Filed 1/28/16 P. v. McNeill CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                   2d Crim. No. B259075
                                                                            (Super. Ct. No. F476754)
     Plaintiff and Respondent,                                              (San Luis Obispo County)

v.

KEVIN MICHAEL MCNEILL,

     Defendant and Appellant.



                   Kevin Michael McNeill appeals a $34,999.99 restitution judgment entered
after he was convicted by plea of felony driving with a .08 percent blood alcohol level or
higher causing bodily injury. (Veh. Code, § 23153, subd. (b).) The trial court suspended
imposition of sentence, granted probation, and ordered appellant to pay $34,999.99
restitution for attorney fees paid by the victim in negotiating a $100,000 insurance
settlement. (Pen. Code, § 1202.4, subd. (f)(3)(H).)1 Appellant contends that the trial
court erred in not apportioning the attorney fees to the victim's economic and
noneconomic damages. We affirm.
                                         Facts and Procedural History
                   On July 12, 2012, appellant drove his Ford F-150 truck across a center
divider at 50-55 miles per hour. Appellant hit Madeleline LaVack (victim) head-on,


         1
             All further statutory references are to the Penal Code.
destroying the truck and victim's Mini Cooper. Appellant had a blood alcohol level of
.11 percent.
               Victim suffered a fractured ankle, a broken right foot, and chronic neck
injury, causing her to miss 10 weeks of work and lose $4,580 wages. Victim's out-of-
pocket medical expenses were $505. Victim hired a personal injury lawyer on a
contingency fee basis to recover personal injury damages. Appellant's insurer settled for
$50,000 underinsured motorist bodily injury liability policy limits and the victim's carrier
settled for $50,000. Victim sought $34,999.99 restitution for the contingency fees paid
her attorney: $18,333.33 for settling with appellant's insurer and $16,666.66 for setting
with her own insurer.
               Appellant argued that the trial court could not order restitution for fees that
were incurred to recover noneconomic damages. Appellant agreed that the victim's
economic damages were covered by the $50,000 paid by his insurance company but
claimed that the $50,000 recovery on the victim's policy was "gravy" and constituted
non-economic damages.2 Appellant argued that the restitution award should be reduced
from $34,999.99 to $18,333.33. The trial court impliedly found that the victim's
economic damages, which included future medical treatment, exceeded $100,000.
                                          Discussion
               Appellant argues that the trial court erred in not allocating the attorney fees
to those fees incurred for recovering economic damages. We review for abuse of
discretion and uphold the restitution award "as long as the determination of economic
loss is reasonable . . . ." (People v. Giordano (2007) 42 Cal.4th 644, 665.) "[A] victim
seeking restitution (or someone on his or her behalf) initiates the process by identifying
the type of loss ([Pen. Code,] § 1202.4, subd. (f)(3)) he or she has sustained and its

       2
         At the restitution hearing, defense counsel argued that Attorney Louis "Koory
actually recovered $50,000 on behalf of the [victim] . . . from my client's insurance
policy. And that would certainly cover economic damages and we have no quarrel with
that. [¶] Mr. Koory then went on to present a claim on the [victim's] under-insured
policy, . . . and that was essentially gravy on top of the economic damages, on top of the
out-of-pocket expenses." (Italics added.)
                                               2
monetary value. Where the restitution claimed is attorney fees, this requirement is met
when the record contains prima facie evidence of reasonable attorney fees incurred by the
victim to recover the economic losses. [Citations.]" (People v. Fulton (2003) 109
Cal.App.4th 876, 886.) If a portion of the attorney's fees was incurred solely to collect
noneconomic damages, the criminal defendant has the "burden to prove his contention by
a preponderance of the evidence. [Citation.]" (In re Imran Q. (2008) 158 Cal.App.4th
1316, 1322.) Assuming appellant carries his burden, the "total reasonable fees should be
reduced accordingly. [Citations.]" (People v. Millard (2009) 175 Cal.App.4th 7, 33.)
              In People v. Millard, supra, 175 Cal.App.4th 7, defendant was convicted of
felony driving under the influence causing bodily injury to another. (Veh. Code, §
23153, subd. (a).) The victim retained a personal injury lawyer who settled with
defendant's insurance carrier for $1.1 million. (People v. Millard. supra. 175
Cal.App.4th at p. 21.) Although the reasonable value of the attorney's services was
$20,000 to $40,000, the victim paid her attorney $366,666 based on a contingency fee
contract. (Id., at p. 22.) The trial court found the fee was unconscionable because "a
huge amount of money [was] recovered with little or no effort on the part of the
Attorney . . . ." (Ibid.) The court, however, awarded $366,666 restitution on the ground
that it had no "right or jurisdiction to interfere with the contingent fee agreement between
the victim and his counsel. . . ." (Ibid.) The Court of Appeal reversed. A trial court
abuses its discretion when it fails to exercise its discretion. (People v. Sandoval (2007)
41 Cal.4th 825, 847-848.)
              Unlike, Millard, the trial court did not find that the contingency fee was
unconscionable or that the insurance settlement involved no effort on the part of the
victim's attorney. The trial court concluded that the $34,999.99 contingency fee was
reasonable and that the victim's economic damages exceeded $100,000." Appellant's
drinking and driving directly caused the lost wages, medical bills and property damage
covered by the settlement. The legal expense incurred by the victim to recover these
damages from appellant's [and victim's insurance carrier[s] was 'proper, necessary, and a


