Filed 8/22/19
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SIX


THE PEOPLE,                                 2d Crim. No. B289580
                                         (Super. Ct. No. 15F-01361)
     Plaintiff and Respondent,            (San Luis Obispo County)

v.

DREW BARRETT
GRUNDFOR,

     Defendant and Appellant.


              The California Constitution mandates the payment of
victim restitution “in every case” resulting in economic loss,
“regardless of the sentence or disposition imposed.” (Cal. Const.,
art. I, § 28, subd. (b)(13)(B).) Courts are often called upon to
impose this mandate after a defendant is convicted of driving
under the influence of alcohol causing injuries, thereby
compelling the injured parties to seek legal assistance to help
them recover damages. The fees associated with such legal
assistance are recoverable (see Pen. Code,1 § 1202.4, subd.
(f)(3)(H)), and a trial court has broad discretion when

        1 All   further unlabeled statutory references are to the Penal
Code.
determining how to calculate them. So long as the calculation
rationally reflects the victim’s actual and reasonable attorney
fees, we will not disturb it on appeal.
             Drew Barrett Grundfor appeals from the restitution
order imposed after he pled no contest to driving under the
influence and injuring another person (Veh. Code, § 23153, subd.
(b)), and admitted allegations that he had a blood-alcohol content
in excess of 0.20 percent (Veh. Code, § 23556, subd. (b)(4)),
injured more than one person (Veh. Code, § 23558), and suffered
a prior conviction for driving under the influence (Veh. Code,
§ 23560). The trial court suspended imposition of sentence and
placed Grundfor on three years formal probation, including a
term that he pay $178,000 in restitution to the victim for
attorney fees (§ 1202.4).
             Grundfor contends the restitution order was
erroneous because a settlement agreement the victim signed
precludes her recovery of attorney fees. He also contends that
even if restitution were appropriate, the trial court erred because
it refused to apportion the fees between those the victim incurred
to recover economic damages and those she incurred to recover
noneconomic damages, and because the court used an improper
method to calculate the fee amount. We affirm.
            FACTUAL AND PROCEDURAL HISTORY
             N.M. stopped her car at a red light. Her husband,
daughter, and daughter’s friend were passengers. Grundfor rear-
ended the car, injuring N.M. and the passengers. Grundfor
admitted he had been drinking “way too much” alcohol. His
blood-alcohol content was between 0.30 and 0.35 percent.
             Prior to sentencing, he told the trial court that he had
a $500,000 insurance policy that would “provide appropriate and




                                 2
ample support for the injured parties.” The probation report
recommended scheduling a restitution hearing after the
conclusion of a civil lawsuit to determine whether Grundfor’s
insurance company, Allstate, would cover N.M.’s injuries.
            N.M. filed a civil lawsuit against Grundfor, which
Allstate settled for $445,000.2 Grundfor “didn’t sign the
settlement agreement[, and] wasn’t privy to it.” As part of the
settlement, N.M. agreed to “waive[] any [and] all claims [she had]
against [Grundfor] and Allstate.” The settlement stated that it
was “meant to resolve all matters between [the] parties so that
neither [side would] face a claim from the other at any time in
the future.” It also stated that “[e]ach side [would] bear [its] own
attorney[] fees and costs.”
             N.M. paid her attorney a $178,000 contingency fee,
representing 40 percent of her recovery. She paid an additional
$50,281 in litigation costs.
             At the restitution hearing, N.M. requested that the
trial court order Grundfor to pay her $178,000 for the attorney
fees she incurred. Grundfor opposed the request. He argued
N.M. received her attorney fees pursuant to the terms of the
settlement agreement. Alternatively, he argued the agreement
precluded her from pursuing restitution for the fees.
             If the trial court did order restitution, Grundfor
argued, it should apportion the fee between that used to recover
N.M.’s economic damages and that used to recover her
noneconomic damages. He provided a declaration from Allstate
that estimated “economic damages represented less than 10
[percent] of the settlement” based on the medical costs and lost

