Lead Opinion
Opinion
Dеfendant was convicted of vehicular manslaughter and sentenced to a prison term of four years. He was ordered to pay direct victim restitution to the wife of the deceased victim in the amount of $167,711.65, the value of five years of the deceased victim’s average annual earnings. We here consider whether Penal Code section 1202.4, governing direct victim restitution, authorizes a court to require a convicted defendant to compensate the spouse of a deceased victim for his or her future economic losses attributable to the deceased victim’s death. We hold that a court may include this loss of economic support in a direct restitution order.
We also consider how a trial court should measure a surviving victim’s economic loss. We articulate several factors that a trial court may consider when calculating how much restitution is owed to a surviving victim. Because defendant has not shown that the amount of restitution ordered was an abuse of the trial court’s discretion, we affirm the judgment of the Court of Appeal.
I. FACTS AND PROCEDURAL BACKGROUND
On or about December 1, 2003, defendant Charles Giordano was driving under the influence of alcohol when he hit and killed Kenneth Armstrong, who was riding а motorcycle. On December 18, 2003, defendant pleaded guilty to vehicular manslaughter (Pen. Code, § 192, former subd. (c)(3), as amended by Stats. 1998, ch. 278, § 1), and admitted having suffered a prior conviction for driving under the influence of alcohol (Veh. Code, §23152, subd. (b)). Pursuant to his plea agreement, defendant was denied probation, sentenced to the upper term of four years in prison, and ordered to pay a restitution fine of $400.
On May 5, 2004, decedent’s surviving spouse, Patricia Armstrong, requested a hearing for victim restitution pursuant to Penal Code section 1202.4, subdivision (a)(3)(B). On July 23, 2004, the trial court held a restitution hearing, during which Patricia Armstrong, represented by private counsel, sought “appropriate restitution
Decedent’s employer and Patricia Armstrong were the only witnesses who testified at the hеaring. Decedent’s employer testified that he had employed decedent for nine years as a superintendent in his roofing business. Decedent’s W-2 federal income tax forms showed that he had earned $38,940, $29,131, and $32,546 in 2001, 2002, and 2003, respectively. Patricia Armstrong testified that she and decedent were married for eight years and that decedent “was a provider” for their family. For the last two years of their marriage, she worked as a housekeeper. The court ordered defendant to pay restitution to Patricia Armstrong in the amount of $167,711.65, which was calculated by multiplying decedent’s approximate average annual earnings over the three years prior to his death by five years.
Defendant appealed the trial court’s restitution order, contending that the order violated his original plea agreement and that the Penal Code does not authorize direct restitution to the surviving spouse of a deceased victim based upon the loss of decedent’s future earnings. The Court of Appeal affirmed defendant’s sentence as modified by the restitution order. It agreed with the trial court’s determination that Penal Code section 1202.46 granted the trial court jurisdiction to consider the request for restitutiоn seven months after defendant was sentenced.
We granted review in order to determine (1) whether California’s direct restitution scheme, as set forth in article I, section 28 of the California Constitution and Penal Code section 1202.4, authorizes restitution to compensate the spouse of a deceased victim for his or her future economic losses, and (2) how a trial court should measure a surviving victim’s economic loss.
H. DISCUSSION
A.
We begin by providing an overview of, and describing the history and evolution of, the state’s restitution scheme.
