Opinion
G058681
03-15-2021
THE PEOPLE, Plaintiff and Respondent, v. LISA MARIE BOSWORTH, Defendant and Appellant.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15WF0608) OPINION Appeal from postjudgment orders of the Superior Court of Orange County, Julian W. Bailey, Judge. Reversed and remanded with directions. Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent
* * *
Defendant Lisa Marie Bosworth pleaded guilty to driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (a); count 1), and driving under the influence with a blood alcohol content of 0.08 percent or more causing great bodily injury (Veh. Code, § 23153, subd. b; count 2). Defendant further admitted: within 10 years, she had suffered a prior felony conviction for driving under the influence, (Veh. Code, § 23550.5, subd. (a)(2)); she had proximately caused bodily injury to more than one victim in one instance of driving in violation of Vehicle Code section 23153 (Veh. Code, § 23558); had a blood alcohol concentration of 0.15 percent or more when driving in violation of Vehicle Code section 23153 (Veh. Code, § 23578); and had inflicted great bodily injury on I.C., one of her victims (Pen. Code, § 12022.7, subd. (a)).
Defendant also pleaded guilty to a separate offense of driving under the influence and related enhancements that are not relevant to this appeal.
The court sentenced defendant to an aggregate state prison term of 8 years 8 months (including sentences for the offense not relevant to this appeal), stayed execution of sentence, and placed defendant on formal probation for five years, on condition she serve 180 days in county jail.
Subsequently, the court held a formal restitution hearing and ordered defendant to pay restitution to two victims of the incident giving rise to counts 1 and 2: $46,853.27 to I.C. and $11,807.84 to C.K. Defendant appeals the restitution orders.
FACTS
The Underlying Offenses
Defendant offered the following facts in support of her guilty plea to counts 1 and 2 of the operative information:
"In Orange County, California, on 2-13-15, I unlawfully drove a vehicle while under the influence of alcohol and with a blood alcohol concentration of 0.08% or more, to wit, .17% and while doing so did an act while driving forbidden by law and neglect a duty imposed by law, namely making an unsafe left turn proximately causing bodily injury to [C.K.] and [I.C.], and specifically causing great bodily injury to [I.C.], who was not an accomplice during the commission of this offense, pursuant to Penal Code section 12022.7(a). . . . I committed the above indicated offenses within ten years of a prior felony DUI conviction of CA Vehicle Code section 23152 and pursuant to CA Vehicle Code section 23550.5(a)."
Although the above recitation of the ultimate facts of the offenses does not describe the mechanism of the resulting accident, the following description of the accident from the preliminary hearing testimony of the investigating police officer clarifies how the accident happened.
"Q. And so, officer, you spoke with [C.K.]; what did [C.K.] tell you about the incident?
"A. She told me that she was driving southbound on Newland Street in the number 1 lane which would be the left lane or the fast lane. As she was entering the intersection with Atlanta she had a circular green traffic signal. And she noticed the defendant's vehicle northbound on Newland Street at Atlanta starting to make a left turn basically towards her in the intersection."
"Q. After the defendant's car turned in front of—sorry—begin to turn what did [C.K.] tell you happened at that point?
"A. She said she hit her brakes and started to swerve right trying to avoid the approaching turning vehicle, and the defendant's vehicle collided with the driver's side of her vehicle, [C.K.'s] vehicle. And the impact with her also swerving to the right, she ended up colliding with the vehicle that was in the number 2 lane next to her that was also going southbound."
The officer also described his conversation with I.C. at the accident scene.
"[I.C.] told me that she was driving southbound on Newland Street in the number 2 or the slow lane just behind [C.K.] And as they were approaching the intersection at Atlanta, she also said that they had a green traffic signal for southbound traffic. [¶] As they entered the intersection, she said that suddenly the car that was next to her driven by [C.K.] swerved to the right and collided with her."
