Opinion
H041802
12-15-2015
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ALLEN SHERRY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1482229)
I. INTRODUCTION
Defendant Daniel Allen Sherry pleaded no contest to vehicular manslaughter while intoxicated without gross negligence (Pen. Code, § 191.5, subd. (b)). The trial court sentenced defendant to two years in jail. Following a restitution hearing, the court ordered defendant to pay $994,450.11 to the victim's wife.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court erred in the restitution award because the court (1) awarded restitution for the value of the victim's damaged vehicle twice, (2) failed to offset the award by the amount defendant's insurer offered the victim's wife, and (3) failed to reduce the award for future losses to present value. For reasons that we will explain, we will affirm the restitution order.
II. FACTUAL AND PROCEDURAL BACKGROUND
In April 2014, defendant was driving eastbound at approximately 50 to 60 miles per hour in a 40-mile-per-hour zone when he drove through a red light and hit the victim's northbound vehicle. Defendant had a blood-alcohol level of 0.14 percent and did not sustain any life threatening injuries. The victim died at the hospital.
As defendant was convicted by plea, the summary of his offense is taken from the probation report, which was based on a report by the San Jose Police Department. --------
A. The Plea and Sentencing
Defendant pleaded no contest to vehicular manslaughter while intoxicated without gross negligence (§ 191.5, subd. (b)), with the understanding that he would receive two years in jail. Pursuant to the negotiated disposition, the trial court sentenced defendant to two years in jail. The court also set the matter for a restitution hearing.
B. The Restitution Claim
According to the probation report, the victim's wife sought restitution in the amount of $12,183 for one-time losses, $38,055 for recurring yearly losses, and $2,747,430 for the victim's lost wages and retirement benefits.
Defendant filed a memorandum contesting the restitution claim. Defendant contended that the claim for lost salary and retirement benefits did not take into account taxes, deductions, and other expenses that the victim would have been subject to. Defendant also argued that it was unrealistic to assume the victim would have remained in his position as a parole agent until the age of 60, given the demands of the job and the generous retirement plan available to the victim at age 50. Defendant further argued that restitution should not include certain costs related to a locksmith and security alarm system. Defendant also contended that it would be better to resolve the entire claim, including for potential future earnings, in a civil court.
The People filed a memorandum seeking restitution on behalf of the victim's wife and two children. The People explained that the victim's family claimed a total of $3,064,053. The amount was based on future lost salary/wages of $1,630,368, future lost retirement benefits of $1,117,062, recurring yearly losses of $38,055 for eight years or $304,440, and one-time losses of $12,183. The People argued that the victim's family was entitled to $3,061,980.11, which represented the amount claimed by the victim's family except for costs related to locks and a security system.
In reply, defendant clarified that he was contesting the entire amount of restitution claimed ($3,064,053), and that an award of that amount would be a "windfall, arbitrary, and an abuse of discretion." Defendant argued that a surviving spouse is entitled to lost support rather than the victim's potential earnings.
The victim's wife and children filed a memorandum in support of their claim for restitution in the amount of $3,061,980.11. They argued that defendant was required to pay the full amount of wages the victim would have earned had he not died, and that the sum should not be reduced for taxes or other amounts. In a supporting declaration, the victim's wife detailed the victim's employment, including his position as a state parole agent, his salary, and his retirement benefits. She explained that the victim had intended to work for another 17 years, until he was 60 years old, before retiring. She also indicated that the victim would have earned $95,904 per year for the next 17 years, or $1,630,368, which he would have provided to support the family. She further stated that the victim would have received $83,436 per year in retirement benefits for 17 years, or $1,117,062, based on life expectancy tables. The victim's wife acknowledged that defendant had tendered his insurance policy limit of $15,000, which she had not accepted as of the date of her declaration, December 5, 2014. Among other documents attached to her declaration was a chart detailing the economic losses suffered by the family as a result of defendant's conduct, including future lost wages and retirement benefits totaling $2,747,430, other recurring yearly losses of $38,055, and one-time losses of $12,183.
C. The Restitution Hearing
The restitution hearing was held on December 15, 2014. The trial court indicated that the court and the parties had had "some discussions in the back about restitution" and that they had "discussed what the Court intends to impose." On the record, the court heard from the victim's wife. Defendant generally objected to the claim for restitution "[i]n order to preserve [his] rights" without making any specific argument.
