Filed 10/21/26 P. v. Evans CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE

THE PEOPLE, A172122
Plaintiff and Respondent,
v. (San Francisco County
JAMES EVANS, Super. Ct. No. 20011265)

Defendant and Appellant.

James Evans appeals from an order awarding restitution to a crime
victim. Evans challenges the amounts awarded and further asserts the trial
court erred in failing to enforce a subpoena duces tecum served on the victim
or, in the alternative, his counsel’s omissions on the point constituted
ineffective assistance. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
In October 2020, Evans approached James Barry with a handgun and
demanded his cell phone. Evans struck Barry with the pistol twice on the
back of his head and shot him in the shoulder.

1 We summarize only the facts and proceedings relevant to the issues
raised on appeal.

1
 Evans ultimately pled guilty to one count of assault with a firearm
(Pen. Code, § 245, subd. (a)(2)2) and one count of assault by means of force
likely to cause great bodily injury (§ 245, subd. (a)(4)). In August 2022, the
trial court placed Evans on two years of probation and suspended execution
of a four-year prison sentence.
In November 2022, Barry submitted a victim restitution request. As
relevant here, Barry’s restitution form included the following claims: $950
for a “Broken 14K gold chain (LOST)”; $550 for a “Broken 14K Pendant
(LOST)”; and $500 for a “Broken 14K gold chain (still have but broken).”
Barry also sought the following medical expenses: $11,000 for an ambulance
ride, $9,000 for “Medical expenses,” and $287 for monthly medications.
At a restitution hearing on November 1, 2024, defense counsel
indicated he had subpoenaed Barry to testify and had also served him with a
subpoena duces tecum for records to substantiate his claims. The People said
they informed Barry that he was under no obligation to testify. Barry also
said he “never felt comfortable” testifying but was nonetheless willing to
answer some questions about his claims. Barry testified that when Evans
shot him, the bullet went through his chest where the chains from his jewelry
were. He also testified to his belief that some of his belongings were collected
while he was at the hospital after the shooting. However, Barry said he did
not recall much of what happened because he was in “a lot of pain” and
“under heavy medication.” Barry further acknowledged that when speaking
with officers after the incident, he only reported that his phone had been
taken.
Defense counsel submitted a hospital record of the belongings collected
from Barry when he was admitted. This record indicated that earrings, a

2 Undesignated statutory references are to the Penal Code.
2
ring, and a necklace were sent to a hospital safe while five white stone rings,
one ring, and one “necklace with pendant” were given to the San Francisco
Police Department.
At the conclusion of defense counsel’s questioning, the trial court asked
Barry if all the items requested on his restitution request were items he lost
as a result of the shooting, and Barry confirmed this was the case. The
People asked Barry if he received his belongings after he was discharged from
the hospital, and Barry responded that he “received some belongings” but
could not recall the specific items as this was the “least of [his] worries at the
time.”
The trial court excused Barry, at which point defense counsel asked the
court to set a date for Barry to supply the records that had been subpoenaed.
The court expressed its view that crime victims were not obligated to supply
receipts to support their restitution requests, but stated it would address the
issue of whether to continue the restitution hearing to allow for the
production of documents based on Barry’s request for more time to respond to
the subpoena.
At the conclusion of the hearing, the parties revisited the issue of the
subpoena duces tecum. During this discussion, the trial court stated: “You
know, when people respond to a subpoena, a subpoena calls for documents
that are in your possession. Sometimes people keep their records.
Sometimes they don’t. I don’t think it imposes on Mr. Barry an obligation to
go back to General Hospital and get copies of the records . . . but I do think if
he has them at home, for instance, and they are in his possession, and he is
willing to make a further response . . . if you think it would be fruitful, I can
put this out, and we can come back for argument.” The court also noted that
defense counsel could subpoena the hospital directly, while also commenting

