“Restitution Hearing” in a Criminal Case – How It works

A restitution hearing is a legal proceeding in a criminal case whereby the court determined how much the defendant must pay to compensate the victim or victims of the crime. The defendant is ordered to pay the restitution as a condition of probation. If there is no probation or probation terminates, the outstanding restitution is generally converted to a civil judgment.

The following graphic shows some of the expenses victim restitution covers.

In this article, our criminal defense attorneys¹ explain the significant points of restitution law by addressing the following:

• 1. What is Victim Restitution & Compensation?
  • 1.1. Restitution orders vs. restitution fines
  • 1.2. How much victim restitution will the court order a defendant to pay?
• 2. What happens at a restitution hearing?
• 3. Paying Victim Restitution
  • 3.1. What if the defendant doesn’t make
    his/her payments?
  • 3.2. How can a victim collect unpaid restitution?
  • 3.3. What happens if the defendant’s probation expires and all victim restitution payments have not been paid?
• 4. Special circumstances
  • 4.1. Victims of violent crimes
  • 4.2. Regarding juvenile defendants
  • 4.3. Spousal crimes
• 5. The Difference between Criminal Victim Restitution and a Civil Lawsuit
  • 5.1. Civil compromise
• Additional reading

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is Victim Restitution & Compensation?

Victim restitution (compensation) refers to a victim’s right to recover any economic losses that he/she incurred as the result of another person’s criminal wrongdoing.

“Victims” may include

• the person who suffered a direct or threatened physical, psychological, or financial harm,
• the family of the individual who suffered a loss, or even
• a business, government or other entity who has suffered a loss due to another person’s criminal acts.²

In calculating restitution, financial losses are deemed to include (but are not limited to):

• stolen, damaged or destroyed property (property damage),
• medical and/or therapy bills,
• lost wages if the victim was unable to work due to the crime (which includes court and travel time),
• damage to a business or its property, and
• any reasonable attorneys’ fees that were incurred by trying to collect the ordered restitution.³

1.1. Restitution orders vs. restitution fines

Victim restitution (sometimes referred to as a restitution order) is different from general restitution (which is also referred to as a restitution fine).

As West Covina criminal defense attorney John Murray⁴ explains:

“Victim compensation is money that the defendant pays directly to the victim for his/her wrongdoing.  A restitution fine is money that a criminal defendant pays in every case to the state’s Restitution Fund which helps support the California Victims Compensation Fund.  This amount varies depending on whether the defendant was convicted of a misdemeanor or a felony and ranges from $100 to $10,000.”⁵

The Victims Compensation Fund is a program that provides compensation to victims of violent crimes.  If a person meets the eligibility criteria, the program will compensate for many types of services when the costs are not covered by other sources, such as

• funeral expenses,
• relocation, and
• rehabilitation.

1.2. How much victim restitution will the court order a defendant to pay?

California law provides that victims of crime are entitled to recover the full amount for any reasonable losses or expenses.⁶ The prosecutor in criminal court is not even allowed to reduce this amount of restitution during a plea bargain, because he/she has no right to waive any claims on the victim’s behalf. ⁷

As a side note, there may be times when the defendant enters into a plea agreement with the prosecutor whereby a charge that is related to the victim’s loss gets dismissed.  When this happens, the court can still order the defendant to pay victim restitution as long as the prosecutor first obtains what is known as a Harvey Waiver from the defendant.  Once signed, a Harvey Waiver entitles the victim to restitution on any dismissed count connected with the case. ⁸

The victim is entitled to collect full restitution from the defendant even if the victim is separately reimbursed by an insurance payment.⁹ However, if it is the defendant’s insurance company that pays the victim, the defendant is entitled to have the insurance payment deducted from his/her remaining victim restitution obligation.¹⁰

If the full amount isn’t known at the time of the defendant’s sentencing — which is when restitution must be requested and ordered as a condition of probation — the judge can include a provision that victim compensation will be ordered based on an amount “to be determined”.

