Opinion
A155060
02-06-2020
In re David C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DAVID C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. 38040-J)
David C. (Minor) appeals from the juvenile court's restitution order, issued after a previous restitution order was vacated following Minor's habeas petition. Because Minor received ineffective assistance of counsel at the second restitution hearing, we reverse and remand for further proceedings.
In a separate petition for writ of mandate, habeas corpus, or coram vobis, case No. A156793, appellant has raised a number of claims challenging the juvenile court's restitution order. We have denied that petition by separate order filed this date.
BACKGROUND
Following Minor's admission to a charge of misdemeanor battery against Joe Nin while Nin was performing his duties as a juvenile correctional counselor, Nin sought restitution. (In re David C. (June 28, 2017, A148082) [nonpub. opn.] at pp. 1-2.) According to a probation report, Nin stated the October 31, 2014 battery caused an injury to his elbow requiring surgery on November 24, 2015, which in turn resulted in a loss of income from construction work he regularly performs. (Id. at p. 2.)
Nin provided Minor's counsel with two written estimates for construction jobs, which the People introduced as exhibits at the first restitution hearing. (In re David C., supra, A148082 at p. 2.) The first estimate, dated November 10, 2015, described a countertop replacement job for a prospective client identified as "Schuster," and quoted a price of $6,175. (Id. at p. 2.) The second estimate, dated November 19, 2015, described foundation, drainage, gutter, and insulation work for a prospective client identified as "Brouard," and quoted a price of $25,000. (Id. at p. 2.) Nin testified that the elbow surgery caused him to lose these jobs, which he otherwise would have been hired to perform, with one exception—he did perform the insulation portion of the Brouard job. (Id. at pp. 7-8.) At the conclusion of the April 2016 restitution hearing, the juvenile court awarded restitution of $23,100: the quoted prices for the Schuster and Brouard jobs, less permit and materials costs included in the quotes and also less the quoted price for the insulation work Nin in fact performed on the Brouard job. (Id. at pp. 2, 8.)
Minor appealed the restitution order. (In re David C., supra, A148082.) As relevant here, he argued he received ineffective assistance of counsel at the restitution hearing. (Id. at pp. 9-11.) This court found Minor's trial counsel provided deficient performance in failing to subpoena Nin's medical records, in light of Nin's previous report that the battery caused a right-hand injury (rather than a left elbow injury, the basis for his restitution claim) and record evidence that trial counsel failed to subpoena the records because she mistakenly believed she could not do so. (Id. at p. 10.) However, because the medical records were not in the appellate record, we found Minor failed to establish prejudice from the deficient performance. (Id. at p. 10.) Minor also argued trial counsel was ineffective in failing to move into evidence a permit and photograph that counsel represented below would impeach Nin's claim that he did not perform the Brouard job. (Id. at p. 10.) Because the permit and photograph were not part of the appellate record, we concluded Minor failed to demonstrate deficient performance: Nin testified he performed one part of the Brouard job—the insulation work—and trial counsel might have determined that the permit and photograph did not contradict this testimony. (Id. at p. 10.) We affirmed the order on appeal, with a slight modification to correct a calculation error. (Id. at pp. 9, 11.)
Minor also challenged the restitution order with a companion habeas petition (hereafter, the 2016 Petition). (In re David C., A149236.) As relevant here, the 2016 Petition attached a January 25, 2016, permit issued to contractor "Nin Construction" to perform work for owner "Xavier Brouard" at the same Bennett Valley address listed on the Brouard estimate submitted at the restitution hearing. The permit identified the "Project Description" as "Replace 27 LF perimeter foundation." (Capitalization altered.) Nin's Brouard bid described the foundation work as follows: "Foundation will be cut repaired and replaced . . . ." (Capitalization altered.) The 2016 Petition also attached a printout from a Facebook page for "nin construction" showing a February 6, 2016 post stating, "Repairing a foundation stemwall footing out in Bennett valley. This is a picture before we pour concrete waiting for the inspector to approve," and attaching a photograph. The 2016 Petition alleged these were the documents referred to by trial counsel but not admitted into evidence. The 2016 Petition also attached exhibits relevant to the issue of whether Minor was prejudiced by trial counsel's failure to subpoena Nin's medical records. This court issued an order to show cause, returnable to the superior court, finding Minor's petition made out a prima facie claim for relief that trial counsel provided ineffective assistance by "(a) failing to subpoena the medical records of Joe Nin and/or (b) failing to use the aforementioned evidence and other evidence of which counsel then had notice to impeach Nin at the hearing," as well as a prima facie claim that, "in light of evidence predating the restitution hearing that was submitted with the habeas petition, the restitution order was based on false evidence."
