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Restitution – along with jail time, fines, and probation – is routinely ordered by California judges after someone is convicted of a crime.

Whether you are charged with a crime in this state, or if you become the victim of a crime – especially a crime like burglary, robbery, fraud, or theft – you need to know precisely what restitution is and how it works in California.

For starters, “restitution” is not “compensation.” Compensation is also a payment for losses, and you might receive compensation after an accident – something like a dog bite or a car crash – but restitution is different.

It’s a criminal penalty, part of a convicted offender’s sentence. The person paying restitution is giving up whatever he or she gained by committing the crime.

WHO QUALIFIES TO RECEIVE RESTITUTION?

Those who may qualify to receive restitution in California include individuals who are crime victims, their family members, and a business, a government agency, or even a nonprofit that has sustained losses due to a criminal act.

Losses can include destroyed, damaged, or stolen property, medical bills if the victim was injured, lost wages if the victim was unable to work due to the crime, and the legal costs of trying to collect restitution.

That describes “victim restitution,” and every state has some system of victim restitution. However, judges in California may also order convicted offenders to pay what’s called a restitution “fine” or “general restitution.”

General restitution payments go to the California Victims Compensation Fund. The amount an offender is ordered to pay depends on the type and severity of the crime he or she committed, and that amount may range from $100 to $10,000.

WHAT IS THE CALIFORNIA VICTIMS COMPENSATION FUND?

Everyone in California should know about our state’s Victims Compensation Fund. When a crime victim’s needs cannot be compensated by any other source, the program will help with needs that may include medical expenses, rehabilitation and therapy, relocation, or funeral costs.

While a judge determines the amount of a restitution “fine” that will be paid to the Victims Compensation Fund, victims themselves are entitled by law to recover victim compensation for the full amount of their losses.

Prosecutors do not have the authority to reduce that amount for plea bargaining purposes because the rights of the victim cannot and will not be compromised by the state or by the court.

In fact, some convicted offenders in California pay “restitution” for crimes they’re not even tried for or convicted of. How does that happen?

When a defendant agrees to a plea bargain and a charge tied to a victim’s loss is dismissed, the prosecutor will have the defendant sign a document called a “Harvey” Waiver.

A Harvey Waiver “waives” a defendant’s right to a trial and allows the court to order a victim restitution payment as a sentence for a dismissed charge.

A Harvey Waiver entitles a crime victim to restitution for any dismissed charge linked to the crime and the case.

HOW ARE RESTITUTION AMOUNTS DECIDED?

How is the amount of any particular restitution payment determined – and what if it can’t be determined? What if the victim has already been reimbursed by an insurance company or some other party such as the Victims Compensation Fund?

If you become a crime victim in southern California, you’ll need to know, and if you’re charged with a crime, you’ll need those answers, and you’ll need some legal help too.

What you’ll really need is to take your case to a Los Angeles criminal defense attorney.

Crime victims in California may receive restitution, and payment may be imposed on the convicted offender, even when a crime victim is reimbursed separately through an insurance company.

If a convicted offender’s insurance company makes the payment, the defendant may then have that amount deducted from his or her remaining restitution obligation.

WHAT HAPPENS IF A RESTITUTION SUM CANNOT BE DETERMINED?

Sometimes, of course, a victim’s final medical expenses can’t be totaled until long after a sentence is handed down.

In such cases, at sentencing, a judge may order restitution as a condition of the offender’s probation – for a final amount that will be determined later at a restitution hearing.

The important question, of course, is “How is that amount determined?” In other words, what can crime victims in California realistically expect to receive? And what should convicted offenders in this state expect to pay?

The final victim compensation amount is usually decided at sentencing, or if cannot be accurately determined at that time, it’s decided at a later restitution hearing.

How those hearings work is explained next – and it’s important to know – but whether restitution is ordered at sentencing or at a later hearing, if a crime victim discovers even more losses after restitution has been ordered, the original order may be amended by the court.

WHAT HAPPENS AT A RESTITUTION HEARING?

How does a restitution hearing work? Not exactly like a trial, since the defendant has already been convicted.

Generally speaking, however, a victim still must prove that the offender’s criminal conduct – the crime – was substantially the cause of that victim’s losses.

Because a conviction is already in place, “a preponderance of the evidence” – rather than guilt beyond a reasonable doubt – is all that is required for the court to order a victim restitution payment.

But if a defendant contests the amount requested, the defendant has the burden of proving the amount is inaccurate or unjust.

If restitution is imposed, the judge will order a single “lump-sum” payment in some cases, but in most cases the judge will approve a plan that allows the convicted offender to make regular payments over a period of time.

Usually, victims prefer to have the payments sent to a local probation department which then forwards the payment. In these cases, a ten percent administrative fee may be added to the restitution total.

WHAT IF SOMEONE FAILS TO MAKE ORDERED RESTITUTION PAYMENTS?

If a convicted offender fails to make scheduled restitution payments, it is a violation of probation. Willfully failing to make restitution payments can land an offender in jail.

In southern California, if you are ordered to pay restitution, and you can’t because of financial hardship, you probably will not be sent to jail, but you should ask a qualified Los Angeles criminal defense attorney to help you have the restitution payment order amended.

What you’ve read here is a general outline of how restitution works in California, but every case is different, and the law provides for some exceptions and exemptions depending on the precise circumstances of each crime and each charge.

That’s why you must have an experienced California defense attorney’s help if you’re charged with a crime. Don’t try to represent yourself, and do not take any advice from anyone who is not a seasoned criminal defense lawyer.

By: Douglas Miranda

Los Angeles criminal attorney Douglas Miranda graduated with honors from California State University, Los Angeles, and earned his J.D. from Western State College of Law in Fullerton. Since his admission to practice law in California, he has received special training and certification in forensic science, jury selection, and sex crime defense. Mr. Miranda also helps clients terminate their probations early and expunge their criminal records.

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