The trial court ultimately ordered $994,450.11 in restitution to the victim's wife. The court explained the basis for the amount as follows: "[T]he Court took the annual salary of [the victim], and while I don't believe it's appropriate for the criminal court to calculate out in perpetuity or into [the victim's] lifetime earning potential, that might be something better served in a different court, but in this court I did find that for his annual salary the Court would calculate that for ten years, that total being $959,040. There was a one time expense of all the things that [the victim's wife] had to incur in relation to services and traveling. That was $10,110.11. The Court will award that. And then there was the amount of the vehicle, which is $8500. The Court will award that. The Court will award childcare for one year at the rate of $600 per month for $7200, and the [earnings loss by the victim's wife due to the loss of a promotion] . . . the Court will award that . . . for two years, so that will total $9600 . . . ." The court also imposed 10 percent interest commencing from the date of sentencing.
III. DISCUSSION
Defendant contends that the trial court erred in the restitution award because the court (1) awarded restitution for the value of the victim's damaged vehicle twice, (2) failed to offset the award by the amount defendant's insurer offered the victim's wife, and (3) failed to reduce the award for future losses to present value. Defendant also argues that his claims are not forfeited, and that trial counsel rendered ineffective assistance to the extent defendant forfeited the claims concerning an insurance offset and the reduction for present value.
We will consider the forfeiture issue in the context of each claim raised by defendant after setting forth general legal principles regarding victim restitution and the standard of review.
A. General Principles Regarding Victim Restitution
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 People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano) [discussing former Cal. Const., art. I, § 28, subd. (b)].) This constitutional mandate is implemented by section 1202.4, 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 or any other showing to the court." (§ 1202.4, subd. (f); see id., subd. (a)(1); Giordano, supra, 42 Cal.4th at p. 656.) A "victim" for purposes of restitution includes not only the actual victim of the offense, but also immediate family members as well as a spouse or child "who has sustained economic loss as the result of a crime." (§ 1202.4, subd. (k)(1), (3)(A).) "The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so . . . ." (§ 1202.4, subd. (g).)
"The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1).) "At a victim restitution hearing, a prima facie case for restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] 'Once the victim has [i.e., the People have] made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.]' [Citation.]" (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard); see Giordano, supra, 42 Cal.4th at p. 664.)
"To the extent possible, the restitution order . . . shall identify each victim and each loss to which it pertains, and 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 . . . ." (§ 1202.4, subd. (f)(3).) Economic losses may include the value of damaged property and lost wages (id., subd. (f)(3)(A), (D) & (E)), as well as "[i]nterest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court" (id., subd. (f)(3)(G)).
"A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall. [Citations.] While the court need not order restitution in the precise amount of loss, it 'must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.' [Citations.]" (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172-1173.)
B. Standard of Review
A trial court's restitution order is ordinarily 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." (Id. at pp. 663-664.) However, " '[t]here 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.]" (Millard, supra, 175 Cal.App.4th at pp. 26-27.) "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, supra, at p. 664.)
C. Analysis
1. One-time losses
The victim's wife sought restitution for one-time losses of $12,183. Among other evidence submitted in support of the claim was a chart prepared by the victim's wife detailing the one-time losses, including amounts for mortuary services and grief counseling. Based on the chart, it appears that the victim's wife included within those one-time losses the loss of the victim's vehicle, which was valued at $8,500. The wife indicated in the chart that the vehicle had been "totaled."
At the restitution hearing, the trial court awarded $10,110.11 for one-time losses, without specifying which of the claimed one-time losses the court was or was not including in the sum awarded. The court also awarded $8,500 for the loss of the victim's vehicle.
On appeal, defendant contends that the trial court erroneously awarded the value of the vehicle twice - once as a part of the sum awarded for one-time losses and a second time as a separate item. He also contends that his claim is reviewable on appeal.
The Attorney General contends that defendant's claim was not raised below and therefore his claim on appeal is forfeited. The Attorney General further contends that, even if defendant is correct that the trial court awarded the value of the vehicle twice, defendant has failed to show an abuse of discretion. According to the Attorney General, a restitution award need not be limited to the exact amount of the loss, and the purposes of a restitution order include not only indemnification of the victim, but also rehabilitation and deterrence with respect to the defendant.
Generally, "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" are forfeited if not raised below. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) "In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Id. at p. 354.)