In the juvenile court, the People declined to present any additional arguments or evidence on the order to show cause. The juvenile court granted the writ petition and vacated the first restitution order, expressing concerns about whether Minor "was properly represented at the prior restitution hearing." The court scheduled a new restitution hearing, with Minor represented by new counsel. Minor's counsel subpoenaed Nin's medical records in advance of the hearing.
Nin was the sole witness at the second restitution hearing. He owned a sole proprietorship general construction company, Nin Construction, and also worked part-time as a juvenile correctional counselor. He testified that Minor's October 31, 2014 battery caused him to injure his left elbow, he experienced pain and discomfort in the subsequent months, physical therapy and related treatments did not help, and eventually a doctor recommended surgery. He had two jobs lined up in November 2015—the Schuster job and the Brouard job (the same estimates used at the first hearing were again introduced as exhibits)—but he was unable to perform them because the clients wanted the work done before the holidays and Nin would be out of work for some weeks following the November 24 surgery. He testified, "Nin Construction did not complete those projects," except for the insulation portion of the Brouard job. The Brouard estimate's description of the foundation work included the following, "Pull permit with County of Sonoma"; Nin testified he did not get the permit. Minor's counsel questioned Nin exclusively about his medical history and records (with the exception of a few questions about whether Nin was able to perform marketing for his construction business while recovering from the surgery), and argued solely that the battery was not the proximate cause of the loss. The juvenile court ordered restitution of $20,400 for lost profits on the Schuster and Brouard jobs.
DISCUSSION
I. Jurisdiction
Minor's delinquency proceeding terminated before the second restitution order issued. Minor argues that the juvenile court thus lacked jurisdiction to issue the second restitution order. We disagree.
As to this and several of Minor's other claims, the People argue forfeiture based on Minor's failure to object below. Because we reject some of these claims on other grounds and find it unnecessary to decide the rest, we need not and do not address forfeiture.
As Minor argues, juvenile courts have limited powers. "The juvenile court is a special department of the superior court whose powers are limited to those granted by the Juvenile Court Law (Welf. & Inst. Code, § 200 et seq.) plus those incidental thereto." (In re Ashley M. (2003) 114 Cal.App.4th 1, 6.) Minor points to authority stating that, following termination of juvenile proceedings, the juvenile court loses jurisdiction over the minor. (See In re Dana G. (1983) 139 Cal.App.3d 678, 681 ["When the juvenile court is convinced that wardship is no longer necessary, it has a duty to release the juvenile from its jurisdiction. [Citation.] Once released, jurisdiction may only be gained by the filing of a new petition."].)
However, Minor concedes the juvenile court had jurisdiction over the 2016 Petition following this court's order to show cause returnable in the juvenile court. Such an order to show cause "vests jurisdiction over the cause in the superior court . . . ." (Cal. Rules of Court, rule 8.385(e).) Minor argues that, because the 2016 Petition challenged the validity of the first restitution order, the juvenile court's jurisdiction pursuant to the order to show cause terminated when the court vacated the first restitution order and did not extend to the initiation of further proceedings. We disagree. "[I]n issuing a writ of habeas corpus, courts have broad discretion to formulate a remedy that is tailored to redress the particular constitutional violation that has occurred." (People v. Booth (2016) 3 Cal.App.5th 1284, 1312 (Booth); see also Pen. Code, § 1484 [in deciding habeas petition, court must "dispose of such party [the petitioner] as the justice of the case may require"].) If a court finds the petitioner received ineffective assistance of counsel, the appropriate remedy may include new proceedings. (In re Hochberg (1970) 2 Cal.3d 870, 876, fn. 4 ["when the petitioner proves that his constitutional right to trial counsel has been violated 'the justice of the case may require' remand to the trial court for lawful proceedings under the still existing charge"], disapproved of on another ground in In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 3.) In granting Minor's habeas petition, the juvenile court determined the appropriate remedy included both vacating the prior restitution order and holding a new hearing on the still existing restitution claim.
