Filed 2/25/14 P. v. McLaughlin CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B242588

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA075909)
         v.

MICHAEL MCLAUGHLIN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Steven R. Van Sicklen, Judge. Affirmed as modified and remanded.


         Steven Graff Levine for Defendant and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Ana R.
Duarte, Deputy Attorneys General, for Plaintiff and Respondent.


                                             ____________________
       Appellant Michael McLaughlin appeals from the judgment following his plea
bargain. Specifically, he challenges portions of the trial court’s restitution order. We
agree with appellant that the trial court abused its discretion by ordering him to pay the
victim lost income in an excessive amount, by setting the date for the accrual of interest
as the date of injury, and by ordering that the victim be paid first. We find no merit to
appellant’s remaining contentions.
                                     BACKGROUND
The Incident
       At approximately 1:00 a.m. on June 21, 2009, Kimberly Keeler (the victim) and
her nephew were leaving a bar in Manhattan Beach. Appellant’s friend was trying to
detain appellant, who was heavily intoxicated and acting belligerent. The victim’s
nephew called appellant “gay” and a fight broke out between the nephew and appellant’s
friend. The victim was standing near the men. While she was yelling at the men to stop
fighting, there was evidence that she also yelled at her nephew to “fuck” up appellant’s
friend and “kick [his] ass.” At some point, appellant tackled the victim. She told
responding officers and paramedics that she thought her right forearm and left hand
might be broken, but that she would see a doctor later. The victim ultimately suffered
extensive injuries and underwent several surgeries. Appellant was 29 years old at the
time, a college graduate, employed full-time, and had no prior criminal history.
The Information
       Appellant was originally charged with misdemeanor battery, but was later charged
with two felonies after the extent of the victim’s injuries came to light. On February 14,
2011, appellant was charged with assault by means likely to produce great bodily injury
(Pen. Code, § 245, subd. (a)(1))1 (count 1), and battery with serious bodily injury (§ 243,
subd. (d)) (count 2). As to count 1, it was alleged that appellant personally inflicted great
bodily injury (§ 12022.7, subd. (a)). Appellant pled not guilty and denied the special
allegation.

1
       All further statutory references are to the Penal Code unless otherwise indicated.

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The Original Plea Bargain
       In April 2010, appellant entered a plea agreement, changing his plea from guilty to
no contest to count 2, and agreed to attend 60 Alcoholics’ Anonymous (AA) meetings,
perform 100 hours of community service, pay the victim $84,000 upfront for two years of
lost income as a massage therapist based on her gross business income of $42,635, and to
pay for her retraining or education up to a certain amount. The plea agreement also
contemplated that the victim might accumulate additional medical bills and might require
additional lost income for up to three years. If appellant fulfilled his obligations, he
would be sentenced to a misdemeanor on count 2. Appellant claims that he was able to
make such a large upfront payment because he was permitted to pay the victim’s medical
bills through the California Victim Compensation and Government Claims Board (VCB),
which negotiates a reduced rate with medical providers.
       In November 2010, the victim claimed she was unaware that appellant’s sentence
could be reduced to a misdemeanor, and she opposed the plea bargain prior to sentencing.
She retained attorney Michael Fell to represent her interests. In January 2011, the
victim’s attorney appeared at the sentencing hearing. The trial court refused to accept the
plea bargain and allowed appellant to withdraw his plea.
The New Plea Bargain
       On May 11, 2011, appellant entered into another plea agreement that was
essentially the same as the original one. He entered a plea of no contest to count 2, with
sentencing to be continued for one year to allow him to pay the victim restitution in full.
If restitution was paid in full, the charge would be reduced to a misdemeanor and
appellant would be placed on summary probation. If restitution was not paid in full,
appellant would be sentenced to a felony. A hearing to determine the amount of
restitution was set to take place six months later. The prosecutor represented that
appellant had substantially complied with the original plea bargain by completing a six-
month anger management program, performing 100 hours of community service,
attending 60 AA meetings, and had paid approximately $115,000 of victim restitution to
date. The victim’s attorney opposed the plea bargain. The prosecutor stated: “And it is

