If you are convicted by a crime either by trial or guilty plea, you will likely have to pay a restitution fine and/or restitution to the victim(s). The goal of restitution is to make a victim whole again after a crime has been committed. “To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and 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.” Cal. Pen. Code § 1202.4 (f)(3). Below, we explain how this can affect you as a defendant or victim.
Direct Order Restitution & California Penal Code § 1202.4 (f), (g)
Under California law, the court can order a defendant to pay restitution to the victim. This type of restitution is referred to as a Direct Order. California Penal Code §1202.4 (f) states that the court must award restitution to the victim in the full amount of the economic loss, including but not limited to:
- Full or partial payment for the value of stolen or damaged property. Cal. Pen. Code § 1202.4 (f)(3)(A).
- Medical or dental expenses. Cal. Pen. Code § 1202.4 (f)(3)(B).
- Mental health counseling expenses. Cal. Pen. Code § 1202.4 (f)(3)(C).
- Wages or profits lost due to injury incurred by the victim, and if the victim is a minor, wages or profits lost by the minor’s parent(s) or guardian(s) while caring for the injured minor. Cal. Pen. Code § 1202.4 (f)(3)(C).
- If the conviction is for a felony violation of Section 288 (child molestation), the court may order restitution for non-economic losses, including, but not limited to psychological harm. Cal. Pen. Code § 1202.4 (f)(3)(F).
- Actual and reasonable attorney’s fees and other costs of collection accrued by a private entity on behalf of the victim. Cal. Pen. Code § 1202.4 (f)(3)(H).
- Expenses to install or increase residential security incurred, relating to the crime. Cal. Pen. Code § 1202.4 (f) (3) (J)
- Expenses to retrofit a residence or vehicle, or both, to make the residence accessible or the vehicle operational by the victim, if the victim is permanently disabled whether the disability is partial or total, as a direct result of the crime. Cal. Pen. Code § 1202.4 (f) (3) (K).
Attorney’s fees: Attorney’s fees must be actual and reasonable. If the victim fails to provide proof to the court of these fees, the court may deny their request for relief with regard to Attorney’s fees.
Example: Deanna decides to embezzle money from her boss. She is charged with embezzlement and required to pay restitution. Her boss hires a civil attorney to calculate all the costs related to the embezzlement. This attorney’s fee may be required when restitution is calculated and Deanna may be required to pay it.
Full or partial payment for the value of stolen or damaged property: The damages caused by the crimes, such as vandalism, DUI with collision, trespassing, and theft. The value of the stolen or damaged property must be paid back. Even if there was no apparent victim, any damage can cause a request for restitution.
Example: Late one night, Damen had a few too many beers at the bar. After finishing his last drink, he drives home. He sees an officer following him closely in his rear view mirror. Trying to think quickly, Damen pulls a U-turn in the middle of the road and hits the curb 3 times. In this case and because there was a collision, restitution would be ordered as a requirement for any plea or conviction by trial of a DUI with collision. Even though there was no apparent victim, the victim here would be the state agency that owns and maintains the curb. It is not very likely any amount would be requested in this situation, but the state agency has the right to request restitution.
Medical Expenses: These expenses include hospital or ambulance bills, prescriptions, follow-up care, and many other expenses. All of these costs must be as a result of the commission of the crime.
Example: Daniel is trespassing on a commercial property after hours. Daniel is confronted by a security guard patrolling the property, which led to an altercation in which Daniel broke the security guard's leg. If Daniel is convicted of a crime related to this incident (trespassing, assault, battery, causing great bodily injury, and other violent crimes), he would be required to pay for any medical bills associated with the crime.
Wages or profits lost: “‘Lost wages’ for this purpose include any commision as well as any base wages. If a reasonable inference may be made from the evidence presented to show that the victim could find another job even though the victim expressed a desire to do so, the victim should be reimbursed for future lost wages, based on the number of years the victim otherwise would have continued to work and the amount of pay the victim would have expected to receive; in this regard, the People are not required to present vocational rehabilitation expert testimony.” 5 Erwin, Millman, Monroe, Sevilla, & Tarlow, California Criminal Defense Practice: Sentencing and Probation Post Trial Remedies § 91.120(2)(c)(4)
Example: Don attempts an armed burglary at a convenience store using a gun and threatening the cashier. In the commission of this crime, Don fires the gun at the cashier. This causes an injury preventing the cashier from working while he is recovering from the injury. If Don is convicted for a crime related to this incident (burglary, armed robbery, gun charges, and other theft or violent crimes) they would have to pay for the amount of work the cashier missed as a result of the commission of this crime.
What are Restitution Fines? How are they calculated?
Restitution fines are considered an offender’s debt to society for the offender’s criminal behavior. In the State of California, the court must impose a restitution fine regardless of the crime committed or the sentence imposed. A fine is set at the discretion of the court. Fines are a separate matter from Direct Order Restitution paid to the victim(s). In California, restitution fines are paid to the Victims Compensation and Government Claims Board.
- Fines for Misdemeanor convictions must fit in the range of $150-$1,000. Cal. Pen. Code § 1202.4 (b) (1).
- Fines for Felony convictions must range from $300-$10,000. Cal. Pen. Code § 1202.4 (b)(1).
- Fine is calculated with this equation: minimum fine ($150 for Misdemeanors, $300 for Felonies) multiplied by years of imprisonment, multiplied by number of counts convicted. Cal. Pen. Code § 1202.4 (b)(2).
- Any funds confiscated at time of arrest count towards restitution fines, except funds confiscated pursuant to Chapter 8, commencing with section 11469 (Seizure and Disposition.) Cal. Pen. Code § 1202.4 (c).
- Restitution fine will be imposed unless the court finds compelling and extraordinary reasons not to and states those reasons on the record. Inability to pay does not apply. Cal. Pen. Code § 1202.4 (c).
- Defendants have the right to dispute the determination of the amount of restitution.The court may modify on it's own motion or a motion from the DA, victim(s), or defendant. Cal. Pen. Code § 1202.4 (f)(1).
How can an attorney help you fight unreasonable restitution?
Restitution is calculated and collected through the Victim Witness office. The court will evaluate your ability to pay and will generate a monthly payment based on your ability to pay. If you fail to file the Statement of Assets form, the court will find you in violation of your probation and may issue a warrant as a result. If you need to file a Statement of Assets, please contact Christine Martin Law for a free consultation at (949) 424–3040.
Restitution may be required in the following crimes: DUI causing injury, death, or collision, Theft crimes (Larceny, Robbery, Shoplifting), Violent crimes (Assault, Battery, Causing great bodily injury, Use of deadly weapon, Attmept Murder, Murder), Sex Crimes (Lewd Acts, Acts including minors, Rape), and White Collar Crimes (Embezzlement, Fraud, Identity Theft)