Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC824142.
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
Defendant Saba Gorjiyazdi pleaded no contest to two counts of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)). The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve one year in county jail and that he submit to warrantless searches. Following a restitution hearing, defendant was ordered to pay $287,705.20 to Mohammad Chaudhry, and $199,142.64 to Mohammad Siddique, the husbands of the two victims.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court erred in its restitution award and that the warrantless search condition is invalid.
For reasons that we will explain, we will affirm the orders awarding restitution and granting probation.
II. FACTUAL AND PROCEDURAL BACKGROUND
Facts
The following facts are taken from the probation officer’s report, which was based on a report by the California Highway Patrol. On August 17, 2008, about 10:20 p.m., defendant was driving a Volkswagen GTI northbound on State Route 9. “After making an illegal passing maneuver, ... defendant rounded a curve at an excessive speed of 60 to 70 [miles per hour] against an advisory of 20 [miles per hour], crossed the double yellow lines into oncoming traffic, and collided” with a Honda Civic. Defendant and a passenger exited the Volkswagen and waited for emergency services. The driver of the Honda, Tahseen Arshad Chaudhry, and her sister, Roohi Siddique, who was a passenger in the Honda, were transported to hospitals where they later died.
Complaint
On November 4, 2008, defendant was charged by complaint with two counts of vehicular manslaughter with gross negligence (§ 192, subd. (c)(1)) for the killings of Tahseen Chaudhry and Roohi Siddique.
Defendant’s Plea
On May 21, 2009, defendant pleaded no contest to both counts in exchange for a “court[] offer” of “a two year top.”
The following exchange took place between counsel and the court before defendant entered his no contest plea:
Sentencing
On July 21, 2009, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve one year in county jail and that he submit to warrantless searches. The court stated that defendant would not be eligible for any early work release programs. The court indicated that it would report the conviction to the Department of Motor Vehicles and defendant faced revocation of his driving privilege. The court awarded a total of two days of custody credit, ordered defendant to pay various fines and fees, and made a general order of restitution. Based on two supplemental memoranda prepared by the probation officer regarding restitution to the deceased women’s husbands, the court indicated that it was going to make an order of “specific restitution” in addition to the general order. Upon defendant’s request, the court set a hearing on the matter. The court thereafter made reference to People v. Giordano (2007) 42 Cal.4th 644 (Giordano) as supportive of some of the restitution being sought by the husbands.
Restitution Hearing
On August 18, 2009, the court held the restitution hearing. Mohammad Siddique, the husband of Roohi Siddique, sought $199,142.64 in restitution. Of this amount, defendant disputed $94,640, which represented the income Roohi Siddique was estimated to have earned had she lived four more years until retirement. Defense counsel requested that the court take living expenses into account in determining the restitution amount. Defense counsel argued that $94,640 for four years was a “gross amount and not a net, ” and that Roohi Siddique would have incurred “living expenses, such as rent and mortgage, transportation, food that would take away from that amount.” Defense counsel asserted that if the court awarded the full amount, it “would not be the actual loss to the family.” Defense counsel stated that “the same argument and reasoning” applied to the Chaudhry family’s claim for lost income of $242,506.80, out of a total claim for $287,705.20 in restitution. He urged the court “to consider the actual amount not just the gross income amount.”
The remainder of the restitution sought by Mohammad Siddique was for funeral, medical, and travel expenses.
Mohammad Chaudhry also sought restitution for medical and funeral expenses.
The prosecutor responded that defendant had failed to meet his burden “to justify or clarify as to what amount... should be offset, if offset by any at all.” The prosecutor indicated that Mohammad Chaudhry was in court and could explain how the lost wages were determined. The court stated: “I don’t think that’s necessary unless [defense counsel] wishes to examine him.”
Defense counsel replied with his understanding of how Tahseen Chaudhry’s gross income was calculated. He then stated that the court should look at the “actual loss to the victim” and that restitution should “make the victim whole and not receive a windfall.”
After the parties submitted the matter, the court stated: “All right. Then taking into consideration the circumstances, taking into consideration the supplemental report that has been prepared rather for purposes of the restitution in this matter, Court is prepared to fix restitution in the amount as requested.” The court awarded restitution of $287,705.20 to Mohammad Chaudhry and $199,142.64 to Mohammad Siddique.
On August 21, 2009, defendant filed a notice of appeal regarding the August 18, 2009 restitution order. On September 2, 2009, he filed an amended notice of appeal regarding the judgment entered on July 21, 2009, and regarding the August 18, 2009 restitution order.
III. DISCUSSION
Restitution
On appeal, defendant contends that the trial court abused its discretion by failing to determine the surviving spouse’s loss of economic support as dictated by Giordano, supra, 42 Cal.4th 644, and instead awarded the future lost earnings of the decedents. Defendant also argues that “the restitution order for future lost earnings is not supported by substantial evidence.”
