People v. Runyan

Filed 7/16/12


Plaintiff and Respondent,
Ct.App. 2/8 B218863
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA322080

Defendant, driving while intoxicated, killed another driver instantly in a
freeway collision. The accident victim left no surviving family, dependents, or
heirs. Defendant was convicted and sentenced to prison. In addition, pursuant to
the statute requiring that persons convicted of felonies pay restitution to the
crimes? victims for their resulting economic loss, he was also ordered to pay
substantial restitutionary amounts to the decedent?s estate. The award represented
death-related loss in value of the decedent?s business and property, and probate,
estate administration, and funeral expenses. The Court of Appeal affirmed the
We granted review to decide if, when, and to whom one convicted of a
felony is required by the Constitution and statutes to pay restitution to the estate or
personal representative of a victim of the crime who has died. As an initial matter,
we agree with defendant that, for purposes of the mandatory restitution provisions,
the estate is not itself a ?direct victim? of a crime that caused the decedent?s death.
Thus, mandatory restitution is not payable to the estate for economic loss the

estate itself has sustained as a result of the death. But even if the estate is not a
?direct victim,? the decedent?s personal representative (i.e., the executor or
administrator of the decedent?s estate) is entitled to collect mandatory restitution,
on the decedent?s behalf, for economic loss the decedent personally incurred
before death as an actual victim of the defendant?s criminal conduct. Nothing in
the mandatory restitution statute suggests otherwise. And recent amendments to
the ?Victims? Bill of Rights,? as set forth in article I, section 28 of the California
Constitution, make clear that a decedent?s personal representative, acting in that
capacity, can receive restitution to which the decedent was entitled for losses he or
she personally sustained prior to death as a victim of the defendant?s crimes.
However, we further determine that, after the actual victim has died, he or
she does not incur, or continue to incur, personal economic loss subject to
mandatory restitution. Thus, post-death diminution in the value of the decedent?s
property, and the expenses of administering the decedent?s estate, are not
recoverable by the decedent?s representative, on the decedent?s behalf, as losses
the decedent personally incurred because of the defendant?s crime. Our
determination is consistent with well-established principles of the law of civil
damages, and we discern no purpose of the statutory or constitutional provisions
governing mandatory restitution to depart fundamentally from these principles.
No portion of the mandatory restitution award upheld by the Court of
Appeal in this case represents an economic loss incurred either by (1) the decedent
personally, prior to his death, as a result of the defendant?s crime, or (2) the
decedent?s estate itself as a ?direct victim? of a crime committed by the defendant.
Accordingly, there is no valid basis for any of the mandatory restitution amounts
awarded to the estate. We will therefore reverse the Court of Appeal?s judgment
in its entirety.


After a jury trial, defendant Paul Dean Runyan was acquitted of murder, but
was convicted of gross vehicular manslaughter while intoxicated (Pen. Code,
? 191.5, subd. (a)),1 causing injury while driving under the influence of a drug or
alcohol (Veh. Code, ? 23153, subd. (a)), and causing injury while driving with a
blood-alcohol level of .08 percent or greater (id., subd. (b)). The evidence
indicated that on April 6, 2007, defendant, while intoxicated, drove the wrong way
on a freeway for more than three miles before colliding head-on with a vehicle
driven by Donald Benge. Benge had been traveling directly behind a California
Highway Patrol vehicle, which swerved to avoid defendant?s car. Benge was
pronounced dead at the scene. He left no family, dependents, or heirs.
Defendant was sentenced to six years in state prison. Thereafter, a
restitution hearing took place on August 5, 2009. Pursuant to the mandatory
restitution statute, section 1202.4, the court found that ?the economic loss suffered
as a result of the defendant?s criminal actions? totaled $446,486, and it ordered
defendant to pay restitution in this amount to Benge?s estate. The award was
allocated as follows: $229,721 in net loss to Benge?s rare coin collection; $9,764
for net loss in value of Benge?s fencing equipment; $17,211 for net loss in value of
the contents of Benge?s residence; $148,645 in probate costs; $36,000 and $5,100,
respectively, as compensation or reimbursement to two individuals for their
assistance to the estate; and $45 for funeral expenses.2

All further unlabeled statutory references are to the Penal Code.
The net loss on the rare coin collection, $229,721, was computed by
positing the wholesale appraised value of the coin inventory ($863,934), adding a
20 percent retail markup ($1,036,721), then subtracting from the latter figure the
actual price obtained for the coin inventory after Benge?s death ($807,000). The
net loss attributable to Benge?s fencing equipment, $9,764, was similarly
computed by positing the supposed retail value of this equipment ($12,264), then
(Footnote continued on next page.)

