Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS080930
Duffy, J.
Defendant Rosario Arreola Lopez was involved in a two-car collision that resulted in the death of the driver of the other car, Adam Haney, and serious injury to Haney’s passenger. In August 2008, defendant pleaded no contest to driving under the influence or alcohol or drugs resulting in injury, and she admitted the allegation that she inflicted great bodily injury. The court sentenced defendant to a total of five years in state prison. In addition, it ordered defendant to pay restitution to the two victims, Haney’s widow, Kara Haney, and the passenger, pursuant to section 1202.4, subdivision (f) of the Penal Code. The amount of restitution ordered to Kara was $58,643.35.
Further statutory references are to the Penal Code unless otherwise stated. With due respect to Ms. Haney, we refer to Haney’s widow by her forename for clarity and convenience.
Defendant on appeal challenges the restitution order in favor of Kara on two essential grounds. First, she argues that the court abused its discretion in awarding $26,640 in attorney fees because, in awarding the fees that Kara claimed she incurred in pursuing a civil settlement against defendant for her economic losses, the court failed to apply the standard that only attorney fees reasonably incurred by the victim are recoverable in a restitution award under section 1202.4, subdivision (f). Second, defendant contends that the court erred by failing to grant a setoff in the amount of $15,000 from the restitution award, that figure representing the civil settlement paid to Kara by the insurer for defendant’s father.
In a separate petition for writ of habeas corpus that we ordered to be considered with this appeal (H035067, In re Lopez), defendant urges that her counsel was prejudicially ineffective in failing to present evidence readily available that would have demonstrated to the court (a) that the amount of attorney fees claimed was unreasonable, and (b) the factual basis upon which defendant was entitled to a setoff of the settlement paid to Kara by the insurer for defendant’s father. By separate order of this date, we deny the petition for habeas corpus.
We conclude that the court applied an erroneous legal standard in its consideration of the attorney fees for which Kara was entitled to restitution. We reject defendant’s second claim of error. We will therefore reverse the judgment and remand the matter for the limited purpose of the court conducting a further hearing to determine the amount of attorney fees Kara reasonably incurred that should be included in the restitution award.
Our summary of the evidence is based upon information contained in the probation report.
On February 16, 2008, at approximately 12:30 a.m., officers from the California Highway Patrol (CHP) responded to an accident scene on Highway 101 near Ralph Lane in Prunedale, Monterey County. A Toyota Tundra driven by defendant had rearended a much lighter Toyota truck driven by Haney in which his friend, Hugo Calderon, was a passenger. When the CHP officers arrived at the accident scene, defendant’s vehicle showed damage to its front end, grille, hood, and right and left fenders, and the Haney truck “was on its driver[’s] side and sustained major damages consistent with having rolled over.”
The officers at the scene immediately detected a strong odor of alcohol on defendant’s breath and person. She also had bloodshot eyes and slurred speech. Defendant initially denied that she had been drinking or that she was drunk. The CHP officers determined from field sobriety tests that defendant appeared to be intoxicated. Approximately two hours later, defendant had her blood drawn at the hospital. Her blood alcohol content at that time was determined to have been 0.14 percent.
When defendant was interviewed at the hospital, she told officers that she had consumed two shots of Smirnoff in Paso Robles about six hours before the accident and, after waiting two hours, drove north. She also told the officers that she had a passenger who had fled the scene. (The officers determined that the passenger airbag of defendant’s Toyota had not deployed and that there were various belongings on the passenger seat that would have prevented a passenger from sitting there.) Defendant said that as she was approaching Ralph Lane around midnight, the Haney truck suddenly swerved into her lane and she was unable to avoid colliding with it. Some months later after pleading guilty, she told a probation officer that during her drive between the areas of Los Angeles and Prunedale, she had consumed two six-packs of Smirnoff Ice and two beers.
An eyewitness traveling southbound contradicted defendant’s version of the accident. He reported observing defendant’s vehicle approaching the truck in front of it too closely, and then the “headlights [of defendant’s Toyota] disappeared and the front vehicle (Haney’s truck) crashed into the center divider....” The witness, who turned around and returned to the scene, made contact with defendant, who seemed dazed, slurred her words, and had alcohol on her breath.
