People v. Nonaka ( 2022 )

Filed 9/30/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B313848
(Super. Ct. No. 2018044045)
Plaintiff and Appellant, (Ventura County)
v.
NOLAN TAKAO NONAKA,
Defendant and Respondent.
A person who commits a simultaneous crime and a tort
answers in two independent actions. Settlement of a tort claim in
civil court operates independently of a settlement in criminal
court. As we shall explain, the “People of the State of California”
are not bound by a waiver of rights in civil court. Any purported
waiver to the constitutional right to restitution in civil court is
not enforceable in criminal court.
The People appeal the denial of the motion for victim
restitution, i.e., attorney fees and costs, after respondent was
convicted by plea of felony driving with a .08 blood alcohol level
or higher causing bodily injury. (Veh. Code, §§ 23153, subds. (a),
(b), 23558; Pen. Code, § 12022.7, subd. (a).) The People contend
the trial court erred when it concluded the civil settlement and
release of liability signed by the victim in the civil case
discharged respondent’s obligation to pay restitution in the
criminal case. We agree and reverse.
FACTS AND PROCEDURAL HISTORY
While driving with a blood alcohol level of .14 percent,
respondent ran a red light and crashed into another vehicle,
severely injuring its occupants. Ame S. suffered a fractured
pelvis. Her 14-year-old daughter, Lyla S., suffered multiple
injuries including a lacerated spleen and ruptured kidney, for
which she was hospitalized. Lyla also suffered back injuries and
other minor injuries.
As part of his negotiated plea, respondent acknowledged
that he would be ordered to pay victim restitution in an amount
to be determined at a restitution hearing in criminal court.
Meanwhile, the victims hired an attorney on a contingency fee
basis and settled a civil lawsuit against respondent. This
settlement was paid by respondent’s insurance carrier in the
amount of $235,000 for Ame and $200,000 for Lyla. As part of
this settlement, Ame signed a general release in which she
agreed to “release, discharge and acknowledge as fully paid and
compromised, all claims, demands and causes of action” against
respondent and his insurance carrier. (Capitalization omitted.)
Nobody asked the People of the State of California if they agreed
to this settlement.
Prior to the restitution hearing in criminal court, the
People filed briefing and requested that the trial court order
respondent to pay victim restitution for attorney fees and costs.
The People’s briefing included several documents that detailed
the victims’ economic damages, including medical fees, attorney
fees, and litigation costs. The exhibits also included the “Petition
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to Approve Compromise of a Disputed Claim for Minor,” and the
release of liability.
At the restitution hearing, respondent’s counsel
acknowledged that attorney fees “are compensable.” However, he
argued that since the victims signed releases, they “have received
full and complete compensation.” The People argued the fees
were reasonable, and victim restitution is consistent with the
intent of the law to make the victim whole.
The trial court denied the People’s motion. Its written
order stated: “The victims sought and obtained an Order
Approving Compromise of a Disputed Claim, the Petition for
which states: ‘Petitioner fully understands that if the compromise
proposed in this petition is approved by the court and is
consummated, the claimant will be forever barred from seeking
any further recovery of compensation from the settling
defendants . . . .’” 1
In its ruling, the trial court also stated, “The negotiated
settlement between the parties to the civil action was an arm’s
length transaction in which the victims knew precisely what their
net recovery would be following the deduction of fees and costs.
Accepting this settlement established that net recovery as the
reasonable compensation for their damages and, therefore, the
recovery they were entitled to.”
1The “claimant” in the criminal case is not the victim. It is
the People of the State of California, represented by the Ventura
County District Attorney. The People were not a party to the
settlement and a civil “claimant” cannot alter the remedy set out
by the California Constitution.
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DISCUSSION
Restitution is constitutionally required “in every case in
which a victim has suffered economic loss as a result of the
defendant’s conduct,” regardless of the sentence or disposition
imposed. (Cal. Const., art. I, § 28, subd. (b)(13)(B); Pen. Code, §
1202.4, subds. (f), (a)(1).) Actual and reasonable attorney fees are
among the determined economic losses properly addressed by a
restitution order. (Pen. Code, § 1202.4, subd. (f)(3)(H).)
Release of Liability Did Not Discharge Respondent’s
Constitutional Obligation to Pay Restitution
The People contend the trial court erred when it denied
Ame’s attorney fees and costs because the civil settlement did not
discharge respondent from his constitutional obligation to pay
restitution in the criminal case. As indicated, we agree.