The trial court rejected defendant?s contention that, in light of Benge?s
death, there was no ?victim? statutorily entitled to restitution. In the court?s view,
the Legislature cannot have intended a crime victim?s death to absolve the
defendant of restitutionary liability. Moreover, the court noted that the
Constitution now defines a ?victim? for restitutionary purposes to include the
lawful representative of a deceased crime victim.
Defendant appealed the restitution order. He argued, as below, that
Benge?s estate may only obtain mandatory restitution under section 1202.4 if it is
a ?direct victim? of defendant?s crime, that the estate is not such a ?direct victim,?
and that, because Benge died without family, heirs, or dependents, there is no
other identifiable ?victim? entitled to restitution.
The Court of Appeal affirmed the order, reasoning that Benge?s estate must
be deemed a ?direct victim,? because it only exists as a result of defendant?s
criminal acts. Noting that section 1202.4 defines ?victim[s]? entitled to restitution
to include members of the actual victim?s immediate family, the Court of Appeal
deemed this a clear indication that the Legislature did not intend a defendant?s
restitutionary obligation to terminate with the victim?s death. The Court of Appeal
cited People v. Slattery (2008) 167 Cal.App.4th 1091 (Slattery) for the principle
that restitution is payable to the estate of a deceased victim. Finally, the Court of
Appeal stressed that defendant would have been liable for restitution had he

(Footnote continued from previous page.)

subtracting the actual post-death sale price ($2,500). The net loss on certain
residential contents, $17,211, was derived by subtracting the actual post-death sale
price ($5,560) from the appraisal value of these items ($22,771). Restitution for
probate expenses ($148,645) was sought on grounds that these costs could have
been avoided if Benge had created and maintained an inter vivos revocable trust,
as he had planned.

severely injured Benge, rather than killing him. The Legislature, the Court of
Appeal insisted, cannot have intended to provide greater restitutionary protection
to a victim who lived than to one who died.
We granted review. For the reasons we explain below, we conclude that
the Court of Appeal?s judgment must be reversed.

Section 1202.4 declares ?the intent of the Legislature that a victim of 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.? (Id.,
subd. (a)(1).) Accordingly, with specified exceptions, ?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 . . . .?
(Id., subd. (f).) Absent extraordinary and compelling reasons (ibid.), restitution
?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)), and must include, but is not
limited to, such costs as the value of stolen or damaged property, as determined by
repair or replacement value (id., subd. (f)(3)(A)), medical expenses (id.,
subd. (f)(3)(B)), and ?[w]ages or profits lost due to injury incurred by the victim?
(id., subd. (f)(3)(D)).
For purposes of section 1202.4, a ?victim? is defined to include, among
others, the actual victim?s immediate surviving family (id., subd. (k)(1)), as well
as specified relatives of the actual victim, and present and certain former members
of the victim?s household, who sustained economic loss as a result of the crime
(id., subd. (k)(3)(A)-(D)). A ?victim? also includes ?[a]ny corporation, business
trust, estate, trust, partnership, association, joint venture, government,

governmental subdivision, agency, or instrumentality, or any other legal or
commercial entity when that entity is a direct victim of a crime.? (Id., subd. (k)(2),
italics added.)
The case law has ascribed a precise meaning to the phrase ?direct victim,?
as that phrase has appeared in several restitution statutes. Thus, it is established
that a statute ?permitting restitution to entities that are ?direct? victims of crime
[limits] restitution to ?entities against which the [defendant?s] crimes had been
committed? ? that is, entities that are the ?immediate objects of the [defendant?s]
offenses.? [Citation.]? (People v. Martinez (2005) 36 Cal.4th 384, 393
(Martinez), quoting People v. Birkett (1999) 21 Cal.4th 226, 232-233 (Birkett)
[construing former ? 1203.04].)
In Martinez, we held that the Department of Toxic Substance Control was
not the ?immediate object? of the defendant?s offense in that case ?attempted
manufacture of methamphetamine, a controlled substance ? (Health & Saf. Code,
? 11379.6, subd. (a)) ? and thus was not a ?direct? victim entitled to restitution
under section 1202.4 for its mandatory costs of cleaning up the defendant?s illegal
drug laboratory. (Martinez, supra, 36 Cal.4th 384, 393-394.) And in Birkett, we
concluded that automobile insurers were not entities against which the defendant?s
vehicle theft and ?chop shop? crimes were committed, and thus were not ?direct?
victims entitled to restitution, under similar language in former section 1203.04,
for amounts the insurers paid to reimburse their policyholders for their losses.
(Birkett, supra, 21 Cal.4th 226, 229.)
Similarly here, Benge?s estate is not a ?direct victim? of the fatal collision
that killed Benge. As defendant observes, the estate is not an entity against which
defendant committed his alcohol-related offenses of vehicular homicide and
injurious driving, and it was not the immediate object of those offenses. Indeed,
as defendant further points out, the estate did not even exist at the time the crimes

