Restitution is the restoration, or the return, of something lost or stolen. In criminal court, restitution is an amount of money paid by a defendant to the court, or to a victim, and which is intended to compensate a victim for her monetary losses that are related to the defendant’s criminal conduct.

 

The amount of restitution owed by the defendant is determined at a restitution hearing. The restitution hearing is usually held at the same time as the sentencing hearing, but it may be held at a later date if the victim’s losses are not entirely known at the time of the defendant’s sentencing hearing.

 

In criminal court, the amount of restitution is equal to the victim’s actual economic loss. The victim’s actual economic loss means the amount the victim requires to restore herself to the financial position she was in before the defendant’s crime, if possible.

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For purposes of restitution, a victim includes any person who suffered an economic loss due to defendant’s criminal conduct. This is true even if the person who suffered economic loss is the not named victim in the defendant’s case.

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For example, if the defendant assaulted Husband, and Husband’s wife had to miss work to visit Husband in the hospital while he recovered, then Wife might be able to recover the amount of money she lost from missed work as a result of Defendant’s assault to Husband.

 

Another example would be where the victim is killed by the defendant in a murder or manslaughter case and the victim’s family is requesting funeral expenses to be paid by the defendant as part of a restitution order.

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Restitution payments are normally ordered as a condition of probation if the defendant is place on either felony or misdemeanor probation. If the defendant is sentenced to actual jail then the defendant’s restitution payments are put on hold until the defendant is released from jail.

 

However, if the defendant receives money while in jail, such as when a defendant’s friends or family members deposit money on the inmate’s jail account for commissary, then that money may be reduced by up to fifty percent (50%); the other fifty percent (50%) is directed towards the payments owed on the defendant’s restitution order.

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Note: If the defendant finishes her probation period with an amount of restitution still owed by her, then that restitution order ordinarily, but not always, turns into a civil judgement. A victim may collect on the civil judgement, but the defendant’s failure to pay restitution after that restitution is converted to a civil judgement is not a violation of probation.

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Economic Loss: As stated, restitution is intended to restore the victim’s economic loss. Economic loss includes, but is not limited to, the following: lost wages (i.e. missed work due to injury, doctor visits, court hearings, etc.), value of property destroyed or damaged, medical bills (i.e. therapists, medical doctors, psychologists, dentists, ambulance bills, etc.), damage to reputation for false allegations (only if measurable to a high degree of certainty), lost business (only if measurable to a high degree of certainty), collection agency efforts, and more.

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Note: in some sex offense cases, the victim may recover restitution for psychological harm caused by the defendant's criminal conduct. These sex case include violations of PC 288, PC 288.5, and PC 288.7. However, the amount of restitution related to the victim's psychological harm in these cases can be difficult to calculate.

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General Restitution: Sometimes, the court will order the defendant to pay restitution even when the victim does not request the restitution. This general restitution varies in amount and is intended to fund the Victim’s Restitution Fund. The Victim’s Restitution Fund supports victim related services, such as domestic violence shelters, for victims of crime that cannot afford the services and when the defendant cannot afford direct restitution to the victim.

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Restitution Not Waived: A defendant must pay restitution whenever the judge determines that the amount of restitution is appropriate (usually after a restitution hearing). The restitution amount cannot waived by a prosecutor during plea bargain negotiations. However, the district attorney can set a restitution hearing to determine the proper restitution amount at a date after sentencing when the victim does not request restitution at the sentencing hearing. When this happens, the district attorney will reserve the restitution hearing for a later date so that the victim can request restitution after sentencing. The restitution hearing can be reserved so long as the defendant remains on probation.

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Harvey Waiver: Sometimes, a district attorney will dismiss criminal charges against a defendant as part of a plea bargain. In this situation, the defendant is still required to pay restitution on the charges that were dismissed. To do this, the district attorney will require the defendant to enter into what is called a Harvey Waiver. A Harvey Waiver is a waiver of the right of the defendant to be found guilty on a crime before she is ordered to pay restitution on that crime. In other words, if the defendant enters into a Harvey Waiver, then the defendant may be made to pay restitution for a criminal charge that was later dismissed as part of a plea bargain.

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For example, if the defendant is charged with robbery against three victims, and the defendant enters into a plea bargain with the district attorney whereby two of the robbery charges are dismissed, the defendant must still pay restitution to all three victims after the defendant signs a Harvey Waiver. Also, the district attorney cannot enter into plea negotiations with the defendant unless the defendant signs a Harvey Waiver. This is because the district attorney does not have the right to bargain away a victim’s right of restitution.

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Insurance Issues: The defendant’s restitution amount is not reduced when the victim of defendant’s criminal conduct is reimbursed with victim’s insurance. Of course, this could lead to a double recovery for the victim. However, in practice, a victim’s insurance contract usually includes a subrogation clause which allows the victim’s insurance company to be compensated by the victim as the defendant makes her restitution payments (if the victim's insurance paid on the defendant's damages). On the other hand, if the defendant’s insurance company pays the victim’s restitution, then the victim may not recover from the defendant herself.

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For example, if the defendant commits a vehicle hit and run crime against the victim, and the victim’s insurance company pays for the victim’s vehicle repairs, then the defendant must pay restitution to the victim even though the victim’s car is repaired by the victim’s insurance. However, in this scenario, the victim is likely required to reimburse her insurance company as the defendant pays the restitution. On the other hand, if the defendant’s insurance pays for the victim’s vehicle repairs, then the defendant does not have to personally pay the restitution (with some limitations).

