                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                    STATE OF ARIZONA, Appellant,

                                   v.

                       VIVEK A. PATEL, Appellee.

                          No. 1 CA-CR 18-0774
                            FILED 10-22-2019


          Appeal from the Superior Court in Maricopa County
                       No. LC2018-000192-001
                The Honorable Patricia A. Starr, Judge

     REVERSED; RESTITUTION ORDER REINSTATED IN FULL


                               COUNSEL

Phoenix City Prosecutor’s Office, Phoenix
By Jennifer Booth
Counsel for Appellant

Michael J. Dew Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellee

Arizona Crime Victim Rights Law Group and
National Crime Victim Law Institute, Scottsdale
By Randall Udelman
Counsel for Co-Amici Curiae
                             STATE v. PATEL
                            Opinion of the Court



                                 OPINION

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Diane M. Johnsen joined.


W I N T H R O P, Judge:

¶1            The State appeals the superior court’s judgment reversing the
municipal court’s restitution order of $61,191.99. The State challenges the
constitutionality of Arizona Revised Statutes (“A.R.S.”) section 28-672(G)
(2016), which capped criminal restitution for specified driving offenses at
$10,000.1 For the following reasons, we hold that § 28-672(G) is
unconstitutional, reverse the superior court’s restitution order, vacate any
resulting restitution judgment, and reinstate the municipal court’s
restitution order.

                 FACTS AND PROCEDURAL HISTORY

¶2             In municipal court, Vivek Patel was convicted of violating
A.R.S. § 28-672(A), which criminalizes moving violations that cause serious
physical injury or death. On behalf of the victim, the State requested
restitution of $61,191.99 and argued the $10,000 restitution cap under A.R.S.
§ 28-672(G) was unconstitutional. The municipal court agreed and ordered
Patel to pay the amount the State requested. Patel appealed the restitution
order in superior court. The superior court held the $10,000 cap
constitutional and reversed the municipal court’s order. The State timely
appealed the superior court’s final judgment.2



1      The statute has since been amended to raise the restitution cap to
$100,000. See A.R.S. § 28-672(G) (2019). We refer to the 2016 version of § 28-
672(G) throughout this opinion.

2      Pursuant to A.R.S. § 12-1841(A)-(B), the city prosecutor on multiple
occasions provided written notice and copies of relevant pleadings
challenging the constitutionality of the subject statute to the Arizona
Attorney General’s office, the Speaker of the Arizona House of
Representatives, and the President of the Arizona Senate. This court also
issued an order setting a briefing schedule in the event the Attorney



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                             Opinion of the Court

                                  ANALYSIS

¶3             Because Patel’s case began in municipal court, our jurisdiction
is limited to reviewing the facial validity of the statute at issue, A.R.S. § 28-
672(G). See A.R.S. § 22-375(A); State v. Russo, 219 Ariz. 223, 225, ¶ 4 (App.
2008). We review the constitutionality of a statute de novo. Russo, 219 Ariz.
at 225, ¶ 4. We presume the statute is constitutional, and we will not declare
a statute unconstitutional unless it conflicts with the federal or state
constitution. Graville v. Dodge, 195 Ariz. 119, 123, ¶ 17 (App. 1999). The
challenging party bears the burden to show a statute is unconstitutional. Id.

¶4             Generally, Arizona statutes require a person convicted of a
criminal offense to pay the victim the full amount of the victim’s economic
loss. See A.R.S. § 13-603(C); accord A.R.S. § 13-804 (“Restitution for offense
causing economic loss . . .”). However, A.R.S. § 28-672(G) limits restitution
for victims of specified criminal driving offenses to $10,000. This subsection
was enacted in 2006 when the legislature created the crime of causing
serious physical injury or death by a moving violation; before that time, a
moving violation constituted only a civil violation. See Amended Senate
Fact Sheet, H.B. 2208, 47th Leg., 2d Reg. Sess. (Mar. 27, 2006). Criminalizing
these offenses resulted in a right to a restitution award in favor of the victim
of such offenses; however, the legislation capped restitution at $10,000. Id.3

¶5            Arizona voters amended our state constitution in 1990 to add
the Victims’ Bill of Rights (“VBR”). See Ariz. Const. art. 2, § 2.1 (approved
by election Nov. 6, 1990); State v. Roscoe, 185 Ariz. 68, 70 (1996). The VBR
enshrines a victim’s right to seek “prompt restitution from the person or
persons convicted of the criminal conduct that caused the victim’s loss or
injury.” Ariz. Const. art. 2, § 2.1(A)(8). The State argues this provision
constitutionally ensures a victim’s right to a restitution award for full
economic loss. Patel contends that nothing in the VBR prohibits a statutory
cap on restitution. He argues that the VBR only ensures a victim “prompt”


General’s Office, the Speaker, or the President chose to file a written brief.
Despite those notices, no legal representative of the Attorney General, the
House, or the Senate has filed a written brief or otherwise appeared to
support the superior court’s ruling upholding the constitutionality of the
statute.