3
that the amount Barry was requesting for medical expenses was “not . . .
surprising” given the injury he suffered and that the “actual bills could well
be higher that you obtain through subpoena.”
The trial court then continued the restitution hearing for one month to
allow Barry to provide whatever documents he had since he “appear[ed] to be
willing” to do so. However, it also emphasized that a restitution hearing was
not meant to be an “onerous proceeding” for victims.
On December 6, 2024, the trial court held the second day of the
restitution hearing. Defense counsel represented he had not received any
receipts from Barry despite multiple attempts by his investigator to reach
him. Nonetheless, counsel noted that Barry’s Medi-Cal file had previously
been subpoenaed, and that the document he received indicated that Medi-Cal
paid $16,450.38 on behalf of Barry from October 2020 to August 2023. The
document included four pages of expenses paid by Medi-Cal, though it
contained no description of the services to which they pertained. It also
stated the $16,450.38 was the “total capitation” paid to the plan on behalf of
Barry.
At the end of the hearing, the trial court awarded Barry $2,000 for his
jewelry, noting that even though a hospital record indicated the lost jewelry
was placed in a safe or handed over to the police department, Barry had
testified there were broken items and items that were never recovered. The
court also awarded medical expenses of $16,450.38.
Evans appeals.
DISCUSSION
Evans contends there was insufficient evidence to support the
restitution award. He also challenges the trial court’s failure to enforce his

4
subpoena duces tecum and his counsel’s ineffective assistance on the point.
We address each of these contentions in turn.
A. Restitution Award
1. Applicable Legal Principles
Section 1202.4, subdivision (f), states: “[I]n every case in which a
victim has suffered economic loss as a result of the defendant’s conduct, the
court shall require that the defendant make restitution to the victim or
victims in an amount established by court order, based on the amount of loss
claimed by the victim or victims or any other showing to the court.” (Italics
added.) Subdivision (f)(3) further provides that, to the extent possible, the
restitution amount “shall be of a dollar amount that is sufficient to fully
reimburse the victim or victims for every determined economic loss incurred
as the result of the defendant’s criminal conduct,” which can include full or
partial payment for the value of stolen or damaged property as well as
medical expenses. (§ 1202.4, subd. (f)(3)(A), (f)(3)(B).) “The value of stolen or
damaged property shall be the replacement cost of like property, or the actual
cost of repairing the property when repair is possible.” (§ 1202.4,
subd. (f)(3)(A).)
In requesting restitution, the victim must first make a prima facie
showing of economic loss incurred as a result of the defendant’s criminal acts.
(People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 (Gemelli).) The
standard of proof is by a preponderance of the evidence. (Id. at p. 1542.)
Notably, section 1202.4 “does not, by its terms, require any particular kind of
proof.” (Gemelli, at p. 1543.) Rather, “[r]estitution hearings are intended to
be informal.” (People v. Weatherton (2015) 238 Cal.App.4th 676, 684.)
Once a victim has made a prima facie showing of loss, the burden shifts
to the defendant to disprove the amount of loss claimed. (Gemelli, supra, 161

5
Cal.App.4th at p. 1543.) The defendant can do this by submitting evidence to
prove the claimed amount exceeds the repair or replacement cost of damaged
or stolen property, among other things. (Ibid.)
We review a restitution award for an abuse of discretion and will not
reverse an award unless it is “arbitrary or capricious.” (Gemelli, supra, 161
Cal.App.4th at p. 1542.) “No abuse of discretion will be found where there is
a rational and factual basis for the amount of restitution ordered.” (Ibid.)
When a defendant argues the evidence before the trial court was insufficient
to establish the amount awarded, we review for substantial evidence. (In re
Travis J. (2013) 222 Cal.App.4th 187, 203.)
2. Analysis
Evans challenges the trial court’s restitution award for Barry’s lost and
broken jewelry, and his medical expenses.
Lost Jewelry
Evans does not dispute Barry made a prima facie showing that he lost
$1,500 in jewelry. Instead, Evans contends he presented enough evidence to
rebut this showing. Specifically, Evans points out that a hospital record
indicates Barry had the subject jewelry when he arrived at the hospital and
that it was stored in the hospital safe or given to the San Francisco Police
Department. In light of this record and Barry’s testimony that he did not
remember receiving all of his belongings upon discharge from the hospital,
Evans states it is “entirely possible” that Barry’s jewelry was still at the
hospital or with the police department. This is unpersuasive.
Evans’s assertion of the possibility that Barry’s jewelry was not lost but
at the hospital or with the police department is mere speculation, not
evidence; nor does it suffice to rebut Barry’s testimony under penalty of
perjury that he lost his gold chain and pendant after and as a result of the