The amount will then be determined during a restitution hearing.¹¹ And regardless of whether the exact amounts of victim restitution amount is set at the sentencing hearing or later at a restitution hearing, if the victim discovers additional losses after the restitution order is made, it can be amended as appropriate.¹²

2. What happens at a restitution hearing?

If, at the time of sentencing, either

1. the victim doesn’t know the exact amount of his/her losses, or
2. the defendant wishes to contest the requested amount,

the case will proceed to a restitution hearing.

The victim has the burden of proving that the defendant’s criminal conduct substantially caused the victim’s losses.  The defendant’s conduct doesn’t have to be the only factor that contributed to the loss, as long as the conduct was at least a substantial factor.¹³

The victim must prove that the amount of compensation he/she is requesting is proper. The standard of proof is “a preponderance of the evidence” – a legal concept which means “more likely than not”.¹⁴ Evidence such as

• bills,
• business records,
• medical expenses, and
• profits lost

are all admissible at the hearing.¹⁵ If the victim doesn’t have this type of documentary evidence, he/she can simply explain what he/she believes were his/her losses through a victim impact statement.  If the defendant disputes this amount, it is he/she who then has the burden of proving that the requested amount is inappropriate, perhaps by obtaining his/her own estimates.¹⁶ The defendant always has the right to challenge the amount ordered for reimbursement.¹⁷

3. Paying victim restitution

After determining how much victim restitution or compensation a defendant will be required to pay, that payment becomes a part of the defendant’s probation sentence.  Depending on the circumstances, the judge will either

• require the defendant to pay the victim the full amount in one payment, or
• set up a payment plan for the defendant to make installment payments (a much more common approach).

If the victim is uncomfortable having the defendant make payments directly to him/her, the victim may request that payments be made to the local probation department which will then forward payments to the victim.¹⁸ When this is the case, the defendant may have to pay an administrative fee of up to 10% of the restitution amount.¹⁹

3.1. What if the defendant doesn’t make his/her payments?

If the defendant fails to make timely payments, the victim may contact the prosecuting attorney so that he/she can schedule a probation violation hearing.  A willful failure to pay can result in a probation violation, incarceration or other additional penalties.  Failure to pay solely because of a financial inability to do so cannot be penalized.²⁰

When a defendant claims that he is unable to pay, the court may order him/her to obtain a job (in order to pay restitution) as a condition of probation.²¹

And if the defendant was convicted of sexual assault on a minor or of assault or battery on a person 65 years or older — which is also a violation of Penal Code 368 PC California’s elder abuse law — the judge must order him/her to seek and maintain legitimate employment to pay the cost of the victim’s medical and/or psychological treatment.²²

3.2. How can a victim collect unpaid restitution?

Once a victim is awarded restitution, the order is collectible as if it were a civil judgment.  This means that the victim will have all the resources available under California law to collect his/her payment.  These resources include (but are not limited to):

• access to the defendant’s financial records and assets via a “defendant’s statement of assets” which the defendant must sign under penalty of perjury (subjecting him/herself to California Penal Code 118 PC perjury charges if he/she omits or falsifies information),²³
• the ability to garnish wages (if the defendant is employed), and
• the ability to place a lien on any property.²⁴

This means that if a victim utilizes these methods, a defendant’s employer may garnish his/her wages (that is, deduct a specific amount each pay period), and a defendant’s bank may freeze his/her accounts.  And even if the defendant is incarcerated following his/her restitution order, California law still allows the state to collect victim compensation through an inmate’s trust account.²⁵

3.3. What happens if the defendant’s probation expires and all victim restitution payments have not been paid?

If, by the end of the defendant’s probation term the defendant has not paid all of his/her victim restitution, the court will convert the remaining amount into a civil judgment.²⁶

When it appears that this will be the case — that is, that the defendant will have an unpaid balance at the conclusion of probation — the defendant must prepare and file an updated financial disclosure which must be turned over to the victim upon request.²⁷

