$77,750 of Restitution Order Consisted of Attorney’s Fees.
Penal Code section 1202.4(f) is a very specialized fee-shifting statute under which a trial court in a criminal case can order a defendant to reimburse a third party for costs incurred in proving the criminal act (such as reimbursing a former employer for fees and costs in proving a defendant’s embezzlement in a civil lawsuit). This section led to a sizable restitution award in the next case.
People v. McBade, Case No. A127885 (1st Dist., Div. 1 Dec. 8, 2010) (unpublished) involved a defendant who pled no contest to a felony charge arising from embezzlement of defendant’s former employer City Mechanical. Previously, City Mechanical had proven defendant’s embezzlement in a 23 day civil trial, but was not awarded attorney’s fees in the civil case. Upon prosecutor’s motion, the trial court denied certain expense categories to former employer, a determination reversed earlier by the appellate court so that the lower court could reconsider its rejection of certain costs. On remand, the trial court awarded City restitution totaling $122,225, consisting of $74,750 in attorney’s fees from the prior civil case, $44,000 in lost income, and $3,475 in prior civil case costs.
Defendant’s challenges to the award were found unpersuasive by the Court of Appeal under the abuse of discretion/substantial evidence review standards.
Even though the civil court judge denied fees to employer, this determination had no collateral estoppel impact because the civil and criminal case involved different issues and restitutionary policies. (Vigilant Ins. Co. v. Chiu, 175 Cal.App.4th 438, 445 (2009).)
Awarding restitution of the fees incurred in the prior civil judgment–which helped establish the embezzlement–was a necessary by-product of defendant’s criminal conduct, such that the award was proper. (People v. Maheshwari, 107 Cal.App.4th 1406, 1409-1410 (2003).)