Supreme Court of California Justia
Citation 42 Cal.4th 644 original opinion
People v. Giordano

Filed 11/26/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S138382
v.
Ct.App. 4/2 E036325
CHARLES GIORDANO,
Riverside
County
Defendant and Appellant.
Super. Ct. No. INF046095

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.
1


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 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
2
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

1
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.”].)
3


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 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 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.

2
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.)
4


(Pen. Code, § 1203.1, subds. (b), (j); People v. Lent (1975) 15 Cal.3d 481, 486-
487 (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 (Broussard); People v. Birkett (1999) 21 Cal.4th 226,
235, fn. 8 (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. [¶] 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 (dis. opn. of Panelli, J.); People v. Vega-Hernandez (1986) 179
Cal.App.3d 1084, 1092-1099 (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.) 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.) The
5
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, fn. 4.) 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.) 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, italics omitted.)
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 probation, 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.
6
3169 (1993-1994 Reg. Sess.) as amended Apr. 4, 1994, p. 2.) Penal Code section
1202.4, subdivision (h) provided that a restitution order “shall be enforceable as a
civil judgment.” (Stats. 1994, ch. 1106, § 3, p. 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, p. 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 “ ‘[d]erivative 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
amended 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.
1998, ch. 697, § 2.)3
As amended in 1994, Penal Code section 1202.4, 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 minor victim; (4) lost
wages or profits due to time spent as a witness. (Stats. 1994, ch. 1106, § 3,
p. 6549, eff. Sept. 29, 1994.) In 1996, the Legislature redesignated this provision
as subdivision (f) and amended it to specify that the list of categories is

3
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.
7


nonexclusive. The relevant clause now states: “including, but not limited to, all of
the following.” (Pen. Code, § 1202.4, subd. (f)(3), italics added; Stats. 1996, ch.
629, § 3, p. 3467, eff. Jan. 1, 1997.) Additionally, the list of categories in
subdivision (f) was expanded to include three additional categories of loss: (1)
noneconomic losses for felony convictions for lewd or lascivious acts (Pen. Code,
§ 288), (2) interest on the economic loss, and (3) attorneys fees and costs of
collection. (Stats. 1996, ch. 629, § 3, pp. 3467-3468, eff. Jan. 1, 1997.) In 1999,
the Legislature again amended the nonexclusive list of categories of compensable
loss in subdivision (f), expanding it to include: (1) mental health counseling
expenses, (2) relocation expenses, (3) residential security expenses, and (4) the
cost of retrofitting a vehicle or residence due to the disability of a victim
attributable to the crime. (Stats. 1999, ch. 584, § 4.) The most recent amendment
to this list, made in 2000 to subdivisions (f)(3)(D) and (F), specifies that “[w]ages
or profits lost,” due to a victim’s injury, time spent caring for a minor victim, or
time spent as a witness, includes “any commission income as well as any base
wages.” (Stats. 2000, ch. 1016, § 9.5.)
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 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).)
8

In December, 2003, when defendant hit and killed decedent, the version of
Penal Code section 1202.4 enacted in 2000 was still in effect.4
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, 5 Cal.4th at p. 1075.) Our interpretation of this constitutional
mandate is guided by the principle of construction that, “ ‘. . . since a written
constitution is intended as and is the mere framework according to whose general
outlines specific legislation must be framed and modeled, and is therefore . . .
necessarily couched in general terms or language, it is not to be interpreted
according to narrow or supertechnical principles, but liberally and on broad
general lines, so that it may accomplish in full measure the objects of its
establishment and so carry out the great principles of government.’ ” (Amador
Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d
208, 244-245 (Amador Valley), quoting Stephens v. Chambers (1917) 34 Cal.App.
660, 663-664.)
Although we are guided by the broad constitutional mandate of article I,
section 28, subdivision (b), that restitution must been imposed “in every case . . .
in which a crime victim suffers a loss . . . ,” the scope of the losses that must be
compensated is not clear from the text of this constitutional provision. Instead, it
requires generally 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