3      Similar driving statutes in Title 28 contain provisions authorizing
restitution awards without caps. See, e.g., A.R.S. §§ 28-675(D) (for causing
death by use of a vehicle); -676(D) (for causing serious physical injury by
use of a vehicle).


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                             Opinion of the Court

restitution, and that if the electorate intended to provide “full” restitution
to victims, it would have said so.

¶6            When interpreting the VBR, our primary goal is to effectuate
the electorate’s intent. See McGuire v. Lee, 239 Ariz. 384, 387, ¶ 10 (App.
2016) (citation omitted). The best indication of that intent is found in the
provision’s plain language. Id. If the language is clear and unambiguous,
we only apply its plain meaning. Id.

¶7             Our analysis begins with the meaning of “restitution.” The
VBR does not define restitution. See Ariz. Const. art. 2, § 2.1. The general
criminal restitution statute, § 13-603(C), however, has been part of our
criminal code in various forms since 1977. See State v. Wilson, 150 Ariz. 602,
605 (App. 1986); see also State v. Moore, 156 Ariz. 566, 568 (1988) (noting that
“[r]estitution, both as reparation to the victim and as part of the
rehabilitation of the offender, has been a part of the criminal justice system
for a long time.”); State v. Howard, 163 Ariz. 47, 51 (App. 1989) (explaining
“restitution is to make the victim whole”). In 1984, § 13-603(C) was
amended to require restitution “in the full amount of the economic loss as
determined by the court.” State v. Currie, 150 Ariz. 59, 61 (App. 1986)
(“[T]he court was correct in ordering the defendant to pay the full amount
of the economic loss because that is what is required by the specific
language of A.R.S. § 13-603(C).”).

¶8             As with legislative enactments, we presume the voters who
approved the VBR in 1990 were well aware of the statutes authorizing
restitution and the existing Arizona case law interpreting victims’ rights to
restitution. See Daou v. Harris, 139 Ariz. 353, 357 (1984) (“[W]e presume that
the legislature, when it passes a statute, knows the existing laws.”). As
such, we further presume that had the voters wished to restrict or otherwise
distinguish rights to restitution under the VBR from those under existing
criminal statutes, such as § 13-603(C), they would have done so. McCandless
v. United S. Assurance Co., 191 Ariz. 167, 174 (App. 1997) (“[I]f the legislature,
in adding to a statutory scheme, does not amend an existing statute which
would impact on the addition, we must presume the legislature intended
the existing statute to impact the addition.”). Accordingly, we hold the
plain language of the VBR implicates the full restoration of a victim’s
economic loss.

¶9           Our interpretation is consistent with Arizona VBR
jurisprudence. See Town of Gilbert Prosecutor’s Office v. Downie ex rel. Cty. of
Maricopa, 218 Ariz. 466, 468, ¶ 7 (2008) (“The [VBR] gives victims the right
to prompt restitution for any loss they incur as a result of a crime.”)


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                            Opinion of the Court

(emphasis added); State v. Freeman, 174 Ariz. 303, 306 (App. 1993) (finding
that one objective of restitution is to make the victim whole); see also State
ex rel. Thomas v. Klein, 214 Ariz. 205, 207, ¶ 7 (App. 2007) (stating that one
purpose of the VBR was to provide rights to all victims). Patel’s argument
that the VBR only guarantees partial restitution as provided in § 28-672(G)
would mean that a class of victims who suffered severe harm would not be
entitled to restitution. Based on a plain reading of the Arizona Constitution
and the authorities cited above, we reject this argument.

¶10            Relevant secondary sources, including dictionaries and ballot
materials, support our conclusion. See Ruiz v. Hull, 191 Ariz. 441, 450, ¶ 36
(1998) (permitting consideration of ballot materials when interpreting an
initiative); Piccioli v. City of Phoenix, 246 Ariz. 371, 375, ¶ 12 (App. 2019)
(“[Courts] may look to dictionaries to ascertain and apply a word’s plain
meaning unless the context suggests the electorate intended a different
meaning.”).