Calderon told investigators that he and Haney had finished work and were on their way home. Haney was driving the speed limit. (Seconds before the collision, the two had passed an automated radar sign that showed they were traveling at 57 miles per hour.) Calderon felt a sudden and forceful impact from the rear and recalled Haney saying that he was unable to control his truck. The truck crashed into the center divider and rolled over several times. Haney was thrown about 40 feet from his truck.
Haney was rushed by ambulance to the hospital; he died several hours later. Calderon sustained injuries to his back and lacerations to his face, arms and hands. The CHP ultimately determined that defendant was traveling in excess of 80 miles per hour when she collided with Haney’s truck, and that the force of the impact pushed Haney’s truck forward 600 yards and caused it to roll over repeatedly.
PROCEDURAL BACKGROUND
Defendant was charged by information with gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); count 1); driving under the influence of alcohol and causing bodily injury to Haney (Veh. Code, § 23153, subd. (a); count 2); driving a vehicle with a blood alcohol content of 0.08 or more and committing an act forbidden by law in driving the vehicle (Veh. Code, § 23153, subd. (b); count 3); driving under the influence of alcohol and causing bodily injury to Calderon (Veh. Code, § 23153, subd. (a); count 4); and driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 5). The complaint contained special allegations that, as to counts 2 and 3, defendant personally inflicted great bodily injury upon Haney (§ 12022.7, subd. (a)); and proximately caused death or bodily injury to more than one victim (Veh. Code, § 23558).
On August 13, 2008, defendant entered a plea of nolo contendere (no contest) to count 2 and admitted the allegation that she inflicted great bodily injury in the commission of the offense. Defendant also agreed that the court could take into consideration in sentencing and in ordering restitution the fact that there was more than one victim. The remaining counts were ordered stricken. The court found on the parties’ stipulation that there was a factual basis for the plea. In November 2008, the court sentenced defendant to the middle term of two years in prison for the count 2 conviction and a consecutive three-year prison term for the enhancement. The court reserved jurisdiction for the purpose of determining victim restitution. At a subsequent hearing on February 27, 2009, the court, pursuant to section 1202.4, subdivision (f), ordered that defendant pay victim restitution to Kara in the sum of $58,643.35, and to Calderon in the amount of $20,200 (the restitution order, or order).
Defendant filed a timely appeal from the restitution order. The order is one that is appealable, since it is an “order made after judgment, affecting the substantial rights of the party.” (§ 1237, subd. (b); see People v. Guardado (1995) 40 Cal.App.4th 757, 763.)
The court below granted defendant’s application for a certificate of probable cause to bring this appeal. Because this appeal challenges the post-plea order granting restitution and is not a challenge to the plea itself, a certificate of probable cause pursuant to section 1237.5, subdivision (b), was not required. (See People v. Panizzon (1996) 13 Cal.4th 68, 74-76; Cal. Rules of Court, rule 8.304(b)(4)(B).)
DISCUSSION
I Victim Restitution Orders, Generally
In 1982, the voters passed Proposition 8, under which crime victims became constitutionally entitled to restitution. “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] 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. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section.” (Former Cal. Const., art. I, § 28, subd. (b).) In response to Proposition 8, the Legislature enacted section 1202.4, which required “ ‘the court to impose a restitution fine “[in] any case in which a defendant is convicted of a felony....” ’ [Citation.]” (People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano).)
Former California Constitution article I, section 28 was amended by initiative measure (Proposition 9) on November 4, 2008. Former subdivision (b) was renumbered subdivision (b)(13) and the text of the subdivision was amended.
Section 1202.4, subdivision (a) provides in part, “(1) It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” Under subdivision (a)(3)(B) of the statute, courts are required to impose a fine of between $200 and $10,000 for a felony conviction, as delineated in subdivision (b) of the statute. Further, the statute provides that, in addition to the restitution fine provided in subdivision (b), the court must order restitution to the victim(s) of the crime committed. (§ 1202.4, subd. (a)(3)(B).)
“Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment.” (§ 1202.4, subd. (a)(3)(B).)
Section 1202.4, subdivision (f) provides in relevant part: “... [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. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” The statute further provides that, “[t]o the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct....” (§ 1202.4, subd. (f)(3).)
