People v. Pangelinan

Opinion

4 IN THE SUPERIOR COURT OF GUAM 5

6 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF322-10 7 ) Plaintiff, ) 8 ) ) FINDINGS OF FACT AND 9 ) CONCLUSIONS OF LAW vs. ) (Restitution) 10 ) ) 11 PATRICKJ. PANGELINAN, ) ) 12 Defendant. ) ) 13 ----------------------------) 14

15 INTRODUCTION

16 This matter came before the Honorable Anita A. Sukola on May 9, 2012, for a restitutio 17 hearing. Assistant Attorney General David Rivera represented the People of Guam ("th 18 People"). Attorney Thomas J. Fisher appeared on behalf of Patrick J. Pangelinan ("Defendant"). 19 Now, taking all evidence and arguments into consideration, the Court issues its findings an 20

21 conclusions.

22 FINDINGS OF FACT 23 By preponderance of the evidence, the Court makes the following findings of fact: 24 1. On May 21,2010, Defendant was indicted on the charges of Vehicular Homicide (As 25

26 2nd Degree Felony), Negligent Homicide (As a 3rd Degree Felony) with a Special Allegation:

27 Possession and Use of a Deadly Weapon in the Commission of a Felony, Reckless Driving (As

People v. Pangelinan (CF322-1O) Page 10f8 Findings of Fact and Conclusions of Law - Restitution Petty Misdemeanor), Driving on the Right Side of the Roadway (As a Petty Misdemeanor) 1

2 Driving on the Right-Hand Lane (As a Petty Misdemeanor). Indictment (May 21,2010).

3 2. On October 25, 2011, the parties entered into a Plea Agreement under which th 4 rd Defendant agreed to plead guilty to the lesser charge of Negligent Homicide (As a 3 Degre 5 Felony). The Plea Agreement stated the essential elements of the offense as follows: First: On 0 6 about May 4th, 2010 inclusive in Guam; Second: Defendant did cause the death of anothe 7

8 human being, that is Jung Soon Kim; Third: the Defendant did so by criminal negligence. PIe

9 Agreement at ~ 3. 10 3. On October 25, 2011, the Court accepted Defendant's guilty plea to Negligen 11 Homicide (As a 3rd Degree Felony). Accordingly, a Judgment was filed on November 15,2011. 12 The Judgment required the Defendant to pay restitution, if any, arising out of each charge in th 13

14 complaint. Judgment at ~ C. 15 4. On October 18, 2011, a restitution report was filed with the Court. The type 0 16 restitution requested by the People included the expenses incurred for Victim's hospital bills 17 burial costs, funeral costs and the travel expenses for family. The total value reported 0 18

19 expenses incurred was Forty One Thousand Seven Hundred Eighty Two dollars and Fifty Thre

20 cents ($41,782.53). Submission ofSurnrnary Report (Re: Restitution) at Attachment P.l. 21 5. A restitution hearing was held on May 9, 2012 before this Court where testimony wa 22 heard as to the amount of losses Victim and her family incurred. 23 6. The People admitted that there was an automobile insurance payout of $25,000.0 24

25 which was to be exempted from the restitution amount. Transcript JDAASCRA (5/9/2012) a

26 3:13:05. The People stated that Victim's family is asking for $41,782.53. Id. at 3:13:59. 27

People v. Pangelinan (CF322-10) Page 2 of8 Findings of Fact and Conclusions of Law Restitution 7. The People stated a summary of the total expenses requested by Victim's family: 1

2 medical bills- $13,359.40, funeral, burial, and crypt expenses- $6,720.31. Id. at 3:21 :01. Th

3 People also wished to include in the restitution amount Victim's family expenses- $18,945.32. 4 Id. 5 8. The Court asked the People on what grounds may this inclusion of travel expenses b 6 based. Id. at 3:22:12. The People presented two precedent cases (State v. Spears, 184 Ariz. 277 7

