Restitution
Category > Restitution
Updated 7/12/2024The trial court erred by ordering restitution after the defendant had completed her two-year period of diversion.The trial court dismissed criminal charges after defendant successfully completed mental health diversion, but required that she pay $17,000 in restitution to the California Victim’s Compensation Board. However, because the trial court ordered the restitution after the end of the statutory maximum two-year period of diversion, and because Penal Code section 1001.36(f)(1)(D) only permitted the court to order restitution “during the period of diversion,” the order was improper and was reversed.id: 28304
Updated 7/12/2024Following the defendant’s conviction for leaving the scene of an accident, the court lacked authority to modify the restitution order after the termination of probation.The restitution order was for losses due to the collision rather than defendant’s act of leaving the scene. Thus, the trial court was not authorized to impose the restitution under Penal Code section 1202.4, and so section 1202.46 could not be used to extend jurisdiction to modify restitution after the termination of probation. Instead, the restitution order was imposed under section 1203.1, and was subject to the limitations in section 1203.3 permitting modification only during the term of probation.id: 28301
Updated 3/7/2024The sentencing court lacked authority to order restitution to reimburse the county for the cost of defendant’s extradition from Virginia after she failed to appear for sentencing. Defendant pled no contest to one count of human trafficking, but later failed to appear for sentencing. She was later found to be in Virginia and was extradited back to Santa Clara County. The trial court lacked the authority to order as part of her prison sentence victim restitution to reimburse the county for the cost of her extradition. The county was not a direct victim of her crime for purposes of Penal Code section 1202.4.id: 26425
Updated 3/4/2024The trial court erred in awarding noneconomic restitution where there was no evidence of the impact of defendant’s crimes on John Doe.Defendant was convicted of committing lewd acts upon John Doe, a child under 14. The trial court abused its discretion in awarding noneconomic damages to John Doe because the prosecution presented no evidence of the impact of defendant’s crimes on him.id: 28126
Updated 2/4/2024The civil settlement and release of liability did not discharge defendant’s obligation to pay restitution in the criminal case.Defendant was convicted of drunk driving causing injury. The trial court later erred when it found the civil settlement and release of liability signed by the victim in the civil case discharged defendant’s obligation to pay restitution in the criminal case.id: 27573
Updated 1/31/2024The restitution award was excessive where defendant was ordered to pay the full purchase price of the undamaged stolen cell phone that he returned to the victim.Defendant provided the victim with the undamaged stolen cell phone at the sentencing hearing. The victim had intended to return it to the store for a full refund but it was too late by the time of sentencing. The trial court abused its discretion by ordering defendant to pay the full purchase price of the phone as victim restitution since the phone still had value. The proper award would be the difference in value between the day the victim purchased the phone and the day defendant gave it back to her.id: 28046
Updated 1/31/2024After granting defendant relief under section 1172.6, the court should have applied his excess custody credits to satisfy his restitution and parole revocation fees.The trial court granted defendant’s request for relief under Penal Code section 1172.6. The court thereafter resentenced defendant to three years on the target offense of aggravated assault. Defendant’s excess custody credits should be applied in satisfaction of his restitution and parole revocation fees under the version of Penal Code section 2900.5, effective at the time of the crime. However, the excess credits need not also offset nonpunitive assessments and parole.id: 28067
Unpaid restitution debts do not foreclose a finding of satisfactory completion of probation.The juvenile court erred by finding that defendant’s probation terminated “unsuccessfully” because he failed to pay restitution ordered as a condition of probation. Unpaid restitution debts do not foreclose a finding of satisfactory completion of probation.id: 24905
The trial court erred by ordering $400 in restitution to the Victim Compensation Board without evidence to support it.Defense counsel argued at sentencing that the evidence did not support the $400 direct restitution award to the California Victim Compensation Board’s restitution fund for money the fund had already paid to the victim. It was error to impose that sum after expressly reserving determination of the specific amount, and the matter was remanded for a new hearing.id: 26219
Defendant’s restitution fine had to be reduced by the amount paid in direct victim restitution. At the time defendant committed his crimes, Government Code section 13967(c) provided that a restitution fine be reduced by the amount of direct restitution paid to the victim. Defendant was ordered to pay the maximum restitution fine of $10,000 along with direct restitution of $4,000. The restitution fine was therefore reduced to $6,000.id: 25695
Because the defendant was not convicted of a “violent felony” as defined in section 667.5, subd. (c), the court erred in awarding victim restitution for residential security expenses.Defendant pled no contest to domestic violence under Penal Code section 273.5, subd.(a), and as part of his sentence was ordered to pay restitution that included $14,055 for security windows and an alarm system. However, because he wasn’t convicted of a “violent felony” as defined in section 667.5, subd.(c), the court erred in awarding victim restitution for residential security expenses. id: 25158
The trial court erred by imposing a $10,000 restitution fine on the capital defendant without considering his ability to pay.The trial court erred by imposing a $10,000 fine as part of defendant’s capital sentence because it failed to consider his ability to pay. The matter was remanded for reconsideration under Penal Code section 1202.4, the currently applicable statute.id: 25425
Victim restitution for injuries caused by an accident was improper where defendant was only convicted of fleeing the scene. Defendant was convicted of leaving the scene of an accident. The trial court sentenced him to prison and ordered victim restitution under Penal Code section 1202.4 in the amount of $425,654 for injuries suffered as a result of the accident. However, defendant was only convicted of leaving the scene, rather than being involved (or causing) the accident. Under section 1202.4, the court was authorized to order restitution for injuries caused by defendant’s flight, but not from the accident itself. The case was remanded for a proper calculation of victim restitution.id: 25257
The trial court erred in awarding restitution for both the fair market value and cost of repair of the damaged truck.Defendant rammed the victim’s truck during a robbery. The trial court abused its discretion in making the restitution award because it awarded the victim both the decrease in fair market value of the truck resulting from the damage caused by the ramming, and the cost to repair the truck. The court could not apply both methods because it resulted in a windfall to the victim. Moreover, the court improperly calculated restitution by awarding the victim the salvage value of the truck he retained. id: 25203
The trial court failed to match the defendants with the robberies for which they were charged when ordering restitution.Four defendants were convicted of multiple robberies. The trial court erred by ordering restitution by defendants as to counts for which they were not charged.id: 25072
The trial court erred by ordering a mandatory supervision revocation restitution fine where the court didn’t impose mandatory supervision. Defendant was convicted of resisting arrest and misdemeanor false imprisonment. He was sentenced to two years in county jail under the Realignment Act. The trial court never suspended any portion of the term and did not impose any period of mandatory supervision. The trial court therefore erred by imposing a mandatory supervision revocation restitution fine under Penal Code section 1202.45, subd.(b).id: 24481
The trial court erred by awarding restitution for noneconomic losses for section 288.5 victims.The trial court erred by imposing restitution for noneconomic losses incurred by the victims of continuous sexual abuse of a child under Penal Code section 288.5, because that provision was not listed in section 1202.4, subd.(f)(3)(F), which allows for such restitution following violations of section 288.id: 24479
The $50,000 restitution awards for noneconomic losses for the section 288 victims lacked any basis in the record.The trial court erred in awarding restitution for noneconomic losses for the Penal Code section 288 victims, as there was no basis for the $50,000 awards and the court failed to explain how it arrived at that amount.id: 24480
The trial court lacked jurisdiction to order restitution once defendant had successfully completed her probation.Defendant moved to have her 2008 conviction reduced to a misdemeanor under Penal Code section 1203.4. The court indicated it would not grant relief until defendant paid restitution in full. However, the trial court acted in excess of its jurisdiction by imposing victim restitution after the expiration of defendant’s probation.id: 24364
The trial court erred by indefinitely extending the revocation of probation in order to collect victim restitution.Shortly before defendant’s probation was set to expire the trial court revoked it based partly on nonpayment of victim restitution. However, the court erred by then suspending imposition of probation. The court’s choices were to sentence defendant to prison or reinstate probation. It wasn’t authorized to postpone its disposition. Defendant was not estopped from challenging the court’s formalized practice of indefinitely extending revocation to collect restitution.id: 23808
Trial counsel rendered ineffective assistance by failing to object to the increased restitution fine that did not apply to defendant’s earlier crimes.The trial court erred by imposing the $280 restitution fine because the $200 figure increased to $280 in 2013, after defendant had committed the present crimes. Trial counsel’s error constituted the ineffective assistance of counsel since there could be no valid tactical reason for failing to object to the court’s mistaken use of the minimum statutory fine that was in effect at the time of sentencing. id: 23624
The trial court cannot reopen restitution proceedings once the defendant’s probationary term has expired.A trial court does not have jurisdiction to modify a defendant’s probation to impose restitution after the defendant’s probationary term has expired.id: 23503
Parole revocation restitution fine could not be added to the sentence of a defendant sentenced under the Realignment Act.The trial court erred by imposing a parole revocation restitution fine under Penal Code section 1202.45 on a defendant sentenced under California’s Realignment Act, because that sentence does not include a period of parole. The recent amendment to section 1202.45 extending the fine to postrelease community supervision could not be applied without violating ex post facto prohibitions.id: 23505
The trial court erred by ordering restitution for the accident victim’s medical care where there had been no determination that defendant caused the accident.Defendant plead guilty to leaving the scene of an accident. After a contested restitution hearing, the court ordered that he pay $425,600 in victim restitution. However, because he was not convicted of any offense involving responsibility for the actual accident and no factual determination of his responsibility for the collision or the victim’s injuries had been made, the court erred in ordering restitution to the victim for injuries he received as a result of the accident. id: 23622
The juvenile court erred in calculating restitution to the city for graffiti abatement under a special statute because the city had failed to pass an ordinance that the law required. The minor challenged an order that he pay $3,800 to the City of Lancaster in restitution following several acts of felony vandalism based on graffiti. The award was based on legislation (Welfare and Institutions Code section 742.14 and 742.16) that permits reliance on the city’s average costs to investigate and remediate graffiti. The statutes require periodic review and adoption of a local ordinance. But the city here had not passed an ordinance or reviewed its cost model. So the expanded cost model did not support the award. The court still had general restitution authority under section 730.6 but that provision only allows restitution for the loss caused by the minor’s conduct and not the investigative costs. The order was vacated. id: 23626
Juvenile restitution order based only on victim’s statements to the probation officer was not supported by substantial evidence.The juvenile court’s $850 restitution order was not supported by the evidence where the victim simply told the minor’s probation officer that she paid $800 to replace a single tire and lost $50 in wages. The court had earlier indicated that the victim was not reliable and the restitution order here was based on nothing more than speculation. id: 23425
The trial court erred by ordering restitution to the insurance company where defendant was convicted of murder for financial gain but not insurance fraud. Defendant was convicted of conspiracy to commit murder and the special circumstance murder of her husband. She was not charged with insurance fraud even though the evidence showed she might have committed that crime. Therefore, the trial court abused its discretion by ordering restitution in favor of the Allstate Insurance Company.id: 23435
The trial court erred by imposing a second restitution fine when it revoked probation.The Penal Code section 1202.4 restitution fine may only be imposed once, at the time the court pronounces judgment, and the court may not increase the fine when revoking probation.id: 23441
The minor successfully completed the terms of probation for purposes of his plea bargain even though he had not fully paid the victim restitution. The minor pled guilty to felony burglary and the prosecutor agreed the offense would later be reduced to a misdemeanor if the minor successfully completed his probation. The prosecutor later objected to the defense effort to have the offense reduced because the minor had not paid the full amount of victim restitution. Absent evidence of a willful failure to pay the minor “successfully completed probation” as a matter of law. The matter was remanded to the trial court to enforce the terms of the plea bargain.id: 23193
The trial court properly dismissed the unpaid balance of defendant’s restitution fine after he successfully completed a drug court program and the court granted relief under section 1203.4.Defendant successfully completed his probation through a drug court program. The trial court then dismissed all charges pursuant to Penal Code section 1203.4. The court thereafter properly suspended or dismissed the unpaid balance of defendant’s restitution fine.id: 23296
The trial court properly dismissed the unpaid balance of defendant’s restitution fines after she completed her drug court program and the court terminated probation early.Defendant had several different cases and charges, for which she was on probation through a drug court program. She completed the program and the trial court terminated probation early. The court then dismissed all of the pending cases. The trial court’s order suspending or dismissing the unpaid balance of defendant’s restitution fines was proper.id: 23138
The trial court abused its discretion in failing to account for the time value of money when awarding restitution, and trial counsel rendered ineffective assistance in failing to raise the issue.Defendant was convicted of drunk driving causing injury. When calculating restitution, the court computed the victim’s $246.50 in pension benefits and multiplied that by a calculated likely lifespan resulting in a payment of $70,000. However, the court abused its discretion in failing to account for the time value of the money. The possession of the money up front is worth something. And trial counsel rendered ineffective assistance by failing to raise the issue of the time value of the money. The matter was remanded for a new hearing although defendant was not entitled to a jury trial on the issue.id: 23065
Family members are not victims for purposes of the juvenile restitution provision.The minor was found to have committed a lewd act on a child. The juvenile court erred by ordering restitution to the victim’s family members because the family members are not victims of the offense for purposes of the juvenile restitution statute - Welfare and Institutions Code section 730.6.id: 22910
After the victim dies he/she does not incur personal economic loss subject to mandatory restitution. Defendant, driving while intoxicated killed the victim. He was ordered to pay restitution to the decedent’s estate. However, for purposes of the mandatory restitution provisions, the estate is not a direct victim of a crime that caused decedent’s death. Thus, mandatory restitution is not payable to the estate for economic loss the estate has sustained as a result of the death. The decedent’s personal representative is entitled to collect restitution on the decedent’s behalf from economic loss the decedent incurred before death as an actual victim of defendant’s criminal conduct. But after the victim dies he/she does not incur personal economic loss subject to mandatory restitution. This post-death reduced value of the decedent’s property and the expenses of administering the estate are not recoverable by the representative on the decedent’s behalf as losses the decedent personally incurred because of defendant’s crime. id: 22791
Where defendant was convicted of both murder and gross vehicular manslaughter while intoxicated for the same act, the restitution fine for the latter should have been stayed under section 654.Defendant was convicted of murder and gross vehicular manslaughter while intoxicated. The trial court essentially imposed a $3,000 restitution fine for each offense. However, the sentence for count two was stayed under Penal Code section 654. The fine for that count should have been stayed as well.id: 22474
Because the first restitution survived the revocation of probation, the second restitution fine was unauthorized. The trial court erred by imposing a $200 restitution fine at the probation revocation because the restitution fine imposed when probation was granted survives the revocation of probation.id: 22304
Imposition of the section 1202.45 parole revocation fine was improper for the defendants sentenced to life without possibility of parole.The trial court erred by imposing the parole revocation fine under Penal Code section 1202.45 because defendant was sentenced to an indeterminate term of life without parole. id: 22344
Potential sales of seized recordings could not be used in calculating restitution. Defendants were found with thousands of pirated movie DVDs and music CDs. They pled guilty to failing to disclose the origin of a recording (Penal Code section 653w) and counterfeiting a registered trademark (section 350(a)(1)). The later restitution award was erroneous because it required them to pay restitution based on their inventory and potential sales and potential sales cannot be used as a basis of restitution.id: 22147
