Opinion
A148082
06-28-2017
In re DAVID C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DAVID C., Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
Appellant's petition for rehearing is denied. It is ordered that the opinion filed on June 28, 2017, is modified as follows:
1. On page 3, the first two sentences of the first full paragraph, shall be modified to read:
In February 2015, David admitted one of two offenses alleged in an amended Calaveras County petition, and the case was transferred to Sonoma County. In Sonoma County, the court dismissed the new 2015 petition and the notice of violation of the terms and conditions of the November 13, 2014 disposition order.
The modification effects no change in the judgment. Date:__________
2. On page 7, the phrase, "waived the restitution fine if the minor was a dependent as well as a delinquent" appearing on lines 6 and 7, shall be modified to read: "waived the restitution fine if the minor appeared to fall within dependency as well as delinquency jurisdiction."
/s/_________ P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. admitted a misdemeanor battery on a juvenile hall correctional counselor. At a contested restitution hearing, the counselor testified that he lost private construction work due to an injury he incurred in the incident. David was ordered to pay $23,100 in restitution. David challenges the restitution order on the grounds that he was denied the benefits of a limit on restitution in Welfare and Institutions Code section 730.6, subdivision (k) (section 730.6(k)) in violation of his equal protection rights; the order violated restrictions on mandatory restitution in section 730.6; the order was not supported by substantial evidence; and he received ineffective assistance of counsel with respect to the order. We order the restitution order modified to correct a $1,000 error and otherwise affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
On September 24, 2016, David asked us to take judicial notice of the records in a prior appeal and prior habeas proceeding. We construe the request in part as a motion to incorporate by reference parts of the record in a prior appeal in the same case pursuant to California Rules of Court, rule 8.147(b)(1) and grant the motion. We take judicial notice of the record in the prior habeas proceeding.
In October 2014, David was detained in Sonoma County Juvenile Hall awaiting disposition on two sustained petitions for battery and resisting or obstructing a peace officer (Pen. Code, §§ 148, subd. (a)(1), 242). On October 9 and 21, two new wardship petitions were filed against David based on his alleged battery of a minor and of a correctional officer while he was in juvenile hall (id., §§ 242, 243, subd. (b)).
On November 5, 2014 a third wardship petition was filed. The petition (No. JUV-14103101) alleged that on October 31 David committed misdemeanor battery against another minor (Pen. Code, § 242) and misdemeanor battery against Joe Nin while he was performing his duties as a juvenile correctional counselor (id., § 243, subd. (b)). The new charges raised a conflict of interest for David's appointed counsel and new counsel (Patricia Long) was appointed on November 7.
On November 13, 2014, David admitted the charges arising from the October 31 incident and the October 9 and 21 petitions were dismissed. Long and the prosecutor agreed to submit the issue of disposition on a supplemental disposition report dated October 10. The court declared David a ward of the court, ordered out-of-home placement, imposed certain "terms and conditions," and ordered payment of two $50 restitution fines and the other fees proposed by Probation. The court pronounced orally that "probation will investigate . . . for restitution," and the minute order left the victim restitution section blank.
On December 1, 2014, David was placed at the Rite of Passage Sierra Ridge Academy (ROP) in Calaveras County. He was unsuccessfully discharged on January 13, 2015, for allegedly assaulting staff. Based on this incident at ROP, a notice of violation of the terms and conditions of the November 13, 2014 disposition order was filed in Sonoma County and a wardship petition was filed in Calaveras County. Later in January, a new wardship petition was filed in Sonoma County based on a separate staff assault alleged to have occurred just prior to David's placement at ROP.
In February 2015, David admitted a lesser offense to the Calaveras County petition, and the case was transferred to Sonoma County. In Sonoma County, David admitted the new 2015 petition and the notice of violation of the terms and conditions of the November 13, 2014 disposition order was dismissed. In March 2015, the court ordered David committed to Division of Juvenile Justice (DJJ) with a maximum period of confinement of five years, and David promptly appealed that order (No. A144496). David later filed a petition for a writ of habeas corpus collaterally attacking the DJJ commitment order (No. A145235). On December 10, 2015, we dismissed David's appeal and granted his habeas petition pursuant to a stipulation by the parties. We ordered the Sonoma County Superior Court to recall David's commitment to the DJJ, transfer him to Calaveras County so he could withdraw his admission, and hold a new disposition hearing upon his transfer back to Sonoma County.
