*1 Nov. S138382. [No. 2007.] PEOPLE,
THE Plaintiff and Respondent, GIORDANO, Defendant and
CHARLES Appellant.
Cоunsel Court, Nichols, Diane Defendant and under Supreme appointment Appellant. Jr., General, Brown,
Bill Robert R. Lockyer and Edmund G. Attorneys Anderson, General, Schons, Chief Assistant W. Assistant Attorney Gary General, Foster, Dutton, Robert M. Steve and James D. Attorney Getting General, Attorneys for Plaintiff and Deputy Respondent.
Opinion MORENO, Defendant was convicted of vehicular manslaughter J. sentenced to a term of He ordered to direct victim years. four prison pay $167,711.65, in the amount of restitution to the wife of the deceased victim *6 victim’s of five annual We average earnings. value of the deceased years direct victim governing here consider whether Penal Code section restitution, a convicted defendant to compensate authorizes a court require future losses of a deceased victim for his or her spouse We that a court include attributable to the deceased victim’s death. hold this loss of economic in a direct restitution order. measure a victim’s surviving
We also consider how a trial court should that a trial court consider economic loss. We articulate several factors owed to a victim. surviving when how much restitution is calculating Because defendant has not shown that the amount of restitutiоn ordered was discretion, an abuse of the trial court’s we affirm the of the Court of judgment Appeal.
I. FACTS AND PROCEDURAL BACKGROUND 1, 2003, orOn about December defendant Charles Giordano was driving under influence of alcohol when he hit and killed Kenneth Armstrong, 18, 2003, who a On December defendant riding motorcycle. pleaded (c)(3), to vehicular former subd. guilty manslaughter 278, 1), amended and Stats. ch. admitted suffered by having prior Code, §23152, (Veh. conviction for under influence of alcohol driving (b)). Pursuant to his defendant was denied agreement, plea probation, sentenced to the term of four in and ordered to upper years prison, pay $400. restitution fine of 5, 2004,
On decedent’s Patricia re- May Armstrong, spouse, for victim restitution to Penal Code hearing quested pursuant 23, 2004, (a)(3)(B). On the trial court held a restitution July counsel, hearing, during which Patricia Armstrong, represented by private . . of her sought cover . some she “appropriate expenses time incurred of her she on at the primary support depended ha[d] [since] taken due the crime did seek marriage was She not away [defendant].” [action],” “such would in a death but you ask for instead things wrongful restitution “in the amount of a modest life very insurance requested policy $25,000 $50,000, amount earnings based on the decedent’s modest $35,000 оf approximately per year.” and Patricia who
Decedent’s were witnesses employer Armstrong only at the that he testified Decedent’s testified had hearing. employer employed decedent for nine as a in his business. Dece- roofing years superintendent $38,940, dent’s W-2 federal income tax forms showed that he had earned $29,131, $32,546 2001, 2002, and Patricia respectively. testified that she and decedent were married for Armstrong eight years that decedent “was a for their For the last two of their family. years provider” she worked as a The court ordered defendant to marriage, pay housekeeper. $167,711.65, in the which was restitution to Patricia amount of Armstrong calculated decedent’s annual by average earnings multiplying approximate the three to his death five years. over years prior order, the trial that the contending Defendant court’s restitution appealed that the Penal order violated his Code does original agreement plea authorize direct restitution to the of deceased victim based surviving affirmed the loss of decedent’s future The Court of earnings. Appeal upon *7 order. It with the agreed defendant’s sentence as modified restitution the trial granted trial court’s determinatiоn that Penal Code section 1202.46 months after court to consider for restitution seven jurisdiction request defendant of concluded that decedent’s was sentenced.1 Court Appeal 1202.4, (k), under Penal Code “victim” spouse restitution, that she was entitled to recover receiving victim and purposes decedent’s lost future The court reasoned that she suffered earnings. “clearly a loss as a result of defendant’s criminal the loss of income activity, including earned, her husband would have and she was therefore entitled to any wages decedent have otherwise earned.” may determine (1)
We review in order to whether California’s direct granted scheme, I, restitution as set forth in article section 28 of the California 1202.4, Constitution and Penal Code section authorizes restitution to compen- losses, sate the of a deceased victim for his or her future economic and how a trial court should measure a victim’s economic loss.
H. DISCUSSION A. of,
We an begin by overview providing describing history of, evolution the state’s restitution scheme.
Convicted criminals be one or more of three required pay First, reasons,” of restitution. absent types all “compelling extraordinary fine,” convicted defendants must a “restitution the amount of which pay “set at the discretion court and commensurate with the seriousness of Code, 1202.4, (Pen. the offense.” (b).)2 subd. Restitution fines are into paid § Code, 1202.4, the Restitution Fund (Pen. (e)), State subd. Treasury § which is used to victims for losses compensate specified “pecuniary they Code, suffer as a (Gov. (a).) direct result of criminal acts.” subd. § Second, when defendant is convicted of a crime a victim involving who Code, “has suffered (Pen. economic loss as a result of defendant’s conduct” 1202.4, (f)), the court must defendant full restitu require pay § tion victim or victims of the crime “unless it finds directly compelling challenge Defendant Appeal’s does not the Court of conclusion that the trial court had Code, (Pen. jurisdiction impose additional restitution. 1202.46 the economic [“[W]hen (f) sentencing pursuant losses of a victim cannot be ascertained at the to subdivision time jurisdiction subject Section the court shall retain to a order person over for purposes imposing modifying restitution until such time as the losses be determined.”].) felonies, $200, $10,000. For the restitution fine must be at least but not more than misdemeanors, $100, (b)(1).) For the fine must be at least but not more $1,000. (Ibid) than *8 652 so, reasons for not and states those reasons on extraordinary doing (Id., A “defendant has the to a before right hearing record.” subd. (g).) determination the amount of restitution.”
