Opinion
A164963
05-05-2023
In re W.S., a Person Coming Under the Juvenile Court Law. v. W.S., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. J1900100)
TUCHER, P.J.
Minor W.S. appeals from restitution orders after he was found to have committed a lewd act on a child. His sole contention is that his counsel rendered ineffective assistance in failing to request a continuance of the restitution hearing to investigate the wage losses claimed by the victim's father. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
The Petition and Wardship
The District Attorney filed a juvenile wardship petition in January 2019 alleging Minor, then 17 years old, had committed a forcible lewd act on a child (Pen. Code, § 288, subd. (b)(1); count 1); forcible oral copulation (§ 287, subd. (c)(2)(A); count 2); forcible sexual penetration of a child (§ 289, subd. (a)(1)(B); count 3); and sodomy by use of force (§ 286, subd. (c)(2); count 4). The petition was later amended to add an allegation that Minor committed a lewd act on a child. (§ 288, subd. (a); count 5.) According to the probation report, the victim (Doe) reported that Minor sexually abused him multiple times approximately two years previously, when he was in first or second grade. Minor was Doe's babysitter at the time.
All undesignated statutory references are to the Penal Code.
Minor admitted count 5 and the remaining counts were dismissed. The juvenile court adjudged him a ward and ordered him placed in a court-approved home or institution.
Restitution to Doe's Family
Doe's family sought restitution, calculating their losses in varying manners during the proceedings. Their initial request, made in a July 28, 2021 email from Doe's mother (Mother) to the probation department, included $1,000 for a new mattress and bedding; $20,700 for therapy for Doe, $22,080 for twice-weekly tutoring until Doe graduates from high school; reimbursement of one year of Mother's salary at a company owned by Minor's father, where she was formerly employed; and reimbursement of one year's mortgage payments-a total of $31,800-to compensate for Doe's father (Father) having reduced his work hours from 11 hours a day to seven hours a day so Doe would not have to be placed in child care.
The probation department had told both parents they would need to provide documentation of their expenses. The department reiterated in July and August 2021 that the family must document the expenses paid out of pocket. In an August 18, 2021 report to the court, the probation department explained that Doe's parents appeared unwilling to provide supporting documentation, and it recommended that no restitution be awarded to them.
As of the time of a September 2021 probation department report, Doe's family now sought restitution of $91,251.88, including not only $32,325.84 for a year's worth of mortgage payments but also $10,501.60 for a year's property taxes; $37,504.44 for the mother's lost wages after she said she was forced to quit working for Minor's father due to hostility regarding Minor's offense; and $9,920.00 for tutoring.
A restitution hearing took place on January 5, 2022. Before the hearing, the juvenile court ordered "[a]ll restitution documents to be exchanged well in advance of next hearing."
Mother's Testimony
Mother testified the family paid for tutoring for Doe, who began struggling in school after the sexual assaults. Doe received therapy, the cost of which was covered by insurance. Doe's father (Father), who had previously worked 10-hour days, began leaving work at 2:00 in the afternoon so he could be home with Doe after school.
Mother testified that she worked for Minor's father's company and was fired on October 31, 2016, more than two years before Minor disclosed the sexual abuse. She began working at a new job in May 2017. She withdrew her request for a year's worth of lost wages from Minor's father's company.
Father's Testimony
Father testified that he was self-employed as a truck driver. After he learned of the sexual abuse, he reduced his work schedule by approximately 12 hours a week so Doe would not need a babysitter after school. He was paid $150 an hour for his trucking services, and after paying costs such as fuel and maintenance he made about $98.75 per hour. His reduced work schedule continued from November 2018, when Father learned of the abuse, until March 2020.
Minor's counsel objected to this testimony on the ground he had not received advance notice of Father's claim that he lost $98.75 an hour for his reduced schedule. The juvenile court said that its earlier order requiring exchange of documents did not preclude testimony about a claim, and it went on, "I think the remedy is if you haven't had sufficient notice to meet this, . . . I would give you time to do so." Counsel replied, "I don't know what he's going to say yet, so I guess we should listen to what he says, then I'll decide if I need more time."
On cross-examination, Minor's counsel asked Father why he had not produced business records to substantiate his claim, and Father said he had not been told to bring documentation, but he said he could get it. He had tax returns that would reflect the amounts to which he testified, he said.
