Filed 10/25/17 P. v. Gray CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
GAYLE DIANE GRAY,
Defendant and Appellant.

A151072

(Sonoma County
Super. Ct. No. SCR-676255)

In this appeal we are asked to review a portion of a restitution award after appellant entered a no contest plea to felony driving a vehicle under the influence of alcohol causing great bodily injury, a violation of Vehicle Code section 23153, subdivision (f). We have reviewed the proceedings below and affirm the challenged portion of the award.
This case has previously been before us on an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. (People v. Gray (July 11, 2017, A148982 [nonpub. opn.].) We affirmed the judgment at that time. We include the facts as stated in that appeal to provide the necessary background regarding the issues in this appeal.
“At the time of the criminal incident in this case, defendant was 77 years of age. On January 20, 2016, she was driving her personal vehicle away from the Oakmont Village parking lot. As defendant drove her car, her pet dog, who was in the car, jumped on her lap, causing Gray to accelerate her car instead of braking. The car drove into two women walking on the sidewalk, Jackie Simon, age 85, and Josephine Ross, age 91. The incident took place around 1:15 p.m. As a result of the accident, Simon died from the impact. Ross sustained substantial physical injuries and has incurred expenses in the approximate sum of $291,290.15. On the morning of the accident, defendant consumed her daily medication of Citalopram and drank two glasses of wine before going to the market. Her blood-alcohol level three hours after the accident was .052 percent. Officer Meiger, who responded to the scene, observed the odor of alcohol on Gray’s breath. She was unsteady on her feet and slow of speech.
“Victim Simon sustained a depressed skull fracture and subdural hematoma as a result of the accident. As a result of her injuries, she never regained consciousness and was in the hospital until her death on January 25, 2016. Victim Ross sustained a right ankle fracture that needed surgery to repair, two spinal compression fractures at the T2 and T12 vertebrae, a concussion, and contusions to her right hand and sternum. When she was released from the hospital, she was taken to Park View Post Acute for further treatment and rehabilitation.
“A review of defendant’s prior criminal history shows she has had two prior [driving under the influence (DUI)] convictions, one in 1994 and one in 2003. When the police searched defendant’s car, they found items she had just purchased at the market: a jar of pasta sauce, bottle of mayonnaise, and an unopened bottle of red wine. The clerk at the market indicated defendant shopped there almost daily, with regular purchases of wine and other food products.” (People v. Gray, supra, A148982, pp. *2–*3.)
“On June 21, 2016, after a full sentencing hearing in which representatives of each of the victims’ families spoke, the court sentenced defendant to state prison for the term of 16 months on count 2 [Veh. Code, § 23153, subd. (f), DUI causing bodily injury], along with a consecutive five-year term for the great bodily injury enhancement in count 2. The court additionally imposed a consecutive one-year term for the enhancement for multiple victim injury. . . . In sum, defendant was sentenced to state prison for a full term of seven years four months.” (People v. Gray, supra, A148982, p. *2.)
In this case, the court made a substantial restitution award for the two victims. The restitution amount for Ms. Ross, who was hospitalized and then treated for rehabilitation, exceeded $223,681.97. The family of Ms. Simon, who died, also received restitution amounts that are not challenged in this appeal. We need not address them specifically.
We are asked to review a particular restitution award for the “celebration of life” hosted by the Simon family. The specific amount approved by the trial court for this service following the death of Simon is for purchases by Steve Friedman, the son of Ms. Simon. On January 27, 2016, two days after his mother died, he went to Target, Costco, and Lucky Markets to purchase items for the service. The prosecution submitted invoices for the purchases challenged here. At Target, Friedman purchased “caramels, hard candy, Tootsie Rolls, Swedish Fish, Jolly Ranch, Twizzler.” The court considered this “candy.” He also purchased at Costco “Hanna Sauvignon Blanc . . . St. Jean Chardonnay and a BV Napa Cab.” This purchase of three to four cases of wine came to $392.04.
The court concluded the candy was for the young attendees at the service for Ms. Simon and the wine was for the adults. The total amount requested for restitution was $456.04. The trial court, over objection from counsel for appellant, granted the amount, stating “they have the right to put on a funeral, and they can have wine at the funeral.” When defense counsel challenged the sum for the candy, the court stated: “Yes. That $64 charge will be allowed. The kids can’t drink the wine. They eat the candy.”
At this hearing, the court made several other rulings favorable to appellant, reducing the amount of restitution for family expenses in coming to the memorial service for Ms. Simon and for dinners before the service.
DISCUSSION
We are asked to review a restitution order in the sum of $456.04. The total amount of restitution appellant is obligated to pay far exceeds this amount for the funeral service. Trial courts have broad discretion when they order restitution to a victim. The order will not be disturbed so long as there is a “factual and rational basis for the amount of restitution.” (People v. Dalvito (1997) 56 Cal.App.4th 557, 562.) Of course, it cannot be arbitrary or capricious. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) We review a court’s determination of restitution for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.)
Pursuant to Penal Code section 1202.4, subdivision (a)(1), “[i]t is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.” Furthermore, under subdivision (f) of that section, “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 . . . based on the amount of loss claimed by the victim or victims or any other showing to the court” and provide “full restitution.” The restitution order shall be “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.” (Pen. Code, § 1202.4, subd. (f)(3).) Under the statute, “victim” includes “the immediate surviving family of the actual victim” (Pen. Code, § 1202.4, subd. (k)(1)) and “[a] person who has sustained economic loss as the result of the crime and who . . . [¶] [a]t the time of the crime was the . . . child . . . of the victim.” (Pen. Code, § 1202.4, subds. (k)(3), (k)(3)(A).)
In this case, the trial court concluded funeral expenses for an 85-year-old victim of defendant’s behavior merited restitution. Funeral expenses are considered economic loss for purposes of restitution in a criminal case and recoverable by the family of the deceased victim. (People v. Rubics (2006) 136 Cal.App.4th 452, 461, disapproved in part on other grounds as stated in People v. Martinez (2017) 2 Cal.5th 1093, 1107, fn. 3.) The trial court here conducted a full hearing in which more than 200 pages of documents were reviewed by the prosecution and counsel for appellant. The judge exercised his discretion and reduced in considerable part a portion of the restitution claim. Approving $456.04 for the celebration of life seems appropriate here, and we will not disturb the award on this record.
DISPOSITION
We affirm the judgment.


_________________________
Dondero, J.


We concur:


_________________________
Humes, P. J.


_________________________
Banke, J.




























A151072 People v. Gray