      2 The  remaining $55,000 of Grundfor’s insurance policy was
paid to his other victims.


                                 3
wages N.M. had incurred. He also urged the court to use the
lodestar method3 to calculate any restitution award.
             N.M. replied that her attorney fees were not paid by
the settlement with Allstate, that Grundfor did not prove
apportionment, and that the trial court was not required to use
the lodestar method to calculate her fees. She provided evidence
that she had already incurred $53,115 in medical bills, that her
future medical expenses were projected to be more than $1.2
million, and that her loss of future earnings could exceed $1
million.
             The trial court ordered Grundfor to pay $178,000 in
restitution, plus interest. The court rejected Grundfor’s
argument that N.M.’s attorney fees were not recoverable based
on the settlement agreement. It also rejected his request to
apportion N.M.’s restitution award because he did not show a
“principled way to make [such] an allocation”: His proffered
apportionment did not account for N.M.’s future medical costs
and lost wages. Nor could the court make an apportionment
based on the settlement because the agreement did not apportion
between economic and noneconomic damages.
             The trial court also found a $178,000 attorney fee
award reasonable under the circumstances, and thus declined to

      3 The  lodestar method calculates an attorney fee award “‘by
multiplying the number of hours reasonably expended by counsel
by a reasonable hourly rate. Once the court has fixed the
lodestar, it may increase or decrease that amount by applying a
positive or negative “multiplier” to take into account a variety of
other factors, including the quality of the representation, the
novelty and complexity of the issues, the results obtained, and
the contingent risk presented.’ [Citation.]” (Laffitte v. Robert
Half Internat. Inc. (2016) 1 Cal.5th 480, 489.)


                                 4
apply the lodestar method. Basing restitution on the contingency
fee was proper because N.M.’s economic damages were projected
to be over $2 million. Her attorney had an “excellent” reputation,
and performed significant work on the case: He coordinated
N.M.’s medical care, negotiated liens, undertook and contracted
multiple investigations, drafted and propounded multiple
discovery requests, took depositions, filed and served pleadings,
and made numerous court appearances. He also attempted to
settle the case “multiple” times.
               Additionally, restitution would have a “rehabilitative
effect.” This was not Grundfor’s first conviction for driving under
the influence. Allstate paid for N.M.’s other losses. Restitution
was the only way Grundfor would have to personally pay for the
economic damages he caused.
                              DISCUSSION
               “[A]ll persons who suffer losses as a result of criminal
activity . . . have the right to seek and secure restitution from the
persons convicted of the crimes causing the losses they suffer.”
(Cal. Const., art. I, § 28, subd. (b)(13)(A).) Restitution is
mandatory: It must be ordered “in every case, regardless of the
sentence or disposition imposed.” (Cal. Const., art. I, § 28, subd.
(b)(13)(B).) Thus, whenever a victim has suffered an economic
loss, the trial court must order the defendant to pay “full
restitution unless it finds compelling and extraordinary reasons
for not doing so.” (§ 1202.4, former subd. (f).4)


      4 The   Legislature has amended section 1202.4, subdivision
(f), deleting the phrase “unless it finds compelling and
extraordinary reasons for not doing so.” (Stats. 2016, ch. 37, § 3.)
All further references to section 1202.4 are to the version in effect
in 2014, when Grundfor committed his crime.


                                   5
              We review a trial court’s restitution order for abuse of
discretion. (People v. Millard (2009) 175 Cal.App.4th 7, 26
(Millard).) We broadly and liberally construe a victim’s right to
restitution, and will find no abuse of discretion so long as “‘“‘there
is a factual and rational basis for the amount of restitution
ordered.’”’” (Ibid.) When determining whether such a basis
exists, our “‘“‘power . . . begins and ends with a determination as
to whether there is any substantial evidence, contradicted or
uncontradicted,’ to support the . . . court’s findings.”’” (Ibid.)
                          The restitution order
              Grundfor contends the trial court erred when it
ordered him to pay restitution for N.M.’s attorney fees because
she waived her claim to those fees when she signed the
settlement agreement. We disagree.
              The trial court properly ordered Grundfor to pay
$178,000 in restitution because there was a rational, factual
basis for that order: N.M. incurred those costs to settle her civil
lawsuit. “Actual and reasonable” attorney fees constitute an
economic loss. (§ 1202.4, subd. (f)(3)(H); see People v. Fulton
(2003) 109 Cal.App.4th 876, 883 (Fulton).) Such fees are
recoverable unless they are offset in a civil settlement. (People v.
Bernal (2002) 101 Cal.App.4th 155, 165-168 (Bernal).) Here, they
were not; the settlement required each side to bear its own
attorney fees. The court was thus required to order Grundfor to
pay full restitution for the fees. (§ 1202.4, subd. (f).)
              That N.M. signed a release as part of the settlement
is “irrelevant” to the propriety of the restitution order. (People v.
Clifton (1985) 172 Cal.App.3d 1165, 1168; see also Bernal, supra,
101 Cal.App.4th at pp. 160-164 [defendant not relieved of
restitution obligation if victim signs waiver with defendant’s