8 292, 908 P.2d 1062, 1077 (S. Ct. Ariz. 1996) and State v. Kenvin, 2011 Vt. 123, 2011 W

9 5307388 (S. Ct. Vt. 2011)) which they relied upon to support a finding to include trave 10 expenses. Id., at 3 :22:28. 11 9. The People also noted that there was an automobile insurance payout of $25,000.0 12

13 from Defendant's insurance paid to the Victim's family. Id., at 3:13:06. The People asked fo

14 this payout amount of $25,000.00 to be excluded. Id., at 3:18:49. There is no inforrnatio

15 regarding what type of loss this insurance payment covers. 16 10. No witnesses testified at this restitution hearing. 17 CONCLUSIONS OF LAW: 18

19 The People argue that the Victim has suffered a total loss of $41,782.53 which include

20 Victim's hospital bills, funeral expenses, burial expenses, and Victim's family's travel expense 21 to return to Guam. 22 The Defendant accepts the amounts requested by victims in this matter except for s 23 much of the medical bills as exceed what the family of decedent has paid, and except for one 24

25 half of the claimed burial expenses and except for all travel expenses claimed by the family.

26 Defendant objects to any amount of restitution that exceeds $5,000.00 pursuant to 9 GC 27 §80.50. 28

People v. Pangelinan (CF322-IO) Page 3 of8 Findings of Faet and Conclusions of Law Restitution Restitution is authorized pursuant to 9 G.C.A. § 80.50 (2005) and 9 G.C.A. § 80.53. 1

2 defendant may be ordered to pay restitution for losses l to the victim so long as the restitutio

3 does not exceed the victim's loss resulting from the offense. Id. The losses evaluated fo 4 purposes of restitution should be losses caused by the conduct constituting the offense by th 5 offender. Id. The guiding principle of restitution is to make the victim whole to the exten 6 permitted by the statutory and constitutional scheme. In re Andrew c., 215 Ariz. 366, 367, ~ 10 7

8 160 P.3d 687, 689 (App.2007). Restitution is necessary because it would act as a deterrent and

9 correcting influence on the defendant. See 9 G.C.A. §80.52 (b)(2). Furthermore, the Defendan 10 through his Plea Agreement, voluntarily agreed that he would pay restitution. Plea Agreement a 11

12 The conviction here is of a third degree felony which would ordinarily limit the order 0 13

14 restitution to $5,000.00 set by 9 G.C.A. §80.50 (b). However, restitution awards in excess 0

15 $5,000.00 are allowed under section 80.50 (e) but are limited up to double the amount equal t 16 the loss to the victim. People v. Mallo, 2008 Guam 23 ~ 41. Section 80.50(e) allows for a highe 17 amount when there is a finding ofloss to the victim that is higher than that. Id.at ~ 43. 18

19 In calculating the amount owed III restitution, the court needs only a reasonabl

20 determination of appropriate restitution. .!::::.!2~!"'!"';!:;~~~ 672 F.3d 81(1 st Cir. 2012). Trial court 21 may use any rational method of fixing the amount of restitution which is reasonably calculated t 22 make the victim whole. People v. Goulart., 273 Cal. Rptr. 477, 483 (Cal. App_ 4 Dist. 1990). 23 Here, the reported losses the parties present for inclusion in the restitution order includ 24

25 the victim's hospital bills, burial fees, funeral expenses, and Victim's family's travel expenses.

26 The hospital bills, burial expenses and funeral expenses would all be proper items for restitutio 27 here. The victim's family travel expenses will not be included in the restitution amount. 28 I The term "loss" means the amount of value separated from the victim. 9 GCA §80.50(e).