Loss of Economic Support
The California Constitution provides that crime victims have a right to restitution when they suffer losses as a result of criminal activity. (Cal. Const., art I, § 28, subd. (b)(13)(A) & (B); see Giordano, supra, 42 Cal.4th at p. 652 [discussing former Cal. Const., art. I, § 28, subd. (b)].) This constitutional mandate is implemented by section 1202.4 (see Giordano, supra, 42 Cal.4th at p. 656), which provides in pertinent part: “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims....” (§ 1202.4, subd. (f); see also id., subd. (a)(1).) The restitution order “shall be of a dollar 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....” (Id., subd. (f)(3).) Further, “[t]he court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so....” (Id., subd. (g).) A “victim” under section 1202.4 includes “[t]he immediate surviving family of the actual victim” and “[a]ny person who has sustained economic loss as the result of a crime” and was the spouse or child of the victim at the time of the crime. (Id., subd. (k)(1), (3)(A).) Moreover, “[i]n every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to [section 1202.4] a condition of probation.” (Id., subd. (m).)
A trial court’s restitution order is reviewed for abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 663.) The abuse of discretion standard “ ‘asks in substance whether the ruling in question “falls outside the bounds of reason” under the applicable law and the relevant facts [citations].’ [Citation.] Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the surviving victim’s economic loss. To facilitate appellate review of the trial court’s restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered.” (Id. at pp. 663-664.)
While all restitution orders are reviewed for abuse of discretion, the California Supreme Court has noted that “the scope of a trial court’s discretion is broader when restitution is imposed as a condition of probation.” (Giordano, supra, 42 Cal.4th at p. 663, fn. 7.) Our Supreme Court has explained: “Penal Code section 1203.1, subdivision (j) expressly grants trial courts broad discretion in imposing conditions of probation. As this court has held, ‘[a] condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality....” ’ ([People v.] Lent [(1975)] 15 Cal.3d [481, ] 486.) With respect to the third criterion, ‘an order for restitution, i.e., attempting to make a victim whole, has generally been deemed a deterrent to future criminality [citation], and the court is not limited to the transactions or amounts of which defendant is actually convicted [citations].’ (Ibid.) Probationary restitution may be imposed even if a defendant has not been convicted for a particular offense ‘because probation is an “ ‘ “act of clemency and grace, ” ’ ” not a matter of right. [Citation.] “[T]he granting of probation is not a right but a privilege, and if the defendant feels that the terms of probation are harsher than the sentence for the substantive offense[, ] he is free to refuse probation.” [Citations.] Because a defendant has no right to probation, the trial court can impose probation conditions that it could not otherwise impose, so long as the conditions are not invalid under the three Lent criteria.’ [Citation.]” (Giordano, supra, 42 Cal.4th at p. 663, fn. 7.)
In Giordano, supra, the defendant “was driving under the influence of alcohol when he hit and killed Kenneth Armstrong, who was riding a motorcycle.” (Giordano, supra, 42 Cal.4th at p. 650.) After pleading guilty to vehicular manslaughter and admitting a prior conviction for driving under the influence, the defendant was sentenced to prison and ordered to pay nearly $168,000 in restitution to the surviving spouse. (Ibid.) The trial court calculated that amount by taking the decedent’s average annual earnings over a three year period and multiplying that by five years. (Ibid.) The California Supreme Court determined that the trial court did not abuse its discretion.
First, the Giordano court explained that the surviving spouse “does not step into the shoes of [the decedent spouse] to recover [the decedent spouse’s] future losses.” (Giordano, supra, 42 Cal.4th at p. 657.) In other words, the surviving spouse “may not recover the future earnings of [the] deceased spouse.” (Ibid.) However, the surviving spouse may recover restitution for those losses suffered or incurred personally by the surviving spouse. (Ibid.) In the situation where the defendant kills one spouse, “the economic loss incurred by a surviving spouse is the loss of future economic support due to the spouse’s death.” (Id. at p. 659; see also id. at p. 662 [“a surviving spouse may receive as direct restitution the amount of lost economic support incurred due to a criminal act that resulted in the death of his or her spouse”].)
Second, the Giordano court addressed “how a trial court should measure a surviving victim’s economic loss.” (Giordano, supra, 42 Cal.4th at p. 663.) The court reiterated that “a surviving spouse’s economic loss is not simply the wages or income that the deceased spouse would have earned but for his or her death.... Instead, a surviving spouse may receive restitution only in the amount of his or her own economic loss” (id. at p. 664), which “is best described as a loss of economic support” (id. at p. 665). In determining that amount, the California Supreme Court stated that “a trial court must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review. The burden is on the party seeking restitution to provide an adequate factual basis for the claim.” (Id. at p. 664.) The court further explained that “[n]o abuse of that discretion occurs as long as the determination of economic loss is reasonable, producing a nonarbitrary result. Factors relevant to that determination will necessarily depend on the particular circumstances before the court. Generally, the calculation of the loss of support may be informed by such factors as the earning history of the deceased spouse, the age of the survivor and decedent, and the degree to which the decedent’s income provided support to the survivor’s household. These guideposts are not provided as an exhaustive list. Naturally the court’s discretion will be guided by the particular factors at play in each individual claim.” (Id. at p. 665.)