a judge dispute Third, (Id., (f)(1).) when a defendant is a court granted probation, the defendant restitution as a condition of its discretion require pay Lent 1203.1, (b), (1975) 15 (j); People subds. v. probation. (Lent).) 481, 905, P.2d Cal.3d 486-187 541 Cal.Rptr. 545] [124 1982, 8, The In California voters also known as Proposition passed Bill of At the time this initiative was victims had Rights. Victims’ passed, Fund, and trial courts some access to the Restitution through compensation v. (People a had discretion to restitution as condition impose probation. 278, 1067, Broussard P.2d (1993) 5 Cal.4th 1072 856 Cal.Rptr.2d 1134] [22 226, 235, (Broussard); v. Birkett People 21 Cal.4th fn. 8 [87 205, (Birkett).) 980 P.2d 8 established Proposition right Cal.Rptr.2d 912] of crime victims to receive restitution “from the convicted of directly persons Const., I, 28, (b).) (Cal. the crimes for suffer.” art. The they losses I, 28, (b) initiative added article section subdivision to the California Consti tution: “It is the intention of the of the State California People unequivocal that all who losses as a result of criminal shall have the activity suffer persons for losses they to restitution from the convicted of crimes right persons suffer, every Restitution shall be ordered from the convicted persons [f] case, of the sentence or in which a crime regardless disposition imposed, loss, a unless reasons exist to the extraоrdinary victim suffers compelling contrary.” 28, Constitution, I, (b),
California article which is not directed the self-executing, Legislature adopt implementing legislation. Panelli, (Broussard, (dis. J.); 5 Cal.4th supra, People at 1078 p. opn. (1986) 179 Vega-Hernandez 1092-1099 Cal.App.3d Cal.Rptr. [225 209] enacted, has (Vega-Hernandez).) Legislature We have observed “[t]he amended, (Birkett, statutes.” array and frequently bewildering responsive statutes, 228.) 21 Cal.4th at We review the evolution of these supra, briefly p. as relevant to the issue before us. Penal Code section which
In enacted Legislature a condition in all cases in which courts to restitution as impose “require[d] v. Narron 732 granted.” (People Cal.App.3d probation enacted Penal Code section also Legislature Cal.Rptr. fine case in which any “the court impose
requiring ‘[in] (Narron, supra, ....’” Cal.App.3d defendant is convicted of felony however, “enact 4.) did not immediately legisla- fn. The Legislature, p. were trial to order defendants who tion either courts requiring authorizing were to any to make restitution convicted of crimes but given probation (Broussard, of the victims of their crimes.” 5 Cal.4th at In supra, 1986, the remedied this Government Code by amending oversight *9 section 13967 to “that ‘a victim has suffered provide when ecоnomic loss as conduct, result of the defendant’s criminal and the defendant is denied ” ... court shall order restitution to be to the victim.’ probation, paid (Broussard, 1074, omitted.) italics p. mid-1990’s,
In the consolidated much of the victim Legislature state’s 1994, restitution scheme into Penal Code section 1202.4. In the Legislature 13967, deleted the restitution in Government Code provisions section includ- ing for restitution provision defendants who are denied payments by similar probation, incorporated substantively into Penal Code provisions 1994, 1106, 2, 3, 6548-6550, (Stats. 29, section 1202.4. ch. eff. pp. Sept. §§ 1995, 1994.) 1203.04, In Penal Code Legislature repealed section which had for restitution provided as a condition of payments probation, 1995, its incorporated (Stats. into Penal Code section requirements 1202.4. 313, 5, 8, 1755-1758, 1762, 3, ch. pp. 1995.) §§ eff. Penal Code section Aug. case, 1202.4 now requires restitution without every to whether respect addition, above, probation 1203.1, In as granted. noted Penal Code section subdivision broader (j) provides discretion for trial courts to restitu- impose tion aas condition of probation.
The 1994 amendments to Penal Code section 1202.4 were enacted “to restitution, expand of the victims to ability receive both and from directly (Assem. the restitution fund.” on Com. Public Safety, Assеm. Bill Analysis (1993-1994 4, 1994, Sess.) No. 3169 Reg. 1.) as amended Penal Code Apr. 1202.4, (h) subdivision restitution order “shall be provided 1994, 1106, 3, 6548, 6549, enforceable (Stats. as a civil judgment.” ch. pp. § 29, 1202.4, 1994.) eff. Penal Sept. (k) Code section subdivision defined “victim” to “include the immediate of the actual victim.” surviving family 1994, 3, 6548, (Stats. 1106, 6549, 29, 1999, ch. 1994.) eff. In pp. Sept. § 1202.4, amended the definition of “victim” in Penal Code section “ (k)(3) subdivision to include victims’ as defined in Section 13960 ‘[derivative 1999, 584, time, (Stats. the Government Code.” 4.) ch. At § the definition of “derivative victims” in Government Code section 13960 included a crime who the time of the was the person parent, sibling, “[a]t Code, 13960, or (Gov. child of the victim.” spouse, (a)(2)(A), former subd. as § 1998, 697, 1, 2002, 1141, 10, amended Stats. ch. by Stats. ch. repealed by § § 13955, reenacted without (c) substantive as Gov. change § 2002, 1141, 4.)3 Stats. ch. § 2004, (k) In the definition of “victim” found in Penal Code section 2004, (Stats. 223, 2) amended incorporate persons ch. identified “derivative as 13960,
victims” in change. Government Code former section without substantive 1994, former subdivision (g) Penal Code section As amended in that is ... be of a dollar amount that restitution “shall payments specified victims, determined the victim or for every reimburse fully sufficient conduct, criminal the result of the defendant’s economic loss incurred as (1) or damaged all of the the value of stolen following:” property; including or duе to a victim’s wages injury medical lost profits expenses; victim; due to time (4) lost wages time for a minor caring profits spent 29, 6548, 6549, eff. (Stats. Sept. a witness. ch. spent pp. (f) this as subdivision redesignated In the Legislature provision is nonexclusive. and amended it to list categories specify to, limited but not all of the follow- clause now states: “including, relevant *10 629, added; 1996, Code, 1202.4, (f)(3), Stats. ch. (Pen. subd. italics ing.” § 1, 3, 3465, 3467, 1997.) categories the fist of Additionally, eff. Jan. pp. § of loss: (f) categories to include three additional subdivision was expanded (Pen. or lascivious acts (1) losses for convictions for lewd felony noneconomic Code, loss, and 288), (3) and fees (2) attorney interest on § 3, 3465, 3467-3468, 1996, 629, Jan. (Stats. ch. eff. costs of coilection. pp. § 1999, 1, fist of 1997.) In amended the nonexclusive Legislature again it to include: (f), loss in subdivision categories compensable expanding (3) residential (1) (2) mental health relocation counseling expenses, expenses, due to the cost of a vehicle or residence retrofitting security expenses, 584, 1999, (Stats. 4.) ch. attributable to the crime. § victim disability fist, (f)(3)(D) recent amendment to this made in 2000 to subdivision The most lost,” due a victim’s time (E), injury, “[w]ages profits specifies victim, witness, “any time as a includes for a minor caring spent spent 1016, 2000, (Stats. base ch. any wages.” commission income as well 9.5.) § 2000, Code section 1202.4 also amended Penal Legislature
In Fund “shall be to a victim out of the Restitution that assistance paid provide conduct and shall to be a direct result of the defendant’s criminal presumed Code, (Pen. ordered.” included in the amount of § be 2000, 1016, 9.5).) If a victim has (added Stats. ch. (f)(4)(A) subd. § Fund, the defendant must from the Restitution pay received compensation rather than to the victim. thus to the Restitution Fund amount compensated (f)(2).) § decedent, 2003, December, the version of defendant hit and killed In when in effect.4 enacted in 2000 was still Penal Code section 1202.4 4 2000, 1202.4 that do to Penal Code section has made modifications Since 238, 2005, 223, 2; 2004, (See ch. ch. Stats. § in this case. Stats. not relate to the issue before us 2005, 240, 1; 10.) ch. Stats. §