                                             3
logical result of appellant's criminal conduct.' [Citations.]" (People v. Pinedo (1998) 60
Cal.App.4th 1403, 1406.)
              Appellant argues that the victim did not suffer $100,000 economic
damages. That is appellant's burden of proof, not the victim's. (In re Imran Q., supra,
158 Cal.App.4th at p. 1322; People v. Pinedo, supra, 60 Cal.App.4th at p. 1406; People
v. Millard, supra, 175 Cal.App.4th at pp. 34-35.) Although the past economic damages
total $5,085, victim's future economic damages will more than likely exceed $100,000 as
evidenced by the probation report, the traffic accident report, photos of the head-on
collision, the preliminary hearing transcript, and the declaration of the victim's attorney.
Victim suffered a fractured ankle and foot and chronic neck injuries, causing her to miss
10 weeks of work. Victim's attorney, an experienced personal injury lawyer, declared
that victim will require years of treatment for epidural shots, physical therapy, possible
neck surgery, chiropractic care, and counseling.
              The dissent contends that victim's future economic damages are speculative
but it is not our function to reweigh the evidence. To hold that a fractured foot and ankle,
a chronic neck injury, and totaled car is worth only $5,085 economic damages defies
common sense. Appellant objected to the total fee amount ($34,999.99) but produced no
evidence on the allocation of attorney fees for economic and non-economic damages,
thus waiving the issue. (In re Imran Q., supra, 158 Cal.App.4th at p. 1321.) "[I]t would
be improper to reduce the attorney fees incurred to obtain economic damages merely
because those same attorney fees also led to the recovery of nonrecoverable damages
(e.g., pain and suffering damages). . . . [W]hen 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.]"
(People v. Fulton, supra, 109 Cal.App.4th at p. 885.)
              One could argue that the contingency fee contract does not establish the
reasonableness of the fees and that the victim must submit attorney time sheets and
lodestar calculations before restitution can be ordered. The loadstar method is a fee
shifting mechanism used in civil actions that confer a significant benefit to the public.

                                              4
(See e.g., Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 318; Serrano v. Priest (1977)
20 Cal.3d 25, 46-47.) It has little to do with victim restitution. (See People v. Taylor
(2011) 197 Cal.App.4th 757, 764 [restitution based on attorney fee contingency fee
contract]; People v. Ortiz (1997) 53 Cal.App.4th 791, 800 [trial court may use any
rational method of fixing the amount of restitution which is reasonably calculated to
make the victim whole].) Our Supreme Court has never mandated "a blanket 'lodestar
only' approach" in civil cases and has stated that "every fee-shifting statute must be
construed on its own merits . . . ." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1136.)
              Section 1202.4, subdivision (f)(3)(H) authorizes restitution for "[a]ctual and
reasonable attorney's fees" incurred by the victim in recovering her economic damages.
"Applying the lodestar to attorney fees incurred by crime victim overlooks the
fundamental purpose of the statutory and constitutional right to victim restitution,
awarding 'full restitution' to the victim absent 'compelling and extraordinary reasons for
not doing so. . . .' (§ 1202.4, subd. (f).) Since a victim will likely have to pay a
contingent fee in any personal injury action resulting from the crime, evidence that the
victim incurred the contingent fee is prima facie evidence of a loss entitling [her] to
compensation." (People v. Taylor, supra, 197 Cal.App.4th at p. 764.) Where there is no
principled way to allocate attorney's fees with respect to the victim's recovery of
economic and noneconomic damages, the victim must be fully reimbursed for all actual
and reasonable attorney fees. (In re Imran Q., supra, 158 Cal.App.4th at p. 1322.)
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                            YEGAN, J.
I concur:

              GILBERT, P. J.