People v. Pangelinan (CF322-1O) Page 4 of8 Findings of Fact and Conclusions of Law Restitution When read plainly, 9 GCA 80.50 can be interpreted as governing restitution to the exten 1

2 of losses incurred by Victim caused by the conduct constituting the offense which Defendant i

3 convicted. 2 "A person who has been convicted of an offense may be sentenced to pay a fine 0 4 to make restitution not exceeding ... Any higher amount equal to double the .. .loss to the victi 5 caused by the conduct constituting the offense by the offender." Id. 6 A plain deconstruction shows that a person convicted of an offense must pay restitutio 7

8 to a victim. The amount the convicted person must pay is the amount of losses caused by th

9 conduct constituting the offense. The offense referred to in "conduct constituting the offense' 10 can only be referring to the "offense" which a person is convicted of in the beginning of thi 11 statute. 12

13 There also must be a direct link between the loss for which restitution was ordered an

14 the conduct for which defendant was convicted. State v. Kenvin, 2011 VT 123, ~ 11 (Vt.

15 Supreme Court 2011). The losses which victims can recover for must be the direct results of 16 defendant's crime. Id. at ~ 13. 17 In line with this plain reading of the statute above, Defendant should only be responsibl 18

19 for those losses directly caused by his convicted conduct, i.e. Negligent Homicide. Negligen

20 Homicide according to 9 GCA §16.20 (a)(5) reads as follows: a person is guilty of crimina 21 3 homicide if he causes the death of another human being by criminal negligence. Breaking do 22 the convicted charge into two main parts, the legislative intent of holding someone responsibl 23 for acting with the intent of "criminal negligence" could have been to prevent a realm of possibl 24

25 2 It is a cardinal rule of statutory construction that courts must look first to the language of the statute itself... Absen 26 clear legislative intent to the contrary, the plain meaning prevails. Sumitomo Const. Ltd. V. Government of Gua 2001 WL 1360135 Guam Terr., 2001 27 3 Criminal negligence means when a person acts with respect to attendant circumstances or the result of his conduc when he should be aware of a substantial and unjustifiable risk that the circumstances exist or that his conduct wil 28 cause the result and his failure to be aware of the risk constitutes a gross deviation from the standard of care that reasonable person would exercise in the situation.

People v. PangeJinan (CF322-1O) Page 5 of8 Findings of Fact and Conclusions of Law Restitution dangers present with such conduct, e.g. driving into pedestrians or other cars, hurtin 1

2 pedestrians, killing pedestrians, driving into property, hurting the driver or passengers in th

3 same car, etc. The homicide part of Defendant's conviction would obviously be to hoI 4 members of society responsible not to cause the death of another human being. 5 Indeed a possible danger of Defendant's negligent activity came to fruition where he hi 6

7 Victim with his vehicle causing her to die from her severe injuries. As a direct result of hi

8 negligent driving, Victim required treatment at a hospital for her injuries. Hospital bills woul

9 be incurred from such treatment. Because his conduct caused such severe injuries, the Victi 10 died as a result; per Victim's respective beliefs and as a natural consequence of death, sh 11 incurred expenses for her burial and funeral. As direct consequences of Defendant's Negligen 12

13 Homicide, Victim incurred losses in the form of hospital bills, burial fees and funeral expenses

14 all of which will be included in the restitution amount. 15 However, the family's travel expenses were not direct consequences of Defendant' 16 convicted conduct here. The restitution ordered may only cover those consequences with 17 direct nexus to Defendant's offense of Negligent Homicide. The fact that Defendant wa 18

19 negligent in his conduct and caused Victim's death did not inescapably compel the Victim'

20 family from traveling to Guam. 21 While there has been an allowance of travel expenses covered by restitution in othe 22 jurisdictions, those cases showed that the family had to travel to attend trial or close th 23

24 decedent's affairs or estate. 4 There is no evidence showing at least one person had to return t

25 take care of the Victim's affairs. Furthermore, the expenses are classified on the record as trave

26 4 The People rely on State v. Spears, 84 Ariz. 277, 292, 908 P.2d 1062, 1077 (S. Ct. Ariz. 1996) as a precedent fo allowing restitution to cover family travel expenses. The Court in Spears relied upon a precedent case allowing fo 27 travel expenses where it was shown that the daughter of a deceased victim had to travel to close matters of th deceased's affairs or estate. By the same token, the court in Spears reasoned that the expenses incurred for travelin 28 were for the purpose of closing the decedent's estate. The facts in this case are distinguishable from Spears wher no evidence is presented of the necessity of a family member to return to handle matters of the Victim's estate.