Section 1202.4 fines may be imposed only once at the time of conviction.In prior proceedings, the court granted probation and imposed $200 restitution fines. After probation was revoked, the court again imposed the fines. However, Penal Code section 1202.4 fines may be imposed only once.id: 22186
The trade association in the music industry could not obtain restitution for piracy from criminal defendants. The Recording Industry Association of America, a trade association whose members are part of the music industry was not a direct victim and could not obtain restitution from defendants convicted of piracy for selling counterfeit compact discs.id: 21822
The trial court had the authority to make a new, lower restitution order on resentencing. A trial court, upon appellate remand for resentencing, has the legal authority to make a new restitution fine order, even if the original restitution order was never addressed in the appeal that led to the remand in the first place.id: 21957
The trial court erred by failing to include in the restitution order, the amount Kaiser Hospital accepted as payment for the medical treatment.The trial court erred by failing to include any amount to cover the cost of medical services that the assault victim received at Kaiser Hospital. Even though the victim was not obligated to pay any amount above her membership fees in the health plan for the services she received, charges were incurred on her behalf as a result of defendant’s criminal conduct. However, restitution was not required for the amount billed by Kaiser, but rather, for the amount accepted as full payment.id: 21341
The repair costs GEICO would have been obligated to pay if defendant had not presented a materially false statement are not losses for restitution purposes because they were not attributable to defendant’s criminal misrepresentations.Defendant’s insurance company, GEICO, paid the repair costs from an accident involving defendant, but later discovered defendant had lied about the circumstances of the accident. When defendant lied he violated the terms of the insurance policy and provided GEICO with grounds to rescind the contract. The trial court erred by ordering defendant to pay restitution to GEICO for the costs of repairing the damaged cars because his fraud did not actually cause GEICO to pay the repair costs. GEICO may seek to rescind the insurance policy in a civil action.id: 21707
The trial court abused its discretion in calculating the amount of restitution award to Target as some of the goods were damaged before the theft, it should have been calculated at wholesale value, and much of it was recovered by Target.Defendants were convicted of stealing from Target. The trial court awarded Target $278,678 in restitution but erred in calculating that amount. First the court erred in awarding over $234,000 for the stolen merchandise since it calculated the amount based on the last retail price of the goods rather than the replacement cost of like property - some of which was damaged. Moreover, the court should have used the wholesale rather than retail price of the goods. And Target wrongfully received a windfall by having defendants pay for the stolen goods then allowing the store to retain the goods.id: 21517
The case was remanded to allow the trial court to clearly identify the calculation method used to reach the restitution figure and to consider whether defendant was the proximate cause of additional damage to the victim’s car at the courthouse. Defendant pled guilty to drunk driving in a case that also involved a hit and run accident. The trial court ordered defendant to pay victim restitution in the sum of $4,468, but in doing so, failed to make a clear statement of the calculation method it used to reach that figure. This failure amounted to an abuse of discretion and the matter was remanded for further proceedings regarding restitution. On remand, the trial court may also address the issue of proximate cause in awarding restitution for the cost of repairing the victim’s car which was damaged when she came to court for a hearing. No published case to date has applied the principles of proximate causation to victim restitution. id: 21755
The trial court may use comparative negligence when awarding victim restitution.A trial court may apply the doctrine of
comparative negligence in awarding victim restitution against a criminally negligent defendant when the court finds the victim’s contributory negligence was a substantial factor in causing his or her injuries.id: 21040
Ex post facto principles prohibit imposing a parole revocation fine on a parolee who committed the underlying offense before the fine was enacted.The constitutional ban on ex post facto laws prohibits imposing a parole revocation fine on a parolee who committed the underlying offense before the fine was enacted.id: 14830
Defendant whose crime was committed before the increase in the minimum restitution fine was entitled to the lower fine as well as the ameliorative change of the ability to pay language.At the time defendant was sentenced Government Code section 13967, subdivision (a) provided for a minimum restitution fine of $200 subject to a defendant's ability to pay. However, at the time the offenses were committed the minimum fine was $100 but there was no ability to pay language in the statute. A restitution fine qualifies as punishment for ex post facto purposes. Defendant was entitled to the benefit of the lower fine and the ability to pay language.id: 9544
The hospital that treated elder abuse victim’s injury was not a direct victim for purposes of section 1202.4. Dependent pled no contest to one count of inflicting injury upon an adult elder, her dependent mother. The trial court sentenced her to state prison and ordered her to pay restitution to the hospital which treated her for the injury. However, the restitution order was stricken because the hospital is not a direct victim of the offense as required by Penal Code section 1202.4, subd.(k)(2). id: 20650
Direct restitution order properly listed the amount accepted by the medical providers from the victim’s insurance company as full payment rather than the amount billed.As a condition of his probation, defendant was ordered to pay restitution to the victim in the amount of $36,900 for her medical expenses. The prosecution argued the amount should have been $138,667 which was the total billed by her medical providers. However, neither the victim nor her medical providers incurred economic loss beyond the amount identified in the restitution order, which was the amount the medical providers accepted from the victim’s insurer as full payment for their services plus the deductible paid by the victim. id: 20647
The imposition of separate restitution fines under Penal Code section 1202.4 totaling more than $10,000 was unauthorized.Defendant pled guilty to numerous charges alleged in three separate complaints. The court erred in imposing three separate restitution fines totaling $10,600. The separate fines were unauthorized and a single $10,000 fine was imposed. Contrary to the AG’s claim, the separate fines were not a term of the plea bargain. Moreover, defendant’s waiver of the right to appeal the sentence did not apply to the restitution fines which were imposed after the plea and waiver. id: 20418
The trial court erred in adding a 10 percent administrative fee to the amount ordered to be paid to the State Restitution Fund. Following defendant’s aggravated assault conviction, the trial court ordered that he make restitution to the State Restitution Fund in the amount of $1,005, plus a 10 percent administrative fee pursuant to Penal Code section 1203.1, subd.(b). However, the administrative fee applies when restitution is paid to the victim, not the restitution fund.id: 20336
The juvenile court erred when it imposed a victim restitution order in excess of the amount paid by Medi-Cal.Victim restitution for medical expenses under Welfare and Institutions Code section 730.6 is not based on the amount charged by the provider, but rather on the amount paid by Medi-Cal when the provider is precluded from seeking the unpaid balance from the victim.id: 19932
Only attorney fees incurred from economic damages in civil suit are recoverable as restitution.Minor admitted a hit-and-run charge in juvenile court. The juvenile court, as part of the disposition, ordered him to pay attorney fees incurred by the victim in his efforts to
receive a civil settlement. However, not all legal fees and costs were recoverable as restitution. The portion attributable to the victim's pain and suffering do not support restitution. The matter was remanded to recalculate the amount of the settlement that was due to medical expenses, property damage and lost income - and the attorney fees relating to those matters. id: 19547
A mother can appeal an order assessing restitution against her for damages caused by the fire her son set.A mother who was assessed liability of $25,000 pursuant to a
Welfare and Institution Code section 730.7 restitution order, based on an arson committed by her son, has a right to appeal the order.id: 19471
The trial court erred by including statutory penalties in the victim restitution order.A penalty assessment imposed under Penal Code section 1202.4, subd.(a)(2) or a penalty imposed under Revenue and Taxation Code section 6591 may not be included in victim restitution ordered under section 1202.4, subd. (f). id: 19382
Section 186.11, awarding seized assets to victims for restitution did not apply where the prosecution did not respond or appear and therefore, the trial court should have awarded defendant's seized assets to trial counsel who had a valid though unperfected security interest for unpaid fees.Penal Code section 186.11 defines an aggravated white collar crime enhancement. It allows the court, before trial, to enjoin the defendant from disposing of assets, and after trial, to levy on those assets to pay victim restitution. In the present case, defendant had given his trial counsel a security interest in the seized assets for unpaid attorney fees. Section 186.11 did not apply since the prosecution never filed a motion for a preliminary injunction in that case. Thus, the attorney who had a valid though unperfected security interest had priority over the victims who were mere unsecured creditors. The court did not address the issue of who would have priority if section 186.11 did apply.id: 18293
Maximum restitution fine under section 13967 is $10,000 regardless of the number of victims or counts involved.The trial court erred in imposing a restitution fine pursuant to Government Code section 13967 subdivision (a) in the amount of $35,000 since the maximum fine that may be imposed under that provision is $10,000 regardless of the number of victims or counts involved. However, the court did not err in directing the fine to be collected by the Director of Corrections.id: 13468
Napa Special Investigation Bureau was not a victim for restitution purposes.Defendant was convicted of selling heroin. Pursuant to Government Code section 13967 subdivision (c), the court imposed a restitution fine of $1,000 with an order that $450 of the fine be paid to Napa Special Investigations Bureau. The order was improper under subdivision (c) because the Napa Special Investigations Bureau is not a compensable victim under that section. The full amount of the fine should be paid to the Restitution Fund of the State Treasury under section 13967 subdivision (a).id: 13469
Restitution order was ambiguous where it did not specify the amount of the fine and did not identify the losses to which the fine pertained.The trial court stated the restitution fine was not to exceed $10,000 but did not specify the exact amount of the fine or identify the victim's losses. The order was wholly ambiguous and violated the requirements of Government Code Section 1396(c).id: 13481
Maximum restitution fine is $10,000 regardless of the number of victims or counts involved.The maximum fine which may be imposed under Government Code Section 13967(c) is $10,000 regardless of the number of victims involved or counts charged. The trial court therefore erred in imposing a $10,000 fine for each victim and/or each count.id: 13467
Under section 13967 an insurance company cannot be awarded restitution and the total award cannot exceed $10,000 despite multiple victims.Under Government Code section 1397, an insurance company cannot be awarded restitution and the total award cannot exceed $10,000 despite claims by multiple victims. Moreover, restitution orders under subdivision (c) for economic losses should be supported by reference to a factual basis for the claim. However, because defendant chose not to contest the matter at sentencing, he waived any right to challenge the order for lack of specificity.id: 13504
Section 1203.1(g) does not authorize restitution to indirect victims such as Medi-Cal or the Victim's Assistance Fund.The court ordered appellant to pay restitution pursuant to Penal Code section 1203.1(g) for the victims' psychological treatment incurred as a result of the appellant's molestation of them. The condition was invalid to the extent it required him to make payments to Medi-Cal or the Victim's Assistance Fund to reimburse them for the costs of the victims' therapy. The Legislature intended to include only the direct, actual victims of an assault within the restitution condition authorized by section 1203.1(g).id: 13485
Order of restitution to the Sheriff's Department was improper without a showing of costs incurred or ability to pay.The court improperly ordered appellant to pay restitution to the Sheriff's Department for the child molest victims' treatment and/or examination at Children's Hospital pursuant to Penal Code section 1203.1(h). There was no evidence presented as to what, if any, costs the Sheriff's Department incurred in obtaining an examination or treatment of the victims nor did the court set an amount to be reimbursed or determine if appellant had the ability to pay the costs.id: 13472
Where the restitution fine significantly exceeds the terms of the negotiated plea and the 1192.5 admonition is not given the error was not impliedly waived and the court must reduce the fine to $100.00 or allow withdrawal of the plea.The trial court only advised the defendant that a $10,000.00 fine was a possible consequence of the guilty plea. The court should have advised defendant that there was a possible $10,000.00 penalty fine <U>and</U> a mandatory restitution fine of between $100.00 and $10,000.00. This error, standing alone would not entitle defendant to a remedy because he did not object to the fine when imposed. Moreover, he did not show prejudice since the court imposed a $5,000.00 restitution fine which was less than that advised. However, the $5,000.00 restitution fine was a significant deviation from the negotiated terms of the plea bargain. Since the court did not give the Penal Code section 1192.5 admonition, and this was not merely a failure to advise of the consequences of the plea, defendant cannot be deemed to have waived his rights by silent acquiescence. Defendant was entitled to a remedy and the fine was reduced to the minimum of $100.00.id: 13508
Payment of restitution from prison wages was improperly ordered following restitution order pursuant to section 13967, subdivision (c).After defendant was convicted of burglary, he was ordered to pay restitution to the victims pursuant to Government Code section 13967, subdivision (c). The court also ordered that these sums be taken from defendant's prison wages pursuant to Penal Code section 2085.5. The order was improper because use of section 2085.5 pertains only to section 13967, subdivision (a) and not 13967, subdivision (c).id: 13474
Restitution was an invalid condition of probation where the victim did not suffer or failed to claim any compensable loss.Where the crime results in a victim but that victim does not suffer or fails to claim any compensable loss, an order of restitution to either the victim or the Restitution Fund is improper and no condition of probation providing for restitution may be made under the express language of Penal Code section 1203.04. However, this did not relieve appellant of his restitution fine imposed under section 1202.4, subdivision (b).id: 13484
The husband and children of murder victim's sister were not victims under section 13960 and were properly denied restitution.Pursuant to Government Code section 13960, subdivision (a)(4) the murder victim's sister was compensated from the Crime Victim's Restitution Fund as a victim that is, a family member who has incurred emotional injury as a result of the crime. Her two children and common-law husband then sought compensation under section 13960, subdivision(a)(3) claiming they were persons whose presence during treatment of the victim was medically required for the successful treatment of the victim. However, the provision refers to people attending the treatment of a direct victim as opposed to a derivative victim such as the sister of the murder victim.id: 13496
The city that paid workers' compensation benefits to the injured police officer was not a victim for restitution purposes.Defendant was convicted of several offenses including assault with a firearm on a peace officer. His sentence included a restitution payment of $13,183 to the City of Woodlake. This sum represented the amount of workers' compensation benefits paid by the City of Woodlake to the officer defendant shot and injured. However, the restitution was improperly ordered as the city is not a victim within the meaning of Government Code section 13967, subdivision (c).id: 13490
Compensation for the victims' time spent on the accounting cannot be the subject of a restitution order.Defendant pled guilty to embezzlement from her employer, a preschool. The trial court put defendant on probation and ordered her to pay the victims $11,112. for their time (at $50 per hour) spent putting the case together for the Sheriff's Department. However, compensation for the victims' time spent on the accounting in determining their losses cannot be the subject of a restitution order. Penal Code section 1203.04, subdivision (d) clearly limits restitution to wages or profits lost. The record contained no evidence that either victim suffered the loss of wages or ascertainable profits.id: 13431
The hospital that treated the victim is not a victim for restitution purposes.The trial court erred in ordering defendant to pay restitution to the hospital that treated the victim. The hospital is not the victim of defendant's crime (pursuant to Government Code section 13967) for purposes of restitution.id: 13495
When denying probation court cannot require defendant to pay restitution to a victim's insurance company.When denying probation, a sentencing court may not require the defendant to pay restitution to a victim's insurance company as an indirect victim of the offense, for an amount the insurer paid the victim for personal property loss.id: 13507
Court erred in ordering defendant convicted of arson to pay direct restitution to fire department.Appellant was convicted of arson. The trial court erred in ordering him to pay direct restitution, under Government Code section 13967, subdivision (c), to the Tulare County Fire Department because there was no showing that the agency suffered direct economic loss as a result of appellant's criminal conduct.id: 13436
Department of Health Services was not entitled to restitution as a victim within the meaning of Penal Code section 1203.04.When granting probation, a sentencing court may not require the defendant to pay restitution to the Department of Health Services, as an indirect victim of the offense, for Medi-Cal payments made on behalf of an injured victim.id: 13451