In the case before it, the Giordano court questioned the methodology used by the trial court to calculate the surviving spouse’s loss of support. (Giordano, supra, 42 Cal.4th at pp. 665-666.) The trial court had “estimated [the surviving spouse’s] loss by multiplying the deceased victim’s approximate average annual earnings by five years.” (Id. at p. 665.) The Giordano court stated that “the trial court’s method of calculation was not carefully designed to establish [the surviving spouse’s] loss of support” (id. at p. 666), because it assumed that the surviving spouse “was entitled to receive her husband’s gross annual earnings, not just that portion of his earnings that went to her economic support, ” and assumed that “five years is the appropriate term for loss of support restitution” (id. at p. 665).
Notwithstanding “the trial court’s methodological imprecision, ” the Giordano court concluded that the defendant had not established that the surviving spouse’s “loss of support was less than the amount of restitution ordered, ” and thus the defendant had “not shown that the amount of restitution ordered was an abuse of the trial court’s discretion.” (Giordano, supra, 42 Cal.4th at p. 666.) The Giordano court explained that “[o]n appeal, we presume that a judgment or order of the trial court is correct, ‘ “[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” ’ [Citation.]” (Ibid.) While the defendant argued that the trial court failed to take into account “what portion of decedent’s income would have gone to support himself or others, ” the defendant failed to address the “the period of time for which [the surviving spouse] would have received economic support from her husband but for his death. The trial court awarded restitution based on a period of five years, but, as defendant’s counsel indicated, decedent was relatively young when he was killed and the court could have calculated loss of support using a longer period of time. [Fn. omitted.]” (Ibid.) The Giordano court concluded that the defendant had “not shown that a method designed to approximate [the surviving spouse’s] loss of economic support, taking into consideration the deceased victim’s anticipated years of contribution to his wife’s support, would have resulted in an amount of restitution less than” that ordered by the trial court. (Ibid.)
In this case, defendant was ordered to pay Mohammad Chaudhry restitution in the amount of $287,705.20. On appeal, defendant challenges $242,506.80 for loss of economic support.
A supplemental memorandum prepared by the probation officer for sentencing included a written statement of loss by Mohammad Chaudhry. Regarding the sum of $242,506.80, Mohammad Chaudhry explained that the loss of wages from his wife had put him “into a difficult financial position.” He stated: “As I am retired, the deceased, Tahseen Chaudhry, was the primary wage-earner in my home. Our plan and pledge was for my wife to continue working until we could pay the school loans for my son, Ausaff Chaudhry. We estimated that she would continue working until the age of 66, which was for approximately 5½ more years. [¶] My wife earned $45,198.40 annually. If she retired at the age of 66, as was planned, she would have earned an additional $242,506.80. The loss of these wages will have a significant impact on my family, my plans, and my livelihood.” The probation officer indicated in the accompanying supplemental memorandum that a “pay stub” for Tahseen Chaudhry was attached, and that she “last earned $21.73 per hour and her annual wage at the Palo Alto Medical Foundation was $45,198.40.” According to the attached pay stub, Tahseen Chaudhry worked 39.5 hours at the rate of $21.73 for the two-week pay period from July 27, 2008 to August 9, 2008. She earned a total of $858.34, and her net pay was $675.67.
Defendant argues that the amount awarded to Mohammad Chaudhry for loss of economic support is “erroneous” because it simply represents the wages the wife would have earned but for her death, rather than the portion of her income that she would have contributed to her husband’s support.
Defendant fails to show that Mohammad Chaudhry’s “loss of support was less than the amount of restitution ordered” and that the amount ordered was therefore an abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 666.) In the trial court, defense counsel speculated that both deceased women would have incurred “living expenses, such as rent and mortgage, transportation, [and] food that would take away from” the amount being claimed for loss of support by their husbands. Mohammad Chaudhry did not indicate, however, that his wife’s wages were for the family’s living expenses. Rather, he stated that he and his wife intended for his wife “to continue working until wecould pay the school loans for my son....” (Italics added.) Indeed, Mohammad Chaudhry did not claim loss of economic support through and until his death, which would suggest that the decedent’s income was used for the family’s living expenses. Rather, he indicated that the loss of economic support was for a limited period of approximately five and one-half years. The record thus supports the inference that all the decedent’s wages were intended by her and her husband to be used for paying their son’s school loans. We also observe that at the sentencing hearing, Mohammad Chaudhry and his son each stated that the son had taken the bar exam just two weeks prior to Tahseen Chaudhry’s death. It is reasonable to believe that school loans for tuition and living expenses for college and law school would reach nearly $240,000. In sum, it was not unreasonable for the trial court to assume that all of the decedent’s wages represented lost economic support for her surviving spouse, Mohammad Chaudhry, who intended to pay their son’s school loans.
