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A Victim's Guide to Restitution

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A Victim's Guide to Restitution A Victim’s Guide to Restitution VICTIMS’ LEGAL RESOURCE CENTER (VLRC) About Us The Victims of Crime Resource Center (VLRC) is located on the Pacific McGeorge School of Law campus in Sacramento, California. We educate victims and their families, victim service providers, and other victim advocates on: } Victims’ legal rights, } Victims’ Compensation, } Restitution, } Civil suits, and } Additional rights of domestic violence and abuse victims (including elders, children, and people with disabilities). We also offer: } Technical assistance and legal research to victim service providers, and } Free “Know Your Rights” presentations to community groups. We operate 1-800-VICTIMS – the statewide, toll-free hotline that gives confidential information and referrals to victims, their families, victim service providers, and victim advocates. The hotline is staffed by McGeorge law students and supervised by lawyers. Table of Contents Section Topics Page Number Section 1 A Victim’s Right to Restitution .................................... 1 Section 2 The Direct Restitution Order ...................................... 7 Section 3 Restitution Collection and Enforcement: Criminal Justice System ............................................ 11 Section 4 Restitution Collection and Enforcement: Civil Justice System .................................................. 17 Section 5 Frequently Asked Questions ....................................... 25 Section 6 Resources for Victims of Crime ................................... 29 Section 1 A VICTIM’S RIGHT TO RESTITUTION Victims’ Legal Resource Center l 1 2 l Victims’ Legal Resource Center Victims’ Rights Marsy’s Law In 2008, Marsy’s law, also known as the Victims’ Bill of Rights, was enacted. This law provides crime victims with 17 rights in the California Constitution, including the right for victims of crime to receive restitution. Restitution? } Restitution is a judgment from a court that requires a person convicted of a crime to reimburse the victim of that crime for certain crime related expenses. } Restitution is the act of making a good or giving equivalent for any loss, damage or injury. Who is Entitled to Restitution? } Immediate victim. } Immediate surviving family of a late victim. Restitution shall be ordered from the convicted wrongdoer in every case in which a crime victim suffered a loss. - Cal.Const. Art. I, § 28(b)(13) Victims’ Legal Resource Center l 3 Restitution has Two Components: The Restitution Fine & The Direct Restitution Order 1 - Restitution Fine } This is the offender’s debt to society. } In California, every offender convicted of a felony or misdemeanor is required to pay a restitution fine from $150 - $1,000 for misdemeanors or $300 - $10,000 for felonies. } Restitution fines go into the State’s Restitution Fund, which helps fund the California Victims Compensation Program – a resource for helping victims of a violent crime pay for certain crime related expenses. Issues the Judge Takes into Consideration when Determining the Restitution Fine Amount The court considers all relevant factors when setting the restitution fine amount, including: • Inability to pay • Seriousness of the offense • Circumstances of the commission of the crime • Economic gain by offender • Losses to others from the offense 4 l Victims’ Legal Resource Center Restitution has Two Components: The Restitution Fine & The Direct Restitution Order 2 - Direct Restitution Order } This is the offender’s debt to the victim when the victim suffers a direct monetary loss as a result of the crime. } The court bases its determination of the amount of direct restitution on the amount of loss claimed by the victim(s) or by any showing to the court. } Losses Covered by Restitution Order: • Property loss – stolen or damaged property • Medical/dental expenses • Mental health counseling expenses • Loss of wages/income • Funeral expenses • Relocation expenses • Home security expenses • Attorney’s fees • Home or vehicle modifications if the victim becomes permanent disabled • Interest on the Restitution Order • Possible future losses Note: • The offender’s inability to pay cannot be considered in determining the amount of direct restitution. • The District Attorney may not limit the amount of direct restitution as part of a plea bargain. Victims’ Legal Resource Center l 5 Items Considered by the Court when Determining the Direct Restitution Order: • Bills • Receipts • Repair estimates • Insurance payment stubs • Payroll stubs • Business records • Documents related to the value of stolen or damaged property • Medical expenses • Wages/profits lost 6 l Victims’ Legal Resource Center Section 2 THE DIRECT RESTITUTION ORDER Victims’ Legal Resource Center l 