Isaac Safier Esq

WHO IS A VICTIM?

 

Anyone who is a victim of a crime can claim restitution (Cal. Const., art. I, § 28(b); Pen. Code, §1202.4(a)(1)). A crime “victim” is any person who has suffered economic loss as a result of the crime. A victim may include an immediate family member or person living with the direct victim (Pen. Code, §1202.4(k)(3)(A) and (B); a family member or fiancée who witnessed the crime (Pen. Code, § 1202.4(k)(3)(C); or the primary caretaker of a minor victim. (Pen. Code, §1202.4(k)(3)(E)).  A victim, for purposes of restitution, can also be a corporation, estate, or other type of entity. 

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ECONOMIC LOSS:

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Under California Penal Code § 1202.4(f) economic losses include full or partial payment for the value of stolen or damaged property; medical expenses; mental health counseling expense; lost wages or profits due to injury or coming to court; relocation expenses; and even security installation expenses or other necessary improvements.  In addition, the court has broad discretion to award restitution for economic losses that fall outside of the scope of the statutory scheme.

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ATTORNEYS' FEES:

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A victim can claim reasonable attorneys’ fees incurred by the victim in protecting or establishing the right to restitution (People v. Lyon (1996) 49 Cal.App.4th 1521).

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CIVIL SETTEMENT DOESN'T BAR RESTITUTION:

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A civil settlement does not bar an additional restitution award for additional losses, even if the settlement contains a  release. (People v. Clifton (1985) 172 Cal.App.3d 1165, 1168.) A release cannot waive the People’s right to have a defendant pay restitution. (People v. Bernal (2002) 101 Cal.App.4th 155, 160).)

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PROCEDURE:

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At the restitution hearing, the Victim presents evidence of their losses caused by the Defendant's crime, demonstrating that the defendant's conduct was a substantial factor in causing harm (it does not have to be the sole cause). The Victim must meet the standard of proof by a preponderance of the evidence. Documentary evidence like bills and business records is admissible to support the amount of losses, while a Victim's testimony alone serves as prima facie evidence. Once the victim makes their initial showing, the burden shifts to the defendant to demonstrate any inaccuracies. Failure to object to the Victim's proof waives any objections.  At the end of the hearing the Judge will issue an order for economic losses (not punitive or non-economic like pain & suffering).  A restitution order becomes a “money judgment” as defined in Code of Civil Procedure sections 680.230 and 680.270 and is enforceable as a civil judgment.  

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If a Defendant has not paid or is not consistently paying Restitution, they may face difficultly in getting their record cleared in the future.   

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Concealment of assets to avoid payment of restitution may be a felony if the underlying crime was a felony, and a misdemeanor if the underlying crime was a misdemeanor. (Pen. Code, §155.5.)