(Super. Ct. No. 09NF0794) Appeal from an order of the Superior Court of Orange County, James A. Stotler, Judge.
The opinion of the court was delivered by: Bedsworth, Acting P. J.
CERTIFIED FOR PUBLICATION
Reversed and remanded with directions.
This is a driving under the influence with injury case (Veh. Code, § 23153) in which the trial judge's conscientious and painstaking calculation of a restitution award failed to take into account the time value of money. When the court computed the value of the victim's $246.50 per month in pension benefits, it multiplied that monthly benefit by a calculated likely lifespan and ordered a payment of $70,000. Defense counsel did not object, and the defendant was hit with a restitution order that overstates the victim's actual economic loss by thousands of dollars.
(1) It is an abuse of discretion not to account for the time value of money in determining a victim's economic loss based on a diminished or lost stream of future payments.
(2) The failure on defense counsel's part to raise the issue of the time value of money in this case was ineffective assistance of counsel.
(3) No satisfactory explanation is available to excuse counsel's failure.
We therefore reverse the restitution order for a new hearing, so that a new restitution order may be made which does account for the time value of money. In that regard we further hold:
(4) The defendant will not be entitled to a jury trial at the new hearing.
Ronald Pangan was convicted of causing great bodily injury while driving under the influence. (See Pen. Code, § 12022.7.) He was sentenced to six years in prison. The victim was Oscar Muniz, who sustained serious injuries, including broken ribs, back fractures, and a bad knee injury when his vehicle was hit by Pangan's vehicle traveling down Beach Boulevard on January 23, 2009. This court affirmed Pangan's conviction in an unpublished opinion filed June 30, 2011. (People v. Pangan (June 30, 2011, G043845) [nonpub. opn.].)
Pangan had no car insurance. The case returned for a restitution hearing in mid-December 2011.
Muniz requested restitution in four specific particulars: First, he asked for $12,000 for replacement of his vehicle, a 2000 Chevy Silverado. Second, he asked for $15,000, which represented what he expected to earn, as boxer Josh Burnett's coach, had Muniz been able to show up at a boxing match in which Burnett was fighting on the night of the accident. Third, Muniz sought reimbursement of his unpaid medical bills of $8,390.67. And, finally, he asked for restitution for the $246.50 monthly decrease in his pension payments occasioned by his immediate forced retirement from his job as a grocery store warehouse clerk due to his injuries.*fn1
For some reason - and the record is completely silent on this point - Muniz did not request restitution of his lost wages for the 23-months-plus from ...