A January 8, 2016 supplemental disposition report stated that during the October 31, 2014 incident David "pushed the staff member [(Nin)] to the ground, causing the staff to hit his head and injure his right hand," but noted that David "denied pushing staff." On the issue of restitution, Probation reported: "Nin . . . noted that during the battery he landed on his elbow which swelled up. The elbow joint area no longer fit into the elbow tunnel. This resulted in regular numbness in his fingertips and pain to his hand. He tried to rehabilitate his elbow for a year without success. On November 24, 2015, [Nin] had surgery to correct the problem and stated his elbow feels better now. His hand still throbs but the numbness is gone. When asked how this incident impacted him, he stated in addition to Juvenile Hall work, which was covered under Worker's Compensation, he is also self-employed in the construction trade. He estimated losing between $5,000 and $11,000 because he could not complete the contracted jobs. When asked if he was requesting restitution, and if so, in what amount, [Nin] noted he would otherwise request $5,000 to cover the lost income." Probation recommended that David pay $5,000 in restitution.
On January 8, 2016, the court ordered David released on electronic monitoring for 90 days, ordered him to pay restitution to Nin, and granted David's request for a hearing on the amount of restitution. The restitution hearing was twice continued in February 2016, and at a March review hearing it was reset for April 2016. Meanwhile, Long requested documentation of Nin's claim. Nin provided probation with a ledger of his business's gross receipts, and two written estimates on construction jobs for customers denominated Schuster and Brouard. The Schuster bid was dated November 10, 2015, described a countertop replacement, and quoted a price of $6,175. The Brouard bid was dated November 19, 2015 (but also included references to a December 24, 2015 walk-through), described foundation, drainage, gutter and insulation work, and quoted a total price of $25,000. Probation recommended a total restitution award of $31,175.
For the amount of restitution, $5,000 was stated orally at the hearing and written on the minute order with the phrase "to be determined" also circled.
At an April 5, 2016 restitution hearing, Nin testified and the bid estimates were admitted in evidence. The court ordered $23,100 in restitution based on Nin's losses due to his October 31, 2014 injury: $3,400 in losses attributable to the Schuster job and $19,700 attributable to the Brouard job. David appeals from the order. He has also filed a related petition for a writ of habeas corpus (No. A149236), which we address by separate order.
II. DISCUSSION
Section 730.6 governs restitution in juvenile delinquency cases. It provides: "Upon a minor being found to be a person described in Section 602, . . . the court shall order the minor to pay . . . [¶] . . . [¶] . . . [r]estitution to the victim or victims, if any, in accordance with subdivision (h)." (§ 730.6, subd. (a)(2)(B), italics added.) "Restitution . . . shall be imposed in the amount of the losses, as determined. . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. . . . A restitution order . . . shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor's conduct for which the minor was found to be a person described in Section 602, including all of the following: [¶] . . . [¶] (C) Wages or profits lost due to injury incurred by the victim . . . ." (§ 730.6, subd. (h)(1).) "A minor shall have the right to a hearing before a judge to dispute the determination of the amount of restitution." (§ 730.6, subd. (h)(2).) Although section 730.6 applies to restitution orders in probation and nonprobation cases, in probation cases it sets the floor rather than the ceiling on permissible restitution orders. (In re T.C. (2009) 173 Cal.App.4th 837, 844-845; see People v. Anderson (2010) 50 Cal.4th 19, 29 [in adult cases, restitution in probation cases is not limited by the mandatory restitution statute, Pen. Code, § 1202.4].) A. Equal Protection
David first argues that equal protection principles require he get the benefit of a statute (section 730.6(k)) that limits restitution when minors commit offenses in group homes or licensed residential facilities. Although David did not raise this argument in the trial court, it presents a pure question of law that we may address for the first time on appeal. (Ward v. Taggart (1959) 51 Cal.2d 736, 742.) We review questions of law de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800.) We nevertheless agree with the People that the claim fails on the merits.