Turning to the $199,142.64 in restitution that defendant was ordered to pay Mohammad Siddique, defendant on appeal challenges $94,640 for loss of economic support.
A supplemental memorandum prepared by the probation officer for sentencing included a written statement of loss by Mohammad Siddique. Regarding the sum of $94,640, Mohammad Siddique stated the following: “Finite Income Loss [¶] Our son Yasir had started college one week before Roohi was killed. Our plan to pay for his college was that part of his college cost will be paid by Roohi’s income so that student loan burden is reduced. [¶] Roohi’s annual income was essential to pay for 4-year college expenses for our son Yasir, through 2012. This is not a perpetual income loss claim. [¶] 2007 tax year was the latest full tax year. The annual income reported for her to [the] IRS in 2007 was $23,660. Tax return for 2007 is attached. No future escalation in income for the four years is demanded. [¶] Total income loss through 2012 [$23,660 x 4] $94,640.00.” Attached to Mohammad Siddique’s statement of loss was a single page from his and his wife’s joint federal form 1040 for 2007. On line 12 of the tax return regarding “Business Income or (loss), ” the Siddiques entered “23, 660.” According to the probation officer’s supplemental memorandum, Roohi Siddique ran a day care service.
On appeal, defendant argues that “the record is silent as to what portion of [the decedent’s] earnings would have been dedicated toward such an ‘offset’ ” of the son’s college tuition. Defendant complains that the trial court assumed the decedent “would have contributed 100% of her income for the next four years toward the payment of [her] son’s college tuition-the cost of which is unknown-and not direct any of said income toward expenses or purchases other than the economic support of family members.” Defendant also suggests that the actual victim was the decedent’s son, rather than her spouse, Mohammad Siddique, to whom the court awarded restitution.
Defendant again fails to show that the “loss of support was less than the amount of restitution ordered” and that the amount ordered was an abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 666.) The trial court’s decision to allocate all of the decedent’s income towards the son’s college expenses was not unreasonable, given Mohammad Siddique’s statement that he and his wife planned for her income to be used for that purpose, and given the absence of any evidence to suggest that her income would be used for any other purpose. Defendant observes that the record does not reflect the amount of the son’s college tuition. However, Mohammad Siddique did not suggest that his wife’s contribution was solely for tuition, but rather indicated that it would be used for their son’s college “cost” and “expenses.” Mohammad Siddique also indicated that even with his wife’s contribution, his son needed a student loan. The record also reflects that Mohammad Siddique’s son was attending dental school on the East Coast. In view of these circumstances, and taking into consideration the decedent’s annual income of $23,660, it was not unreasonable for the trial court to assume that all of decedent’s income would be needed for her son’s college “cost” and “expenses.” Moreover, given that Mohammad Siddique and his wife jointly planned that her income would be used towards their son’s college expenses, it was not unreasonable for the court to conclude that the restitution should be paid to Mohammad Siddique following his wife’s death, rather than paid directly to their son.
Substantial Evidence
Defendant next contends that the restitution awards for $242,506.80 and $94,640 for “future lost earnings” to Mohammad Chaudhry and Mohammad Siddique, respectively, are not supported by substantial evidence.
Regarding the award to Mohammad Chaudhry, defendant asserts that “the probation officer appears to have miscalculated [Tahseen Chaudhry’s] projected earnings by mistakenly concluding that the pay stub [attached to the probation officer’s supplemental memorandum] represented her pay for one week, rather than a two-week pay period.” Defendant also asserts that Tahseen Chaudhry’s net pay should have been considered, rather than her gross earnings, because “[t]he various deductions from [her] paychecks would not have contributed to her surviving spouse’s economic support.” Defendant contends that these errors resulted in a “$25,000-plus windfall per year” to Mohammad Chaudhry.
Second, regarding the restitution award to Mohammad Siddique, defendant challenges the trial court’s implied finding that Roohi Siddique earned $23,660 for operating a day care service. Defendant contends that it is “not clear” whether the “ ‘business income’ ” of $23,660 listed on the Siddique’s tax return “came solely from the operations of Ms. Siddique’s day care center, or instead represented the aggregate business incomes of Mr. and Ms. Siddique, who filed a joint tax return for 2007.... Had the relevant business income/loss ‘schedules’ been included for the court’s consideration, this determination likely could have been made.” Defendant also argues that “it is not possible to determine with any accuracy whether the $23,660 represented the average net business income for the day care center, rather than one exceptional year of heightened earnings in comparison to previous years’ earnings.”
The People contend that defendant “is not really making a sufficiency of the evidence claim” but rather is “asserting the trial court abused its discretion in selecting the calculation method it used.” The People maintain that the claim is “new” and “has not been preserved.” Regarding defendant’s contention concerning the “tax deduction” issue, the People argue that defendant “can show neither ineffective assistance nor prejudice.”