Convicted criminals may be required to pay one or more of three types of restitution. First, absent “compelling and extraordinary reasons,” all convicted defendants must pay a “restitution fine,” the
and extraordinary reasons for not doing so, and states those reasons on the record.” (Id., subd. (g).) A “defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (Id., subd. (f)(1).) Third, when a defendant is granted probation, a court may in its discretion require the defendant to pay restitution as a condition of probation. (Pen. Code, § 1203.1, subds. (b), (j); People v. Lent (1975)
In 1982, California voters passed Proposition 8, also known as The Victims’ Bill of Rights. At the time this initiative was passed, victims had some access to compensation through the Restitution Fund, and trial courts had discretion to impose restitution as a condition of probation. (People v. Broussard (1993)
California Constitution, article I, section 28, subdivision (b), which is not self-executing, directed the Legislature to adopt implementing legislation. (Broussard, supra,
In 1983, the Legislature enacted Penal Code section 1203.04, which “require[d] courts to impose restitution as a condition in all cases in which probation is grаnted.” (People v. Narron (1987)
In the mid-1990’s, the Legislature consolidated much of the state’s victim restitution scheme into Penal Code section 1202.4. In 1994, the Legislature deleted the restitution provisions in Government Code section 13967, including the provision for restitution payments by defendants who are denied probation, and incorporated substantively similar provisions into Penal Code section 1202.4. (Stats. 1994, ch. 1106, §§ 2, 3, pp. 6548-6550, eff. Sept. 29, 1994.) In 1995, the Legislature repealed Penal Code section 1203.04, which had provided for restitution payments as a condition of prоbation, and incorporated its requirements into Penal Code section 1202.4. (Stats. 1995, ch. 313, §§ 5, 8, pp. 1755-1758, 1762, eff. Aug. 3, 1995.) Penal Code section 1202.4 now requires restitution in every case, without respect to whether probation is granted. In addition, as noted above, Penal Code section 1203.1, subdivision (j) provides broader discretion for trial courts to impose restitution as a condition of probation.
The 1994 amendments to Penal Code section 1202.4 were enacted “to expand the ability of the victims to receive restitution, both directly and from the restitution fund.” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 3169 (1993-1994 Reg. Sess.) as amended Apr. 4, 1994, p. 1.) Penal Code section 1202.4, subdivision (h) provided that a restitution order “shall be enforceable as a civil judgment.” (Stats. 1994, ch. 1106, § 3, pp. 6548, 6549, eff. Sept. 29, 1994.) Penal Code section 1202.4, subdivision (k) defined “victim” to “include the immediate surviving family of the actual victim.” (Stats. 1994, ch. 1106, § 3, pp. 6548, 6549, eff. Sept. 29, 1994.) In 1999, the Legislature amended the definition of “victim” in Penal Code section 1202.4, subdivision (k)(3) to include “ ‘[derivative victims’ as defined in Section 13960 of the Government Code.” (Stats. 1999, ch. 584, § 4.) At the time, the definition of “derivative victims” in Government Code section 13960 included a person who “[a]t the time of the crime was the parent, sibling, spouse, or child of the victim.” (Gov. Code, § 13960, former subd. (a)(2)(A), as аmended by Stats. 1998, ch. 697, § 1, repealed by Stats. 2002, ch. 1141, § 10, and reenacted without substantive change as Gov. Code, § 13955, subd. (c) by Stats. 2002, ch. 1141, § 4.)
As amended in 1994, Penal Code section 1202.4, former subdivision (g) specified that restitution payments “shall ... be of a dollar amount that is sufficient to fully reimburse the victim or victims, for every determined economic loss incurred as the result of the defendant’s criminal conduct, including all of the following:” (1) the value of stolen or damaged property; (2) medical expenses; (3) lost wages or profits due to a victim’s injury or time spent caring for a
In 2000, the Legislature also amended Penal Code section 1202.4 to provide that assistance paid to a victim out of the Restitution Fund “shall be presumed to be a direct result of the defendant’s criminal conduct and shall be included in the amount of the restitution ordered.” (Pen. Code, § 1202.4, subd. (f)(4)(A) (added by Stats. 2000, ch. 1016, § 9.5).) If a victim has received compensation from the Restitution Fund, the defendant must pay the amount thus compensated to the Restitution Fund rather than to the victim. (Pen. Code, § 1202.4, subd. (f)(2).)
In December, 2003, when defendant hit and killed decedent, the version of Penal Code section 1202.4 enacted in 2000 was still in effect.
B.