Evidence did not support the court's implied finding that defendant was able to pay the $5,000 restitution fine where his sole income was from prison wages.Before imposing a restitution fine under Government Code section 13967, subdivision (a), the trial court must consider and make a finding on the defendant's ability to pay although the finding may be implied rather than express. Defendant's failure to object to the ability-to-pay issue constituted a waiver for purposes of appeal. However, failure to object did not constitute a waiver of the issue that the court exceeded its power in imposing a $5,000 fine that was unsupported by evidence of an ability to pay. The instant record was insufficient to support the implied finding of ability to pay where his only current income was derived from prison wages and there was no indication that he had additional revenue sources and/or that upon release from prison he would be gainfully employed at an income level that would enable him to pay the fine.id: 13454
The trial court erred by ordering restitution to the victim in an amount greater than the value of the stolen property.Defendant pled guilty to receiving stolen property, an automobile, to which he made several modifications. As a condition of probation the court ordered restitution in the amount of $7,300 to restore the car to its original condition despite the undisputed evidence that the value of the car prior to the theft was no more than $4,100. The award of the cost of repair which exceeded the pre-theft value of the property was improper.id: 13497
Restitution order that did not state a specific amount was unenforceable.The trial court did not enter an enforceable restitution order because it failed to order a specific amount. However, the order was not void as it effectively reserved jurisdiction to determine the amount of restitution at a subsequent time when the victim's losses could be readily ascertained.id: 13480
Court may not order restitution to an insurance company whose only injury resulted from payments to the victim under an insurance contractA trial court may not order restitution to a third party insurer whose only injury resulted from payments to the victim under a contract of insurance. An insurer who has incurred expenses solely by virtue of a contractual duty to indemnify the direct victim is not itself an object of the crime and hence not a direct victim.id: 13441
The juvenile court erred in imposing two restitution fines of $100 each where the fines exceeded the $1,000 maximum and the two dispositions were part of one proceeding.The maximum allowable restitution fine under Welfare and Institutions Code section 730.6, subdivision (b) is $1,000. Since the victim's restitution orders in the instant case totaled $1,000, the additional two restitution fines equaling $200 exceeded the statutory maximum. The fact that the two dispositions arose out of separate proceedings did not alter the result since the intervening hearing on the probation violation converted the two dispositions into a single proceeding.id: 13493
Restitution order improperly included payment by the defendant of the victim's legal expense in resisting discovery.Defendant was convicted of embezzlement and was ordered to make victim restitution in the amount of $616,000. The portion of the restitution attributable to fees incurred in successfully preventing disposal of assets by defendant was properly included in the restitution amount because it was an economic loss incurred as a result of defendant's criminal conduct. However, the portion of the restitution order that provides for payment by the defendant of the victim's legal expenses in resisting discovery was set aside because it did not result from defendant's criminal conduct under Penal Code section 1202.4, subdivision (g), but rather from defendant's defense of the criminal charges.id: 13478
Law enforcement agency which funded a drug buy is not a direct victim of a crime entitled to restitution under Penal Code section 1202.4.A law enforcement entity which spends money to purchase illegal drugs does not thereby become a direct victim of a crime entitling it to receive direct restitution reimbursing it for the cash it spent on the drugs.id: 16133
Insurers are not direct victims for restitution purposes.The 1994 law governing mandatory restitution as a condition of adult probation did not give insurers a right to restitution insofar as they had reimbursed their insureds for crime-related losses. Moreover, the trial courts also lack discretion to allocate mandatory probationary restitution awards between insurers and insureds to reflect such reimbursements.id: 16132
Penalty assessments may not be added to direct victim restitution award.Penalty assessments mandated by Penal Code section 1464, subdivision (a) and Government Code section 76000, subdivision (a) may not be imposed on a direct victim restitution award.id: 16134
Section 1202.45 restitution fine does not apply to LWOP sentence.Following murder convictions with a special circumstance finding, defendant received a sentence of life in prison without the possibility of parole. The Attorney General argued the trial court had a duty to impose a restitution fine under Penal Code section 1202.45, which is to be suspended until parole is revoked. However, section 1202.45 does not apply to an accused who receives a sentence of life in prison without possibility of parole.id: 16136
A Penal Code section 1202.45 restitution fine is inappropriate when a defendant is placed on probation.Defendant was convicted of felony petty theft. The state prison sentence was suspended and defendant was granted probation. The trial court erred in imposing the restitution fine under Penal Code section 1202.45 which addresses the revocation of parole. Such a fine is inappropriate where a defendant is not subject to a sentence which carries a period of parole.id: 16126
The trial court erred in awarding the victim of a theft of a cement mixer 13 months of rent.Defendant pled guilty to theft of a cement mixer from a rental company. The trial court, in awarding restitution, gave the victim his choice of accepting the replacement cost of the mixer - $2,098, or the loss of use in the sum of $3,800. The victim opted for the larger amount. The award was improper as there was no evidence presented to the trial court from which a rational determination as to either type of loss could have been made. Among other problems the award was based on the speculative proposition that the mixer would have been rented out every week for 13 months. A correct award should have been predicated on the replacement cost of "like" property.id: 16140
Trial court erred in imposing a penalty assessment in a section 1202.4 restitution fine.The trial court erred in imposing a $5,000 penalty assessment on the Penal Code section 1202.4, subd. (b)(1) and 1202.45 restitution fines. Based on the explicit language of section 1202.4, subd. (e), restitution fines are not subject to penalty assessments.id: 16146
The trial court erred in imposing separate restitution fines in a case involving separate informations but joint trials.The phrase "every case" in Penal Code sections 1202.4, subd.(b) and 1202.45, includes a jointly tried case although it involves charges in separately filed informations. The cases were joined for purposes of trial. Therefore, the charges in the separate informations were effectively joined despite any technical retention of separate case numbers. The court erred by imposing restitution fines in "both" cases.id: 16141
Trial court erred in imposing a $15,000 restitution fine.Defendant was convicted of multiple sex offenses against two young victims. The trial court erred in imposing a $15,000 restitution fine since the maximum allowed under Penal Code section 1202.4 is $10,000. While section 288, subd.(e) provides for an additional fine of up to $10,000 to be deposited in the Victim-Witness Assistance Fund, the court failed to mention that section in its ruling. The judgment was modified to show the reduced fine to $10,000.id: 16575
An assessment under section 1202.4, subd.(a)(2) can only be imposed if there is an underlying fine.A fine "in the form of a penalty assessment" under Penal Code section 1202.4, subd.(a)(2), requires an underlying fine upon which the penalty can be assessed. The judgment was modified to strike the assessment where there was no underlying fine.id: 15049
Restitution fine was reduced to the lower number where there was a discrepancy between the oral pronouncement of the fine and the abstract.The court erred in imposing a $3,400 parole revocation restitution fine. The court's oral pronouncement was a $3,000 fine but the abstract reflects a $3,400 fine. Defendant did not waive the issue since the clerk's error was committed outside his presence. The fine was reduced to $3,000.id: 16651
The trial court erred by increasing defendant's restitution fine after the revocation of her probation.At the time of sentencing following the revocation of defendant's probation, the court increased the restitution fine from $200 to $800, and imposed a suspended parole revocation fine in the amount of $800 under Penal Code section 1202.45. Increasing the previously imposed fine was erroneous, and each fine was reduced to $200.id: 17662
The trial court erred in ordering defendant to pay restitution jointly and severally with codefendant for crimes committed by codefendant alone.Defendant was convicted of passing a forged check and grand theft. His codefendant was convicted of three counts of the same offenses. The court ordered defendant to pay restitution under Penal Code section 1202.4, subd.(f) jointly and severally with codefendant in the amount of $13,450. However, because $11,000 of the loss resulted from the crimes committed by the codefendant, and nothing in the record suggested defendant aided and abetted those offenses, the court could not order defendant to pay restitution for a crime he did not commit.id: 18221
The trial court erred when it imposed a second $800 restitution fine after it had already imposed a $600 fine at the time defendant was granted probation.The trial court imposed a $600 restitution fine pursuant to Penal Code section 1202.4. as a condition of probation when it placed defendant on probation in 1999. Three years later, the court revoked defendant's probation and imposed a second restitution fine in the amount of $800. The court lacked the authority to impose the second fine.id: 17852
The trial court erred in ordering restitution under section 1202.4, subd.(f) to the state agency that disposed of the hazardous substances found at defendant's meth lab.Defendant was convicted of attempting to manufacture methamphetamine. The trial court erred in ordering restitution under Penal Code section 1202.4, subd.(f), to the state agency that disposed of the hazardous substances. However, the statute was an improper basis for the restitution order because the agency was not a direct victim of defendant's criminal conduct. The exclusive statutory basis for reimbursement to the agency is provided in Health and Safety Code section 11470.1 and 11470.2, which establish procedures by which public entities may recover their costs of cleaning up hazardous substances.
id: 18651
The court erred by ordering defendant to pay restitution to the victim of a Payless rental car theft because defendant was acquitted of that offense.Defendant was acquitted of the theft of the Payless rental car. The trial court's order directing defendant to pay restitution to the victim of that offense was unauthorized.id: 18334
Under section 186.11, the prosecution must prove a third party had no legitimate interest in the funds in an account before it can be used to pay victim restitution.Defendants were convicted of grand theft along with a true finding on the white collar crime enhancement under Penal Code section 186.11. Claimants appealed from an order denying their claims to protect their bank funds and from an order seizing and using their bank funds to pay defendant's crime victim's restitution. Under section 186.11 evidence of defendant's control over the claimant's bank funds is not a sufficient ground for seizing and using the funds to pay restitution. In order to refute the claimants' property claims, the prosecution must prove the claimants did not have any legitimate interest in the funds. The prosecution failed to make that showing as to one of the claimants, and the court therefore erred, in ordering her bank funds used for restitution.id: 18818
The court erred by using the burglary count that should have been stayed under section 654 to calculate the amount of the restitution fine, and counsel rendered ineffective assistance by failing to object.Defendant was convicted of robbery and burglary. The consecutive sentence for the burglary violated Penal Code section 654 because the crimes were committed in an indivisible course of conduct of stealing from the drugstore. Section 654 is also violated when the trial court considers a felony conviction for which the sentence should have been stayed pursuant to section 654 as part of the calculation of the restitution fine under the formula provided by section 1202.4, subd.(b)(2). Trial counsel rendered ineffective assistance by failing to object to the fine. The restitution fine and corresponding parole revocation fine were reduced.id: 18921
Court's nunc pro tunc order releasing funds taken from defendant upon his arrest was an improper method of enforcing the restitution fine.The order entered nunc pro tunc by the sentencing judge releasing funds taken from the defendant upon his arrest to pay the Victim Compensation Board in satisfaction of a restitution fine was improper. However, the funds are available for payment of the restitution fine, and the matter was remanded for proceedings to enforce the restitution fine as a money judgment.id: 18784
The trial court had discretion to reduce restitution where the county used an incorrect formula in calculating the overpayment of food stamps.The trial court acted within the scope of its discretion to reduce the amount of restitution based upon its conclusion that the method the county's Department of Health and Social Services used to calculate the overpayment of food stamps overstated its loss.id: 18525
Section 186.11, subd. (d) does not permit restitution for losses caused by crimes for which defendant was not convicted.Defendant was convicted of welfare fraud along with an allegation under Penal Code section 186.11, subd.(a) (the "aggravated white collar crime enhancement") where the taking was more than $100,000. For state prison sentences, neither section 1202.4, subd.(f) nor section 186.11, subd.(d) permit restitution for losses caused by crimes for which defendant was not convicted. However, if a court does impose a fine under section 186.11, subd.(c), subdivision (l) of that provision does not preclude the imposition of fines under sections 1202.4 and 1202.45.id: 19028
The court erred by failing to apply the proceeds his insurance company paid the victim against the amount of restitution ordered.The trial court erred by failing to offset defendant's restitution obligation by his insurer's payments to the victim to the extent the payments were made to cover the costs of items included in the court's restitution order.id: 18470
The trial court erred in ordering that the restitution and parole revocation fines be payable jointly and severally.The trial court exceeded its jurisdiction by ordering that the imposed $6,400 restitution and parole revocation fines be payable jointly and severally by the two defendants. The judgment was modified to reflect separate $3,200 restitution and parole revocation fines payable individually.id: 18111
Court erred in increasing restitution fine on resentencing following a successful appeal.The trial court violated the state constitutional prohibition on double jeopardy by imposing a $5,000 restitution fine, when a fine of $1,000 was part of the sentence originally imposed for the voluntary manslaughter. The monetary portion of a sentence on remand from a successful appeal may not exceed the monetary portion of the sentence originally imposed, absent some express agreement by the defendant to the contrary.id: 11985
Increasing restitution fine following a reversal on appeal violates double jeopardy prohibition.When a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment or resentencing. This includes an increase in the statutorily mandated restitution fine.id: 15825
Juvenile court erred in ordering a restitution fine after a felony without considering the minor's ability to pay.Minor was found to be a person described in Welfare and Institutions Code section 602 by reason of his having committed the felony of robbery. As a result he was subject to the restitution fine mandated by section 730.6, subdivision (b). However, the restitution fine was imposed without any discussion of his financial circumstances or a finding by the court of his ability to pay. The matter was remanded so that the court could consider the minor's ability to pay or waive imposition of the fine.id: 11668
Restitution fine was stricken where defendant was not advised of the possibility of such fine before entering into the plea.Appellant pled nolo contendere to possession of cocaine. She argued imposition of restitution fines was improper because she was not advised of the possibility of such fines when she entered her plea. Both California Constitution Article I, section 28(b) and Penal Code section 1202.4 provide that imposition of the fine may be waived for compelling and extraordinary reasons. One example of a valid reason is the failure of the court and prosecution to advise the defendant entering a plea of the full measure of direct punishment which could be imposed, including a restitution fine.id: 11568
Restitution fine imposed on the juvenile exceeded the terms of the plea bargain where the plea agreement did not mention a restitution fine.Before the juvenile court accepted the plea bargain it advised the minor that the maximum punishment pursuant to the bargain was five years commitment to the California Youth Authority. The plea agreement did not mention a fine. Accordingly, the $300 restitution fine was a substantial departure from, and exceeded the terms of, the plea bargain. The proper remedy for this kind of violation of the plea bargain is reduction of the restitution fine to the lowest permissible amount, in this case one dollar.id: 13476
Money improperly spent on state contracts was not stolen and therefore restitution was not authorized under former section 1203.04.Defendant, the state superintendent of education was convicted of making illegal contracts in which he had a financial interest. As part of his probation he was ordered to pay restitution in the amount of $274,754. He argued the restitution order was improper because the losses suffered did not come within the list of reimbursable losses in former Penal Code section 1203.04, subdivision (d.) The prosecution argued the wrongful state expenditures constituted stolen property. However, defendant did not steal the funds in question; he caused them to be improperly expended on contracts in which he had financial interests. Consequently, the court was neither authorized nor compelled to order restitution under the provisions of section 1203.04. The matter was remanded to determine whether to impose restitution as a probation condition.id: 10849
A conviction of hit and run without more is insufficient to support an order of restitution.Defendant pled guilty to violating Vehicle Code section 20001, commonly referred to as hit and run. The court erred in ordering defendant to pay restitution because the order was tantamount to an assignment of civil liability in violation of his civil due process rights. A plea of guilty to a hit and run offense admits responsibility to leaving the scene of an accident, but not for causing injury. Restitution is proper only to the extent that the victim's injuries are caused or exacerbated by the offender's leaving the scene.id: 13422
Updated 3/19/2024The trial court did not err in using victim statements in police reports to establish replacement value of stolen property for restitution order.Defendant was convicted of stealing jewelry during a burglary. The trial court did not abuse its discretion under the circumstances in basing its $6,700 restitution figure on victim estimates of property value contained in a police report. The victim statements constituted sufficient evidence of replacement value.id: 28229
