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IN THE COURT OF APPEALS OF IOWA No. 1-116 / 10-0936 Filed May 11, 2011 STATE OF IOWA, Plaintiff-Appellee, vs. JAMIE CARL MCFARLAND, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Cerro Gordo County, John S. Mackey, Judge.

The defendant appeals the restitution order entered upon his conviction and sentence for burglary in the first degree. AFFIRMED.

Jeffrey M. Lipman, Des Moines, for appellant. Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, Paul L. Martin, County Attorney, and Carlyle D. Dalen, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., Potterfield, J., and Miller, S.J.* Tabor, J., takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2011).

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MILLER, S.J. Jamie McFarland pled guilty to burglary in the first degree, a class "B" felony, in violation of Iowa Code sections 713.1 and 7.13.3 (2007) (aiding and abetting a person or persons who, without right, license, or privilege to do so and while in possession of a dangerous weapon, entered an occupied structure, not open to the public, in which one or more persons are present, with intent to commit a felony, assault, or theft). In a written plea of guilty, signed and filed the same day as an in-court guilty plea proceeding, McFarland acknowledged that he would "be ordered to make restitution for damages resulting directly from [the Burglary in the First Degree] to the victim." In sentencing McFarland, the district court ordered him to pay restitution of $150,000, pursuant to Iowa Code section 910.3B, jointly and severally with the two co-defendants whom he aided and abetted. McFarland appeals, asserting the court erred in concluding that section 910.3B applied to his acts giving rise to his conviction for burglary in the first degree. We affirm. I. Background Facts. Certain facts are established by McFarland's written plea of guilty; the in court plea colloquy and plea proceeding; and the minutes of evidence, which McFarland acknowledged to be true. On August 8, 2008, McFarland and co-defendant Damion Seats were involved in a fight with Reuben Ramirez and Gabina Labra at 1504 North Adams in Mason City, a residence at which Ramirez was a renter. About two weeks later, in the evening hours of August 23, McFarland, Seats, and co-defendant

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Andre Wells Jr. were present at a party at the mobile home of a Nate Lee in Mason City. In the late evening hours of August 23, or early morning hours of August 24, Andre Wells Jr. acquired a .25 caliber pistol from the home of his father, Andre Wells Sr. Thereafter the three co-defendants were together in the

bathroom at Nate Lee's residence, at which time the pistol's magazine was loaded with ammunition, the magazine was placed in the pistol, and a bullet was loaded into the pistol's firing chamber. The three co-defendants discussed going to the 1504 North Adams residence of Ramirez and their purpose for doing so. McFarland, who had a vehicle present, agreed to drive the three to 1504 North Adams. The pistol was placed in a boxing glove in the trunk of McFarland's vehicle, and McFarland drove to 1504 North Adams in the early morning hours of August 24. After arriving at Ramirez's residence, the three co-defendants got out of the vehicle and McFarland opened the trunk to retrieve the pistol. Co-defendants Seats and Wells Jr. concealed their faces, took the pistol, and entered Ramirez's residence without permission. McFarland waited their return to his vehicle. Ramirez had apparently left to see his girlfriend shortly before the three co-defendants arrived. Isadoro Cervantes-Erreguin was sleeping on a sofa in the living room. Seats, perhaps believing that Cervantes-Erreguin was Ramirez,

approached the sofa and shot Cervantes-Erreguin five times with the .25 caliber pistol, killing him. McFarland and his two co-defendants then fled, with

McFarland driving his vehicle and his co-defendants and the pistol aboard.

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McFarland drove to Seats's sister-in-law's apartment, near which Seats then hid the pistol. The three co-defendants were jointly charged with murder in the first degree and burglary in the first degree arising out of the events of early August 24. From the prosecuting attorney's statement at McFarland's sentencing

hearing, it appears that co-defendant Seats was convicted of murder in the first degree, and co-defendant Wells Jr. was convicted of involuntary manslaughter. McFarland pled guilty to and was convicted of aiding and abetting burglary in the first degree. As noted above, on appeal McFarland claims the district court erred in ordering him to pay restitution of $150,000 jointly and severally with his two codefendants. II. Scope of Review. "We review restitution orders for correction of errors at law. When

reviewing a restitution order, we determine whether the court's findings lack substantial evidentiary support, or whether the court has not properly applied the law." State v. Jenkins, 788 N.W.2d 640, 642 (Iowa 2010) (citations and internal quotations omitted). We also review issues of statutory interpretation and

application for correction of errors at law. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000). III. Discussion. Iowa Code section 910.3B(1) provides, in relevant part: In all criminal cases in which the offender is convicted of a felony in which the act or acts committed by the offender caused