We thus reject Minor's contention that the juvenile court lacked fundamental jurisdiction. "A court lacks jurisdiction in a fundamental sense when it has no authority at all over the subject matter or the parties, or when it lacks any power to hear or determine the case. [Citation.] If a court lacks such ' "fundamental" ' jurisdiction, its ruling is void." (People v. Ford (2015) 61 Cal.4th 282, 286 (Ford).) The order to show cause vested the juvenile court with the fundamental jurisdiction to adjudicate the 2016 Petition, which included the broad power to fashion an appropriate remedy. Upon finding Minor received ineffective assistance of counsel in the first restitution hearing, the court acted within such jurisdiction in instituting new restitution proceedings.
Minor argues the juvenile court's jurisdiction was also limited by statute. "Even when a court has fundamental jurisdiction, . . . the Constitution, a statute, or relevant case law may constrain the court to act only in a particular manner, or subject to certain limitations." (Ford, supra, 61 Cal.4th at pp. 286-287.) Minor points to a statutory provision directing, with respect to victim restitution in juvenile cases: "If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation." (Welf. & Inst. Code, § 730.6, subd. (h)(1), italics added.) We need not decide whether the juvenile court's second restitution order was prohibited by this statute, however, because Minor is estopped from so arguing. "When a trial court has fundamental jurisdiction but fails to act in the manner prescribed, it is said to have acted 'in excess of its jurisdiction.' [Citation.] . . . A party may be precluded from seeking to set aside such a ruling because of waiver, estoppel, or the passage of time." (Ford, at p. 287.) For example, when a petitioner "had himself requested a continuance of the probation revocation hearing to a date beyond the expiration of his probationary term," he was estopped from challenging the order as in excess of jurisdiction. (Ibid.) Minor filed a habeas petition seeking relief for the violation of his right to effective assistance counsel, thereby instituting habeas proceedings that could extend beyond his juvenile proceedings and could include, if his ineffective assistance of counsel claim were found meritorious, new restitution proceedings. Minor is thus estopped from arguing the second restitution order was in excess of the juvenile court's jurisdiction. (See id. at p. 290 ["the doctrine of estoppel . . . prevents defendant from complaining that the trial court acted in excess of jurisdiction when it fixed the amount of restitution to the victim of his crime after expiration of the probationary term" where the defendant failed to object to a continuance of the restitution hearing to a date after his probation term expired].)
All undesignated section references are to the Welfare and Institutions Code.
II. Notice
Minor argues he had insufficient notice of the amount of restitution claimed. We reject the challenge.
" ' "A defendant's due process rights are protected if he is given notice of the amount of restitution sought and an opportunity to contest that amount . . . ." ' " (In re S.S. (1995) 37 Cal.App.4th 543, 547.) The due process notice requirement is satisfied " 'when the probation report gives notice of the amount of restitution claimed . . . .' " (People v. Cain (2000) 82 Cal.App.4th 81, 86.) "The question is whether appellant received sufficient notice in advance of the hearing to investigate and oppose the probation officer's recommendation." (In re S.S., at p. 548.)
The probation report filed before the first restitution hearing recommended a restitution award of $31,175; the first restitution hearing provided detailed, specific information about the basis for the claimed amount; the juvenile court ordered $23,100 in restitution; and this court affirmed a slightly modified award of $22,100 on direct appeal. (In re David C., supra, A148082 at pp. 2, 11.) The basis for the restitution claim at the second hearing was the same as that at the first hearing. Minor was provided with substantially more notice than due process requires.
Minor argues there was no probation report filed after the habeas proceeding vacated the first restitution order, but fails to explain why a new report was required for notice purposes where the basis for the restitution claim remained the same. Minor also argues the probation report filed before the first restitution hearing was insufficient because it failed to specify the portion of the estimated cost attributable to materials. Such specification was not required; in any event, Nin testified to this allocation at the first restitution hearing. Minor complains his new attorney (appointed following this court's order to show cause) was not provided with the Schuster and Brouard estimates in advance of the second restitution hearing, but these estimates were part of the court file available to defense counsel. Minor received ample notice.
III. Proximate Cause
Minor contends his conduct was not the proximate cause of Nin's losses. We disagree.