The Victim Restitution Claims
I.C. submitted the following claims for restitution: medical bills, $11,350.00; attorney fees, $34,965.00; and attorney costs, $538.27. Thus, I.C.'s total claim was $46,853.27.
C.K. submitted the following claims for restitution: auto repair, $11,679.68; and car rental, $128.16. Thus, C.K.'s total claim was $11,807.84.
Insurance Proceeds
Defendant was insured by GEICO. I.C. was insured by AAA. The record does not contain any information about C.K.'s insurance coverage, or the lack thereof.
I.C. retained an attorney to pursue compensation for her damages. His efforts resulted in the recovery of defendant's GEICO policy limits of $15,000 for bodily injury.
On behalf of I.C., the attorney also sought recovery from I.C.'s own underinsured motorist coverage and recovered $90,000 from AAA.
In addition to the $15,000 contribution to I.C.'s settlement, GEICO, as defendant's insurer, paid $128.16 to C.K. for property damage, and $2,892.71 to AAA, [I.C.]'s insurer, "as subrogee of [C.K.]" Other payments made by GEICO include payment of $1,244.91 to AAA, I.C.'s insurer, as payment on an unidentified subrogation claim (perhaps as I.C.'s subrogee, the only other party in this accident), and $734.22 as a direct payment for "out of pocket loss" to an unidentified party (perhaps I.C.'s, the only other party in this accident).
The record contains GEICO check memos showing the payments directly to C.K. and to AAA as C.K.'s subrogee, but no check memos are in the record showing payments to I.C., except for the $15,000 contribution to the settlement. The record showing the total property damage payments by GEICO is redacted, so the recipient of the GEICO property settlement proceeds, except as confirmed by check memos for C.K. and her subrogee, is undetermined.
The Court's Ruling
The court awarded the full amount claimed by each of the victims: $46,853.27 to I.C. and $11,807.84 to C.K.
DISCUSSION
Defendant appeals the court's ruling on both restitution orders. She asserts the court abused its discretion by not reducing the restitution awards by amounts paid to I.C. and C.K. by defendant's insurer and that I.C. was not entitled to restitution for the full amount of her attorney fees. We agree the restitution awards must be modified downward, but not in the amount or amounts defendant asserts.
Statutory Restitution Requirements
"[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. . . . The court shall order full restitution." (Pen. Code, § 1202.4, subd. (f).) "Determination of the amount of restitution ordered . . . shall not be affected by the indemnification or subrogation rights of a third party." (Id., subd. (f)(2).) The 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 . . . ." (Id., subd. (f)(3).)
All further statutory references are to the Penal Code unless otherwise stated.
Economic losses to be included in a restitution order include, without limitation, "the actual costs of repairing the [damaged] property," (§ 1202.4, subd. (f)(3)(A)), "medical expenses" (id., subd. (f)(3)(B)), and "[a]ctual and reasonable attorney's fees and other costs of collection accrued by a private entity on behalf of the victim" (id., subd. (f)(3)(H)). Noneconomic losses are not included except for felony violations of sections 288, 288.5, or 288.7. (§ 1202.4, subd. (3)(f)(F).) I.C.'s Restitution Award
Defendant contends the $46,853.27 award in favor of I.C. is incorrect for two reasons.
First, she contends the attorney fees awarded to I.C. are wrongly based on the contingency fee of one-third of I.C.'s total recovery of $105,000, which includes a recovery for noneconomic damages. She contends the attorney fee award should be reduced to one-third of I.C.'s economic damages of $11,350 for medical expenses and one-third of I.C.'s attorney costs of $538.27 totaling $3,962.76. Thus, she asserts the recoverable economic damages are only $15,851.03 ($11,350 + $538.27 + 1/3($11,350 + $538.27)).
Defendant's math is slightly off. She arrives at a total of $15,850.63, instead of $15,851.03 which is the amount derived from her reasoning.
Second, defendant contends the court erroneously failed to offset I.C.'s restitution award by the $15,000 paid by GEICO, her insurer. Thus, under defendant's reasoning, I.C.'s restitution award should be $1,001.03.