A restitution order does not simply indemnify a crime
victim for her economic losses, but also seeks to rehabilitate and
deter the defendant from future criminality. (People v. Bernal
(2002) 101 Cal.App.4th 155, 161-162.) Consequently, a civil
settlement between a victim and the defendant’s insurer does not
relieve the defendant of his restitution obligation to the state.
(Id. at p. 162.) However, settlement payments made to a victim
on the defendant’s behalf must be used to offset the restitution
award “to the extent that those payments are for items of loss
included in the restitution order.” (Id. at p. 168; People v.
Vasquez (2010) 190 Cal.App.4th 1126, 1134-1135 (Vasquez).)
In People v. Grundfor (2019) 39 Cal.App.5th 22 (Grundfor),
we considered whether a trial court could order restitution for
attorney fees where, as part of a civil settlement, the victim
agreed to waive all claims against the defendant’s insurance
carrier. (Id. at pp. 26-28.) We affirmed the trial court’s
restitution order and observed that a settlement with an
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insurance company and the state’s right to compel a defendant to
pay restitution “operate independently” of each other. (Id. at p.
28.) We further concluded there was no offset to the civil
settlement because the settlement required each side to bear its
own attorney fees. (Ibid.)
Similarly, in People v. Pinedo (1998) 60 Cal.App.4th 1403,
we held that a contingency fee paid to the victim’s attorney who
obtained a civil settlement from the defendant’s insurance carrier
was properly included in the restitution amount ordered.
Upholding the restitution order, we stated, “[a]ppellant’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 insurance carrier was ‘proper, necessary, and a logical
result of appellant’s criminal conduct.’ [Citations.].” (Id. at pp.
1405-1406.) We concluded there was no evidence the insurance
company paid the victim’s attorney fees and nothing in the record
suggested the settlement was increased to cover those costs. (Id.
at p. 1406.) “[T]he victim suffered a loss to the extent he had to
pay part of his settlement to his attorney.” (Ibid.)
Here, the evidence shows, and the People seek, $58,750 in
attorney fees and $2,824.44 in costs for Ame. The People do not
seek fees and costs for Lyla. And whether they have been treated
differently by the People is beside the point.
Respondent Did Not Meet His Burden to Show the Attorney Fees
were Unreasonable or that Offset was Required
The People next contend the trial court did not apply the
correct standard at the restitution hearing. We agree.
Evidence showing what a victim actually paid as attorney
fees is “‘prima facie evidence of a loss entitling [the victim] to
compensation.’” (Grundfor, supra, 39 Cal.App.5th at p. 31.) The
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burden then shifts to the defendant to disprove that amount or to
seek an offset. (People v. Fulton (2003) 109 Cal.App.4th 876, 886-
887 (Fulton); People v. Taylor (2011) 197 CalApp.4th 757, 761,
764 (Taylor).)
Here, the People presented evidence that Ame received a
civil settlement of $235,000. Of the settlement, $61,574.44 was
paid to Ame’s attorney as a contingency fee of 25 percent plus
costs. Respondent did not present any witnesses or evidence in
opposition. Instead, he argued the signed releases by the victims
meant they “ha[d] received full and complete compensation,” and
the contingency fee was “not a true amount of attorney’s fees.”
Indeed, counsel stated, “I would have no quarrel with an hourly
billing of attorney’s fees if we had that sort of a documentation.”
However, “[a] crime victim who seeks redress for his
injuries in a civil suit can expect to pay counsel with a
contingency fee.” (Taylor, supra, 197 Cal.App.4th at p. 763;
Fulton, supra, 109 Cal.App.4th at p. 889.) The typical
contingency fee is 33 1/3 percent. (Taylor, at p. 764; Fulton, at p.
889.) Because the People established that Ame paid her attorney
a contingency fee of 25 percent as well as costs, the burden
shifted to respondent to refute this showing. (See Vasquez,
supra, 190 Cal.App.4th at p. 1137; People v. Millard (2009) 175
Cal.App.4th 7, 33-34.) This he did not do.
Respondent contends the trial court’s denial of fees was an
“implied finding that the amount of attorney’s fees had been
offset.” (Bold omitted.) But an implied finding of fact must be
supported by substantial evidence. The record contains no such
evidence.
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DISPOSITION
The trial court’s order is reversed. The matter is remanded
with directions to enter a restitution order consistent with this
opinion.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J. *
*Retired Associate Justice of the Court of Appeal, Second Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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David R. Worley, Judge
Superior Court County of Ventura
______________________________
Erik Nasarenko, District Attorney, and W. Taylor Waters,
Deputy District Attorney, for Plaintiff and Appellant.
Ridley Defense and Andrea Keith for Defendant and
Respondent.