Have you suffered financial harm as a result of a crime? If so, you are entitled to compensation for your losses, including reimbursement for:
But the victim restitution process isn’t always easy. It involves paperwork, computations and court appearances.
The good news is that you don’t have to go it alone. Our California Crime Victim’s Rights Attorneys can help.1 We’ve worked on both sides – as prosecutors and defense attorneys – and we’ve calculated countless restitution orders. We know the best ways to get you the full amount of your loss.
We can also help you with:
- Filing a civil lawsuit to recover damages from a crime in California, or
- Applying for compensation from the California Victim Compensation Program (“CalVCP”).
In this article, our California Crime Victim Advocate Attorneys provide an overview of calculating restitution orders in California. We cover:
1. What is a victim restitution order?
When a defendant is convicted and sentenced in connection with a criminal case, the judge will issue an order directing the defendant to compensate the victim for economic losses resulting from the crime. This order is called a victim restitution order.
The amount of compensation called for in the order of restitution is referred to as restitution.
The idea of restitution is to make a victim “whole” again…to put the victim back into the position he or she was in before the crime occurred. The court may order that the restitution be made in a lump sum or on a payment schedule.
Definition of Victim
For purposes of restitution orders, “victims” include actual victims, immediate surviving family members of actual victims, corporations and business entities, and other people who are close to the actual victim and suffer economic loss as a result of the crime.2
Penal Code 1202.4
California Penal Code Section 1202.4 sets out the law relating to ordering restitution. That law says:
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.3
The statute also says that the judge shall order full restitution, unless there are compelling and extraordinary reasons not to do so. The defendant not being able to pay the restitution amount does not constitute a compelling and extraordinary reason not to order it.4
Other compensation for crime-related losses
In some cases, crime victims can receive compensation for crime-related losses in ways besides restitution orders. They might be able to recover civil damages through a civil lawsuit. They also might be able to receive restitution from the California Victim Compensation Program (CalVCP).
For more information on civil damages and the CalVCP program, please see our related articles Victim Restitution & Compensation in California Criminal Cases and Making a Claim to the California Victim Compensation Program (CalVCP).
2. What can I be reimbursed for?
As the victim of a crime, you are entitled to reimbursement for the full amount of your financial loss.5 This includes:
- Payment for the replacement cost, or cost of repairing, stolen or damaged property (“property damage”)
- Medical expenses
- Mental health counseling expenses
- Lost wages or profits, including commissions
- Noneconomic losses, including for psychological harm caused by felony violations of California Penal Code Section 288 pc lewd acts with a minor
- 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
- Expenses incurred by an adult victim in relocating away from the defendant (as 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)
- Expenses to install or increase residential security systems in cases of crimes constituting one of the violent felonies for purposes of California’s Three Strike Law
- Expenses to retrofit a residence or vehicle in cases where the victim is permanently disabled as a direct result of the crime
- Expenses relating to credit monitoring and credit repair in cases of identity theft in California6
Example: Cecelia’s apartment is broken into one summer day when she is at the beach. Her television, stereo and computer are stolen. Additionally, the burglar takes a pair of pearl earrings and a gold watch.
A drug addict named Lucas is apprehended while he tries to sell the gold watch at a pawnshop. He is convicted of violating California Penal Code Section 459 burglary and California Penal Code 487 pc grand theft. Cecelia gets the watch back, but it is scratched. She never recovers the pearl earrings or stolen electronics.
Cecilia wants to do everything possible to recover the full amount of her loss. So she hires California Criminal Defense Attorney John Murray to assist her with restitution issues.
California Criminal Defense Attorney John Murray guides Cecelia through the restitution process. He helps her compute the replacement value of the television, stereo, laptop and pearl earrings, which totals $4,209. He also alerts Cecelia to her right to recover the cost of repairing the watch ($300) and to be compensated for the time she needed to take off work to assist police and prosecutors (two days’ of pay at $220 per day).
California Criminal Defense Attorney John Murray represents Cecelia at the restitution hearing, and the judge issues a restitution order directing Lucas to pay to Cecelia the full amount of her loss ($4769). Mr. Murray also arranges for the defendant to pay an additional amount to Cecelia so that she can monitor her credit (which may have been compromised due to the theft of her computer).
