,
and despite evidence that seeking to collect on such debts was not the ‘general’ practice
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of the hospital, there was no evidence that John Muir had released [the victim] from the
debt in such a way that collection would be barred by law. [¶] . . . [¶] [T]he fortuity that
[the victim] was indigent and John Muir had decided to write off the amount owed as an
uncollectible debt should not shield Anthony from paying restitution any more than the
fortuity that the victim was a participant in an HMO or covered by Medi-Cal or third
party insurance.” (Anthony S., at pp. 1359–1360.)
Finally, the Anthony S. court rejected Anthony’s argument that awarding
restitution would provide the victim with a windfall. (Anthony S., supra,
227 Cal.App.4th at pp. 1360–1361.) The court explained: “Because there is no legal bar
to John Muir seeking reimbursement from any restitution that Anthony pays in the future,
the amount of restitution ordered by the court is not a windfall to [the victim]. . . . [¶] . . .
[E]ven though John Muir chose not to pursue [the victim] for the charges billed to him on
account of medical services received, in the absence of a legal bar preventing John Muir
from collecting in the future, or an unequivocal statement from John Muir that it would
not exercise its rights, it was not contrary to section 730.6 for the court to base restitution
on the billed charges, which were established by substantial evidence.” (Anthony S., at
pp. 1360–1361.)
The Anthony S. court relied on our decision in In re Eric S. (2010)
183 Cal.App.4th 1560 (Eric S.), which involved restitution ordered to a victim who was a
member of an HMO, Kaiser California North, and was not required to pay for medical
services he received at Kaiser. (Id. at pp. 1562, 1565.) Relying on this fact, the ward
argued that restitution should be limited to the victim’s out-of-pocket expenses. (Id. at
pp. 1562, 1563–1564.) We rejected the argument, noting that “it has been held that a
victim whose medical treatment was covered by Medicare/Medi-Cal is entitled to
restitution for the total costs that had been charged to his Medi-Cal file. [Citation.]” (Id.
at p. 1564.) We concluded: “Assuming the victim was not obligated to pay Kaiser for
any amount above his membership fee in the HMO, charges were nonetheless incurred on
his behalf as a result of appellant’s criminal conduct. The fortuity that the victim had
purchased membership in an HMO, like the fortuity that a victim has purchased third
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party insurance [citation], or the fortuity that a victim is covered by Medicare/Medi-Cal
[citation], should not shield appellant from paying restitution for the medical expenses in
this case.” (Id. at p. 1565.) But because the district attorney had submitted
documentation showing that Kaiser would accept a reduced amount as payment in full,
we concluded that restitution should be set according to the amount that Kaiser was
willing to accept for the services it rendered. (Id. at p. 1566.)
D.G. suggests that Eric S. supports his position because “[t]he proper amount of
restitution cannot exceed the amount the hospital will accept as full payment for medical
services from the victim.” The Anthony S. court rejected the same argument, saying,
“[t]o account for a debt as uncollectible does not mean that zero is regarded as payment
in full.” (Anthony S., supra, 227 Cal.App.4th at p. 1358, fn. 4.) We agree.
Nor does Anthony M., supra, 156 Cal.App.4th 1010, support D.G.’s claim. The
Anthony M. court held that the juvenile court erred by imposing restitution in excess of
the amount actually paid to a medical provider by Medi-Cal. (Id. at pp. 1013–1014.)
Key to the Anthony M. court’s holding, however, was its observation that “[b]y law, if a
medical provider accepts payment from Medi-Cal for medical services rendered, it is
barred from seeking any unpaid balance from the patient [citations], although Medi-Cal
may seek reimbursement from the patient or other responsible party for the amount it
paid to the provider [citations].” (Id. at p. 1014; see also pp. 1018–1019.) The court
went on to say, “We . . . hold that the victim’s economic losses for medical expenses
under section 730.6 are limited to the amount of medical expenses paid or incurred by
the victim as the statute expressly provides.” (Id. at p. 1015, italics added.)
Generally, a document reflecting “ ‘billed charges’ ” constitutes substantial
evidence that these charges were “ ‘incurred’ ” by the victim. (K.F., supra,
173 Cal.App.4th at p. 663; Anthony S., supra, 227 Cal.App.4th at p. 1359.) Here, in
contrast to the circumstances presented in Anthony M., John Muir is not barred by law
from seeking reimbursement from the victim. In fact, Blythe testified that “if the ability
to recover the debt presented itself, settlement options or ability or transparency on
someone hitting the lottery, then [John Muir] would accept that recovery.” As in
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Anthony S. and Eric S., the fortuity that D.G.’s victim was indigent and John Muir
decided to write off the amount owed as an uncollectible debt should not shield D.G.
from paying restitution. The John Muir bill constitutes substantial evidence that the
victim incurred charges for medical services in excess of $400,000.4 (Anthony S., at
p. 1361.)
Nor are we persuaded that the restitution order does not serve a rehabilitative
purpose. D.G. contends: “[T]he juvenile court further abused its discretion in ordering
[D.G.] to pay restitution in the amount of $82,509.38, where [D.G.] had already been
held accountable for his actions and spent significant time in rehabilitation. The amount
ordered was so egregious to be punitive. [¶] . . . [¶] . . . Payment of . . . $82,509.38 . . .
would be impossible for [D.G.], given his educational deficits and present inability to
earn that money.” The argument is easily dismissed. Section 730.6,
subdivision (a)(2)(B), makes it mandatory for the juvenile court to order victim
restitution whenever a minor is found to be a person described in section 602. The
legislative objective of ordering restitution in a juvenile case is “to rehabilitate the
defendant, deter future delinquent behavior, and make the victim whole by compensating
him for his economic losses.” (Anthony M., supra, 156 Cal.App.4th at p. 1017; accord,
In re S.S. (1995) 37 Cal.App.4th 543, 549.) In this case, Judge Maddock made clear that
ordering D.G. to pay a portion of the victim’s medical services would help D.G.
understand there were consequences for his actions. We cannot consider D.G.’s veiled
4 Contrary to D.G.’s suggestion, the bill in this case bears no resemblance to the
evidence at issue in K.F., supra, 173 Cal.App.4th 655. In K.F., a Kaiser “ ‘Explanation
of Benefits’ ” was admitted, which listed $582.32 in “ ‘Ambulance Charges.’ ” But the
document also stated, “ ‘This is not a bill,’ ” and in the space marked “ ‘[y]our
[o]bligation’ ” appeared the sum “ ‘0.00.’ ” (Id. at p. 664.) The K.F. court explained:
“This may be substantial evidence that Kaiser furnished ambulance services it considered
to be worth $ 582.32, but it is not substantial evidence that the victim incurred a debt or
loss in that amount, or any amount. On the contrary, it explicitly shows an incurred loss
of zero.” (Ibid.) Here, the record shows only that the debt has been written off and that,
although recovery would be accepted, efforts to collect the debt would not necessarily be
made.
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inability to pay argument. Section 730.6, subdivision (h), provides: “A minor’s inability
to pay shall not be considered a compelling or extraordinary reason not to impose a
restitution order, nor shall inability to pay be a consideration in determining the amount
of the restitution order.” The juvenile court did not abuse its discretion.
III. DISPOSITION
The restitution order is affirmed.
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_________________________
BRUINIERS, J.
WE CONCUR:
_________________________
JONES, P. J.
_________________________
NEEDHAM, J.
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