Filed 12/19/19 P. v. Myers CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JEREMY VINCENT MYERS,

Defendant and Appellant.

D075303

(Super. Ct. No. SCN376650)

APPEAL from an order of the Superior Court of San Diego County, David J. Danielsen, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

I
II
INTRODUCTION

Jeremy Vincent Myers pleaded guilty to one count of battery with serious bodily injury (Pen. Code, § 243, subd. (d)), and admitted he personally inflicted great bodily injury on the victim of the battery (§ 1192.7, subd. (c)(8)). He appeals an order requiring him to pay victim restitution consisting of, among other costs, $49,500 in future medical expenses, $7,000 for the victim’s electric wheelchair, and $35,000 for a new vehicle to accommodate the victim’s electric wheelchair and service animal. Myers contends substantial evidence does not support the trial court’s finding that the victim suffered or will suffer losses in the amounts claimed. We disagree. Therefore, we affirm the order.

III
IV
FACTUAL AND PROCEDURAL BACKGROUND

During a music concert, the victim and his wife notified a venue security officer that two nearby patrons were intoxicated and causing a disturbance. The officer escorted the patrons, who were companions of Myers, out of the venue. In apparent retaliation, Myers confronted the victim and struck him several times. In connection with the incident, Myers pleaded guilty to one count of battery with serious bodily injury and admitted he personally inflicted great bodily injury on the victim. The trial court sentenced Myers to two years in prison and scheduled a victim restitution hearing.

In an interview memorialized in the probation report, the victim informed the probation officer he had been disabled and paralyzed from the waist up prior to the attack. However, he stated he suffered a broken tibia and a broken fibula, received 23 screws in his right leg, and required the assistance of a full-time service animal as a result of the attack. According to the probation report, the victim sought $100,000 in restitution, subject to upward modification if future surgeries were required. The victim later prepared an itemized statement indicating he suffered or expected to suffer nearly $200,000 in losses. Among other costs, the itemized statement identified the following anticipated losses: (1) $49,500 for “total knee replacement est. from Health Line,” (2) $7,132 for an electric wheelchair, and (3) $50,000 for a “vehicle capable [of] handl[ing a] wheelchair & large service dog[.]” The prosecution provided Myers with the victim’s itemized statement of losses in advance of the restitution hearing.

The victim was the sole witness at the restitution hearing. He testified he could walk on his own prior to the attack, but he now required a wheelchair “for anything distance-wise” due to the injuries he sustained during the attack. He testified the “pain [was] ridiculous to walk on” and it was “very dangerous” for him to try to walk without a wheelchair. The victim calculated $7,000 as the cost for an electric wheelchair after conducting research on “three or four” Internet websites with his daughter and his mother. He did not recall the specific websites they visited or the name of each wheelchair brand they researched. However, he identified one wheelchair brand they researched and testified they did not research the costs for wheelchairs with “all the bells and whistles,” but rather confined their research to wheelchairs that “would suit [him].”

Regarding future medical expenses, the victim testified his doctor advised him he needed a full knee replacement surgery to address ongoing pain he experienced as a result of the attack. He testified the doctor did not inform him about the cost of the procedure, but he researched the cost of knee replacement surgeries on Internet websites and calculated a “general average” from the information he learned. Based on his research, the victim calculated the full knee replacement surgery would cost $49,500.

Finally, the victim testified he currently owned a two-seater sports car that was too small to accommodate the electric wheelchair and the service dog he required as a result of the attack. Therefore, he intended to purchase a new truck capable of accommodating the electric wheelchair and the service dog. The victim testified he researched the cost of the truck by driving by “a few lots” and visiting “three or four” Internet websites. Based on this research, the victim identified three specific vehicle makes that would accommodate his needs and calculated $50,000 as the cost for a new truck. The victim testified he did not intend to trade in his two-seater sports car.

Based on the victim’s testimony, the probation report, and a restitution brief filed by Myers, the court ordered Myers to pay $133,503.03 in victim restitution, calculated as follows: (1) $49,500 for the knee replacement (the full claimed amount); (2) $7,000 for the electric wheelchair (the full claimed amount); (3) $35,000 for the new truck (reduced from the claimed amount of $50,000); and (4) 42,003.03 in stipulated costs.

V
VI
DISCUSSION

A
B
“[I]n 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.” (§ 1202.4, subd. (f); Cal. Const., art. I, § 28, subd. (b)(13)(B) [“Restitution 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.”].) To the extent possible, restitution “shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss” (§ 1202.4, subd. (f)(3)), including, but not limited to, past medical expenses, future medical expenses, and expenses to make a vehicle operational if the victim is permanently disabled as a result of the crime. (Id., subd. (f)(3)(B), (K).) “Many, if not all, of the categories of loss compensable as direct restitution include losses that are incurred after the occurrence of the crime, and which may continue to be incurred for a substantial period of time following a restitution hearing.” (People v. Giordano (2007) 42 Cal.4th 644, 657–658 (Giordano).)

