(Super. Ct. No. CM027482) APPEAL from a judgment of the Superior Court of Butte County, Steven J. Howell, Judge. Affirmed as modified.
The opinion of the court was delivered by: Nicholson , Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
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 (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 In the unpublished portion, we conclude defendant was entitled to additional presentence conduct and custody credits.
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)),*fn2 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 rendered him 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.
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.)
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.*fn3 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.) 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.) "'"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.) Once the victim makes a prima facie showing of economic losses incurred as a result of the ...