Updated 3/7/2024The juvenile court did not err by converting unpaid restitution to a civil judgment and allowing consideration of the minor’s SSI benefits in determining his ability to pay.After a finding of trespassing and vandalism, the minor was granted referred entry of judgment and ordered to pay $36,381 in restitution. After he completed the terms of his probation the court did not err by finding the restitution award could be enforced as a civil judgment. The juvenile court did not violate federal law in determining his ability to pay by considering the SSI benefits he received. The matter was remanded for a new ability to pay hearing that includes consideration of his future earning capacity, his current financial circumstances, and the total amount of restitution due. id: 26084
Updated 3/6/2024The matter was remanded to so the trial court could exercise its discretion in imposing a restitution fine that was not based on stayed counts. The parties agreed the trial court should have stayed sentences for two counts under Penal Code section 654. Defendant was entitled to a remand so the trial court could exercise its discretion in imposing the restitution fine and parole revocation fine that were not based on the stayed counts.id: 26539
Updated 3/4/2024The juvenile court had authority to hold a restitution hearing five years after the sentencing.The juvenile court had the authority to hold a restitution hearing five years after defendant’s sentencing, and defendant showed no prejudice due to the delay. id: 27989
Updated 3/4/2024The trial court erred by including the cost of the hunting trip when calculating restitution for the loss of a mounted ram’s head.Defendant was convicted of taking the victim’s mounted ram’s head during a burglary. The victim claimed the loss of the ram’s head amounted to $7,500, which included $6,000 for travel to and from the Texas ranch where he shot the animal. The trial court erred when it included the hunting trip as an economic loss because the experience was not property lost as a result of defendant’s criminal conduct.id: 28115
Updated 3/4/2024The victim was entitled to noneconomic restitution where defendant’s conduct showed a violation of section 288(a) even though that offense was not charged.Defendant’s conduct in violating Penal Code section 289 (sexual penetration by a foreign object) demonstrated that he committed a lewd act with a minor as described in section 288(a) even though that offense was not charged. For that reason, the victim was entitled to noneconomic restitution. Neither did the court err in ordering noneconomic restitution to the two mothers in the case.id: 28129
Updated 3/4/2024Section 1202.4(p) requires restitution for the prostitution the defendant forced the victim to perform.The victim of defendant’s human trafficking and pimping convictions sought restitution. The trial court granted restitution as to the financial losses but erroneously denied it as to the prostitution earnings on the ground that Penal Code section 1202.4(p) does not expressly authorize restitution for a victim’s labor where that labor is itself illegal. Subdivision(p) requires restitution for the illegal labor the defendant forced her to perform.id: 28132
Updated 3/4/2024Trial court did not err in failing to determine defendant’s ability to pay the minimum restitution fine. Defendant argued the trial court failed to consider his ability to pay the restitution fine. However, unlike other fees that are not considered to be punishment, the court need not hold a hearing to determine a defendant’s ability to pay restitution fines.id: 26846
Updated 2/26/2024Defendant’s conduct was a but-for cause of the victim’s death where he beat the victim and slammed his head against the ground before he died during treatment by the paramedics.Defendant punched the victim (who was high on methampthemine) in the face multiple times and slammed his head against the ground. First responders restrained the uncooperative victim in an effort to render medical aid. Shortly thereafter, the victim became unresponsive and died. Defendant argued the trial court erred in concluding in the context of a restitution order that defendant’s conduct caused the victim’s death. However, the evidence supported the trial court’s finding that the defendant’s conduct was a but-for cause of the victim’s death. id: 26576
Updated 2/26/2024The trial court did not err when it imposed but stayed the restitution fines under sections 1202.44 and 1202.45.Defendant was convicted of committing lewd acts against a young relative. The trial court imposed an eight year prison term but stayed its execution. The court did not thereafter err in imposing but staying a probation revocation restitution fine under Penal Code section 1202.44 and a parole revocation restitution fine under section 1202.45.id: 26366
Updated 2/26/2024The trial court did not err when ordering the drunk driver to pay as restitution the victim’s attorney fees from the related civil case. Defendant pled guilty to drunk driving causing injury. He was placed on probation, and one condition required that he pay the victim’s attorney fees in the civil case as part of his restitution obligation. Contrary to defendant’s claim, the victim did not waive her claim to the fees when she signed the settlement agreement. Moreover, the attorney fees went to the recovery of economic damages. Finally, it did not matter that the victim’s attorney was paid on a contingency fee agreement.id: 26374
Updated 2/26/2024Trial courts are not obligated to determine a defendant’s ability to pay victim restitution under Penal Code section 12024, subd.(f).Defendant argued the trial court was required to determine his ability to pay victim restitutions in light of People v. Duenas (2019) 30 Cal.App.5th 1157. However, restitution payments are fundamentally different from fines and fees, and trial courts are not required to determine ability to pay.id: 26391
Updated 2/24/2024Asset seizures under section 186.11 can take place after sentencing.Penal Code section 186.11, which is intended to aid in the enforcement of restitution awards in certain white collar criminal cases, does not bar the trial court from levying a defendant’s property or assets after the sentencing. The trial court had the authority to conduct a hearing on the motion years after its decision by the Court of Appeal.id: 28112
Updated 2/7/2024Parole revocation fine was appropriate for a defendant sentenced to death who was also sentenced to a determinate term on another count.Defendant argued the trial court erred by imposing the $10,000 parole revocation fine because he was sentenced to death, and therefore not eligible for parole. However, he was also sentenced to a determinate term and so the fine was proper.id: 27224
Updated 2/7/2024The denial of a request to reduce a restitution fine was a nonappealable order.Defendant argued the trial court erred in denying his motion to modify the restitution fine that was imposed without considering his ability to pay. However, the appeal was dismissed because the denial of the request to reduce the fine was a nonappealable order. id: 27138
Updated 2/7/2024Trial court properly ordered restitution including the victim’s attorney fees, and redactions made in attorney billing statements were appropriate.Defendant had been terminated as an investment advisor at Charles Schwab Co. after the company had obtained a restraining order to protect its employees against defendant. Defendant thereafter used the name of another advisor to contact the employees, and was convicted of identity theft and violating a court order. The trial court properly awarded restitution for the victims’ attorney fees and costs they incurred due to defendant’s unlawful conduct. Schwab’s counsel provided billing invoices to substantiate the amount claimed, which defendant did not challenge. Defendant failed to show the amount was unreasonable. The redactions in the billing records were appropriate given concerns regarding the attorney-client privilege.id: 27206
Updated 2/4/2024As direct victims of defendant’s fraud, both the CHP and State Compensation Insurance Fund were entitled to restitution for investigative costs.Defendant pled no contest to concealing the extent of his injuries from his employer, the California Highway Patrol, and the State Compensation Insurance Fund. He challenged the portion of his restitution award for investigating costs to both agencies claiming that as public agencies neither was entitled to restitution for these costs. However, as direct victims of defendant’s fraud, both agencies were entitled to restitution for investigative costs incurred in an effort to justify discontinuance of payment and recoup money defendant fraudulently obtained. id: 27278
Updated 2/4/2024The trial court did not err by awarding the victim’s company restitution for lost time dealing with case-related issues.Defendant was convicted of identity theft and forgery of an access cared. The victim owned part of an engineering company, and spent 12 hours on the phone on issues related to the case during business hours. The trial court did not err in awarding the company the 12 hours of lost time, even though the victim may have made up for some of the lost time during off hours.id: 27373
Updated 2/4/2024Restitution order including the victim’s relocation costs was erroneous given the lack of verification.The restitution order violated Penal Code section 1202.4(f)(3)(I) because there was no verification by law enforcement or a mental health treatment provider supporting the necessity of the victim’s relocation costs.id: 27644
Updated 2/4/2024The trial court did not err by ordering restitution in the amount of 15 million dollars, which was the value of the stolen cryptocurrencies at the time of the restitution hearing even though the value at the time of the theft was 1.5 million.Defendant was convicted of identity theft and grand theft after stealing cryptocurrencies from multiple victims. The value of the cryptocurrencies was about 1.5 million at the time of the theft but increased to 15 million by the time of the restitution hearing. The restitution order in the amount of 15 million dollars was not improper and did not violate defendant’s due process rights.id: 27686
Updated 2/3/2024The trial court retained jurisdiction to award victim. Restitution even after the early termination of defendant’s probation.Defendant argued the trial court lost jurisdiction to order restitution when it terminated his probation early following a change to the Penal Code that shortened his probationary term from five years to two. However the court retained jurisdiction to determine and award victim restitution, irrespective of defendant’s probation status.id: 27527
Updated 2/3/2024A criminal restitution order can account for the reduced value of a car with a “branded title.” A “branded titled” can reduce a car’s resale value, and stealing a car can brand its title. A criminal restitution order can account for this loss even where the owner has not sold the car and incurred the loss. id: 27764
Updated 2/3/2024Defendant’s challenge to the waiver claim is not ripe until there is a restitution hearing.At sentencing, defense counsel stated that her client waived his right to be present at any future restitution hearing. Defendant argues that he never waived that right. Until a restitution hearing takes place, the claim is not ripe.id: 27716
Updated 2/1/2024Defendant was not entitled to have the judge who accepted the guilty plea determine restitution.The trial court did not breach an implied agreement under People v. Arbuckle (1978) 22 Cal.3dd 749, by allowing a judge, other than the one who took the guilty plea and sentenced the defendant, to determine victim restitution.id: 27926
Updated 2/1/2024Court’s jurisdiction over restitution did not provide it with authority to review an order of the Workers Compensation Appeals Board.The appellate court’s jurisdiction over restitution orders did not provide it with authority to review the Workers Compensation Appeals Board’s order approving the deduction of attorney’s fees from the settlement and release agreement.id: 27980
Updated 2/1/2024The trial court had jurisdiction to set the amount of restitution after the defendant’s probation had been terminated.Defendant’s probation was reduced from three years to two following AB 1950. When the court terminated probation, the probation officer had still not calculated the amount of victim restitution as contemplated in the original probation order. The trial court did not exceed its jurisdiction by setting the amount of restitution after terminating defendant’s probation.id: 28015
Updated 1/31/2024The court did not err in awarding restitution to purchase new beds which the victims claimed were necessary due to the painful memories caused by defendant’s sexual abuse of her daughters.Defendant was convicted of molesting three young girls. He argued the trial court erred by awarding restitution in the amount of $9,461 as noneconomic damages under Penal Code section 1202.4(f)(3)(F) in order for a victim's mother to replace the furniture where the molestations had occurred as the furniture invoked painful memories. However, the award was proper based on the psychological trauma suffered due to the defendant’s actions.id: 28075
The trial court was authorized to award restitution to the child molest victim’s mother for psychological harm she suffered. Defendant argued the trial court erred by awarding restitution to the child molest victim’s mother for psychological harm she suffered. However, under Penal Code section 1202.4,(k)(4), parents of abuse victims may be awarded restitution for noneconomic losses they sustain.id: 26188
Increased restitution on retrial after appellate reversal did not violate double jeopardy.The trial court originally imposed direct restitution in the amount of $11,749 to cover burial and funeral expenses. His conviction was reversed on appeal, and he was convicted again at a retrial. The court then imposed additional restitution of $5,000 to cover newly claimed losses for investigators hired by the victim’s family. The additional restitution did not violate double jeopardy because victim restitution does not constitute punishment.id: 26138
The trial court erred in ordering defendant to pay restitution to the family of the murder victim where he was only convicted as an accessory after the fact.When a court imposes a prison sentence following trial, Penal Code section 1202.4 limits the scope of victim restitution to losses caused by the conduct for which defendant sustained the conviction. The trial court erred by ordering defendant to pay victim restitution for economic losses stemming from the murder because he was not convicted of murder, but only of being an accessory after the fact.id: 20262
If a person still owes a portion of a qualifying fine, and is an inmate in a California prison, the CDCR can deduct a portion of his wages under section 2085.5.Penal Code section 2085.5, subd.(a) allows the CDCR to withdraw funds from the defendant’s trust account to pay a restitution fine even though he is no longer serving the prison sentence for the crime on which the restitution fine was based. The CDCR can continue to deduct a portion of his wages until the restitution is paid.id: 26058
The trial court can order restitution to the state in the amount the state reimbursed the school district.Defendant pled guilty to making threats to use weapons of mass destruction at a school. He was placed on probation and ordered to pay $235,000 in restitution to the school district. The school district was reimbursed from the state in the amount of $68,722 for average daily attendance funds. The amount of restitution did not change but, following the reimbursement, defendant was ordered to pay restitution to the state in the amount of $68,722.id: 26060
The restitution award requiring defendant to pay the full value of the stolen copper wire was proper even though police had returned some of the recovered stolen wire.Defendant pled guilty to grand theft of some copper wire. He was placed on probation and ordered to pay $4,015 in restitution to compensate the victim for the stolen wire. The trial court did not err by ordering defendant to pay the full value of the wire while allowing the victim to retain the wire recovered by police.id: 25988
The trial court lacked jurisdiction to vacate the original restitution order 16 years after that order was entered and after the sentence was served. Defendant moved under the doctrine of laches to vacate a victim restitution order approximately 16 years after that order was entered and after he served his sentence for forgery. However, the trial court did not have jurisidiction to vacate the victim restitution obligation. Absent jurisdiction, the order denying defendant’s motion was non-appealable.id: 25758
A juvenile court can impose restitution based on losses arising from uncharged conduct if the restitution is properly imposed as a condition of probation.Under Welfare and Institutions Code section 730.6, a juvenile court has the power to require a minor to pay restitution in the amount sufficient to reimburse the victim for all economic losses “incurred as the result of” the criminal conduct that makes him the subject of the juvenile court’s jurisdiction. The court has the authority to require restitution for losses beyond those that resulted from the criminal conduct with which the minor was charged if that restitution was a properly imposed condition of probation.id: 25759
Restitution for noneconomic losses was properly ordered following the violation of continuous sexual abuse of a child under section 288.5.Restitution for noneconomic losses to certain victims of child sex abuse was available under a prior version of Penal Code section 1202.4, subd.(f)(3)(F) that was effective until December 31, 2017. Lewd acts under section 288 was an offense listed under that provision. There was no section 288 offense charged in the present case but there was a section 288.5 charge alleging the continuous sexual abuse of a child. However, the award of noneconcomic damages was proper even though no violation of section 288 was established.id: 25689
Section 1202.4 permits restitution for security costs incurred by the victim of a nonviolent felony. Defendant was convicted of first degree burglary. He argued the trial court erred by ordering as part of defendant’s restitution obligation that he pay for certain home security improvements. Contrary to defendant’s claim, Penal Code section 1202.4 permits restitution for security costs incurred by the victim of a nonviolent felony, notwithstanding the more specific provisions of section 1202.4, subd. (f)(3)(J) requiring the court to award such restitution to the victim of a violent felony.id: 25669
The juvenile court erred by applying the presumption of causality contained in the adult restitution provision because the presumption does not apply in juvenile matters.Minor was found to have made criminal threats. He was later, after a restitution hearing, ordered to pay $3,726. The juvenile court erred by applying the presumption of causality contained in Penal Code section 1202.4(f)(4)(A), because that presumption does not appear in Welfare and Institutions Code section 730.6, which governs restitution in juvenile matters. Nevertheless, the minor’s actions were shown to be a substantial factor in the victim’s injuries.id: 26707
Section 1204 does not limit restitution for residential security systems to defendants convicted of violent felonies. Defendant was convicted of stalking, and the restitution order included the expenses for the purchase and installation of a home sercurity system for the victim. Contrary to defendant’s claim, Penal Code section 1202 .4, subd.(f)(3)(J) does not limit restitution for residential security systems to defendants convicted of violent felonies.id: 25519