People v. Pangelinan (CF322-1O) Page 6 of8 Findings of Fact and Conclusions of Law - Restitution expenses to attend Victim's funeral in Guam. Peo Ie's Res onse to Defendant's Statement in R 1

2 Restitution, at P. 5 (March 13,2012). Such a purpose would not be a direct result of Defendant'

3 conduct. In addition, it would be unreasonable to require Defendant to pay for every person' 4 airline expense if such a purpose existed. It is unreasonable to expect that the closure of a 5 estate would require a total of seven people-including a grandchild and fiance of Victim' 6 children. While certainly a catalyst of events compelling their flight expenses, Defendant' 7

8 convicted conduct here is not a direct cause of the Victim's family's airline expenses. Therefore

9 restitution will not be granted for this amount. 10 In light of the above, Defendant will be ordered to make restitution for Victim's hospita 11 bills, burial expenses, and funeral expenses. The Victim's family'S airline expenses to atten 12 Victim's funeral will not be included in the restitution amount. Where the Victim's medical bill 13

14 cost $13,359.40 and the funeral, burial, and crypt expenses cost $6,720.31, Defendant must pay

15 total of $20,079.71. 16 While the Victim received $25,000.00 from Defendant in the form of an automobil 17 insurance payout, this payment will not be used to offset the amount which Defendant i 18

19 responsible for in this restitution order. This insurance payment goes over the restitution amoun

20 here but it will not be used to pay Defendant's restitution. As mentioned above, in addition t 21 making the victim whole, the purpose of imposing restitution is a criminal deterrence or to act a 22 a criminal sanction for the criminal conduct for which a person is convicted. Each purpose 0 23 restitution will be given equal consideration here and as such, Defendant's insurance paymen 24

25 will not be used to offset his restitution responsibility. If Defendant were allowed to use thi

26 insurance payment towards his restitution, he would not have to pay anything else toward 27 restitution. 28

People v. Pangelinan (CF322-1O) Page 70f8 Findings of Faet and Con elusions of Law - Restitution In U.S. v. Crawford, an insurance payment by Defendant's insurance to the Victim fo 1

2 losses was not allowed to be used as an offset for the restitution ordered for the victim's losses.

3 Defendant in that case pleaded guilty to involuntary manslaughter. The court there cited 18 4 U.S.C. §3664 0)(2) where an offset could be applicable only where there is compensation for th 5 same type of loss. 169 F.3d 590 (C.A.9 (Ariz.),1999). The losses which the insurance in tha 6 case were meant to cover were different from the losses covered in the restitution order 7

8 Consequently, the purpose of restitution was stated earlier to be a criminal sanction and deterren

9 on the Defendant in addition to making the victim whole. The deterrent purpose of restitutio 10 would not be served here if Defendant benefits from such a windfall payment. Therefore, th 11 insurance payment of$25,000.00 will not be used to offset the restitution amount ordered above. 12 CONCLUSION l3

14 By preponderance of the evidence and based on the foregoing reasons, the Court

15 ORDERS the Defendant to pay restitution in the amount of Twenty Thousand Seventy-Nine 16 dollars and Seventy-One cents ($20,079.71) to the family of Jun Soon Kim for losses incurred 17 as a result of Defendant's offense. 18

19 A progress hearing is set for September 10,2012 at 9 a.m.

20 SO ORDERED this Z- day of August, 2012. 21

23 7' :7 24 HONORABLE ANITA A. SUKOLA Judge, Superior Court of Guam 25

People v. Pangelinan (CF322-1O) Page 80f8 Findings of Faet and Conclusions of Law Restitution