                                  6
insurance company].) While the release may have relieved
Grundfor from further civil liability, it did not relieve him from
paying criminal restitution. (Bernal, at p. 163.) “Just as a
restitution order pursuant to the criminal law is not a substitute
for a civil action to recover damages [citation], a partial civil
settlement is not a substitute for restitution in a criminal
proceeding.” (Clifton, at p. 1168.)
              N.M.’s settlement with Allstate and the state’s right
to compel Grundfor to pay restitution operate independently of
each another. (People v. Vasquez (2010) 190 Cal.App.4th 1126,
1133 (Vasquez).) The settlement was between N.M. and Allstate.
The restitution order was between Grundfor and the state. The
release N.M. signed in the settlement could no more “release
[Grundfor] from his financial debt to the state any more than it
could terminate his prison sentence.” (Bernal, supra, 101
Cal.App.4th at p. 162.)
              The parties also had different interests. N.M. chose
to accept a settlement within Grundfor’s policy limits—for less
than her total losses—because she did not want to risk the
possibility that Grundfor would not pay. (Vasquez, supra, 190
Cal.App.4th at p. 1133.) But her acceptance of that amount does
not mean that the prosecution also believed Grundfor had paid
his debt to society. (Ibid.) One of the purposes of restitution is
rehabilitation. (Ibid.) “‘Restitution “is an effective rehabilitative
penalty because it forces the defendant to confront, in concrete
terms, the harm [their] actions have caused.”’” (People v. Hove
(1999) 76 Cal.App.4th 1266, 1273.) “‘“[T]he direct relation
between the harm and the punishment gives restitution a more
precise deterrent effect than a traditional fine.” [Citations.]’
[Citation.]” (Ibid.) As the trial court noted at sentencing, only




                                  7
restitution would have the desired deterrent and rehabilitative
effect because without it Grundfor would not have directly paid
for any of N.M.’s losses.
             Grundfor claims “there was no doubt it was the
intent of the ‘parties’ . . . to resolve all restitution issues in the
civil case.” But the evidence on which Grundfor relies for his
claim is the probation report. We glean the intent of the parties
to a settlement agreement from the terms of the agreement itself.
(Civ. Code, §§ 1638, 1639.) Here, the terms were that each side
would bear its own attorney fees. Because the terms
unambiguously show that the parties did not intend to include all
of N.M.’s losses—including her attorney fees—in the settlement,
they could not have intended to resolve all restitution issues in it.
             Grundfor also claims he has no remedy if we do not
vacate the restitution order because N.M. will file an anti-SLAPP
motion5 if he brings an action against her for breach of the
settlement agreement.6 We do not consider the merits of this
claim. Grundfor has not yet served N.M. with the complaint in
that action. His claim is not yet ripe. (Pacific Legal Foundation
v. California Coastal Com. (1982) 33 Cal.3d 158, 170-171.)
             Finally, we reject Grundfor’s claim that the public
policy in favor of encouraging civil settlements should outweigh
the public policy of using restitution to rehabilitate defendants.
(Compare Fisher v. Superior Court (1980) 103 Cal.App.3d 434,


      5 See   Code of Civil Procedure section 425.16.

      6 On January 17, 2019, we granted Grundfor’s request to
take judicial notice of the civil complaint filed in Grundfor v.
[N.M.] (Super. Ct. San Luis Obispo County, 2018, No. 18CV-
0515).