"There is no reason why the various principles involved in determining proximate causation under California tort law should not also apply in awarding victim restitution under California criminal law. . . . Just as in tort law, . . . the law must impose limitations on liability for victim restitution other than simple direct causality or else a defendant will face infinite liability for his or her criminal acts, no matter how remote the consequence." (People v. Jones (2010) 187 Cal.App.4th 418, 425 (Jones).) Jones involved a restitution claim for damage to the victim's car that occurred when the victim was parking at the court for a hearing in the defendant's case. (Id. at p. 421.) The Court of Appeal easily concluded the defendant's conduct was the direct cause of the victim's damage: "but for the fact that defendant [committed the crime against the victim], [the victim] would not have been trying to park at the court on the day the bumper of her car was pulled off." (Id. at p. 425.) The more difficult question, raised but not resolved by the Court of Appeal, was whether "defendant's conduct cannot be considered the proximate cause of the damage because some other cause—for example, [the victim's] conduct in driving the bumper of her car over the concrete curb—must be deemed an intervening cause that relieves defendant of liability for restitution." (Id. at p. 427.)
Jones included the following discussion of proximate cause principles: " ' "In general, an 'independent' intervening cause will absolve a defendant of criminal liability. [Citation.] However, in order to be 'independent' the intervening cause must be 'unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause.' [Citation.] On the other hand, a 'dependent' intervening cause will not relieve the defendant of criminal liability. 'A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is "dependent" and not a superseding cause, and will not relieve defendant of liability. [Citation.] "[ ] The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. [ ] The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act." ' " ' " (Jones, supra, 187 Cal.App.4th at p. 427.)
It was reasonably foreseeable that Minor's battery could cause physical injury to the victim and that such an injury could impact the victim's ability to work. Minor's arguments that he could not have known about Nin's construction business or the amount of income that could be lost as a result of the battery are unavailing: " ' " ' "The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act." ' " ' " (Jones, supra, 187 Cal.App.4th at p. 427.) Minor also argues the thirteen-month period between the battery and the economic loss precludes a finding of proximate cause. We reject the claim, and note Nin's testimony that he initially tried to rehabilitate his elbow by nonsurgical means. Minor's arguments challenging his admission to the battery as "ill-advised and involuntary" are not before us in this appeal from the restitution order.
IV. Ineffective Assistance of Counsel
Minor argues he received ineffective assistance of counsel, targeting numerous aspects of counsel's performance. As to one of these—counsel's failure to investigate whether Nin in fact performed the Schuster and Brouard jobs, including by attempting to contact the property owners—we agree.
Because of this conclusion, we need not address Minor's contention that trial counsel was ineffective in additional ways.
"To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner." (In re Wilson (1992) 3 Cal.4th 945, 950.)
A. Record on Appeal
As an initial matter, the parties dispute whether the record on appeal includes the 2016 Petition and other appellate filings in Minor's prior habeas proceeding (case No. A149236). We agree with Minor that these filings were part of the juvenile court record at the time of the second restitution hearing and are thus part of the appellate record on this appeal.
California Rules of Court, rule 8.407(a)(4), setting forth the components of the record on appeal in juvenile cases, provides that the clerk's transcript must include "[a]ny report or other document submitted to the court." This court's order to show cause in case No. A149236 required Minor to "serve copies of all pleadings and exhibits filed herein on respondent and on the Presiding Judge of the Sonoma County Superior Court, and file proof of service of same in this court and in the superior court on or before July 14, 2017." Petitioner filed proof of service on July 3. The juvenile court stated on the record that it had reviewed "the entire record in this case, and that also included the writ [petition] that was before the First District Court of Appeals." The pleadings and exhibits filed in this court in case No. A149236 were therefore documents "submitted to the [juvenile] court." (Cal. Rules of Court, rule 8.407(a)(4).)
Although the superior court did not include the habeas filings in the clerk's transcript for this appeal, the superior court nonetheless considered these records part of the record on appeal: when Minor's appellate counsel wrote to the superior court requesting the record on appeal be augmented to include some of the habeas filings, the clerk of the superior court responded that, because those and other records had been "submitted on previous case appeals," the court would only duplicate them for this appeal at Minor's expense.