The California Supreme Court has determined that claims of error regarding restitution orders, including claims based on the amount of the order or the sufficiency of the evidence to support the order, are forfeited if not raised in the trial court. For example, in People v. Brasure (2008) 42 Cal.4th 1037 (Brasure), the trial court awarded restitution without objection to the victim's mother for lost wages and other expenses, which the mother claimed was the result of her inability to work for two years due to the trauma of her son's murder. (Id. at p. 1074.) On appeal, the defendant argued that "the restitution order was 'inappropriate' because of evidence (not introduced at trial) that [the victim's mother] had sought a restraining order against her son and because [the victim's mother's] economic loss was not shown by documentation or sworn testimony." (Id. at p. 1075.) The California Supreme Court rejected the defendant's argument and explained: "[B]y his failure to object, defendant forfeited any claim that the order was merely unwarranted by the evidence, as distinct from being unauthorized by statute. [Citation.] As the order for restitution was within the sentencing court's statutory authority, and defendant neither raised an objection to the amount of the order nor requested a hearing to determine it [citation], we do not decide whether the court abused its discretion in determining the amount." (Ibid.)
Similarly, in People v. Anderson (2010) 50 Cal.4th 19 (Anderson), the trial court ordered the defendant to pay restitution to the deceased victim's family members and to the hospital for treatment rendered before the victim ultimately died. The defendant argued for the first time on appeal "that restitution should be awarded to the victim's estate, and urged that the matter be remanded for a determination of the proper amount of restitution. Counsel argued that the hospital, in order to resolve the outstanding bill, may have been willing to accept less than the full amount owed." (Id. at p. 26, fn. 6.) The California Supreme Court determined that "the appropriate amount of restitution was subject to challenge by defendant regardless of who the recipient was. Defendant did not object in the trial court to the amount of restitution ordered. His sole objection was that restitution for these expenses was improper because the victim's injuries resulted from a suicidal act. Defendant has waived a claim of error as to the amount of restitution by failing to object on that ground in the trial court. [Citation.]" (Ibid.; see also People v. Gonzalez (2003) 31 Cal.4th 745, 755 [defendants objected in the trial court that they should not pay restitution for items taken from the victim's house when they were not convicted of stealing those items, and therefore "on appeal they may challenge their sentences on that ground"].)
In this case, defendant failed to object to the restitution order below on the ground that it purportedly included the value of the victim's vehicle twice and that the order was therefore without adequate factual support. Although defendant generally argued that the restitution claim "lack[ed] a proper factual basis," defendant never specifically raised the issue of double-counting the value of the victim's vehicle.
Defendant contends that his claim is not forfeited because it is an unauthorized sentence and is thus reviewable at any time. "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing. [Citation.] . . . [¶] In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Scott, supra, 9 Cal.4th at p. 354.)
In this case, if the trial court had actually stated that it was awarding twice the value of the victim's vehicle, we might agree with defendant that the restitution order was unauthorized, as the court did not have the sentencing discretion to award double the amount of the value claimed by the victim's wife. However, the trial court did not specify the basis for the award of $10,110.11, other than to state that it was for "a one time expense of all the things that [the victim's wife] had to incur in relation to services and traveling." Indeed defendant acknowledges on appeal that he "can only guess at how the trial court made its calculations" concerning one-time expenses, and that the trial court apparently "arrived at this figure through a calculation error." Whether the trial court actually awarded the value of the vehicle twice or whether the award for one-time expenses is otherwise "unwarranted by the evidence" involves factual issues. (Brasure, supra, 42 Cal.4th at p. 1075.) Defendant's claim is not " 'clear and correctable' independent of any factual issues presented by the record at sentencing." (Scott, supra, 9 Cal.4th at p. 334.) "As the order for restitution was within the sentencing court's statutory authority," and defendant failed to object to the amount being awarded regarding the value of the car or other one-time expenses, he has forfeited his claim. (Brasure, supra, at p. 1075; see Anderson, supra, 50 Cal.4th at p. 26, fn. 6.)
Defendant further argues that his sufficiency-of-the-evidence claim is preserved for review despite the failure to object below, citing this court's opinion in In re K.F. (2009) 173 Cal.App.4th 655 (K.F.). In K.F., this court determined that a minor's sufficiency-of-the-evidence challenge to a restitution order imposed pursuant to the Welfare and Institutions Code was preserved despite the failure to object below. (Id. at pp. 659, 660-661.) This court rejected the contention that Brasure repudiated or abandoned the rule that sufficiency-of-the-evidence claims are forfeited if not raised below. (Id. at p. 661.)
However, as we have explained, in Anderson, supra, 50 Cal.4th 19, which was decided after K.F., the California Supreme Court determined that a defendant's failure to object to the amount of restitution in the trial court resulted in the forfeiture of such a claim on appeal. (Anderson, supra, at p. 26, fn. 6.) Moreover, in People v. McCullough (2013) 56 Cal.4th 589 (McCullough), which was also decided after K.F., the California Supreme Court held that a sufficiency-of-the-evidence challenge to a sentencing decision - there, the ability to pay a booking fee - was forfeited by the failure to raise it below. (McCullough, supra, at p. 597.)
