Filed 2/29/16 P. v. Brown CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A142758
v.
KYLE KATHRYN BROWN,                                                      (Marin County
                                                                         Super. Ct. No. SC166170A)
         Defendant and Appellant.


         Defendant Kyle Kathryn Brown appeals an order for restitution entered following
her guilty plea to one count of causing injury while driving under the influence of
prescription drugs. We find no abuse of discretion and therefore shall affirm the order.
                                      Factual1 and Procedural History
         On May 26, 2009, shortly after 5:00 p.m. while driving on Highway 1, defendant
was involved in an accident in which she clipped a bicyclist with the side mirror of her
car. The collision caused the victim to fall from her bicycle. While she was lying
motionless in the roadway a second car approached, but the driver was able to swerve and
avoid hitting the victim. However, the driver of a third vehicle was unable to brake in
time and ran over her. The victim sustained substantial injury.
         Defendant pled guilty to one count of driving under the influence of drugs causing
injury. (Veh. Code, § 23153, subd. (a).) She was placed on probation and ordered to pay
restitution to the victim as a condition of her probation. Following a contested restitution


1
    The facts are taken from the probation department presentencing report.


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hearing, the court ordered $2,239,080 in restitution, offset by $1.6 million defendant and
her insurance carrier had already paid the victim, for a balance due of $639,080.
Defendant has appealed the restitution order.
                                         Discussion
        Defendant does not challenge the portion of the order that was based on the
victim’s past and future medical bills, property damage and past lost wages ($303,211).
Defendant contends that the court erred in calculating the victim’s future lost wages
($1,426,621), attorney fees incurred to collect restitution ($27,100), civil litigation costs
($101,641) and attorney fees incurred in the civil litigation ($380,507).

        1.     Lost Future Wages

        Defendant contends the victim failed to establish an adequate factual basis for the
$1,426,621 in lost future wages. There is no dispute that the victim suffered a traumatic
brain injury in the accident. She testified that before the accident she was preparing to
apply to graduate school to earn a master’s degree in business administration. Based on
her scores on the practice admissions test, she believed she was a strong candidate for
admission to a top tier school. When she took the test after the accident, however, her
scores were significantly lower than her practice test scores. Ultimately, she earned her
degree from a school that is not ranked in the top 100. Following graduation, she did not
obtain employment for approximately eight months and her salary was $65,000 a year.
Later, she moved to a job with a $62,000 annual salary. At the time of the hearing, she
was working as a contractor making $50 an hour. The victim testified that since the
accident she has struggled with an attention deficit concerning the smaller details in her
work.
        The victim submitted a report prepared by a forensic accountant calculating her
lost future wages based on various factual scenarios. The court based its order on the
scenario yielding the lowest loss calculation, which projected pre-injury earnings of
$4,838,720, post-injury earnings of $3,412,109, and income loss of $1,426,621. The
accountant estimated that absent the accident and having attended a top tier business


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school, the victim’s annual income would have been $110,656 per year from 2013 to
2017, $124,755 in 2018, and $153,379 from 2019 forward. The report estimates that,
having suffered the brain injury and not attended a top tier business school, the victim’s
future earnings will be $59,862 from 2013 to 2017, $76,624 in 2018, and $110,566 from
2019 forward.2
       Defendant contends there is no substantial evidence to support the court’s
restitution order. Defendant argues, “the underlying premise of [the accountant’s] opinion
that [the victim’s] projected earnings in 2013 through 2017 would be $59,862 was
factually incorrect because she had already worked at positions that paid her $65,000 and
$62,000 yearly. The stale report . . . was prepared on September 27, 2011. By the June 6,
2014 hearing date almost three years later, [the victim] had already exceeded and
surpassed [the accountant’s] factually incorrect assumptions. The expert opinion assumed
incorrect facts contrary to the proof which did not constitute substantial evidence.” We
disagree. The report estimated that the victim’s income would grow from $59,862 in
2013 to $76,624 in 2018. The fact that her actual earnings are within the range estimated
by the accountant supports rather than undermines the reliability of the report.
       Defendant also contends the order must be reversed because she did not actually
and proximately cause the victim’s economic losses. (See People v. Jones (2010) 187
Cal.App.4th 418, 425 [restitution order must “fully reimburse the victim or victims for
every determined economic loss incurred as the result of the defendant's criminal
conduct,” meaning that defendant’s criminal conduct actually and proximately causes the
victim’s loss.].) Defendant argues that in entering her plea she admitted only to causing