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my representation to the court that [the victim] did agree to this because it was based on
the understanding that she would receive a very large amount of money to take care of
her expenses before he was even going to plead.” The court accepted the new plea.
The Restitution Order
       A restitution hearing was held on April 27, 2012. The trial court ordered appellant
to pay a total of $310,645.10 in direct victim restitution, including medical expenses, lost
wages for three years six months, interest, attorney fees and a balance due to the VCB,
minus the amounts already paid.
The Sentencing Hearing
       On May 11, 2012, pursuant to section 17, subdivision (b), the trial court amended
the information to reflect count 2 as a misdemeanor, suspended imposition of sentence,
and placed appellant on summary probation for a period of three years. Appellant was
ordered to pay victim restitution in the amounts determined at the restitution hearing.
Count 1 was dismissed.
                                       DISCUSSION
       Appellant contends that the trial court abused its discretion in fashioning the
restitution order in the following ways: (1) Failing to order the victim to submit her
medical bills to the VCB; (2) ordering appellant to pay an excessive amount of lost
income; (3) ordering appellant to pay the victim’s full amount of attorney fees; (4) fixing
the date for the accrual of interest as the date of injury; and (5) ordering appellant to pay
the victim, rather than the VCB, the remaining balance on her VCB account.
I. Applicable Law and Standard of Review
       Section 1202.4 states: “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.” (§ 1202.4, subd. (a)(1).)
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 incurred as the result
of the defendant’s criminal conduct,” including: “Medical expenses; [¶] [m]ental health
counseling expenses; [¶] [w]ages or profits lost”; and “[a]ctual and reasonable

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attorney’s fees and other costs of collection accrued by a private entity on behalf of the
victim.” (§ 1202.4, subd. (f)(3).) Victim restitution statutes, like section 1202.4, enacted
as a result of Proposition 8, are to be interpreted liberally and broadly to uphold the
intention of the voters that victims of crimes receive restitution. (In re Johnny M. (2002)
100 Cal.App.4th 1128, 1132–1133.) However, restitution orders must be limited “to the
victim’s economic losses and to mitigate those losses to the extent possible.” (In re
Anthony M. (2007) 156 Cal.App.4th 1010, 1017.)
       A trial court’s order of victim restitution is reviewed for an abuse of discretion.
(People v. Giordano (2007) 42 Cal.4th 644, 663–664; People v. Baker (2005) 126
Cal.App.4th 463, 467.) “When considering a trial court’s restitution determination, we
consider whether it is arbitrary, capricious, or beyond the bounds of reason under all the
circumstances.” (People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) No abuse of
discretion will be found when there is a factual and rational basis for the amount of
victim restitution ordered by the trial court. (People v. Baker, supra, at p. 467; In re
Johnny M., supra, 100 Cal.App.4th at p. 1132.) However, if there is no substantial
evidence to support the award, and there is no rational explanation, the trial court has
abused its discretion. (People v. Thygesen (1999) 69 Cal.App.4th 988, 995–996.)
II. Submission of Medical Bills to the VCB
       Appellant contends that in fashioning the restitution order, the trial court abused
its discretion by not ordering the victim to submit her medical bills to the VCB pursuant
to the May 11, 2011 plea bargain. We disagree.
       Appellant asserts that when he entered into the original plea bargain, it was
understood by the defense, the prosecutor and the victim that he could only perform his
financial obligations if the victim’s medical bills were paid through the VCB at its
reduced rate. He points out that following the original plea bargain, the victim did, in
fact, submit her medical bills to the VCB, and that he detrimentally relied on her doing
so. Prior to the hearing on the restitution order, he learned that the victim had stopped
submitting her bills to the VCB. He therefore requested that the trial court order the
victim to continue submitting her bills to the VCB. He argues that the trial court should

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have made such an order, or, at the very least, should have given effect to the parties’
mutual intention in fashioning the restitution order.
       But, as the trial court correctly noted, the terms of the May 11, 2011 plea bargain
did not mandate that the victim’s medical bills be submitted to the VCB. Nor has
appellant cited any statutory or other authority mandating such a required procedure.
Moreover, appellant was aware that the victim opposed the May 11, 2011 plea bargain
when he entered into it. Therefore, she was never a party to this agreement, and there is
no mutual intention for the court to enforce. Appellant’s argument that he is entitled to
specific performance because he detrimentally relied on the victim’s past performance of
submitting her bills to the VCB has no merit where the victim was not a party to the
agreement. The only other party to the May 11, 2011 plea agreement besides appellant
was the prosecutor, who performed under the plea agreement by informing the trial court
that appellant had substantially complied with the agreement and recommending that his
sentence be reduced to a misdemeanor, which the trial court did. As the People note,
“appellant’s argument here appears to be that the victim should be held to the original
plea agreement which he withdrew when the prior court indicated it would not sentence
him to a misdemeanor . . . . That ship sailed, and he entered a new plea agreement in
May 2011, albeit, under substantially the same terms except that the victim had accrued
and incurred additional economic losses that were properly attributed to his criminal
conduct and therefore were subject to the restitution order.”2




