What is Restitution?
In criminal law, Restitution is a payment by the defendant to a victim for economic harm/loss caused by the defendant’s criminal conduct. A victim of a crime is someone who has suffered economic loss as a result of a crime committed by a defendant. A victim does not have to be an individual, but can also be an agency, corporation, or a business entity. Restitution is triggered at the time the defendant is convicted. It is ordered by the court as a condition of the defendant’s probation, or as part of a plea bargain. Restitution can be paid directly to the victim or the Probation department. Restitution covers economic and out-of-pocket loses only. There is no pain and suffering in criminal restitution. Pain and suffering only applies in civil cases. Restitution is a Constitutional right in California and crime victims have a right to Restitution for losses resulting from criminal acts against them. A defendant’s inability to pay is not considered by the court and does not affect Restitution.
The law governing Restitution in California is covered in Penal Code Sections 1202.4 (Direct Restitution) and 1203.1 (Probationary Restitution). Under Penal Code Section 1203.4(f)(3) the losses subject to Restitution include the following:
- The full or partial value of stolen or damaged property;
- Medical expenses; including future medical expenses;
- Mental health counseling;
- Lost wages, past & future and lost profits;
- Interest at 10% per year;
- Psychological harm for felony violations of Penal Code 288 (Child Sex Abuse);
- Actual and reasonable attorneys’ fees, and other collection costs accrued by a private entity on the victim’s behalf;
- Expenses to relocate away from the defendant;
- Payments to the victim by the defendant’s insurance company offset the Restitution owed to the victim;
- Payments to the victim by the victim’s insurance company do not reduce the Restitution amount.
Failure by the defendant to pay full restitution could result in a civil judgment without expiration.
Collection of Restitution – Penal Code Section 1214
According to California law (Penal Code Section 1214), a criminal order for Restitution is enforceable as if it were a civil judgment. There are specific procedures that must be followed in order to collect the Restitution. There is no waiting period required to begin collecting Restitution once the order is signed by the judge. A Criminal Restitution Order does not expire and is not dischargeable in Bankruptcy. The first thing you must do in enforcing an order for Restitution is to obtain an Abstract of Judgment signed by the judge identifying the victim and the defendant along with the amount of money owed to the victim, That Order for Restitution should then be recorded in the County Recorder’s Office. That order will act as a lien against the defendant’s real property. If the owner (defendant) of the property decides to sell that property, then the Restitution would be paid to the victim from the seller’s proceeds,
Our Attorneys Can Help
A criminal lawyer can assist and defend you in a Restitution Hearing by advocating on your behalf and presenting evidence to the court to support your position. A lawyer can also challenge any evidence presented by the victim/prosecutor that may be used to establish the amount of restitution sought. Additionally, a defense attorney can negotiate with the prosecution and victim to try to reach a restitution agreement that is fair and reasonable for all parties involved. They can also advise you on your legal rights and obligations related to Restitution and help you understand the potential consequences of a Restitution Order. If you are facing a Restitution Hearing and need legal advice, call and schedule a free consultation with us and learn how we can help you. Call us at (213) 481-6811.
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