The People argue these documents are not part of the record on appeal because "[n]o one at the 2018 restitution hearing, which is the basis for this appeal, referred to or mentioned . . . any exhibits appended to the prior habeas petition; the parties relied on the evidence presented at the 2018 hearing." Whether the records were discussed or relied on at the second restitution hearing has no bearing on whether they are part of the record on appeal. We conclude the 2016 Petition and related filings in case No. A149236 are part of the record on appeal in the instant appeal.
Accordingly, we grant Minor's March 4, 2019 motion to augment the record on appeal to include various filings in case No. A149236; we also grant the motion with respect to the records on appeal in previous appeals in this case. (Cal. Rules of Court, rules 8.155(a) & 8.410(b)(1).) Minor's additional request for judicial notice of records from previous appellate proceedings, made in a separate section of his opening brief rather than as a separate motion, does not comply with California Rules of Court, rule 8.252(a)(1) and First District Court of Appeal Local Rule 6(a). In any event, the request is moot in light of our decision on Minor's motion to augment.
B. Deficient Performance
"[A] defense attorney who fails to investigate potentially exculpatory evidence, including evidence that might be used to impeach key prosecution witnesses, renders deficient representation. [Citation.] California case law makes clear that counsel has an obligation to investigate all possible defenses and should not select a defense strategy without first carrying out an adequate investigation." (In re Edward S. (2009) 173 Cal.App.4th 387, 407.) " ' " '[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.' " ' " (Id. at p. 410.) If " ' "the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' " (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 (Mendoza Tello).)
As an initial matter, the People do not contend that trial counsel conducted any investigation into whether Nin in fact performed the Schuster and Brouard jobs. Indeed, the record reveals he did not. During the prosecutor's direct examination of Nin at the second restitution hearing, Nin referred to "paperwork" he "submitted [at] the last hearing." The following colloquy took place: "THE DISTRICT ATTORNEY: And, your Honor, I have a three-page exhibit. It's identical to what was previously submitted to the Court. I can have it marked as two exhibits instead of one, or if the Court just wants to use the prior exhibits, that's fine as well. "THE COURT: No, let's mark new exhibits, so I can use this. The original exhibits are in storage at the Hall of Justice, and I have copies of the original exhibits. "DEFENSE COUNSEL: I don't have any. "THE DISTRICT ATTORNEY: You didn't get the copies from the -- you weren't provided with copies? I think our office provided the Court and you copies. "DEFENSE COUNSEL: I don't believe I got those copies. "THE COURT: The estimates that were used for the original restitution hearing. "THE DISTRICT ATTORNEY: Because I think your office provided to you -- "DEFENSE COUNSEL: That could be, sometimes things get put in the box or [in the] wrong box, and I don't get things. But I hadn't seen them, no."
Without the estimates—which included detailed descriptions of the work Nin allegedly would have performed but for the surgery as well as the property owners' last names and addresses—trial counsel could not have investigated whether Nin in fact performed the work described.
Whether trial counsel's failure to investigate was reasonable in light of " ' " 'all the circumstances' " ' " (In re Edward S., supra, 173 Cal.App.4th at p. 410) must be considered in the context of the habeas proceedings that resulted in the new restitution hearing for which trial counsel was appointed. As noted above, the 2016 Petition attached a construction permit issued in January 2016 to Nin Construction for foundation replacement work for property owner Xavier Brouard at the same address as was listed on Nin's Brouard bid. The 2016 Petition also attached a February 2016 posting from the "nin construction" Facebook page indicating Nin was performing foundation repair "in Bennett valley"; the permit records indicate the Brouard property is located in Bennett Valley. Minor's counsel at the first restitution hearing was apparently aware of these documents but did not use them at the hearing, when Nin testified he had not obtained a permit for the job and only performed insulation work. (In re David C., supra, A148082 at pp. 8, 10.) In issuing the order to show cause, we found, in relevant part, that Minor established a prima facie case of ineffective assistance of counsel by "failing to use . . . evidence of which counsel then had notice to impeach Nin at the hearing." We further found Minor established a prima facie claim that, "in light of evidence predating the restitution hearing that was submitted with the habeas petition, the restitution order was based on false evidence."
In a declaration submitted with the 2016 Petition, Minor's father averred that trial counsel told him she forgot to bring the documentation to court.