2
  The accountant’s assumption that the victim would likely have been admitted to a top
tier business school is based on the opinion of the vocational consultant who evaluated
the victim in 2011. The vocational consultant’s opinion that the victim would have been
able to attend a top tier business school had she not suffered the brain injury was based
on her graduation from high school with above a 4.0 grade point average and
standardized testing results above the 80th percentile, her graduation from University of
California, Berkeley with a 3.5 grade point average and her postgraduate work
experience. In contrast, her standardized test scores following her accident placed her in
the 42nd percentile, which did not qualify her for admission to a top tier school.


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injury, not great bodily injury, that her “personal conduct was not sufficient to produce
the [victim’s] great bodily injuries,” and that “[t]he causal link between [her] conduct and
the results to [the victim] was too attenuated.” She also argues that the driver who ran
over the victim was an independent, superseding cause that “exonerates and absolved
defendant of liability.” However, defendant unquestionably was the actual cause of the
victim’s loss; she would not have been injured had the defendant not knocked her off her
bicycle. And, contrary to defendant’s suggestion, there is a sufficient connection between
her criminal conduct (driving while under the influence and causing the accident) and the
victim’s injuries. (See Paroline v. United States (2014) 134 S.Ct. 1710, 1719 [proximate
cause “is ‘a flexible concept,’ [citation] that generally ‘refers to the basic requirement that
. . . there must be “some direct relation between the injury asserted and the injurious
conduct alleged” ’ ”].) The fact that the victim was run over by a car traveling behind
defendant’s car is not an “ ‘unreasonable . . . extraordinary and abnormal occurrence,
which rises to the level of an exonerating, superseding cause.’ ” (People v. Jones, supra,
187 Cal.App.4th at p. 427.) It is entirely foreseeable that a person caused to fall onto a
busy highway may be struck by on-coming traffic. There was no error in finding that the
victim suffered economic loss “as a result of” the defendant’s criminal conduct.
       Contrary to defendant’s next argument, the court did not abuse its discretion in
failing to reduce the restitution order based on principles of comparative negligence. We
need not evaluate the method by which defendant calculates the responsibility of the
driver who ran over the victim as 40 percent. Having pled guilty to causing injury while
driving under the influence of drugs, defendant has admitted responsibility for the
victim’s losses. (People v. Madrana (1997) 55 Cal.App.4th 1044, 1051.) “[S]he is
therefore ‘culpable’ and is responsible for the full amount of the victim’s losses.” (Ibid.,
quoting People v. Zito (1992) 8 Cal.App.4th 736, 746 [obligation to pay restitution does
not hinge upon the culpability of codefendant].)
       In view of well-settled law, defendant makes no suggestion that the amounts the
victim has recovered from the driver of the car that ran her over ($1.25 million), from the
property owners ($20,000), or the undisclosed sum recovered from the state should be


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applied to reduce the amount of her restitution obligation. (See, e.g., In re Tommy A.
(2005) 131 Cal.App.4th 1580; People v. Hamilton (2003) 114 Cal.App.4th 932.) She
does contend that the amount of restitution calculated by the trial court does provide a
windfall to the victim, but the court’s approach is rationally related to the expenses the
victim incurred as a result of her injuries. (People v. Akins (2005) 128 Cal.App.4th 1376,
1382 [“In determining the amount of restitution, all that is required is that the trial court
‘use a rational method that could reasonably be said to make the victim whole, and may
not make an order which is arbitrary or capricious.’ ”].) The evidence that the victim has
sufficiently recovered from the accident to participate in triathlons does not disprove the
evidence that she continues to suffer the effects of her brain injury and will continue to
suffer long term economic loss as a result of the accident. The fact that defendant is
elderly and her health has deteriorated since the accident does not impact the victim’s
losses or demonstrate an abuse of discretion. 3 While defendant’s rehabilitation and
deterrence of criminality are legitimate purposes of a restitution order, the asserted
absence of a need for deterrence or rehabilitation does not justify denial of restitution for
a victim’s actual loss.

