                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                 CARLOS MORENO LEAL, Appellant.

                         No. 1 CA-CR 18-0844
                           FILED 11-21-2019


            Appeal from the Superior Court in Yuma County
                       No. S1400CR201701293
               The Honorable Brandon S. Kinsey, Judge

                             AFFIRMED


                              COUNSEL

Yuma County Public Defender’s Office, Yuma
By Eugene Marquez
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee



                              OPINION

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in
which Judge Jennifer M. Perkins and Judge Paul J. McMurdie joined.


T H U M M A, Judge:
                              STATE v. LEAL
                            Opinion of the Court

¶1            Defendant Carlos Leal appeals a restitution order requiring
him to pay $5,500 in funeral expenses for a man he shot and killed in a bar.
Leal does not challenge his murder conviction or resulting prison sentence.
He does not argue the funeral expenses were unreasonable or unpaid.
Instead, because the restitution award went to the Quechan Indian Tribe,
rather than to a member of the victim’s family, Leal argues the order was
fundamental error. Because Leal has shown no error, the restitution order
is affirmed.

                 FACTS AND PROCEDURAL HISTORY

¶2             In December 2017, while sitting at a bar, Leal shot the victim
in the face at point-blank range, killing him. After Leal walked out of the
bar, he was arrested, and a jury later convicted him of first-degree murder.
The court sentenced him to natural life in prison.

¶3            The presentence report requested $5,500 in restitution for
funeral expenses. The report stated the Tribe paid the funeral expenses and
attached a general ledger showing payment of that amount by the Tribe to
Yuma Mortuary & Crematory. At sentencing, without objection or
argument, the court ordered Leal to pay $5,500 in restitution to the Tribe.
This appeal followed.

                               DISCUSSION

¶4            Leal challenges the restitution order, asserting the Tribe is not
a victim and that the funeral expenses were indistinguishable from the
routine expenses of the Tribe. Because Leal did not object in the superior
court, this court reviews for fundamental error resulting in prejudice. See
State v. Escalante, 245 Ariz. 135, 140 ¶ 12 (2018). Issues of statutory
interpretation are reviewed de novo. State v. Lantz, 245 Ariz. 451, 453 ¶ 9
(App. 2018).

I.     The Tribe Properly Could Be Awarded Restitution for Funeral
       Expenses.

¶5            Leal argues the Tribe must be a victim to collect restitution,
relying exclusively on A.R.S. §§ 13-603(C) and 13-4401(19) (2019).1 As to
A.R.S. § 13-4401(19), Leal shows with some force that the Tribe may not
have qualified as a “victim” for purposes of notice, the right to be heard and
other provisions under Chapter 40 (Crime Victims’ Rights) of A.R.S. Title

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                      2
                                STATE v. LEAL
                              Opinion of the Court

13. See A.R.S. §§ 13-4401 to -4443. That fact, however, does not mean the
restitution order was improper.

¶6           The general statute authorizing disposition components for
criminal convictions states:

               the court shall require the convicted person to
               make restitution to the person who is 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
               and in the manner as determined by the court
               or the court’s designee pursuant to chapter 8 of
               this title.

A.R.S. § 13-603(C). Leal argues this provision, using the Chapter 40
definition of “victim,” means the Tribe cannot seek or receive restitution.
A.R.S. § 13-4401(19) (“‘Victim’ means a person against whom the criminal
offense has been committed . . . or if the person is killed or incapacitated, the
person’s spouse, parent, child, grandparent or sibling, . . . or any other
lawful representative of the person . . . .”); see generally Ariz. Const. art. II, §
2.1(C) (defining “victim” for the Victims’ Bill of Rights). Leal’s argument
fails.

¶7            Criminal restitution orders were issued in Arizona years
before being expressly authorized by statute. See State v. Beulna, 25 Ariz.
App. 414, 417 (1975) (“The practice of requiring restitution to crime victims
is not new.”). Arizona added statutory restitution in 1977. Laws 1977 ch.
142 § 48. There can be no credible argument that the Victims’ Bill of Rights,
enacted in 1990 to constitutionalize victims’ rights, somehow limited the
authority to order restitution. See Ariz. Const. art. II, § 2.1(A)(8) (passed by
voters in 1990); State v. Guilliams, 208 Ariz. 48, 52 ¶¶ 14-15 (App. 2004) (Even
a “‘victimless crime’ may still support an award of restitution so long as the
criminal act directly results in economic damages to the person or entity
receiving the award.”); see also State v. Patel, ___ Ariz. ___, ___ ¶ 12 2019 WL
5382503, at *3 (Ariz. App. Oct. 22, 2019) (discussing history of the Victims’
Bill of Rights and “find[ing] it implausible that the electorate intended to
only guarantee a victim partial restitution”).




