Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCWL CRCR 08-85937
Sepulveda, J.
Defendant was ordered to pay restitution to a retail nursery flower shop after she pleaded guilty in connection with the theft of money from the store. She argues that the trial court abused its discretion in ordering her to pay the attorney fees incurred when the nursery owners consulted with counsel on how to proceed after they discovered that defendant, who was their employee, had taken money from the store. We affirm.
I.
Factual and Procedural Background
Defendant was charged by complaint with one count of felony grand theft (Pen. Code, § 487, subd. (a)) after video surveillance showed her taking money from the register at the Laytonville nursery where she worked as a secretary. Defendant pleaded guilty to the charge under a plea agreement that called for her to be granted probation, and a restitution hearing was set.
All statutory references are to the Penal Code unless otherwise specified.
Defendant later sought to withdraw her plea, but the trial court denied her motion.
The two owners of the nursery where defendant had worked testified at the restitution hearing. Lorraine Dalton testified that nursery cash registers came up short on six days between June 28 and August 1, 2008; the total amount missing over that period was calculated to be $4,281.10. Dalton claimed a total loss of $6,870.16 due to defendant’s theft, which included the money taken from the store, the cost of purchasing surveillance equipment to determine who was stealing from the registers, and the cost to pay an employee overtime to install the surveillance equipment.
The amount that Dalton claimed in losses also included $750 in attorney fees. Dalton testified that after defendant was caught on surveillance video, the nursery owners contacted their attorney immediately to consult with her about what they should do with the evidence of theft. Dalton explained, “I wanted to know the correct steps of how to go about it, like whether we were supposed to talk to her [defendant] in person, whether we were supposed to call an officer and have them go over, how we were supposed to proceed in giving her last paycheck and in taking the steps to deal with this matter correctly.” Dalton’s attorney contacted law enforcement on the nursery’s behalf. An invoice from the attorney shows that the attorney had an hourly rate of $200, and that she spent a total of three and three-quarter hours over eight days making telephone calls and attending meetings about the theft at the nursery. Defendant argued that the attorney fees were not the proper subject of a restitution award, because it was not necessary for the nursery owners to hire an attorney to help with the prosecution of the case.
The trial court fixed the amount of restitution at $6,870.16, the total amount that the nursery claimed. As for the award of attorney fees, the court’s minute order stated: “The attorney’s fees were reasonable and incurred only to facilitate the investigation and to ensure the victim proceeded lawfully. A victim should not be penalized for proceeding conscientiously and with respect for the legal rights of others. In short, the salient fact remains that... the attorney fees... would [not] have been [incurred] but for defendant’s unlawful conduct.” The court concluded that the attorney fees were authorized under section 1202.4, which permits the court to order a defendant to pay restitution directly to a crime victim.
The trial court suspended imposition of sentence and placed defendant on probation for three years, with the condition, among others, that she serve 120 days in jail and pay restitution beginning 60 days after her release from custody. This timely appeal followed.
II.
Discussion
Defendant’s sole argument on appeal is that the trial court erred in ordering her to pay $750 in attorney fees as part of the restitution order. “In 1982, California voters amended the state Constitution by way of initiative which established a new constitutional right for crime victims to obtain restitution for losses suffered as a result of a criminal act and directed the Legislature to enact laws empowering the trial courts to issue such orders.” (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) Proposition 8 (passed June 1982) added article I, section 28 to the California Constitution, which at the time of the offense in this case provided: “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.” (Former Cal. Const., art. I § 28, subd. (b).) “[B]oth the People of this state when they passed Proposition 8, and extensive case authority express that restitution statutes are to be interpreted broadly and liberally.” (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.)
Former California Constitution article I, section 28 was amended by initiative (Proposition 9) on November 4, 2008. Former subdivision (b) was renumbered subdivision (b)(13), and the text of the subdivision was amended. Neither side argues that the changes to the wording of the subdivision alter the analysis of the restitution ordered in this case, and we conclude that they do not.
Section 1202.4, which the Legislature enacted to implement Proposition 8, provides in part: “(a)(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. [¶]... [¶] (f)... [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.... [¶]... [¶] (3) To the extent possible, the restitution order... 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, including, but not limited to, all of the following: [¶]... [¶] (H) Actual and reasonable attorney’s fees and other costs of collection accrued by a private entity on behalf of the victim.” (Italics added.) The statutory list of economic losses that may be recovered by a victim as restitution is not exclusive. (People v. Thygesen (1999) 69 Cal.App.4th 988, 994.) There are “two essential requirements for awarding restitution: (1) the victim must have suffered a loss ‘as a result of the commission of a crime’; and (2) the amount of the loss must be ‘determined’ by the court.” (People v. Ortiz (1997) 53 Cal.App.4th 791, 799.)