were committed; it came into being only as a result of those offenses. Hence, the
estate is not entitled to restitution, on its own behalf, as an entity itself directly
targeted and victimized by defendant?s crimes.
Nonetheless, we are persuaded that a deceased victim?s estate may, in
appropriate cases, receive restitution in a different capacity, and for a different
reason. When the actual victim of a crime has died, the estate, acting in the
decedent?s stead, steps into the decedent?s shoes to collect restitution owed to the
decedent, but which the decedent cannot personally receive because of his or her
death. Thus, a decedent?s estate ? or, more precisely, its executor or
administrator as the decedent?s personal representative ? is a proper recipient, on
the decedent?s behalf, of restitution owed to the decedent, as an actual and
immediate crime victim, for economic losses the decedent incurred as a result of
the defendant?s offenses against the decedent.
In reaching this conclusion, we look first to the language of section 1202.4
itself. As noted, this statute expresses the Legislature?s intent that ?a victim of
crime who incurs any economic loss? because of the defendant?s crime ?shall
receive restitution? from the defendant (id., subd. (a)(1)), and requires, with
exceptions irrelevant here, that the court order restitution ?to the victim or
victims? ?in every case in which a victim has suffered economic loss as a result of
the defendant?s conduct? (id., subd. (f), italics added). Nothing in this language
remotely suggests that the defendant is absolved of responsibility to pay restitution
for the economic loss his or her victim personally incurred as a result of the crime,
if the victim has died.
Other provisions of law make clear that a debt owed to a decedent is
properly payable to the decedent?s personal representative. The personal
representative has the statutory right and duty to collect all obligations owed to the
decedent personally (Prob. Code, ? 9650, subd. (a)(1)), and to maintain actions to

recover such amounts (Code Civ. Proc., ?? 377.20, 377.30 et seq.). Section
1202.4 contains no indication that the personal representative lacks authority to
collect a restitutionary debt the defendant owes to a deceased crime victim for the
decedent?s personal economic loss incurred as a result of the crime.
Courts have assumed that restitution for loss personally incurred by a crime
victim who has died should be paid to the victim?s estate. Thus, in Slattery, supra,
167 Cal.App.4th 1091, the defendant?s abuse of her elderly mother resulted in the
mother?s admission to the hospital. She died there 10 days later, leaving unpaid
medical bills. The trial court sentenced the defendant to prison and, pursuant to
section 1202.4, ordered her to pay restitution to the hospital that treated the victim.
The Court of Appeal struck this award, holding that the hospital was not a ?direct
victim? of the defendant?s criminal conduct. In order to make the deceased victim
?whole? for her loss, as section 1202.4 requires, the Court of Appeal held that an
award for her medical expenses should be paid to her estate, after which the
hospital could sue the estate for the unpaid bill. (Slattery, supra, at p. 1097.)
We indicated apparent approval of Slattery in People v. Anderson (2010)
50 Cal.4th 19. There, the defendant was placed on probation after his conviction
for a fatal hit-and-run. Under section 1203.1, the probationary restitution statute,
the court ordered him to pay restitution to the hospital who treated the victim. The
defendant challenged this award, citing Slattery. We affirmed. Because section
1202.4 limits mandatory restitution to commercial entities that are ?direct? crime
victims, we endorsed Slattery?s conclusion, under that statute, calling for payment
of the deceased victim?s medical expenses to the victim?s estate rather than to the
treating hospital. However, we concluded that Slattery is not dispositive of a
court?s broader discretionary authority under section 1203.1 to order a probationer
to pay restitution even to persons and entities who are not ?direct? victims.
(Anderson, supra, at p. 31.)

Finally, as the People point out, even if section 1202.4 left doubt about
whether a deceased crime victim?s personal representative may receive restitution
owed to the victim, recent constitutional amendments conclusively resolve the
issue. In November 2008, the voters adopted Proposition 9, popularly known as
Marsy?s Law. Proposition 9 substantially amended article I, section 28, of the
California Constitution, the ?Victims? Bill of Rights.? These amendments make
clear that a crime ?victim? is entitled, among other things, ?[t]o restitution? (Cal.
Const., art. I, 28, subd. (b)(13)); define a ?victim,? for all purposes of article I,
section 28, to include ?a lawful representative of a crime victim who is deceased?
(id., subd. (e)); and provide that ?a lawful representative of the victim? may
enforce the victim?s rights (id., subd. (c)(1)).3
Defendant?s proposed rule ? that a person?s death eliminates the person as
a crime ?victim? entitled to restitution ? would produce manifest injustice the
Legislature cannot have intended. It would mean, for example, that a defendant
would owe no restitution for crime-related losses incurred by a victim who died,

In his reply brief, defendant argues that Marsy?s Law is inapplicable to the
issues in this case, because it only addresses ?enforcement? of restitution awards,
not who is entitled to receive the restitution itself. The distinction escapes us. By
providing that a ?victim? includes the lawful representative of a deceased victim,
Marsy?s Law obviously means that such a representative may enforce a
restitutionary obligation owed to a victim who has died. (Cal. Const., art. I, ? 28,
subd. (e).)