7 8 l Victims’ Legal Resource Center Restitution Order What is a Valid Restitution Order? } A valid and enforceable Restitution Order includes: • A set dollar amount • Who the restitution is payable to • Who must pay the restitution • When the restitution must be paid by What is the Victim’s Role in Determining Restitution? } Victims should be involved in the process by working with the District Attorney’s office to determine the amount. } Things a victim may be asked to do or include: • Fill out forms/questionnaires • Submit any crime related expenses/bills/receipts • Submit estimates of any future crime-related expenses Note: Although the victim’s role is critical, the judge makes the ultimate decision in determining the restitution amount. Victims’ Legal Resource Center l 9 What if Restitution is Not Ordered? } A sentence without a restitution order award to a victim is INVALID. If the restitution amount is left blank, please contact your local victim advocate or the Victims’ Legal Resource Center for additional information. } The restitution amount is set as “TBD” (To Be Determined): If the offender’s sentencing hearing occurs before the victim is able to submit all expenses and bills, the restitution may still be ordered with an amount listed as “To Be Determined”. Once all the expenses are ready to be submitted, the victim must contact the DA’s office or the county probation department and request a Restitution Hearing or a Restitution Modification Hearing. Note: • Restitution cannot be collected until a definite dollar amount is set. • There are no time limitations as to when the court can set the hearing to determine the restitution amount. • Victims should strive to ensure that a restitution amount is determined prior to sentencing, because it is costly to transport the incarcerated offender to court in order to attend the restitution hearing. Contact your local victim witness advocate for more information. 10 l Victims’ Legal Resource Center Section 3 RESTITUTION COLLECTION & ENFORCEMENT: CRIMINAL JUSTICE SYSTEM Victims’ Legal Resource Center l 11 12 l Victims’ Legal Resource Center Priority Order for Restitution Collection (Cal.Pen.Code § 1203.1d): Restitution that is collected on behalf of the victim will be distributed as follows: First: Victims take priority over any payments made by and any monies collected from the offender. Second: After the victims have been paid in full, any further payments or monies collected are transmitted to the State Treasury for the State surcharge. Third: After the victims have been paid, and the State surcharge is satisfied, all payments made and monies collected are then applied to the restitution fine, other fines, and penalty assessments ordered by the court. Fourth: Any other reimbursable costs, such as probation costs, or costs of representation by the public defender, are the last to receive distributions of payments made or monies collected by the offender. Victims’ Legal Resource Center l 13 Collection Restitution collection differs depending on whether the offender is incarcerated and where the offender is incarcerated. Note: If the offender is not sentenced to jail or prison, or is released on probation or parole, please see Section 4. 14 l Victims’ Legal Resource Center County Jail Prison County Jail California State Prisons } If the offender is If the offender is sentenced to a California sentenced to county state prison, the victim must contact the jail, the victim must California Department of Corrections and contact a local Rehabilitation (CDCR) and submit form county agency, such CDCR 1707 with their Office of Victim and as the probation Survivor Rights at 1-877-256-6877. department, collections http://www.cdcr.ca.gov department, or the courts. } The CDCR automatically collects } Collections efforts restitution from incarcerated offenders vary by county, and can send payments to the victim’s so victims should home. reach out to the local Victim/Witness } When an offender arrives at prison, an Assistance Center inmate trust account is established, to be directed to which acts as a bank account to accept the correct county deposits and allow withdrawals. agency. } If the offender has deposited money into his/her account, CDCR will take up to 50% to pay toward restitution. } When offenders have a restitution fine and a restitution order, the restitution order (to the victim) will be paid first. Funds from the inmates’ account may come from family, friends, or jobs within the prison ($0.38 - $1.00 per hour). Victims’ Legal Resource Center l 15 If the Offender is Released from State Prison } If the offender is released from state prison and restitution has not been paid in full. CDCR refers the direct restitution order to the Franchise Tax Board (FTB) for collection. } The FTB is authorized to use several collection
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