B. observed, As we have “the Legislature is under an constitu express Const., I, 28, (Cal. tional (b)) mandate art. to enact laws requiring trial courts to order restitution ‘in crime case ... in which a victim every (Broussard, suffers a loss ....’” supra, Cal.4th Our of this constitutional mandate interpretation is guided by principle “ construction that ‘. . . since a written constitution is intended as and is the mere framework to whose according outlines must general legislation specific modeled, be framed and and is therefore . . . couched in necessarily general terms or it language, to be to narrow or interpreted according lines, supertechnical but principles, liberally on broad so that it general in full accomplish measure the objects of its establishment and carry so ” out the great (Amador Valley Joint Union High principles government.’ Sch. Dist. v. State Bd. Equalization (1978) 22 Cal.3d 244-245 [149 (Amador 583 P.2d Valley), Cal.Rptr. quoting Stephens Chambers 1281] 663-664 P. Cal.App. we are
Although guided by broad constitutional mandate of California Constitution, I, article (b), that restitution been must *11 “in ,” case ... in crime imposed every which a victim suffers a loss . . . of the losses that scope must be is not clear from the text compensated of this Instead, constitutional provision. it that “all requires generally who persons suffer losses as a result criminal shall have the activity right restitution from the suffer,” convicted of the crimes for losses persons but does not they Const., define (Cal. I, 28, “losses.” added; (b), art. subd. italics see § Vega-Hernandez, supra, 179 1096-1097.) at The Cal.App.3d pp. history 8 Proposition does not indicate that the voters considered the contours precise of the losses that must be included in a restitution order. As we have observed, ballot arguments for and against “[t]he measure scarcely mentioned 8, restitution. Proponents argued that in all Proposition its aspects, crime, was a crime, means of necessary curbing violent and of particularly restoring balance between the rights criminals and victims. [Citation.] that Opponents responded Proposition 8 was radical and would undermine better considered reforms already On the issue of place. [Citation.] restitution, the opponents urged only that the new right restitution proposed was ‘meaningless’ because ‘so are harmed many victims criminals who can’t pay,’ ‘victims have the already right to collect from criminals who (Birkett, can 244, supra, pay.’ 21 at omitted.) Cal.4th italics p. [Citation.]” Constitution, I, Because the of losses in California scope article 28, (b) section subdivision is ambiguous, we look to the statutes Legislature has enacted to this constitutional implement provision. “[I]t well settled that when the Legislature is with an charged implementing 656 mea of the the Legislature’s interpretation
unclear constitutional provision, 244, citing at (Birkett, 21 Cal.4th supra, p. deference.” sure deserves great 245-246; Finance Housing 22 Cal.3d at Valley, pp. Amador supra, California 875, P.2d 583 22 175 Cal.Rptr. Patitucci Cal.3d Agency [148 1243, (1995) Cal.4th 729]; cf. Amwest Ins. Co. v. Wilson Surety has “adopted P.2d When Legislature Cal.Rptr.2d defer to its we of the constitutional provision,” plausible interpretation (Birkett, 21 Cal.4th supra, determination. scheme statutory implements
The has enacted Legislature I, Constitution, section subdivi article mandate of California broad Legislature intent of the “It is the (b). begins: Penal Code section 1202.4 sion of the loss as a result who incurs any that a victim of a crime from defendant directly any restitution of a crime shall receive commission added.) also that It (Id., (a)(1), italics requires convicted of that crime.” to fully sufficient a dollar amount that is order “shall be of the restitution incurred determined economic loss every or victims for reimburse the victim (f)(3), (Id., . .” conduct . . of the defendant’s criminal result unless it added.) court shall order italics Additionally, “[t]he full so, those and states doing reasons for extraordinary finds compelling (Id., added.) italics on the record.” subd. (g), reasons to the of losses one limitation scope has supplied included that is not expressly included in a restitution order must be is, Constitution, I, (b). That it has article California Code, (Pen. “economic orders limited restitution primarily loss[es].” added.) of restitution With (a), (f), exception subds. italics for lewd or lascivious acts convictions relating felony orders in direct restitution be included 288), which noneconomic losses for order, direct rеstitution section 1202.4 does not authorize Penal Code *12 limitation, the (f).) from this (Id., categorical subd. Apart noneconomic losses. must be limited loss that of economic types has not further 1996, the list of Since its amendment in a restitution order. included been 1202.4 has in Penal Code section categories compensable to fully that is sufficient be of a dollar amount nonexclusive: the order “shall incurred determined economic loss or victims for every reimburse the victim conduct, limited but not including, criminal the result of the defendant’s as 1202.4, Code, (Pen. to,” above. § discussed categories the 11 enumerated added.) (f)(3), subd. italics recover may Armstrong that Patricia defendant
Although agrees 1202.4, only he that she argues to Penal Code section restitution pursuant section victim,” victim.” Penal Code not an “actual “derivative Instead, include is defined to however, a “victim” no such distinction. makes immediate of the actual victim” surviving family and “[a]ny “[t]he person who has sustained economic loss as result of a crime and who ... ['ll][a]t child, the time of the crime was the parent, grandparent, sibling, spouse, of the grandchild victim.” (k)(l), (3)(A).) subd. A § “victim” also be may “[a]ny who is to receive person eligible assistance from (Id., the Restitution Fund.” subd. (k)(4).) Persons who are eligible to recеive assistance from the Restitution Fund include “derivative (Gov. victim[s]” Code, 13955, (a)(2)), subd. who are defined who “individual^] sustain[] loss as a pecuniary Code, 13951, result of injury (Gov. death to a victim.” (c).) subd. While the Restitution Fund thus defines a separately “derivative victim,” Penal Code section 1202.4 does not. that,
Defendant argues the broad despite California language Constitution, I, article section (b) subdivision and Penal Code section 1202.4, Patricia not Armstrong may recover the future earnings her deceased We spouse. with agree defendant that Patricia does not Armstrong into the shoes of step decedent to recover his future losses. language I, article (b) Constitution, of the California itself that suggests victims recover may for only those losses suffered “all personally: persons who losses as a result criminal activity shall suffer have the right restitution from the convicted persons of the crimes for losses they (Italics added.) Moreover, Penal Code section 1202.4 does suffer.” that a provide heir, or other spouse, member or family recover Instead, losses on behalf of a deceased victim. it that a provides only victim recover economic losses that he or she incurred “a personally: victim of crime who incurs any ecоnomic loss as a result of the commission of a crime shall receive restitution from directly defendant any convicted of (Id., that crime.” (a), added.) italics however,
We disagree, with defendant’s argument Patricia Armstrong did not suffer an economic loss that must be included in a direct restitution order. Defendant first argues the Legislature has not authorized restitution for prospective losses. He out the use of the points word “reim- burse” in Penal Code section 1202.4’s that a restitution order requirement “shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for determined every economic loss incurred as the result of the defendant’s (Id., criminal conduct.” (f)(3), added.) italics He contends that the word “reimburse” indicates that the Legislature intended only costs, restitution to be for “back paid lost expenses, wages previously as a *13 result of the narrow, offense.” This is too interpretation and it conflicts with the plain meaning of the statute. purpose all, if not of the
Many, categories of loss as direct compensable restitution include that crime, losses are incurred after the occurrence of the 658 for a of time continue to be incurred substantial may period which (f)(3).) subd. For a restitution hearing.
