Humes

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 116 et seq. Honorable Philip Moscone, San Francisco County Superior Court. (No. 214366) Counsel for Appellant: Donn Ginoza, San Francisco, under appointment by the First District Appellate Project

Counsel for Respondent: Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Allan Yannow, Deputy Attorney General

Humes, J.

Defendant Christian Arce pleaded guilty to assault with a firearm. He appeals from a postjudgment order requiring him to pay restitution to compensate the victim for economic losses. He contends that the order must be reversed because (1) the People waived their ability to seek such restitution; (2) the portion of the order compensating the victim for future lost wages lacks a rational basis; and (3) his trial counsel was ineffective by not seeking a discount of that portion of the order to account for its present-day value. We reject these claims and affirm.

I.

Factual and Procedural Background

In September 2009, Arce shot the victim in the hand after an argument outside a nightclub in San Francisco. Arce fled, but he was soon apprehended. He was charged with felony counts of attempted murder and assault with a firearm and misdemeanor counts of unlawful possession of a loaded firearm and resisting, obstructing, or delaying a peace officer. Several enhancements were also alleged. In connection with the attempted-murder charge, Arce was alleged to have personally and intentionally discharged a firearm. In connection with the assault charge, Arce was alleged to have personally inflicted great bodily injury and to have personally used a firearm. Arce eventually pleaded guilty to assault with a firearm, and he admitted the allegation that he personally inflicted great bodily injury. The remaining charges and allegations were dismissed.

In February 2012, Arce was sentenced to five years in prison. At the sentencing hearing, the trial court imposed a restitution fine of $200 under section 1202.4, subdivision (b) and other fines and fees, but the People did not seek, and the court did not award, direct restitution.

Approximately nine months later, the People sought direct restitution, and the trial court set a hearing to consider the request. In their pre-hearing brief, the People requested restitution “in the amount established at the hearing” to compensate the victim for medical bills and for past and future lost wages because the hand injury caused the victim to lose his job. Arce's response brief claimed that “[n]o evidence exist[ed] to show that any injuries prevented [the victim] from working” or “that those injuries were caused by [Arce].”

The hearing was held in February 2013. The victim testified he had worked as a window installer and warehouse manager for Home Depot and a predecessor company it had bought. A Home Depot manager testified that the victim began working for Home Depot in 2006, stopped working as of the day he was shot, and remained on leave until August 2010, when the company ended the employment relationship. The manager testified the victim's gross pay was $7,037 in 2006, $19,049 in 2007, $41,739 in 2008, and $35,651 in 2009. According to the victim, his annual gross pay increased over that period due to his good performance.

The victim testified that his work at Home Depot was “very physical” and involved lifting windows in and out of trucks and carrying them to and from sites. The injury to his hand left him unable to continue working because he could no longer pick up large windows. Although he asked Home Depot for other work, there was none available that he was physically able to perform. He received a doctor's note stating he was unable to work and, although at some point he was released for “light duty,” he was never given a “return to work date.” At the time of the restitution hearing, he remained unable to make “a full fist” with the injured hand, and he was still in pain. He had undergone seven surgeries on his hand and was facing yet another one, which he hoped would be successful and enable him to make a fist.

The victim testified that, although he had recently started to receive disability payments of $1,300 per month, he was not paid while on leave from Home Depot and had not earned any income since being shot. He had not applied for other jobs because the positions he saw “that require[d] less physical [work required] education and training, ... which [he] didn't have at the time.” He had recently begun attending community college to “acquire ... different skills” that would allow him to “try[ ] to do something other than physical work.”

The People sought direct restitution for nine years of lost wages: three and one-half years in past wages lost between the shooting and the hearing, and five and one-half years in future lost wages. The prosecutor argued there was “a rational basis” for awarding five and one-half years' worth of future lost wages because that period represented the time “before [the victim will be] able to complete his future training and get enough experience and a new job that he would be back at that earning level of $41,000 a year, or the equivalent at that point.” Arce's counsel responded that “[t]here's no evidence that [the victim]'s been unable to work as a result of this injury” and that any award of lost wages at $41,000 a year was “mere speculation.” The trial court continued the hearing to March 2013 for further evidence and argument.