A victim restitution order has the salutary goal of providing compensation to a victim for his or her economic losses resulting from crimes committed by others. (§ 1202.4, subd. (a).) In addition to that purpose, such an order is intended to rehabilitate the defendant and to deter the defendant and others. (People v. Crow (1993) 6 Cal.4th 952, 957; People v. Dehle (2008) 166 Cal.App.4th 1380, 1386.)
Included among a nonexclusive list of recoverable economic losses awardable as victim restitution under the statute are “[a]ctual and reasonable attorney’s fees and other costs of collection accrued by a private entity on behalf of the victim.” (§ 1202.4, subd. (f)(3)(H).) Reasonable attorney fees incurred by the victim are recoverable as an item of restitution only to the extent that they were incurred in efforts to recover economic damages sustained by the victim as a result of the crime; attorney fees expended to recover noneconomic damages, such as pain and suffering, are not subject to a restitution order under section 1202.4, subdivision (f). (People v. Fulton (2003) 109 Cal.App.4th 876, 879, 884-885 (Fulton); see also In re Imran Q. (2008) 158 Cal.App.4th 1316, 1321-1322.) Further, “when fees cannot be reasonably divided between the pursuit of economic losses as opposed to noneconomic losses, the victim is entitled to be fully reimbursed for all actual and reasonable attorney fees. [Citations.]” (Fulton, at p. 885.)
“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. [Citations.]” (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).) This proof may include information contained in probation reports. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.) “Once the victim has 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. [Citations.]” (People v. Prosser (2007) 157 Cal.App.4th 682, 691.)
Our review of restitution orders is governed by the abuse of discretion standard. (Giordano, supra, 42 Cal.4th at p. 663; People v. Hudson (2003) 113 Cal.App.4th 924, 927.) That “standard is ‘deferential’ but it ‘is not empty.’ [Citation.] ‘[I]t asks in substance whether the ruling in question “falls outside the bounds of reason” under the applicable law and the relevant facts [citations].’ [Citation.] Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the surviving victim’s economic loss. To facilitate appellate review of the trial court’s restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered.” (Giordano, at pp. 663-664.)
It is against this backdrop that we examine defendant’s specific claims of error.
II. Restitution Order of $58,643.35 to Kara
A. Proceedings
After reserving jurisdiction following the sentencing hearing, the court conducted a hearing on the People’s request for victim restitution under section 1202.4, subdivision (f). The People sought restitution as recommended by the probation officer in her report. In that report, the probation officer noted that Calderon was seeking restitution in the amount of $20,200, which was comprised of $8,000 lost wages, $6,200 in unreimbursed medical expenses, and $6,000 in attorney fees. The officer recommended further that Kara receive restitution totaling $58,643.35. This amount consisted of hospital and ambulance bills; funeral expenses; loss of work tools, clothing, and a camper shell; and attorney fees. The report notes: In order to recoup any monies from the insurance companies involved, Mrs. Haney had to retain legal services to pursue civil legal actions which required a retaining fee of $26,640.00.” Citing Fulton, supra, 109 Cal.App.4th 876, the officer observed that “the Probation Department interprets [Fulton] to give the surviving victim the right to full and reasonable attorney fees incurred to recover economic losses and to collect restitution otherwise permitted under... [s]ection 1202.4[, subd.] (f)(3)(H).”
There is a minor mathematical discrepancy. The specific figures identified by the probation officer that comprise Kara’s losses total $135 more than the total amount of restitution recommended by the officer; the lower amount was the sum awarded by the trial court. Since this discrepancy is in defendant’s favor and is not challenged by the Attorney General, we do not address it further here.
Defendant did not contest the restitution amount recommended for Calderon. Likewise, she did not contest the amounts listed in the probation report as reimbursement to Kara for hospital and ambulance bills, funeral expenses, and lost personal property. Defendant did contest the recommendation for restitution of $26,640 in attorney fees, arguing that there had been no showing that this amount of fees was actually and reasonably incurred by Kara. The People responded that the record showed that the attorney fees had been incurred and were therefore subject to restitution under section 1202.4, subdivision (f). The court overruled defendant’s objection and awarded restitution to Kara in the sum of $58,643.35.