2
        The trial court indicated that if it did order the victim to submit her bills to the
VCB, appellant would still be responsible for the amount the medical providers billed to
the VCB, not how much they were willing to accept. Appellant contends: “To the extent
the trial court’s order was premised on the mistaken belief that if it did order the victim to
submit her bills to VCB and VCB paid those bills, appellant was still responsible for the
amounts medical providers billed to VCB, the trial court erred as a matter of law.”
Because the trial court did not order the victim to submit her bills to the VCB, appellant’s
contention is moot.


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III. Lost Income
       Appellant contends that the trial court abused its discretion in ordering him to pay
“lost wages” of $42,635 per year for three years six months, because this amount is
excessive.3 We agree.
       The trial court ordered restitution in this amount primarily because it was the same
amount included in the original plea agreement. In arguing to the trial court that this
amount was excessive, appellant’s counsel stated: “And I want the record to be clear that
the payment of the $84,000 [for two years of lost income] was premised on a plea bargain
and not on a restitution amount. It was premised on us getting a plea bargain, getting her
money up front, because we thought there was a mechanism in place for medical bills
where my client could afford to pay the whole judgment. That’s gone. That’s out the
window. So to state that, you know, one part of the plea bargain I’m stuck with but not
the other part, I don’t find particularly fair.”
       The amount of $42,635 originates from the victim’s 2008 tax return, which
identifies this amount as “Gross receipts or sales” on her Schedule C (Profit or Loss From
Business). But, as appellant points out, the victim’s Schedule C also states that she had
$25,011 in expenses in running her massage business, leaving her with a net profit of
$17,624.
       Section 1202.4, subdivision (f)(3)(D) provides that the victim is entitled to
“[w]ages or profits lost due to injury incurred by the victim.” Because the victim ran a
massage business, she was not receiving wages at the time of the incident, but was living
off of her profits. The victim was therefore entitled to receive only her lost profits. “A
restitution order is intended to compensate the victim for [her] actual loss and is not
intended to provide the victim with a windfall.” (People v. Chappelone (2010) 183
Cal.App.4th 1159, 1172.) Any amount above her lost profits of $17,624 constituted an
improper windfall for the victim. Thus, the trial court abused its discretion in ordering
appellant to pay more than this amount in lost income. Accordingly, the amounts in

3
      The restitution order includes lost wages of $64,778 for three years six months,
apparently deducting the two years of payments appellant has already made.

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excess of $17,624 per year for three years six months that have already been paid by
appellant shall be applied to the victim’s other reimbursable expenses at a new restitution
hearing upon remand.
IV. Attorney Fees
       Appellant contends that the trial court abused its discretion by ordering him to pay
the victim’s full attorney fees of $32,670. We disagree.
       Section 1202.4, subdivision (f)(3)(H) provides that “[a]ctual and reasonable
attorney’s fees and other costs of collection accrued by a private entity on behalf of the
victim” may be recovered as restitution. (People v. Fulton (2003) 109 Cal.App.4th 876,
884–885 [“we hold that under the plain meaning and express purpose of section 1202.4,
subdivision (f)(3)(H), actual and reasonable attorney fees incurred by a victim as a result
of the defendant’s criminal conduct are recoverable as restitution, but they are limited to
reasonable attorney fees incurred to collect restitution otherwise permitted under the
statute”]; People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1411 [“Both the attorney
fees and private investigator’s fees constituted economic losses incurred by [the victim]
as a result of appellant’s conduct. Both were properly the subject of a restitution
order”].)
       Appellant argues that the victim should not receive the full amount of her attorney
fees because her attorney spent time trying to undo the plea agreements, rather than
solely attempting to obtain restitution for her. He argues that “the upending of the plea
and restitution efforts took place on different dates, and the [victim’s] lawyer’s bill can
reasonably be divided between the restitution aspect and the upending of the plea,” but he
provides no citation to the record.
       At the restitution hearing, the associate for the victim’s attorney stated: “In this
case, from day 1 when Mr. Fell was hired, restitution was on the table. It was always
being discussed. It was incorporated into conversations. It was discussed . . . in briefs,
from the first brief that was filed by Mr. Fell back in November 24th, 2010. That was the
first time there was discussions about restitution. And . . . it cannot be separated out. It’s
been incorporated through every bit of work that we’ve done on behalf of [the victim].”