As we have observed, “the Legislature is under an express constitutional mandate (Cal. Const., art. I, § 28, subd. (b)) to enact laws requiring trial courts to order restitution ‘in every case ... in which a crime victim suffers a loss ....’” (Broussard, supra,
Because the scope of losses in California Constitution, article I, section 28, subdivision (b) is ambiguous, we look to the statutes the Legislature has enacted to implement this constitutional provision. “[I]t is well settled that when the Legislature is charged with implementing an unclear constitutional provision, the Legislature’s interpretation of the measure deserves great deference.” (Birkett, supra,
The Legislature has enacted a statutory scheme that implements the broad mandate of California Constitution, article I, section 28, subdivision (b). Penal Code section 1202.4 begins: “It is the intent of the Legislature that a victim of a crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (Id., subd. (a)(1), italics added.) It requires also that the restitution order “shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct . . . .” (Id., subd. (f)(3), italics added.) Additionally, “[t]he court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” (Id., subd. (g), italics added.)
The Legislature has supplied one limitation to the scope of losses that must be included in a restitution order that is not expressly included in California Constitution, article I, section 28, subdivision (b). That is, it has limited restitution orders primarily to “economic loss[es].” (Pen. Code, § 1202.4, subds. (a), (f), italics added.) With the exception of
Although defendant agrees that Patricia Armstrong may recover restitution pursuant to Penal Code section 1202.4, he argues that she is only a “derivative victim,” not an “actual victim.” Penal Code section 1202.4, however, makes no such distinction. Instead, a “victim” is defined to include “[t]he immediate surviving family of the actual victim” and “[a]ny person who has sustained economic loss as the result of a crime and who ... ['ll] [a]t the time of the crime was the parent, grandparent, sibling, spouse, child, or grandchild of thе victim.” (Pen. Code, § 1202.4, subd. (k)(l), (3)(A).) A “victim” also may be “[a]ny person who is eligible to receive assistance from the Restitution Fund.” (Id., subd. (k)(4).) Persons who are eligible to receive assistance from the Restitution Fund include “derivative victim[s]” (Gov. Code, § 13955, subd. (a)(2)), who are defined as “individual^] who sustain[] pecuniary loss as a result of injury or death to a victim.” (Gov. Code, § 13951, subd. (c).) While the Restitution Fund thus separately defines a “derivative victim,” Penal Code section 1202.4 does not.
Defendant argues that, despite the broad language of California Constitution, article I, section 28, subdivision (b) and Penal Code section 1202.4, Patricia Armstrong may not recover the future earnings of her deceased spouse. We agree with defendant that Patricia Armstrong does not step into the shoes of decedent to recover his future losses. The language of article I, section 28, subdivision (b) of the California Constitution, itself suggests that victims may recover restitution only for those losses suffered personally: “all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer.” (Italics added.) Moreover, Penal Code section 1202.4 does not provide that a surviving spouse, or other family member or heir, may recover losses on behalf of а deceased victim. Instead, it provides only that a victim may recover economic losses that he or she incurred personally: “a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (Id., subd. (a), italics added.)
We disagree, however, with defendant’s argument that Patricia Armstrong did not suffer an economic loss that must be included in a direct restitution order. Defendant first argues that the Legislature has not authorized restitution for prospective economic losses. He points out the use of the word “reimburse” in Penal Code section 1202.4’s requirement that a restitution order “shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct.” (Id., subd. (f)(3), italics added.) He contends that the word “reimburse” indicates that the Legislature intended only for restitution to be
Many, if not all, of the categories of loss compensable as direct restitution include losses that are incurred after the ocсurrence of the crime, and which may continue to be incurred for a substantial period of time following a restitution hearing. (Pen. Code, § 1202.4, subd. (f)(3).) For example, “[wjages or profits lost due to injury incurred by the victim,” necessarily arise following the occurrence of the crime, and it is likely that many injured crime victims will lose wages or profits for weeks, months, or possibly years following a restitution hearing. (Id., subd. (f)(3)(D).) Also, “[m]edical expenses” or “[mjental health counseling expenses” may be incurred after a restitution hearing is held. (Id., subd. (f)(3)(B), (C).) As the Court of Appeal reasoned in People v. Phelps (1996)
Defendant next argues that Patricia Armstrong did not personally suffer an economic loss. We disagree. In civil wrongful death actions, it is well established that a surviving spouse incurs an economic loss upon the death of his or her spouse. (See, e.g., Gilmore v. Los Angeles Ry. Corp. (1930)