B. Challenge to Attorney Fees
Defendant argues on appeal that the court abused its discretion in its inclusion of attorney fees in the restitution order to Kara. In her opening brief, defendant argued that the People did not substantiate the attorney fees claimed by Kara and there was no evidence as to the work performed by her attorney to recover economic damages that justified fees of $26,640. She asserted that “[a]ttorney fees of $26,640 to recover $15,000 without substantiation of work actually performed is per se unreasonable.” In her supplemental opening brief, defendant, citing, inter alia, Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1517, argues that because the court applied an erroneous legal standard—namely, it failed to make a determination as to whether the fees incurred were reasonable—it abused its discretion in making the attorney fee award.
The Attorney General responds that, to the extent defendant’s claim of error is that some of the attorney fees awarded were incurred to recover general damages (and thus nonrecoverable), as opposed to economic losses, it is forfeited because defendant failed to “raise this ‘allocation’ issue at the hearing and, more importantly, she failed to provide any evidence whatsoever to support the allocation issue....” The Attorney General argues further that the fees awarded were reasonable and that defendant presented no evidence to the contrary. Lastly, he contends that the court found that the attorney fees were “appropriate,” and that because it is presumed that courts have knowledge of and apply the correct legal standards (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another ground in People v. Price (2001) 25 Cal.4th 1046, 1069, fn. 13), the court here did not abuse its discretion by applying an erroneous legal standard.
At the hearing, defense counsel disputed the reasonableness of the fees claimed. While the argument was less than artful, it is apparent that counsel argued that there was no showing supporting the reasonableness of the fees under the circumstances. Those circumstances include that the parties against whom Kara could have brought a claim (defendant and her parents) were indigent, and the fees claimed were nearly double the $15,000 policy limits Kara recovered on the civil claim. Defense counsel also volunteered to testify that he facilitated the civil settlement on behalf of defendant, he was the only attorney involved on defendant’s behalf, and the matter was settled after a mere exchange of letters and faxes between counsel. The People responded that “the law requires that any fees incurred by the victim—any fee incurred by the victim should be borne by the defendant. [¶] So it appears perfectly reasonable that these fees were incurred, but maybe not paid as yet. But that’s not the controlling issue here.” The court then observed: “[T]he way I read the cases and the way I read the recitation of expenses both from the probation report and in the list, there is every reason to believe the accuracy of the numbers that have been provided by the victim, and there’s no reason to disbelieve it. [¶]...[¶] And so I believe that she has incurred $26,000 in attorney’s fees that she wouldn’t have if this thing hadn’t happened. [¶] Whether that is reasonable or unreasonable is not the issue. The question is whether she incurred them as a result of this.” (Italics added.)
It is evident that the court—based at least in part on the People’s argument in which they focused on whether Kara actually incurred the fees claimed—decided the matter based solely on whether the victim had in fact obligated herself to pay attorney fees of $26,640. While certainly one element of an award of attorney fees as part of victim restitution under section 1202.4, subdivision (f)(3)(H) is whether the fees were in fact incurred in pursuit of a victim’s recovery of economic losses caused by the defendant’s offense, it is a further statutory requirement that the fees were “reasonable.” (See Millard, supra, 175 Cal.App.4th at p. 31 [victim “was entitled to restitution of his attorney fees, but only to the extent those fees were reasonable”].) Here, it is plain that the court in making its award did not consider whether the fees it found that Kara had incurred were reasonable. Its statement, immediately after it found that the victim had in fact incurred the fees, that “[w]hether that is reasonable or unreasonable is not the issue,” makes it clear that the court did not consider whether the fees were reasonable before rendering the award. And we reject the Attorney General’s argument that, because the court found that the fees were “appropriate,” we may infer that it also found that the fees were reasonable. The court’s statement that it found “the attorney’s fee [to be] an appropriate restitution amount” followed on the same page of the reporter’s transcript after the court indicated that the issue of reasonableness was “not the issue[,but rather,] whether [the victim] incurred them....” There were no intervening comments by the court or counsel that would suggest that the court believed it was its duty to assess whether the fees Kara incurred were reasonable.