following victim,” оr due to incurred the injury lost “[wjages profits example, crime, the and it is likely the occurrence of following arise necessarily weeks, months, victims for or wages profits crime will lose many injured (Id., Also, (f)(3)(D).) following hearing. restitution possibly years “[mjental health be counseling expenses” expenses” “[m]edical (Id., (C).) As (f)(3)(B), held. the incurred after a restitution is hearing 946, Phelps v. People (1996) in 41 950 Court of reasoned Cal.App.4th Appeal 855], after a when medical determining expenses paid Cal.Rptr.2d [48 order, “[n]othing be in a restitution the included sentencing hearing to to an intent limit the restitution right of the Constitution language suggests frame, or restitution to for time financial losses within occurring particular “loss” Construing incurred before the word sentencing.” broadly, expenses found it refers to a victim’s injuries, requiring Court of “that Appeal to treat injuries, regardless restitution for all those expenses necessary (Ibid.) We As we have observed in context when arise.” they agree. law, the status of restitution is to restore quo unfair object competition “[t]he in which he or she has an to the funds by returning plaintiff ownership Martin (Korea v. Lockheed Supply Corp. Co. (2003) Cal.4th 29 interest.” 1134, 29, 937].) the same when 63 P.3d The object 1149 Cal.Rptr.2d [131 to restore a criminal conviction. In order following restitutiоn is imposed a criminal act has to extent that it is when possible economic status quo, victim, not be to the amount restitution orders must limited injured hearing. that has been lost paid or money prior suffer did not an Armstrong Defendant next that Patricia argues personally actions, it is well wrongful economic We In civil death disagree. loss. the death incurs an economic loss upon established that Los Angeles Ry. Corp. Gilmore v. 211 (1930) Cal. (See, e.g., his or her spouse. 534, v. Johnson Syah 192, 41]; 247 (1966) P. Cal.App.2d 197-198 [295 establishing statute standing 546-547 Cal.Rptr. purpose [55 actions, of Civil Procedure for death Code bring wrongful certain persons and certain of a “is to enable the heirs dependents specified the killed recover for wrongfully compensation person (Justus v. death.” as a result of the of consortium suffer deprivation they (Justus), Atchison P.2d Cal.3d 581 565 Cal.Rptr. 122] [139 Court Superior Ochoa added, ground on another italics disapproved 1].) One of the 703 P.2d Cal.Rptr. Cal.3d death losses describes the calculating wrongful instructions for approved jury of said heirs have received from if which each would any, “financial support, death, if and the receive right support, any, deceased except “economic reason of the death” as each of the heirs hаs lost by which 14.50; Jury Council of Cal. Civ. Instns. No. see also Judicial (BAJI damage.”
659 below, (Feb. rev.) 3921.) 2007 As in more the CACI No. we discuss detail a economic loss incurred is the loss of future economic surviving spouse (Canavin v. Southwest Airlines due to the death. support spouse’s Pacific 512, (Canavin).) (1983) 148 520-521 Cal.App.3d Cal.Rptr. 82] [196 Defendant that death claims are that argues wrongful purely statutory has not demonstrated an to death Legislature intent expand wrongful recovery through restitution scheme. Defendant is correct that is has it a widely been understood that were for the decedent’s heirs without remedy decedent’s death at common law. state’s death after this first Shortly wrongful 1862, was statute enacted in this court for the observed civil action “[t]hat se, of person, per death cannot be maintained one at law is by any common well settled time.” (Kramer v. Market too to admit of discussion at present Street Railroad (1864) 434, Company 435.) 25 Cal. some doubt has Although cast on been that did understanding common law cause of provide death, for action this belief wrongful Legislature acted held upon widely it (Justus, when enacted the state’s first death statute. wrongful 19 supra, 573-574, at citing Moragne v. States Marine Lines Cal.3d pp. U.S. 398 L.Ed.2d 1772].) 375 S.Ct. 90 We have therefore [26 concluded that statute, “intent in Lеgislature’s adopting its successor [Code Civil create an cause manifestly Procedure] new entirely (Justus, of action where none was supra, 19 Cal.3d thought exist before.” 574.) We have been that the intends to “persuaded Legislature occupy death,” and, field recovery wrongful death accordingly, wrongful (Id. “remains creature in of statute California.” at p.
That the death Legislature’s wrongful standing only statute provides death, however, for certain civil people claims for does not bring wrongful demonstrate that excluded Legislature losses from restitution orders. The “that a Legislature very clearly intended victim of crime who incurs any economic loss as a result of the commission of a crime shall receive from any defendant convicted of that crime.” directly (a)(1), italics added.) to be Legislature presumed “ existence, aware ‘judicial already decisions to have enacted or ” amended a statute (People thereof. light Yartz [Citation.]’ Cal.4th Cal.Rptr.3d 123 P.3d it when Accordingly, enacted Penal Code that victims receive restitution for all requiring losses, it did with the so presumed knowledge long courts have understood that a surviving incurs an economic the death upon or her his spouse.
Defendant alsо suggests because the has expressly permit- awards ted victims from derivative the Restitution Fund for loss *15 660 has not that direct restitution orders provided but
support,5 specifically awards, to include the did not intend direct restitution orders such Legislature the constitutional and legislative include awards for loss of Given support. losses, the for all crime victim intent expressly provide statute, loss in the direct restitution list of of included nonexclusive categories on restitution to we decline to read into that statute an limitation implied failure to that of loss based on a enumerate type explicitly. spouses not that the doctrine by argument We are also defendant’s persuaded that a of the of loss be ejusdem categories may compensable by limits generis of “that if the generis direct restitution order. The doctrine ejusdem provides sense, in its it does intends a word be used unrestricted Legislature general also or classes of since those things not offer as examples peculiar things (Kraus v. Trinity Management then would be descriptions surplusage.” Services, 116, 485, P.2d (2000) Inc. Cal.4th 141 999 23 Cal.Rptr.2d [96 718].) words follow words “Ejusdem general whether generis specific applies event, a either or general in statute or vice versa. In the term category are those are enumeratеd ‘restricted to those that similar to which things ” 1142, (1991) XIV 52 Cal.3d (Harris v. Growth Investors Capital specifically.’ Inns, 873], fn. P.2d Martin v. Holiday 7 805 Cal.Rptr. quoting [278 “the Inc. Cal.Rptr. Although 199 1437 Cal.App.3d [245 but to’ is of the use of enlargement,” not limited a phrase ‘including, phrase that the intended a this does not demonstrate conclusively phrase v. Fair & (Dyna-Med, Housing to be without limits. Inc. category Employment 67, 743 P.2d Cal.Rptr. Com. 43 Cal.3d 1323] [241 that, In we held but (Dyna-Med).) Dyna-Med, “including, despite phrase Code, to,” (Gov. Act not limited the California Fair Employment Housing does authorize Fair and Housing 12900 et seq.) Employment § are to award because damages Commission punitive damages, punitive provided. different kind from the corrective and remedies equitable 1387-1389.) (Dyna-Med, at pp. in kind and correc damages the difference between punitive
Unlike support tive and remedies at issue Dyna-Med, spouse’s equitable that enumerated in Penal Code section is similar to the of loss are categories is, 1202.4, (f). incurred by spouse loss of Broadly, support time of the crime” legally dependent victim on the victim at the derivative who was “[A] by by support person Fund incurred compensated be Restitution “for the loss crime, (A) be following: support Loss of shall subject a direct of the to both as result to, than, up years more fivе by period income an adult for a but not paid board for lost crime, (B) by the on following paid Loss shall not be board the date of [f] Code, (Gov. age attaining years.” period beyond of a for a the child’s of 18 behalf minor this (a)(4).) payable pursuant all derivative victims “The total amount subd. ($70,000).” (Id., seventy as of one not exceed thousand dollars the result crime (b).) loss, like the enumerated an loss incurred the result categories as aof criminal it to the categories act. More is akin of loss specifically, restitution for or due to time require “[w]ages injury, lost” profits spent witness, or time assisting spent police prosecution. (E).) Like who other (f)(3)(D), a victim loses wages
income, of a the death loses the economic upon surviving spouse *16 that he would support or she otherwise have received.