Defendant is partially correct. As the Attorney General concedes, I.C.'s award must be offset by the $15,000 paid by GEICO. But we conclude the court did not abuse its discretion by awarding I.C. the full amount of her attorney fees.
Payments made by a defendant's insurer to the victim of the crime are considered to have been made "directly from [the] defendant." (§ 1202.4, subd. (a)(1).) The court in People v. Bernal (2002) 101 Cal.App.4th 155, explained the rationale for the rule: "The defendant's own insurance company is different than other sources of victim reimbursement, in that (1) the defendant procured the insurance, and unlike the other third party sources, its payments to the victim are not fortuitous but precisely what the defendant bargained for; (2) the defendant paid premiums to maintain the policy in force; (3) the defendant has a contractual right to have the payments made by [her] insurance company to the victim, on [her] behalf; and (4) the defendant's insurance company has no right of indemnity or subrogation against the defendant." (Id. at p. 168.) "[S]ettlement payments made to [the victim] by [defendant's] insurance carrier must be an offset to [defendant's] restitution obligation to the extent that those payments are for items of loss included in the restitution order." (Ibid.)
Here, GEICO's payment memo for the $15,000 payment indicated it was paid to resolve I.C.'s claims for "Bodily Injury Coverage in Full & Final Settlement of All Claims & Liens Known And Unknown." The court's restitution order stated that I.C.'s restitution was based on medical expenses, attorney fees, and costs. Thus, even using defendant's methodology for calculating the recoverable amount of those items ($15,851.03), we agree with defendant, and the Attorney General, that the entire $15,000 bodily injury payment is properly attributed to restitution for I.C.'s economic damages. Thus, defendant is entitled to offset the entire $15,000 GEICO payment against the final economic restitution award to I.C.
We disagree, however, with defendant's contention that I.C.'s claim for attorney fees should be reduced to one-third of her economic losses. "[A]ctual 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. Fulton (2003) 109 Cal.App.4th 876, 884-885 (Fulton); § 1202.4, subd. (f)(3)(H).) But that "does not mean that a victim is prohibited from recovering attorney fees if those fees are incurred to recover both economic and noneconomic losses. Because the Legislature has directed that a victim be 'fully reimburse[d]' for economic losses [citation], it 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). Moreover, because of the strong public policy seeking to provide crime victims with direct restitution for all the 'losses they suffer' [citation], 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." (Fulton, at p. 885.)
Where fees are incurred to recover both economic and noneconomic losses, "the burden of apportionment must be on the defendant. The policy of fully reimbursing the victim would be defeated if the victim could lose an attorney fees award because the nature of the case precludes application of a reasonable formula for apportionment between the two types of losses. Accordingly, once evidence is presented showing reasonable fees were incurred seeking recovery for economic losses, the burden of apportionment is properly placed on the defendant." (Fulton, supra, 109 Cal.App.4th at p. 887.)
Here, defendant seeks to satisfy her apportionment burden by applying the attorney's contingency percentage solely to the economic loss, thereby limiting restitution for attorney fees to $3,962.36. We reject that methodology as unreasonable under the facts of this case. The 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." (§ 1202.4, subd. (f)(3), italics added.) It is undisputed that I.C. would not have incurred any attorney fees but for defendant's criminal conduct. "[I]t is not reasonable in this case to assume the value of the attorney's work can be reasonably divided to reflect a percentage of the economic damages and a percentage of the noneconomic damages. Rather, as is typical in automobile accident cases, an attorney's efforts necessarily focus on proving liability and the nature and extent of the plaintiff's economic damages with the amount of noneconomic damages dependent on substantiating these issues." (Fulton, supra, 109 Cal.App.4th at p. 887.)
