Page 1
Court of Appeal:
Restitution for Lost Wages Due to Slaying Victim’s Mother
Opinion Says Immediate Family Member Is Entitled to Recover Following Employment Termination Caused by Conduct Attributable to Grief
By a MetNews Staff Writer
Div. One of the First District Court of Appeal has held that lost wages incurred by a slaying victim’s immediate family member following the relative’s termination from employment may properly be recovered as restitution against the convicted killer where the firing was directly and proximately caused by grief-induced following the killing.
The question arose after a request for restitution was made by the victim’s mother, who was fired from her job as a caregiver for disabled mentally ill adults in 2017 following an incident where she stepped on a client’s foot after he kicked her, spat on her, and brought up the matter of her slain son.
Presiding Justice Jim Humes wrote the unpublished opinion, filed Monday, affirming the restitution order by Solano Superior Court Judge Robert S. Bowers. Justice Kathleen M. Banke and former Presiding Justice Peter J. Siggins (now retired), sitting by assignment, joined in the opinion.
2017 Shooting
Appealing the order was Kevin Polk, who pled guilty to voluntary manslaughter (although the opinion makes references to a “murder”) following a shooting during a February 2017 gathering for a rap video recording in a Vallejo park. He was sentenced to nine years in prison.
The victim’s mother suffered significant physical and mental harm following the death of her son. She had trouble sleeping and eating, lost 35 pounds, and was diagnosed with anxiety and depression.
She lost her job, which she had held for nine years without incident, a few months after the shooting. She sought $68,672 in lost wages as restitution—which represented $98,000 for the time she was unemployed minus $29,328 she received in disability payments—claiming her grief over the death of her son led to her termination.
She was ultimately rehired by her employer in October 2019.
Polk argued that restitution was inappropriate as the shooting was not the proximate or direct cause of her termination and that she should instead seek damages from her employer for wrongful termination.
Bowers disagreed, finding that grief caused the conduct resulting in the termination of employment, and granted the request. She ordered that Polk pay the full amount requested.
Statutory Framework
Penal Code §1202.4(f)(3) provides that the court shall order that a defendant make restitution in an 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.” Subsection (D) specifically permits the recovery of lost wages.
Sec. 1202.4(k)(1) provides that “victim” under the statute includes “[t]he immediate surviving family of the actual victim.”
Humes acknowledged that case law establishes that direct and proximate causation are both at play in the words “as the result of” in §1202.4(f)(3).
He explained that an act is a direct cause if it is a necessary antecedent of an event and said that proximate cause is a limit on liability, ensuring that a defendant does not face liability for remote consequences.
Direct Causation
Polk asserts that the prosecution failed to provide evidence that “but for her son’s death” the victim’s mother would not have stepped on the foot of the client and been terminated. The justice agreed that the “but for” rule generally applies to determine direct causation, however he noted that the “substantial factor” analysis plays into its application.
Under this analysis, the defendant’s conduct must have had such an effect in producing the harm that a reasonable person would consider it the cause.
Applying this standard, Humes wrote:
“[W]e conclude there was sufficient circumstantial evidence of direct causation. The victim’s mother had worked for her employer for nearly 10 years without apparently ever having been previously disciplined. Four months after her son’s murder, a special-needs client kicked and spit on the victim’s mother and mentioned her son. The reaction of the victim’s mother to put her foot on the foot of the client to stop the kicking, while perhaps inappropriate, was done while she was stressed, sleep deprived, and otherwise suffering because of her trauma related to the murder.”
Proximate Causation
The jurist pointed out that courts have adopted the “substantial factor” analysis in proximate causation cases as well. He said “to overcome the presumption that a victim’s loss was ‘a direct result of the defendant’s criminal conduct,’” a defendant must show that the crime played at most only a small or theoretical part in bringing about the injury.
He added that for an intervening cause to eliminate liability, it must be an unforeseeable and extraordinary occurrence.
Turning to the facts before him, Humes opined:
“Polk’s criminal conduct played far more than an infinitesimal or theoretical role in causing the victim’s mother to suffer in a way that would negatively affect her interactions with her clients, thus leading to the loss of her job and the wages she otherwise would have earned. Again, there was no real dispute that she suffered the trauma that is inherent when a parent loses a child to violence…, and it could be reasonably contemplated…that this trauma would lead her to interact in difficult work situations—especially ones involving remarks about her son—in a way that she otherwise would not have.”
No Specific Finding
Polk also objects to the order on the grounds that it did not make a specific finding of proximate causation. Unpersuaded, Humes wrote:
“[T]here is no dispute how the trial court calculated the restitution award, which consisted of the victim’s mother’s lost wages, minus money she had received in disability payments. Although the court’s award did not specifically use the term proximate cause, it is clear that the court considered the issue since the parties argued about causation following the mother’s testimony.”
He continued:
“Polk’s attorney questioned whether the mother’s termination was attributable to Polk or to the mother’s employer. The court observed that the mother was ‘probably not in a good place to be caring for someone else’ because of her grief and that such grief might have led others ‘to do more self-injurious things tha[n] lose their jobs and they are doing those things because they are in pain.’ In other words, it was the mother’s grief over the murder of her son that caused her—someone with ‘no history or track record [of being] some terrible employee’—to act in a way that caused her to lose her job.”
Comparative Negligence
Humes rejected Polk’s argument that Bowers erred by failing to consider the mother’s comparative negligence in losing her job and should have reduced the award on that basis. He said:
“And although…trial courts have the discretion to apply principles of comparative negligence…they are compelled to do so. There was no reason to do so here, where the trial court observed that ‘[i]t sounds like an otherwise nice, older lady who’s doing this work, who’s in this traumatic, terrible situation, obviously, not doing well at all,’ and that it would have been reasonable for her to have engaged in worse behavior (such as ‘[being] out using and doing all these other things’) under the circumstances. The trial court’s reasoning certainly did not amount to an abuse of discretion.”
The case is People v. Polk, A166895.
Copyright 2024, Metropolitan News Company