Defendant to the Code distinguish designated losses Penal attempts loss, (f), section subdivision from a surviving spouse’s economic that of the suggesting “the nature enumerated items is consistent—all losses immediate, ascertainable; concrete, remote, are and none are easily specula- tive, We As anticipatory, conjectural, particularly complex.” disagree. above, discussed several loss of the exact types anticipation require amount of economic that will loss be incurred. several enumer- Additionally, ated categories of loss calculations or require large result in complicated restitution For awards. example, People Thygesen v. 69 Cal.App.4th 886], the Court of held that the court Cal.Rptr.2d trial Appeal [81 had not the calculated the theft properly attributable to of a cement mixer business, an from rental “Determination use equipment of loss of observing, necessarily involves evidence as to .. . court several factors. the trial Initially, have will to (or determine the of time it have length took should reasonably taken) Next, the victim the to stolen item. the court the replace will multiply reasonable, days lost a rental reasonable rate. In what computing evidence will have to be as to how often item was rented supplied and (or annual income it has monthly/daily) historically produced.” In People Baumann 176 Cal.App.3d (Baumann), Cal.Rptr. 32] trial court held the exact lengthy hearing as to extent of the victim’s “[a] embezzlement, loss” attributable to defendant’s wit- during which several evidence, nesses testified and 75 checks were introduced into and “the court $20,419.” found evidence substantiated a loss to the victim of Accоrd- while of a ingly, calculation spouse’s loss of be as is support complex, below, described in more detail this does not distin- complexity materially it from the of loss guish categories specified by Legislature. out, Constitution, I,
As defendant California article points section (b) subdivision allows that restitution need and not be if imposed “compelling I, to the extraordinary reasons exist the mandate Following of article contrary.” (b), in Penal Legislature has Code section provided 1202.4 that a not court need restitution if “it finds impose compelling so, not states extraordinary reasons for on doing [the reasons] id., (f); record.” this see While (g).) exception indicates that voters and the Legislature there contemplated ordered, would be circumstances in which restitution would not be not it does support concluding surviving that economic not spouse’s lost support may to that might be included in order. Without as reasons speculating restitution we that this only excep- as observe extraordinary,” qualify “compelling Rather, court entire of loss. it allows a trial tion does exclude categories discretion decline to restitution in unusual situations specific some impose defendant, crime, or other circumstance. particular that that there are numerous considerations argues defendant Finally, policy lost have not to include a caused might spouse’s “ that would [sentencing restitution. Namely, hearings trials”; into fisc would be funding devolve civil the “[p]ublic personal defense”; losses incurred allowing recover injury concerns;6 his or would due implicate process her death following spouse’s if would be that a defendant’s the law right equal implicated protection more in a direct order a victim could receive restitution through *17 Fund; the that defendant is reluctant generally than from Restitution and “[a] restitution, or for no matter how challenge, factually fear challenge any create and sen- thereby would animus legally legitimate, negatively impact did where there a death involved.” The Legislature is tencing, particularly not, however, from exclude a lost economic surviving support spouse’s orders, and it is not us to the wisdom of the judge Legislature’s restitution for decisions. we do not address these considerations. Accordingly, policy policy reasons, hold that a surviving
For we foregoing due as direct the amount of lost economic incurred receive restitution act in death of or her to a criminal that resulted his spouse. 6 hearings require restitution acknowledges, As defendant numerous courts have held that (See, e.g., hearings hearings guilt. process due than civil criminal protections
fewer
1153,
Baumann,
79-81;
People v.
(1989)
supra,
Rivera
212
Cal.App.3d
pp.
Cal.App.3d
at
176
81,
People
93];
(2000)
v. Cain
Cal.Rptr.2d
82
Cal.Rptr.
Cal.App.4th
86 [97
1160-1161 [261
hearings are
836].)
understanding
that restitution
premised
Courts have
this conclusion on
80-81; Rivera,
(Baumann, supra,
supra, 212
sentencing hearings.
Cal.App.3d
pp.
at
176
Cain,
Baumann,
80—81;
1160-1161,
supra,
citing
Cal.App.3d at
pp.
pp.
at
176
Cal.App.3d
86;
641,
(2000)
People
Harvest
Cal.App.4th
supra,
v.
Cal.App.4th
cf.
84
647
p.
[101
82
at
(Harvest).)
high
prior
court’s decision in
Cal.Rptr.2d
These cases were decided
135]
856,
856],
(2007)
Cunningham v.
127
and our
663 C.
We next a trial should victim’s consider how court measure discussed, As restitution “in requested loss. Patricia Armstrong $25,000 to amount of a life insurance in the amount of very modest policy $35,000 $50,000, earnings based on the decedent’s modest of approximately The trial heard decedent’s establish- year.” testimony employer court per by death ing by decedent’s the three his earnings years preceding Patricia that decedent for their Based on Armstrong family. “was provider” testimony, this the court ordered defendant restitution to Patricia pay $167,711.65, amount of which was calculated Armstrong by multiply- three ing decedent’s annual over the approximate average earnings years prior to his death five Defendant the amount of by years. appeals ordered the trial court affirmed by Court Appeal, arguing trial court calculated Patricia loss. As will Armstrong’s we improperly we we explain, although the trial court’s calculation was agree imprecise, are that the trial abused persuaded court its discretion.