Restitution Award
The prosecutor asked for the restitution award to include $78,210 for Father's lost work time, calculated as 12 lost hours of work a week, at $98.75 per hour, for 66 weeks. Minor's counsel argued that Father's statements that he could support his claims with tax documents and business records was at odds with his failure to produce those documents for months and that any documents the parents produced might well not substantiate their claims. And, he argued, it was difficult to cross-examine Father on his claim for lost income when the claim was made at the last minute.
The juvenile court issued a restitution order on February 8, 2022. It ordered restitution of $86,390, an amount that included $78,210 for Father's lost earnings, explaining as it did so that it credited Father's testimony about his reduced work hours and that Minor had not rebutted Father's prima facie showing. The court ordered no restitution for the victim's family's mortgage and property taxes or for Mother's lost wages, finding the evidence did not show these items were caused by Minor's offenses.
On February 14, 2022, the juvenile court entered an "Order for Victim Restitution," terminated Minor's probation successfully, and dismissed the case.
Minor appealed from the restitution orders.
DISCUSSION
Minor contends his counsel rendered ineffective assistance in failing to request a continuance to investigate Father's claim that he makes $98.75 per hour, one the trial court indicated it would be inclined to grant upon request. A continuance was necessary, he argues, to satisfy his due process right to sufficient notice to investigate and oppose the amount sought. (See In re S.S. (1995) 37 Cal.App.4th 543, 548; People v. Thygesen (1999) 69 Cal.App.4th 988, 993.) He does not dispute that the testimony at the hearing was sufficient to establish a prima facie showing of the amount of Father's lost income, causing the burden to shift to him to disprove it. (See People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 [victim's uncorroborated statement about value of item may support order for restitution].) But, he contends, his counsel's failure to seek a continuance deprived him of the opportunity to rebut the evidence, presented for the first time at the restitution hearing, of the amount of Father's lost earnings. And he argues the evidence, particularly the varying calculations of the value of Father's lost wages, suggests Father's claim was inflated.
This claim of ineffective assistance requires Minor to show that his counsel's performance" 'fell below an objective standard of reasonableness under prevailing professional norms.'" (People v. Majors (1998) 18 Cal.4th 385, 403.) He must also show prejudice, that is, that it is reasonably probable the result would have been different but for counsel's unprofessional errors. This is a probability sufficient to undermine confidence in the outcome. (Ibid.) A reviewing court defers to counsel's reasonable tactical decisions, and we indulge a" 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" (People v. Lucas (1995) 12 Cal.4th 415, 436-437 (Lucas).) On direct appeal, we reverse for ineffective assistance"' "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission." '" (Id. at p. 437; see Majors, at p. 403.)
The Attorney General argues Minor's counsel may well have had a tactical reason not to seek a continuance, because he might have thought an investigation would reveal Father's lost income to be even greater. He relies on People v. Foster (1993) 14 Cal.App.4th 939, superseded by statute on another ground as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245. The defendant in Foster was ordered to pay restitution to the victim of a burglary, including $8,000 for a Persian rug. (Foster, at p. 943.) This value was based solely on the victim's statement that she bought the rug for that amount. (Id. at p. 944.) The appellate court rejected the defendant's contention that the award should be stricken because there was no evidence of the replacement cost of the rug, holding that a property owner's statements about the value of her property, even without documentation, is acceptable as prima facie evidence of its value. (Id. at pp. 945-946, 948.) It also rejected his contention that defense counsel provided ineffective assistance by failing to object to the amount of restitution recommended in the probation report. Counsel might have thought the replacement cost of the rug exceeded the victim's original cost, and on appeal the defendant gave no hint of any showing he might have made to contest the victim's valuation. (Id. at pp. 947-948.)
The same is true here. Bearing in mind the last-minute nature of Father's claim, the family's shifting demands, and their failure to provide documentation of the lost earnings, Minor's counsel may have made the tactical decision that it would be better to cast doubt on the veracity and accuracy of Father's claim as a whole, in the hopes the court would reject it outright and award nothing for lost income, than to seek a continuance to carry out an investigation that might result in a reduction of the restitution but could also lead to a higher award. We are not confident of the extent to which other lawyers would have assessed this decision the same way, but Minor has not established that the decision falls outside the bounds of reasonable professional representation. (See Lucas, supra, 12 Cal.4th at pp. 436-437.) Minor has thus not met his burden to show his counsel could have had no rational tactical purpose. (Ibid.)
DISPOSITION
The orders of February 8 and February 14, 2022 are affirmed.
WE CONCUR: PETROU, J. RODRIGUEZ, J.