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Name: People v. Arce
Case #: A138376
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 05/28/2014

Trial counsel was not ineffective during restitution hearing for failing to seek a discount for present day value of victim’s loss of future wages. Arce pled guilty to assaulting a man with a gun outside a night club and admitted inflicting great bodily injury. Nine months after Arce was sentenced to prison, the prosecution sought restitution for the victim’s lost wages. The victim’s hand injury, which continued to afflict him, caused him to lose his job with Home Depot as a window installer. The court awarded $289,851 in restitution, accepting the prosecution’s calculation of past and future lost wages. On appeal Arce, relying on People v. Pangan (2013) 213 Cal.App.4th 574, claimed his attorney was ineffective (IAC) for not seeking a present value discount in the award for future lost wages. Held: Affirmed. To prevail on an IAC claim a defendant must show his attorney’s performance was deficient and that he was thereby prejudiced. An IAC reversal on appeal is warranted only if (1) the record affirmatively shows counsel had no tactical reason for the challenged action/omission; (2) counsel was asked for a reason and failed to provide one, or; (3) there could be no satisfactory explanation. Here the record is silent as to why Arce’s attorney did not request a discount of the award, so only reason (3) is potentially applicable. There could have been several reasons for his action, such as evidentiary burdens, the cost of presenting such evidence versus the potential benefit, or because he felt the amount of restitution requested was relatively low and could be increased if challenged. The court disagreed with Pangan’s finding that on a record which is silent as to counsel’s tactics, the court can decide as a matter of law that counsel was ineffective for not requesting a time-value discount.