Defendant also urges that because the People have invoked Marsy?s Law
for the first time in this court, their argument is untimely. But we may consider
new arguments that present pure questions of law on undisputed facts. (E.g.,
Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 654, fn. 2; Frink v. Prod (1982)
31 Cal.3d 166, 170; Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133,
1141.) Nor would we ignore a constitutional provision directly applicable to an
issue in a case before us simply because a party had neglected to cite it. No
unfairness thereby accrues to defendant; he has had a full opportunity, in his reply
brief, to argue the relevance of Marsy?s Law.

well after the crime but before the defendant?s conviction, for reasons entirely
unrelated to the defendant?s offense. Obviously, in such a case, the deceased
victim?s personal representative would be the proper recipient of restitution owed
to the deceased victim for the economic loss the victim had incurred as a result of
the defendant?s crime.
We therefore conclude that when a crime victim has died, restitution owed
to that person for the ?economic loss? he or she has personally incurred ?as a
result of the commission of [the] crime? (? 1202.4, subd. (a)(1)) is properly
payable to the decedent?s estate.
This conclusion, however, leaves a question of equal importance and
greater difficulty: What are the ?economic loss[es]? personally incurred by a
victim of crime as a result of the defendant?s criminal conduct? Specifically, can
such personal losses accrue, or continue to accrue, after the crime victim has died?
We turn to that issue.
At the outset, we conclude that, under the terms of both Marsy?s Law and
section 1202.4, a crime victim may recover only for losses personally incurred by
that victim. Thus, section 1202.4 expresses the Legislature?s intent that a ?victim
of crime who incurs . . . economic loss? as a result of the defendant?s criminal
conduct ?shall receive restitution? (id., subd. (a)(1), italics added) and provides
that the court shall order the defendant to ?make restitution to the victim or victims
based on the amount of loss claimed by the victim or victims? (id., subd. (f)),
italics added). The restitution order must ?identify each victim and each loss to
which it pertains,? and must provide ?a dollar amount [of restitution] sufficient to
fully reimburse the victim or victims? for their economic losses. (Id., subd. (f)(3),
italics added.)
The statute then defines and limits the categories of ?victim[s]? that are
entitled to recover for the losses they have accrued. These include, in addition to

an ?actual? (id., subd. (k)(1)) or ?direct? (id., subd. (k)(2)) victim, the immediate
surviving family of an actual victim (id., subd. (k)(1)); certain other persons who
sustained economic loss as a result of the crime, including a parent, grandparent,
spouse, child, or grandchild of the victim (id., subd. (k)(3)(A)), a present member,
and certain former members, of the victim?s household (id., subd, (k)(3)(B), (C)),
another family member who witnessed the crime (id., subd. (k)(3)(D)), and the
primary caretaker of a minor victim (id., subd. (k)(3)(E)); any person eligible to
receive assistance from the Restitution Fund (id., subd. (k)(4)); and government
entities that incur graffiti cleanup costs as the result of certain offenses (id.,
subd. (k)(5)).
Similarly, article I, section 28 of the California Constitution, as amended by
Marsy?s Law, provides that a ?victim? is entitled to ?restitution? (id.,
subd. (b)(13)), specifies that a ?victim? is ?a person who suffers direct or
threatened physical, psychological, or financial harm as a result of . . . a crime?
(id., subd. (e), italics added), and additionally defines a victim to include ?the
person?s spouse, parents, children, siblings, or guardian, and includes a lawful
representative of a crime victim who is deceased, a minor, or physically or
psychologically incapacitated? (ibid., italics added). Here again, the implication is
that a defined victim, and only a defined victim, is entitled to restitution on his or
her own personal behalf, or on the personal behalf of the deceased, minor, or
incapacitated victim he or she lawfully represents.
Indeed, we have confirmed that section 1202.4 and the Victims? Bill of
Rights allow each defined victim to seek and obtain restitution only for that
person?s or entity?s own personally incurred loss. In People v. Giordano (2007)
42 Cal.4th 644 (Giordano), the defendant was convicted of vehicular
manslaughter after his intoxicated driving caused the death of a motorcyclist. The
trial court awarded the decedent?s spouse, Patricia Armstrong, restitution of