" 'It is basic that the guarantees of equal protection embodied in the Fourteenth Amendment to the United States Constitution and article I, sections 11 and 21, of the California Constitution, prohibit the state from arbitrarily discriminating among persons subject to its jurisdiction. This principle, of course, does not preclude the state from drawing any distinctions between different groups of individuals, but does require that, at a minimum, classifications which are created bear a rational relationship to a legitimate public purpose. [Citations.] Moreover, "in cases involving 'suspect classifications' or touching on 'fundamental interests' . . . the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that distinctions drawn by the law are necessary to further its purpose [(strict scrutiny)]." ' " (People v. Smith (2011) 198 Cal.App.4th 415, 434.)
Section 730.6(k) provides: "If the direct victim of an offense is a group home or other facility licensed to provide residential care in which the minor was placed as a dependent or ward of the court, or an employee thereof, restitution shall be limited to out-of-pocket expenses that are not covered by insurance and that are paid by the facility or employee." This language was added to the statute by Assembly Bill No. 388 (2013-2014 Reg. Sess.) in 2014, which amended a number of laws related to group homes and licensed residential facilities. (See Stats. 2014, ch. 760, p. 5096.) Such facilities may house both juvenile dependents and juvenile delinquents. However, the legislative intent was to "reduce the frequency of law enforcement involvement and delinquency petitions arising from incidents at group homes and other facilities licensed to provide residential care to dependent children." (Id., § 1, italics added.) "According to the [bill's] author, older children and teens who are in foster care due to parental abuse or neglect are often placed in group homes and other residential facilities . . . . [¶] [S]ome group homes are overly reliant on law enforcement to address behavioral issues with youth leading to the youth's arrest for minor incidents that would not trigger justice system involvement for youth who live with their own parents (e.g., fights between two youth, yelling at staff, breaking or throwing objects). Once arrested, the author states that many foster youth are needlessly detained in juvenile halls and other locked facilities." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 388 (2013-2014 Reg. Sess.) as amended Aug. 18, 2014, p. 6.)
In addition to enacting the restitution limitation provision in section 730.6(k), Assembly Bill No. 388 required group homes or licensed residential facilities to report law enforcement contacts that arose from minors' conduct, required inspections of facilities with an above-average number of law enforcement contacts, barred consideration of dependent status or lack of a dependency placement in deciding whether to detain the minor, permitted consideration of whether the conduct was within the range of conduct the facility was designed to handle in recommending whether to treat the minor as a dependent or delinquent, and waived the restitution fine if the minor was a dependent as well as a delinquent. (See Stat. 2014, ch. 760, §§ 2-7, pp. 5097-5106 [adding, inter alia, Health & Saf. Code, §§ 1536, subd. (a)(2), 1538.7, and Welf. & Inst. Code §§ § 241.1, subd. (b)(3)(B), 635, subd. (b)(2), 730.6, subd. (g)(2)].) Restitution is not discussed at length in the bill's legislative history, but it is mentioned most frequently in the context of limiting the amount of restitution dependent minors may be required to pay in connection with potentially delinquent conduct that occurred while in a residential placement. (See, e.g., Sen. Com. on Public Safety, Rep. on Assem. Bill 388 (2013-2014 Reg. Sess.) as amended June 4, 2014, pp. 2-3 [describing bill's purpose to include "requiring the court to waive a restitution fine of a dependent minor for conduct occurring under the supervision of a [residential care facility], and additionally provide that if the victim is a group home or licensed residential facility in which the minor was placed, or an employee the facility, restitution shall be limited . . ."]; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 388 (2013-2014 Reg. Sess.) as amended Aug. 18, 2014, p. 5; Assem. Com. on Human Services, Concurrence in Sen. Amends. to Assem. Bill No. 388 (2013-2014 Reg. Sess.) as amended Aug. 18, 2014, p. B; Sen. Appropriations Com., Fiscal Summary of Assem. Bill No. 388 (2013-2014 Reg. Sess.) as amended June 4, 2014, p. 3.)
Section 730.6(k) was amended again in 2015, effective January 1, 2016. (Stat. 2015, ch. 131, § 1, p. 1721.) The 2014 version of the subdivision began: "This section shall not prevent a court from ordering restitution to any corporation, business trust, estate, trust, partnership, association, joint venture, government, government subdivision, agency or instrumentality, or any other legal or commercial entity when that entity is a direct victim of an offense." The 2015 amendment expanded on and moved this language into new subdivisions (j)(3) and (4), and added "of an offense" to the opening phrase of section 730.6(k). (Stat. 2015, ch. 131, § 1, p. 1723.) Despite the People's arguments to the contrary, these amendments have no bearing on the issue before us.