4
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.)
9


for losses they suffer,” but does not define “losses.” (Cal. Const., art. I, § 28,
subd. (b), italics added; see Vega-Hernandez, supra, 179 Cal.App.3d at pp. 1096-
1097.) The history of Proposition 8 does not indicate that the voters considered
the precise contours of the losses that must be included in a restitution order. As
we have observed, “[t]he ballot arguments for and against the measure scarcely
mentioned restitution. Proponents argued that Proposition 8, in all its aspects, was
a necessary means of curbing crime, particularly violent crime, and of restoring
balance between the rights of criminals and victims. [Citation.] Opponents
responded that Proposition 8 was radical and would undermine better considered
reforms already in place. [Citation.] On the issue of restitution, the opponents
urged only that the proposed new right to restitution was ‘meaningless’ because
‘so many victims are harmed by criminals who can’t pay,’ and ‘victims already
have the right to collect from criminals who can pay.’ [Citation.]” (Birkett, supra,
21 Cal.4th at p. 244, italics omitted.)
Because the scope of losses in 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, 21
Cal.4th at p. 244, citing Amador Valley, supra, 22 Cal.3d at pp. 245-246;
California Housing Finance Agency v. Patitucci (1978) 22 Cal.3d 171, 175; cf.
Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1253.) When the
Legislature has “adopted a plausible interpretation of the constitutional provision,”
we defer to its determination. (Birkett, supra, 21 Cal.4th at p. 244.)
The Legislature has enacted a statutory scheme that implements the broad
mandate of 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
10
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 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 restitution orders relating to felony convictions for lewd or lascivious
acts (Pen. Code, § 288), for which noneconomic losses may be included in a direct
restitution order, Penal Code section 1202.4 does not authorize direct restitution
for noneconomic losses. (Id., at subd. (f).) Apart from this categorical limitation,
the Legislature has not further limited the types of economic loss that must be
included in a restitution order. Since its amendment in 1996, the list of categories
of compensable loss in Penal Code section 1202.4 has been nonexclusive: the
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, including, but not limited to,” the 11 enumerated
categories discussed above. (Pen. Code, § 1202.4, subd. (f)(3), italics added.)
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
11
surviving family of the actual victim” and “[a]ny person who has sustained
economic loss as the result of a crime and who . . . [¶] [a]t the time of the crime
was the parent, grandparent, sibling, spouse, child, or grandchild of the victim.”
(Pen. Code, § 1202.4, subd. (k)(1), (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 victims” (Gov. Code, § 13955, subd. (a)(2)), who are defined
as “individual[s] who sustain[] pecuniary loss as a result of injury or death to a
victim.” (Id., 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 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 a 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 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.
12
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 paid for “back
costs, expenses, and wages previously lost as a result of the offense.” This
interpretation is too narrow, and it conflicts with the plain meaning and purpose of
the statute.
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 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, “[w]ages 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 “[m]ental 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) 41 Cal.App.4th
946, 950, when determining that medical expenses paid after a sentencing hearing
may be included in a restitution order, “[n]othing in the language of the
Constitution suggests an intent to limit the right to restitution for financial losses
occurring within a particular time frame, or restitution to expenses incurred before
sentencing.” Construing the word “loss” broadly, the Court of Appeal found “that
it refers to a victim’s injuries, requiring restitution for all expenses necessary to
treat those injuries, regardless of when they arise.” (Ibid.) We agree. As we have
13
observed in the context of the unfair competition law, “[t]he object of restitution is
to restore the status quo by returning to the plaintiff funds in which he or she has
an ownership interest.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29
Cal.4th 1134, 1149.) The object is the same when restitution is imposed following
a criminal conviction. In order to restore the economic status quo, to the extent
that it is possible when a criminal act has injured a victim, restitution orders must
not be limited to the amount of money that has been paid or lost prior to the
restitution hearing.
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) 211 Cal. 192, 197-
198; Syah v. Johnson (1966) 247 Cal.App.2d 534, 546-547.) The purpose of the
statute establishing standing for certain persons to bring wrongful death actions,
Civil Code section 377.60, “is to enable the heirs and certain specified dependents
of a person wrongfully killed to recover compensation for the economic loss and
deprivation of consortium they suffer as a result of the death.” (Justus v. Atchison
(1977) 19 Cal.3d 564, 581 (Justus), italics added, disapproved on another ground
in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 171.) One of the approved jury
instruction for calculating wrongful death losses describes the “financial support,
if any, which each of said heirs would have received from the deceased except for
the death, and the right to receive support, if any, which each of the heirs has lost
by reason of the death” as “economic damage.” (BAJI No. 14.50; see also Judicial
Council of Cal. Civ. Jury Instns. (Feb. 2007 rev.) CACI No. 3921.) As we discuss
in more detail below, the economic loss incurred by a surviving spouse is the loss
of future economic support due to the spouse’s death. (Canavin v. Pacific
Southwest Airlines (1983) 148 Cal.App.3d 512, 520-521 (Canavin).)
14