$167,711.65, computed as the decedent?s average annual earnings for the most
recent three years before his death, multiplied by five. The Court of Appeal
upheld the award, and we affirmed the Court of Appeal.
On appeal in Giordano, the defendant urged that the constitutional and
statutory provisions governing mandatory restitution did not allow Armstrong to
recover her deceased husband?s future earnings. We agreed that ?Armstrong does
not step into the shoes of decedent to recover his future losses. The language of
[former] article I, section 28, subdivision (b) of the California Constitution, itself
suggests that victims may recover restitution only for those losses suffered
personally. . . .? (Giordino, supra, 42 Cal.4th 644, 657, italics added.)4
Moreover, we noted that section 1202.4 does not allow a surviving spouse, or
other family member or heir, to recover losses on behalf of a deceased victim, but
?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 directly from any defendant
convicted of that crime.? (Id., subd. (a), italics added.)? (Giordano, supra, at p.
657.) However, we concluded that Armstrong, the victim?s spouse, was herself a
statutorily specified victim, and could therefore obtain restitution ? just as she
could recover in a civil action for wrongful death ? for her own personal loss
arising from the decedent?s death, i.e., the deprivation of support that she
otherwise had a right to expect from her spouse. (Id., at pp. 657-662.) We further

At the time Giordano was decided in 2007, article I, section 28 provided in
pertinent part 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
.? (Id., former subd. (b), italics added; Giordino, supra,
42 Cal.4th 657 [quoting].) The subsequent amendments made by Marsy?s Law, as
quoted in the text above, do not indicate any purpose to expand the right to
restitution beyond personally incurred loss.

determined that the amount of restitution awarded to Armstrong personally on this
basis was not an abuse of discretion. (Id., at pp. 662-667; also cf., People v.
Rubics (2006) 136 Cal.App.4th 452 [defendant convicted of fatal hit-and-run
properly ordered to pay restitution to victim?s family for funeral expenses].)
As we have explained above, a decedent?s personal representative may step
into the decedent?s shoes to recover, on the decedent?s behalf, losses the decedent
personally suffered as a victim of the defendant?s criminal conduct. Nonetheless,
it follows from the pertinent statutory and constitutional language, as analyzed in
Giordano, that a victim, and thus a personal representative acting in his or her
behalf, may not recover for losses other than those the victim personally incurred.
Here, the sole victim of defendant?s crime, on whose behalf restitution was
ordered, was killed, more or less instantaneously, by defendant?s criminal conduct.
We therefore must consider what forms of restitutionary loss, if any, a victim can
personally incur after his or her death.
In the analogous field of civil law, the answer is clear. No civil claim can
be asserted, on a decedent?s personal behalf, for injury or damage to the decedent
that occurs, or accrues, after the decedent has died. The governing statutes
recognize two, and only two, mutually exclusive types of actions that may be
brought, or maintained, in consequence of a person?s death. First, a cause of
action in favor of a person survives the person?s death, and may be commenced, or
continued, by the decedent?s personal representative, or, if none, by the decedent?s
successor in interest. (Code Civ. Proc.,?? 377.20, subd. (a), 377.30, 377.31.)
However, the damages recoverable in such an action ?are limited to the loss or
damage that the decedent sustained or incurred before death . . . .? (Id., ? 377.34,
italics added.)
Second, specified persons who survive the decedent, or the decedent?s
personal representative acting in their behalf, may sue for a person?s wrongful

death. (Code Civ. Proc., ? 377.60.)5 In such an action, ?just? damages may be
awarded, but such an award ?may not include damages recoverable under [Code
of Civil Procedure] [s]ection 377.34.? (Id., ? 377.61.) ?The purpose of the statute
establishing standing for certain persons to bring wrongful death actions . . . ?is to
enable the heirs and certain specified dependents of a person wrongfully killed to
recover compensation for the economic loss they suffer as a result of the death.?
[Citation.]? (Giordano, supra, 42 Cal.4th 644, 658, quoting Justus v. Atkinson
(1977) 19 Cal.3d 564, 581, italics added, italics in Giordano omitted.)
Estate of Bright v. Western Air Lines (1951) 104 Cal.App.2d 827 (Estate of
Bright) illustrates the relevant limitations and distinctions in circumstances similar
to those we confront here. There, the decedent, a passenger on the defendant?s
airliner, was killed when the plane crashed. An action was brought, in the name of
the decedent?s estate, to recover for waste, loss, and injury to the property and
assets of the estate as a result of the defendant?s negligence. Based on the
decedent?s life expectancy of 34.29 years, and his annual income of $300,000 over
the several years preceding his death, the complaint alleged estate damages of
$10,287,000. The trial court sustained the defendant?s demurrer without leave to
amend, and the Court of Appeal affirmed.

