“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.” (internal quotation marks omitted)
How later courts described this case
- “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.” (internal quotation marks omitted)
Written by the judges who cited it.
The opinion
KENNARD, J., Dissenting.
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 (Pen. Code, former § 192, subd. (c)(3), as amended by Stats. 1998, ch. 278, § 1) and admitted a prior conviction for driving under the influence (Veh. Code, § 23152, subd. (b)). The trial court sentenced him to a four-year prison term.
*668 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 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 . . . [f ] . . . [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 *669 victims for every determined economic loss incurred as the result of the defendant’s criminal conduct . . . .” (§ 1202.4, subd. (f)(3).) Section 1202.4 then provides a nonexclusive list of 11 forms of economic losses that may be compensated by a direct restitution order. Of particular relevance here, the list includes “[w]ages or profits lost due to injury incurred by the victim, and if the victim is a minor, wages or profits lost by the minor’s parent, parents, guardian, or guardians, while caring for the injured minor” and “[wjages or profits lost by the victim, and if the victim is a minor, wages or profits lost by the minor’s parent, parents, guardian, or guardians, due to time spent as a witness or in assisting the police or prosecution.” (§ 1202.4, subd. (f)(3)(D), (E)-)
Thus, the Legislature has specified two categories of lost wages that may be included in a direct restitution order in a criminal case: wages lost “due to injury incurred by the victim,” and wages lost “due to time spent as a witness or in assisting the police or prosecution.” (§ 1202.4, subd. (f)(3)(D), (E).) Neither category covers a surviving spouse’s claim for estimated lost future wages of a deceased victim. Although the list of categories is not exclusive, it is strong evidence of the sorts of losses the Legislature has decided to authorize for inclusion in direct restitution orders. When a statute contains a nonexhaustive list of categories, it is reasonable to infer that the Legislature intended to limit the provision to things essentially similar to those expressly listed, because if no such limitation was intended the list would be surplus-age. (International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 342 [ 64 Cal.Rptr.3d 693 , 165 P.3d 488 ]; Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 141 [ 96 Cal.Rptr.2d 485 , 999 P.2d 718 ]; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1390-1391 [ 241 Cal.Rptr. 67 , 743 P.2d 1323 ].) 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. 649, 658-659), the loss for which the surviving spouse here seeks compensation is more correctly characterized as a loss of economic support rather than a wage loss. It is the loss of that portion of the deceased victim’s projected future income that he likely would have provided to the claimant widow. None of the 11 categories listed in subdivision (f)(3) of section 1202.4 is a loss of anticipated future economic support. The most 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.
*670 That inference is strengthened when one compares section 1202.4’s direct restitution provisions with the parallel provisions governing crime victim recovery from the Restitution Fund (Gov. Code, § 13950 et seq.). For purposes of recovery from the Restitution Fund, a homicide victim’s surviving spouse is considered a “ ‘derivative victim’ ” (id., § 13951, subd. (c)) and may obtain compensation for “loss of support. . . [incurred] as a direct result of . . . the victim’s death” (id., § 13957, subd. (a)(4)) up to a maximum of $70,000 (id., § 13957.5, subd. (b)). These provisions demonstrate that the Legislature was aware that homicide crimes cause surviving spouses to suffer a loss of economic support, and that it chose to provide compensation for this category of loss through the Restitution Fund. Because the Legislature has amended the Government Code’s Restitution Fund provisions and the Penal Code’s direct restitution order provisions simultaneously (e.g., Stats. 2000, ch. 1016) and has tied them together (§ 1202.4, subd. (f)(4)), it is reasonable to infer that the Legislature consciously decided to authorize compensation for loss of economic support through the Restitution Fund but not through direct restitution orders. (See Peñasquitos, Inc. v. Superior Court (1991) 53 Cal.3d 1180, 1188-1189 [ 283 Cal.Rptr. 135 , 812 P.2d 154 ] [“ ‘ “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.
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).
*671 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 [ 61 Cal.Rptr.3d 660 ].) As Judge Richard A. Posner of the Seventh Circuit United States Court of Appeals has observed, “[Restitution as a criminal remedy becomes problematic” when it “includes compensation for earnings .. . that would have been received in the future” because “[Compensation 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 [ 34 Cal.Rptr. 754 ]), 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 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 [ 165 P.2d 695 ]), 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 [ 103 Cal.Rptr. 120 ]), 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 [ 199 P.2d 721 ]). 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.
*672 III
Patricia Armstrong has a legal right—indeed a state constitutional right (Cal. Const., art. I, § 28, subd. (b))—to obtain restitution from defendant Giordano for the loss of economic support that is a direct result of her husband’s death, for which defendant has pled guilty to vehicular manslaughter. In homicide cases the Legislature has established two methods by which a surviving spouse may enforce that restitution right and obtain compensation for loss of support from a defendant convicted of a homicide crime: The surviving spouse may bring a civil wrongful death action or, more simply and conveniently, may submit an application to the Restitution Fund. But I am unable to join my colleagues in concluding that the Legislature has authorized a third method—the direct restitution order—for enforcing a right to restitution for loss of support. I would reverse the Court of Appeal’s judgment.