In reply, defendant reiterates that his challenge is a sufficiency of the evidence claim and that as to the tax deduction issue, trial counsel rendered ineffective assistance by failing to raise it below.
“In reviewing the sufficiency of the evidence, the ‘ “power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, ” to support the trial court’s findings.’ [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] ‘If the circumstances reasonably justify the [trial court’s] findings, ’ the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact. [Citation.]” (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.) This court has rejected the contention that a challenge to a restitution order based on sufficiency of the evidence must be raised below in order to preserve the issue for appeal. (In re K.F. (2009) 173 Cal.App.4th 655, 660-661.)
In this case, except for the issue of whether Tahseen Chaudhry’s paycheck deductions should have been considered by the trial court, we will assume that defendant’s claim is properly characterized as one challenging the sufficiency of the evidence, and we determine that substantial evidence supports the trial court’s restitution award.
First, regarding defendant’s contention that the award to Mohammad Chaudhry appears to be based on a miscalculation or a mistaken assumption concerning Tahseen Chaudhry’s pay stub, the record supports the trial court’s implicit finding that Tahseen Chaudhry’s annual earnings were $45,198.40. In a written statement of loss, Mohammad Chaudhry unequivocally stated that his wife “earned $45,198.40 annually.” Although his wife’s annual earnings would have been much less than $45,198.40 per year if she consistently earned the biweekly amount reflected in the single pay stub attached to the probation officer’s supplemental memorandum, nothing in the record indicates that her earnings were in fact that same amount for every pay period.
Second, regarding the purported ambiguity in the Siddique’s 2007 tax return, Mohammad Siddique specifically stated in his statement of loss that “[t]he annual income reported for [his wife] to [the] IRS in 2007 was $23,660.” This statement leaves little doubt that the $23,660 reported on the attached tax return was for his wife’s income alone and did not represent aggregate income between the spouses.
Third, although the record does not contain evidence concerning Roohi Siddique’s average net business income for her day care business, Mohammad Siddique’s statement that his wife earned actually earned $23,660 in 2007, the year prior to his wife’s death, provides sufficient evidentiary support for the trial court’s implicit assumption that she would have earned approximately $23,660 each year between 2008 and 2012. We also observe that Mohammad Siddique indicated in his statement of loss that “[n]o future escalation in income for the four years is demanded.”
We now return to defendant’s contention that the trial court should have considered Tahseen Chaudhry’s net pay rather than gross earnings because “[t]he various deductions from [her] paychecks would not have contributed to her surviving spouse’s economic support.” Assuming the objection has been forfeited because defendant did not make this specific argument concerning paycheck deductions in the trial court (see In re S.S. (1995) 37 Cal.App.4th 543, 547-548), we will address the merits of the issue in response to defendant’s contention that his trial counsel’s failure to assert an objection on this ground constituted ineffective assistance.
As we have explained, in Giordano, the California Supreme Court questioned the trial court’s use of the decedent’s gross annual earnings, rather than “just that portion of [the decedent’s] earnings that went to [the surviving spouse’s] economic support, ” in calculating restitution to the surviving spouse. (Giordano, supra, 42 Cal.4th at p. 665.) This aspect of “the trial court’s method of calculation was not carefully designed to establish [the surviving spouse’s] loss of support.” (Id. at p. 666.) Nonetheless, no abuse of discretion was shown in Giordano because the defendant failed to establish that the surviving spouse’s “loss of support was less than the amount of restitution ordered.” (Ibid.)
In this case, assuming the trial court should have taken into consideration Tahseen Chaudhry’s paycheck deductions, defendant similarly fails to establish an abuse of discretion in the amount of the restitution award. We observe that the trial court’s restitution calculation was based on a conservative assumption that Tahseen Chaudhry would not experience a change in pay for over five years and would not need to work beyond the estimated time frame to pay for her son’s school loans. We also observe that the total amount of the son’s school loans would have likely been known by Mohammad Chaudhry prior to the restitution hearing, given that his son had already sat for the bar exam and thus likely had completed his schooling. If defendant had argued in the trial court that the loss of support calculation should be based on Tahseen Chaudhry’s earnings minus paycheck deductions, Mohammad Chaudhry, who was present at the restitution hearing, undoubtedly would have changed his estimate of the number of years his wife would have needed to work, in order to ensure that the total amount awarded to pay for his son’s school loans remained the same as that requested in his statement of loss. In view of the record, defendant fails to establish his claim for ineffective assistance of counsel. (People v. Ledesma (2006) 39 Cal.4th 641, 746 (Ledesma) [to prevail on claim of ineffective assistance of counsel, defendant must show that “counsel’s deficiencies resulted in prejudice”].)
Lastly, in defendant’s reply brief on appeal, he appears to argue that the trial court should have also considered the tax obligation of Roohi Siddique for her earnings from the day care service, and that his trial counsel rendered ineffective assistance for failing to “alert[]” the trial court to the issue. Assuming the trial court should have considered Roohi Siddique’s tax obligation in calculating the loss of support to her surviving spouse, defendant fails to show prejudice from his trial counsel’s failure to raise the issue, given the absence of evidence concerning any tax obligation of Roohi Siddique and any effect on her earnings.