The manifest purpose of Assembly Bill No. 388 was to prevent juvenile dependents (and possibly juvenile delinquents) living in residential facilities from becoming involved (or further involved) in the juvenile justice system based on misconduct that would not normally lead to law enforcement intervention if committed elsewhere. The bill limited the juvenile justice system's discretion to treat such conduct as delinquent, ameliorated the consequences of that conduct (avoiding juvenile hall detention, waiving the restitution fine, limiting restitution), and created disincentives for residential facilities to rely on law enforcement to deal with such conduct (requiring reports and inspections and limiting restitution).
At the time of the October 31, 2014 misdemeanor battery of Nin, David was detained in juvenile hall and awaiting transfer to the most structured licensed residential facility available as disposition on two previously sustained delinquency petitions for battery and resisting or obstructing a peace officer. David argues "youth housed in juvenile hall awaiting transfer to licensed facilities are similarly situated to youth already in the licensed facilities for purposes of section 730.6(k): avoiding the imposition of excessive penalties for adolescent behavioral issues." As explained ante, however, the purpose of Assembly Bill No. 388 was not to "avoid[] the imposition of excessive penalties for adolescent behavioral issues" generally, but to avoid excessive penalties for relatively minor misconduct by dependent youth in group homes or licensed residential facilities. While section 730.6(k) by its plain language applies to delinquent as well as dependent youths in such placements, the Legislature can make a classification overinclusive for any rational reason. (See Johnson v. Department of Justice (2015) 60 Cal.4th 871, 887). The broad scope of section 730.6(k) serves the legislative purpose of providing residential facilities with an incentive to handle relatively minor misbehavior themselves rather than involving law enforcement regardless of whether a particular minor is already involved in the juvenile justice system. Extending the rule to the misconduct of an adjudicated delinquent within juvenile hall, however, would not serve that purpose.
Thus, David was not similarly situated to the minors intended to benefit from section 730.6(k)'s limitation on restitution (see In re Eric J. (1979) 25 Cal.3d 522, 530-533 [where groups are not similarly situated, difference in treatment is not equal protection violation]), and we reject his equal protection argument. B. The Restitution Order was a Condition of Probation
Several of David's arguments turn in part on whether the restitution order was a condition of David's probation and, if so, whether the specific limitations of section 730.6 apply to the order. We agree with the People that the restitution order was imposed as a condition of probation and that section 730.6 therefore did not restrict the court's authority to impose the restitution order.
After David admitted committing the October 31, 2014 offense against Nin, the court's disposition committed David to the care of probation for a suitable placement and ordered David to comply with various terms and conditions, including a requirement that he obey all laws. After the incident at ROP in Calaveras County, a notice of violation of probation was filed based on David's failure to obey all laws. At the renewed disposition hearing in 2016, David was ordered released from custody subject to the supervision of probation, terms and conditions were again imposed, and he was ordered to pay restitution in an amount to be determined by the court. Both the 2014 and 2016 dispositions were grants of probation.
David argues "restitution was specifically ordered pursuant to section 730.6 [(citing the trial court's mention of § 730.6 at the restitution hearing)], not as a condition of probation. Therefore, it was limited to the 'explicit and narrow' terms of section 730.6." We agree with the People, however, that a restitution order may be imposed as a condition of probation pursuant to section 730.6 and still not be limited by that section. Section 730.6, subdivision (l) provides that a "court shall require, as a condition of probation, the payment of restitution . . . orders imposed under this section," but as noted ante, case law establishes that juvenile courts also have discretion to condition probation on the payment of restitution beyond what is authorized by section 730.6. (In re T.C., supra, 173 Cal.App.4th at pp. 844-845.) David argues the restitution order was not a condition of probation because it was imposed more than a year after he was originally placed on probation in November 2014. Restitution, however, is mandatory and a sentence may be corrected at any time to include it while the court still has jurisdiction over the case. (People v. Moreno (2003) 108 Cal.App.4th 1, 10.)