Under current law, these include the decedent?s surviving spouse, domestic
partner, children, and issue of deceased children, or if the decedent died without
surviving issue, the persons who would take by intestate succession (Code Civ.
Proc., ? 377.60, subd. (a)); the decedent?s stepchildren, parents, putative spouse,
and the children of the putative spouse, if they were dependents of the decedent
(id., subd. (b)); and a minor dependent of the decedent who resided in the
decedent?s household for the 180 days before the decedent?s death (id., subd. (c)).


On appeal in Estate of Bright, the contention was that the action was
authorized by former section 574 of the Probate Code,6 which gave a decedent?s
executor or administrator the right to sue for waste, destruction, or conversion of
the decedent?s property during his or her lifetime. The Court of Appeal explained,
however, that actions for death are purely statutory, that the statutes recognize no
loss to a decedent?s estate, as such, resulting from the death, and that the action
authorized by former section 574 was solely for the benefit of the decedent?s heirs,
vindicating their rights to personal compensation for the pecuniary loss to them
resulting from the decedent?s wrongful death. Because the complaint failed to
allege that the decedent left heirs at law, the Court of Appeal held, it did not state a
cause of action. (Estate of Bright, supra, 104 Cal.App.2d 827, 829-830.)7

Probate Code former section 574 was repealed in 1961. (Stats. 1961,
ch. 657, ? 3, p. 1868.)

We are both puzzled, and unpersuaded, by arguably contrary remarks in a
later case, Pease v. Beech Aircraft Corp. (1972) 38 Cal.App.3d 450 (Pease).
There, the pilot and three passengers died when a Beechcraft Baron airplane
crashed during takeoff. The decedents? heirs sued the aircraft?s manufacturer for
wrongful death. The suits also sought punitive damages under the ?survival
action? provisions of former section 573 of the Probate Code, the predecessor of
current Code of Civil Procedure sections 377.20, 377.30, and 377.34. The former
Probate Code section, like the current Code of Civil Procedure sections, provided
in substance that a cause of action held by a person during life survived the
person?s death and could be maintained by the decedent?s personal representative,
but that damages, including punitive damages, were limited to those the decedent
incurred, or to which he or she would have been entitled, prior to death. The
plaintiffs in Pease urged that Probate Code former section 573 would allow
punitive damages because personal effects of the decedents were destroyed in the
crash, and the decedents? causes of action for these property losses survived their

The Court of Appeal disagreed. It pointed out that under Probate Code
former section 573, punitive damages in ?survival actions? were limited to those
incurred by the decedent before his or her death. Because the parties had
(Footnote continued on next page.)

We see no indication that the constitutional and statutory provisions
governing mandatory restitution were intended to expand upon these principles.
In fact, all evidence is to the contrary. Section 1202.4 limits eligibility for
mandatory restitution to carefully defined crime ?victims? (id., subd. (k)); makes
clear that those eligible ? expressly including decedent?s estates ? must be the
crime?s ?direct? or ?actual? victims except for enumerated categories of
individuals who had close familial or economically dependent relationships to an
actual victim (ibid.); provides that such victims are to receive restitution ?directly?
from a convicted defendant (? 1202.4, subd. (a)(1)); restricts restitution to a
victim?s ?economic loss? (id., subd. (f)); and calls for restitution sufficient to
?reimburse? each identified victim for such loss (id., subd. (f)(3)). No language in

(Footnote continued from previous page.)

stipulated the decedents? deaths were simultaneous with the crash, the Court of
Appeal concluded, ?it must be said no cause of action arose during the lifetime of
any of the four for damage to personal property. Therefore, no such cause of
action survived.? (Pease, supra, 38 Cal.App.3d 450, 459-460.)

However, the Court of Appeal then inserted the following footnote: ?For
the benefit of [those] so error-prone as to find in the foregoing a view that the
personal representative of a decedent would have no cause of action for damage to
tangible property suffered simultaneously with the death of its owner, we make it
clear that the personal representative would have a cause of action whether the
damage occurred before, at the same time as, or after the death of the owner; and if
it occurred after and was caused by a direct invasion of the right of the personal
representative to possession and control of the property free from damage or
interference, there might be a right to punitive damages, as in a cause of action
arising during the life of the decedent to which the personal representative
succeeds. [?] Such a right properly should be asserted in an action, or in a
separate cause of action, distinct from a cause of action for wrongful death, and
should result in a separate verdict from one awarding damages for wrongful
death.? (Pease, supra, 38 Cal.App.3d 450, 460, fn. 1.) The Court of Appeal did
not mention or discuss Estate of Bright, and it cited no authority for the quoted
proposition. Despite a diligent search, we have found none.