Duenas does not apply to a mandatory minimum juvenile restitution fine.The minor argued that ordering him to pay the $100 restitution fine violated due process because the juvenile court did not determine whether he had the ability to pay such a fine. However, the ruling in People v. Duenas (2019) 30 Cal.App.5th 1157 does not apply to a mandatory minimum juvenile restitution fine.id: 26613
The trial court erred by ordering joint and several restitution liability for the improper credit card use by one of the two embezzlement defendants. The trial court ordered the defendants to pay $34,445 in restitution to Ivy Academia for the improper use of its credit cards. However, the court erred by ordering the two defendants jointly and severally responsible for the charges made on one of the defendant’s card since there was no evidence the other defendant had any knowledge of, or participation in, the use of that card.id: 24978
Evidence Code section 1150 doesn’t prohibit evidence of juror’s thought processes on the issue of restitution.Defendant submitted juror statements and declarations relevant to the restitution proceedings after the embezzlement convictions. Contrary to the trial court’s findings, Evidence Code section 1150 did not preclude consideration of that evidence since the defendant wasn’t attempting to attack the verdict, but was merely advocating the restitution issue.id: 24979
Restitution order of $475 to clean up defendant’s graffiti was valid despite the lack of detailed billing and defendant’s claim that it could have been done for less. Defendant pled guilty to vandalism and was ordered to pay restitution to the city, which paid a contractor to remove the graffiti defendant admitted painting. The evidence didn’t support defendant’s claim that the repairs could have been accomplished for less, and the lack of apportionment between the cost of labor and materials was not important.id: 24941
The trial court did not err in denying the motion to reduce the restitution collection fee.The trial court did not abuse its discretion in denying defendant’s motion to reduce the restitution collection fee imposed on him in connection with the order that he pay victim restitution. He argued the 15 percent fee exceeded the actual cost of collection. However, the fee was set by statute and the refusal to reduce it was not error.id: 24957
The trial court did not err in ordering $18,878 in restitution for graffiti removal where the prosecution presented evidence of 32 specific incidents. Evidence supported the restitution order requiring defendant to pay the city $18,878 in restitution for 32 incidents of graffiti. This was not a case where the order was based on the average cost of graffiti remediation. The prosecution presented evidence of defendant’s specific acts, and that evidence was considered in calculating the amount of restitution.id: 24440
Original trial court had the power to impose a new restitution order after defendant’s case was transferred to another county and the restitution order was vacated on appeal. Defendant’s case was transferred from the trial court to the superior court of another county while her appeal from a worker’s compensation fraud conviction was pending. Under Penal Code section 1203.9, the original trial court retained jurisdiction over the imposition of restitution so that when the original restitution order was vacated, that court had the power to impose a new restitution order. id: 25399
The trial court properly ordered defendant to pay victim restitution to the victim’s mother who paid for the victim’s funeral expenses before she died. Defendant was convicted of voluntary manslaughter. He argued the trial court improperly required him to pay restitution to the estate of the victim’s mother for the victim’s funeral and burial expenses paid by the mother before she died. However, the restitution order was proper because the victim’s mother was herself a victim under Penal Code section 1202.4, subd.(k)(1), and the funeral expenses were incurred before she died. id: 25379
The civil disgorgement statute does not control the amount of restitution in a criminal case. Defendant pled guilty to contracting without a license. The trial court erred by ordering defendant to pay, as a condition of probation, the full amount the victim paid defendant plus interest. This civil disgorgement remedy does not control restitution in a criminal case.id: 25332
The court properly ordered the victim’s attorney’s fees as part of restitution where the victim hired counsel after being sued by defendant for the remaining balance on the contract.Defendant pled guilty to contracting without a license. The trial court did not err in awarding attorney fees incurred by the victim as part of the restitution award where the victim hired counsel after the defendant sued to recover the remaining balance on the contract.id: 25333
The trial court did not err by ordering defendant to pay restitution to the victims of his conspiracy.Defendant was convicted of conspiracy but not grand theft or commodities fraud. He argued the restitution award to four victims was improper because the court could only award restitution for losses caused by the crime for which he was convicted. However, the sentencing court did not abuse its discretion in ordering defendant to pay restitution to the victims of his criminal conspiracy.id: 25202
Workers’ comp insurer was entitled to recover, as restitution, the premiums it would have earned in the absence of misrepresentations by the applicant. Defendant was convicted of workers’ compensation insurance fraud after applying for insurance, which fraudulently represented that a number of nurses who had been placed in residential care facilities by defendant’s staffing agency were computer programmers. Contrary to defendant’s argument, a workers’ comp insurer may recover as restitution under Penal Code section 1202.4, the premiums it would have earned in the absence of misrepresentation by the insurance applicant. The fact that the Labor Code did not require that he provide workers’ comp coverage did not relieve him of his responsibilities.id: 25172
The Arbuckle right does not apply to victim restitution hearings in juvenile court. The same juvenile court judge handled the jurisdiction and disposition hearings. Another judge later presided over a contested restitution hearing. The minor argued the juvenile court violated his rights under People v. Arbuckle (1978) 22 Cal.3d 749, by denying his request to have the original judge preside over the restitution hearing. However, the Arbuckle right does not apply to victim restitution hearings in juvenile court. Moreover, any error was harmless because the minor received a fair hearing on the restitution issue.id: 25151
The trial court did not err by refusing to apply the doctrine of comparative negligence to reduce the restitution award to the victim’s parents.Defendant was convicted of drunk driving causing injury. The trial court ordered full restitution to the victim’s parents for travel expenses and lost wages related to their court appearances. Contrary to defendant’s claim, the doctrine of comparative negligence does not apply to reduce Penal Code section 1202.4 restitution to which the parents of a direct victim are entitled as reimbursement for their own economic loss.id: 25105
Victims of continuous sex abuse of a child under section 288.5, like victims of lewd conduct under section 288, are entitled to noneconomic restitution. Defendant was convicted of continuous sexual abuse of a child under Penal Code section 288.5. The trial court did not err by awarding the victims noneconomic restitution because section 1202.4, subd.(f)(3)(F) authorizes such an award against a defendant convicted of violating section 288.5 if the conduct underlying the conviction also constitutes a violation of section 288.5.id: 25103
The anguish shown by the child molest victim while testifying at trial supported the restitution award of one million dollars for noneconomic losses. Defendant was convicted of molesting his two granddaughters. He argued the restitution award of one million dollars for noneconomic damages was improper. Neither victim testified or presented evidence at the restitution hearing and the award was primarily a result of the victims’ anguish as shown in their trial testimony. Contrary to defendant’s claim, the prosecution was not required to present victim testimony, affidavits or expert declarations at the restitution hearing. The award was supported by evidence of the victims’ distress. Finally, there is no fixed formula for calculating noneconomic losses and it’s not clear what more the court could have done to explain the basis of the award.id: 24712
A trial court may order victim restitution noneconomic losses for a defendant convicted of violating section 288.5Direct victim restitution is generally limited to economic losses victims suffer. However, Penal Code section 1202.4, subd.(f)(3)(F) creates an exception for noneconomic losses (including psychological harm) for felony violations of Penal Code section 288. This exception also applies and allows restitution for noneconomic losses when a defendant is convicted of continuous sexual abuse of a child under section 288.5.id: 24527
Multiple restitution fines are proper where several cases are resolved under a single plea bargain.When several separately filed cases are disposed of at a single hearing under a plea bargain, the defendant if subject to multiple restitution fines under Penal Code sections 1202.4 and 1202.45.id: 21405
The trial court properly ordered direct restitution following the murder conviction despite the acquittal on the arson charge, and defendant was not entitled to a jury determination on direct restitution. Defendant argued the direct restitution order was improper because the jury acquitted him of the arson that caused the economic damage. However, the damages were also a product of the murder for which defendant was convicted. Moreover, defendant was not entitled to a jury determination on restitution under Apprendi and Southern Union because direct restitution is not a criminal penalty and not subject to a statutory maximum.id: 24258
Failure to impose a parole revocation fine when the sentence was imposed and execution was stayed, was unauthorized.When the trial court imposes sentence and suspends execution, and the suspended sentence includes a period of parole, the trial court must impose the parole revocation fine at sentencing. The trial court’s failure to do so resulted in an unauthorized sentence that the court corrected. Moreover, when the court initially suspends imposition of sentence and orders a restitution fund fine, it must impose a parole revocation fine when it later imposes a sentence that includes a period of parole.id: 24232
When criminal charges were dismissed under section 3200 following defendant’s successful CRC commitment, he was not released from his obligation to pay direct restitution.Defendant argued the dismissal of criminal charges against him pursuant to Welfare and Institutions Code section 3200 following his successful completion of a California Rehabilitation Center (CRC) commitment operated to release him from the obligation to pay restitution because direct victim restitution qualifies as a penalty and disability pursuant to Penal Code section 1203.4. However, the obligation to make a victim whole through direct restitution is a constitutional mandate that serves to protect public safety and welfare rather than to punish the defendant, and thus it is not a penalty or disability from which the defendant is released upon the dismissal of charges under former section 3200 or section 1203.4.id: 24210
Following a Harvey waiver, defendant was not entitled to an evidentiary hearing to contest his guilt in a dismissed case where he was facing restitution proceedings.Defendant negotiated a plea agreement that included a Harvey waiver that allowed the sentencing court to consider dismissed counts. The plea deal included an understanding that there would be restitution for Jenkins, a victim of a dismissed charge. Defendant was not later entitled to an evidentiary hearing to contest his guilt (and restitution obligation) in the dismissed case.id: 24189
Defendant impliedly consented to the court’s continued jurisdiction by agreeing to continue the restitution hearing to a date after his probationary term had expired.Defendant argued the trial court lacked jurisdiction to conduct the restitution hearing because his probation term (including the restitution condition) expired one week earlier. However, by agreeing to a continuance of the restitution hearing to a date after his probationary term expired, defendant impliedly consented to the court’s continued exercise of jurisdiction. . id: 24110
The trial court may impose restitution for all victims of a single incident of drunk driving causing injury including those not named in the charging document. Defendant was sentenced to prison for driving under the influence causing injury in a case where a single incident caused injuries to several people. The trial court properly ordered defendant to pay restitution to all of the victims’ injured in the accident including those who were not mentioned in the charging document.id: 23894
The juvenile court did not enter a restitution order after the minor’s 21st birthday, it simply recorded the balance remaining from the original order.Defendant argued the juvenile court’s restitution order must be vacated because it was issued after he turned 21 years old, the age at which the juvenile court’s jurisdiction terminated by operation of law. However, the original order was made before his 21st birthday, he didn’t challenge it, and paid down the balance over a few years. The order/abstract which simply restated the balance on the original restitution order was nothing more than a memorialization of the original order.id: 23897
The prosecution did not waive other victim’s claims to restitution by failing to address the issue at the original sentencing proceeding.Defendant crashed into a phone pole as he was leaving the scene of a robbery, and damaged the pole in the process. The prosecution did not , at the initial sentencing, seek restitution for the utility company and victims of that crash. However, the failure to seek restitution relative to the car collision at the original sentencing hearing did not preclude seeking that restitution at a later hearing.id: 24019
A juvenile court had the authority to enter an abstract of judgment restating a restitution order upon terminating of wardship two years after the ward turned 21. A juvenile court, having ordered a 15 year-old ward to pay victim restitution, had authority to enter an abstract of judgment restating the restitution order upon termination of wardship, more than two years after he turned 21.id: 24063
Apprendi and Southern Union did not give defendant the right to a jury determination of the value of the stolen items when calculating restitution.Defendant argued the sentencing court improperly ordered her to pay restitution to each of her robbery victims because the jury did not determine the amount of the restitution. However, defendant did not have a right under Apprendi v. New Jersey (2000) 530 U.S. 466, or Southern Union Co. v. United States (2012) ___ U.S. ___, 132 S. Ct. 2344, to have a jury determine the value of the stolen items.id: 23544
The trial court did not err by ordering the counterfeiter to pay restitution to the trademark holder.Defendant was convicted of selling counterfeit merchandise. She argued the trial court erred in ordering her to pay restitution to the trademark holders because they were not direct victims for purposes of Penal Code section 1203.4. However, section 350, subd.(I) specifies that restitution be paid to trademark holders. The trademark holders were also entitled to reimbursement for investigative costs.id: 23468
Restitution issue was not cognizable because defendant failed to file a separate notice of appeal from the restitution order.Defendant argued the victim restitution order filed five months after he filed the notice of appeal was improper because the court awarded restitution for expenses not attributable to his conduct. However, the claim was not cognizable because defendant did not appeal from the separately appealable victim restitution order.id: 23457
Trial counsel was not ineffective for failing to seek a discount of the portion of the restitution award compensating the victim for future lost wages to account for its present day value.Defendant argued his trial counsel rendered ineffective assistance by failing to seek a discount of the portion of the restitution award compensating the victim for future lost wages to account for its present-day value. However, it was possible that trial counsel had a rational tactical ground for not seeking a time value discount, and the court therefore rejected the claim. id: 23608
The juvenile court properly ordered the minor to pay restitution based on the victim’s unpaid hospital bills.The minor admitted to an aggravated assault that seriously wounded the victim, resulting in a $400,000 hospital bill. The hospital determined the victim was indigent and his bill was uncollectible. Pursuant to hospital policy, it made no further attempt to collect the debt. The juvenile court ordered the minor to pay $81,500 in restitution to the victim. The order basing restitution on the billed charges established by substantial evidence was not contrary to Welfare and Institutions Code section 730.6. id: 23662
Inability to pay is a factor to consider when setting the amount of the restitution fine but does not justify staying the fine.The trial court imposed a $10,000 restitution fine under Penal Code section 1202.4, subd.(b)(1), but then stayed the fine after finding defendant lacked the ability to pay. However, inability to pay is a factor in setting the amount of the fine, not a ground for staying the fine. The matter was remanded.id: 23686
Victim restitution is not a criminal fine and is not subject to the Apprendi rule.Defendant argued the direct victim restitution award in the amount of $8,200 imposed without jury findings, violated the Sixth Amendment in light of Southern Union Co. v. United States (2012) 132 S. Ct. 2344. However, section 1202.4 imposes victim restitution, and a “criminal fine” and is not subject to the Apprendi rule.id: 23687
The juvenile restitution provision must be interpreted to include derivative victims, and thus the award to the victim’s family members was proper. The minor was adjudicated to be a ward of the court, and the trial court properly awarded restitution under Welfare and Institutions Code section 730.6, not only to the direct victim but to the victim’s family members as derivative victims. The state constitutional provisions support the award of restitution to family members.id: 23386
The murder victim’s estate was a victim of the crime and entitled to direct restitution.Defendant was convicted of conspiracy to commit murder and special circumstance murder of her husband Jack. One immediate object of those crimes was to collect Jack’s life insurance and other assets that became part of his estate after his death. Jack’s estate was entitled to restitution as an entity directly targeted by defendant’s crimes even though the estate did not exist at the time of the crimes and only came into being as a result of those crimes.id: 23434
Defendant who defrauded the victim could not claim the restitution order violated usury laws.Defendant pled guilty to one count of theft by false pretenses, and was ordered to pay restitution of $133,000 plus 10 percent interest. He argued the trial court erred when it awarded prejudgment interest of 10 percent on the five promissory notes because those notes on their faces state usurious interest rates that are above the legal limit. However, a defendant who fraudulently obtained money had unclean hands and could not seek protection of the usury laws to counteract the restitution statute.id: 23427
