Court Clarifies Criminal Restitution

Both the California Constitution (Art. I, section 28(b)) and implementing provisions of the Penal Code provide for restitution to victims of criminal activity. In People v. Millard (here), the Court orf Appeal resolved a series of issues relating to restitution in the context of a accident in which the defendant, who was driving a Ford Explorer while "under the influence," collided with and injured the driver of a motorcycle. The court held (a) the trial court did not abuse its discretion in awarding the victim the amount his insurance company paid to his doctors, as opposed to the amount that the doctors billed the victim; (b) the amount of attorney's fees incurred by the victim that is awardable under the restitution statute must be calculated according to the "lodestar method" used for calculating a fee award in civil rights cases; (c) although restitution is limited to economic losses, the victim's fees need not be automatically reduced even if the fee was incurred to obtain a recovery for both economic and non-economic losses, if there is no reasonable way of dividing the attorney's time; (d) a restitution order does not require either a jury trial or proof beyond a reasonable doubt; and (e) the doctrine of comparative fault may be used to reduce a criminal defendant's restitution obligation to the extent the victim's negligence contributed to his injuries.

This is an interesting and scholarly decision. The comparative fault issue is novel and may be worthy of the California Supreme Court's attention, particularly if the AG can portray it as a limitation on victim's rights in favor of criminal defendants.