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) 25 Cal. 434, 435.) Although some doubt has been cast on the
understanding that common law did not provide a cause of action for wrongful
death, the Legislature acted upon this widely held belief when it enacted the state’s
first wrongful death statute. (Justus, supra, 19 Cal.3d at pp. 573-574, citing
Moragne v. States Marine Lines (1970) 398 U.S. 375.) We have therefore
concluded that the Legislature’s “intent in adopting the 1862 statute, and its
successor [Code of Civil Procedure] section 377, was manifestly to create an
entirely new cause of action where none was thought to exist before.” (Justus,
supra, 19 Cal.3d at p. 574.) We have been “persuaded that the Legislature intends
to occupy the field of recovery for wrongful death,” and, accordingly, wrongful
death “remains a creature of statute in California.” (Id. at p. 575.)
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 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.” (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
15
thereof. [Citation.]’ ” (People v. Yartz (2005) 37 Cal.4th 529, 538.) Accordingly,
when it enacted Penal Code 1202.4, requiring that victims receive restitution for
all economic losses, it did so with the presumed knowledge that courts have long
understood that a surviving spouse incurs an economic loss upon the death of his
or her spouse.
Defendant also suggests that because the Legislature has expressly
permitted awards to derivative victims from the Restitution Fund for loss of
support,5 but has not specifically provided that direct restitution orders include
such awards, the Legislature did not intend direct restitution orders to include
awards for loss of support. Given the constitutional and legislative intent to
provide restitution for all crime victim losses, and the expressly nonexclusive list
of categories of loss included in the direct restitution statute, we decline to read
into that statute an implied limitation on restitution to surviving spouses based on
a failure to enumerate that type of loss explicitly.
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

5
“[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: [¶] (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. [¶] (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).)
16


be surplusage.” (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th
116, 141.) “Ejusdem generis applies whether specific words follow general words
in a statute or vice versa. In either event, the general term or category is ‘restricted
to those things that are similar to those which are enumerated specifically.’ ”
(Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1160, fn. 7,
quoting Martin v. Holiday Inns, Inc. (1988) 199 Cal.App.3d 1434, 1437.)
Although “the phrase ‘including, but not limited to’ is a phrase of enlargement,”
the use of this phrase does not conclusively demonstrate that the Legislature
intended a category to be without limits. (Dyna-Med, Inc. v. Fair Employment &
Housing Com. (1987) 43 Cal.3d 1379, 1389 (Dyna-Med).) In Dyna-Med, we held
that, despite the phrase “including, but not limited to,” the California Fair
Employment and Housing Act (Gov. Code, § 12900 et seq.) does not authorize the
Fair Employment and Housing Commission to award punitive damages, because
punitive damages are different in kind from the corrective and equitable remedies
provided. (Dyna-Med, at pp. 1387-1389.)
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 loses the economic support that he or she otherwise would have
received.
17
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) 69 Cal.App.4th 988, 995, the Court of
Appeal held that the trial court had not properly calculated the loss attributable to
the theft of a cement mixer from an equipment rental business, observing,
“Determination of loss of use necessarily involves evidence as to . . . several
factors. Initially, the trial court will have to determine the length of time it took
(or reasonably should have taken) the victim to replace the stolen item. Next, the
court will multiply the days lost by a reasonable rental rate. In computing what is
reasonable, evidence will have to be supplied as to how often the item was rented
and the annual (or monthly/daily) income it has historically produced.” In People
v. Baumann (1985) 176 Cal.App.3d 67, 74 (Baumann), the trial court held “[a]
lengthy hearing as to the exact extent of the victim’s loss” attributable to
defendant’s embezzlement, during which several witnesses testified and 75 checks
were introduced into evidence, and “the court found the evidence substantiated a
loss to the victim of $20,419.” Accordingly, while calculation of a spouse’s loss
of support may be complex, as is described in more detail below, this complexity
does not materially distinguish it from the categories of loss specified by the
Legislature.
As defendant points out, article I, section 28, subdivision (b) allows that
restitution need not be imposed if “compelling and extraordinary reasons exist to
18
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 them on the record.” (Pen. Code, § 1202.4, subd. (f); 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 “[s]entencing 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;6 that a defendant’s right to