                                         3
                               STATE v. LEAL
                             Opinion of the Court

¶8             Leal focuses on A.R.S. § 13-603(C). As recognized by the
Arizona Supreme Court decades ago, however, criminal restitution also is
authorized by Chapter 8 of A.R.S. Title 13. See State v. King, 157 Ariz. 508,
509–10 (1988) (noting restitution may be ordered under either A.R.S. § 13-
603(C) or § 13-804); Patel, ___ Ariz. at ___ ¶ 4, 2019 WL 5382503, at *1 (same);
State v. Ferguson, 165 Ariz. 275, 276–77 (App. 1990) (same). The availability
of restitution under Chapter 8 is discretionary but broad:

              On a defendant’s conviction for an offense
              causing economic loss to any person, the court,
              in its sole discretion, may order that all or any
              portion of the fine imposed be allocated as
              restitution to be paid by the defendant to any
              person who suffered an economic loss caused
              by the defendant’s conduct.

A.R.S. § 13-804(A); cf. A.R.S. § 13-603(C) (“the court shall” order “restitution
to the person who is the victim”).

¶9             Cases decided before and after King have not always clearly
recognized these two different statutory bases for restitution. See State v.
Merrill, 136 Ariz. 300, 301 (App. 1983) (broadly construing “victim” in
A.R.S. § 13-603(C) to include insurer of burglary victim); see also State v.
Morris, 173 Ariz. 14, 16 (App. 1992) (following Merrill and affirming, under
A.R.S. § 13-603(C), restitution to victim’s insurer); State v. Blanton, 173 Ariz.
517, 519-20 (App. 1992) (noting defendant’s concession that he “may have
been liable to make restitution to [decedent’s] heirs pursuant to A.R.S. §§
13-603(C) and 13-804;” following Merrill and affirming, under A.R.S. § 13-
603(C), restitution to insurer for victim’s funeral expenses); State v. Prieto,
172 Ariz. 298, 299 (App. 1992) (following Merrill and affirming, under A.R.S.
§ 13-603(C), restitution to state agency for services provided to victim of
child molestation and her mother); State v. French, 166 Ariz. 247, 249 (App.
1990) (distinguishing Merrill and, without citing A.R.S. § 13-804, finding
motel was not victim eligible for restitution under A.R.S. § 13-603(C) for
damage caused by defendant); State v. Whitney, 151 Ariz. 113, 113–1 (App.
1985) (without citing A.R.S. § 13-804, finding owner of car involved in a
traffic accident with defendant, who was convicted of stealing another car
involved in the accident, was not a victim eligible for restitution under
A.R.S. § 13-603(C)).




                                       4
                              STATE v. LEAL
                            Opinion of the Court

¶10            King, however, remains valid and binding on this court. See
City of Phoenix v. Leroy’s Liquors, Inc., 177 Ariz. 375, 378 (App. 1993) (noting
this court has “no authority to overrule, modify, or disregard” supreme
court decisions). Moreover, legislation after Merrill confirms King’s
directive that restitution may be ordered under either A.R.S. § 13-603(C) or
§ 13-804. In 1996, the Legislature codified Merrill by amending A.R.S. § 13-
804(E) to read: “If a victim has received reimbursement for the victim’s
economic loss from an insurance company, . . . or any other entity, the court
shall order the defendant to pay the restitution to that entity.” 1996 Ariz.
Sess. Laws 1996 Ch. 117 § 1. This amendment further recognizes King’s
declaration that restitution may be awarded under either A.R.S. § 13-603(C)
or § 13-804.