The trial court erred by arbitrarily selecting a low restitution amount for the workers comp fraud and the issue was appealable by the prosecution.Defendant was convicted of multiple counts of workers comp fraud in violation of Insurance Code section 11880. The trial court abused its discretion at the restitution hearing by awarding the insurance company $500,000 of economic loss where the evidence showed a greater amount. The court failed to consider all of the evidence on the issue an arbitrarily selected the amount. The issue was properly appealed by the prosecution given the state’s interest in ensuring that victim restitution laws be properly enforced.id: 23294
The trial court had jurisdiction to award restitution to the victim even though defendant’s probation had expired.Defendant challenged the restitution award arguing the trial court lost jurisdiction to award restitution when his probation had expired nine days earlier. However, the court retained jurisdiction to determine and award restitution under Penal Code sections 1202.4 and 1202.46 regardless of the expiration of defendant’s probation.id: 23260
The trial court did not err by failing to use civil comparative fault principles when calculating restitution in a drunk driving causing injury case. Defendant was convicted of drunk driving causing injury while driving an off-road vehicle in the desert. She argued the trial court abused its discretion by failing to reduce the amount of restitution by the percentage of fault her expert attributed to the victim. Under extraordinary circumstances, the trial court may employ civil comparative fault principles in making its restitution order, but it isn’t required to do so where, as here, the defendant did not act intentionally.id: 23356
The juvenile court did not err in converting the balance of the minor’s victim restitution into a civil judgment.The minor argued that because he was granted informal supervision under Welfare and Institutions Code section 654.2, he was never adjudicated a ward of the state under section 602, and therefore the court lacked the authority to convert his restitution order to a civil judgment under section 730.6 because that section only applies to adjudicated juveniles. However, the minor agreed to the applicability of section 730.6 as a condition of his informal supervision, and he was therefore estopped from challenging it later.id: 23360
The trial court erred by failing to supply defendant with the records used to support the amount defendant was ordered to reimburse the Restitution Fund. The trial court ordered defendant to pay $20,900 in restitution to reimburse the Restitution Fund for money paid on behalf of the assault victim. The court erred by not providing defendant with the records the California Victim Compensation and Governmental Claims Board used to establish the amount to be paid on behalf of the victim. However, the error was harmless where the records showed that the treatment the victim received, and for which the Board provided reimbursement, resulted from defendant’s criminal conduct.id: 23101
Following defendant’s death, the abatement of proceedings order included the victim restitution issue. Defendant died while his appeal was pending and the court of appeal granted defendant’s request to direct the superior court to abate all pending proceedings in that court. The order included the victim restitution order.id: 22880
The trial court should have assessed and stayed the probation restitution fine under section 1202.44 rather than the parole restitution fine under section 1202.45, where execution of sentence was suspended and defendant was placed on probation. Defendant pled no contest to a drug charge. Execution of his nine year sentence was suspended and he was placed on probation. The trial court then also imposed a restitution fine under Penal Code section 1202.45. However, the court should have imposed and stayed a probation restitution fine under section 1202.44, rather than a parole restitution fine under section 1202.45.id: 23048
Southern Union Co. had no effect on the trial court’s ability to impose a $10,000 restitution fine.The trial court imposed a $10,000 restitution fine under Penal Code section 1202.4, subd.(b). The fine was within the statutory range and neither Apprendi nor Southern Union Co. had any effect on it.id: 22893
Section 800 does not authorize an appeal from a deferred entry of judgment order, including its restitution component.The minor appealed from a juvenile court restitution order entered in conjunction with the court’s grant of deferred entry of judgment in his juvenile delinquency case. However, Welfare and Institutions Code section 800 does not authorize an appeal from a DEJ order, including is restitution component.id: 22965
The trial court did not violate the Harvey rule by ordering him to pay restitution to the victim of an uncharged assault.Defendant argued the trial court erred in ordering him to pay restitution to the victim for a dental crown he knocked out of her mouth during an uncharged assault. Contrary to defendant’s claim, the court did not violate the “Harvey rule” (People v. Harvey (1979) 25 Cal.3d 754) by ordering him to pay restitution for that uncharged assault where that offense was not part of the plea bargain. id: 22694
Imposition of a mandatory restitution fine did not violate the plea agreement where the parties failed to make the fine an express term of the agreement and the court failed to mention it when taking the plea.Defendant entered into a plea bargain. The court later ordered him to pay a $4,000 restitution fine and a $4,000 parole revocation fine even though the plea agreement did not mention the fines. The fines did not violate the plea bargain. Where the fines are not made part of the plea agreement or specified in the plea colloquy, the amounts are left to the trial court’s discretion.id: 22729
The trial court may order restitution for a vandalized truck based on replacement cost or cost to repair and is not limited to the lesser of the two.Defendant pled guilty to vandalizing the victim’s 1975 pickup truck. She bought the truck 18 months earlier for $950 when it was in excellent condition, but the body shop gave a repair estimate of $2,812. Penal Code section 1202.4, subd. (f)(3)(A) gives the trial court the choice of awarding restitution for the replacement cost or the actual cost of repair when repair is possible. The court is not required to order the lesser of the two. The trial court therefore did not err by ordering restitution in the amount of $2,812 reflecting the written estimate of repair cost.id: 22781
The trial court properly awarded restitution to the apartment owner who incurred economic loss when defendant lit the victim on fire inside the apartment. Defendant poured gasoline on the victim and lit her on fire in the apartment, causing damage to the victim and the apartment. He pled guilty to aggravated mayhem and the arson charge was dismissed. Defendant argued the apartment owner was not a direct victim of the crime for which he was convicted and the restitution award to him was improper. However, the apartment owner was an immediate object of defendant’s aggravated mayhem. He was thus an “immediate object” of the crime and was a direct victim for restitution purposes.id: 22271
The juvenile court lacked the authority to order the D.A.’s office to negotiate with the hospital concerning the victim’s medical bills.The juvenile court acted beyond the scope of its authority in rescinding an order of victim restitution and instead ordering the district attorney’s office to negotiate with the hospital to discount the victim’s medical bills. id: 22252
Lawyer convicted of embezzlement was not entitled to a restitution offset for the amount the victims received from the State Bar fund.Defendant, an attorney, was convicted of embezzlement. He was ordered to pay victim restitution to several people including two who had received some reimbursement from the State Bar Client Security Fund. He was not entitled to an offset in the amount of the actual restitution award. However, should the State Bar exercise its assignment and subrogation rights and obtain a judgment against defendant to the extent of amounts paid to the victims under the CSF, that judgment would credit any amounts actually collected pursuant to the restitution order.id: 22241
Even though defendant did not burglarize the victim’s premises, his conduct in concealing the stolen property was a substantial factor in causing the damages and the restitution award was proper.Defendant was convicted of concealing stolen property. He argued the restitution award was improper because the victim’s damages were caused by the burglary of the victim’s premises and not proximately caused by his conduct. However, there can be more than one cause of injury and defendant’s conduct in possessing the stolen property was a concurrent cause of the loss and a substantial factor in depriving the victims of their property. id: 22200
A trial court can award victim restitution for attorney contingency fees without a lodestar analysis.Penal Code section 1202.4, subd.(f)(3)(H) authorizes restitution for “actual and reasonable attorney’s fees” incurred by the victim as a result of defendant’s criminal conduct. A trial court may order restitution for a contingency fee paid by the victim without first determining whether the fee was reasonable under the lodestar method for calculating attorney fees.id: 22301
The victim restitution provisions of Marsy’s Law allowed the victim’s attorney to participate in the restitution hearing.The trial court ordered $750,000 in noneconomic damages as restitution to a child molest victim. Defendant argued the restitution hearing was invalid because it was put on by the victim’s attorney with the prosecutor present but not participating. However, the victim restitution provisions of Marsy’s Law permitted the victim’s attorney to participate in the hearing. id: 22357
Allowing noneconomic damages as part of restitution to child molest victims did not violate equal protection, did not require a jury trial, and properly included pain and suffering for years after the offense.Defendant was convicted of molesting a young girl for several years. Following a restitution hearing, the court ordered defendant to pay $3,200 for economic damages and $750,000 for noneconomic damages. Restitution is usually limited to economic damages but there is an exception for violations of Penal code section 288. Defendant did not have a right to a jury trial on the issue of noneconomic damages. Moreover, because child molesters are not similarly situated with other criminals there was no equal protection violation. The amount awarded was not improper and properly included pain and suffering for years after the crime.id: 22356
The extended statute of limitations period was proper where there was evidence showing the incident involved substantial sexual conduct and it was corroborated by a pretext call.The standard statute of limitations for committing a lewd act on a minor in violation of Penal Code section 288, subd.(a) is six years. In the present case more than six years elapsed between the alleged commission of the offense and the filing of the complaint. However, the extended limitations provision described in section 803, subd.(f) applied. While the alleged victim’s testimony was internally inconsistent, it constituted substantial evidence that the molestation involved substantial sexual conduct. Moreover, there was sufficient evidence (a pretext call) to corroborate the allegations. The extension of the limitations period was therefore proper.id: 22355
The trial court did not err when it ordered the minor vandal to pay the higher repair costs rather than the lower replacement value of the vehicle.The minor was found to have vandalized a car. The trial court did not abuse its discretion when it ordered him to pay over $8,000 to the owner of the car, which at most had a replacement value of approximately $5,300. Restitution is not limited to replacement value and the court did not impermissibly consider the noneconomic losses the victim would incur to replace the car.id: 22052
Defendant convicted of animal cruelty was not entitled to comparative negligence of animal control agency when computing restitution and was not entitled to an offset for the amount the agency later received in adoption fees. Defendant was convicted of animal cruelty and was ordered to pay a large restitution amount to the animal welfare agency. He argued the trial court erred by refusing to apply comparative fault principles in light of the agency’s alleged negligence with animals. Although defendant would not be liable to the agency at all under Penal Code section 1202.4 (the direct restitution provision), he was liable under section 597, subd.(f)(1), and no comparative fault analysis was required. Moreover, defendant was not entitled to a setoff for the revenues the agency received for later adopting some of the animals. id: 22139
The trial court properly denied defendant's motion to order satisfaction of the restitution order following the civil settlement, where the medical expenses incurred by the victim were ongoing. Defendant's pit bull attacked a girl and he was convicted of failing to control a mischievous animal. He was ordered to pay $168,000 in restitution. He later moved to have the court declare the restitution obligation satisfied, contending a $300,000 payment to settle a civil lawsuit against defendant and his landlord, funded by the landlord's insurer through a homeowner's policy that also insured defendant, was properly deemed restitution within the meaning of Penal Code section 1202.4 and constituted a full offset to the restitution award. However, the acceptance of a civil settlement does not necessarily satisfy a restitution order. Only part of the civil settlement here was designated for medical expenses. Defendant may have been entitled to a credit for that amount, but the medical expenses were ongoing and the trial court properly rejected the offset. id: 21935
The victim’s estate was a “direct victim” within the meaning of section 1202.4. Defendant was convicted of gross vehicular manslaughter and ordered to make restitution of $446,486 to the victim’s estate. Contrary to defendant’s claim, the victim’s estate was a “direct victim” under Penal Code section 1202.4.id: 21809
The trial court, when ordering restitution, has the discretion to award the victim the cost of repairing the damaged vehicle even if that amount exceeds the replacement value of the vehicle. When a criminal damages a victim’s vehicle, the trial court may in its discretion award the victim the cost of repairing the vehicle, even if that amount exceeds the replacement value of the vehicle.id: 21715
The trial court did not err by ordering that restitution be paid directly to the hospital.Defendant was convicted of leaving the scene of an accident. As a condition of probation he was ordered to pay restitution for the victim’s final hospital expenses as the deceased had no ability to pay the hospital. The order of direct payment to the hospital was authorized by Penal Code section 1203.1.id: 21703
The trial court properly ordered defendants to pay for the costs of Target's investigation and of transporting and storing the recovered merchandise. Defendants were convicted of stealing from Target. The trial court properly ordered defendants to pay, as part of the restitution, the costs of Target's investigation and of transporting and storing the recovered merchandise. This was part of the economic loss incurred by Target.id: 21518
Defendant's failure to object to the $500 fee the victim's therapist charged to appear at the restitution hearing in response to the subpoena forfeited the issue on appeal.Defendant argued the trial court erred by ordering him to pay as restitution the $500 witness fee the victim's psychotherapist charged to appear at the hearing pursuant to defendant's subpoena. Defendant argued that because the doctor was a percipient witness he was only entitled to the statutory witness fee of $12 per day. However, defendant forfeited his right to challenge the award by not objected at the hearing. id: 21640
Defendant was required to pay as restitution the full amount charged by the victim's psychotherapist even though her insurance company had paid a portion of it.Defendant argued the trial court erred by ordering him to pay as restitution the victim's counseling costs of $4,764.71, because the victim's insurance company had paid a portion of those costs. However, even though there was evidence showing a portion of the costs had been paid by PacifiCare, defendant was required to pay the full amount charged for the victim's therapy. id: 21639
The trial court did not err by excluding testimony by the victim's therapist at the restitution hearing.Defendant argued the victim waived the psychotherapist-patient privilege by requesting restitution for the cost of her therapy. However, the trial court reasonably concluded that, for purposes of determining the amount of restitution, further inquiry into the content of the victim's communication with her therapist was unnecessarily invasive. Moreover, by failing to request at the restitution hearing, enforcement of the subpoena duces tecum of the victim's therapy records, defendant forfeited the issue on appeal.id: 21638
The trial court did not err by including the victim’s legal expenses when computing victim restitution.Defendant was convicted of grand theft where he participated in a staged accident at a ski resort to obtain medical treatment for a prior injury. He argued the trial court erred by including the ski resort’s legal expenses in the computation of victim restitution. However, because it was not disputed that the resort incurred the legal expense as a result of defendant’s criminal conduct, the trial court reasonably concluded reimbursement of such expenses would be necessary to make the victim whole.id: 21655
The trial court erred in failing to order restitution for the IRS penalties incurred by the defendant’s company as a result of his embezzlement.Defendant was convicted of embezzling more than $50,000 from his employer, a water company, and failed to pay the company’s payroll taxes for seven years. The trial court erred by refusing to order restitution for IRS penalties incurred by defendant’s employer as a result of the embezzlement of funds that should have been paid to the IRS for payroll taxes. The penalties were an economic loss within the meaning of Penal Code section 1202.4, subd.(f).id: 21541
The juvenile court properly required the minor to pay direct victim restitution that included the cost of medical treatment the victim received as a member of the Kaiser HMO.Welfare and Institutions Code section 730.6 requires a juvenile ward to pay victim restitution incurred as a result of the ward’s criminal conduct. That may include amounts billed for medical services provided by an HMO even when the victim is an HMO member not required to pay for those medical services.id: 21540
By reimposing the restitution fine after the third probation violation and imposing a prison sentence, the court was not imposing a new, prohibited second fine.Following a guilty plea, defendant was placed on probation. One condition was that she pay a $200 restitution fine. After a third probation violation, the court sentenced her to prison and “reimposed” the $200 restitution fine. On appeal she argued the trial court erred by imposing two separate restitution fines for the same conviction. However, by “reimposing” the fine the court did not impose a new, prohibited second fine, but rather acknowledged the same fine that had been previously imposed. id: 21570
Section 742.16, which requires the court to determine the minor's ability to pay restitution in certain cases, applies to deferred entry of judgment.Welfare and Institutions Code section 743.16 requires the court to find the minor has the ability to pay before ordering restitution in graffiti and vandalism cases. That provision applies in deferred entry of judgment cases.id: 21494