As both we review the trial agree, court’s restitution order for abuse parties v. Maheshwari (See, e.g., People (2003) of discretion. 107 Cal.App.4th 903]; v. Hove 1266,1275 1409 People (1999) 76 Cal.Rptr.2d Cal.App.4th [132 128]; People Draut Cal.Rptr.2d 581-582 Cal.App.4th [91 .)7 “deferential,” The abuse of discretion standard but Cal.Rptr.2d 469] v. Williams it “is not empty.” (People Cal.4th 162 [69 P.2d Cal.Rptr.2d asks in substance whether the ruling “[I]t *18 ‘falls outside the bounds reason’ the the question of under law and applicable standard, (Ibid.) relevant facts Under a this while trial court has [citations].” restitution, broad discretion a to choose method for the calculating amount of it must a method that the employ designed is to determine rationally discretion, While we review all restitution that a scope orders for abuse of we note the of trial court’s probation. discretion is broader when restitution is as a of Penal imposed condition 1203.1, (j) grants Code section expressly imposing trial courts broad discretion in held, court probation. probation conditions of As this has condition of will not be held “[a] convicted, ‘(1) the relationship invalid unless it has no crime of which the to offender criminal, (3) requires relates to conduct which not in which is itself or forbids conduct (Lent, supra, related reasonably criminality is to future ....’” 15 Cal.3d With whole, criterion, restitution, i.e., respect to the third ordеr a attempting “an for to make victim [citation], generally criminality has been deemed a deterrent and the court is not to future actually limited to the amounts is transactions or of which defendant convicted [citations].” (Ibid.) Probationary may be for imposed restitution even if a defendant has not been convicted “‘ ” ’ clemency grace,’ offense ‘act not a of particular probation “because is an of matter right. granting probation right privilege, of is not a and if the defendant but [Citation.] ‘[T]he offense[,] that the of are he probation feels terms harsher than the sentence for the substantive probation.’ right probation, is free to refuse has no trial Because defendant the [Citations.] long can it the impose probation impose, court conditions that could not otherwise so as (People conditions are not invalid under the three Lent criteria.” Rubics Cal.App.4th Cal.Rptr.3d 459-460 [38 of trial To review the appellate victim’s economic loss. facilitate surviving order, a record court take care to make of court’s restitution the trial must evidence and make clear state- analyze restitution hearing, presented, that justifies of used and how method ment the calculation method amount ordered. a surviving amount of restitution
Defendant first suggests as to Penal Code section 1202.4 receive direct pursuant spouse of offered limited the amount of loss assistance support is We victims recover loss Restitution Fund. Derivative disagree. for Fund for a maximum of five or period years, from the Restitution support no than and for a total more a minor until the of 18 amount age years, $70,000 (Gov. all derivative victims due to one crime. for losses suffered by Code, 13957.5, (b).) no into Penal (a)(4), subds. There is reason import § Fund Code 1202.4 restrictions Restitution governing payments these Fund for Restitution restricting payments of support. provision the surviving family loss of does not define spouse purport Code, 13957.5, (a)(4), (b).) (Gov. subds. More member’s economic loss. § are, over, intended, “to direct restitution orders the Restitution Fund is not determined economic loss every reimburse the victim or victims for fully Code, (Pen. . . .” incurred result of the defendant’s criminal conduct . as the Instead, Fund “to (f)(3).) Restitution subd. purpose § California in for the obtaining assist residents of State of compensation Code, (Gov. a direct of criminal acts.” losses suffer as result they pecuniary (a).) court’s calculation was errone Defendant next the trial argues Patricia for her own Armstrong ous it did not accurately compensate because loss is not that a economic agree surviving spouse’s loss. We have earned but that the deceased would income simply wages above, Code section 1202.4 does not for his or her death. As discussed Penal heir, into the steps or other member or family that a provide spouse, recover the decedent’s losses. shoes decedent in order to victim crime who incurs economic loss as (a)(1) any [“[A] *19 from crime receive restitution directly a result of the commission of a shall Instead, a added)].) surviving crime” (italics defendant convicted of that any or her own economic receive restitution the amount his only loss. itself for guidelines 1202.4 does not
Penal Code section provide However, as that a incurs. surviving spouse the economic loss calculating award, above, rational for its and demonstrate a basis a trial court must stated The burden is meaningful is to review. permit ensure that the record sufficient basis the an factual adequate restitution to seeking provide on the party claim.
In that a receive as concluding surviving direct the spouse may economic loss a criminal act resulted in death of attributable to that the his оr her to law us to looking wrongful death case enabled see the spouse, loss economic as a common of economic loss. surviving spouse’s category This is in demonstrating case law also useful that the surviving spouse’s economic loss is best as a described loss of support. purpose of a death is “to the wrongful judgment amounts of provide support future which the beneficiaries would have the future received in had decedent lived” (Canavin, “[wjhere, supra, added), at italics and as Cal.App.3d here, father, decedent was a husband element of significant damages the loss of financial he was contributing family by benefits his way at the time support of his death and that in the support reasonably expected (Id. 520-521, future.” at added.) italics pp. the instructions Additionally, jury for calculating death which address both economic and wrongful damages, noneconomic as damages, describe “economic loss” the “financial support,” that the decedent would have contributed to the heir family added; (BAJI member. No. italics No. CACI In a criminal case an award of restitution is committed to the sound discretion of trial court. No abuse of that discretion occurs as the long reasonable, determination economic loss is result. nonarbitrary producing Factors relevant to that determination will on the necessarily depend particu- lar circumstances before the court. calculation the loss of Generally, be support by informed such as the factors of the earning history decedent, deceased spouse, age survivor degree which the decedent’s income to the provided survivor’s household. support These are not as an exhaustive list. guideposts provided Naturally court’s discretion be guided will at particular factors in each individual play claim. case,
In the instant the trial court ordered restitution in the amount of $167,711.65. It estimated Patricia the de- Armstrong’s by multiplying ceased victim’s approximate average annual five This earnings by years. method of calculation that assumes Patricia Armstrong was entitled receive her gross husband’s annual earnings, not of his just portion earnings went to her economic It also assumes that five is the support. years term for appropriate loss of The trial support only restitution. court’s apparent Harvest, basis for of five choosing period years supra, Cal.App.4th $23,160 a case in trial page which a court ordered defendаnt to pay former wife of a victim deceased for the loss of child decedent *20 666 trial method of In these the court’s ways,
had been ordered to pay.8 Armstrong’s Patricia loss was not to establish carefully designed calculation of support. defendant has not the trial methodological court’s imprecision,
Despite an abuse of the trial court’s the amount of restitution ordered was shown that order the trial court we that a of judgment discretion. On appeal, presume “ correct, are to it on indulged support is intendments presumptions ‘[a]ll silent, must be affirmatively the record is and error matters as to which ” 2 County (1970) Cal.3d (Denham Court Los Angeles shown.’ v. Superior of that, if the 564 468 P.2d Defendant suggests Cal.Rptr. limit the amount the Restitution court does not restitution to permitted Fund, “the demon it to amount of the spouse’s we should limit we with defendant general principle, strated of While this support.” agree loss less than the that loss of was Armstrong’s support has shown Patricia amount of restitution ordered. the court restitution in excess of
