Opinion
D072802
04-25-2018
THE PEOPLE, Plaintiff and Respondent, v. THOMAS FRANCIS BURKE IV, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD267616) APPEAL from orders of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Thomas Francis Burke IV of voluntary manslaughter (Pen. Code, § 192, subd. (a)). The jury also found that Burke personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). The trial court sentenced Burke to a determinate term of 16 years.
All further statutory references are to the Penal Code unless otherwise specified.
Burke appealed his conviction and this court affirmed the conviction, but remanded for resentencing. (People v. Burke (Jan. 17, 2018, D072296 [nonpub. opn.].) During the pendency of the first appeal, the trial court held two restitution hearings. It ordered Burke to pay restitution to the victim's siblings and to the victim's mother. Burke appeals the restitution orders. He challenges only the portions of the orders awarding the victim's mother for lost wages and to the victim's sister for lost wages incurred by her husband, the sole support of the family, when he was not working in order to support the sister during the trial court process.
Under the facts of this case, we believe the court acted within its discretion to make the challenged portions of the restitution orders. We will affirm the trial court's decision.
The facts of the underlying offense are set forth in our prior opinion and will not be repeated here.
DISCUSSION
A. Restitution for the Victim's Sister
The amount of restitution challenged regarding the sister stems from lost wages on the part of her husband (brother-in-law of the victim). The trial court's analysis of this portion of the order is somewhat inventive, but we will find it appropriate under the facts found by the court. First, the court determined that the brother-in-law was not a person entitled to restitution under applicable law and thus denied his personal claim. However, the court next found that the sister was unable to work due to trauma from the offense and death of her brother. The court next found that her husband was the sole support of the sister and their family. From that the court reasoned the sister had lost the benefit of the wages to the family unit because her husband had to be off work to support the sister during the court process. The court reasoned the lost wages were a loss to the sister's family unit and therefore a legitimate basis for restitution to her.
B. Restitution to the Victim's Mother
The victim's mother made a number of claims for restitution including a claim for over $10 million in noneconomic damages. The court denied any restitution for noneconomic damages. During two restitution hearings Burke disputed much of the mother's claim for lost wages. She was employed in Idaho as a real estate agent. She moved from Idaho to California and Arizona during the criminal proceedings to be close to the trial and family. The amounts claimed by the mother were substantially in excess of her probable income from fees she had received in the prior three years. Ultimately, the trial court awarded the mother $98,214 in lost wages.
On appeal, Burke contends the trial court erred in awarding lost wages for the time period between the sentencing and the restitution hearings, arguing that the mother could have returned to Idaho and then travelled back for the restitution hearings. Burke also contends the court erred in awarding lost wages for a period of six weeks following the restitution hearing on the basis of the mother's testimony she was unable to return to Idaho and to work before that because of her extreme emotional distress arising from the death of her son.
We will address the calculation of the mother's lost wages in the discussion which follows. We will conclude the trial court had a sufficient factual basis for its selection of the period of time for which restitution was reasonable and that the trial court did not abuse its discretion.
C. Legal Principles
The California Constitution and the Penal Code require restitution for losses suffered as a result of criminal activity. (Cal. Const., art. I, § 28, subd. (b)(13)(B); § 1202.4, subd. (a)(1).) The right to restitution should be broadly and liberally construed. (People v. Mearns (2002) 97 Cal.App.4th 493, 500.)
Courts are required to order restitution "based on the amount of loss claimed by the victim . . . or any other showing to the court." (§ 1202.4, subd. (f)(1).) There must be a factual basis for restitution which establishes the basis of such restitution by a preponderance of the evidence. (People v. Giordano (2007) 42 Cal.4th 644, 664 (Giordano); People v. Sy (2014) 223 Cal.App.4th 44, 63 (Sy).)
Section 1202.4, subdivision (k) provides in part: "(k) For purposes of this section, 'victim' shall include all of the following: [¶] (1) The immediate surviving family of the actual victim. [¶] . . . [¶] (3) A person who has sustained economic loss as the result of a crime and who satisfies any of the following conditions: [¶] (A) At the time of the crime was the parent, grandparent, sibling, spouse, child, or grandchild of the victim."
The victim's right to restitution must be broadly and liberally construed, although it is not intended to be a windfall for that person. (People v. Millard (2009) 175 Cal.App.4th 7, 28; In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.)