Defendant appears to be raising this argument in response to the People’s assertions concerning the Siddique family’s economic status and tax obligation.
Warrantless Search Condition
One of the terms and conditions of defendant’s probation was that he “submit [his] person, place of residence, [his] car, [and] any property under [his] control to search at any time without a warrant by a peace officer.” On appeal, defendant contends that the trial court abused its discretion when it imposed this condition.
Defendant implicitly acknowledges that he forfeited the claim by not raising an objection in the trial court. He asserts that the appellate court has the “discretion to review an otherwise forfeited claim where it ‘[]involves an important issue of constitutional law or a substantial right.’ ” Defendant explains that in this case, the warrantless search condition “directly implicates [his] Fourth Amendment right to be free from unreasonable search and seizure.” Defendant also asserts that his counsel was ineffective for failing to object to the warrantless search condition below.
As the objection has been forfeited (People v. Welch (1993) 5 Cal.4th 228, 237 (Welch)), we will address the substance of defendant’s claim in response to his contention that his counsel rendered ineffective assistance.
“In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶]... under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged, ’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]” (Ledesma, supra, 39 Cal.4th at pp. 745-746; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)
In this case, defendant drove with gross negligence in making an illegal passing maneuver, and in rounding a curve at an excessive rate of speed and crossing the double yellow lines into oncoming traffic. By engaging in this conduct, defendant endangered others’ lives, including the passenger in his car, and he ultimately killed two people. Although defendant acknowledged to the probation department that his speed was a factor in the incident, it appeared that he was attempting to minimize his responsibility by also attributing the incident to “[t]he limited vision at night, the high beams of the vehicle behind” him, and his unfamiliarity with the road, which he claimed were contributing factors in him “not be[ing] able to react in time.” Defendant also indicated a desire to regain his driver’s license. At the sentencing hearing, the prosecutor and several members of the victims’ families pressed for a prison sentence.
Given these circumstances, defendant’s trial counsel could have reasonably concluded that probation with terms and conditions, including a warrantless search condition, was the best possible result for defendant, and that it was more prudent for defendant to accept all the conditions, rather than to take the risk that an objection to a particular condition might cause the court to reconsider any legitimate concerns that it might have had for granting probation in the first place. (See Welch, supra, 5 Cal.4th at p. 237 [observing that a trial court, “having legitimate concerns about the defendant’s suitability, ” may consider “it necessary to condition the grant of probation on one or more terms the defendant finds unreasonable”].) Consequently, in view of the record, we cannot conclude that trial counsel’s failure to object to the warrantless search condition fell below an objective standard of reasonableness. Based on our conclusion that trial counsel’s decision may have been a reasonable tactical one, we need not address the merits of defendant’s challenge to the search condition.
IV. DISPOSITION
The July 21, 2009 judgment (order granting probation) and August 18, 2009 restitution order are affirmed.
I CONCUR: DUFFY, J.
Mihara, J., Concurring and Dissenting.
Defendant Saba Gorjiyazdi raises two issues on appeal. First, he contends that the court erred in calculating the amount of restitution because it based the amount on the future gross earnings of the two deceased victims rather than the loss of future economic support the decedents would have provided to their husbands. Second, defendant asserts that the trial court abused its discretion in imposing an unreasonable probation search condition, or, if he waived this contention, his trial counsel was prejudicially deficient in failing to object to the condition. My colleagues reject defendant’s contentions. I agree with my colleagues that defendant waived his challenge to the probation search condition and that his trial counsel was not deficient in failing to object to the condition. However, I disagree with their analysis and conclusion regarding the amount of restitution. In my view, a remand is necessary for a recalculation of the amount of restitution because the court’s restitution award was based on future gross earnings rather than future support and the evidence before the trial court cannot support the amount awarded.
I. Background
On the night of August 17, 2008, 20-year-old defendant was driving a car on Highway 9 in an area where the speed limit was 35 miles per hour. While rounding a curve on this two-lane road at 65 to 70 miles per hour, he crossed over a double-yellow-line and collided head-on with another car. The driver of the other car, Tahseen Chaudhry, and the passenger, her sister Roohi Siddique, both died as a result of the collision.
Defendant was charged by complaint with two counts of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)). He accepted a “court offer” and pleaded no contest to both counts on the understanding that he would receive no more than two years in state prison, the mitigated term (Pen. Code, § 193, subd. (c)(1)).
The probation report recommended that defendant be granted probation and ordered to pay restitution. It recommended that probation be conditioned on a year in jail, submission to warrantless searches, maintaining gainful employment, and not owning or possessing a firearm or ammunition. Defendant had no prior criminal record, and he denied that he had ever consumed alcohol or any illicit substance. Defendant had been employed in retail sales for two years.
