Direct Restitution May Be Awarded To Spouse of Deceased Victim for Lost Economic Support

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In People v. Giordano (2007) 42 C.4th. __, __ C.R.3d __, __ P.3d __, 2007 WL 4147029, defendant was convicted of vehicular manslaughter and sentenced to a prison term of 4 years. The trial court heard testimony by decedent's employer establishing his earnings for the 3-year period preceding his death and by his surviving spouse that decedent "was a provider" for their family. Based on this testimony, the court ordered defendant to pay restitution to the spouse in the amount of $167,711.65, which was calculated by multiplying decedent's average annual earnings over the 3 years prior to his death by 5 years. Held, affirmed.

(a) Survivor may be awarded direct restitution for future economic loss attributable to deceased victim's death.

(1) Defendant argues that, despite the broad language of Cal. Const., Art. I, 28(b), and P.C. 1202.4, the surviving spouse may not recover the future earnings of the deceased spouse. Defendant is correct that the surviving spouse does not step into the shoes of the decedent to recover his future losses. The language of both provisions suggests that victims may recover restitution only for those losses they suffered. It does not follow, however, that the surviving spouse did not suffer an economic loss. (2007 WL 4147029, p. 7.)

(2) Defendant next argues that the Legislature has not authorized restitution for prospective economic losses. However, many, if not all, of the categories of loss compensable as direct restitution include losses that are incurred after the occurrence of the crime, and that may continue to be incurred for a substantial period of time following the restitution hearing. For example, wages or profits lost due to injury to the victim under P.C. 1202.4(f)(3)(D) necessarily arise following the occurrence of the crime, and medical expenses under P.C. 1202.4(f)(3)(B) and mental health counseling expenses under P.C. 1202.4(f)(3)(C) may be incurred after the restitution hearing is held. Also, the object of restitution is to restore the status quo, which cannot be achieved if the restitution order is limited to amounts that had been paid or lost prior to the restitution hearing. (2007 WL 4147029, p. 7.)

(3) Defendant next argues that the surviving spouse did not personally suffer an economic loss. However, it is well established in civil wrongful death actions that a surviving spouse incurs an economic loss on the death of his or her spouse. The economic loss incurred by the surviving spouse is the loss of future economic support due to the decedent's death. (2007 WL 4147029, p. 8.) Further, although the wrongful death statute provides standing only for certain people to bring civil claims for wrongful death, this does not demonstrate that the Legislature excluded support losses from restitution orders. P.C. 1202.4(a)(1) expressly provides "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." (2007 WL 4147029, p. 9.)

(4) The list of categories of loss in P.C. 1202.4(f)(3) is expressly nonexclusive. Given the constitutional and legislative intent to provide restitution for all crime victim losses, no implied limitation on restitution to surviving spouses should be read into P.C. 1202.4, based on a failure to enumerate that type of loss explicitly. (2007 WL 4147029, p. 9.)

(5) Defendant attempts to distinguish the losses designated in P.C. 1202.4(f)(3) from a surviving spouse's economic loss, suggesting that the designated losses are all immediate, concrete, and easily ascertainable, rather than remote, speculative, anticipatory, conjectural, or particularly complex. This is incorrect. Several types of loss require anticipation of the exact amount of economic loss that will be incurred, and several may require complicated calculations or result in large restitution awards. (2007 WL 4147029, p. 10.)

(6) Both Cal. Const., Art. I, 28(b), and P.C. 1202.4(f) and, (g) provide that restitution need not be imposed if "compelling and extraordinary reasons" exist for not doing so. However, 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. (2007 WL 4147029, p. 10.)

(7) "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." (2007 WL 4147029, p. 11.)

(b) Measurement of survivor's economic loss.

(1) The amount of the trial court's restitution order is reviewed for abuse of discretion. While a trial court has broad discretion to choose a method for calculating that amount, it must employ a method that is rationally designed to determine the surviving victim's economic loss. To facilitate appellate review, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered. (2007 WL 4147029, p. 11.)

(2) Defendant suggests that the amount of direct restitution that a surviving spouse may receive under P.C. 1202.4 is limited to the amount of assistance offered by the Restitution Fund for loss of support. However, the Restitution Fund is not intended, as direct restitution orders are, to fully reimburse the victims for economic loss incurred as the result of the criminal conduct. (2007 WL 4147029, p. 12.)

(3) Wrongful death case law shows that a surviving spouse's economic loss is best calculated as a loss of economic support. Here, a significant element of damages is the loss of financial benefits the decedent was contributing to his family by way of support at the time of his death and support reasonably expected in the future. (2007 WL 4147029, p. 12.)

(4) No abuse of the trial court's discretion occurs as long as the calculation of economic loss is reasonable, producing a nonarbitrary result. Factors relevant to that determination "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." (2007 WL 4147029, p. 13.)

(5) Although the trial court's method of calculation here was imprecise, defendant has not shown that the amount of restitution was an abuse of discretion.(2007 WL 4147029, p. 13.) Because defendant has not shown that the amount awarded exceeds that which the surviving spouse was eligible to receive, the judgment must be affirmed. (2007 WL 4147029, p. 14.)

A single justice dissented, arguing that the Legislature has established other methods by which a surviving spouse may obtain restitution for loss of economic support resulting from a homicide victim's death, i.e., civil wrongful death actions and applications to the state Restitution Fund, and that it may be inferred from the statutes that the Legislature found the criminal sentencing process ill suited to making the complex damage calculations required in these cases. (2007 WL 4147029, p. 15.)

Witkin References

On restitution to victim generally, see 3 Cal. Crim. Law (3d), Punishment, §100 et seq.

On order for victim restitution, see 3 Cal. Crim. Law (3d), Punishment, §103.

On amount of victim restitution, see 3 Cal. Crim. Law (3d), Punishment, §104.