Metropolitan News-Enterprise


Tuesday, November 27, 2007


Page 3


Homicide Victims’ Spouses May Claim Restitution for Lost Earnings—S.C.


From Staff and Wire Service Reports


Spouses of victims may receive restitution from convicted killers based on the lost earning potential of the person slain, the state Supreme Court ruled Monday.

The decision stemmed from a 2003 Riverside County case in which a drunk driver was convicted of vehicular manslaughter after he struck and killed Kenneth Armstrong, who was riding a motorcycle.

Charles Giordano was sentenced to four years in prison. Five months later, Armstrong’s widow, Patricia Armstrong, requested a hearing for victim restitution.

She asked for restitution “based on the decedent’s modest earnings of approximately $35,000 per year,” Justice Carlos Moreno wrote for the court. Riverside Superior Court Judge  Randall Donald White granted Armstrong $167,700, which was based on her husband’s average annual income.

While Moreno acknowledged the “methodological imprecision” of White’s calculation—he averaged the decedent’s income for the three years prior to his death, then multiplied by five—the amount was within the bounds of the judge’s discretion, the justice said.

Armstrong was not entitled to recover her husband’s future earnings as a roofer, but she personally suffered an economic loss when he was killed as he was the family’s primary wage earner, the justice noted. Patricia Armstrong had only worked for two years during the marriage, as a housekeeper, Moreno explained.

“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,” the justice wrote.

In calculating the amount of restitution, he elaborated, the court may take into consideration the factors normally looked at in civil wrongful death cases—“ 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”—as well as other factors applicable to the specific case.

Deputy Attorney General Mike Murphy acknowledged that the court was making a fine distinction between the decedent’s losses and the survivors’.

“She is going to lose the financial support that he would’ve provided,” he said. “She will directly lose his bringing home a paycheck and buying the groceries.”

Moreno rejected the argument that the amount awarded was excessive because it was more than the widow could claim from the state Victims Restitution Fund. The Government Code provides that the family of a homicide victim may claim lost support in an amount not exceeding the decedent’s anticipated future earnings for up to five years, or until the minor children reach majority, whichever is longer, subject to a cap of  $70,000.

The justice said there was nothing to indicate that the Legislature intended to import the provisions governing the Victims Restitution Fund into the statute governing direct restitution by defendants.

Justice Joyce L. Kennard, the lone dissenter, argued that the Legislature had quite specifically provided for recovery of lost support through a wrongful death action or through the Victims Restitution Fund, and did not intend to have a restitution hearing in a criminal case act as an alternative to those remedies.

“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, “ she wrote. “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.”

The case is People v. Giordano, 07 S.O.S. 6817.


Copyright 2007, Metropolitan News Company