The probation officer and the trial court were under the mistaken impression that defendant was not eligible for probation except under unusual circumstances. The probation report cited Penal Code section 1203, subdivision (e)(3) as support for this claim. Penal Code section 1203, subdivision (e) provides that, “[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:... (3) Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted.” Because the deaths of the victims were unintentional results of defendant’s grossly negligent conduct, defendant did not “willfully inflict great bodily injury.” This discrepancy has not been addressed by the parties on appeal.
The court suspended imposition of sentence and placed defendant on probation conditioned on a year in jail and ordered him to pay restitution. It imposed the three probation conditions recommended by the probation officer. The court also “informed” defendant “that the court will report this conviction to the Department of Motor Vehicles and the Department of Motor Vehicles will impose driving privilege revocation as required.” Defendant’s trial counsel interposed no objections to the probation conditions, and defendant expressly accepted the terms and conditions of probation. The court subsequently held a contested restitution hearing and set the amount of restitution at $199,142.64 to Mohammed Siddique and $287,705.20 to Mohammed Chaudhry. Defendant timely filed a notice of appeal challenging both the restitution order and the order of probation.
II. Analysis
The validity of the trial court’s restitution order depends on whether it is consistent with the principles set forth in the California Supreme Court’s decision in People v. Giordano (2007) 42 Cal.4th 644 (Giordano). In Giordano, the court held that the decedent’s wife “does not step into the shoes of decedent to recover his future losses.” (Giordano, at p. 657.) Instead, she could “recover restitution only for those losses suffered personally.” (Giordano, at p. 657.) “[T]he economic loss incurred by a surviving spouse is the loss of future economic support due to the spouse’s death.” (Giordano, at pp. 659, 661.) Although the trial court in Giordano had used an “imprecise” method of calculation, the California Supreme Court nevertheless found no abuse of discretion. (Giordano, at p. 663.) “[W]hile a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the surviving victim’s economic loss. To facilitate appellate review of the trial court’s restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered.” (Giordano, at pp. 663-664.) “No abuse of that discretion occurs as long as the determination of economic loss is reasonable, producing a nonarbitrary result. Factors relevant to that determination will necessarily depend on the particular circumstances before the court. Generally, the calculation of the loss of support may be informed by such factors as the earning history of the deceased spouse, the age of the survivor and decedent, and the degree to which the decedent’s income provided support to the survivor’s household.” (Giordano, at p. 665.)
The California Supreme Court concluded that the trial court in Giordano had improperly based its calculation on the decedent’s “gross annual earnings” rather than the surviving spouse’s loss of “economic support” but had also arbitrarily limited to five years the period of loss of support even though the decedent was “relatively young” at the time of his death. (Giordano, supra, 42 Cal.4th at pp. 665-666 & fn. 9.) The court essentially concluded that these two errors were offsetting. Since the trial court had arbitrarily limited the period of support, the defendant in Giordano “ha[d] not shown that a method designed to approximate [the surviving spouse’s] loss of economic support, taking into consideration the deceased victim’s anticipated years of contribution to his wife’s support, would have resulted in an amount of restitution less than” the amount awarded by the trial court. (Giordano, at p. 666.)
My colleagues conclude that, as in Giordano, defendant has failed to show that a proper method of calculating the loss of economic support would have produced a lower amount of restitution. I disagree. Although “we review the trial court’s restitution order for abuse of discretion, ” (Giordano, supra, 42 Cal.4th at p. 663), “[t]he burden is on the party seeking restitution to provide an adequate factual basis for the claim.” (Giordano, at p. 664.) The trial court’s calculation of the restitution awards to the husbands of Tahseen Chaudhry and Roohi Siddique is not supported by an adequate factual basis that can support restitution awards in that high of an amount.
The evidence before the trial court established that Tahseen Chaudhry was 60 and a half years old at the time of her death, and she had planned to work until the age of 66 before retiring so that she could “pay the school loans” for her son Ausaff’s schooling. There was no evidence of the amount of Ausaff’s “school loans, ” and it was undisputed that 27-year-old Ausaff had completed law school and taken the bar exam at the time of his mother’s death. Ausaff was still living with his parents at that time. A pay stub for Tahseen Chaudhry’s last two-week period of work showed that she had worked for 39.5 hours at $21.73 per hour and earned a gross pay of $858.34, which yielded a net pay of $675.67. Tahseen Chaudhry’s husband asserted that her “annual wage” was $45,198.40, which is the annual gross pay she would have earned for fulltime work at $21.73 per hour. He sought $242,506.80 in restitution for the loss of her income, and $27,499.88 in restitution for medical bills and funeral expenses. Tahseen Chaudhry’s husband asserted that these two amounts totaled $287,705.20.
The probation officer reported that Tahseen Chaudhry was 59 and a half years old at the time of her death. However, her husband stated in his restitution request that she intended to retire at age 66 and that this was “5 1/2 more years.” And the bill for her burial stated that her birth date was “1/1/1948.” She died on August 18, 2008. At that time, she was 60 years and 7 months old.
