Restitution Is Payback\u2013What Goes Around, Comes Around.\u00a0 By Andrew D\u00f3sa, Law Office of Andrew D\u00f3sa, Alameda, Northern California.<\/p>\n
The law is clear.\u00a0 California has made it a Constitutional Right of a crime victim.\u00a0 Restitution is imposed when a defendant is convicted of a crime.\u00a0 It is good for a victim.\u00a0 It is supposed to be “good” for a defendant.<\/p>\n
What is restitution?
\nThe idea is simple.\u00a0 Restitution restores or \u201crepairs\u201d a victim.\u00a0 You cannot undo the past, but you can pay the victim for the damages suffered.<\/p>\n
Why is restitution required?
\nRestitution was understood as community justice.\u00a0 Virtually every ancient legal system recognized restitution.\u00a0 The Hebrew Bible, the Old Testament, spoke of \u201can eye for an eye.\u201d\u00a0\u00a0 This was not vengeance.\u00a0 It meant you gave back to somebody to cover the loss you caused.\u00a0 You are repairing something or restoring somebody.<\/p>\n
In California, restitution is to rehabilitate the defendant.\u00a0 It may seem like punishment, since fines, like restitution, are added to a sentence.\u00a0 Fines are punishment.\u00a0 Restitution is not.<\/p>\n
We have all suffered injustice or from someone\u2019s bad conduct. Do you know someone who was a victim?\u00a0 Injured in a car accident?\u00a0 Falsely accused?\u00a0 Or left broke by someone who stole something?\u00a0 It makes sense for the responsible party to repay the victim.\u00a0 Should a victim be restored?\u00a0 Of course.<\/p>\n
Why is paying restitution good for a defendant?\u00a0 A defendant might fully understand how his actions harmed somebody.\u00a0 If he has to pay for the damages he caused, he might learn the lesson.\u00a0 Paying restitution is like walking in the victim\u2019s shoes.<\/p>\n
Who is a victim?
\nAnyone, a business or individual, who suffers an economic or non-economic loss from a crime is a victim.\u00a0 Penal Code \u00a71202.4(k)(2).<\/p>\n
What is included or excluded?
\nJust about any loss can be included.\u00a0 Medical bills, stolen or damaged property, child support, lost items, lost income, lost employee time, and psychotherapy bills can be part of a restitution order.\u00a0\u00a0 The damages can be economic or non-economic.\u00a0 A victim under Penal Code \u00a7288 (a sex crime) suffering psychological harm and receiving counseling has a non-economic loss.\u00a0 Penal Code \u00a71202.4(f)(3)(F).<\/p>\n
A victim can try to collect his losses.\u00a0 Reasonable expenses, like investigation and litigation costs from a civil action, can be recoverable.\u00a0 The lawsuit must be based on the same facts as the crime.<\/p>\n
Attorney\u2019s fees, if reasonable and actual, are subject to restitution.\u00a0 Penal Code \u00a71202.4(f)(3)(H).\u00a0 The court will exclude excessive fees.\u00a0 Contingency fees, based on a percentage of the recovery, must be based on actual attorney work performed.<\/p>\n
Interest at 10% per year can be imposed, from the date of loss or sentencing.\u00a0 A defendant becomes a private bank, giving this strong rate of return on the amount of the order.\u00a0 Penal Code \u00a71202.4(f)(3)(G).<\/p>\n
Most damages reasonably related to the crime will be restitution.\u00a0 But sanity does apply.\u00a0 A victim hurt in a drunk driver-caused collision would not satisfy the court by claiming she needed psychotherapy because she had dreams a giant beer can was chasing her.<\/p>\n
There is no restitution if a crime is not charged.\u00a0 There is no restitution (or fines) on charges dropped, unless there is a \u201cHarvey\u201d waiver as part of the deal.<\/p>\n
A government entity must be a direct victim to get restitution.\u00a0 A government entity providing services by employees \u201ccarrying out their assigned tasks,\u201d cannot recover those costs.\u00a0 For example, investigators for the
\nState Board of Equalization examine potential failures to pay taxes or fees.\u00a0 Their salary and costs are not restitution.\u00a0 There is also no restitution for the costs of prosecution.<\/p>\n
What if there are two or more defendants?
\nEach co-defendant is considered jointly and severally liable and must pay the entire amount. If a co-defendant makes a payment, everybody gets the credit.\u00a0 But, as you can guess, it\u2019s also possible the co-defendant was the guy who talked his friends into their troubles.\u00a0\u00a0 You cannot expect him to be reliable\u2013unless he faces revocation of probation.\u00a0 Then, he may be \u201cforced\u201d to be good.<\/p>\n
Conclusion<\/p>\n
Restitution is a fact of life.\u00a0 A misdemeanor or felony conviction does not matter.\u00a0 You have to pay for the harm you caused.\u00a0 Think about it.\u00a0 If you are the victim, you would agree.\u00a0 The person who caused the grief should pay for it.\u00a0 It is simple justice.<\/p>\n
\u00a9 Copyright 2006.\u00a0 Andrew D\u00f3sa, Law Office of Andrew D\u00f3sa, 510-865-1600, adosa@dosalaw.com.<\/p>\n","protected":false},"excerpt":{"rendered":"
Restitution Is Payback\u2013What Goes Around, Comes Around.\u00a0 By Andrew D\u00f3sa, Law Office of Andrew D\u00f3sa, Alameda, Northern California. The law is clear.\u00a0 California has made it a Constitutional Right of a crime victim.\u00a0 Restitution is imposed when a defendant is convicted of a crime.\u00a0 It is good for a victim.\u00a0 It is supposed to be…<\/p>\n","protected":false},"author":24,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_kad_post_transparent":"","_kad_post_title":"","_kad_post_layout":"","_kad_post_sidebar_id":"","_kad_post_content_style":"","_kad_post_vertical_padding":"","_kad_post_feature":"","_kad_post_feature_position":"","_kad_post_header":false,"_kad_post_footer":false,"footnotes":""},"categories":[19],"tags":[612],"class_list":["post-4053","post","type-post","status-publish","format-standard","hentry","category-california-criminal-law-blog","tag-restitution"],"_links":{"self":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/4053","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/users\/24"}],"replies":[{"embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/comments?post=4053"}],"version-history":[{"count":1,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/4053\/revisions"}],"predecessor-version":[{"id":5335,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/4053\/revisions\/5335"}],"wp:attachment":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/media?parent=4053"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/categories?post=4053"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/tags?post=4053"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}