Defendant argues that wrongful death claims are purely statutory and that the Legislature has not demonstrated an intent to expand wrongful death recovery through the restitution scheme. Defendant is correct that it is has been widely understood that a decedent’s heirs were without remedy for the decedent’s death at common law. Shortly after this state’s first wrongful death statute was enacted in 1862, this court observed “[t]hat a civil action for the death of a person, per se, cannot be maintained by any one at common law is too well settled to admit of discussion at the present time.” (Kramer v. Market Street Railroad Company (1864)
That the Legislature’s wrongful death statute provides standing only for certain people to bring civil claims for wrongful death, however, does not demonstrate that the Legislature excluded support losses from restitution orders. The Legislature very clearly intended “that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (Pen. Code, § 1202.4, subd. (a)(1), italics added.) The Legislature is presumed to be aware of “ ‘judicial decisions already in existence, and to have enacted or amended a statute in light thereof. [Citation.]’ ” (People v. Yartz (2005)
Defendant also suggests that because the Legislature hаs expressly permitted awards to derivative victims from the Restitution Fund for loss of support,
We are also not persuaded by defendant’s argument that the doctrine of ejusdem generis limits the categories of loss that may be compensable by a direct restitution order. The doctrine of ejusdem generis provides “that if the Legislature intends a general word to be used in its unrestricted sense, it does not also offer as examples peculiar things or classes of things since those descriptions then would be surplusage.” (Kraus v. Trinity Management Services, Inc. (2000)
Unlike the difference in kind between punitive damages and corrective and equitable remedies at issue in Dyna-Med, a spouse’s loss of support is similar to the categories of loss that are enumerated in Penal Code section 1202.4, subdivision (f). Broadly, the loss of support incurred by a spouse is, like the enumerated categories of loss, an economic loss incurred as the result of a criminal act. More specifically, it is akin to the categories of loss that require restitution for “[w]ages or profits lost” due to injury, time spent as a witness, or time spent assisting the police or prosecution. (Pen. Code, § 1202.4, subd. (f)(3)(D), (E).) Like a victim who loses wages or other income, upon the death of a spouse a surviving spouse lоses the economic support that he or she otherwise would have received.
Defendant attempts to distinguish the losses designated in Penal Code section 1202.4, subdivision (f), from a surviving spouse’s economic loss, suggesting that “the nature of the enumerated items is consistent—all losses are immediate, concrete, and easily ascertainable; none are remote, speculative, anticipatory, conjectural, or particularly complex.” We disagree. As discussed above, several types of loss require anticipation of the exact amount of economic loss that will be incurred. Additionally, several enumerated categories of loss may require complicated calculations or result in large restitution awards. For example, in People v. Thygesen (1999)
As defendant points out, California Constitution, article I, section 28, subdivision (b) allows that restitution need not be imposed if “compelling and extraordinary reasons exist to the contrary.” Following the mandate of article I, section 28, subdivision (b), the Legislature has provided in Penal Code section 1202.4 that a court need not impose restitution if “it finds compelling and extraordinary reasons for not doing so, and states [the reasons] on the record.” (Pen. Code, § 1202.4, subd. (f); see id., subd. (g).) While this exception indicates that the voters and the Legislature contemplated there would be circumstances in which restitution would not be ordered, it does not support concluding that a surviving spouse’s lost economic support may not be included in a restitution order. Without speculating as to reasons that might qualify as “compelling and extraordinary,” we observe only that this exception does not exclude entire categories of loss. Rather, it allows a trial court some discretion to decline to impose restitution in unusual situations specific to a particular crime, defendant, or other circumstance.
Finally, defendant argues that there are numerous policy considerations that might have caused the Legislature not to include a surviving spouse’s lost economic support as restitution. Namely, that “ [sentencing hearings would devolve into civil trials”; that the “[p]ublic fisc would be funding personal injury defense”; that allowing a spouse to recover for losses incurred following his or her spouse’s death would implicate due process concerns;
For the foregoing reasons, we hold that a surviving spouse may receive as direct restitution the amount of lost economic support incurred due to a criminal act that resulted in the death of his or her spouse.