In addition, California criminal records expungement law prohibits a defendant who has a remaining unpaid balance of victim restitution after he/she serves his/her probation sentence from obtaining an expungement of that conviction, unless and until he/she pays that remaining balance.²⁸

4. Special Circumstances

There are a few California victim restitution laws that are specific to individual circumstances.  These include (but are not necessarily related to):

4.1. Victims of violent crimes

Victims of violent crime may apply directly to the state’s Victims Compensation Program.  When they do, the defendant will be required to pay his/her victim restitution to that program instead of to the victim for the full amount that the judge ordered the defendant to pay.²⁹

4.2. Regarding juvenile defendants

If a minor (that is, a person under 18) is ordered to pay restitution, his/her parents may be liable for making those payments.  The judge will take into consideration a variety of factors when determining parents’ ability (or inability) to pay including (but not limited to):

• the number of additional dependants the parents have,
• other specific financial obligations (such as mortgage payments, health insurance, food and clothing expenses, etc.), and
• the parents’ future earning capacity.³⁰

4.3. Spousal crimes

And if a defendant has been convicted of victimizing his spouse under

• Penal Code 243(e)(1) PC California’s domestic battery law,
• Penal Code 262 PC California’s spousal rape law,
• Penal Code 273.5 PC California’s corporal injury on a spouse or cohabitant law, or
• by violating a protective order,

he is not allowed to use community property to pay the restitution order until and unless all of his separate property has been exhausted.³¹

“Community property” is any money (including income) or property that one acquires during a marriage other than by inheritance or gift.  “Separate property” is, therefore, any inheritance, gift acquired at any time, or money or other property that one acquires prior to marriage or after separation.

5. The Difference between Criminal Victim Restitution and a Civil Lawsuit

There are three major differences between (a) victim restitution in a California criminal case and (b) a civil lawsuit.  They are as follows:

1. Criminal victim restitution is (at least in theory) a quicker process than filing a civil lawsuit.  Criminal victim restitution is typically ordered at the time of…or very close to… a defendant’s sentence.  Many California civil lawsuits take years to resolve.
2. In a criminal prosecution, the victim submits his/her receipts, bills, etc. to the prosecution who then presents the figures to the defense and court.  In a civil suit, the defendant’s lawyer requires the victim to participate in a deposition that could last for hours or even days.  A deposition is analogous to cross-examination by the defense attorney.  And,
3. In a civil lawsuit filed by a crime victim, the victim’s attorney will collect a fee, generally between 30-40% of the total recovery.  This is not the case with crime victim restitution, because the district attorney…who helps present the victim’s expenses…does not collect a fee.  If a victim chooses to hire a private attorney to help collect a criminal restitution order, those fees may be added to the restitution amount. Common examples are lawsuits by victims of assault and battery and wrongful death lawsuits by the family of a murder victim.

5.1. Civil compromise

The bottom line is that victim restitution is a fundamental part of the criminal process.  In fact, ensuring that an injured victim receives compensation for his/her losses is so important to the California justice system that if a defendant reimburses a victim prior to a California jury trial, the judge…under certain circumstances…may allow the parties to participate in what is known as a civil compromise.³²

If the victim of a misdemeanor offense acknowledges that he/she has received satisfaction for his/her injuries, the court may release the defendant from criminal liability and prevent the prosecution from re-filing charges for the same offense.³³

Additional reading

For more in-depth information, refer to these scholarly articles:

• Criminal Restitution – Victim’s Rights in General: The States’ Ability to Put the Victim in the Same Position as They Were in before the Crime Occurred – North Dakota Law Review.
• Victim Impact Statements and Restitution: Making the Punishment Fit the Victim – Brooklyn Law Review.
• The Scope of Criminal Restitution: Awarding Unliquidated Damages in Sentencing Hearings – Capital University Law Review.
• Restitution from the Victim’s Perspective – Recent Developments and Future Trends – Federal Sentencing Reports.
• When Does Restitution Become Retribution – Oklahoma Law Review.

Also see the California Victim Compensation Program, which provides information about the state’s restitution program for both victims and defendants.

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