At the next hearing, the prosecutor conceded that the evidence failed to support an award for medical expenses but reiterated the People's demand for lost wages. He argued the victim was “overly optimistic that he [would] find employment again,” and that “even if he is eventually able to find a job, it will take a significant amount of training for him, and even after that, he may not find anyone to employ him. If he does, it may only be at a minimum wage job. [¶] It may be a long time before he's ever able to get up to the amount of almost $42,000 a year that he was making before this happened.” Arce's counsel responded that the trial court should deny an award of lost wages because “there is no evidence before the court in the form of medical or scientific evidence to show that [the victim] was unable to work as a result of his medical condition.... [¶ ... ¶] ... [T]here's no vocational rehabilitation testimony. There's no economist testimony to show that any of the [$]41,000 that he made in 2008 couldn't have been made in some other capacity.”

The trial court awarded $289,851 in total direct restitution, plus interest. In doing so, it observed, based on the nature of the injury and the victim's testimony, that there was “a fairly good indication that this is something that's going to continue.” In accepting the prosecutor's projected time frame for the victim's economic harm, the court stated, “I really can't dispute that[,] because [the victim]'s been on disability for three and a half years, and it doesn't seem that his hand has come along all that far as far as being rehabilitated. I tend to agree that he might be very optimistic in his recovery time.” To arrive at the award, the court used as a base salary $41,739, the amount the victim earned in the last full year he worked. It apparently multiplied this base salary by 3.5 to determine past lost wages of $146,086.50 and by 5.5 to determine future lost wages of $229,564.50. It then apparently subtracted from the future portion of the award $85,800, representing the amount in disability payments the victim would receive over the five and one-half years at a rate of $1,300 a month. Thus, the final award was for $146,086.50 in past lost wages and $143,764.50 in future lost wages.

Arce timely appealed.

II.

Discussion

A.–B.
C. Arce Has Not Established that He Received Ineffective Assistance of Counsel.

Arce contends that his trial counsel was ineffective because counsel did not seek a discount of the portion of the award compensating the victim for future lost wages to account for its present-day value. We are not persuaded.

Arce's argument relies on People v. Pangan (2013) 213 Cal.App.4th 574, 152 Cal.Rptr.3d 632 (Pangan ). In Pangan, the Fourth District Court of Appeal concluded that the defendant's trial counsel was ineffective by not requesting that the trial court account for “the time value of money” in calculating a portion of a restitution award that, like the portion of the award at issue here, was to compensate the victim for a “diminished or lost stream of future payments.” ( Id. at pp. 576–577, 152 Cal.Rptr.3d 632, italics omitted.) In the Court of Appeal's view, recognizing and applying the concept of the time value of money—the principle that the current value of a right to receive a series of future payments is ordinarily less than the sum of those payments—is necessary in calculating a victim's future economic loss and “is just not all that hard.... For better or worse, criminal law victim restitution defense entails at least some acquaintance with the idea of the time value of money.” ( Id. at pp. 581, 583, 152 Cal.Rptr.3d 632, italics in original.) The Court of Appeal concluded that counsel was ineffective in not seeking a time-value discount because whether the trial court “used a very low discount rate as a reflection of the relatively low rates of inflation and mortgage interest rates since 2008 ... [o]r ... chose[ ] a higher rate based on other market metrics[,] ... a full value award was too high,” and the Court of Appeal could “see no way in which [counsel] had anything to lose by raising the need to discount [the award] to present value.” ( Id. at p. 584, 152 Cal.Rptr.3d 632.) As the record is here, the record in Pangan was silent about why the defendant's trial counsel did not ask for such a discount. For reasons we shall explain, we disagree with Pangan's suggestion that a court considering such a record on direct appeal can decide as a matter of law that counsel was ineffective for not having sought a time-value discount.

