People v. Taylor, C062413.

• Citation: 2011 Daily Journal D.A.R. 10831,197 Cal.App.4th 757,11 Cal. Daily Op. Serv. 9112,128 Cal.Rptr.3d 399
• Decision Date: 19 July 2011
• Docket Number: No. C062413.,C062413.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jackie Delbert TAYLOR, Defendant and Appellant.

197 Cal.App.4th 757

128 Cal.Rptr.3d 399

11 Cal. Daily Op. Serv. 9112

2011 Daily Journal D.A.R. 10,831

The PEOPLE, Plaintiff and Respondent,

v.Jackie Delbert TAYLOR, Defendant and Appellant.

No. C062413.

Court of Appeal, Third District, California.

July 19, 2011.

Certified for Partial Publication.^*

Rita Barker, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

NICHOLSON, Acting P.J.

Penal Code section 1202.4, subdivision (f)(3)(H) authorizes restitution for “[a]ctual and reasonable attorney's fees” incurred by the victim as a result of the defendant's criminal conduct. This appeal addresses whether a court may order restitution for a contingency fee paid by the victim without first determining whether the fee was reasonable under the lodestar method for calculating attorney fees. In the published part of this opinion, we disagree with the decision of Division One of the Fourth District Court of Appeal in People v. Millard (2009) 175 Cal.App.4th 7, 95 Cal.Rptr.3d 751( Millard ), and conclude a trial court can award victim restitution for contingency fees without a lodestar analysis. In the unpublished portion, we conclude defendant was entitled to additional presentence conduct and custody credits.

BACKGROUND

On July 29, 2007, defendant Jackie Delbert Taylor crossed a double yellow line while trying to pass another vehicle, had a head-on collision, and fled the scene before emergency personnel arrived. Defendant's victim, Kevin Bailey, sustained significant injuries to his arm and his car was totaled.

Defendant pled no contest to hit and run causing injury (Veh.Code, § 20001, subd. (a)), admitted a “strike” (Pen.Code, §§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)),¹ and entered a no contest plea in an unrelated case.

The trial court sentenced defendant to six years in prison, suspended proceedings pursuant to section 3051 of the Welfare and Institutions Code, and committed defendant to the California Rehabilitation Center (CRC). The trial court subsequently determined defendant's strike renderedhim ineligible for CRC commitment, and imposed the original sentence. Following testimony from Bailey, the trial court ordered $44,554.83 in victim restitution, including $8,333.33 in attorney fees.

Defendant appeals, challenging the award of victim restitution for attorney fees and the trial court's calculation of presentence credits.

DISCUSSION

I

Section 28 of the California Constitution was added to article I by voters in the June 1982 Primary Election, and was amended and renumbered in the 2008 General Election. Commonly known as the Victims' Bill of Rights, it gives all crime victims the constitutional right to receive restitution “from the persons convicted of the crimes causing the losses they suffer.” (Cal.Const., art. I, § 28, subd. (b)(13)(A).) The Legislature has “enacted various provisions to implement [section 28's] call for mandatory restitution from persons convicted of crimes to their victims. [Citation.]” ( People v. Birkett (1999) 21 Cal.4th 226, 236, 87 Cal.Rptr.2d 205, 980 P.2d 912.)

Section 1202.4 is one such enactment. Pursuant to subdivision (f), the “court shall require” a defendant to make restitution to the victim for all economic losses incurred by the victim as a result of his criminal conduct. Applying the constitutional right to restitution, the statute mandates: “The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” The language from section 1202.4, subdivision (f), is taken from the California Constitution's guarantee of victim restitution, former California Constitution, article I, section 28, subdivision (13)(b), which stated: “Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.” This was amended by Proposition 9 in 2008, and now reads as follows: “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.” (Cal. Const., art I, § 28, subd. (13)(b).) As amended, the California Constitution now requires trial courts to order victim restitution whenever the victim suffers a loss.

Evidence was presented at the restitution hearing that Bailey incurred $8,333.33 in attorney fees as a result of the hit and run accident, a contingency fee of 33 1/3 percent of his settlement from the insurance company. The trial court included compensation for the contingency fee in its restitution order.

Defendant contends the award of restitution for the contingency fee was unreasonable as the trial court should have first determined what would be a reasonable fee under the lodestar method for calculating attorney fees.² We disagree.

