Defendant was not denied opportunity to confront and cross-examine a witness even though the witness testified he would not know the answer to any defense questions. During Foalima’s trial for murder, arson, and robbery, the prosecution called one of Foalima’s friends, Tupou, who was with Foalima the night of the crimes. Tupou was an uncooperative witness. He responded “I don’t remember” or “I don’t know” to nearly all the prosecutor’s questions. The defense asked one question on cross-examination: “If I ask you any questions are you going to know anything?” Tupou responded, “No.” Foalima’s counsel moved to strike Tupou’s testimony on confrontation grounds and to prohibit the prosecutor from referencing it during closing argument. The trial court overruled the objection. During closing argument, the prosecutor emphasized that Tupuo’s testimony indicated he was an accomplice who refused to give helpful answers to protect Foalima. The jury convicted Foalima of first degree murder but acquitted him of robbery and arson. He appealed. Held: Affirmed. The confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective. That opportunity may be denied if a witness refuses to answer questions. By contrast, a witness who suffers from memory loss—real or feigned—is considered “subject to cross-examination” because his presence and responses provide the jury with the opportunity to see his demeanor and assess his credibility. The Court of Appeal here concluded that Tupou’s asserted inability to recall or remember did not deny Foalima an opportunity to cross-examine him. Furthermore, the defense only asked Tupou a single question and thus did not take advantage of its opportunity to cross-examine him. “That tactical choice does not constitute constitutional error.”

Even though defendant was acquitted of arson, trial court properly ordered defendant to pay direct restitution to victim’s daughter to reimburse her for items that were lost in the fire, which was set to destroy evidence of the murder. At sentencing, the trial court ordered defendant to pay direct restitution to the victim’s daughter. Part of the award was to reimburse the daughter for items that were destroyed in a fire in her apartment. Her father’s dead body had been found burning in the fire. Foalima challenged the restitution order to the extent it required him to pay for damage caused by the fire because the jury had acquitted him of arson. The trial court did not abuse its discretion in ordering restitution. When a defendant is sentenced to jail or prison, the court may order restitution only for losses arising out of the criminal conduct for which the defendant has been convicted. Here, the loss caused by the fire arose not only the arson, but also from the murder that Foalima was convicted of committing. The murder was a substantial factor and the proximate cause of the fire damage because the damage would not have occurred if there had been no murder. The acts of setting the body and the apartment on fire were not independent intervening causes. It was reasonably foreseeable that Foalima or his accomplices would act to destroy evidence of the murder where the victim had Foalima’s DNA under his nails, and that the act of destroying evidence of the murder would cause other damage. Additionally, Foalima was not entitled to have a jury determine the amount of victim restitution. Because the grant of direct victim restitution is not a monetary penalty, it is not subject to Apprendi v. New Jersey (2000) 530 U.S. 466 and Southern Union Co. v. United States (2012) 132 S.Ct. 2344.