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Name: People v. Pangan
Case #: G046491
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 02/06/2013

Trial court erred in failing to discount a victim restitution award to present value and counsel was ineffective for failing to object to restitution award. Appellant was convicted of driving under the influence causing injury. (Veh. Code, § 23153). At sentencing the trial court computed the value of the victim’s lost pension benefits by multiplying a monthly amount times a number of months; it failed to apply a discount rate to arrive at the present value of the lump sum award. Trial counsel did not object. Held: Reversed. The trial court failed to take into account the time value of money, which requires application of a discount rate to reflect the fact the victim is receiving all of the money now. Appellant’s trial attorney waived the issue by failing to object. This resulted in ineffective assistance of counsel, because “criminal law victim restitution defense entails at least some acquaintance with the idea of the time value of money.” Because defense counsel had nothing to lose by raising the need to discount the award, reversal is required.

Appellant is not entitled to a jury trial regarding the amount of victim restitution. Neither the recent case of Southern Union Co. v. United States (2012) 132 S.Ct. 244, nor Apprendi v. New Jersey (2000) 530 U.S. 466, mandate a jury trial on appellant’s victim restitution award because direct victim restitution is not a criminal penalty. Further, such an award carries no statutory maximum.