                                               5
PERREN, J., Dissenting:
              I respectfully dissent.
              The majority rejects a straw argument. Appellant does not "contend[] that
the trial court erred in not apportioning the attorney fees to the victim's economic and
noneconomic damages." (Maj. op., at p. 1.) Appellant recognizes that this is his burden
and that, should he fail to meet it, the law presumes all damage to be economic. Indeed,
as the majority notes, appellant conceded his liability for $18,333.33 in fee restitution
because he could not prove that the attorney's work negotiating the $50,000 settlement
with his insurer was divisible between economic and noneconomic losses.
              Appellant's contention is that the victim suffered only $5,085 in economic
losses and that a settlement with her own insurer was unnecessary except to recoup
noneconomic losses. His argument is logically sound and, in my view, sufficient to meet
his burden. To rebut appellant's showing, the victim should have pointed to evidence
(supplementing the record if necessary) demonstrating that her economic losses exceeded
$50,000 and only would be fully covered by a second insurance settlement.
              This is not a Herculean task. If the victim had sought compensation
directly from appellant rather than through an insurer, she would be required "to provide
an adequate factual basis for the [restitution] claim." (People v. Giordano (2007) 42
Cal.4th 644, 664.) Moreover, "a trial court has broad discretion to choose a method for
calculating the amount of restitution" and need only "employ a method that is rationally
designed to determine the surviving victim's economic loss." (Id. at pp. 663-664.)
              The victim's statement of loss in the probation report, which improperly
included $15 for therapy received the week before the accident, was the only evidence
from which to quantify her economic damages. Ninety percent of her reported damages
were for lost wages in the immediate aftermath of the collision. The victim did not claim
these would recur. To speculate that the victim, having incurred just $490 in medical
expenses during the year after the accident, will incur more than $44,930 in future
medical expenses is staggering.


                                              6
              The majority leaves the impression that the record contains other evidence
to support its speculation, such as "the traffic accident report, photos of the head-on
collision, the preliminary hearing transcript, and the declaration of the victim's attorney."
It does not. The police report and photos merely document that the collision occurred.
The remaining evidence describes the victim's injuries qualitatively but provides no basis
for quantifying them.
              According to the preliminary hearing transcript, the victim "ended up
having a fractured ankle and her neck had been bothering her." Her attorney stated in his
declaration that she "continues to have residual symptoms in her right foot and ankle
which are present on a daily basis" and "still experiences anxiety issues when riding in a
vehicle." Compensation for "'pain, suffering . . . , mental suffering, [and] emotional
distress'" constitutes noneconomic damages. (People v. Valenti (Jan. 14, 2016, B255727)
__ Cal.App.4th __ [2016 WL 191991, at p. 22].) The victim's attorney provided few
details of the specific future treatment the victim will need and no estimate of its cost.
The attorney stated only that the victim "will require chiropractic care and physical
therapy to treat her chronic neck injury" and "may reasonably require one or two
additional cervical epidural shots in the next one to two years."
              I do not assert, as the majority suggests, that the victim's "totaled car" was
part of her $5,070 in demonstrated economic damages. (Maj. op., at p. 4.) Four months
before reaching the $50,000 settlement with appellant's insurer, the victim stated that the
insurer already had "fully covered" her vehicle damage. There is no evidence that this
coverage was included in the settlement. Even if it was, the cost of replacing her 10-
year-old Mini Cooper was certainly less than $44,930.
              Restitution cannot be awarded on a speculative basis. (See People v.
Valenti, supra, [2016 WL 191991, at p. 22] [reversing restitution award where evidence
of economic damages was speculative and "filtered through" third persons rather than
directly from the victims]; see also Civ. Code, § 1431.2, subd. (b)(1) ["[T]he term
'economic damages' means objectively verifiable monetary losses"].) "[T]he court in this


                                              7
case did not find facts, cite reliable evidence, or even explain how it arrived at the amount
of restitution awarded to [the] victim." (People v. Valenti [2016 WL 191991, at p. 24].)
              It may well be that evidence and not common sense and inference will
justify such an award. The present record offers no such showing. Here, however, the
majority pays the fee before knowing what it is paying for.3 The majority's detailing of
the victim's personal injury would undoubtedly justify a jury in a civil case awarding the
settlement sum, perhaps more. That, however, is not in issue. The economic loss sought
includes an unsubstantiated number.
              The majority rightly expresses concern for the protection of the victim.
Appellant is on probation. Should the victim incur additional expense, she can seek a
modification of the order of restitution. (See Pen. Code, § 1203.3, subd. (a) ["The court
shall have authority at any time during the term of probation to revoke, modify, or change
its order of suspension of imposition or execution of sentence"].) I would reverse to
permit the trial court to do the math.
              NOT TO BE PUBLISHED.


                                          PERREN, J.




       3
       Ending a sentence with a preposition is something up with which I will not put.
(Winston Churchill (attrib.).)
                                             8
                               Michael L. Duffy, Judge

                      Superior Court County of San Luis Obispo
                         ______________________________


             Jolene Larimore, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, William H. Shin
and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.




                                          9