3. How do I prove my losses?
When it comes to assessing economic damages caused by a crime in California, it is the victim’s responsibility to show that the defendant’s criminal conduct substantially caused the victim’s losses. The defendant’s conduct doesn’t have to be the only cause of the loss. But it needs to be more than a trivial or remote factor.7
In proving restitution, it is helpful to present to the court documentary evidence such as
- receipts, and
- payroll stubs
If the defendant disputes the amount requested, the burden shifts to the defendant to disprove the amount. The defendant is entitled to a restitution hearing for this purpose.8
4. What happens if the defendant does not pay me?
A mandatory restitution order is enforceable just like a civil judgment. This means that if the defendant does not pay you, you can sue the defendant in civil court. The court could order garnishment of the defendant’s wages.9
The defendant may also be in violation of his or her probation. If the probation officer informs the court that the defendant did not pay, the defendant will have a California Probation Revocation Hearing in which the judge will order the defendant to comply with the defendant’s restitution obligations.
Please note that crime victims may be entitled to other services and assistance besides payment of restitution. For more information, you can visit our related articles Preparing a California Crime Victim to testify as a Victim in Court and Advocating in Court for California Crime Victims.
Our California Crime Victim Advocate Attorneys Can Help…
If you or loved one is a victim of a crime and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Helpful links for Victim Services:
Los Angeles City Attorney’s Office Victim’s Services
1 Our California Crime Victim Advocate Attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2 California Penal Code Section 1202.4(k) provides: “For purposes of this section, ‘victim’ shall include all of the following: (1) The immediate surviving family of the actual victim. (2) Any corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime. (3) Any person who has sustained economic loss as the result of a crime and who satisfies any of the following conditions: (A) At the time of the crime was the parent, grandparent, sibling, spouse, child, or grandchild of the victim. (B) At the time of the crime was living in the household of the victim. (C) At the time of the crime was a person who had previously lived in the household of the victim for a period of not less than two years in a relationship substantially similar to a relationship listed in subparagraph (A). (D) Is another family member of the victim, including, but not limited to, the victim’s fiance, and who witnessed the crime. (E) Is the primary caretaker of a minor victim. (4) Any person who is eligible to receive assistance from the Restitution Fund pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code. (5) Any governmental entity that is responsible for repairing, replacing, or restoring public or privately owned property that has been defaced with graffiti or other inscribed material, as defined in subdivision (e) of Section 594, and that has sustained an economic loss as the result of a violation of Section 594, 594.3, 594.4, 640.5, 640.6, or 640.7 of the Penal Code.”
3 California Penal Code Section 1202.4(a)(1) provides: “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.”
4 California Penal Code Section 1202.4(g) provides: “The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of a restitution order.”
5 California Penal Code Section 1202.4(f) provides: “Except as provided in subdivisions (q) and (r), in 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. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. The court may specify that funds confiscated at the time of the defendant’s arrest, except for funds confiscated pursuant to Section 11469 of the Health and Safety Code, be applied to the restitution order if the funds are not exempt for spousal or child support or subject to any other legal exemption.”
6 California Penal Code Section 1202(f)(3) provides: “(3) 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, including, but not limited to, all of the following: (A) 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. (B) Medical expenses. (C) Mental health counseling expenses. (D) 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, parents, guardian, or guardians, while caring for the injured minor. 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. (E) Wages or profits lost by the victim, and if the victim is a minor, wages or profits lost by the minor’s parent, parents, guardian, or guardians, due to time spent as a witness or in assisting the police or prosecution. 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. (F) Noneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288. (G) Interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court. (H) Actual and reasonable attorney’s fees and other costs of collection accrued by a private entity on behalf of the victim. (I) 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. (J) Expenses to install or increase residential security incurred related to a crime, as defined in subdivision (c) of Section 667.5, including, but not limited to, a home security device or system, or replacing or increasing the number of locks. (K) Expenses to retrofit a residence or vehicle, or both, to make the residence accessible to 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. (L) Expenses for a period of time reasonably necessary to make the victim whole, for the costs to monitor the credit report of, and for the costs to repair the credit of, a victim of identity theft, as defined in Section 530.5.”
7 Judicial Council Of California Criminal Jury Instruction 240 – CALCRIM 240 provides: “An act causes (injury/ <insert other description>) if the (injury/ <insert other description>) is the direct, natural, and probable consequence of the act and the (injury/ <insert other description>) would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. <Give if multiple potential causes. > [There may be more than one cause of (injury/ <insert other description>). An act causes (injury/ <insert other description>), only if it is a substantial factor in causing the (injury/ <insert other description>). A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the (injury/ <insert other description>).]”
8 California Penal Code Section 1202(f)(1) and (2) provide: “The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the proceeding held to decide the motion. (2) 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. Restitution ordered pursuant to this subdivision shall be ordered to be deposited to theRestitution Fund to the extent that the victim, as defined in subdivision (k), has received assistance from the Victim Compensation Program pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code.”
9 California Penal Code Section 1202(i) provides: “A restitution order imposed pursuant to subdivision (f) shall be enforceable as if the order were a civil judgment.”