¶11            As commonly defined, “the ordinary meaning of ‘restitution’
is restoring someone to a position he [or she] occupied before a particular
event.” Hughey v. United States, 495 U.S. 411, 416 (1990) (citing Webster’s
Third New International Dictionary (1986) and Black’s Law Dictionary (5th
ed. 1979)); accord Restatement (Third) of Restitution and Unjust Enrichment
§ 1 cmt. e(2) (2011) (“Another context in which the word ‘restitution’ means
something closer to damages is a product of statutes authorizing
compensation to victims as a part of criminal sentencing.”). Considering
these definitions, the relevant VBR provision ensures victims of criminal
offenses the right to seek a restitution judgment that, if collected, will
restore them to their economic status before the crime. The amount of
compensation required to do that necessarily will vary depending on the
crime and the resulting economic harm. Yet under A.R.S. § 28-672(A),
regardless of the amount of economic harm victims of such crimes suffer,
they may not obtain a restitution order of more than $10,000. A.R.S. § 28-
672(G).

¶12            The ballot materials circulated in connection with the VBR
also support our interpretation of restitution in the constitutional
amendment. The voter pamphlet published by the Arizona Secretary of
State explained that the VBR “would require the defendant to pay the
victim for any harm caused to the victim. This requirement acknowledges
that the victim has been harmed and should be compensated for that harm.”
Ariz. Sec’y of State, 1990 Publicity Pamphlet 35 (1990),
https://azsos.gov/sites/default/files/pubpam90.pdf.           Given    the



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                             STATE v. PATEL
                            Opinion of the Court

reference to payment for “any harm,” we find it implausible that the
electorate intended to only guarantee a victim partial restitution.

¶13            Patel argues, however, that the statutory cap is a
constitutional exercise of legislative power under Article 2, Section 2.1(D)
of the VBR. Under that section, “[t]he legislature . . . [has] the authority to
enact substantive and procedural laws to define, implement, preserve and
protect the rights guaranteed to victims.” Ariz. Const. art. 2, § 2.1(D). But
Patel has not shown how imposing a cap on restitution awards is a proper
legislative effort “to define, implement, preserve and protect” victims’
constitutional rights to seek restitution. Nor does such a cap in any way
advance victims’ rights to restitution. See State v. Hansen, 215 Ariz. 287, 291,
¶ 17 (2007). For these reasons, it is not a permissible exercise of legislative
authority under Article 2, Section 2.1(D) of the VBR.4

¶14            Patel also argues that recognizing a right to full restitution
under the VBR would effectively deny a criminal defendant the
constitutional right to have a civil jury hear the victim’s claim for damages
resulting from the offense. We disagree. A victim’s right to full restitution
is still confined to economic loss. See A.R.S. § 13-603(C). The statutory
definition of economic loss, which is not challenged here, is “any loss
incurred by a person as a result of the commission of an offense . . .
[including] lost interest, lost earnings and other losses that would not have
been incurred but for the offense.” A.R.S. § 13-105(16). Restitution does not
apply to losses incurred by the convicted person, damages for pain and
suffering, punitive damages, or consequential damages. See A.R.S. § 13-
603(C); A.R.S. § 13-105(16). Further, restitution is restricted to economic loss
that directly flows from a defendant’s criminal conduct. See State v.
Wilkinson, 202 Ariz. 27, 29, ¶ 11 (2002). Victims may still seek remedies for
other incurred losses, damage, or injuries through separate civil
proceedings, where defendants may avail themselves of their right to a jury
trial and raise defenses such as comparative negligence or assumption of
risk. See Ariz. Const. art. 2, § 23.




4      Accordingly, the statutory cap in this case is in contrast to case-
specific, court-imposed procedures addressing restitution, such as
deadlines for restitution claims and restitution limits in written plea
agreements.


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                             STATE v. PATEL
                            Opinion of the Court

                               CONCLUSION

¶15           Based on the forgoing, we conclude the right to restitution
guaranteed in the Victims’ Bill of Rights in the Arizona Constitution equally
applies to victims injured or killed by a defendant who is convicted of
violating A.R.S. § 28-672(A). As such, A.R.S. § 28-672(G), which purports
to cap restitution resulting from such a crime, violates the Arizona
Constitution. See Ariz. Const. art. 2, § 2.1(A). For these reasons, we reverse
the superior court’s restitution order, vacate any resulting restitution
judgment, and reinstate the municipal court’s restitution order of
$61,191.99.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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