The trial court had a rational basis for ordering $24,704 in restitution to the power company even though it could not be determined when defendant began diverting the electricity to grow the marijuana. Defendant pled guilty to conspiracy to sell marijuana. He was ordered to pay $24,704 restitution to the Sacramento Municipal Utility District for the electrical power he had stolen for his operation. He argued the order was flawed because the calculations on which it was based were speculative since it could not be conclusively determined when he began diverting the power. However, it was reasonable to use the earliest of two possible dates and use of the later date would not have fully compensated the victim for its loss.id: 21110
The trial court did not err in ordering restitution for lost wages of the burglary victim who sat through the trial but was not a witness.The trial court did not abuse its discretion in ordering defendant to pay the burglary victim $6,250 for the wages he lost while attending the trial even though he was not a witness but chose of his own volition to sit through the proceedings. id: 21298
The trial court erred when it conditioned the amount of a restitution fine on defendant’s payment of direct victim restitution. The trial court erred by ordering a restitution fine under Penal Code section 1202.4 in the maximum amount that was to be offset by the amount payed to the victim as direct restitution. The law requires that the restitution fine and direct restitution be separate. id: 21297
The trial court properly imposed a $200 restitution fine when granting probation and another $200 when imposing a prison term.Defendant argued the trial court erred by imposing a $200 restitution fine under Penal Code section 1202.4 when she was granted probation and another one when she was sentenced to prison after the revocation of her probation. However, the first fine was appropriate under section 1202.44 which applies where the sentence includes a term of probation, and the second was appropriate under section 1202.45 following the revocation of probation. The abstract was corrected to reflect the appropriate provisions. id: 21228
Imposition of the $4,000 restitution fine did not violate the plea agreement where the fine was not part of the bargaining and was left to the trial court’s discretion.The trial court erred in failing to admonish defendant as to the statutory minimum of $200 and maximum of $10,000 restitution fine as a consequence of the plea. However, the omission of the error did not entitle him to a remedy and failure to object before sentencing forfeited the issue. In addition, imposition of the $4,000 fine did not violate the plea bargain since the parties did not negotiate the amount of the fine, leaving it instead to the discretion of the trial court.id: 21227
The trial court lacked jurisdiction to modify defendant’s restitution fines 10 months after sentencing when he was in prison.Defendant moved to modify his restitution fines 10 months after the judgment was entered when he was serving his prison sentence. However, while the court has continuing jurisdiction with respect to victim restitution, it lacked jurisdiction with restitution fines.id: 21188
Restitution was proper for burial costs where juvenile’s driving without a license was a substantial factor in the pedestrian’s death.The minor was driving a vehicle which struck a pedestrian who later died from the injuries. She was found to have been driving without a license – the only offense charged. She argued the juvenile court erred by imposing restitution for damages not caused by her act of driving without a license. However, the restitution was justified under Welfare and Institutions Code section 730.6 in light of the court’s finding that she was a substantial factor in the death. Moreover, the evidence supported the factual finding that her inexperience and lack of driving skills caused a role in the death. Restitution was authorized by statute and she had no right to have the amount determined by a civil jury trial.id: 20945
The restitution order properly considered the amount of sick leave depleted by the victim’s employer. The minor was found to have committed an assault. He argued the restitution order was improper as it related to the victim’s lost wages since the victim was reimbursed by the victim’s compensation board and there was no evidence showing he would have to repay the amount reimbursed. However, the victim’s employer was also depleting his sick leave which was a valuable right he lost as a result of the assault. While the exact value of that loss was dependent on unknown variables, including future contingencies, the trial court did not act irrationally in allowing the value of the time it represented. Finally, the amount the victim received from state disability was not a loss incurred for restitution purposes. id: 20946
Juvenile restitution was proper based on document showing HMO billed charges to the victim, but not for the ambulance service amount which was described as a benefit but not a cost incurred by the victim.The minor was found to have committed an assault resulting in injuries to the victim. He argued the restitution order under Welfare and Institutions Code section 730.6 was improper because it referred to amounts for services rendered by Kaiser rather than amounts actually billed to the victim. However, the first document was a letter from “Healthcare Recoveries” referring to the amount of “billed charges.” This was substantial evidence that these charges were incurred by the victim. However, the other document was an “Explanation of Benefits” from Kaiser relating to the value of the ambulance service. There was no evidence that this expense was incurred by the victim. id: 20944
A Harvey waiver was not required before restitution could be ordered as to dismissed count in juvenile court.The juvenile court did not err in ordering the minor to pay restitution on a dismissed count, as a condition of probation pursuant to Welfare and Institutions Code section 730, even though the minor had not entered a Harvey waiver.id: 20943
The bank was a direct victim of defendant’s forged checks for restitution purposes.A bank is a direct victim, entitled to victim restitution under Penal Code section 1202.4, when a person forges checks drawn on the bank. id: 20820
Evidence supported the restitution award to the victim company who used a logical method to calculate replacement value of the stolen goods.Defendant was convicted of grand theft by an employee. The evidence was sufficient to support the trial court’s award of $38,000 in victim restitution to his company. The company’s losses were calculated by reasonable estimates that defendant did not challenge at trial. The method of calculating replacement value of the stolen goods was logical and defendant did not disprove the claimed losses. id: 20819
The cost of mental health services are authorized as a restitution award under the juvenile restitution statute.The cost of mental health services directly incurred by the victim of a crime that is committed by a juvenile is authorized as restitution pursuant to Welfare and Institutions Code section 730.6, subd.(h).id: 20751
The trial court erred by imposing two restitution fines and one was changed to a probation restitution fine under section 1202.44.After revoking defendant’s probation, the trial court imposed two $200 restitution fines under Penal Code section 1202.4, subd.(b). The minutes were modified to reflect that the second fine was imposed under section 1202.44 which is the probation revocation restitution fine.id: 20651
The trial court erred in allowing the restitution hearing to go forward in the absence of the district attorney.The restitution hearing was invalid because it was prosecuted by the surviving spouse’s private counsel rather than the district attorney.id: 20649
The trial court did not err in rejecting the life without parole defendant’s request for the $200 minimum restitution fine due to his inability to pay. Defendant was convicted of special circumstance murder and sentenced to life without parole. He argued the trial court erred by imposing the $10,000 restitution fine because of his inability to pay due to the low prison wages and difficulty in getting a job. However, in light of the seriousness of the crime, the court did not err in ordering the maximum restitution fine.id: 20648
The trial court did not err in accepting the victim’s statement regarding the amount of losses for restitution where the victim did much of the repair work on his own.Defendant pled guilty to commercial burglary. She argued the evidence did not support the restitution order because the trial court relied on the victim’s unverified statement of losses and arbitrarily rejected her testimony disputing the restaurant owner’s claims. However, even if the owner did many of the repairs himself, as opposed to hiring an outside firm, his time had value. Moreover, it was not unreasonable to obtain professional assistance at a higher rate of pay in order to reconstruct the paperwork stolen during the burglary.id: 20337
The trial court did not abuse its discretion in awarding direct restitution to the murder victim’s parents for lost wages and milage while attending trial even though they did not testify at trial.Defendant argued the trial court abused it discretion in awarding direct victim restitution to the victim’s parents for lost wages, milage, and parking fees incurred while attending the 15 day murder trial. He claimed that because they did not testify at trial or otherwise assist the prosecution, the court’s award went beyond the language of the restitution statute and the intent of the Legislature in mandating direct victim restitution. However, it was reasonable for the parents to attend trial to seek closure and justice. They were not being opportunistic. The trial court did not err in awarding restitution for their expenses.id: 20502
The victim restitution order should have been reduced by money the victim received as settlement of the civil action against defendant and his employer.Defendant was convicted of drunk driving causing injury following an incident where he was driving his employer's vehicle. The victim restitution order must be offset by money the victim received from the employer's insurer to settle the personal injury civil action the victim filed against defendant and the employer. Defendant did not procure the insurance policy, his name was not listed on the policy and he did not pay the premiums. However, the terms of the policy covered defendant while he drove his employer's vehicle, and the insurance settlement listed defendant as being released from any claims connected with the collision that caused the victim's injuries.id: 20112
Court properly ordered restitution under section 1203.1 for medical bills incurred after police shot defendant with rubber bullets.Defendant argued the trial court improperly imposed over $6,000 in restitution for medical bills incurred after an officer shot him with rubber bullets. However, since the hospital bills were reasonably related to defendant's crime and were imposed for defendant's reformation and rehabilitation, the restitution was authorized under Penal Code section 1203.1.id: 16546
Direct restitution award to cover medical expenses was proper even though defendant was acquitted of attempted murder of these victims where he was also convicted of street terrorism.Defendant was ordered to pay direct restitution in excess of $65,000 for medical expenses incurred by the victims. He argued the award was unauthorized because he was acquitted of the crimes relating to these victims. However, the award was authorized because the losses were related to defendant's conviction for street terrorism.id: 19856
Juvenile was required to pay as restitution legal fees the victim incurred relating to economic damages.Minor admitted in juvenile court a hit and run with an injury allegation. The court ordered him to pay restitution for economic damages including lost income and medical bills. He later settled a personal injury lawsuit for $100,000. The attorney in the civil suit received about 30 percent of that amount. The victim then moved to increase the additional restitution. The minor is entitled to recover attorney fees incurred to collect restitution for his economic damages, but not his general damages. The matter was remanded to allow the trial court to determine the allocation, if any, of the settlement between economic losses and general damages.id: 20045
Restitution fine at $200 per year which could potentially exceed the $10,000 limit was unlawful.Defendant was sentenced to a term of 54 years-to-life in prison. The trial court erred in ordering a restitution fine in the amount of $200 per year since that fine could potentially exceed the $10,000 limit described in Penal Code section 1202.4.id: 19997
Owner's testimony as to the value of stolen property constitutes prima facie evidence of value for restitution purposes.Defendant challenged the restitution order in the amounts pertaining to the stolen jewelry. She argued the trial court erred in failing to itemize the component parts of each lump sum figure and in relying on the opinions of the victims to establish the value of the stolen items. However, the victim's testimony constituted substantial evidence of value, even though it was unsupported by receipts or appraisals, and lacked a detailed description of each piece of jewelry. It was up to defendant to obtain descriptions of the jewelry through cross-examination and to seek documentation necessary to challenge the proffered values.id: 20000
Penal code Section 1202.4 authorizes a court to require a convicted defendant to compensate the spouse of a deceased victim for future economic losses attributable to the victim's death.In a criminal proceeding, the sentencing court may order a defendant who has been convicted of a homicide crime to pay the deceased victim's surviving spouse, as direct restitution, a portion of th estimated income that the deceased victim would likely have earned.id: 19965
Remand was required to allow the trial court to clarify the amount of restitution due to the corporation where the embezzler's current and former spouses claimed community property interests in her assets.The "Freeze and Seize Law" (Penal Code section 186.11) is designed to provide restitution to white collar crime victims from assets under the convicted criminal's control. The victim argued the court erred in applying the "innocent spouse" exception by permitting the embezzler's former husband to retain his one-half community interest in the family residence and by permitting the embezzler's current husband to retain most of his community interest. A writ of mandate was issued to give the trial court the opportunity to clarify whether its distribution order accorded the corporation the full restitution to which it was entitled.id: 19979
The trial court did not err by ordering a section 1202.44 probation revocation restitution fine when imposition of sentence was suspended.Defendant argued the trial court erred when it ordered the Penal Code section 1202.44 fine because the statute provides for imposition of the fine only where a sentence is imposed, which she claims did not occur because she was placed on probation. However, the probation revocation restitution fine applied to a sentence where probation was imposed.id: 19980
The appropriate amount of restitution in a juvenile case was not limited by the replacement value of the stolen vehicle. Welfare and Institutions Code section 760.3 governs restitution in juvenile cases. It provides the value of stolen or damaged property is the cost of replacement or actual cost of repair. Under that provision the trial court has the discretion to order the greater amount, when the cost to repair the stolen or damaged property exceeds the replacement cost.id: 19645
$2,600 restitution fine did not violate the terms of the plea bargain where defendant was told there would be a fine and the amount was left to the court's discretion. The trial court imposed a $2,600 restitution fine which had not been mentioned by the prosecutor when he cited the plea agreement. Imposition of the fine did not violate the plea
bargain where the trial court told defendant before taking the plea that there would be a restitution fine and the record shows the parties intended to leave the amount to the court's discretion.id: 19596
The victim's acceptance of payment from a mother's insurer may release the mother from vicarious liability for damages caused by her son.The acceptance by the victim of a payment from the mother's insurer in full release of all claims against the mother and
son precludes any Welfare and Institutions Code section 730.7 restitution liability on the part of the mother. The state's interest in the rehabilitation of juvenile offenders is not implicated by a release of vicarious liability against an otherwise innocent parent.id: 19472
Trial court retained jurisdiction to determine the amount of restitution where defendant fully served her sentence before the hearing. At sentencing the trial court ordered defendant to pay victim restitution but did not fix an amount. Rather, the amount was to
be determined at a subsequent hearing. Defendant later claimed the trial court lost jurisdiction to order restitution because she fully served her sentence before the final restitution hearing was held. However, the court retained jurisdiction to determine the amount of restitution in this circumstance.id: 19414
Defendant waived the right to challenge the restitution order on appeal by failing to challenge it at sentencing and stipulating to the amount.Defendant was convicted of appropriating public funds under Penal Code section 1424. He argued the court erred in
imposing an $8,500 restitution order. However, defendant waived the right to challenge the restitution order on appeal by failing to object earlier and stipulating to the amount. Moreover, the order was not an "authorized sentence" where the evidence showed the city lost more than $13,000.id: 19237
Restitution was proper following the felony hit and run where the injury was a result of the crime.Defendant pled guilty to felony hit and run under Vehicle Code section 20001, subd.(a), along with an allegation that the accident resulted in death. He argued the court erred in ordering restitution which is limited to losses incurred as a result of the commission of the crime, and the economic loss to the victim's family was caused by the accident, not the criminal conduct in leaving the scene of the accident. However, because an element of felony hit and run is the defendant's involvement in the accident, restitution was proper because the loss was incurred as a result of the crime.id: 18915
Five separate restitution fines were appropriate after the guilty plea where defendant's cases were never consolidated.The defendant pled guilty to nine separate charges scattered across five different cases in exchange for the dismissal of other counts. He argued the court's imposition of five separate restitution fines under Penal Code section 1202.4 was inappropriate. However, there was no error where defendant's cases were never consolidated, the abstracts and minute orders continued to reflect separate case numbers, and the total restitution fine did not exceed the $10,000 limit. Moreover, defendant was subject to a $20 court security fine under Penal Code section 1468.5, for each of his convictions.id: 18770
The trial court did not err by ordering defendant to pay the decedent's wife restitution based upon lost future earnings.At a restitution hearing following a guilty plea to drunk driving causing death, the trial court ordered defendant, pursuant to Penal Code section 1203.4, to pay $167,000 restitution to the wife of the decedent. Defendant argued the order violated his plea agreement, and that the Penal Code authorizes no direct restitution to the surviving spouse of a deceased victim based upon his future earnings. However, the trial court was obligated to and properly ordered defendant to pay restitution to the victim's wife.
