People v. Foster (1993)

In People v. Foster (1993) 14 Cal.App.4th 939, the probation officer reported that the victim had told him that the property stolen from her included "a Persian rug that had cost her $ 8,000, for which she had received no reimbursement from the insurance company." (Foster, supra, 14 Cal.App.4th at p. 944.) The court reasoned that given the nature of the stolen item, the only information "about its value that was easily available to the victim, unless she happened to be an expert in the field, was the cost of the item to her. Otherwise, she would have had to consult an expert appraiser, probably incurring a fee, to determine the replacement cost of the rug. Even an appraiser's opinion would necessarily be speculative because the appraiser would not be able to examine the age, quality, or condition of the stolen rug." (Id. at p. 946) Foster claimed on appeal that he received ineffective assistance of counsel because his trial counsel failed to object to the valuation of the victim's loss. (Id. at p. 943.) Rejecting this argument, the court of appeal stated: "When a defendant alleges that his counsel failed to take a particular action, he must show a reasonable probability that the attorney's omission affected the outcome of the case. Thus, it is not enough for Foster merely to assert that his counsel should have requested a hearing on the amount of restitution. Rather, he had the burden of demonstrating that the value recommended in the probation report was excessive. In other words, he had to make a sufficient showing that but for his counsel's conduct, the court was reasonably likely to have ordered a lesser amount or no restitution.However, Foster has given no hint of the nature of any showing he might have made at a valuation hearing to contest the victim's figure. Thus, he has failed to meet his burden of demonstrating that a more favorable outcome was probable, had his counsel objected to the restitution amount and requested a hearing on the amount." (Id. at p. 947.)