Accordingly, we conclude that defendant forfeited his claim that there was not substantial evidence to support the amounts awarded as restitution for the vehicle and other one-time expenses.
2. Insurance offset
The victim's wife stated in a declaration that defendant had tendered his insurance policy limit of $15,000, which she had not accepted as of the date of her declaration, December 5, 2014. On appeal, defendant contends that the trial court erred by failing to offset the restitution award by $15,000 for the amount his insurance company had offered to the victim's wife. Defendant also argues that the claim for offset has not been forfeited by his failure to object below and that, to the extent it has been forfeited, trial counsel rendered ineffective assistance of counsel.
The Attorney General contends generally that defendant has forfeited his claim because it was not raised below. On the merits, the Attorney General agrees that an offset is generally required for amounts a defendant's insurer pays to the victim, but that in this case, no offset is warranted because the victim's wife refused the insurance company's offer. The Attorney General further argues that defendant cannot establish ineffective assistance of counsel.
Without deciding whether the claim has been forfeited, and assuming an offset must be made when the defendant's insurer makes a settlement payment to the victim (People v. Bernal (2002) 101 Cal.App.4th 155, 168), we determine that defendant fails to establish that he is entitled to an offset. Defendant does not point to anything in the record indicating that his insurance company paid the victim's wife. At most, the record reflects that defendant's insurer offered $15,000 to the victim's wife. Defendant does not provide any legal authority to support the proposition that an offset is required where the insurance company offers a sum but the victim has not accepted it. Accordingly, defendant fails to establish his entitlement to an offset. In view of our conclusion, we need not reach the issue of whether defendant's trial counsel rendered ineffective assistance of counsel.
3. Reduction to present value
The restitution order to the victim's wife included $959,040 for the future loss of salary of the victim for 10 years ($95,904 per year), $7,200 for one year of childcare, and $9,600 for the victim's wife's earnings for two years due to the loss of a promotion.
Defendant contends that most of these amounts were for losses not yet suffered by the victim's wife, and that awarding these amounts "as a present lump sum would greatly inflate the value of the award." Defendant argues that the trial court should have adjusted the amount of the award to its present value. Defendant also contends that the "excessiveness" of the lump-sum award for the full amount of future losses is "compounded by the 10 percent per annum interest that is mandated by section 1202.4," which the court awarded in this case, and amounted to a "windfall" for the victim's wife. Defendant further argues that his claim has not been forfeited by his failure to object below and that, to the extent it has been forfeited, trial counsel rendered ineffective assistance of counsel.
The Attorney General contends that the claim has been forfeited, that it fails on the merits, and that no ineffective assistance of counsel has been shown.
In the trial court, defendant did not challenge the restitution award on the ground that a portion of it should be reduced to its present value. As a result, "[d]efendant has waived a claim of error as to the amount of restitution by failing to object on that ground in the trial court." (Anderson, supra, 50 Cal.4th at p. 26, fn. 6; see Brasure, supra, 42 Cal.4th at p. 1075; People v. Pangan (2013) 213 Cal.App.4th 574, 582-583 (Pangan).) We therefore turn to defendant's claim of ineffective assistance of counsel.
" '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.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).)
Defendant cites Pangan in support of his argument that the trial court should have adjusted the amount of the award to its present value and that trial counsel was ineffective for failing to raise the issue below.
In Pangan, the victim was injured after his vehicle was struck by the defendant's vehicle. (Pangan, supra, 213 Cal.App.4th at pp. 576-577.) As a result of his injuries, the victim was forced to immediately retire from his job. The victim sought restitution for the $246.50 per month decrease in his pension payments caused by the forced early retirement. (Id. at p. 577 & fn. 1.) The trial court ultimately awarded restitution for the decrease in pension benefits by taking the monthly amount of the decrease in pension payments and multiplying it by 24 years, which was the victim's life expectancy beginning the year he could receive his pension payments, for a total of approximately $70,000. (Id. at p. 578 & fn. 3.)