C.
We next consider how a trial court should measure a surviving victim’s economic loss. As discussed, Patricia Armstrong requested restitution “in the amount of a very modest life insurance policy in the amount of $25,000 to $50,000, based on the decedent’s modest earnings of approximately $35,000 per year.” The trial court heard testimony by decedent’s employer establishing decedent’s earnings for the three years preceding his death and by Patricia Armstrong that decedent “was a provider” for their family. Based on this testimony, the court ordered defendant to pay restitution to Patricia Armstrong in the amount of $167,711.65, which was calculated by multiplying decedent’s approximate average annual earnings over the three years prior to his death by five years. Defendant appeals the amount of restitution ordered by the trial court and affirmed by the Court of Appeal, arguing that the trial court improperly calculated Patricia Armstrong’s loss. As we will explain, although we agree that the trial court’s calculation was imprecise, we are not persuaded that the trial court abused its discretion.
As both parties agree, we review the trial court’s restitution order for abuse of discretion. (See, e.g., People v. Maheshwari (2003)
Defendant first suggests that the amount of restitution a surviving spouse may receive as direct restitution pursuant to Penal Code section 1202.4 is limited to the amount of loss of support assistance offered by the Restitution Fund. We disagree. Derivative victims may recover loss of support from the Restitution Fund for a maximum period of five years, or for a minor until the age of 18 years, and for a total amount of no more than $70,000 for losses suffered by all derivative victims due to one crime. (Gov. Code, § 13957.5, subds. (a)(4), (b).) There is no reason to import into Penal Code section 1202.4 these restrictions governing Restitution Fund payments for loss of support. The provision restricting Restitution Fund payments for loss of support does not purport to define the surviving spouse or family member’s economic loss. (Gov. Code, § 13957.5, subds. (a)(4), (b).) Moreover, the Restitution Fund is not intended, as direct restitution orders are, “to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct . . . .” (Pen. Codе, § 1202.4, subd. (f)(3).) Instead, the purpose of the Restitution Fund is “to assist residents of the State of California in obtaining compensation for the pecuniary losses they suffer as a direct result of criminal acts.” (Gov. Code, § 13950, subd. (a).)
Defendant next argues that the trial court’s calculation was erroneous because it did not accurately compensate Patricia Armstrong for her own economic loss. We agree that a surviving spouse’s economic loss is not simply the wages or income that the deceased spouse would have earned but for his or her death. As discussed above, Penal Code section 1202.4 does not provide that a surviving spouse, or other family member or heir, steps into the shoes of decedent in order to recover the decedent’s losses. (Pen. Code, § 1202.4, subd. (a)(1) [“[A] victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime” (italics added)].) Instead, a surviving spouse may receive restitution only in the amount of his or her own economic loss.
Penal Code section 1202.4 does not itself provide guidelines for calculating the economic loss that a surviving spouse incurs. However, as stated above, a trial
In concluding that a surviving spouse may receive as direct restitution the economic loss attributable to a criminal act that resulted in the death of his or her spouse, looking to wrongful death case law enabled us to see the surviving spouse’s economic loss as a common category of economic loss. This case law is also useful in demonstrating that the surviving spouse’s economic loss is best described as a loss of economic support. The purpose of a wrongful death judgment is “to provide the amounts of future support which the beneficiaries would have received in the future had decedent lived” (Canavin, supra,
In a criminal case an award of restitution is committed to the sound discretion of the trial court. No abuse of that discretion occurs as long as the determination of economic loss is reasonable, producing a nonarbitrary result. Factors relevant to that determination will necessarily depend on the particular circumstances before the court. Generally, the calculation of the loss of support may be informed by such factors as the earning history of the deceased spouse, the age of the survivor and decedent, and the degree to which the decedent’s income provided support to the survivor’s household. These guideposts are not provided as an exhaustive list. Naturally the court’s discretion will be guided by the particular factors at play in each individual claim.
