In cases where it is appropriate, restitution – as well as jail, probation, and fines – is ordered routinely by judges in California after a defendant receives a criminal conviction.
If you become a crime victim in California, or if you are accused of a crime such as burglary, fraud, or embezzlement, you will need to know how restitution is applied and how restitution works in this state, and how an Orange County criminal defense lawyer can help.
How is restitution defined in California? If you are charged with – or victimized by – a crime, it’s important first to understand that restitution isn’t the same thing as “compensation,” which is reimbursement for someone’s losses.
Instead, restitution is a penalty in California, a part of an offender’s sentence. Instead of paying what is owed, restitution is giving up what was gained by perpetrating a crime.
WHO MAY RECEIVE RESTITUTION?
Persons who have been crime victims, their family members, and victimized businesses, government agencies, and nonprofits may qualify to receive restitution in California if they have suffered losses because of a crime.
“Losses” include stolen, damaged, or destroyed property, medical costs if a victim sustained injury, lost income if a victim could not work after being victimized by a crime, and any legal expenses incurred in the pursuit of restitution.
All fifty states provide for some type of restitution to be paid to crime victims. Crime victims are entitled under California law to full compensation for all crime-related losses.
HOW DOES CALIFORNIA’S VICTIMS COMPENSATION FUND WORK?
In this state, however, judges may also require “general restitution,” essentially a fine that goes into the state’s Victims Compensation Fund or “VCF.” Keep reading – you’ll learn more below about the VCF.
The general restitution amount that an offender may be required to pay into the VCF – usually between $100 and $10,000 – will depend on the severity and the specifics of the offense.
When the victim of a crime (or a victim’s family) is entitled to restitution, and the perpetrator of the crime has no resources or insurance, the California Victims Compensation Fund can assist with medical costs or funeral expenses.
WHAT IS A “HARVEY WAIVER” AND HOW DOES IT WORK?
When the restitution amount that a victim is entitled to has been determined, a California prosecutor may not lower that figure to offer the defendant a plea bargain. California’s legal system prioritizes victims’ rights and does not allow a victim’s rights to be compromised.
That doesn’t, however, mean that plea bargains and restitution are unrelated. Crime victims can be compensated – as part of a plea bargain – even if the perpetrator of the crime isn’t convicted or even tried.
How can that happen?
A prosecutor can offer to dismiss a criminal charge if, in return, the defendant signs a “Harvey” Waiver which orders a restitution payment to the crime victim as the penalty for a charge that’s dismissed. Harvey Waivers entitle a crime’s victim or victims to restitution.
How is a precise monetary figure even determined for restitution? And what if there is no way to decide on a precise sum?
Keep reading. If you are victimized by a crime, you’ll need those answers, and if you are accused of a crime in California, you’ll need those answers as well as a lawyer’s advice and representation.
HOW WILL AN EXPERIENCED DEFENSE LAWYER HELP?
In southern California, if you are charged with any felony or misdemeanor, take the case at once to a criminal defense attorney. Your defense lawyer will:
1. review the charge or charges against you
2. launch an immediate, independent investigation
3. examine evidence and question any witnesses
4. develop an aggressive and effective strategy for your defense
Your attorney may initially seek to have the charge or charges against you dismissed; if that’s not possible, your attorney will either fight for a not guilty verdict or, depending on the strength of the evidence against you, negotiate the best possible plea bargain on your behalf.
WHO WILL MAKE THE FINAL DECISIONS ABOUT YOUR DEFENSE?
Of course, if you are innocent, you and your attorney should fight aggressively for your acquittal, but if the state’s evidence against you is conclusive, a plea bargain may be the best way to resolve your case.
If the charge or charges cannot be dismissed, the final choice to accept a plea bargain or take the case to court is yours and yours alone, but a wise defendant will accept a good defense lawyer’s recommendations.
As everyone knows, legal processes can be quite lengthy, but in some cases involving restitution, a crime victim’s exact final expenses cannot be known until after sentencing.
HOW ARE RESTITUTION AMOUNTS DETERMINED?
In these cases, the judge can require restitution as part of a probation sentence – with the final amount determined later.
Exactly how is a final restitution figure determined? If you’re a crime victim who has suffered losses, what can you actually receive? If you are a convicted offender, what will you actually pay?
That amount is usually determined at a sentencing hearing, or if necessary, at a later restitution hearing. If a victim confirms additional losses after the restitution order has been issued, the judge can modify the original restitution order.
WHAT HAPPENS AT A RESTITUTION HEARING?
How are restitution hearings conducted? Because a defendant has been convicted already, a restitution hearing is a type of sentencing hearing, so a crime victim does not have to prove his or her claim beyond a reasonable doubt – a “preponderance of the evidence” is sufficient.
A defendant may dispute the restitution amount, but that defendant will then have to prove that the figure is unfair or inaccurate.
While judges in California may order “lump-sum” restitution payments, offenders are usually allowed to make payments over time on a payment plan schedule.
Victims typically prefer to have payments sent to a local probation office and then forwarded, which adds a ten percent fee for administrative costs to the final restitution amount.
WHAT IF RESTITUTION PAYMENTS ARE NOT MADE ON TIME?
Failure to make restitution payments on time is a parole violation, and a willful failure to pay can send an offender to jail.
In the Orange County area, if you are sentenced to pay restitution, but due to financial hardship, you can’t, a criminal defense attorney may be able to help you have the restitution order modified.
You’ll need an experienced criminal defense attorney’s help if you are accused of any crime in southern California. Your future – and possibly your freedom – may be at stake.
If you are charged with a crime, obtain the legal help that you need – as soon as you need it. That is your right.