The 2016 Petition also submitted evidence—not available at the time of the first restitution hearing—regarding the Schuster job. Specifically, Minor submitted a post from the "nin construction" Facebook page from May 2016, about a month after the first restitution hearing. The post states: "Kitchen update in St. Helena [¶] Removed the old countertops and installed new Quartz Carrera Marble," and includes multiple photographs. Nin's bid for the Schuster job lists a St. Helena address and includes, in the description of work to be performed, "Remove old countertops" and "Install new quartz countertop (Carrera Marble lookalike)." The 2016 Petition also submitted a printout from the real estate website Zillow.com showing photographs of the same address listed on the Schuster job estimate. In the Zillow.com photograph of the kitchen of this property, the layout, chandelier, cabinet doors, appliances, and exterior rock wall visible through the window all appear to be identical to those displayed in the photographs from the "nin construction" Facebook post.
In short, records were submitted with the 2016 Petition that indicated Nin may have performed the very work for which he claimed an economic loss. As to some of these records, this court found a prima facie claim of ineffective assistance of counsel and false evidence. In light of the 2016 Petition and this court's order to show cause, counsel's failure to conduct further investigation was deficient. Although counsel was not asked for an explanation, this is one of those rare cases in which " ' "there simply could be no satisfactory explanation." ' " (Mendoza Tello, supra, 15 Cal.4th at p. 266.)
That this court did not issue an order to show cause with respect to the records not available at the time of the first restitution hearing was not necessarily an indication to trial counsel that the evidence did not warrant further review. (People v. Romero (1994) 8 Cal.4th 728, 737 ["When presented with a petition for a writ of habeas corpus, a court must first determine whether the petition states a prima facie case for relief—that is, whether it states facts that, if true, entitle the petitioner to relief—and also whether the stated claims are for any reason procedurally barred." (italics added)].)
C. Prejudice
"[T]o obtain relief on the basis of ineffective assistance of counsel, a defendant 'need not show that counsel's deficient conduct more likely than not altered the outcome in the case.' [Citation.] Rather, the defendant must establish a reasonable probability that, but for counsel's errors, the result would have been more favorable to the defendant. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (In re Wilson, supra, 3 Cal.4th at p. 956.)
The juvenile court found that Nin's lost profits for the foundation portion of the Brouard job were $13,000, and lost profits for the Schuster job were $3,400. Given the evidence suggesting that Nin may have in fact performed this work, coupled with trial counsel's failure to conduct additional investigation, we have little difficulty concluding that our confidence in the outcome is undermined. While we do not know what counsel's investigation would have revealed, the records submitted with the 2016 Petition establish a reasonable probability that, with such an investigation, the outcome of the restitution hearing would have been more favorable to Minor. We note that—although not a factor in our analysis or decision—Minor has alleged in a companion writ petition that his appellate counsel's investigation resulted in contact with the Brouard property owner, who stated Nin performed the foundation work starting in January 2016, and the petition attaches what Minor's counsel avers to be a signed contract between Brouard and Nin dated January 22, 2016, and copies of cancelled checks totaling more than $15,000 from Brouard to Nin Construction in January and February of 2016.
Nin testified he was paid $2,000 for the Brouard insulation work.
The People argue Minor has not established that the property owners "would have agreed to submit a signed declaration or testify at the hearing." We are not persuaded that Minor needs to so establish to demonstrate prejudice; in any event, Minor could subpoena any reluctant witnesses. (Pen. Code, §§ 686, 1326; see also Ford, supra, 61 Cal.4th at p. 286 ["Because a defense witness failed to comply with a subpoena, the restitution hearing was continued . . . ."].) The People also argue Minor has not established the property owners "would have contradicted Nin's testimony." In light of the evidence submitted with the 2016 Petition, Minor has demonstrated a reasonable probability that they would.
D. Conclusion
Victim restitution is intended to compensate crime victims for actual economic losses. Trial counsel's failure to investigate leaves open the question—already presented by our order to show cause and records submitted with the 2016 Petition—whether a crime victim perjured himself in order to fraudulently inflate a restitution award. We recognize the seriousness of this question and express no opinion on the answer. We trust that the parties, their counsel, and the juvenile court will give it appropriate attention on remand.
Because we are reversing due to ineffective assistance of counsel, we need not resolve the remaining claims asserted by Minor. --------
DISPOSITION
The judgment is reversed and remanded for further proceedings not inconsistent with this opinion.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BURNS, J.