Again, a trial court's discretion to impose restitution as a condition of probation is not restricted by the specific requirements of the mandatory restitution statutes. " 'Under certain circumstances, restitution has been found proper [in probation cases] where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation]. There [also] is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action. [Citation.]' [Citation.] In [People v.] Carbajal[ (1995) 10 Cal.4th 1114], we upheld a restitution order for property damage after concluding that 'in the context of the hit-and-run statute, the restitution condition may relate to conduct that is not in itself necessarily criminal, i.e., the probationer's driving at the time of the accident.' (Id. at p. 1123, fn. omitted.)" (People v. Anderson, supra, 50 Cal.4th at p. 27.) In Anderson, the court upheld a restitution order requiring a probationer to pay a deceased victim's hospital bills even though the hospital was not the direct victim of the defendant's crime. (Id. at pp. 31-33.) In In re T.C., the court upheld a restitution order requiring a ward on probation to pay losses incurred as a result of conduct that was the subject of a dismissed charge. (In re T.C., supra, 173 Cal.App.4th at pp. 847-848.)
A trial court's discretion to order restitution as a condition of probation, " 'although broad, nevertheless is not without limits; a condition of probation must serve a purpose specified in the statute.' [Citations.] [¶] We determine whether the restitution order, as a condition of probation, is arbitrary or capricious or otherwise exceeds the bounds of reason under the circumstances. [Citations.] '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.)" (People v. Anderson, supra, 50 Cal.4th at pp. 31-32; see In re T.C., supra, 173 Cal.App.4th at p. 845.)
With these principles in mind, we turn to the remaining substantive claims raised in David's appeal. C. Direct Victim
David argues "the restitution order was statutorily unauthorized because Nin Construction was not a direct victim of [David's] conduct" as required by section 730.6, subdivision (j)(3). As discussed, because restitution was ordered as a condition of David's probation, the court was not restricted by the requirements of section 730.6 in fashioning the restitution order. In any event, the court ordered David to pay restitution to Nin, not Nin Construction, and David does not dispute that Nin was a direct victim of his conduct. We address whether lost profits was an appropriate measure of Nin's personal damages in the context of David's challenges to the amount of restitution. D. Burden of Proof
David argues the trial court misapplied the burden of proof at the restitution hearing. We disagree.
On victim restitution, "[t]he burden is on the party seeking restitution to provide an adequate factual basis for the claim." (People v. Giordano (2007) 42 Cal.4th 644, 664.) "Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim." (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543.)
Because Nin testified under oath at the restitution hearing and produced documentary evidence in support of his claim, we need not address a split in authority as to what constitutes a prima facie showing of economic losses. (See, e.g., People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 [victim's statement of losses to a probation officer sufficient]; People v. Harvest (2000) 84 Cal.App.4th 641, 653 [mention of claim in probation report without supporting documentation or testimony insufficient]).
We do not hold that the trial court's role is limited to determining whether the victim has made a claim for restitution and whether it is supported by any evidence, particularly after a defendant has challenged the restitution claim and asked for a restitution hearing. The court must evaluate whether the restitution evidence is credible. On this issue, however, our review is deferential, as we explain post.
While ruling from the bench, the court said: "Nin testified that he was an employee of the probation department, that he was involved in a physical altercation with the minor on October 31st, 2014. The minor did admit an allegation in the petition involving assaultive conduct on the individual, Mr. Nin. [¶] The burden does shift to the defendant to show that this was not the cause of the engagement, and the burden also shifts to the defendant to show that the economic loss being claimed is not proper under the case law and the statutes." Relying on this passage, David argues "[t]he court's comments indicate that it believed that it was sufficient for the prosecution to merely establish the fact that the minor admitted to an offense involving the victim" to establish a prima facie case. Other comments by the court, however, demonstrate that it understood the prosecution needed to make a prima facie case establishing that David's conduct caused Nin to incur a loss and the amount of the loss. The court noted during argument that "the uncontroverted testimony today is that [Nin] was told that he would have gotten these bids and he didn't get these bids during the time period in which he was recovering from surgery" and the court directly elicited testimony from Nin that he injured his left elbow as a result of the October 31, 2014 incident. Moreover, the trial court correctly summarized the burden of proof when it said immediately after the close of evidence: "[O]nce the amount is established, the burden's on the defense to refute the claim."
We therefore reject David's claim of legal error by the trial court. E. Sufficiency of the Evidence
David argues the restitution order is not supported by substantial evidence presented at the restitution hearing. Specifically, he argues there was insufficient evidence of causation and of the amount of Nin's losses from losing the Schuster and Brouard bids. We conclude the trial court's findings were supported by substantial evidence.