In the instant case, the trial court ordered restitution in the amount of $167,711.65. It estimated Patricia Armstrong’s loss by multiplying the deceased victim’s approximate average annual earnings by five years. This method of calculation assumes that Patricia Armstrong was entitled to receive her husband’s gross annual earnings, not just that portion of his earnings that went to her economic support. It also assumes that five years is the appropriate term for loss of support restitution. The trial court’s only apparent basis for choosing a period of five years was Harvest, supra,
Despite the trial court’s methodological imprecision, defendant has not shown that the amount of restitution ordered was an abuse of the trial court’s discretion. On appeal, we presume that a judgment or order of the trial court is correct, “ ‘[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court of Los Angeles County (1970)
Defendant argues only that the trial court ordered restitution in excess of Patricia Armstrong’s loss on the ground that the court did not take into consideration what portion of decedent’s income would have gone to support himself or others. Defendant does not address the period of time for which Patricia Armstrong would have received economic support from her husband but for his death. The trial court awarded restitution based on a period of five years, but, as defendant’s counsel indicated, decedent was relatively young when he was killed and the court could have calculated loss of support using a longer period of time.
Penal Code section 1202.4, subdivision (f) requires that restitution be “based on the amount of loss claimed by the victim or victims or any other showing to the court,” and here Pаtricia Armstrong requested restitution only “in the amount of a very modest life insurance policy in the amount of $25,000 to $50,000.” The trial court ordered restitution in an amount that more than satisfied Patricia Armstrong’s claim, and defendant has not shown that this amount exceeds that which she was eligible to receive. Accordingly, we have not been persuaded that the trial court abused its discretion.
in. CONCLUSION
For the reasons stated above, we affirm the judgment of the Court of Appeal.
George, C. J., Baxter, J., Werdegar, J., Chin, J., and Corrigan, J., concurred.
Notes
Defendant does not challenge the Court of Appeal’s conclusion that the trial court had jurisdiction to impose additional restitution. (Pen. Code, § 1202.46 [“[W]hen the economic losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision (f) of Section 1202.4, the court shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined.”].)
For felonies, the restitution fine must be at least $200, but not more than $10,000. (Pen. Code, § 1202.4, subd. (b)(1).) For misdemeanors, the fine must be at least $100, but not more than $1,000. (Ibid)
In 2004, the definition of “victim” found in Penal Code section 1202.4, subdivision (k) was amended (Stats. 2004, ch. 223, § 2) to incorporate the persons identified as “derivative victims” in Government Code former section 13960, without substantive change.
Since 2000, the Legislature has made modifications to Penal Code section 1202.4 that do not relate to the issue before us in this case. (See Stats. 2004, ch. 223, § 2; Stats. 2005, ch. 238, § 1; Stats. 2005, ch. 240, § 10.)
“[A] derivative victim who was legally dependent on the victim at the time of the crime” may be compensated by the Restitution Fund “for the loss of support incurred by that person as a direct result of the crime, subject to both of the following: [10 (A) Loss of support shall be paid by the board for income lost by an adult for a period up to, but not more than, five years following the date of the crime, [f] (B) Loss of support shall not be paid by the board on behalf of a minor for a period beyond the child’s attaining the age of 18 years.” (Gov. Code, § 13957.5, subd. (a)(4).) “The total amount payable to all derivative victims pursuant to this section as the result of one crime may not exceed seventy thousand dollars ($70,000).” (Id., subd. (b).)
As defendant acknowledges, numerous courts have held that restitution hearings require fewer due process protections than civil hearings or criminal hearings of guilt. (See, e.g., Baumann, supra, 176 Cal.App.3d at pp. 79-81; People v. Rivera (1989)
While we review all restitution orders for abuse of discretion, we note that the scope of a trial court’s discretion is broader when restitution is imposed as a condition of probation. Penal Code section 1203.1, subdivision (j) expressly grants trial courts broad discretion in imposing conditions of probation. As this court has held, “[a] condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality ....’” (Lent, supra,
The trial court in this case explained that the “restitution order is based upon the lost wages to the household in the average amount of $33,542.33 multiplied by a period of five years as was the 60 months in the People v. Harvest case." The use of five years seems to have been arbitrary in Harvest. There, restitution was not imposed until after the defendаnt’s conviction was affirmed on appeal. (Harvest, supra,
During oral argument, defendant’s counsel said that she believed that decedent was in his 30’s at the time he was killed.