Defendant claims for the first time on appeal that this pay stub established that Tahseen Chaudhry worked only half time, but her husband’s statement of her annual wage combined with its consistency with full time work at the hourly rate shown on her pay stub was sufficient to support an inference that this was an unrepresentative pay period and that she did in fact work full time.
Multiplying 2080 hours (52 weeks times 40 hours per week) by $21.73 (her hourly wage) yields $45,198.40 (her annual gross wage).
The $242,506.80 figure cannot be produced by multiplying 5.5 years by Tahseen Chaudhry’s annual gross income of $45,198.40. Instead, the product of those two figures is $248,591.20. This discrepancy is not explained in the record or addressed by the parties on appeal.
Although adding these two figures together produces a total of $270,006.68, the Chaudhry restitution request inexplicably sought, and the trial court awarded, a total of $287,705.20. The restitution request mentioned no other expenses for which restitution was sought. This $17,698.52 discrepancy is not addressed by the parties.
Under Giordano, the trial court was not permitted to award restitution in the amount of Tahseen Chaudhry’s gross wages rather than her net wages because only her net wages would constitute a loss of economic support to her husband. Unlike in Giordano, the trial court’s award to Tahseen Chaudhry’s husband did not result from offsetting errors but is instead inconsistent with the very highest amount that the trial court could have awarded based on the evidence before it. It was undisputed that Tahseen Chaudhry’s gross annual wage was $45,198.40, but it was also undisputed that her net annual wage was slightly less than 79 percent of her gross pay. The economic support that Tahseen Chaudhry would have provided to her husband would not have been her gross pay, but her net pay. Her net annual wage was no more than $35,707. There was no dispute about the period over which she expected to provide support to her husband: she planned to work until the age of 66 before retiring, which would have been five and one-half years after her death. Multiplying her annual net wage by 5.5 years yields a result of $196,388.50. The trial court’s award of $242,506.80 for the loss of economic support to Tahseen Chaudhry’s husband greatly exceeds the highest amount of economic support demonstrated by the evidence before the trial court. On the basis of the evidence before the trial court, it could not reasonably have awarded more than $196,388.50 for lost economic support to Tahseen Chaudhry’s husband. Hence, I cannot accept my colleagues’ conclusion that defendant has failed to show an abuse of discretion. I would remand the matter to the trial court to hold a new hearing to determine the appropriate amount of restitution to Tahseen Chaudhry’s husband for lost support.
The Attorney General contends that defendant forfeited this contention by failing to raise it below, but defendant explicitly challenged the amounts sought as being based on gross rather than net income.
The trial court’s award of restitution to Roohi Siddique’s husband for lost support suffers from a similar flaw. Roohi Siddique’s husband sought to recover as restitution Roohi Siddique’s “expected earnings over the next four years, ” which was the period that she had intended to work before retiring “so that she could pay for her son’s college tuition.” She had planned to use her income during that four-year period to pay “part of [her son’s] college costs... so that [his] student loan burden is reduced.” It was undisputed that her son had just begun dental school and was expected to graduate in 2012, but no evidence of the cost of his schooling was before the trial court. Roohi Siddique “earned $23,660.00 per year running a day car[e] service.” The $23,660 figure was the amount of business income reported on the Siddiques’ 2007 federal tax form. Multiplying that business income by four produces $94,640.00, the amount of restitution awarded by the court to Roohi Siddique’s husband for lost economic support.
He also sought $104,502.64 in restitution for funeral, medical, and travel expenses for a total of $199,142.64. Defendant does not dispute the amount of restitution awarded for funeral, medical, and travel expenses.
Defendant claims that Roohi Siddique’s income from her day care business was gross income rather than net income. The only evidence of the nature of Roohi Siddique’s income was her tax form and her husband’s statement that she earned that income from running a day care service. The single page of the tax form, which was the only page in evidence, did not indicate how much tax was paid on this business income. “The burden is on the party seeking restitution to provide an adequate factual basis for the claim.” (Giordano, supra, 42 Cal.4th at p. 664.) Here, Roohi Siddique’s husband, “the party seeking restitution, ” did not “provide an adequate factual basis” for his claim that Roohi Siddique’s projected future business income was equal to the amount of lost future support. Consequently, the record before the trial court provided no factual basis for the court’s implied finding that Roohi Siddique’s lost business income was equal to the amount of lost support. This is not a case, like Giordano, in which the trial court made offsetting errors. The four-year period of lost support was undisputed, and the only disputed issue was whether the lost business income was equal to the lost support. By deciding that issue in the absence of any evidence, the trial court abused its discretion. I would remand for a new restitution hearing at which a factual basis may be established to support an award of an appropriate amount of lost future support.
“[DEFENSE COUNSEL]: Mr. Gorjiyazdi will be pleading as charged to counts one and two and will be receiving a sentence of a two year top, full report.
“[THE PROSECUTOR]: And that is the court’s offer.
“THE COURT: Yes.”