" 'In reviewing the sufficiency of the evidence, " '[t]he 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.' " (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) Nevertheless, "the California Supreme Court recognizes limits on the type of evidence which may be considered when imposing a sentence or setting probation conditions. [Citation.] 'While Williams [v. New York (1949) 337 U.S. 241] does not require the same procedural safeguards at probation hearings as in the case of a trial . . . an applicant for probation is nevertheless entitled to relief on due process grounds if the hearing procedures are fundamentally unfair.' [Citation.] A condition of probation may be deemed fundamentally unfair if the judge improperly considered unreliable information. Due process demands penal systems be concerned with 'the probable accuracy of the informational inputs in the sentencing process.' [Citation.] Not only is it fundamentally unfair for a court to consider false information [citation], but it is also unfair for it to consider evidence which is vague or inaccurate [citation]." (People v. Goulart (1990) 224 Cal.App.3d 71, 82-83.)
1. Causation
David correctly argues that causation is an element of the prima facie showing necessary to establish a right to mandatory restitution. Restitution is designed to reimburse crime victims for "economic loss as a result of the minor's conduct." (§ 730.6, subd. (a)(1).) "This is language of causation." (In re A.M. (2009) 173 Cal.App.4th 668, 673; see Luis M. v. Superior Court (2014) 59 Cal.4th 300, 308 [citing A.M. favorably on this general point].) Even when restitution is ordered as a condition of probation, "it must serve at least one purpose [of probation]. [Citation.] While restitution serves the obvious function of compensating crime victims, its primary goal is the rehabilitation of the criminal. [Citations.] For a restitution order to have such an effect, it must directly relate to the crime the defendant has committed." (People v. Goulart, supra, 224 Cal.App.3d at pp. 78-79, fn. omitted.)
David argues there was insufficient evidence that (1) Nin's elbow injury resulted from David's conduct, and (2) surgery on Nin's left elbow caused Nin to lose the Schuster and Brouard construction jobs. As the trial court expressly noted, however, Nin testified under oath that the October 31, 2014 incident led to his elbow injury, and surgery for the elbow injury caused him to lose the Schuster and Brouard construction jobs that he would otherwise have been hired to perform. Because the trial court awarded Nin restitution based on those bids, we infer that the court found Nin's testimony credible on these two points. The testimony of a single witness is substantial evidence to support a factual finding. (People v. Maxwell (1979) 94 Cal.App.3d 562, 577.)
David suggests the trial court's references to testifying under oath indicated that the court suspected Nin was not being truthful in his testimony. In context, however, the comments suggest the court was merely making a record that there was substantial evidence (i.e., victim testimony under oath) to support the restitution award.
David also argues the prosecution needed to present testimony by a medical expert opining to a reasonable medical probability that the October 31, 2014 incident led to Nin's elbow injury. We disagree. David relies on law governing proof of damages in civil tort actions. (See, e.g., Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) The restitution hearing, however, need not "approximate the formality of a civil trial." (People v. Hartley (1984) 163 Cal.App.3d 126, 130.) "There is no requirement the restitution order . . . reflect the amount of damages that might be recoverable in a civil action." (People v. Carbajal, supra, 10 Cal.4th at p. 1121.)
2. Amount of Restitution
A trial court may " 'use any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole . . . .' " (People v. Goulart, supra, 224 Cal.App.3d at p. 83.) "[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." (People v. Giordano, supra, 42 Cal.4th at pp. 663-664.)
The trial court noted that Nin testified under oath that he lost $3,400 profit on the Schuster job and $21,000 profit on the Brouard job. Nin also testified that he had not incurred permit and materials costs in those bids and that he ultimately performed the insulation portion of the Brouard bid. The court awarded $3,400 for losses on the Schuster job and "[i]n regards to the [Brouard] bid, . . . the Court's going to order restitution in . . . the amount of $19,700. . . . [T]here was $4,000 in materials, $800 permit . . . he did not have to get, so I'm taking $25,000 and minusing $4,800 for 20,200, and then I'm offsettting that by 1,500 for the work that he did. . . . [¶] So the new amount of restitution will be $23,100 . . . ." Nin's testimony provided substantial evidence to support the court's findings with the exception of a single calculation error we discuss post.
