If you are convicted of a misdemeanor or felony offense and the victim of your crime sustained some form of loss, the court will generally order you to pay restitution to the victim to recover those losses. Paying victim restitution will be a condition on your probation.
Victim restitution is described as the right of victims of crime to receive compensation from the individual or entity who committed a crime resulting in harm to the victim of member of their family. Common California crimes that might require victim restitution include fraud, theft crimes, robbery, DUI causing injury, and more.
It should be noted that in order for a victim to receive restitution, there has to be a conviction on the case. This could occur as plea agreement, no contest plea, or a guilty verdict at trial. The victim must inform the court, prosecutor, or probation department about their loss.
According to California law, a “victim” is defined as someone who suffered some type of physical, psychological, financial harm, or the family or businesses of those harmed.
A “loss” most often includes lost wages, doctor and rehabilitation expenses, lawyer fees, and cost to repair damaged property. It should be noted that victim restitution in criminal cases is much different than filing civil action or a personal injury claim.
For instance, victim restitution in criminal cases is normally order within a short period of time after the conviction, while most civil claims can take many months or years. In addition, in a personal injury lawsuit, the attorney will receive a substantial portion of the recovery, but not in criminal cases.
To give readers some useful information about the victim restitution law, our Los Angeles criminal defense attorneys are providing an overview below.
Victim's Compensation Fund in California
Victim compensation is money sent from the offender to the victim. The judge could also order the offender to pay a fine called “general restitution.” The money will be sent to the California Victims Compensation Fund.
The amount the judge will order the offender to pay depends on the on the type crime committed and will normally range from $100 to $10,000. The money is primarily designed to provide compensation to victims of violent crime and to help cover the cost of relocation, medical and rehabilitation expenses.
How Court's Determine Amount of Victim Restitution
A crime victim is entitled to recover the full amount for “reasonable” expenses or a loss. At a defendant's sentencing, the judge will usually order the defendant to pay victim restitution, which will be considered a condition of probation.
The court will schedule a future date for a restitution hearing to determine the amount the defendant will owe the victim. It should be noted that some criminal charges against the defendant might be dropped as part of the plea agreement.
In such cases, the court will accept a Harvey Waiver from defendant for the victim to recover restitution as a sentence for a dropped criminal charge. A Harvey Waiver entitles a victim of crime to get restitution for any dismissed count connected to the case.
Crime victims can still collect restitution from defendant even in a situation where they might have the reimbursement from an insurance company, but it will be deducted from defendant's restitution obligation.
If the amount of restitution is not known at sentencing, the victim and defendant will come back to court later to address restitution issues. The prosecutor is normally responsible for communicating with the victim on their restitution claims. The final amount will be decided at a restitution hearing, but the victim could amend the amount later if there were more losses discovered later.
Victim Restitution Hearing
As stated, in situations where the victim doesn't know the amount of their losses at defendant's sentencing, or if defendant decides to challenge the amount ordered, the court will then hold a victim restitution hearing.
It's the victim that has the burden of proof to show the defendant's conduct caused their losses. They must be able to prove the behavior was a significant factor for their loss and that the claimed expenses are in fact legitimate.
As stated, common victim losses include medical bills, lost wages from work, and cost to repair or replace their property. Typically, a victim can prove their losses by giving the court statements and other types of documentation verifying claimed losses. This stand of proof is commonly known as a “preponderance of the evidence,” meaning it's more likely than not.
In a situation where the victims don't have documentation, they are permitted to give the court a verbal explanation to describe what they believe is a loss. If defendant decides to challenge amount of restitution, then they have the burden of proof to show the court the amount is not appropriate.
Payment of Victim Restitution
After the court decides how much victim compensation the defendant has to pay, it's now considered a condition of their probation sentence. The court has the discretion to order the defendant to pay the victim the full amount in just one payment, or they could order defendant to set up a monthly payment plan.
In some cases, the court could order defendant to make the payments directly to the probation department, who will then send the money to the victim. In cases where the order restitution is a large amount, the court could allow defendant to make monthly payments throughout the entire period of their probation.
In cases where defendant fails to pay court ordered restitution, then the victim could inform the prosecutor who will then make the court aware of the situation. The court might issue a violation of probation and schedule a probation violation hearing. If it's determined there was a willful failure to pay victim restitution, it could result in addition penalties, such as some time in jail.
If defendant doesn't have the money to pay the restitution, the court could schedule an ability to pay hearing.
If the defendant make claims they don't have the funds to pay restitution, the court could even order them to find employment. The court might also extend defendant's probation period to ensure the victim receives full compensation.
Contact Cron, Israels & Stark for Help
If you were charged with a crime that may involve victim restitution, or you were already order to pay restitution, call our Los Angeles criminal defense lawyers to review the details and options.
We have decades of combined experience in criminal law and know how to obtain the most favorable outcome on your criminal case. It might be possible to reach some type of civil compromise on your case. We serve clients throughout Southern California, including the San Fernando Valley.
Cron, Israels & Stark is a criminal law firm located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025. We have another office located at 401 Wilshire Blvd #1200, Santa Monica, CA 90401.