6
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) 212 Cal.App.3d 1153, 1160-1161; People v. Cain (2000)
82 Cal.App.4th 81, 86.) Courts have premised this conclusion on the
understanding that restitution hearings are sentencing hearings. (Baumann, supra,
176 Cal.App.3d at pp. 80-81; Rivera, supra, 212 Cal.App.3d at pp. 1160-1161,
citing Bauman, supra, 176 Cal.App.3d at pp. 80-81; Cain, supra, 82 Cal.App.4th
at p. 86; cf. People v. Harvest (2000) 84 Cal.App.4th 641, 647 (Harvest).) These
cases were decided prior to the high court’s decision in Cunningham v. California
(2007) 549 U.S. __ [127 S.Ct. 856], and our decisions in People v. Black (2007)
41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825, which required

(footnote continued on next page)
19


equal protection of the law would be implicated if a victim could receive more in
restitution through a direct restitution order than from the Restitution Fund; and
that “[a] defendant is generally reluctant to challenge restitution, for fear any
challenge, no matter how factually or legally legitimate, would create animus and
thereby negatively impact sentencing, particularly where there is a death
involved.” The Legislature did not, however, exclude a surviving spouse’s lost
economic support from restitution orders, and it is not for us to judge the wisdom
of the Legislature’s policy decisions. Accordingly, we do not address these policy
considerations.
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

(footnote continued from previous page)

“that, under the Sixth Amendment, any fact that exposes a defendant to a greater
potential sentence must be found by a jury, not a judge, and established beyond a
reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham
v. California, supra
, 549 U.S. at p. __ [127 S.Ct. at pp. 863–864]; see People v.
Black
, supra, 41 Cal.4th at p. 809; People v. Sandoval, supra, 41 Cal.4th at
p. 835.) Because defendant has not raised any due process or other state or federal
constitutional challenge, however, we do not have occasion to address possible
constitutional challenges to restitution hearings.
20


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
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) 107 Cal.App.4th 1406,
1409; People v. Hove (1999) 76 Cal.App.4th 1266, 1275; People v. Draut (1999)
73 Cal.App.4th 577, 581-582.)7 The abuse of discretion standard is “deferential,”

7
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, 15 Cal.3d at
p. 486.) With respect to the third criterion, “an order for restitution, i.e.,
attempting to make a victim whole, has generally been deemed a deterrent to
future criminality [citation], and the court is not limited to the transactions or
amounts of which defendant is actually convicted [citations].” (Ibid.)
Probationary restitution may be imposed even if a defendant has not been
convicted for a particular offense “because probation is an ‘ “ ‘act of clemency and
grace,’ ” ’ not a matter of right. [Citation.] ‘[T]he granting of probation is not a
right but a privilege, and if the defendant feels that the terms of probation are
harsher than the sentence for the substantive offense[,] he is free to refuse
probation.’ [Citations.] Because a defendant has no right to probation, the trial

(footnote continued on next page)
21


but it “is not empty.” (People v. Williams (1998) 17 Cal.4th 148, 162.) “[I]t asks
in substance whether the ruling in question ‘falls outside the bounds of reason’
under the applicable law and the relevant facts [citations].” (Ibid.) Under this
standard, while a trial court has broad discretion to choose a method for
calculating the amount of restitution, it must employ a method that is rationally
designed to determine the surviving victim’s economic loss. To facilitate
appellate review of the trial court’s restitution order, 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.
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

(footnote continued from previous page)

court can impose probation conditions that it could not otherwise impose, so long
as the conditions are not invalid under the three Lent criteria.” (People v. Rubics
(2006) 136 Cal.App.4th 452, 459-460.)
22