“We review a restitution order for abuse of discretion.” (People v. Mearns, supra, 97 Cal.App.4th at p. 498.) “ ‘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.’ ” (Id. at p. 499.)
Attorney fees have been awarded as restitution where the victim paid to investigate embezzlement and to obtain a civil judgment against a defendant for conversion (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1410), where the victim paid contingency fees in a personal injury action to obtain a settlement from the defendant’s automobile insurer (People v. Fulton (2003) 109 Cal.App.4th 876, 884-885; People v. Pinedo (1998) 60 Cal.App.4th 1403, 1405-1406), and where the victim incurred fees to prevent the sale of defendant’s assets (People v. Lyon (1996) 49 Cal.App.4th 1521, 1525). Defendant argues that the award of attorney fees in this case was an abuse of discretion because, unlike in previous cases, the victim’s “fees were not incurred as ‘a result of’ [defendant’s] actions, but instead were incurred out of the victims’ reluctance to contact the police directly regarding the incident.” This characterization of events minimizes the reasons the nursery owners contacted their attorney. The trial court found it was necessary for the owners to purchase surveillance equipment to determine who was stealing money from the nursery, a finding not challenged on appeal. Once defendant was caught on tape taking money from a register, the nursery owners wanted to make sure that they proceeded in a legal manner and wished to determine whether they should first call the authorities or contact defendant directly regarding her final paycheck. The attorney thus did more than act as a “conduit” between the nursery and law enforcement, as defendant claims.
Defendant does not challenge the reasonableness of the attorney fees charged.
We agree that the attorney fees in this case are factually distinguishable from the attorney fees recoverable in other cases cited by defendant. The record nonetheless supports the conclusion that the legal expenses were incurred “as the result of the defendant’s criminal conduct,” (§ 1202.4, subd. (f)(3)), which defendant candidly acknowledges is the correct test for determining whether a loss is the proper subject of a restitution order. (People v. Pinedo, supra, 60 Cal.App.4th at pp. 1405-1406 [“The test is not whether the victim’s legal fees arose directly from the criminal case, but whether they were a ‘determined economic loss incurred as a result of the defendant’s criminal conduct.’ (§ 1202.4, subd. (g).”].) Defendant repeatedly stresses that the assistance of an attorney was not “necessary” to the police investigation or prosecution of this case. Although it may well be true that it was not strictly “necessary” to the prosecution of the case to enlist the help of an attorney, again, that is not the test to determine whether the attorney fees were recoverable. Nursery owner Dalton testified she consulted with an attorney to ensure that she proceeded lawfully, and the record supports the trial court’s conclusion that attorney fees would not have been incurred “but for defendant’s unlawful conduct.” We likewise agree with the trial court that “[a] victim should not be penalized for proceeding conscientiously and with respect for the legal rights of others.” To deny the nursery its attorney fees under these circumstances would be to fail to fully reimburse the victim for its economic loss. (People v. Maheshwari, supra, 107 Cal.App.4th at p. 1410.)
In People v. Torres (1997) 59 Cal.App.4th 1, 4-5, this court held that a law enforcement agency that paid for drugs in the course of an undercover investigation was not a direct victim of a crime entitled to restitution under section 1202.4. We reject defendant’s attempt to analogize this case to one where a public agency sought reimbursement for the cost of investigating criminal activity.
We emphasize that the economic losses enumerated in section 1202.4, subdivision (f)(3) are illustrative only and not exclusive. The trial court concluded that the attorney fees incurred here were an “economic loss” recoverable under section 1202.4, subdivision (f)(3), without specific reference to subdivision (f)(3)(H), defining recoverable attorney fees and cited by defendant. “In examining the restitution statute, ‘[t]he intent of the voters is plain: every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss.’ [Citation.] As a result, ‘the word “loss” must be construed broadly and liberally to uphold the voters’ intent.’ [Citation.] Because the statute uses the language ‘including, but not limited to’ these enumerated losses, a trial court may compensate a victim for any economic loss which is proved to be the direct result of the defendant’s criminal behavior, even if not specifically enumerated in the statute.” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1046, italics added [affirming award of cost of traditional Hmong spirit calling ceremony as restitution].) Even if the specific wording of section 1202.4, subdivision (f)(3)(H) does not cover the precise attorney fees incurred in this case, the trial court reasonably could have concluded that the attorney fees were “an ‘economic loss’ within the general language of the first sentence of section 1202.4, subdivision (f).” (People v. Mearns, supra, 97 Cal.App.4th at p. 503 [expenses incurred by victim to move from home where she was raped recoverable as restitution, even if not specifically covered by moving expenses described in § 1202.4, subd. (f)(3)(I)].)
III.
Disposition
The restitution order is affirmed.
We concur: Ruvolo, P. J., Rivera, J.