David argues the evidence only supports a loss of $14,400 on the Brouard bid. He argues that the Brouard bid estimate shows that Nin bid on a $16,500 foundation job in November 2015, and made the remaining parts of the bid (i.e., the second and third pages of the estimate) in late December after Nin had apparently recovered from the November 24 surgery. We disagree. The bid estimate is ambiguous because it is dated November 19, on the first page, but includes references on the first and second pages to a December 24 walk-through when Nin encountered standing water in the home, as well as a reference to standing water (presumably the same standing water Nin observed on December 24) on the third page. We see no basis to infer that the first page of the estimate represents work bid in November and the second and third pages represent work bid in or after December. Instead, it appears the entire bid was updated on or after December 24. The trial court elicited testimony from Nin that he performed only the insulation part of the bid (which appears on the third page of the estimate) and received $1,500 for labor for that work. The court credited that testimony and adjusted its calculation of Nin's losses accordingly.
David also argues the trial court made separate calculation errors in the amounts of $1,300 and $1,000. The People concede the $1,000 error, and we agree that the restitution order must be reduced by $1,000.
David's argument regarding a $1,300 error is based on a misreading of the bid estimate. The foundation portion of the estimate lists three costs: $800 for a permit; $500 written next to the line "Remove soft water system and re-install soft water system after foundation is complete," which appears to refer solely to labor costs; and "Materials and Labor $16,500.00" at the end of the foundation section of the bid. It is not clear from this page of the estimate whether the $16,500 figure includes the prior $800 and $500 figures. However, the totals on the last page of the bid only make sense if the $800 and $500 figures are additional to the $16,500 figure. David's claim that $26,000 overstated the total by $1,300 results from his not counting the $500 and $800 costs on page one—his error not the trial court's.
The $1,000 error, on the other hand, resulted from either a subtraction error when the court explained how it arrived at the total of $23,100 (quoted ante). The court explained that it subtracted $4,000 in materials costs, $800 for the permit, and the $1,500 in labor received for the insulation work (total $6,300) from $25,000 for a loss of $19,700 on the Brouard bid. When added to the $3,400 loss on the Schuster bid, the court stated the total was $23,100. However, deducting $6,300 from $25,000 results in an amount of $18,700, not $19,700. The total restitution amount inclusive of the Schuster bid is therefore $22,100. We will direct the trial court to correct the error.
David finally argues the court erred in basing the restitution award on lost revenues rather than lost profits. Specifically, he argues the court failed to deduct tax, overhead, rent and other operating expenses from the "labor" revenue he would have received from the Schuster and Brouard jobs. The People argue David forfeited this argument by failing to raise it below. We agree. (In re S.S. (1995) 37 Cal.App.4th 543, 547-548.) In any event, the court could have inferred from the informality of Nin's business records and the fact that Nin carried out the business as a side job that Nin's overhead costs were minimal. The court also reasonably could have inferred that few routine overhead costs of the business were avoidable given the short term of Nin's disability. Finally, David cites no authority that taxes should be deducted from victim restitution awards. F. Ineffective Assistance of Counsel
Similarly, David also forfeited his argument that Nin failed to mitigate his losses.
David argues he received ineffective assistance of counsel at the restitution hearing on several grounds.
" 'A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or . . . sentence has two components.' [Citations.] 'First, the defendant must show that counsel's performance was deficient.' [Citations.] Specifically, he must establish that 'counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] [¶] In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny." (People v. Ledesma (1987) 43 Cal.3d 171, 216.) When an ineffective assistance of counsel claim is raised on direct appeal, " ' "[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.' [Citation.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Second, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Ledesma, at pp. 217-218.)
1. Investigation of the Restitution Claim
As noted ante, "[o]nce the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim." (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543.) Several courts have found that a victim's mere statement of losses to a probation officer as reported in a probation report is sufficient to shift the burden. (See, e.g., ibid.) In light of this low evidentiary bar for establishing prima facie restitution claims, which can be quite onerous, it is incumbent on trial counsel to investigate restitution claims and gather evidence to challenge such claims at restitution hearings if reasonably available.