2.     Litigation Costs and Attorney Fees

       A crime victim is entitled to restitution for “[a]ctual and reasonable attorney's
fees.” (§ 1202.4, subd. (f)(3)(H).) The trial court ordered restitution of $380,507 in
attorney fees incurred in the civil litigation, $101,641 in costs incurred in the civil
litigation, and $27,100 in attorney fees incurred in the restitution proceedings.



3
  We summarily reject defendant’s argument that the restitution order was excessive
under the Eighth Amendment or violated her due process rights under the Fourteenth
Amendment. Because victim restitution is not considered punishment it is not subject to
the excessive fines clause of the Eighth Amendment. (United States v. Bajakajian (1998)
524 U.S. 321, 327-328; People v. Harvest (2000) 84 Cal.App.4th 641, 649-650.) More
importantly, as discussed above, the amount of restitution is not excessive given the
severity of the victim’s injuries and the rational relationship between the defendant’s
conduct and the victim’s loss.


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         Defendant contends first that the court abused its discretion by calculating the
amount of restitution for the attorney fees incurred in the civil litigation based on the
contingency fee paid to her attorney rather than the loadstar calculation method. In
People v. Taylor (2011) 197 Cal.App.4th 757, 762, the court rejected the argument that
the trial court abuses its discretion in ordering restitution based on a contingency fee. The
court emphasized that “the ‘primary purpose of victim restitution is to fully reimburse the
victim for his or her economic losses’ ” (id. at p. 763) and concluded that “[s]ince 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 him to compensation” (id. at p. 764). The court observed that
the fact that a “contingency fee is likely to be higher than an hourly fee for equivalent
work” does not render restitution of the full amount unreasonable. (Id. at pp. 763-764
[noting that 33.3 percent of the total award is the typical amount paid under a
contingency fee contract].) “ ‘[A] wrongdoer in criminal cases as in civil torts takes his
victim as he finds him.’ [Citation.] If a defendant feels the victim is seeking restitution
for unreasonable attorney fees, he may present argument and evidence supporting his
position. However, where there is uncontradicted evidence the victim incurred attorney
fees as a result of the defendant's actions, it is not an abuse of discretion to award
restitution for the fee without resorting to the lodestar method.” (Id. at p. 764.) Here,
defendant does not dispute that the victim actually incurred the contingency fee in the
civil litigation. Instead, she argues that the victim did not present any evidence to
establish that the fee was reasonable and that “the evidence was to the contrary because
[defendant’s] insurance company immediately offered the full limit of $1,500,000.00 and
her attorney sued to obtain another $100,000.” The victim’s evidence that she actually
incurred the fee, which fell within the range of typical contingency fee percentages,
established her right to restitution of the full amount paid. The court reasonably rejected
defendant’s claim that the amount of the fee was unreasonable. 4


4
    Defendant’s argument that the court ordered her to pay restitution of costs and fees

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                                        Disposition
       The restitution order is affirmed.



                                                 _________________________
                                                 Pollak, Acting P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




incurred by the victim in pursuing claims against other civil defendants is not supported
by the record. As defendant notes, the victim’s attorneys submitted declarations stating
that the victim’s “claim for attorneys’ fees and cost arising out of the prosecution of her
civil case against Kyle Brown is limited to those fees and cost that are specific to [the
victim’s] case against Brown. [She] has not included a request for attorneys’ fees and
costs arising out of the prosecution of other civil defendants, except to the extent that
costs were incurred in connection with the case that jointly prove claims against multiple
defendants. For example, all the fees and costs associated with proving the nature and
extent of [the victim’s] injuries are necessary to prove her civil claims against Brown as
well as all of the civil defendants.” The fact that there was some overlap between the
work performed on the different cases does not support defendant’s claim that those
attorney fees must be apportioned. (Cf. Reynolds Metal Co. v. Alperson (1979) 25 Cal.3d
124, 129-130; Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111.)


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