Dissenting Opinion
The majority holds that in a criminal proceeding the sentencing court may order a defendant who has been convicted of a homicide crime to pay the deceased victim’s
I
In December 2003, while under the influence of alcohol, defendant Charles Giordano killed Kenneth Armstrong when defendant’s car collided with Armstrong’s motorcycle. Defendant pled guilty to vehicular manslaughter (Pen. Code, former § 192, subd. (c)(3), as amended by Stats. 1998, ch. 278, § 1) and admitted a prior conviction for driving under the influence (Veh. Code, § 23152, subd. (b)). The trial court sentenced him to a four-year prison term.
In May 2004, Patricia Armstrong, the surviving spouse of victim Kenneth Armstrong, requested a hearing on victim restitution. The trial court in the criminal рroceeding held a hearing in July 2004 at which Patricia and her deceased husband’s former employer were the only witnesses. The employer, a roofing contractor, testified that Kenneth Armstrong had worked for him as a foreman with annual earnings, during the three years before his death, of $38,940, $29,131, and $32,546. Patricia testified that she and Kenneth had been married for eight years and that Kenneth had been the main provider for their family, although during the last two years she had also been employed. The trial court ordered defendant to pay restitution to Patricia in the amount of $167,711, which was five times Kenneth’s average annual earnings during the three years before his death.
On appeal, defendant argued that the Legislature had not authorized trial courts in criminal proceedings to make restitution orders for the projected future earnings of a deceased victim. The Court of Appeal rejected the argument and affirmed the restitution order.
II
Our state Constitution requires trial courts in criminal proceedings to make victim restitution orders. As relevant here, it provides: “Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a сrime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.” (Cal. Const., art. I, § 28, subd. (b).) It requires the Legislature to “adopt provisions to implement this section.” (Ibid.)
In response, the Legislature enacted Penal Code section 1202.4 (section 1202.4). The provision at issue here is subdivision (f), which states that “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims.”
Section 1202.4 states that “[t]o the extent possible, the restitution order . . . shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct . . . .” (§ 1202.4, subd. (f)(3).) Section 1202.4 then provides a nonexclusive list of 11 forms of economic losses that may be compensated by a direct restitution order. Of particular relevance here, the list includes “[w]ages or profits lost due to injury incurred by the victim, and if the victim is a minor, wages or profits lost by the minor’s parent, parents, guardian, or guardians, while caring for the injured minor” and “[wjages or profits lost by the victim, and if the victim is a minor, wages or profits lost by the minor’s parent, parents, guardian, or guardians, due to time spent as a witness or in assisting the police or prosecution.” (§ 1202.4, subd. (f)(3)(D), (E)-)
Thus, the Legislature has specified two categories of lost wages that may be included in a direct restitution order in a criminal case: wages lost “due to injury incurred by the victim,” and wages lost “due to time spent as a witness or in assisting the police or prosecution.” (§ 1202.4, subd. (f)(3)(D), (E).) Neither category covers a surviving spouse’s claim for estimated lost future wages of a deceased victim. Although the list of categories is not exclusive, it is strong evidence of the sorts of losses the Legislature has decided to authorize for inclusion in direct restitution orders. When a statute contains a nonexhaustive list of categories, it is reasonable to infer that the Legislature intended to limit the provision to things essentially similar to those expressly listed, because if no such limitation was intended the list would be surplus-age. (International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007)
As the majority recognizes (maj. opn., ante, at pp. 649, 658-659), the loss for which the surviving spouse here seeks compensation is more correctly characterized as a loss of economic support rather than a wage loss. It is the loss of that portion of the deceased victim’s projected future income that he likely would have provided to the claimant widow. None of the 11 categories listed in subdivision (f)(3) of section 1202.4 is a loss of anticipated future economic support. The most reasonablе inference to draw from the omission of anticipated economic