The appellate court determined that the trial court erred by not taking into account the "time value of money" in calculating the "actual value" of the economic loss to the victim. (Pangan, supra, 213 Cal.App.4th at p. 582.) In explaining the principle of the time value of money, the court in part quoted from Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512: "[A] lump sum now, reflecting future payments, must be discounted to reflect the fact the recipient is receiving the money now. 'Since the present award is to compensate for support which would only have been received in the future had decedent survived, discounting to present value recognizes the economic advantage of receiving a present lump sum which may be used or invested as speculatively or conservatively as the recipient chooses.' " (Pangan, supra, at p. 582.) Applying the principle to the facts before it, the appellate court in Pangan stated that, if the victim had tried to get a lump-sum payment for his right to $246.50 for the rest of his life, "there is no way he would receive anywhere near $70,000 for that stream of payments in the open marketplace. Any payment would be subject to some sort of discount to reflect the fact he would be receiving it all now. And the point of a restitution award is that the crime perpetrator is indeed responsible to pay the award now, which is why the award carries interest from the date of sentencing or date of loss. (See Pen. Code, § 1202.4, subd. (f)(3)(G) ['Interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court.'].) That has to be factored into the award." (Id. at p. 581, fn. omitted.)
The appellate court further concluded that the defendant's trial counsel rendered ineffective assistance by failing to object to the restitution award by raising the issue of the time value of money in the trial court. (Pangan, supra, 213 Cal.App.4th at pp. 583-584.) In particular, regarding whether counsel failed to act in a reasonably competent manner, the appellate court determined that restitution by statute requires the calculation of a victim's actual economic loss, and that "criminal law victim restitution defense entails at least some acquaintance with the idea of the time value of money." (Id. at p. 583.) Regarding whether it was reasonably probable defendant would have received a more favorable determination if the issue had been raised, the appellate court determined that "a full value award was too high" and the appellate court "[saw] no way in which [the defendant's] trial attorney had anything to lose by raising the need to discount the $70,000 to present value." (Id. at p. 584.)
However, in People v. Arce (2014) 226 Cal.App.4th 924 (Arce), a different appellate court rejected a defendant's claim that his trial counsel rendered ineffective assistance by not seeking a present-day value discount on a portion of a victim restitution order for future lost wages. The trial court had calculated future lost wages by taking a base salary of $41,739, which the victim earned in the last full year he worked, and multiplying it by 5.5 years, which the prosecutor had argued was the period of time it would take for the victim to return to the same earning level. (Id. at pp. 928-929.) The trial court then reduced the amount of future lost wages of nearly $230,000 by the amount of disability payments the victim would receive over the same timeframe, for a final award of nearly $144,000 in future lost wages. (Id.at p. 929.)
The appellate court in Arce determined that "there could be satisfactory explanations for why [the defendant's] counsel did not ask for a time-value discount." (Arce, supra, 226 Cal.App.4th at p. 931, italics added.) Among other reasons, the appellate court suggested that trial counsel "may have simply believed that raising the issue would undercut his primary argument that no future lost wages could be awarded." (Ibid.) Trial counsel might have also believed that challenging the award "might lead to increased scrutiny and a higher award. He may have believed, for example, that if the trial court reexamined the victim's future lost earnings it would increase its base amount of the victim's projected annual earnings ($41,739) in light of the evidence that the victim's earnings had been progressively rising. Or he may have believed that the court would increase the award by adding time to the multiplier of the prosecution's projected five and one-half year recovery period. He also may have understood that the time-value principle worked against Arce to the extent that its application to the future disability benefits would have reduced the offset Arce received for them. Accepting an award that is favorable in some aspects may make particular sense when the award is not likely to be reduced by much because the potential discount rate is low." (Ibid.) The appellate court concluded that "trial counsel here could have reasonably believed that [the defendant] did have something to lose [by raising the need to discount for present value] because the trial court might have increased its award for future lost wages." (Id. at p. 932, italics omitted.)
In this case, assuming the trial court should have reduced a portion of the award to present value, defendant fails to demonstrate ineffective assistance. Similar to the victim in Arce who sought restitution for future lost wages, and unlike the victim in Pangan who sought restitution for future reduced pension payments, the victim's wife in this case sought restitution based in part on the future lost wages of the victim. As in Arce, defendant's trial counsel may have determined that an objection to a portion of the award on the ground that it should be reduced to present value "might lead to increased scrutiny and a higher award." (Arce, supra, 226 Cal.App.4th at p. 931.) For example, counsel may have believed that the trial court might increase the victim's base salary to reflect raises over the 10-year period that the court selected, or that the trial court would award lost wages for a period longer than 10 years, given that the victim was only 42 years old at the time of his death. (See ibid.) Accordingly, because the record sheds no light on why trial counsel failed to raise the issue of a time-value discount, and because counsel's inaction could be explained as a matter of sound strategy, defendant fails to demonstrate ineffective assistance of counsel. (Lopez, supra, 42 Cal.4th at p. 966.)
IV. DISPOSITION
The December 15, 2014 restitution order is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.