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Restitution Hearings: A defendant is entitled to a restitution hearing where she may dispute the amount of money that the victim is requesting. This is a contested hearing where the victim is usually required to prove her damages by receipts, testimony, estimates for repair, etc. The victim must also prove that the defendant’s criminal conduct was a substantial cause of her damages. In turn, the defendant has the right to dispute the victim’s evidence at the restitution hearing. The fact that a defendant disputes the restitution amount does not necessarily stall plea negotiations between the district attorney and the defendant, but often times the restitution amount is agreed upon as part of any plea bargain.

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Note: In criminal law, the victim is not entitled to compensation for any physical pain and suffering that he incurred as a result of the defendant’s criminal conduct. Rather, a restitution hearing in criminal court is intended to restore the victim’s economic loss. Of course, if the economic loss is related to pain and suffering, then a restitution order for that related economic loss is recoverable. Compensation for a victim's physical pain and suffering is usually awarded on in civil court.

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For example, if the victim is injured by defendant's felony DUI, then the victim may recover restitution for medical costs associated with her DUI related injuries. This includes things like actual medical costs for surgery or hospital stays (economic loss), but it also covers costs related physical therapy sessions. This is true even if those physical therapy sessions are required to reduced the victim's pain and suffering. However, the actual pain and suffering that a victim suffers, without an economic cost to the victim, is not recoverable as part of a restitution order in criminal court. 

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Restitution Payment: Restitution payments may be made directly to the victim unless the court orders payment to be made to another person or agency, such as the probation department. In cases, where the defendant is restrained by a criminal protective order, or some other court order, the defendant should not make payments directly to the victim.

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Most of the time, the court will order payments of restitution to be made to the court or to the probation department along with all other court fines and fees. The court or the probation department will then forward the payments to the victim. There is an additional administrative fee associated with having the court or the probation department handle the restitution payments.

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Inability to Pay Restitution: The court does not reduce restitution amounts due to the defendant's inability to pay. Rather, the court sets the restitution amount and seeks payment first from the defendant. If the defendant cannot make that restitution payment then the victim might seek restitution from the state restitution fund. Also, before the court refers the victim to the state restitution fund, the court might lower the amount of the payment installments that the defendant is ordered to pay if the defendant claims she cannot afford the restitution amount. Finally, despite the fact that restitution is not reduced by the court, any fines that the defendant is ordered to pay may be reduced or waived if the defendant is not able to pay those fines or fees.

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Note: The court can order any restitution to be paid in payments or in a lump sum. However, the court cannot make a payment order that the defendant cannot reasonably afford.

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For example, if the defendant is ordered to repay the welfare department fifty thousand dollars ($50,000) for the defendant obtaining aid by misrepresentation, then the court cannot realistically expect the defendant to be able to make a lump sum restitution payment.

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Non Payment Issues: If the defendant does not pay restitution according to the repayment plan that was ordered by the court then the defendant may be in violation of probation or violation of parole (after a prison sentence). As stated, if the defendant cannot pay restitution due to the lack of funds, then the court cannot penalize the defendant. Of course, the court can order that the defendant make efforts to find employment as a condition of her probation sentence. The court can also subpoena the defendant’s financial records to ensure that the defendant is actually unable to make restitution payments.

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Civil Judgement: If the defendant’s probation or parole ends before she has paid off restitution then the court will either convert the restitution into a civil judgement order or extend the defendant’s probation. When the court converts the restitution order into a civil judgement order the victims may use civil remedies to collect the restitution (i.e. depositions, liens on banks and property, wage garnishment, accounting measures, etc.).

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Juvenile Defendants & Restitution: If the defendant is minor at the time of her conviction, and restitution is ordered against her, then that restitution may sometimes be ordered against the minor’s parents as a jointly owed debt. For more information, see Juvenile Delinquency Court.

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Domestic Violence & Restitution: When the defendant is ordered to pay restitution to his or her spouse after a domestic violence offense against his or her spouse, then that restitution must be paid out of the defendant’s separate property earnings or property. If the defendant has no separate property earnings or property that she may use to pay restitution then any community property assets may be used to pay restitution. However, when community property is used to pay restitution orders in domestic violence cases then that community property is not subject to offset for the unequal distribution of community property assets at divorce or legal separation of the parties.

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Note: As it relates to domestic violence crimes and restitution orders, the following crimes qualify: spousal rape (PC 262), domestic battery (PC 243(e)(1)), inflict corporal injury on spouse (PC 273.5), prostitution of wife (PC 266g), and more.

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Expungement & Restitution: Per California law, a defendant, who otherwise might qualify for an expungement, cannot have her criminal conviction expunged until her probation has ended. In turn, a criminal court may extend probation until the defendant’s restitution is completely paid.

 

In cases where the court converts any restitution order into a civil judgement after the completion of probation, as opposed to extending probation, then the defendant, who otherwise might qualify for expungement, might be able to obtain an expungement. For more information, see Expungements in California.

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To learn more about restitution in criminal court contact our criminal defense lawyers for a free consultation. Our team of experienced and successful lawyers can help you fight your underlying criminal charges and the amount of restitution you might be ordered to pay, if any. We offer free consultation and we can even visit local jails for free consultations, including Adelanto detention center, and more. Call today!

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