People v. Giordano, S138382.

• Court: United States State Supreme Court (California)
• Citation: 42 Cal.4th 644,68 Cal.Rptr.3d 51,170 P.3d 623
• Decision Date: 26 November 2007
• Docket Number: No. S138382.,S138382.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles GIORDANO, Defendant and Appellant.

68 Cal.Rptr.3d 51 42 Cal.4th 644 170 P.3d 623 The PEOPLE, Plaintiff and Respondent,
v.
Charles GIORDANO, Defendant and Appellant. No. S138382. Supreme Court of California. November 26, 2007.

[68 Cal.Rptr.3d 54]

Diane Nichols, under appointment by the Supreme Court, San Diego, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster, Steve Oetting and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.

MORENO, J.

Defendant 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 a 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

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to cover ... some of her expenses that she ha[d] incurred [since] the primary support she depended on at the time of her marriage was taken away due to the crime of [defendant]." She did not seek "such things that you would ask for in a wrongful death [action]," but instead 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."

Decedent's employer and Patricia Armstrong were the only witnesses who testified at the hearing. 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 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 restitution seven months after defendant was sentenced.¹ The Court of Appeal concluded that decedent's spouse was a "victim" under Penal Code section 1202.4, subdivision (k), for purposes of receiving victim restitution, and that she was entitled to recover decedent's lost future earnings. The court reasoned that she "clearly suffered a loss as a result of defendant's criminal activity, including the loss of income her husband would have earned, and she was therefore entitled to any wages decedent may have otherwise earned."

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.

II. 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

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amount of which is "set at the discretion of the court and commensurate with the seriousness of the offense." (Pen.Code, § 1202.4, subd. (b).)² Restitution fines are paid into the Restitution Fund in the State Treasury (id., subd. (e)), which is used to compensate victims for specified "pecuniary losses they suffer as a direct result of criminal acts." (Gov.Code, § 13950, subd. (a).) Second, when a defendant is convicted of a crime involving a victim who "has suffered economic loss as a result of the defendant's conduct" (Pen. Code, § 1202.4, subd. (f)), the court must require the defendant to pay full restitution directly to the victim or victims of the crime "unless it finds compelling and extraordinary reasons for not doing so, and states them 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) 15 Cal.3d 481, 486-487, 124 Cal.Rptr. 905, 541 P.2d 545 (Lent).)

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) 5 Cal.4th 1067, 1072, 22 Cal.Rptr.2d 278, 856 P.2d 1134 (Broussard); People v. Birkett (1999) 21 Cal.4th 226, 235, fn. 8, 87 Cal.Rptr.2d 205, 980 P.2d 912 (Birkett).) Proposition 8 established the right of crime victims to receive restitution directly "from the persons convicted of the crimes for losses they suffer." (Cal. Const., art I, § 28, subd. (b).) The initiative added article I, section 28, subdivision (b) to the California Constitution: "It is the unequivocal intention of the People of the State of California that 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. [11] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary."

Article I, section 28, subdivision (b), which is not self-executing, directed the Legislature to adopt implementing legislation. (Broussard, supra, 5 Cal.4th at p. 1078, 22 Cal.Rptr.2d 278, 856 P.2d 1134 (dis. opn. of Panelli, J.); People v. Vega-Hernandez (1986) 179 Cal.App.3d 1084, 1092-1099, 225 Cal.Rptr. 209 (Vega-Hernandez).) We have observed that "[t]he Legislature has enacted, and frequently amended, a bewildering array of responsive statutes." (Birkett, supra, 21 Cal.4th at p. 228, 87 Cal.Rptr.2d 205, 980 P.2d 912.) We briefly review the evolution of these statutes, as relevant to the issue before us.

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 granted." (People v. Narron (1987) 192 Cal.App.3d 724, 732, 237 Cal.Rptr. 693.) The Legislature also enacted Penal Code section 1202.4, requiring "the court to impose a restitution fine `[in] any case in which a defendant is convicted of a felony....'" (Narron, supra, 192 Cal.App.3d at p. 732,

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fn. 4, 237 Cal.Rptr. 693.) The Legislature, however, did not immediately "enact legislation either requiring or authorizing trial courts to order defendants who were convicted of crimes but were not given probation to make restitution to any of the victims of their crimes." (Broussard, supra, 5 Cal.4th at p. 1073, 22 Cal.Rptr.2d 278, 856 P.2d 1134.) In 1986, the Legislature remedied this oversight by amending Government Code section 13967 to provide "that when `a victim has suffered economic loss as a result of the defendant's criminal conduct, and the defendant is denied probation, ... the court shall order restitution to be paid to the victim.'" (Broussard, at p. 1074, 22 Cal.Rptr.2d 278, 856 P.2d 1134, italics omitted.)

In the mid-1990's, the Legislature consolidated much of the state's victim restitution...