The law governing claims of ineffective assistance of counsel is well-settled. The federal and state constitutions guarantee criminal defendants the right to competent representation by counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Vines (2011) 51 Cal.4th 830, 875, 124 Cal.Rptr.3d 830, 251 P.3d 943.) “To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient ... [because] the representation fell below an objective standard of reasonableness under prevailing norms” and that the deficient performance was prejudicial because “there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92–93, 24 Cal.Rptr.3d 507, 105 P.3d 1099.)

In considering such a claim, “a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009, 161 Cal.Rptr.3d 1, 305 P.3d 1175.) “ ‘ “Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.” ’ ” (People v. Stanley (2006) 39 Cal.4th 913, 954, 47 Cal.Rptr.3d 420, 140 P.3d 736.) Because the presumption of counsel's competence can typically be rebutted only with evidence outside the record, ineffective-assistance claims are normally raised in habeas corpus proceedings where such evidence can be presented. (See Mai, at p. 1009, 161 Cal.Rptr.3d 1, 305 P.3d 1175.) A reversal on direct appeal is warranted only if “(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” ( Ibid.) Because the record here is silent as to why Arce's trial counsel did not seek a time-value discount of the award for future lost wages, only the third circumstance justifying a reversal on direct appeal—that there can be no satisfactory explanation—is potentially applicable. We therefore turn to consider this justification, and we conclude that there could be satisfactory explanations for why Arce's counsel did not ask for a time-value discount.

To begin with, Arce's trial counsel may have not sought a time-value discount because of the applicable evidentiary burdens. To support any such request, Arce would have been required to present evidence, most likely through expert testimony, of appropriate measures for the discount—such as the projected rates of interest and inflation (or deflation). (See Schiernbeck v. Haight (1992) 7 Cal.App.4th 869, 877, 9 Cal.Rptr.2d 716; Hurlbut v. Sonora Co mm un i ty Hospital (1989) 207 Cal.App.3d 388, 409, 254 Cal.Rptr. 840.) Even though normal evidentiary rules are relaxed in restitution proceedings, these measures cannot be pulled out of thin air. (See People v. Prosser (2007) 157 Cal.App.4th 682, 692, 68 Cal.Rptr.3d 808.) Arce's counsel, who was retained, may have concluded that the cost of presenting evidence to support the request was not worth a speculative reduction or would be greater than any potential reduction. Or he may have simply believed that raising the issue would undercut his primary argument that no future lost wages could be awarded.

Arce's counsel also may have not sought a time-value discount because the amount of restitution sought by the prosecution was relatively low, and he believed that challenging it might lead to increased scrutiny and a higher award. He may have believed, for example, that if the trial court reexamined the victim's future lost earnings it would increase its base amount of the victim's projected annual earnings ($41,739) in light of the evidence that the victim's earnings had been progressively rising. Or he may have believed that the court would increase the award by adding time to the multiplier of the prosecution's projected five and one-half year recovery period. He also may have understood that the time-value principle worked against Arce to the extent that its application to the future disability benefits would have reduced the offset Arce received for them. Accepting an award that is favorable in some aspects may make particular sense when the award is not likely to be reduced by much because the potential discount rate is low.

We recognize that Pangan rejected a similar proposed explanation. There, the Attorney General argued that trial counsel might not have sought a time-value discount “because [the award] represented ‘a good deal,’ ” since the award excluded the victim's claim for another sizeable loss. (Pangan, supra, 213 Cal.App.4th at p. 584, 152 Cal.Rptr.3d 632.) In dismissing this explanation, the court found that “there [was] nothing in the record to suggest that exclusion was an oversight or that the [trial] court would punish [the defendant] for bringing it up.” (Ibid.) The court added, “We see no way in which [the defendant]'s trial attorney had anything to lose by raising the need to discount the [award for future economic loss] to present value.” (Ibid.) But we do not believe that a record's silence on the possible consequences of raising an issue establishes that negative consequences were impossible. We conclude that trial counsel here could have reasonably believed that Arce did have something to lose because the trial court might have increased its award for future lost wages.

Because it is possible that Arce's trial counsel had a rational tactical ground for not seeking a time-value discount, Arce's claim of ineffective assistance of counsel fails.

III.

Disposition

The judgment is affirmed. We concur: Reardon, Acting P.J. Rivera, J.