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The trial court agreed stating, “Based on the bills—the focus of the bills was restitution
beginning in November of 2010.”
       “[B]ecause of the strong public policy seeking to provide crime victims with direct
restitution for all the ‘losses they suffer’ (Cal. Const., art. I, § 28, subd. (b)), 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.” (People v. Fulton, supra, 109 Cal.App.4th at p. 885.) The
record shows that the trial court reviewed Mr. Fell’s briefs, his bills, and heard arguments
from him and the victim. Under the circumstances here, we cannot say that the trial court
abused its discretion in ordering appellant to pay the victim’s full attorney fees in the
amount of $32,670.
V. Interest Calculation
       Appellant contends that the trial court abused its discretion in ordering him to pay
interest in the amount of $57,914, because this calculation was based on a date not
permitted under the restitution statute. We agree.
       Section 1202.4, subdivision (f)(3)(G) provides that a victim may recover as
restitution “[i]nterest, at the rate of 10 percent per annum, that accrues as of the date of
sentencing or loss, as determined by the court.”
       Here, the trial court awarded interest on numerous items, including medical bills,
“from the date of the injury.” Because section 1202.4, subdivision (f)(3) provides that a
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,” we conclude that interest may begin to accrue only on the
date the victim actually incurs a financial loss, or on the date of sentencing.
       The date of injury, or the date of the incident, was June 21, 2009. The restitution
order was made on April 27, 2012. According to appellant, the majority of the itemized
bills for which interest was calculated involved services that occurred after the date of
injury. Because the financial loss occasioned by these bills accrued after the date of



                                                9
injury, there was no rational or substantial basis for the trial court to order interest to
begin accruing as of June 21, 2009.
       Accordingly, we remand the matter to the trial court to determine a statutorily
approved date for interest to begin accruing on the itemized bills.
VI. Payment of $12,449.30 to the VCB
       Finally, appellant contends, and the People concede, that the trial court abused its
discretion by ordering appellant to pay the remaining balance in the victim’s VCB
account to the victim, rather than to the VCB.
       Section 1202.4, subdivision (f)(2), provides: “Determination of the amount of
restitution ordered pursuant to this subdivision shall not be affected by the
indemnification or subrogation rights of a third party. Restitution ordered pursuant to this
subdivision shall be ordered to be deposited to the Restitution Fund to the extent that the
victim, as defined in subdivision (k), has received assistance from the California Victim
Compensation Program . . . .” Government Code section 13963, subdivision (a),
provides that the VCB “shall be subrogated to the rights of the recipient to the extent of
any compensation granted by the board,” and that the subrogation rights “shall be against
the perpetrator of the crime or any person liable for the losses suffered as a direct result
of the crime which was the basis for receipt of compensation . . . .”
       Thus, at the sentencing hearing on May 11, 2012, when appellant was prepared to
directly reimburse the VCB with a check for $12,449.30, the trial court erred in ordering
this amount to be paid to the victim instead. Accordingly, upon remand, the trial court is
directed to order appellant to make future restitution payments to the VCB, until the
victim’s VCB account is paid in full.




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                                      DISPOSITION
       The matter is remanded to the trial court for a new restitution hearing and order, in
which the amount of reimbursable lost income is reduced to $17,624 per year for three
years six month, the total interest amount is recalculated from a new date, and appellant
is ordered to pay the VCB first until the victim’s VCB account is paid in full. In all other
respects, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                          ______________________________, J.
                                                ASHMANN-GERST


We concur:

_______________________________, P. J.
           BOREN



_______________________________, J.*
           FERNS




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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