We review a challenge to the amount of victim restitution for abuse of discretion. ( People v. Baker (2005) 126 Cal.App.4th 463, 468–469, 23 Cal.Rptr.3d 871.) As this court recently noted, “ ‘A victim's restitution right is to be broadly and liberally construed.’ ” ( People v. Moore (2009) 177 Cal.App.4th 1229, 1231, 99 Cal.Rptr.3d 555.) “ ‘ “When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.” ’ [Citations.]” (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132, 123 Cal.Rptr.2d 316.) Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. ( People v. Fulton (2003) 109 Cal.App.4th 876, 886, 135 Cal.Rptr.2d 466.)

Defendant's claim is based on Millard, a driving under the influence case with serious injuries, where the victim obtained a $1,100,000 settlement from the defendant's insurance company, and paid his attorney a $366,666 contingency fee. ( Millard, supra, 175 Cal.App.4th at pp. 13, 20–21, 95 Cal.Rptr.3d 751.) After taking testimony on the contingency fee, the trial court in Millard determined the victim's attorney spent between 100 and 200 hours on the case, for an hourly fee of at least $1,833, which it characterized as an “ ‘unconscionable’ ” fee for such a “ ‘slam dunk’ ” case. ( Id. at p. 22, 95 Cal.Rptr.3d 751.) Nonetheless, the trial court ruled it did not have the “ ‘right or jurisdiction to interfere with the contingent fee arrangement between the victim and his counsel,’ ” and ordered restitution for the contingent fee, prorated to exclude the portion of the fee attributed to the award for pain and suffering. ( Id. at pp. 22–23, 95 Cal.Rptr.3d 751.)

The Court of Appeal in Millard found the trial court's award of attorney fees was an abuse of discretion “because it either: (1) awarded attorney fees it found were unconscionable/unreasonable; or (2) even if it implicitly found those fees were reasonable based solely on the contingency fee agreement, it did not apply the correct legal standard in determining the amount of reasonable attorney fees.” ( Millard, supra, 175 Cal.App.4th at p. 31, 95 Cal.Rptr.3d 751.)

The Millard court concluded the trial court erred by not applying the lodestar method for calculating attorney fees. ( Id. at p. 32, 95 Cal.Rptr.3d 751.) It declared: “Unless a statute provides otherwise, it is presumed the Legislature intended that the amount of a statutory award of reasonable attorney fees should be determined by application of the lodestar adjustment method. [Citations.]” ( Ibid.)

Applying this rule, the Court of Appeal declared: “A court ‘may not determine a “reasonable” attorney fee solely by reference to the amount due under a contingency agreement.’ [Citation.] Rather, a court must begin with the lodestar calculation and then make adjustments upward or downward based on the factors discussed in Ketchum [ v. Moses (2001) 24 Cal.4th 1122, 104 Cal.Rptr.2d 377, 17 P.3d 735], including whether there is a contingency fee arrangement. [Citation.] After considering all relevant factors, a court may ultimately, but is not compelled to, award as reasonable those fees set forth in a contingency fee agreement. [Citations.]” ( Millard, supra, 175 Cal.App.4th at p. 33, 95 Cal.Rptr.3d 751, italics omitted.)

We agree with Millard's first holding. A crime victim is entitled to restitution only for “[a]ctual and reasonable attorney's fees....” (§ 1202.4, subd. (f)(3)(H).) The trial court in Millard ignored the Legislature's directive and awarded restitution for attorney fees which it had found were “ ‘unconscionable’ ” in a “ ‘slam dunk’ ” case. This was an abuse of discretion.

However, we decline to follow Millard's alternative holding. Millard relied on Ketchum v. Moses, supra, 24 Cal.4th 1122, 104 Cal.Rptr.2d 377, 17 P.3d 735( Ketchum ), to conclude that the trial court was required to apply the lodestar calculation to the contingency fee. ( Millard, supra, 175 Cal.App.4th at pp. 32–33, 95 Cal.Rptr.3d 751.) In Ketchum, the Supreme Court held the lodestar method established in the Serrano³ litigation was appropriate for calculating an award of attorney fees following a civil defendant's successful anti-SLAPP (strategic lawsuit against public participation) motion. ( Code Civ. Proc., § 425.16). ( Ketchum, supra, 24 Cal.4th at pp. 1127, 1130–1131, 1134–1136, 104 Cal.Rptr.2d 377, 17 P.3d 735.) The Supreme Court noted that Courts of Appeal applied this method to a “broad range of statutes authorizing attorney fees” in civil cases, and cited with approval a Court of Appeal's observation that the “ ‘Legislature appears to have endorsed the [lodestar...