“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.” (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).) The victim restitution statute “does not, by its terms, require any particular kind of proof.” (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 (Gemelli).) ” ‘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.’ ” (Millard, at p. 26; People v. Fulton (2003) 109 Cal.App.4th 876, 887 (Fulton) [“[O]nce evidence is presented showing … economic losses, the burden of apportionment is properly placed on the defendant.”].)

“At the conclusion of the [victim restitution] hearing the trial court must then make an independent judicial determination of the amount of restitution the defendant shall be required to pay based on the available evidence of the [victim’s economic losses].” (People v. Hartley (1984) 163 Cal.App.3d 126, 130 (Hartley).) ” ‘[T]he court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole.’ ” (Millard, supra, 175 Cal.App.4th at p. 26.) ” ‘There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action.’ ” (Id. at pp. 26–27.)

We review a trial court’s decision to award victim restitution and the calculation of the amount of victim restitution for an abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 663.) No abuse of discretion will be found ” ‘ ” ‘[w]hen there is a factual and rational basis for the amount of restitution ordered by the trial court.’ ” ‘ ” (Millard, supra, 175 Cal.App.4th at p. 26.) When a defendant challenges the sufficiency of the evidence to support the trial court’s restitution order, we apply the substantial evidence standard. (People v. Baker (2005) 126 Cal.App.4th 463, 468–469.) Under that standard, we do not ” ‘reweigh or reinterpret the evidence; rather, we determine whether there [was] sufficient evidence to support the inference drawn by the trier of fact.’ ” (Millard, at p. 26.)

C
D
Myers challenges those portions of the victim restitution order requiring him to pay the victim $49,500 for future medical expenses, $7,000 for an electric wheelchair, and $35,000 for a new vehicle on grounds that they were not supported by substantial evidence. Based on the alleged insufficiency of the evidence, Myers claims the trial court abused its discretion in awarding the challenged restitution amounts. We disagree.

As noted ante, the People satisfy their prima facie burden for a restitution award if they present the trial court a claim or statement of the victim’s economic loss. (Millard, supra, 175 Cal.App.4th at p. 26.) In the present case, the probation report included a statement of economic loss insofar as it estimated victim restitution at approximately $100,000, subject to upward modification. Further, the victim later prepared—and the defense received—an updated and itemized statement of costs indicating he suffered or expected to suffer nearly $200,000 in losses, adequately describing each type of economic loss suffered, and specifying the amount for each type of loss. Based on this showing, we conclude the People satisfied their prima facie burden of demonstrating the victim’s loss. (Gemelli, supra, 161 Cal.App.4th at p. 1544 [prima facie burden satisfied based on probation officer’s report and victim statement listing losses]; People v. Foster (1993) 14 Cal.App.4th 939, 946–947 (Foster) [affirming restitution order based on statement of victim loss in probation report], superseded by statute on another ground as stated in People v. Birkett (1999) 21 Cal.4th 226, 238–245; see also Hartley, supra, 163 Cal.App.3d at p. 130, fn. 3 [probation report may constitute prima facie evidence of economic loss].)

When the People met their prima facie burden of demonstrating the victim’s loss, the burden shifted to Myers to demonstrate the amount of the loss was other than that claimed. (Gemelli, supra, 161 Cal.App.4th at p. 1543; Fulton, supra, 109 Cal.App.4th at p. 886.) Thus, it was incumbent upon Myers to “come forward with contrary information to challenge that amount.” (Foster, supra, 14 Cal.App.4th at p. 947.) For instance, Myers could have presented, or cross-examined the victim, with research or information suggesting the victim’s calculations were excessive. Myers “made no effort to do so, confining his attack to cross-examining” the victim about his methods of research. (People v. Goulart (1990) 224 Cal.App.3d 71, 83.) Having failed to do so, Myers did not rebut the claimed economic losses of the victim. On this basis alone, we would affirm.

Even if the People were required to present evidence in addition to the unrebutted probation report and itemized statement of economic losses, they did so here. At the restitution hearing, the victim testified he researched “three or four” Internet websites and, based on the research he conducted, calculated $7,000 as the cost for an electric wheelchair. Further, he identified a specific brand of electric wheelchair he reviewed as part of his research. The victim also testified he required a knee replacement surgery based on the advice of his doctor and calculated the cost of the surgery after conducting a comparison of multiple Internet websites. Finally, the victim identified three vehicle makes that would accommodate his electric wheelchair and service dog after driving by multiple vehicle lots and visiting “three or four” Internet websites.

Myers contends the victim’s testimony was simply too “vague” and “unclear” to support the victim restitution order. While we agree with Myers the victim’s testimony could have been more fulsome at times, it is not our duty on appeal to opine how the prosecution might have better presented or supported its case in support of victim restitution. Rather, our role ” ‘ “begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the trial court’s findings.” ‘ ” (Millard, supra, 175 Cal.App.4th at p. 26.) In the present case, the victim’s testimony sufficiently met this standard.

VII
VIII
DISPOSITION

The order is affirmed.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

IRION, J.