A defendant is not relieved of restitution obligation if victim waives attorney fees in a civil lawsuit settlement agreement. Defendant, driving while intoxicated, hit another vehicle and injured its driver and passengers. The victims sued defendant. His insurance carrier settled a claim with the victims and the settlement included a waiver of future claims against defendant and provided that each side bear its own attorney fees and costs. One of the victims, who paid her attorney $178,000 in contingency fees, sought and was awarded restitution of attorney fees in defendant’s criminal case. Defendant appealed. Held: Affirmed. Under article I, section 28 of the California Constitution, all persons who suffer economic losses as the result of criminal acts have a right to obtain restitution from the person who caused the loss. Under Penal Code section 1202.4, subdivision (f), a trial court is required to order the defendant to pay full restitution. The “actual and reasonable” attorney fees associated with legal assistance are recoverable (Pen. Code, § 1202.4, subd. (f)(3)(H).) Here, the settlement agreement between the insurance company and the victims required each side to pay its own attorney fees and released defendant from further civil liability. Thus, the victim incurred these costs to settle her lawsuit. The fact that the victim signed a release may have relieved defendant of further civil liability but it did not relieve him from paying criminal restitution.

The trial court did not err in refusing to apportion the attorney fee award between economic and noneconomic damages. Defendant argued the trial court erred by failing to apportion the attorney fee awarded between fees the victim incurred to collect economic damages versus noneconomic damages. There was no error. Section 1202.4, subdivision (f) limits the victim’s restitution award to economic losses. Attorney fees incurred to recover noneconomic losses cannot be awarded as restitution. (People v. Fulton (2003) 109 Cal.App.4th 876, 882-885.) But this does not mean a victim is prohibited from recovering attorney fees that are incurred to recover both economic and noneconomic losses. The trial court did not abuse its discretion when it found that defendant failed to carry his burden of showing the victim included noneconomic losses in a restitution claim.

The trial court did not use the wrong method to calculate the victim’s restitution award for attorney fees. Defendant argued the trial court should have used the lodestar method (multiplying the number of hours reasonably expended by the attorney by a reasonably hourly rate) in ordering restitution for attorney fees. Here the contingency fee was the total amount the victim claimed. A contingency fee is the usual method used to calculate fees in a personal injury action and the amount of the fee here was reasonable under the circumstances.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B289580.PDF