Most people are vaguely aware that the court may order a direct restitution payment to the victim of a defendant’s criminal conduct. In fact, criminal restitution is almost always mandated by law when the victim suffers an economic loss due to the defendant’s criminal act(s). Direct restitution is not ordered unless and until the defendant is convicted of the crime.
The law also mandates that the court order a restitution fine, which is paid to the state. This is a separate and additional restitution order, but not the subject of this post. Here, we will discuss direct restitution, which is codified at Penal Code section 1202.4.
Direct restitution may be ordered on a misdemeanor or a felony conviction. Following conviction of a crime in which a victim claimed to have suffered economic losses due to the defendant’s criminal conduct, the court will make a restitution order at sentencing or at a later restitution hearing.
The purpose of restitution is to make the victim whole, but this only applies to the victim’s economic losses. An economic loss may encompass lost wages or business income, medical expenses (including psychological counseling needed as a result of the crime), property damaged or taken, attorney fees paid to collect restitution, and many other incidental economic loss that is attributable to the defendant’s criminal conduct. What is not included in direct restitution is compensation for pain and suffering (although a victim can sue in civil court for this relief).
Theoretically, restitution is supposed to be a close approximation to the victim’s actual economic losses. Practically, this often is not the case. You might think that that victim has to show his or her economic losses in the form of receipts or other documentation that the loss occurred. That is not the case. All the victim need do is give a reasonable estimate to the court of his or her losses. It is the defendant’s burden to show that the claimed losses are inaccurate.
This may be a difficult burden to overcome and coupled with many courts’ sympathies with the victim, it is not unusual that victims will claim and receive a restitution order on what seem to be wildly exaggerated losses. Believe it or not, the defendant cannot demand receipts to support the losses. The victim’s statement of the losses is enough. Restitution orders can reach exorbitant amounts. Without an experienced restitution attorney who understands how to dispute a restitution claim, the unrepresented or under-represented defendant may end up with an order in the hundreds of thousands of dollars.
Example: Richard is convicted for the theft of Susan’s jewelry. Richard, Susan’s former husband, was very familiar with Susan’s jewelry and knew that most of it was costume jewelry or low value precious metals and gems. Susan had other things in mind, maybe she could really put the screws to her ex-husband (well, that is speculation, but you see where this is going). She made a claim in restitution identifying each piece, overvaluing the jewelry as precious metals and expensive gemstones. Never mind that Richard knew that ruby ring was glass and so on. How could Richard show that the claimed losses were overvalued? He cannot tell the court that Susan is lying, especially since she is the victim!
This scenario is not an outlier. It happens often in restitution hearings under a variety of conditions. Perhaps a victim claims exaggerates medical expenses due to the defendant’s assault or claims inflated business losses due to the defendant’s vandalism…the variations are endless.
The defendant is entitled to a restitution hearing and this is where the skilled restitution attorney can utilize strategies and argument to convince the judge to order less restitution than what the victim claims, assuming the victim’s claims appear to be exaggerated, deceptive, or false. Criminal restitution—because the rules are so loose and normal rules of evidence do not apply— can end in a fleecing of the defendant. An experienced restitution attorney will protect the limited rights of the defendant in a restitution hearing and advocate to the extent allowed, for a restitution order the properly reflects the defendant’s losses.
Orange County criminal defense attorney vigorously defends his clients at all stages of their case. If you want a strong advocate on your side, contact Mr. Weinberg for a free consultation regarding your matter and options. Call Mr. Weinberg at his Irvine office at 949-474-8008 or email him at bill@williamweinberg.com.