That inference is strengthened when one compares section 1202.4’s direct restitution provisions with the parallel provisions governing crime victim recovery from the Restitution Fund (Gov. Code, § 13950 et seq.). For purposes of recovery from the Restitution Fund, a homicide victim’s surviving spouse is considered a “ ‘derivative victim’ ” (id., § 13951, subd. (c)) and may obtain compensation for “loss of support. . . [incurred] as a direct result of . . . the victim’s death” (id., § 13957, subd. (a)(4)) up to a maximum of $70,000 (id., § 13957.5, subd. (b)). These provisions demonstrate that the Legislature was aware that homicide crimes cause surviving spouses to suffer a loss of economic support, and that it chose to provide compensation for this category of loss through the Restitution Fund. Because the Legislature has amended the Government Code’s Restitution Fund provisions and the Penal Code’s direct restitution order provisions simultaneously (e.g., Stats. 2000, ch. 1016) and has tied them together (§ 1202.4, subd. (f)(4)), it is reasonable to infer that the Legislature consciously decided to authorize compensation fоr loss of economic support through the Restitution Fund but not through direct restitution orders. (See Peñasquitos, Inc. v. Superior Court (1991)
Why might the Legislature have decided not to authorize direct restitution orders for loss of economic support resulting from a homicide crime? The Legislature was no doubt keenly aware of the devastation that homicide crimes inflict on surviving family members, and no doubt the Legislature intended that a surviving spouse have convenient and effective legal remedies against the killer for resulting economic losses, including loss of economic support. The Legislature has provided one remedy through the Restitution Fund. If the surviving spouse receives compensation in that way, the defendant must reimburse the Restitution Fund in the amount paid to the surviving spouse (Pen. Code, § 1202.4, subd. (f)(4)), thus ensuring that the criminal defendant is ultimately held financially liable for the surviving spouse’s loss of economic support.
Alternatively, the surviving spouse may bring a civil wrongful death action (Code Civ. Proc., § 377.60) against the defendant to obtain full compensation for the loss of economic suрport resulting from the victim’s death. For a civil damage action against a defendant based on conduct that has resulted in the defendant’s conviction of a felony offense, the Legislature has eased the claimant’s burdens by waiving filing fees (Gov. Code, § 70611), giving those actions calendar preference (Code Civ. Proc., § 37), and allowing a prevailing plaintiff to recover attorney fees (id., § 1021.4).
The Legislature may well have concluded, however, that sentencing proceedings are not a suitable forum to litigate loss-of-support issues, which are often exceptionally complex. (See, e.g., Corder v. Corder (2007)
Determining the value of lost economic support resulting from a spouse’s death requires a determination of the life expectancy of the claimant surviving spouse (Francis v. Sauve (1963)
Had the Legislature intended to require our already overburdened criminal courts to resolve these complex and typically civil issues during sentencing hearings, or during restitution hearings held after sentencing, I would expect to find some evidence of this intent in the language оf section 1202.4, and I would expect to find that the Legislature had provided the criminal courts with some guidance on how to obtain and pay for the expert assistance that likely will be required to make these complex calculations. Not finding in the language of section 1202.4 any evidence supporting such an intent, I conclude that the Legislature did not intend to impose on criminal courts the burden of making these difficult determinations in direct restitution hearings.
III
Patricia Armstrong has a legal right—indeed a state constitutional right (Cal. Const., art. I, § 28, subd. (b))—to obtain restitution from defendant Giordano for the loss of economic support that is a direct result of her husband’s death, for which defendant has pled guilty to vehicular manslaughter. In homicide cases the Legislature has established two methods by which a surviving spouse may enforce that restitution right and obtain compensation for loss of support from a defendant convicted of a homicide crime: The surviving spouse may bring a civil wrongful death action or, more simply and conveniently, may submit an application to the Restitution Fund. But I am unable to join my colleagues in concluding that the Legislature has authorized a third method—the direct restitution order—for enforcing a right to restitution for loss of support. I would reverse the Court of Appeal’s judgment.