Before the hearing, Long knew that Nin had reported a right hand injury in an incident report shortly after the October 31, 2014 incident, and that Nin was claiming restitution based on a left elbow injury. She also knew that Nin was claiming a substantial amount of restitution: the probation department recommended, and the court initially ordered, $31,175 in restitution. Nevertheless, Long failed to subpoena Nin's medical records to determine whether they would support or undermine Nin's claim that the October 31, 2014 incident caused his elbow injury. Long told the court during the restitution hearing that she mistakenly believed she could not subpoena Nin's medical records because they were privileged. The trial court explained that it could have reviewed the documents in camera and released pertinent records under a protective order. The appellate record, therefore, demonstrates that Long did not make a strategic choice not to subpoena the records, but made that decision due to a legal error. She did not recognize the error early enough in the restitution hearing to timely request a continuance, and her midhearing request for a continuance elicited a prosecution objection and was denied by the trial court.
David argues the trial court abused its discretion in denying the continuance. (See § 682, subd. (b) ["[a] continuance shall be granted only upon a showing of good cause"].) We disagree. Long did not request the continuance until well into the restitution hearing attended by the victim and she did not demonstrate good cause for her failure to seek the medical records earlier.
For the foregoing reasons, we conclude counsel provided deficient performance with respect to preparing for the restitution hearing. (See In re Edward S. (2009) 173 Cal.App.4th 387, 411 [gap in legal knowledge may establish deficient performance].) However, David has not shown that he suffered prejudice and cannot do so based on the appellate record, which does not include the medical records.
David argues the probation department violated his due process rights by failing to adequately investigate Nin's restitution claim. We agree with the People that this claim is forfeited because it was not raised below. (In re S.S., supra, 37 Cal.App.4th at pp. 547-548.)
David also argues that during the restitution hearing Long failed to follow up on Nin's testimony that he had surgery for a finger injury on November 7, 2015, approximately two weeks before he had his elbow surgery, which begged the question whether and to what degree the first surgery had contributed to the loss of the Schuster and Brouard bids. However, without Nin's medical records, David cannot show he was prejudiced by this omission. --------
2. Restitution Hearing
David argues he received ineffective assistance at the restitution hearing as well. He first argues Long failed to move into evidence a permit and photograph that she represented would impeach Nin's claim that he lost the Brouard bid. She told the court at the start of the hearing: "The construction on the Brouard property was completed by Mr. Nin in January 2015. He pulled the permit. We have the permit." She also mentioned "a picture on [Nin's] web site of him at the property." However, she did not thereafter use the permit or picture when cross-examining Nin or move them into evidence. On the appellate record, we cannot conclude that this omission amounted to deficient performance. Nin testified that he performed one part of the Brouard job in 2015. Long might have determined that the permit and picture would not have contradicted Nin's testimony and thus declined to move them into evidence. Because the potential exhibits are not before us in this appeal, we cannot determine whether Long might have had a strategic reason for not moving the exhibits into evidence.
David also argues Long failed to move Nin's ledger into evidence to demonstrate that Nin's average earnings before November 2015 had been $5,000 per month gross, which would have demonstrated that his restitution claim was inflated. Long had the ledger marked for identification and questioned Nin about it, establishing that the amounts listed represented gross revenue, not profit. After the close of evidence, Long mentioned the ledger during her argument to the court and said: "I did not ask to have this entered. Perhaps I should ask to have it entered." She asked the prosecutor to consent to its admission, but the prosecutor objected. During closing argument, Long noted the discrepancy between the revenue shown on the ledger (averaging about $5,000 a month) and the amount claimed in restitution. The court, however, questioned the ledger's relevance, saying, "[T]he uncontroverted testimony today is that he was told that he would have gotten these bids and he didn't get these bids during the time period in which he was recovering from surgery." Because the ledger would not have directly contradicted the testimony cited by the trial court, we cannot conclude that its admission would have changed the outcome of the hearing.
Finally, David argues Long failed to argue the probation department, which was charged with investigating Nin's restitution claim and making a restitution recommendation, had a conflict of interest because Nin was a juvenile hall correctional counselor. This contention of bias is speculative. In any event, the alleged institutional conflict of interest would have been readily apparent to the trial court, so David cannot show prejudice. David also argues Long failed to argue the bid numbers were only estimates, but again this fact would have been readily apparent to the trial court. In any event, the court is not required to order restitution equal to the victim's exact losses. (People v. Petronella (2013) 218 Cal.App.4th 945, 973.)
In sum, we conclude David has not established his ineffective assistance of counsel claims on direct appeal.
III. DISPOSITION
The restitution order is modified to reduce the total restitution owed from $23,100 to $22,100. As modified, the order is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.