* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I, II, III and IV.
Sondra and Gilman also testified they did not notice any symptoms that Millard was under the influence of alcohol.

The restitution hearings and the trial court’s restitution order are described below.

On November 3, 2006, we issued an order granting the parties’ joint request to consolidate their appeals (i.e., Case Nos. D047681 and D049268). On April 9, 2009, the People filed a request that we take judicial notice of a civil action filed by Millard against Payne on January 22, 2009, in the Orange County Superior Court. We now grant the People’s request for judicial notice of that complaint filed by Millard. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) However, we do not consider that complaint in disposing of the instant appeals because it is irrelevant to the issues on appeal.

CALCRIM No. 240 states: “An act causes (injury/____ ) if the (injury/____ ) is the direct, natural, and probable consequence of the act and the (injury/____ ) would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. [] [] [There may be more than one cause of (injury/_____ ). An act causes (injury/_____ ), only if it is a substantial factor in causing the (injury /_____ ). A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the (injury/_____ ).]”

Millard’s opening brief does not provide a citation to the record showing the actual instruction proposed by the trial court.

In any event, Millard in effect objected to the trial court’s proposed instruction by disagreeing with it, thereby inviting any error and/or forfeiting any claim on appeal that the court erred by omitting that instruction. Furthermore, Millard apparently does not argue the trial court had a duty to instruct sua sponte that a person is presumed to be not under the influence of alcohol if a test of blood drawn from that person at any time after an alleged offense (e.g., during a replication study) results in a blood alcohol content level of less than 0.05 percent.

Code of Civil Procedure section 170.1, subdivision (a), provides in part: “A judge shall be disqualified if any one or more of the following is true: [] . . . [] (6)(A) For any reason: [] . . . [] (iii) A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”

Millard apparently does not challenge the trial court’s denial of his motion for a new trial to the extent the court treated it as a Code of Civil Procedure section 170.6 motion because that motion must be made before “the drawing of the name of the first juror . . . .” (Code Civ. Proc., § 170.6, subd. (a)(2).) Therefore, Millard’s motion under that statute was untimely made (i.e., after trial).

Although the court’s order calculated the total amount as $1,245,126, the correct total is $1,245,156. Nevertheless, because the difference is negligible (i.e., $30) and we remand the matter on another ground as discussed below, we need not correct the trial court’s error in summation for purposes of this appeal.
To the extent Millard separately asserts the trial court abused its discretion by not crediting the amount of Payne’s reasonable attorney fees by the full amount pursuant to a provision of the settlement agreement regarding inclusion or payment of attorney fees, we need not address that issue because we reverse the court’s attorney fee award and remand for further proceedings. In any event, Millard does not carry his burden on appeal to show the trial court abused its discretion by concluding the settlement agreement did not provide for reimbursement of Payne’s reasonable attorney fees.

Although in People v. Giordano, supra, 42 Cal.4th at p. 662, footnote 6, the California Supreme Court recognized it had not addressed this issue since recent cases were issued regarding a defendant’s Sixth Amendment rights, it declined to address that issue in Giordano because the defendant had not raised any constitutional challenge to the restitution hearing in that case. Nevertheless, it noted that in Cunningham v. California (2007) 549 U.S. 270, at page 281, the United States Supreme Court stated: ” ‘[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ [Citations.]” (Giordano, at p. 662, fn. 6.) In this case, Millard was granted probation. The restitution hearing was held and the restitution order was issued after he was granted probation. Therefore, there was no possibility that at the restitution hearing Millard could be exposed to a greater potential sentence for his crime. (Cunningham, at p. 281.)

This issue was briefly alluded to, but not addressed, in People v. Dehle (2008) 166 Cal.App.4th 1380, at pages 1388 to 1389: “While we express no opinion on the resolution of these issues [on which the People were not present to address], they include, among others, the following: given the fact that it appears that the decedent was not wearing a seatbelt at the time of the accident, whether the decedent’s own negligence contributed to his death and whether defendant should be required to make restitution for economic harm caused in part by the victim himself . . . .”

Code of Civil Procedure section 1021.4 provides: “In an action for damages against a defendant based upon that defendant’s commission of a felony offense for which that defendant has been convicted, the court may, upon motion, award reasonable attorney’s fees to a prevailing party against the defendant who has been convicted of the felony.”

Cf. Zavala v. Regents of University of California (1981) 125 Cal.App.3d 646, 647, 650-651 [comparative negligence applied in personal injury action where jury apportioned 80 percent of liability for plaintiff’s injuries to his own willful misconduct (i.e., voluntary intoxication) and 20 percent to defendants’ ordinary negligence (i.e., continuing to serve alcohol to plaintiff)].)

“Contributory negligence is a term of art. It is negligence of a plaintiff in failing to exercise care for [himself or] herself that is one of the causes of [his or] her harm. Under this definition, contributory negligence differs from negligence, which is a failure to exercise reasonable care for others. [] Nevertheless, to a very large extent contributory negligence analysis parallels negligence analysis.” (Dobbs, The Law of Torts (2001) § 199, p. 495, fns. omitted.) That authority further states: “Under a pure comparative fault regime, [a plaintiff’s contributory negligence] merely reduces the amount of the award to a plaintiff who is chargeable with contributory fault.” (Dobbs, The Law of Torts, supra, at § 201, p. 503.)

By so concluding, we need not address the trial court’s apparent conclusion that Payne’s restitution amount should be reduced because he was not an “innocent victim” under article I, section 28, subdivision (a), of the California Constitution. In any event, were we to address that issue, we doubt Payne would be precluded from receiving victim restitution under that classification because he was a “crime victim” entitled to restitution. (Cal. Const., art. I, § 28, subd. (b).) Furthermore, we need not address the trial court’s conclusion that there were “compelling and extraordinary reasons” for it to award Payne less than the full amount of his economic losses. (Cal. Const., art. I, § 28, subd. (b) [“Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.”]; Pen. Code, § 1202.4, subd. (g) [“The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.”].) In our view, a trial court need not first find such “compelling and extraordinary reasons” as a prerequisite to application of the doctrine of comparative negligence in exercising its discretion in determining the amount of Penal Code section 1202.4 victim restitution a criminally negligent defendant must pay.