¶11            Turning then to § 13-804, when calculating restitution, “the
court shall consider all losses caused by the criminal offense . . . for which
the defendant has been convicted.” A.R.S. § 13-804(B). After that
consideration, the court “shall enter a restitution order for each defendant
that sets forth all of the following:

              1.     The total amount of restitution the
                     defendant owes all persons.

              2.     The total amount of restitution owed to
                     each person.

              3.     The manner in which the restitution is to
                     be paid.”

A.R.S. § 13-804(H) (emphasis added). These directives do not focus on
“victim” but, instead on “person,” which is broadly defined as including
“an enterprise, a public or private corporation, an unincorporated
association, a partnership, a firm, a society, a government, a governmental
authority or an individual or entity capable of holding a legal or beneficial
interest in property.” A.R.S. § 13-105(30); see State v. Proctor, 196 Ariz. 557,
565–66 ¶ 32 (App. 1998) (noting A.R.S. § 13–804(A) “contemplate[s] a wider
group of persons to whom a defendant may be ordered to pay restitution
than § 13–603(C)”). Leal does not claim that the Tribe did not meet the
requirements of A.R.S. § 13-804 or the broad definition of person in A.R.S.
§ 13-105(30). Given A.R.S. § 13-804, the superior court had the authority to
award restitution to the Tribe, meaning it did not fundamentally err in
making such an award.




                                       5
                               STATE v. LEAL
                             Opinion of the Court

II.    The Funeral Expenses Awarded as Restitution are Not Routine
       Government Expenses too Attenuated from the Murder.

¶12            Leal argues the funeral expenses here are routine government
expenditures not eligible for restitution. A person convicted of a crime is
required to make restitution “in the full amount of the economic loss as
determined by the court.” A.R.S. § 13-603(C). “Economic loss,” in turn, is
defined as “any loss incurred by a person as a result of the commission of
an offense,” including “losses that would not have been incurred but for
the offense.” A.R.S. § 13–105(16). To be recoverable as restitution: “(1) the
loss must be economic, (2) the loss must be one that the victim would not
have incurred but for the criminal conduct, and (3) the criminal conduct
must directly cause the economic loss.” State v. Madrid, 207 Ariz. 296, 298 ¶
5 (App. 2004) (citing State v. Wilkinson, 202 Ariz. 27, 29 ¶ 7 (2002)). However,
“[r]estitution is not available for monetary expenses incurred as part of a
routine function or for consequential damages that are too attenuated from
the crime.” State v. Linares, 241 Ariz. 416, 418 ¶ 9 (App. 2017); see also
Guilliams, 208 Ariz. at 55 ¶ 23 (reversing portion of restitution award
indistinguishable from “the normal costs” of government functions, like
investigating crime).

¶13            The three prongs articulated in Madrid are clearly satisfied
here: (1) the Tribe paid $5,500 in funeral expenses; (2) but for Leal’s murder
of the victim, there would have been no funeral expenses; and (3) the
murder directly caused the funeral expenses. See State v. Spears, 184 Ariz.
277, 292 (1996) (funeral expenses recoverable as restitution); Blanton, 173
Ariz. at 520 (third party can collect funeral expenses as restitution). Leal
does not genuinely dispute any of these factors. Instead, he relies on A.R.S.
§ 36-831(E) to argue burial costs are routine functions for the Tribe.
However, contrary to Leal’s argument, A.R.S. § 36-831(E) requires notice to
federally recognized tribes of a tribal member’s death and affords “the tribe
the opportunity to provide for the person’s burial or other funeral and
disposition arrangements.” Whether this statute applies, or was complied
with here, does not impact the propriety of the restitution order.

¶14            The victim’s family, and even a reimbursing insurer, would
have been entitled to restitution had they paid for the funeral expenses. See
A.R.S. § 13-804(E) (“If a victim has received reimbursement for the victim’s
economic loss from an insurance company, . . . or any other entity, the court
shall order the defendant to pay the restitution to that entity.”); Spears, 184
Ariz. at 292; Blanton, 173 Ariz. at 519. That the Tribe did so directly does not,
somehow, make the restitution order here improper. See Prieto, 172 Ariz. at



                                       6
                              STATE v. LEAL
                            Opinion of the Court

299 (holding legal entity that “stands in the shoes of the victim” is entitled
to restitution).

                               CONCLUSION

¶15           Leal’s conviction and sentence, including the restitution
ordered, are affirmed.




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




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