this scheme states or implies that, contrary to the assumption in civil law, an
individual victim personally continues to incur ?economic loss? after death, for
which he or she may be ?directly? ?reimburse[d].?
Moreover, although section 1202.4 lists ?[f]ull or partial payment for the
value of stolen or damaged property? as a reimbursable loss (id., subd. (f)(3)(A),
italics added), nowhere does it suggest that the decedent?s estate or personal
representative may recover for damage or diminution in value of estate assets
(i.e., property owned by the decedent in life), or for expenses of administering the
estate, which arise, after the decedent?s death, as a result of the crime against the
decedent personally. Especially is this true when, as here, the actual victim had no
family, dependents, or intestate heirs, and his personal representative thus cannot
purport to be acting on behalf of surviving victims who are themselves entitled to
restitution, in their own rights, for their own economic losses. In such
circumstances, amounts awarded to the estate for diminution in estate asset value,
and for burial, probate, and estate administration costs, are clearly received in the
estate?s capacity as a mere indirect victim of the defendant?s crime, to which a
right of mandatory restitution does not extend under section 1202.4. (Id.,
subd. (k)(2); Martinez, supra, 36 Cal.4th 384, 393-394; see Birkett, supra,
21 Cal.4th 226, 243.)
Examination of the Victims? Bill of Rights, as amended by Marsy?s Law,
does not alter our conclusion. This provision defines ? ?victim[s]? ? entitled to
restitution as (1) ?person[s] who suffer[ ] direct or threatened physical,
psychological, or financial harm? as a result of the defendant?s crime, (2) close
family members or guardians of such persons, and (3) the ?lawful
representative[s] of . . . crime victim[s] who [are] deceased, . . . minor[s], or
physically or psychologically incapacitated.? (Cal. Const., art. I, ? 28, subd. (e),
italics added.) A deceased victim?s ?lawful representative? is thus expressly

authorized, as in a civil ?survival? action, to seek and receive, after the decedent?s
death, and in that representative capacity, compensation for losses the decedent
personally incurred in life as a result of the defendant?s wrongful conduct.
However, nothing in Marsy?s Law indicates, in contrast to the statutes governing
civil death actions, that upon or after death, a crime victim either begins, or
continues, to accrue a personal right to restitution, payable to his or her ?lawful
representative.? Nor does it suggest that when the defendant has wrongfully killed
the actual victim, the decedent?s ?lawful representative? (ibid.) becomes eligible to
receive restitution, as a victim in its own right, for estate expenses, or for
diminution of estate value. Such amounts, we conclude, are not authorized
components of restitution under section 1202.4 and article I, section 28 of the
California Constitution.
We realize the requirement that a convicted criminal defendant pay
restitution for the losses caused by his crime has aims beyond strict compensation
that include deterrence and rehabilitation. (E.g., People v. Dehle (2008)
166 Cal.App.4th 1380, 1386; People v. Bernal (2002) 101 Cal.App.4th 155, 162.)
Accordingly, the decisions have suggested that the right to restitution, and the
categories of covered ?victims,? are to be broadly and liberally construed. (See,
e.g., People v. Crow (1993) 6 Cal.4th 952, 957 [government agency was ?direct
victim? of welfare fraud committed against it]; People v. Phu (2009)
179 Cal.App.4th 280, 283 [electric utility was ?victim? of criminal marijuana
grow operation that employed electric power stolen from utility; method of
calculating value of stolen power was not abuse of discretion]; People v. Saint-
Amans (2005) 131 Cal.App.4th 1076, 1084 [defendant was convicted of
commercial burglary for entering bank premises to complete fraudulent transfers
from innocent depositor?s account; bank was ?victim? of burglary entitled to
restitution for amounts it reimbursed to depositor even though federal insurance

also covered the loss]; People v. Mearns (2002) 97 Cal.App.4th 493, 499, 501-502
[for victim forcibly raped in her mobile home, restitution order properly included
relocation costs measured by difference between purchase price of new trailer and
sale price of old trailer]; People v. Ortiz (1997) 53 Cal.App.4th 791, 796-797
[trade association formed by individual Latin American music labels to combat
record piracy against them could be ?direct victim? as their representative to
recover restitution in form of profits lost to defendant?s tape counterfeiting
But the primary purpose of mandatory restitution, as of civil damage
recovery, is reimbursement for the economic loss and disruption caused to a crime
victim by the defendant?s criminal conduct. (E.g., Giordano, supra, 42 Cal.4th
644, 658; People v. Busser (2010) 186 Cal.App.4th 1503, 1510; People v.
Jennings (2005) 128 Cal.App.4th 42, 57.) We have discerned no constitutional or
statutory provisions suggesting, contrary to the principles applicable in civil law,
that a person against whom a crime was committed, or the estate of a victim
wrongfully killed as the result of criminal conduct, is a direct and continuing crime
?victim? entitled to restitution for economic losses that accrue after the victim has

We are aware that under the federal Mandatory Victim Restitution Act
(MVRA; 18 U.S.C.? 3663A), one federal court of appeals has upheld an award of
future lost income to the estate of a three-month-old infant against whom the
defendant was convicted of committing voluntary manslaughter in Indian Country.
(U.S. v. Serawop (10th Cir. 2007) 505 F.3d 1112.) The MVRA requires restitution
for victims of certain offenses, including crimes of violence (18 U.S.C.
? 3663A(a)(1), (c)(1)(A)(i)); defines a ?victim? as a ?person directly and
proximately harmed as the result of the commission of an offense? subject to
mandatory restitution (18 U.S.C. ? 3663A(a)(2)); indicates that when ?a victim . . .
is under 18 years of age, incompetent, incapacitated, or deceased, the legal
guardian of the victim or representative of the victim?s estate? or other suitable
(Footnote continued on next page.)