Further, it is unreasonable to assume that I.C. even could have found an attorney to seek a civil recovery of only her economic damages. She necessarily needed an attorney to seek recovery for all of her damages, damages which were caused by defendant's criminal conduct. Defendant presented no other means by which the total attorney fees could be apportioned between the seeking of economic damages and the seeking of noneconomic damages. Accordingly, the court did not abuse its discretion in allowing restitution for all of I.C.'s attorney fees. (See People v. Grundfor (2019) 39 Cal.App.5th 22, 30 [affirming restitution order that declined to apportion attorney fees between efforts to collect economic damages and efforts to collect noneconomic damages where economic damages were less than 10 percent of total civil settlement].)
In sum, I.C.'s restitution award must be reduced by the $15,000 GEICO payment from the original amount of $46,853.27 to $31,853.27, but the attorney fees are not reduced. C.K.'s Restitution Award
Defendant contends that the court abused its discretion by not offsetting C.K.'s claimed economic damages of $11,807.84 by the $128.16 paid directly to C.K. by GEICO, defendant's insurer, and by the $2,892.71 paid to AAA, C.K.'s insurer, as "subrogee for [C.K.]" Again, defendant is partially correct. Under the principles discussed above, Bernal and its progeny require the restitution award be offset by amounts paid by defendant's own insurer. Thus, the direct payment of $128.16 to C.K. must be offset against her claim.
But the payment to AAA as "subrogee for [C.K.]" does not require an offset. That AAA is the subrogee for C.K. means, of course, that AAA, I.C.'s insurer, paid at least $2,892.71 to C.K., thereby acquiring C.K.'s rights against defendant. The payment to C.K. was from a collateral source. In People v. Hamilton (2003) 114 Cal.App.4th 932, the defendant shot and injured the victim. (Id. at p. 935.) The defendant's mother had an insurance policy which happened to also cover the defendant, and mother's insurer settled the case on behalf of both mother and the defendant. (Id. at p. 935,) The court held that the Bernal rule did not apply. "Payments here were made, not by [the defendant's] insurer, but by a source completely distinct and independent from [the defendant]—namely, his mother's insurer. Unlike the situation in Bernal, [the defendant] did not procure or maintain the insurance, had no contractual right to require payments to be made on his behalf, and was potentially subject to an indemnity claim by the insurer." [The victim's] receipt of any payment is due to two fortuitous events: [The mother] procuring insurance coverage and the insurance policy covering [the defendant's] acts. [The defendant] should not benefit from these circumstances." (Id. at p. 942, fn. omitted.)
GEICO's property damage coverage was only $5,000, which was less than the total claims against it, thereby causing GEICO to apportion the entire $5,000 between the several claimants. --------
So too here. The stated rationale for the Bernal rule does not permit a conclusion that payments from a collateral source should be construed as having been made "directly from [the] defendant" as required by section 1202.4, subdivision (a)(1). Defendant did not procure the AAA insurance, she paid no premiums to maintain the AAA policy, she lacked a contractual right to have AAA make payments to C.K., and, unlike GEICO, which does not have a subrogation right against its insured, AAA has a subrogation right against defendant. (See Bernal, supra, 101 Cal.App.4th 155 at p. 168 [rationale for permitting offset for payments made by defendant's own insurer].)
Accordingly, C.K.'s restitution award must be reduced by the $128.16 GEICO payment from the original amount of $11,807.84 to $11,679.68, but not reduced by any amount attributed to payment by AAA.
Substantial Evidence Supports the Claims for Economic Damages
Defendant makes a wholly undeveloped argument that substantial evidence does not support the amounts sought by the victims as economic damages. Defendant's argument is not supported by the evidence. I.C.'s claims were supported by a detailed accounting by her attorney of the disbursement of economic damages from the gross settlement amount. And C.K.'s claims were supported by invoices from the car rental agency and the repair shop.
DISPOSITION
The restitution orders are reversed, and the matter is remanded with directions to the trial court to enter new and different restitution orders awarding $31,853.27 to I.C. and $11,679.68 to C.K.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. GOETHALS, J.