Millard, supra, 175 Cal.App.4th 7, is instructive. There, the defendant, while driving with a blood alcohol content of more than 0.1 percent, suddenly turned in front of the victim (Payne), who was traveling in the opposite direction on a motorcycle. (Id. at pp. 13-15.) Payne was severely injured in the accident, incurred medical expenses in excess of $200,000, and sustained a significant wage loss. (Id. at pp. 20-21.) He ultimately settled with the defendant’s insurer for $1,100,000; from those proceeds, he paid a one-third contingency fee of $366,666.67 to his attorney (Black). (Id. at p. 21.) The defendant challenged the reasonableness of Payne’s attorney fees. (Ibid.) The trial court concluded: “ ‘[T]he contingent fee of $366,666 is unconscionable under the facts and circumstances of [the] case.... [¶] But... the court does not believe that it has the right or jurisdiction to interfere with the contingent fee arrangement between the victim and his counsel. [¶] The court understands that it should only approve reasonable attorney[’]s fees but then the victim suffers the loss. That is inherently unfair as between the two parties.’ ” (Id. at pp. 22-23.) The court therefore based its restitution award of attorney fees—after allocating approximately $55,000 of fees for recovery of noneconomic damages—upon the full amount of fees incurred by Payne. (Id. at p. 23.)
The Court of Appeal in Millard reversed, concluding that the trial court had abused its discretion. It reasoned that the court had “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. First, to the extent it found Black’s contingency fee of $366,666 was ‘unconscionable,’ it appears it implicitly, if not expressly, found that fee was unreasonable. Nevertheless, it awarded Payne the full amount of that unreasonable fee because it would be ‘inherently unfair’ for Payne, as the victim, to bear the loss of paying Black’s fee to the extent it was unreasonable. To the extent the trial court found Black’s $366,666 fee was unreasonable but nevertheless awarded Payne that amount (before apportionment), it did not follow the express statutory limitation that a victim be awarded restitution only for ‘reasonable’ attorney fees. (Pen.Code, § 1202.4, subd. (f)(3)(H).) [¶] Second, to the extent the trial court implicitly found Black’s contingency fee of $366,666 reasonable because the court could not ‘interfere with the contingent fee arrangement between the victim and his counsel,’ the court apparently misapplied or misunderstood the established legal standard for determining reasonable attorney fees and, in so doing, abused its discretion.” (Millard, supra, 175 Cal.App.4th at pp. 31-32.)
Here, the court addressed only whether the attorney fees had been actually incurred by Kara and did not assess whether they were reasonable. The court therefore either believed it was not required to conduct such an inquiry, or, alternatively, once it determined that the fees were in fact incurred by the victim, that conclusion led necessarily to the finding that the fees were reasonable. Under either view of the court’s reasoning, it is clear that the court applied an improper legal standard in its award of $26,640 in attorney fees to Kara.
Where a restitution “order rest[s] upon a ‘ “demonstrable error of law,” ’ [it] constitutes an abuse of the court’s discretion. [Citations.]” (People v. Jennings (2005) 128 Cal.App.4th 42, 49 (Jennings).) The court’s misunderstanding or misapplication of the law in failing to assess the reasonableness of the attorney fees incurred by the victim, as required under section 1202.4, subdivision (f)(3)(H), constitutes such an abuse of discretion. (Millard, supra, 175 Cal.App.4th at pp. 31-33.) Therefore, we will reverse the judgment and remand the matter for the court to conduct a hearing to determine the amount of attorney fees Kara reasonably incurred in efforts to recover her economic losses.
C. Denial of Setoff
In her supplemental opening brief, defendant argues that the court also abused its discretion by failing to set off from the restitution ordered paid to Kara the amount Kara received in a civil settlement, $15,000. She argues that, although the settlement was paid as a result of insurance coverage procured by her parents, since defendant drove her parents’ truck that was covered by the insurance policy, the settlement should have been deemed to have been paid to the victim directly by defendant. In support of her position, defendant cities, inter alia, People v. Bernal (2002) 101 Cal.App.4th 155 (Bernal), Jennings, supra, 128 Cal.App.4th 42, and People v. Short (2008) 160 Cal.App.4th 899 (Short). The Attorney General responds that defendant failed to show that the insurance company for her parents made the settlement payment to Kara on defendant’s behalf. He further contends that the trial court did not err when it relied on People v. Hamilton (2003) 114 Cal.App.4th 932 (Hamilton) in support of its conclusion that defendant was not entitled to offset the insurance settlement against the amount of the restitution order.