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. Code, § 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 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
court must demonstrate a rational basis for its award, and ensure that the record is
sufficient to permit meaningful review. The burden is on the party seeking
restitution to provide an adequate factual basis for the claim.
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
23
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, 148
Cal.App.3d at p. 521, italics added), and “[w]here, as here, decedent was a
husband and father, a significant element of damages is the loss of financial
benefits he was contributing to his family by way of support at the time of his
death and that support reasonably expected in the future.” (Id. at pp. 520-521,
italics added.) Additionally, the jury instructions for calculating wrongful death
damages, which address both economic and noneconomic damages, describe as
“economic loss” the “financial support,” that the decedent would have contributed
to the surviving heir or family member. (BAJI No. 14.50, italics added; CACI No.
3921.)
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 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
24
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, 84 Cal.App.4th at p. 653, a case in which a trial court
ordered the defendant to pay $23,160 to the former wife of a deceased victim for
the loss of child support decedent had been ordered to pay.8 In these ways, the
trial court’s method of calculation was not carefully designed to establish Patricia
Armstrong’s loss of support.
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) 2 Cal.3d 557, 564.)
Defendant suggests that, if the court does not limit restitution to the amount
permitted by the Restitution Fund, we should limit it to “the amount of the
surviving spouse’s demonstrated loss of support.” While we agree with this

8
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 defendant’s conviction was affirmed on
appeal. (Harvest, supra, 84 Cal.App.4th at p. 645.) The period of five years was
based on the period between an unspecified triggering event and the date that the
restitution order was entered. (Id. at pp. 652-653.) In Harvest, the dissent
criticized the trial court’s calculation of child support losses, observing: “The trial
court calculated the loss of child support from July 1994 to the month of its order,
July 1999, or a period of 60 months at $386 per month yielding a total of $23,160.
Had defendant been promptly given a restitution hearing—say in March or April
of 1995—the amount of restitution for child support would literally have been in
the range of $3,000 rather than $23,000.” (Id. at p. 658 (dis. opn. of Poché, J.).)
25


general principle, defendant has not shown that Patricia Armstrong’s loss of
support was less than the amount of restitution ordered.
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.9 Accordingly, defendant has not shown that a method designed to
approximate Patricia Armstrong’s loss of economic support, taking into
consideration the deceased victim’s anticipated years of contribution to his wife’s
support, would have resulted in an amount of restitution less than $167,711.65.
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 Patricia 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.

9
During oral argument, defendant’s counsel said that she believed that
decedent was in his thirties at the time he was killed.
26


III. CONCLUSION
For the reasons stated above, we affirm the judgment of the Court of
Appeal.
MORENO, J.

WE CONCUR: GEORGE, C. J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.

27


DISSENTING OPINION BY KENNARD, J.

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 surviving spouse, as restitution, a portion of the estimated income that the
deceased victim would likely have earned. In the tragic circumstances of this
case, that holding is certainly appealing. But 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 — the surviving spouse may
bring a civil wrongful death action (Code Civ. Proc., § 377.60) against the
defendant or apply to the state Restitution Fund established for crime victims
(Gov. Code, § 13950 et seq.). A close review of the pertinent legislative scheme
reveals several reasons to doubt that the Legislature has, in addition to these two
clearly established methods for obtaining restitution for lost support, also
authorized sentencing courts to include this category of loss in a direct restitution
order. It seems more likely that the Legislature reasonably decided that the
criminal sentencing process is ill suited to making the often exceptionally complex
damage calculations that are required.
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 (former
Pen. Code, § 192, subd. (c)(3), as amended by Stats. 1998, ch. 278, § 1) and
1



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 proceeding 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 crime 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
2

conduct, the court shall require that the defendant make restitution to the victim or
victims.” Section 1202.4 defines “victim” as including “[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 . . . [¶] . . . [a]t the time of the crime was the . . .
spouse . . . of the victim.” (§ 1202.4, subd. (k).) Under this definition, Patricia
Armstrong is a victim of defendant’s vehicular manslaughter crime and may
recover restitution. The issue is whether, under section 1202.4, the trial court in
the criminal proceeding may make a direct restitution order for the estimated
amount of her deceased husband’s lost future income.
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 “[w]ages 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
3

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 surplusage. (International Federation of
Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court
(2007) 42 Cal.4th 319, 342; Kraus v. Trinity Management Services, Inc. (2000) 23
Cal.4th 116, 141; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43
Cal.3d 1379, 1390-1391.) The lost wages claim at issue here (the claim of a
surviving spouse for a deceased spouse’s projected future earnings) is not
essentially similar to the two categories of lost wage claims that the Legislature
has authorized. In each of those situations, the wages lost are those that the
claimant victim would have earned; in neither situation are lost wages payable to a
claimant other than the person whose wages were lost.
As the majority recognizes (maj. opn., ante, at pp. 1, 14), 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
reasonable inference to draw from the omission of anticipated economic support
losses from the statutory list is that the Legislature did not intend to authorize
criminal sentencing courts to order direct restitution for this category of loss.
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
4

