Constitutional: Constitution provides that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. (Cal. Const., art. I, § 28, subd. (b)(13).)
Statutory: PC 1202.4: 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 the amount established by court order, based on the amounts of loss claimed by the victims or victims …” (PC 1202.4(f).)
Restitution is “based on the amount of loss” the victim claims and should “fully reimburse” the victim for every economic loss the defendant’s criminal conduct caused. (PC 1202.4(f).)
Corporation: a corporation, partnership, or other commercial entity is entitled to restitution if it is a direct victim of a crime. (PC 1202.4(k)(2).)
Lost Wages/Profits: if due to a victim’s injury, these are compensable. (PC 1202.4(f)(3)(D).)
Identity theft: expenses making identity theft V whole compensable. (PC 1202.4(f)(3)(L).)
A defendant who signs the typical waiver form agrees to allow the sentencing judge to consider his entire criminal history, including any unfiled or dismissed charges. (People v. Goulart (1990) 224 Cal.App.3d 71, 80.)
Where there is a valid Harvey waiver, and D contests the allegations concerning the unfiled charges, the prosecution has the burden of proving the allegations by a preponderance of the evidence. (People v. Weatherton (2015) 238 Cal.App.4th 676, 681.)
D may be required to pay victim restitution to victims in dismissed counts if the conviction on the remaining count is made with a Harvey waiver. (PC 1192.3; People v. Weatherton (2015) 238 Cal.App.4th 676.)
No Probation? No problem. Court may make a valid restitution order under a HW even when it does not place the D on probation (See People v. Beck (1993) 17 Cal.App.4th 209 [D sentenced to CDC].)
Insurance payout
Determination of the amount of restitution ordered pursuant to this subdivision shall not be affected by indemnification or subrogation rights of any third party. (PC 1202.4(f)(2); People v. Birkett (1999) 21 Cal.4th 226, 246 [legislature intended that defendants make full restitution, payable to person or entity directly wronged, for all losses crime caused, irrespective of victim’s reimbursement from other sources]; People v. Vasquez (2010) 190 Cal.App.4th 1126, 1133-1134.)
Relocation Expenses
PC 1202.4(f)(3)(I) requires a trial court to include “[e]xpenses incurred by an adult victim in relocating away from the defendant.”
Verification Requirement: expenses must have been “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.”
To rebut a prima facie case, the defendant has the burden to disprove the amount of losses the victim claimed.
Victim Estimate in Probation Report. Regarding a victim estimate in a probation report, “depending on the circumstances and as a matter of discretion, a trial court may find a victim estimate sufficient to make a prima facie showing of loss, subject to rebuttal by the defendant.” (People v. Pittman (2024) 99 Cal.App.5th 1252, 1260.)
Replacement vs. Cost to Repair: the trial court may award the replacement cost of the property or the actual cost of repairing the property when repair is possible. (P.C. § 1202.4(f)(3)(A); People v. Stanley (2012) 54 Cal.4th 734, 737.)
VC 20001(a). (People v. Martinez (2017) 2 Cal.5th 1093 [D who pled guilty only to leaving scene of an injury accident may not be ordered to pay restitution for damages caused by the collision].)
PC 1001.36. Trial court can’t order restitution after the end of the statutory maximum two-year period of diversion. (People v. Berlin (April 26, 2024) A166452.)
PC 1001.36(f)(1)(D) only permits trial court to order restitution “during the period of diversion.”
Restitution in Probation Context – Indirect V. When probation is granted, the trial court has broad discretion to order restitution, even when the loss was not necessarily caused by the criminal conduct underlying the conviction. (People v. Martinez (2017) 2 Cal.5th 1093, 1101.)
BUT: in non-probation cases, “a victim of crime who incurs economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.” (PC 1202.4(a)(1).)