                                  8
440-441 [encouragement of civil settlements] with People v. Moser
(1996) 50 Cal.App.4th 130, 134 [goals of restitution].) Here, both
policies were furthered: N.M. settled her civil lawsuit with
Allstate, and the trial court ordered Grundfor to pay N.M.’s
attorney fees to aid in his rehabilitation. There were thus no
conflicting policies that would constitute “compelling and
extraordinary reasons” to refuse to order restitution. The trial
court did not abuse its discretion when it ordered Grundfor to pay
for N.M.’s attorney fees. (Bernal, supra, 101 Cal.App.4th at p.
164.)
                    Apportionment of attorney fees
             Grundfor next contends the trial court erred when it
declined to apportion N.M.’s attorney fee award between fees she
incurred to collect economic damages and those incurred to collect
noneconomic damages. There was no error.
             Section 1202.4, subdivision (f), limits a victim’s
restitution award to “economic loss[es incurred] as a result of the
defendant’s conduct.” Attorney fees incurred to recover
noneconomic losses cannot be ordered as restitution. (Fulton,
supra, 109 Cal.App.4th at pp. 882-885.) But “[t]his . . . does not
mean that a victim is prohibited from recovering attorney fees if
those fees are incurred to recover both economic and noneconomic
losses.” (Id. at p. 885.) “[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.” (Ibid.)
             A defendant bears the burden of showing that a
victim has included noneconomic losses in a restitution claim.
(Millard, supra, 175 Cal.App.4th at p. 33.) The trial court did not
abuse its discretion when it determined that Grundfor did not




                                9
carry that burden here. While Grundfor provided evidence that
N.M.’s economic damages represented less than 10 percent of her
settlement, N.M. provided evidence that her economic damages—
future medical expenses and lost earnings—would be more than
five times the amount of her settlement. The court credited
N.M.’s evidence over Grundfor’s. Based on that evidence, it could
reasonably conclude that all of N.M.’s attorney fees went to the
recovery of her economic damages. Under these circumstances,
the court was not required to reduce the fee award. (Ibid.)
                      Calculation of attorney fees
              Lastly, Grundfor contends the trial court used the
wrong method to calculate N.M.’s restitution award. We again
disagree.
              Restitution is “intended to make the victim whole.”
(People v. Taylor (2011) 197 Cal.App.4th 757, 763 (Taylor).) The
trial court has broad discretion when it sets the amount of
attorney fee restitution, and “‘may use any rational method’” to
calculate it (Millard, supra, 175 Cal.App.4th at p. 26) so long as
the calculation reflects the actual, reasonable fees paid (§ 1202.4,
subd. (f)(3)(H)). This includes basing the calculation on a
contingency fee. (Millard, at p. 33.)
              Here, the contingency fee was the actual amount
N.M. paid. And based on the total economic damages she
incurred, the amount of work her attorney performed, and her
attorney’s reputation in the community, the trial court could—
and did—conclude that the amount was reasonable.
              Grundfor counters that the trial court should have
used the lodestar method to calculate N.M.’s attorney fees. (See
Millard, supra, 175 Cal.App.4th at pp. 31-33.) But our Supreme
Court has “‘not mandat[ed] a blanket “lodestar only” approach’”




                                 10
for calculating restitution. (Taylor, supra, 197 Cal.App.4th at p.
763.) Any rational calculation method is permissible. (Millard,
at p. 26.) “Since a victim will likely have to pay a contingen[cy]
fee in any personal injury action resulting from the crime,
evidence that the victim incurred the . . . fee is prima facie
evidence of a loss entitling [them] to compensation.” (Taylor, at
p. 764.)
             In Millard, the attorney’s contingency fee translated
to an hourly rate of over $1,800—a rate the trial court deemed
“‘unconscionable’” and “‘extraordinary’” for a “‘slam dunk’” case
that involved little more than “‘some letter writing.’” (Millard,
supra, 175 Cal.App.4th at p. 22.) It was only after the appellate
court found the fee unreasonable that it required the trial court
to use the lodestar method to calculate restitution on remand.
(Id. at pp. 31-32.) Here, in contrast, the contingency fee was
reasonable under the circumstances. The trial court therefore did
not abuse its discretion when it used that fee as the basis for
calculating N.M.’s restitution award. (Taylor, supra, 197
Cal.App.4th at p. 764.)
                           DISPOSITION
             The restitution order is affirmed.
             CERTIFIED FOR PUBLICATION.


                                    TANGEMAN, J.
We concur:


             GILBERT, P. J.


             PERREN, J.



                               11
                   Dodie A. Harman, Judge

           Superior Court County of San Luis Obispo

                ______________________________


           Casciola & Galambos, Guy Christophe Galambos;
Tardiff Law Offices and Neil S. Tardiff, for Defendant and
Appellant.

            Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Shawn McGahey Webb and Blythe J. Leszkay,
Deputy Attorneys General, for Plaintiff and Respondent.