“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 for loss of economic support through the Restitution Fund but not
through direct restitution orders. (See Penasquitos, Inc. v. Superior Court (1991)
53 Cal.3d 1180, 1188-1189 [“ ‘ “Where a statute, with reference to one subject
contains a given provision, the omission of such provision from a similar statute
concerning a related subject . . . is significant to show that a different intention
existed.” ’ ”].)
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.
5

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 support 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) 41 Cal.4th 644,
660-667.) As Judge Richard A. Posner of the Seventh Circuit United States Court
of Appeals has observed, “[r]estitution as a criminal remedy becomes
problematic” when it “includes compensation for earnings . . . that would have
been received in the future” because “[c]ompensation for the loss of future
earnings is quintessentially civil.” (United States v. Fountain (7th Cir. 1985) 768
F.2d 790, 801.) The reason “is practical: the calculation of lost future earnings
involves the difficult problem of translating an uncertain future stream of earnings
into a present value,” which is a problem that is not well suited “for solution in a
summary proceeding ancillary to sentencing for a criminal offense.” (Id. at
pp. 801-802.)
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) 222 Cal.App.2d 102, 121), a determination of the
probability that the decedent would have remained married to the claimant spouse
(Corder v. Corder, supra, 41 Cal.4th at pp. 660-667), a determination of how
many more years the decedent likely would have worked until retirement and what
6

amount the decedent would have earned in each of those years (United States v.
Fountain, supra, 768 F.2d at p. 802; see also Emery v. Southern California Gas
Co. (1946) 72 Cal.App.2d 821, 826), a determination of the amount of the
decedent’s earnings that would have been devoted to the claimant spouse’s
economic support (Carr v. Pacific Tel. Co. (1972) 26 Cal.App.3d 537, 545), and a
determination of the correct discount rate by which to reduce the estimated future
economic support to a current lump-sum value (United States v. Fountain, supra,
at p. 802; Tyson v. Romey (1948) 88 Cal.App.2d 752, 758). In civil wrongful
death actions, expert testimony is commonly used to assist the trier of fact in
making some of these determinations. (Emery v. Southern California Gas Co.,
supra, at p. 824.)
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 of 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
7

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.
KENNARD,
J.
8

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Giordano
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 132 Cal.App.4th 958
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S138382
Date Filed: November 26, 2007
__________________________________________________________________________________

Court:

Superior
County: Riverside
Judge: Randall Donald White

__________________________________________________________________________________

Attorneys for Appellant:

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

__________________________________________________________________________________

Attorneys for Respondent:

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.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Diane Nichols
PMB 151
578 Sutton Way
Grass Valley, CA 95945
(530) 477-8448

James D. Dutton
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2212


Petition for review after the Court of Appeal affirmed a judgment of conviction of a criminal offense. This case presents the following issues: (1) Under Article I, section 28, of the California Constitution and Penal Code section 1202.4, is a surviving spouse of a homicide victim entitled to direct restitution in the form of the decedent's future earnings? (2) If so, is the measure of that award the decedent's full, gross, pre-tax future earnings, without consideration of the surviving spouse's actual economic losses or other limitations applicable in a civil wrongful death action?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 11/26/200742 Cal.4th 644 original opinionS138382Review - Criminal Appealclosed; remittitur issued

Parties
1Giordano, Charles (Defendant and Appellant)
California Institution for Men
P. O. Box 600
Chino, CA 91708

Represented by Diane Nichols
Attorney at Law
P.O. Box 2194
578 Sutton Way
Grass Valley, CA

2Giordano, Charles (Defendant and Appellant)
California Institution for Men
P. O. Box 600
Chino, CA 91708

Represented by Appellate Defenders, Inc.
555 W. Beech Street, Suite 300
555 W. Beech Street, Suite 300
San Diego, CA

3The People (Plaintiff and Respondent)
Represented by James D. Dutton
Office of the Attorney General
110 West "A" St. #1100, P. O. Box 85266
San Diego, CA