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the death of another person . . . the court shall . . . order the offender to pay at least one hundred fifty thousand dollars in restitution to the victim's estate if the victim died testate. If the victim died intestate, the court shall order the offender to pay the restitution to the victim's heirs at law . . . .1 (Emphasis added). McFarland initially points out that at sentencing both the prosecutor and defense counsel opined that section 910.3B did not apply. He appears to argue that the court therefore erred in ordering the $150,000 in restitution. disagree. McFarland's written plea of guilty indicates an understanding on his part that the State was not then requesting restitution from him. It further indicates, however, that McFarland "understand[s] any plea agreement or sentencing recommendation is not binding on the court and, at the time of sentencing, the court can impose any sentence it finds appropriate, up to the maximum penalties permitted by law." In addition, as noted above, McFarland's written plea of guilty acknowledges that he will be ordered to make restitution for damages resulting directly from the crime to which he is pleading guilty. Restitution is a phase of sentencing. State v. Alspach, 554 N.W.2d 882, 883 (Iowa 1996). When the circumstances described in section 910.3B(1) (a defendant convicted of a felony in which the act[s] committed by the defendant caused the death of another person) apply, the district court has a mandatory duty to impose the restitution award of $150,000 called for by the statute. See State v. Klawonn, 609 N.W.2d 515, 521-22 (Iowa 2000) (holding the use of the
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We

The district court ordered the $150,000 paid to Isadoro Cervantes-Erreguin's heirs at law. No claim is made that Cervantes-Erreguin died testate.

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word "shall" in section 910.3B(1) creates a mandatory duty); see also Jenkins, 788 N.W.2d at 643-44 (holding the use of the word "shall" in section 910.2 left judges no discretion to decline to impose restitution). We conclude, as the district court apparently did, that the mere fact the prosecutor and defense counsel were both of the opinion section 910.3B(1) did not apply to the facts, did not preclude the court from ordering the restitution in question if the court correctly found that section 910.3B(1) did apply. McFarland asserts that section 910.3B(1) does not apply to the facts. He argues the district court erred in finding that his acts were a proximate cause of Cervantes-Erreguin's death, stating: USING A PROXIMATE CAUSE ANALYSIS[,] DEFENDANT'S ACTIONS DID NOT CAUSE THE DEATH OF ANOTHER PERSON In order for the restitution provided for by section 910.3B(1) to be imposed, "the commission of the offense must have been the proximate cause of the victim's death." State v. Izzolena, 609 N.W.2d 541, 553 (Iowa 2000). The definition of "proximate cause" in criminal cases is identical to its definition in civil cases. State v. Hubka, 480 N.W.2d 867, 869 (Iowa 1992). A defendant is

criminally responsible for a death if his acts were a proximate cause of the death. See id. ("[A] defendant cannot escape criminal responsibility for homicide merely because factors other than his acts contributed to the death, provided such other factors are not the sole proximate cause of death."); see also State v. Wissing, 528 N.W.2d 561, 565 (Iowa 1995) (holding that for a factor other than the defendant's acts to relieve the defendant of criminal responsibility for homicide, the other factor must be the sole proximate cause of death).

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Until recently, Iowa's rule was that a defendant's conduct was a proximate cause of death if (1) the conduct was a substantial factor in bringing about the death, and (2) no rule of law relieved the defendant of liability because of the manner in which the defendant's conduct resulted in the death. See, e.g.,

Hubka, 480 N.W.2d at 869 (citing the civil, dram shop case Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 349 (Iowa 1991). Proximate cause was based on the concept of foreseeability. State v. Ayers, 478 N.W.2d 606, 608 (Iowa 1991). Quoting 40 Am. Jur. 2d Homicide

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