Unreported / Non-Citable
Background
In October 2020, James Evans approached James Barry with a handgun, demanded his cell phone, struck him twice on the back of the head with the pistol, and shot him in the shoulder. Evans ultimately pled guilty to one count of assault with a firearm and one count of assault by means of force likely to cause great bodily injury. In August 2022, the trial court placed Evans on two years of probation and suspended execution of a four-year prison sentence.
In November 2022, Barry submitted a victim restitution request seeking $950 for a broken gold chain, $550 for a broken pendant, $500 for another broken chain, $11,000 for an ambulance ride, $9,000 for medical expenses, and $287 for monthly medications. At a restitution hearing on November 1, 2024, Barry testified that the bullet went through his chest where his jewelry chains were, though he acknowledged he did not recall much because he was in pain and under heavy medication. Defense counsel had served Barry with a subpoena duces tecum for records to substantiate his claims, but Barry never produced responsive documents.
At a second hearing on December 6, 2024, defense counsel represented that Barry's Medi-Cal file had been subpoenaed and showed Medi-Cal paid $16,450.38 on Barry's behalf from October 2020 to August 2023. The trial court awarded Barry $2,000 for his jewelry and $16,450.38 in medical expenses. Evans appealed, challenging the sufficiency of the evidence, the trial court's failure to enforce the subpoena duces tecum, and his counsel's effectiveness.
The Court’s Holding
The Court of Appeal affirmed the restitution award in full. On the lost jewelry claim, the court held that Evans's assertion that the jewelry might still be at the hospital or with police was mere speculation, not evidence, and did not rebut Barry's testimony under penalty of perjury that he lost his gold chain and pendant as a result of the shooting. On the broken jewelry claim, the court rejected Evans's reliance on People v. Vournazos, noting that decision has been repeatedly criticized and that the weight of authority now holds a victim's statement or estimate of loss may constitute prima facie evidence, shifting the burden to the defendant to show the requested amount exceeds replacement or repair cost.
On the medical expenses claim, the court held Evans forfeited any challenge because he himself introduced the Medi-Cal record showing $16,450.38 in payments without objection, and the trial court awarded significantly less than the $20,000-plus Barry had requested. The court also held Evans forfeited his due process challenge to the trial court's failure to enforce the subpoena duces tecum because he never requested enforcement below, citing People v. Garcia. The court distinguished People v. Hoover, where forfeiture was not found because the court was fully apprised of the basis for the objection through substantial argument.
Finally, the court rejected Evans's ineffective assistance of counsel claim, finding conceivable tactical reasons for counsel's decision not to enforce the subpoena. Counsel had a Medi-Cal record showing expenses significantly lower than claimed, and the trial court had remarked that actual bills obtained through subpoena could well be higher, so counsel might reasonably have concluded it was more prudent to present the evidence already in hand rather than risk a subpoena that might justify a higher award.
Key Takeaways
- A crime victim's own statement or estimate of loss can constitute prima facie evidence of economic loss under Penal Code section 1202.4, shifting the burden to the defendant to prove the claimed amount exceeds replacement or repair cost.
- Speculation that lost property might still be recoverable from a hospital or police department is not evidence and does not rebut a victim's testimony under penalty of perjury that property was lost as a result of the crime.
- A defendant forfeits any challenge to a restitution award based on a record the defendant himself introduced without objection, particularly where the trial court awarded less than the victim requested.
- A defendant forfeits a due process claim based on the trial court's failure to enforce a subpoena duces tecum by never requesting enforcement below, even if the parties were generally aware a subpoena had been served.
- Counsel's decision not to enforce a subpoena that might produce evidence supporting a higher restitution award can constitute a reasonable tactical choice, defeating an ineffective assistance claim on direct appeal.
Why It Matters
This decision reinforces the majority rule in California that restitution hearings are informal proceedings where a victim's own estimate of loss suffices to make a prima facie showing, and it confirms the continued erosion of People v. Vournazos. The ruling also underscores the importance of preserving objections below: defendants who introduce evidence without objection or fail to request enforcement of subpoenas cannot raise those issues for the first time on appeal.
The opinion provides useful guidance on the tactical considerations that may justify counsel's decisions at restitution hearings, illustrating how the Strickland standard applies when the record is silent but conceivable strategic reasons exist for counsel's choices.