6
shooting. (See People v. Wallace (2017) 15 Cal.App.5th 82, 93 [“ ‘a mere
possibility is nothing more than speculation’ ” and speculation is not
substantial evidence].) As such, Evans fails to demonstrate the trial court
erred in awarding $1,500 for Barry’s lost jewelry.3
Broken Jewelry
Evans contends the trial court erred in awarding Barry $500 to repair
the broken gold chain he still possessed, citing People v. Vournazos (1988) 198
Cal.App.3d 948 (Vournazos) for the proposition that repair costs to broken
property cannot be established merely by the victim’s statement of loss. We
are not convinced.
In Vournazos, the Court of Appeal held it was error for the trial court to
rely entirely on a probation officer’s recommendation in setting the
restitution amount when the recommendation derived solely from the
victim’s statement of loss and there was no indication the amount was based
on the replacement cost of the property. (Vournazos, supra, 198 Cal.App.3d
at p. 958.) Vournazos reasoned that a defendant need not prove a claimed
amount exceeds the repair or replacement cost of the property when the
repair or replacement cost has not been established in the first instance. (Id.
at pp. 958–959.)
Vournazos has been repeatedly criticized. (People v. Pittman (2024) 99
Cal.App.5th 1252, 1259–1260 (Pittman); see also Gemelli, supra, 161
Cal.App.4th at pp. 1542–1543; In re S. S. (1995) 37 Cal.App.4th 543, 546–
547; People v. Foster (1993) 14 Cal.App.4th 939, 945–946, superseded by

3 Evans goes on to assert that, even assuming the hospital or police
department lost the gold chain and pendant, Barry would not be entitled to
restitution because this would mean their loss would be attributable to the
actions of those entities, and not the shooting. We do not address this
contention because of its conjectural premise.
7
statute on other grounds as stated in People v. Sexton (1995) 33 Cal.App.4th
64, 69–71.) Among other things, appellate courts have observed that
Vournazos’s reasoning “ ‘imposes an unwarranted burden on the trial court,
the prosecutor, and the victim’ ” and is inconsistent with the public policy and
constitutional requirement that victims of crimes be made whole. (Pittman,
at pp. 1259–1260.) The weight of authority now holds that a victim’s
statement or estimate of his or her loss may, in fact, constitute prima facie
evidence of such loss, thus shifting the burden to the defendant to show the
requested amount exceeds the cost of replacement or repair. (Ibid.)
Evans neither acknowledges these post-Vournazos decisions nor
explains why we should adopt Vournazos’s reasoning despite such significant
criticism. Applying the majority rule, we hold the trial court did not err in
accepting Barry’s estimate of repair or replacement costs as prima facie
evidence of his loss.
Medical Expenses
Evans contends the trial court erred in awarding Barry the entire
amount of $16,450.38 that was reflected in the Medi-Cal record produced
during the restitution hearing.
On this score, the record indicates Barry’s restitution request form
claimed he was owed $20,000 in medical expenses and $287 in monthly
medication charges going forward. Defense counsel sought receipts to
substantiate Barry’s claim, which Barry ultimately failed to provide.
However, on the second day of the restitution hearing, defense counsel
represented that Barry’s Medi-Cal file was previously obtained in response to
a subpoena by the public defender. Defense counsel then provided the court
with a record indicating that Medi-Cal paid $16,450.38 in medical expenses
for Barry from October 2020 to August 2023. Counsel did not take issue with

8
the record’s description of the $16,450.38 amount as the “total capitation”
paid for Barry for that time period; nor did he contest any of the listed
expenses as potentially unrelated to the shooting. The court concluded that
while Barry had made a prima facie case supporting his claim of $20,000 in
medical expenses plus $287 a month for medications going forward, Evans
had “rebutted [that showing] in part.” (Italics added.) As such, the court
awarded Barry the $16,450.38 reflected in the Medi-Cal record—an amount
significantly less than what Barry requested.
Evans cannot now complain the trial court erred by making an award
based on the Medi-Cal record that he himself introduced without any
challenge or objection to its contents. (People v. Seumanu (2015) 61 Cal.4th
1293, 1320 [defendant’s failure to object typically forfeits the claim on
appeal]; see People v. Partida (2005) 37 Cal.4th 428, 435 [“party cannot argue
the court erred in failing to conduct an analysis it was not asked to
conduct”].) We reject his challenge to the medical expense award as forfeited.
B. Records Subpoena
Evans asserts the trial court’s failure to enforce his counsel’s subpoena
duces tecum violated his due process rights under the Fifth and Fourteenth
Amendment, because it precluded him from presenting evidence that the
Medi-Cal payments encompassed more than medical services related to the
shooting. We agree with the People that Evans forfeited this claim because
he never requested that the court enforce his subpoena.
“Generally, an appellant forfeits claims of error through inaction that
prevents the trial court from avoiding or curing the error.” (People v. Garcia
(2010) 185 Cal.App.4th 1203, 1214 (Garcia).) Garcia is instructive. There,
the defendant served a subpoena duces tecum on the victim’s therapist to
request the victim’s therapy records. (Id. at p. 1213.) The prosecutor moved