Defendant trial ordered argues only court did not take into Patricia loss on that the Armstrong’s ground have what of decedent’s income would portion gone support consideration address the of time for which himself or others. Defendant dоes not period her husband Patricia have received economic from Armstrong support would of based on a five but for death. The trial court awarded restitution period his indicated, but, decedent was relatively young as defendant’s counsel years, loss using killed the court could have calculated of support when he was defendant has not shown that method of time.9 longer Accordingly, period of economic Armstrong’s Patricia loss designed support, approximate of contribu- years victim’s taking anticipated into consideration deceased less would have resulted in an amount of restitution tion to his wife’s support, $167,711.65. than 8 upon the lost explained in that the “restitution order based The trial court this case $33,542.33 average multiplied by period five
wages to of of the household in the amount People v. Harvest years case." use of five seems have years as the 60 in the The was months There, until the defendant’s Harvest. arbitrary imposed restitution was not after been (Harvest, supra, period at Cal.App.4th 84 appeal. conviction was affirmed on unspecified triggering event and the date that years period based on between an five was Harvest, (Id. 652-653.) at dissent criticized pp. order wаs entered. In losses, trial court calculated support observing: “The trial court’s calculation of child order, 60 July period its of months July child from month of support $23,160. promptly given a restitution $386 Had defendant been per yielding month a total for child would of 1995—the amount of restitution hearing-—say April in March or $23,000.” (Id. $3,000 (dis. opn. at p. than literally range rather have been Poché, J.).) that decedent in his argument, counsel said she believed During oral defendant’s at the time he was killed. 30’s *21 (f)
Penal Code restitution requires be “based on the amount of claimed victim or victims other by any court,” to the and here Patricia restitution showing Armstrong only requested “in the amount of a life very modest insurance amount of policy $25,000 $50,000.” to an The trial court ordered restitution in amount claim, more than satisfied Patricia defendant has not shown Armstrong’s that this amount exceeds that which she to eligible receive. Accordingly, we have not been that the trial abused persuaded court its discretion.
in. CONCLUSION above, For the reasons stated we affirm the Court of judgment Appeal. J., Baxter, J., J., Chin, J., J., C.
George, Werdegar, concurred. Corrigan, J., KENNARD, a criminal proceed- holds that in Dissenting. The majority ing sentencing court order a defendant who been convicted has restitution, homicide сrime the deceased pay victim’s surviving spouse, of the estimated portion income that the deceased victim would have likely case, earned. In the tragic circumstances of that holding this is certainly But appealing. Legislature has other by established methods which obtain restitution spouse may for loss resulting from a homicide victim’s death—the surviving spouse may civil bring Proc., wrongful (Code death action 377.60) Civ. the defendant against § Code, to the apply state Restitution Fund (Gov. established crime victims et A seq.). § close review of the legislative scheme reveals pertinent has, several reasons doubt that the Legislature in addition to these two clearly established methods for restitution for lost obtaining support, also authorized sentencing courts include this loss in a category of direct It order. seems likely more that the Legislature reasonably decided that the criminal is ill sentencing suited often process making excep- tionally calculations damage that are complex required.
I 2003, In alcohol, December while under the influence of defendant Charles Giordano killed Kenneth when collided Armstrong defendant’s car with Armstrong’s motorcycle. Defendant to vehicular pled guilty manslaughter Code, (c)(3), formеr as amended Stats. ch. § 1) and admitted a (Veh. conviction for under the influence prior driving (b)). The trial court sentenced him to a four-year prison term. *22 the of victim Kenneth Patricia May Armstrong, spouse
In the The trial court in a on victim restitution. Armstrong, hearing requested her in 2004 at which Patricia and held a hearing July criminal proceeding The former were the witnesses. only employer, deceased husband’s employer contractor, for him as had worked Armstrong testified that Kenneth roofing a death, his of three before during years annual the earnings, a foreman with $38,940, $29,131, $32,546. had that she Kenneth Patricia testified the main for provider and that Kenneth had been years been married for eight she had also been employed. the last two family, although during years their to in the amount defendant to Patricia The trial court ordered pay $167,711, during average earnings which was five times Kenneth’s annual of his the three before death. years authorized trial that the had not Legislature
On defendant appeal, argued for the to make restitution orders projected courts criminal proceedings the rejected a victim. The Court of Appeal future deceased earnings the restitution order. and affirmed argument
II make trial in criminal to Our state Constitution courts proceedings requires here, bе it “Restitution shall restitution orders. As relevant provides: victim case, sentence regardless from the convicted every ordered persons loss, a victim a unless in which crime suffers or disposition imposed, I, Const., (Cal. art. reasons exist to contrary.” compelling extraordinary (b).) provisions subd. It Legislature “adopt implement requires (Ibid.) this section.” (section enacted Code section 1202.4
In Penal response, (f), “in here is which states that 1202.4). The issue provision a result of the has suffered economic loss as case in which victim every conduct, that the make restitu- the court shall defendant require defendant’s as including defines “victim” to the or victims.” Section 1202.4 tion victim and “[a]ny person of the actual victim” family immediate surviving “[t]he . . . and who . . . loss as the result of crime who has sustained economic [f] 1202.4, (§ . . . ... of the victim.” the time the crime was the [a]t definition, is a victim defendant’s (k).) Armstrong this Patricia Under recover restitution. issue crime and may vehicular manslaughter whether, the trial in the criminal proceeding court under section her deceased order for estimated amount make direct restitution income. husband’s lost future order . . . the restitution extent possible,
Section 1202.4 states “[t]o the victim or reimburse fully be of a amount that is sufficient shall dollar victims for determined as the of the every economic loss incurred result (§ (f)(3).) defendant’s criminal conduct . . . .” 1202.4 Section then nonexclusive list of forms of economic losses that be provides here, a direct Of by restitution order. relevance the list compensated particular victim, includes “[w]ages or lost due incurred and if injury by profits minor, the victim is a or wages lost the minor’s profits by parents, parent, or while guardian, guardians, minor” and or caring injured “[wjages victim, minor, lost and if profits by the victim is a lost wages profits the minor’s due parent, guardian, to time as a parents, guardians, spent *23 1202.4, or in the (§ (f)(3)(D), witness assisting police subd. prosecution.” (E)-)