Disposition
Nov 26 2007Opinion: Affirmed

Dockets
Oct 25 2005Petition for review filed
  Appellant ( Giordano) by counsel COURT OF APPEAL OPINION ORDERED PUBLISHED 9-15-05.
Oct 27 2005Record requested
 
Oct 31 2005Received Court of Appeal record
  one doghouse
Dec 15 2005Time extended to grant or deny review
  to and including January 23, 2006
Jan 4 2006Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Werdegar, Chin, and Moreno, JJ.
Jan 30 2006Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Appellate Defenders, Inc. is hereby appointed to represent appellant on appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Feb 23 2006Request for extension of time filed
  to 4-14-2006 (additional 44 days) to file appellant's (Giordano) opening brief on the merits.
Feb 24 2006Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including April 14, 2006.
Apr 14 2006Opening brief on the merits filed
  Appellant Charles Giordano by Diane Nichols, Appellate Defenders, Inc.
Apr 14 2006Request for judicial notice filed (granted case)
  by Appellant Charles Giordano (Filed in San Diego)
May 9 2006Request for extension of time filed
  to June 26, 2006, to file Respondent's Opening Brief on the Merits.
May 10 2006Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including June 26, 2006
Jun 23 2006Application filed to:
  File oversized (21,602 words) Respondent's Answer Brief on the Merits
Jun 26 2006Extension of time granted
  On application of respondents for permission to file Respondent's Answer Brief on the Merits containing 21,602 words that exceeds the 14,000 word limit prescribed by California Rules of Court, rule 29.1(c)(1) by 7,602 words is hereby granted.
Jun 26 2006Answer brief on the merits filed
  Respondent's (People) by James D. Dutton, Supervising Deputy A. G. - San Diego
Jun 26 2006Request for judicial notice filed (granted case)
  Respondent's (People)
Jul 13 2006Opposition filed
  Appellant's Opposition in part to respondent's motion for judicial notice.
Jul 17 2006Received:
  Oversized (6,427 words) Appellant's Reply Brief on the Merits, exceeding the 4,200 word limit. CRC 29.1(c)(1) [ Application to file oversized brief received in San Diego.]
Jul 25 2006Order filed
  On application of appellant for permission to file Appellant's Reply Brief on the Merits containing 6,427 words that exceeds the 4,200 word limit prescribed by California Rules of Court, rule 29.1(c)(1) by 7,602 words is hereby granted.
Jul 25 2006Reply brief filed (case fully briefed)
  Charles Giordano, appellant, by Diane Nichols of Appellate Defenders, Inc.
Aug 8 2007Case ordered on calendar
  to be argued on Wednesday, September 5, 2007, at 1:30 p.m., in San Francisco
Aug 20 2007Filed:
  Recommendation to vacate appointment of counsel and request for appointment of counsel. Filed by the Appellate Defenders, Inc.,
Aug 24 2007Counsel appointment order filed
  The order filed on January 30, 2006, appointing Appellate Defenders, Inc., to represent appellant is hereby vacated. Upon request of appellant for appointment of counsel, Diane Nichols is hereby appointed to represent appellant on the appeal now pending in this court effective August 16, 2007.
Aug 29 2007Request for judicial notice granted
  Respondent's request for judicial notice, filed on June 25, 2006, is granted. Appellant's request for judicial notice, filed on April 24, 2006, is granted.
Sep 5 2007Cause argued and submitted
 
Sep 7 2007Change of contact information filed for:
  Diane Nichols, counsel for appellant, noted herein.
Nov 19 2007Change of contact information filed for:
  Diane Nichols, counsel for appellant, and noted herein.
Nov 21 2007Notice of forthcoming opinion posted
 
Nov 26 2007Opinion filed: Judgment affirmed in full
  Opinion by Moreno, J. ----joined by George, C. J., Baxter, Werdergar, Chin, & Corrigan, JJ. Dissenting Opinion by Kennard, J.
Dec 19 2007Compensation awarded counsel
  Atty Nichols
Dec 27 2007Remittitur issued (criminal case)
 
Jan 7 2008Received:
  Acknowledgment of receipt for remittitur, signed for by Belinda Ramirez, Deputy Clerk, Fourth Appellate District, Division Two.
Jul 23 2008Compensation awarded counsel
  Atty Cohen - Appellate Defenders, Inc

Briefs
Apr 14 2006Opening brief on the merits filed
 
Jun 26 2006Answer brief on the merits filed
 
Jul 25 2006Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website