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People v. Fulton6/12/2003
Opinion on Rehearing
CERTIFIED FOR PUBLICATION
Nathan Fulton pled guilty to driving while under the influence of alcohol, causing injury. The trial court granted Fulton probation and ordered him to pay the victim restitution, including $25,000 in attorney fees the victim incurred pursuing a personal injury action against Fulton for economic and non-economic damages sustained as a result of Fulton's criminal conduct. (Pen. Code, § 1202.4.)
Fulton's sole appellate challenge concerns the restitution award. Fulton contends the amount of the attorney fees awarded was improper because a portion of that award reflected attorney services incurred to recover non-economic damages. While we agree section 1202.4, subdivision (f)(3), allows restitution only for that portion of attorney fees attributable to the victim's recovery of economic damages, we conclude the record supports that the $25,000 restitution award reflected attorney fees incurred to recover the victim's economic damages and that this amount was reasonable. Accordingly, we affirm.
Factual and Procedural Background
In January 1999, Fulton was driving his car at a high rate of speed when he crossed over the center double yellow line, causing a head-on collision with a vehicle driven by Gary Overton. Fulton, his passenger, and Overton were seriously injured in the accident. Fulton's blood-alcohol level was measured at 0.16 percent. He pled guilty at arraignment. In May 1999, the court sentenced Fulton to probation and imposed various terms and conditions of probation, but did not set victim restitution. The court continued the victim restitution hearing several times to permit Overton (and his wife) to continue settlement discussions with Fulton's insurer.
On September 1, 2000, the court conducted the restitution hearing. By that time, Overton had settled his civil case against Fulton and had been reimbursed for his past and future medical expenses, lost wages and property damage. The only remaining restitution issue was the amount of attorney fees and costs Fulton was obligated to pay Overton. Overton claimed $25,000 in fees and Fulton argued the proper amount was 25 percent of Overton's economic damages. Following an evidentiary hearing, the court ordered Fulton to pay Overton $25,000 in attorney fees pursuant to section 1202.4(f)(3)(H).
In support of Overton's claim that he was entitled to $25,000 in fees, his attorney, Barbara Savaglio, submitted exhibits and points and authorities which (1) described the nature and extent of Overton's injuries; (2) set forth the amount of Overton's economic damages; (3) outlined the settlement negotiations between Fulton's insurer and Overton; and (4) explained her fees. In opposition, Fulton's counsel submitted points and authorities and exhibits, including Overton's partial responses to Fulton's discovery requests.
These documents revealed that as a result of the accident, Overton suffered injuries to his shoulder requiring surgery, physical therapy and possible future surgery; a severe laceration requiring 65 stitches to his ear; a large laceration to his head; and pain to his head, nose and legs. Overton's injuries caused him to miss several weeks of work, resulting in lost wages. His vehicle was "totaled" in the crash, resulting in property damage and expenses for a rental vehicle.
The documents also showed that shortly after the accident, Overton (and his wife) retained the services of attorney Savaglio to pursue legal action against Fulton. Overton agreed to a 25 percent contingent fee arrangement. Following unsuccessful negotiations with Fulton's insurer, Wawanesa Mutual Insurance, Savaglio filed
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