STATE v. RAYOS

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DIVISION ONE FILED: 10/24/2013 RUTH A. WILLINGHAM, CLERK BY: mjt STATE OF ARIZONA, ) No. 1 CA-CR 13-0058 ) Appellant, ) DEPARTMENT B ) v. ) MEMORANDUM DECISION ) ) (Not for Publication GABRIEL MARTIN RAYOS, ) Rule 111, Rules of Court ) the Arizona Supreme) Appellee. ) __________________________________) Appeal from the Superior Court in Maricopa County Cause No. CR 2011-111299-001 The Honorable Jeanne M. Garcia, Judge AFFIRMED IN PART; REVERSED IN PART William G. Montgomery, Maricopa County Attorney By Keli B. Luther, Deputy County Attorney Attorneys for Appellant Phoenix James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorneys for Appellee Phoenix N O R R I S, Judge ¶1 The State appeals the superior court s partial denial of restitution. 1 1 Because the claimed restitution was a direct, Without objection, the superior court awarded $7,416.56 in restitution. We affirm that portion of the court s restitution order. 1 not a consequential, loss, we reverse. ¶2 Gabriel Martin first-degree murder. Rayos was convicted of, inter alia, Following Rayos s conviction, the father of the murder victim filed a claim for restitution in the amount of $1,121.96 for money used to purchase airline tickets for the victim s aunt and uncle to attend the victim s funeral. ¶3 Following an evidentiary hearing, the superior court denied the father s restitution claim, finding the fact that the Victim s Aunt and Uncle needed to borrow money from [the victim s father] in order to attend the Victim s funeral is a concurrent rather causal than fact direct[,] that and renders the therefore loss not consequential compensable as restitution. ¶4 We review the court s restitution order for abuse of discretion. State v. Lewis, 222 Ariz. 321, 323-24, ¶ 5, 214 P.3d 409, 411-12 (App. 2009). it misapplies the law or A court abuses its discretion if exercises its discretion based on incorrect legal principles. State v. Slover, 220 Ariz. 239, 242, ¶ 4, 204 P.3d 1088, 1091 (App. 2009). ¶5 Arizona law requires restitution to the victim of the crime or to the immediate family of the victim if the victim has died, in the full amount of the economic loss as determined by the court[.] see also spouse, Ariz. Rev. Stat. ( A.R.S. ) § 13-603(C) (2010); Ariz. parent, Const. child art. or 2, §§ other 2 2.1(A)(8), lawful (C) (granting representative of homicide victim the right [t]o receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim s loss or injury ). Economic loss is defined as any loss that would not have occurred but for the defendant s criminal offense, excluding consequential damages. loss is pain and suffering, punitive A.R.S. § 13-105(16) (Supp. 2012). recoverable as restitution if it meets and A three requirements: (1) the loss must be economic, (2) the loss must be one that the victim would not have incurred but for the criminal offense, and (3) the criminal conduct must directly cause the economic loss. State v. Wilkinson, 202 Ariz. 27, 29, ¶ 7, 39 P.3d 1131, 1133 (2002). Damages are consequential, and thus unrecoverable, if the loss results from the concurrence of some causal conduct[.] event other than the defendant s criminal Id. ¶6 Here, but for [Rayos] s criminal offense, id., the victim s father would related expenses. not have incurred funeral or travel- The question is whether the father s decision to advance money to the victim s aunt and uncle to attend the funeral sufficiently broke the causal connection between Rayos s act of murdering the victim and the expenditure of the money. We hold it did not. ¶7 The superior court interpreted Wilkinson and other case law as prohibiting reimbursement for the advancements made by the victim s father because his decision to advance the funds 3 constituted an exercise of discretion sufficient to break the causal connection. However, in Arizona, money expended by a victim s family for funeral and travel expenses is considered a direct loss and generally recoverable as restitution, see State v. Spears, 184 Ariz. 277, 292, 908 P.2d 1062, 1077 (1996), even though the expenditure necessarily requires an exercise of discretion whether to hold a funeral for the victim. ¶8 Once a victim s family makes the decision to hold a funeral for the victim, the family is entitled to reimbursement for reasonable expenses incurred in conducting the funeral. The decision to advance money for the victim s family to attend the funeral, thus, does not, as a matter of law, render the loss 4 consequential. For the foregoing reasons, we reverse superior court s order denying $1,121.96 in restitution. /s/ PATRICIA K. NORRIS, Judge CONCURRING: /s/ PETER B. SWANN, Presiding Judge /s/ JON W. THOMPSON, Judge 5 the

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