Thus, the has two of Legislature lost specified categories wages be included a direct restitution order case: “due wages criminal lost to victim,” incurred time the and injury wages lost “due to as a witness spent 1202.4, or in the assisting (§ subd. police prosecution.” (f)(3)(D), (E).) Neither category covers a claim surviving spouse’s estimated lost future exclusive, wages deceased victim. list of is not it Although categories of is strong evidence of sorts of losses the has decided to Legislature authorize for in direct inclusion restitution orders. When a statute contains a nonexhaustive list of it categories, is reasonable to infer that the Legislature to intended limit the provision similar to those things essentially expressly listed, because if no such limitation was intended list would be surplus- (International age. Federation and Technical Engineers, Professional of 21, 319, Local (2007) AFL-CIO v. Superior Court 42 Cal.4th 342 [64 693, Services, 488]; 165 P.3d Kraus v. Cal.Rptr.3d Inc. Trinity Management 116, 485, 23 Cal.4th 141 718]; P.2d Cal.Rptr.2d Dyna-Med, [96 1379, Inc. v. Fair & Employment Com. 43 Cal.3d Housing 1390-1391 67, 743 P.2d Cal.Rptr. (the The lost claim at wages [241 issue here claim of a for a surviving deceased future spouse spouse’s earnings) projected is not similar to the essentially two of that the categories wage lost claims situations, has Legislature authorized. In each of those lost are wages earned; those that the victim claimant would have are in neither situation lost to a wages claimant other than the payable whose were lost. person wages ante, 649, As the recognizes majority (maj. 658-659), loss opn., pp. for which the surviving here seeks is more compensation correctly characterized as a of loss economic rather than a It is the support wage loss. loss of that of deceased portion victim’s future income that he projected would have to the likely provided claimant widow. None of the 11 categories (f)(3) listed in section 1202.4 is а future loss anticipated economic most support. The reasonable inference to draw from the omission anticipated losses from the list that the statutory is did not Legislature intend authorize criminal to order sentencing courts direct restitution for this category of loss. direct one section 1202.4’s
That inference is when strengthened compares crime victim with the provisions governing restitution provisions parallel et For (Gov. from Restitution Fund seq.). recovery § Fund, victim’s surviv from the Restitution a homicide recovery purposes “ ” 13951, (c)) (id., a ‘derivative victim’ subd. considered ing spouse § . as a direct result for “loss of . support. obtain compensation [incurred] (id., (a)(4)) subd. to maximum of . . the death” up of . victim’s $70,000 (id., demonstrate that (b)). These provisions to suffer that homicide crimes cause spouses aware for this and that it chose provide compensation a loss of economic support, has Fund. the Legislature the Restitution Because category through the Penal Fund amended Government Code’s Restitution provisions (e.g., direct order Stats. simultaneously Code’s provisions (§ (f)(4)), it is reasonable 1016) together tied them ch. has decided to authorize infer that the Legislature consciously compensation through the Restitution Fund but not for lоss of economic support through (1991) 53 (See Inc. Court Superior direct restitution orders. Peñasquitos, ‘ 812 P.2d “Where Cal.3d 1188-1189 Cal.Rptr. 154] [“ *24 statute, a the omission with to one contains given provision, reference subject ... is a similar a related concerning subject of such from statute provision ’ ”].) to show that a different intention existed.” significant not decided to authorize direct might Legislature have Why The from a homicide crime? resulting orders for loss of economic support of the devastation that homicide no doubt aware Legislature keenly members, doubt Legislature inflict and no surviving family crimes on remedies that a have convenient and effective surviving legal intended spouse losses, loss economic including economic resulting killer for against The has one the Restitution through Legislature provided remedy support. in that the defend- way, If the receives compensation Fund. surviving spouse surviving Fund in the amount ant must reimburse the Restitution paid that the criminal (f)(4)), thus ensuring spouse § liable for the is held ultimately financially spouse’s defendant economic support. action a civil death may bring wrongful Alternatively, surviving spouse Proc., full 377.60) the defendant to obtain (Code against compensation Civ. § a civil from the victim’s death. For resulting support for thе loss economic has in the on conduct that resulted action defendant based damage against offense, has eased of a felony defendant’s conviction Code, 70611), (Gov. those fees waiving giving burdens by filing § claimant’s Proc., (Code 37), allowing prevailing calendar Civ. actions preference 1021.4). (id., to recover fees attorney plaintiff
671 concluded, however, The well have Legislature may that sentencing pro- issues, are a suitable ceedings forum to which are litigate loss-of-support (2007) often (See, e.g., Corder v. Corder 41 Cal.4th exceptionally complex. 660-667 As Richard A. Posner of the Cal.Rptr.3d Judge [61 observed, Seventh United Circuit States Court of has Appeals “[Restitution remedy criminal becomes when it “includes problematic” compensation .. would earnings . that have been received in the future” because “[Compen- sation (United for the loss of future civil.” States v. earnings quintessentially (7th 1985) Fountain Cir. 768 F.2d “is reason practical: calculation of lost future involves the earnings difficult of translating problem value,” an uncertain future stream of into a earnings which is a present that is not well problem suited “for solution in a summary proceeding (Id. for a ancillary sentencing 801-802.) criminal offense.” at pp. the value of Determining lost economic from a resulting support spouse’s death a determination of the life requires of the claimant expectancy surviv (Francis v. ing (1963) Sauve 222 spouse 121 Cal.App.2d Cal.Rptr. [34 754]), a determination of the that the decedent would probability have remained (Corder Corder, married to the claimant v. supra, 41 Cal.4th at 660-667), determination of pp. how more the decedent many years likely would have until worked and what retirement amount the decedent would Fountain, have earned in each of years (United those States v. 768 F.2d supra, 802; also see v. Emery Southern Co. Gas California 821, 826 Cal.App.2d 695]), P.2d a determination of the amount of the [165 decedent’s earnings that would been have devoted to the claimant spouse’s (Carr Tel. Co. Cal.App.3d Pacific 120]), and a determination of the Cal.Rptr. correct discount rate *25 which to reduce estimated future economic current to a support lump-sum Fountain, (United 802; value States v. at supra, p. Tyson Romey (1948) actions, P.2d In Cal.App.2d 721]). civil death wrongful expert testimony is used commonly to assist the trier of fact in some of making Co., these determinations. (Emery v. Southern supra, Gas California
Had the intended Legislature our already overburdened criminal require courts to resоlve these civil complex typically during issues sentencing hearings, during restitution held I sentencing, after would hearings expect to find some evidence of this intent in and I language section would find that the had expect the criminal courts Legislature provided with some on how to obtain and guidance for assistance that pay expert will be likely required to make these calculations. Not in the complex finding intent, 1202.4 language evidence such an I any con- supporting clude that the Legislature did not intend to on courts criminal impose burden of making these difficult determinations in direct restitution hearings.
III right has a state constitutional Armstrong legal right—indeed Patricia I, Const., from defendant (b))—to obtain restitution (Cal. art. of her is a direct result of economic support Giordano for loss death, has to vehicular manslaugh- for which defendant pled guilty husband’s which a has established two methods Legislature ter. In cases the homicide restitution and obtain right compensation enforce that surviving spouse crime: a homicide a defendant convicted of from or, action more simply a civil death may bring wrongful surviving spouse But Fund. am an the Restitution I application submit conveniently, has autho- that the concluding unable my colleagues to join enforcing right direct order—for rized a third method—the would reverse the Court Appeal’s restitution for loss of I support. judgment.