We question whether defendant preserved her contention that she is entitled to offset the settlement from her restitution obligation. Our review of the record does not demonstrate that defense counsel below made any cogent argument in this regard. This potential claim forfeiture notwithstanding, since the Attorney General does not argue that the claim is forfeited, we address it on the merits. (See People v. Hernandez (2003) 30 Cal.4th 835, 863.)
The record before the court was that the truck driven by defendant was owned by her father who had insurance with AAA. The probation report noted further that Kara had been paid $15,000, and that the settlement “was not paid by the defendant, but rather by her parents[’] insurance money to settle a civil action suit against both the defendant and her parents, [and the settlement] may not be used to offset the defendant’s restitution obligations when payments are made on parent’s [sic] behalf and not directly on behalf of the defendant....” The probation officer cited Hamilton, supra, 114 Cal.App.4th 932, in support of this recommendation.
In Bernal, supra, 101 Cal.App.4th 155, the defendant was convicted of driving under the influence of alcohol and causing great bodily injury; the victim received a $15,000 settlement payment from the defendant’s insurer in exchange for a release of liability given to the insurer and the defendant. (Id. at p. 158.) After holding that the trial court erred by finding that the civil release acted as a bar to restitution under section 1202.4 (Bernal, at pp. 160-164), the appellate court concluded that the defendant on remand would be entitled to an offset to any restitution obligation determined by the court. (Id. at p. 168.)
In so concluding, the court distinguished two cases in which no setoff right was found: People v. Birkett (1999) 21 Cal.4th 226 (Birkett), and People v. Hove (1999) 76 Cal.App.4th 1266 (Hove). In contrast to Birkett, where the settlement sought to be used as an offset involved a payment by the victim’s insurer, and in contrast to Hove, where the defendant sought a setoff for expenses paid on behalf of the victim by Medicare and Medi-Caid, the Bernal court noted that the payment to the victim came directly from the defendant’s insurer. (Bernal, supra, 101 Cal.App.4th at pp. 166.) The Bernal court observed that in both cases, “the sources of the victims’ reimbursement were completely distinct and independent from the defendants. The payments from such sources were simply fortuitous events from which the defendants should not benefit.” (Ibid.) In concluding that the settlement payment from the defendant’s insurer constituted one made “ ‘directly from the defendant’ ” (id. at p. 167) and should thus be an offset to the restitution awarded, the court in Bernal cited four factors that distinguished the defendant’s insurer from other sources from which victims were reimbursed: “(1) the defendant procured the insurance, and unlike the other third party sources, its payments to the victim are not fortuitous but precisely what the defendant bargained for; (2) the defendant paid premiums to maintain the policy in force; (3) the defendant has a contractual right to have the payments made by his insurance company to the victim, on his behalf; and (4) the defendant’s insurance company has no right of indemnity or subrogation against the defendant. In sum, the relationship between the defendant and its insurer is that payments by the insurer to the victim are ‘directly from the defendant.’ ” (Id. at p. 168.)
A majority in Jennings, supra, 128 Cal.App.4th at pages 53 to 57, followed the holding and reasoning of Bernal in concluding that the defendant was entitled to an offset of a settlement paid to the accident victim by the insurer for the defendant’s mother, where the defendant was an insured under the automobile policy and the payment was made to obtain the victim’s release of claims against both the defendant and his mother. In so holding, the majority rejected the view that because the defendant was not the one who paid for the insurance, he was not entitled to the offset (id. at pp. 55-57), observing that “if a defendant has obtained insurance that covers the victim’s loss, irrespective of how the defendant went about procuring the insurance (e.g., by purchasing it himself or by having someone else purchase it, etc.), and that insurance results in the payment to the victim, Bernal applies.” (Id. at p. 57; see also Short, supra, 160 Cal.App.4th at pp. 902-905 [settlement payment by insurer for defendant’s employer was required to be offset from restitution award, where payment was on behalf of defendant as unnamed insured driving employer’s insured vehicle].)
