If you have been the victim of a crime and either have an order for restitution or are seeking an order for restitution, Kirk & Toberty provides the expertise you need to actually collect the amounts due to you.
California Penal Code Â§1202.4 governs the imposition of restitution in a California criminal case.
The intent of the statute is clearly provided: “It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” Â§1202.4(a)(1).
As a victim, you are entitled to compensation, which can include:
- Full or partial payment for the value of stolen or damaged property. 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.
- Medical expenses.
- Mental health counseling expenses.
- Wages or profits lost due to injury incurred by the victim,…. Lost wages shall include any commission income as well as any base wages. Commission income shall be established by evidence of commission income during the 12 month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown.
- Wages or profits lost by the victim…. Lost wages shall include any commission income as well as any base wages. Commission income shall be established by evidence of commission income during the 12 month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown.
- Interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court.
- Actual and reasonable attorney’s fees and other costs of collection accrued by a private entity on behalf of the victim.
- Expenses incurred by an adult victim in relocating away from the defendant, including, but not limited to, deposits for utilities and telephone service, deposits for rental housing, temporary lodging and food expenses, clothing, and personal items. Expenses incurred pursuant to this section shall be verified by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well being of the victim.
The court is required to impose restitution pursuant to this section. Restitution is set by the court either at time of sentencing or at a later hearing
The amount of restitution is based on based on “the amount of loss claimed by the victim or victims or any other showing to the court.” Â§1202.4(f).
The court must order full restitution (as discussed more below) unless it finds “compelling and extraordinary reasons for not doing so.” In such a case, it must put those reasons “on the record”.
Importantly for a victim, the statute specifically provides that payments received by a victim from third parties (such as insurance companies) are not to be considered in determining the amount due: “Determination of the amount of restitution ordered pursuant to this subdivision shall not be affected by the indemnification or subrogation rights of any third party…” Â§1202(f)(2). California case law specifically affirms that this means a victim’s claim for restitution is not reduced by the amount of insurance proceeds they have received for a loss resulting from the criminal conduct. People v. Saint Amans (2005) 131 Cal.App.4th 1076, 1083.
The restitution order is intended to identify “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…”
The statute then lists several types of losses that are to be included as restitution. The statute provides that the list is not exclusive. Â§1202(f)(3).
A victim’s testimony of the original cost of a stolen or damaged item is competent evidence of replacement cost and sufficient to support a restitution award under Pen C Â§ 1202.4(f), and once such testimony is offered, the burden shifts to the defendant to disprove the amount claimed by the victim. People v. Tabb (2009) 2009 Cal.App. LEXIS 130.
Finally, the defendant is required to provide a disclosure regarding all present and future assets: “Except as provided in paragraph (6), in any case in which an order may be entered pursuant to this subdivision, the defendant shall prepare and file a disclosure identifying all assets, income, and liabilities in which the defendant held or controlled a present or future interest as of the date of the defendant’s arrest for the crime for which restitution may be ordered… Â§1202(f)(5).
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