We review the trial court's decisions on restitution under the abuse of discretion standard. (Giordano, supra, 42 Cal.4th at p. 663, fn. 7.) The court in People v. Brunette (2011) 194 Cal.App.4th 268, 276 said: " 'An abuse of discretion will not be found if there is a factual or rational basis for the amount ordered.' '[T]he court's discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole.' "
In our review of restitution orders, we do not reweigh the evidence or make credibility decisions. Our review is to determine whether there is sufficient evidence to support the inferences made by the trial court. (Sy, supra, 223 Cal.App.4th at p. 63; People v. Baker (2005) 126 Cal.App.4th 463, 467.)
Applying these principles, we will now turn to the two challenged orders.
D. Analysis
1. Restitution for Lost Wages to the Sister
Burke does not challenge the calculation of the amount of lost wages granted to the sister. The challenge to this award is based on the fact the wages lost were that of her husband, who was not entitled to a personal claim for such loss, a fact the trial court recognized when it denied the husband's claim. However, the court awarded the restitution to the sister based on the analysis that the lost wages were in the nature of support to the sister's family unit. We find no abuse of discretion.
The record shows that the sister was unable to work due to the trauma of her brother's death. She needed her husband's personal support to get through the criminal proceedings. Thus, the husband was unable to work in order to assist the sister. It appears the husband's wages were the sole support of the family at that time. It was reasonable for the court to conclude the wages lost were in the nature of support for the sister and her family.
In Giordano, supra, 42 Cal.4th at pages 657 through 665, the court upheld a restitution order providing sums for lost support for the victim's wife after the death of her husband. The court found such sums to be in the nature of support for the surviving spouse. The amount awarded (almost $168,000) was calculated based on the prior three years of the husband's earnings, multiplied by five years. (Id. at p. 650.) As the People note, the sister had a community property interest in the lost wages in this award. (In re Marriage of Wilson (1974) 10 Cal.3d 851, 854.)
While it is undisputed that the sister's husband could not have a personal claim, the sister could in a case such as this where the funds lost were for her support. "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 . . . ." (Giordano, supra, 42 Cal.4th at p. 656.) In addition to the statute's plain language specifying that a trial court's power to provide restitution is not limited to the enumerated categories of expenses, it is well established that restitution orders are designed to make the victim whole. (Sy, supra, 223 Cal.App.4th 44, 63.) There was no error in awarding the amount of lost wages to the sister here, as the court properly exercised its broad discretion to find that she suffered this economic loss as a direct result of Burke's actions. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1121 ["There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action."].) The court's order is consistent with the statute's requirement to provide "full restitution" to victims. (§ 1202.4, subd. (f).)
2. The Mother's Lost Wages
The amount of lost wages for the victim's mother was hotly contested in the trial court. It is apparent the trial court did not accept all of the amounts claimed by the mother. On appeal, Burke does not appear to challenge the calculation of the dollar value of the mother's wages made by the court. Rather, we interpret his challenge as relating to the time periods covered by the calculation. He challenges the award for the time period between the sentencing of the defendant and the dates of the restitution hearings. Burke also challenges the six-week period of lost wages following the restitution hearings, before the mother said she would finally be able to return to Idaho and to her employment. Burke's basic argument is that the mother could have returned to Idaho after sentencing and then travelled to California for the restitution hearings. Likewise, Burke argues the mother could return home after the restitution hearings. The trial court apparently accepted the mother's testimony that she was simply too traumatized to return to Idaho, let alone return to her work as a real estate agent at that time. We think that testimony, accepted by the court, provides a reasonable basis to calculate the total of the mother's lost wages.
In Giordano, supra, 42 Cal.4th at page 658, the court stated: " '[W]ages or profits lost due to injury incurred by the victim,' " within the meaning of section 1202.4, subdivision (f)(3)(D), "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."
The trial court could reasonably conclude the victim's mother was suffering sufficient trauma from the homicide of her son, that she was unable to travel or work during the time periods for which the court awarded lost wages. There is substantial evidence to support the court's implied factual findings. Based upon the testimony from the mother, the trial court acted well within its discretion in setting the amount of lost wages for the mother.
DISPOSITION
The restitution orders in this case are affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. GUERRERO, J.