9
to quash the subpoena but the issue of the subpoena and motion to quash
were never discussed at the restitution hearing. (Ibid.) Garcia held that by
not requesting enforcement of the subpoena duces tecum at the restitution
hearing, the defendant forfeited his objection on appeal. (Id. at p. 1214.)
Garcia noted this general waiver or forfeiture rule is a matter of “ ‘judicial
economy and fairness to opposing parties.’ ” (Ibid.)
The same result should obtain here. Though defense counsel was
aware on the second day of the restitution hearing that Barry had not
produced documents responsive to the subpoena duces tecum, he did not
request enforcement of the subpoena. Instead, as previously stated, counsel
moved to admit the record indicating that Medi-Cal had paid $16,450.38 for
Barry’s medical expenses. Having failed to seek enforcement of the subpoena
at the hearing, Evans cannot now complain of error. (See Garcia, supra, 185
Cal.App.4th at p. 1214.)
In resisting this conclusion, Evans points out that both the trial court
and the People were purportedly apprised of the subpoena enforcement issue
at the hearing and that therefore there was no issue of notice or unfairness to
the opposing party. We are not persuaded.
Contrary to Evans’s contention, People v. Hoover (2000) 77 Cal.App.4th
1020 (Hoover) does not help his cause. Hoover held a defendant did not
forfeit his claim that the trial court erred in imposing an upper term at
sentencing where both the prosecution and defense offered “substantial
argument” over the propriety of the upper term during a two-day sentencing
hearing. (Id. at pp. 1030–1031.) Hoover declined to find a forfeiture because
the court was “fully apprised of the basis for defendant’s objection to the
upper term.” (Id. at p. 1031.)

10
 Here, however, Evans never raised the issue of enforcement of the
subpoena duces tecum. Though the parties generally discussed the fact that
a subpoena had been served on Barry, Evans never expressed any intent to
enforce it. Nor did the parties offer any argument on this issue. As such, the
elements of judicial economy and fair notice to the opposing party, which
underlie the forfeiture doctrine, were not met in this case.
Evans last contends that in the event we find forfeiture, his counsel
rendered ineffective assistance in failing to object to the trial court’s failure to
enforce the subpoena. On this record, we cannot agree.
“To prevail on an ineffective assistance of counsel claim, a criminal
defendant must establish both that his or her counsel’s performance was
deficient and that the deficient performance prejudiced the defense.” (People
v. Ramirez (2023) 98 Cal.App.5th 175, 211, 212, citing Strickland v.
Washington (1984) 466 U.S. 668, 687.) On appeal, “a finding of deficient
performance is warranted where ‘(1) the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or omission,
(2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation.’ ” (People v. Johnsen (2021) 10
Cal.5th 1116, 1165.) “ ‘[W]here counsel’s trial tactics or strategic reasons for
challenged decisions do not appear on the record, we will not find ineffective
assistance of counsel on appeal unless there could be no conceivable reason
for counsel’s acts or omissions.’ ” (Ibid.)
Here, the record is silent as to why defense counsel did not move to
enforce the subpoena duces tecum. But there are conceivable reasons for
counsel’s inaction. Indeed, at the second restitution hearing, defense counsel
had a Medi-Cal record indicating that Barry’s medical expenses were
significantly less than the amounts he claimed on the restitution request

11
form. This fact, coupled with the trial court’s remark at the first restitution
hearing that the “actual bills” obtained through a subpoena “could well be
higher,” might have led defense counsel to reasonably conclude it would be
more safe and prudent to present the evidence he already had, which could
(and ultimately did) result in a sizeable reduction of the medical expense
amount, rather than seeking to enforce a subpoena that might justify a
higher restitution amount.
As such, this appeal provides no basis for sustaining Evans’s claim of
ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.

_________________________
Fujisaki, Acting P. J.

WE CONCUR:

_________________________
Petrou, J.

_________________________
Rodríguez, J.

People v. Evans (A172122)

12