The dissent in Jennings argued that the majority’s decision constituted an unwarranted extension of the holding in Bernal, noting that the insurance policy in question was procured by the defendant’s mother (the owner of the car), not by the defendant, and that he had nothing to do with the selection of the insurer or the payment of the insurance premiums. (Jennings, supra, 128 Cal.App.4th at p. 62 (dis. opn. of Benke, J.).)
In Hamilton, supra, 114 Cal.App.4th 932, the victim was shot by the defendant while he was working for defendant and his mother. After the victim sued both the defendant and his mother, the latter’s insurer settled the case on her behalf in exchange for a release and a dismissal of the suit. (Id. at p. 935.) The People challenged the court’s order offsetting the settlement from the defendant’s restitution obligation. (Id. at p. 937.) The appellate court distinguished Bernal, supra, 101 Cal.App.4th 155, on the basis that the payments were made by the insurer for the defendant’s mother. (Hamilton, at p. 942.) In finding that there was no evidence that the settlement was paid by the insurer on the defendant’s behalf (id. at p. 943), the court reasoned, “Payments here were made, not by Hamilton’s insurer, but by a source completely distinct and independent from Hamilton—namely, his mother’s insurer. Unlike the situation in Bernal, Hamilton did not procure or maintain the insurance, had no contractual right to require payments to be made on his behalf, and was potentially subject to an indemnity claim by the insurer. [The victim’s] receipt of any payment is due to two fortuitous events: Ms. Hamilton’s procuring insurance coverage and the insurance policy covering Hamilton’s acts. Hamilton should not benefit from these circumstances. [Citations.]” (Id. at p. 942, fn. omitted.)
Here, the court, after being informed that Kara had received the $15,000 settlement, concluded—without argument by counsel on the subject—that under Hamilton, supra, 114 Cal.App.4th 932, defendant was not entitled to a setoff of this amount from the restitution award. Our review of the record discloses that there was nothing showing that defendant (1) was an owner or co-owner of the truck involved in the accident apparently owned by her father; (2) procured the insurance that resulted in the settlement payment; (3) paid any of the insurance premiums; (4) had a contractual right to a defense from the insurer that ultimately paid the settlement; (5) was an insured under the subject insurance policy; or (6) received a release from the victim as part of a bargain under which the insurer paid Kara $15,000. (Cf. In re Tommy A. (2005) 131 Cal.App.4th 1580, 1590 [juvenile not entitled to offset from restitution obligation of settlement paid by insurer of owner of vehicle driven by juvenile].) Based upon the facts presented at the hearing, we conclude that the court did not abuse its discretion—impliedly concluding, under Hamilton, supra, 114 Cal.App.4th 932, that the settlement to Kara was not made on defendant’s behalf—by denying defendant the right to offset the settlement payment to Kara from the amount of her restitution obligation.
Likewise, defendant’s reliance on Vigilant Ins. Co. v. Chiu (2009) 175 Cal.App.4th 438, is misplaced. The primary issue there concerned whether an embezzlement victim’s insurer could obtain a civil judgment against the embezzler to reimburse it for proceeds paid to the insured. The court concluded that the fact that the victim had obtained a restitution order did not foreclose the victim (or the victim’s assignee) from pursuing a separate civil action founded upon the identical facts upon which the criminal conviction was based. (Id. at p. 445.) The court cited in passing Jennings, supra, 128 Cal.App.4th 42, and Short, supra, 160 Cal.App.4th 899, for the general proposition that “[i]n order to avoid unlawful duplicative recovery, a court can offset payments made on a civil judgment against the restitution order.” (Vigilant Ins. Co. v. Chiu, at p. 446.) As we have discussed, however, the record here does not support the right to a setoff, and the facts are distinguishable from those presented in Jennings and Short.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for the limited purpose of conducting a hearing to determine the amount of attorney fees that were reasonably incurred by Kara as a result of defendant’s conduct that shall be included in the restitution order pursuant to section 1202.4, subdivision (f). After determination of that fee amount, the court shall add it to the sum of $32,003.35 previously determined by the court to represent Kara’s economic loss (exclusive of attorney fees) subject to restitution to arrive at a total restitution figure applicable to Kara. The court shall thereafter enter a new judgment reflecting the modified amount of
restitution in favor of Kara as determined by the court; the new judgment shall be otherwise identical to the judgment from which this appeal was taken.
WE CONCUR: Rushing, P.J., Elia, J.