We are mindful of the concern, expressed by both the trial court and the
Court of Appeal, that denial of restitution to a deceased victim?s estate under the
circumstances presented here produces a perverse result the Legislature cannot
have intended ?i.e., that a criminal defendant may minimize his or her
restitutionary obligation by instantly killing a victim, rather than by causing mere
nonfatal injury. But a rule against post-death restitution on a deceased victim?s
personal behalf is consistent with the rule of damages that has applied by statute
for more than 60 years in analogous civil cases of wrongful death. (See
discussion, ante; see also Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288,
297-298.) In turn, the modern civil rule, under which a deceased victim?s pre-
death economic damages are recoverable, is an amelioration of the common law
principle that an injured person?s death entirely abated any cause of action he or
she had for a personal tort. (Sullivan, supra, at p. 293.)
In most cases, of course, a criminal defendant will not escape restitution by
killing his or her victim outright; the Constitution and statutes make clear that, as

(Footnote continued from previous page.)

person ?may assume the victim?s rights under this section? (ibid.); provides, inter
alia, that the defendant shall ?reimburse the victim for income lost by such victim
as a result of such offense? (18 U.S.C. ? 3663A(b)(2)(C)); and specifically
declares that ?in the case of an offense resulting in bodily injury that results in the
death of the victim, [the defendant shall] pay an amount equal to the cost of
necessary funeral and related services? (18 U.S.C. ? 3663A(b)(3)). The Serawop
court rejected arguments that the MVRA makes the expense of ?necessary funeral
and related services? the exclusive form of restitutionary recovery on behalf of a
victim killed by the defendant; that the MVRA?s provision for reimbursement of
lost income implies a limitation to past lost income; and that the award of future
lost income was speculative. (Serawop, supra, at pp. 1119-1121, 1123-1125.)
Serawop had no occasion to analyze a mandatory restitution statute against the
backdrop of analogous provisions of civil law which, as in California, limit tort
recovery on the personal behalf of a decedent to predeath damages.

in civil law, numerous persons with familial and dependent attachments to the
victims may seek restitution in their own rights for their own resulting losses.
(Cf., e.g., Giordano, supra, 42 Cal.4th 644, 657-662.) Moreover, given the
increased penal sanctions for death-producing criminal conduct, there is little
chance that the possibility of reduced restitution to an instantly deceased victim
who leaves no survivors will encourage criminal homicide.
Finally, we note that, although the Constitution does not require restitution
for personal losses incurred by a crime victim after he or she has died, it does not
preclude the Legislature from providing for such recovery. The Legislature is
therefore free to decide that restitutionary recovery should include injury and loss
resulting from the defendant?s criminal conduct, even where the defendant?s
victim dies promptly and leaves no survivors to seek restitution on their own
The restitutionary award at issue, made payable to the decedent?s estate,
represents post-death diminution in the value of property the decedent owned in
life, funeral and burial expenses, and costs of estate administration. But the estate
was not a ?direct victim? of defendant?s crime, and thus was not entitled to
restitution for its own expenses incurred as a result of the decedent?s death.
Moreover, though a decedent?s personal representative is authorized to receive, on
the decedent?s behalf, restitution for economic losses the decedent personally
incurred prior to death as an actual victim of the defendant?s crime, here there
were no such personal, pre-death losses. Hence, no portion of the award to the
estate in this case is authorized by the Victims? Bill of Rights, or by section

1202.4. The Court of Appeal erred in upholding the award, or any part of it.
Accordingly, the Court of Appeal?s judgment is reversed in its entirety.

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

Name of Opinion People v. Runyan

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 188 Cal.App.4th 1010
Rehearing Granted


Opinion No.

Date Filed: July 16, 2012


County: Los Angeles
Judge: Marcelita Haynes



Jason Andrew Lieber, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey, Lawrence M.
Daniels, Roberta L. Davis, Lauren E. Dana and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and

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

Jason Andrew Lieber
Lieber Williams & Labin
22130 Clarendon Street
Woodland Hills, CA 91367
(818) 836-6025

Shira B. Seigle
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2356