id: 18774
Juvenile was required to pay victim restitution even though the insurer of the owner of the car he was driving had already fully compensated the victim.Minor drove a car belonging to his friend's mother, Cardenas, and caused an accident. He argued the victim restitution order was improper since Cardenas' insurance company fully compensated the victim who signed a release of liability. However, because the settlement payment by Cardenas' insurer to the victim was a payment from a source completely dependent from the minor, it did not constitute "restitution directly from" the minor within the meaning of Welfare and Institution's Code section 730.6, subd.(a)(1), and thus did not relieve him of his victim restitution obligations under that statute.id: 18726
Restitution to the bank was proper following the commercial burglary conviction even though the FDIC reimbursed the victim for his loss.Defendant was convicted of commercial burglary after removing $15,000 from a joint bank account of which the victim was unaware. The FDIC reimbursed the victim for his loss. Defendant argued the court erred by ordering defendant to pay $10,000 in restitution. However, the bank suffered a loss which was documented in its restitution claim form and letter. Moreover, the bank can be a direct victim under Penal Code section 1202.4 because it did not act as an indemnitor, was an object of the crime, and defendant pled guilty to commercial burglary.id: 18714
When calculating restitution for food stamp over-issuance the court should rely solely on defendant's income from employment during the relevant time period.Restitution order for over-issuance of food stamps should be set by calculating the amount of food stamps that would have been issued to defendant had no fraud occurred. The prosecution argued that in determining that amount, the court should look to the total amount of income the defendant received during the relevant time period - including both the unreported income from employment and the actual amount of cash paid out. The court rejected this formula and found that in calculating the correct amount, the court should rely solely on defendant's income from employment during the relevant time period.id: 18554
The trial court did not err by ordering restitution for the cost of Hmong healing ceremonies.Restitution to victims of a fight may include the cost of Traditional Hmong healing ceremonies and herbal medicines.id: 18570
Trial court did not err in imposing three restitution fines in consolidated cases disposed of at a single sentencing hearing.Defendant argued that because the three cases ended with a comprehensive plea agreement at a single sentencing hearing, the trial court erred by imposing three separate restitution fines under Penal Code section 1202.4. However, nothing prohibits multiple restitution fines in consolidated cases disposed of at a single sentencing. Moreover, there was no prejudice to defendant where the total fine did not exceed $1,000.id: 18498
The court properly ordered restitution for the stolen cattle even though they were returned since they were older when returned and likely bore calves while they were missing.Defendant was convicted of stealing cattle. The court did not err in ordering restitution even though the cows were returned since there was evidence the owners did not receive the "same" cattle back - that is the cows were a couple of years older when they were returned. Moreover, evidence supported the finding that the stolen cattle bore calves each year while they were in defendant's possession. Finally, the court did not err in quadrupling the restitution amount under Food and Agriculture Code section 21855, since it only quadrupled the amount for the value of the cattle during the first year they were missing and on defendant's property.id: 18343
The trial court did not err in denying restitution to the public agencies for their investigative costs.Public agencies are not directly "victimized" for purposes of restitution under Penal Code section 1202.4 merely because they spent money to investigate crimes or apprehend criminals. However, even though the investigative costs were not recoverable as restitution under section 1202.4, the costs were nevertheless recoverable under the more specific mandate of Business and Professions Code section 12015.5.id: 18247
The $1200 restitution fine did not violate the plea bargain since defendant was advised there would be a fine but the amount was not specified.Following a no contest plea, the court ordered defendant to pay a $1200 restitution fine. Defendant argued the fine was not part of the plea bargain, and asked that the amount be reduced to the statutory minimum. However, there was no violation of the plea bargain where, as here, the court properly advised defendant of the restitution fine prior to accepting his plea. The fine was within defendant's "contemplation and knowledge" when he entered the plea even though the precise amount of the fine was never specified.id: 18188
The restitution order that was made when defendant was placed on probation was not terminated upon revocation of probation.After revoking his probation, the trial court sentenced defendant to the 2 year prison term previously imposed and stayed, and set the amount of restitution at $9,000. The restitution order was initially made when defendant was placed on probation. He argued the restitution order did not survive the probation revocation. However, having voluntarily agreed to the terms of probation, a defendant cannot use his own breach of those terms as a basis for evading the properly imposed restitution obligation he assumed.id: 18190
The trial court did not err by ordering defendant to pay restitution for the psychological counseling expenses incurred by the victim's brother.Defendant was convicted of sexually molesting a child. The victim's brother received psychological counseling because of emotional damage he suffered as a result of the crime. The brother was a victim of the crime under Penal Code section 1202.4, subd.(k), and the trial court may properly order defendant to pay restitution to the agency that provided counseling to the brother.id: 18114
Imposition of the restitution fines pursuant to the statutory formula did not violate the plea agreement.Before entering his no contest pleas defendant acknowledged that the court "must impose a restitution fine of between $200 and $10,000." At sentencing, without objection, the court imposed restitution fines of $6,800 as calculated in the probation report. Defendant argued the imposition of a restitution fine is a punishment which must be part of a plea bargain. He claimed the failure to include the discretionary fines in the plea bargain required that the fines be reduced to the statutory minimum of $200. However, it appears the parties at least implicitly agreed that additional punishment in the form of fines would be left to the court's discretion. Defendant did not show the imposition of the fines pursuant to the statutory formula violated his plea agreement.id: 18130
Juvenile court did not abuse its discretion in finding the fire department was a direct victim of the minor's arson which required firefighting protection.The minor was found to have committed an arson. He argued the juvenile court imposed an unauthorized restitution order to the Fire Department because the firefighters were not direct victims of the property damage and did not suffer any economic loss in putting out the fire. However, given a fire department's responsibilities, the juvenile court could reasonably find it was a direct victim of the minor's burning of a vacant lot requiring firefighting protection.id: 17970
Juvenile court did not err by failing to identify losses or specify their amount in the court's restitution order.The juvenile court had authority (under Welfare and Institution's Code section 730.6, subd.(h)) to direct the probation officer to determine the amount of the restitution orders. Accordingly, the court did not err by ordering as a condition of the minor's probation, that she "make reparation on all related losses as determined by the probation officer..." and did not err by failing, at the time of the disposition, to identify the losses to which the restitution order pertained, or to specify the amount of restitution due.id: 17730
Defendant's victim restitution obligation is not offset by payments from victim's insurance carrier or defendant's mother's insurer.A defendant's restitution obligation under Penal Code section 1202.4 may not be offset by payments made to the victim by the victim's insurance carrier, or payments made to the victim by the insurer of defendant's mother to settle the victim's civil action against the mother and defendant.id: 17683
The failure to advise defendant about the direct restitution which was not part of the plea agreement was harmless where he had been advised of the possibility of a restitution fine. Defendant argued the trial court abused its discretion in ordering direct victim restitution where it was not part of the plea agreement and he was not advised it would be a consequence of his plea. Initially, defendant did not waive the issue by failing to raise it at sentencing where the court immediately imposed the sentence without providing the necessary advisement. However, defendant suffered no prejudice by the insignificant deviation from the plea bargain where he had been advised of the possibility of a restitution fine, rather than direct restitution, and it could not have mattered to him whether he paid restitution to the victim or the state.id: 17552
Department of Toxic Substances Control is a victim for restitution purposes.Defendant was convicted of attempting to manufacture a controlled substance and ordered to pay a restitution fine to the Department of Toxic Substances Control. Contrary to defendant's claim, the Department of Toxic Substances Control is a victim within the meaning of Penal Code section 1202.4, subd.(f). The $5,402 fine represented the amount incurred by the department in cleaning up defendant's lab site. The restitution order was proper. id: 17441
$25,000 restitution award for attorney fees from the victim's personal injury case was proper even though it referred to noneconomic damages since the portion attributable to economic damages exceeded $25,000.Defendant was convicted of drunk driving causing an injury. The court granted probation and ordered him to pay victim restitution including $25,000 in attorney fees the victim incurred in his personal injury action against the defendant for economic and noneconomic damages sustained as a result of the incident. Defendant argued the award was improper because a portion of it reflected attorney services incurred to recover noneconomic damages. However, while Penal Code section 1202.4, subd.(f)(3) allows restitution only for that portion of attorney fees attributable to the victim's recovery of economic damages, the record showed the $25,000 award reflected fees incurred to recover economic damages and the amount was reasonable.id: 17394
Embezzlement victim's attorney fees and private investigator fees were properly included in the restitution order.Defendant was convicted of embezzlement. On appeal, he challenged the restitution order, which represented attorney fees and private investigator fees. Contrary to defendant's claim, the victim was not required to have used the public prosecutors and investigative agencies to recover the embezzled funds, rather than bringing a civil action. Moreover, the restitution award was not outside the scope of Penal Code section 1202.4.id: 17299
Trial court may order restitution payment following an affirmance on appeal even though the original sentence made no provision for direct restitution.The trial court, after a criminal judgment has been entered and affirmed on appeal, may order the defendant to reimburse the state for restitution payments it made to the victim's family, even though the original sentence had neglected to make any provision for direct restitution. The court's order was authorized by the second part of Penal Code section 1202.46.id: 17300
Section 1202.45 requires a restitution fine when a prison sentence is imposed but its execution is suspended. When a prison sentence has been imposed, and only the execution of sentence has been suspended, Penal Code section 1202.45 requires imposition of a restitution fine, which then shall be suspended unless the person's parole is revoked.id: 16971
Payment to the victim by defendant's insurance carrier qualifies for restitution purposes but the victim's written "release" of defendant and his insurer did not satisfy the obligation.The victim's written release of defendant and his insurance carrier did not bar defendant's restitution obligation. Because the trial court's determination that defendant satisfied his obligation was based on the mistaken legal conclusion that the release barred further restitution, it failed to exercise its discretion, as it must do. On remand, the court must hold a hearing to determine the appropriate amount of restitution due, if any, to the victim. The court must then offset against defendant's restitution obligation monies paid to the victim by defendant's insurance company for losses subject to the restitution order.id: 16973
Labor costs to repair damage to school property qualified as "economic losses" under section 730.6.The minor was required to pay restitution to the school district following damage to school property. The order included labor costs for salaried employees who repaired the damage. These costs were properly included as "economic losses" under Welfare and Institutions Code section 730.6.id: 16956
A section 1202.45 parole revocation fine need not be imposed at the same time as a section 1202.4 restitution fine.Defendant argued that under Penal Code section 1202.45 a parole revocation fine may not be imposed at the time of sentencing where imposition of sentence was suspended at conviction and the parole revocation fine was not imposed at the same time as the mandatory restitution fine under section 1202.4. However, contrary to defendant's claim, a section 1202.45 parole revocation fine need not be imposed at the same time as a section 1202.4 restitution fine.id: 16893
The court erred in failing to order restitution in an amount necessary to fully reimburse the minor's victims without regard to the victims' reimbursement from an insurance company.Welfare and Institutions Code section 730.6 requires that a minor pay restitution to the victim for economic loss caused by the minor's conduct. The provision requires restitution in an amount sufficient to "fully reimburse" the victims without regard to potential third party reimbursement. Moreover, the sentencing court itself, is required to evaluate the evidence and resolve the issue of the proper amount of restitution.id: 16876
The court did not abuse its discretion in awarding restitution for the cost of relocating the victim to another residence after she was violently sexually assaulted in her mobile home.Defendant pled guilty to rape and burglary charges. He argued the trial court improperly ordered direct restitution to the victim for the difference between the cost of purchasing a new trailer and the sale of her former mobile home. Based on the provisions of Penal Code section 1202.4, subds.(f) and (f)(3)(l), the court did not abuse its discretion in awarding restitution for the cost of relocating the victim after she was violently sexually assaulted in her mobile home.id: 16749
Monetary credit from excess presentence custody credits must be allocated proportionally to the base fine, penalty assessments and restitution fine.The court addressed the issue of how to allocate the monetary credit resulting from excess presentence custody credit to a base fine, penalty assessments and a restitution fine. The court concluded the monetary credit must be applied on a proportional basis. In other words, each dollar of monetary credit must be used proportionally to reduce the base fine, penalty assessments and restitution fine rather than any one of those categories alone. Thus, if the monetary credit does not eliminate all amounts due, the defendant still owes the remaining amount in each category.id: 16719
Section 704.090 does not prohibit deductions from an inmate's trust account deposits to pay a restitution fine.Pursuant to Penal Code section 2085.5, subdivisions (a) and (c), the California Department of Corrections began to collect defendant's restitution fine by deducting 22 percent from his trust account deposits and/or wages - 20 percent for the fine and 2 percent for administrative costs. Defendant argued the deductions were improper because Code of Civil Procedure section 704.090 provides that an inmate's money held in trust is exempt from the enforcement of money judgments in the amount of $1,000 prior to January 1997 and $300 thereafter. However, section 704.090 provides an exemption for funds held in an inmate's deposit account. It does not apply to trust account deposits or give an inmate the unfettered right to deposit or build up his or her account to the amount of the exemption.id: 16137
Sentencing court erred in failing to impose parole revocation fine, and state and county penalty assessments.The sentencing court commits jurisdictional error when it fails to impose a parole revocation fine (Penal Code section 1202.45) and the requisite state and county penalty assessments (Penal Code section 1202.4, subdivision (a)(2) and Government Code section 76000). The abstract of judgment must reflect the imposition of these mandatory matters.id: 16138
The trial court erred in reducing the restitution award based on the defendant's inability to pay.Defendant pled guilty to several counts of failing to report and remit state sales and unemployment insurance taxes. Pursuant to Penal Code section 1202.4, the court ordered him to pay in excess of one million dollars in restitution. At a subsequent hearing the court, sua sponte, reduced the award to $150,000. The court, in reducing the award, committed a demonstrable error of law because it based its order on defendant's inability to pay, in violation of section 1202.4, subdivision (g). Moreover, the court's order was an abuse of discretion because the circumstances, while compelling to the trial court, were not extraordinary.id: 16142
There is no legal difference between a restitution order and a confession of judgment for the purpose of restitution.Defendant was convicted of eight counts of insurance fraud. He challenged the probation condition requiring him to sign a confession of judgment in favor of Cigna in the amount of its investigation costs. He argued that method of enforcing the restitution was improper because it was a civil, rather than a criminal, remedy. However, there is no practical or legal difference between a restitution order and a confession of judgment for the purpose of restitution.id: 16144
Trial court did not err in failing to impose state and county penalty assessments in connection with the imposition of direct victim restitution.The trial court did not err by failing to impose state and county penalty assessments in connection with the award of direct restitution pursuant to Penal Code section 1464 and Government Code section 76000. The penalties under these provisions are to be collected in the same manner as the other fines and penalties imposed and collected by the courts. However, direct victim restitution is not collected by the court.id: 16145
Trial court was not required to offset the amount of direct victim restitution against the restitution fine.The trial court imposed restitution fines as to the defendants of $20,000, and $10,000 respectively. The court further ordered direct victim restitution of $7,663 as to each defendant. As to the first defendant, the court erred in imposing a restitution fine in excess of $10,000. Next, the trial court was not required to offset the amount of direct victim restitution against the restitution fine. Finally, the court was authorized to order the direct restitution be paid by both defendants jointly and severally.id: 16147
Victim restitution may be determined by an administrative agency after the sentencing hearing if the amount of loss cannot be determined at that time.When the amount of loss cannot be ascertained at the time of sentencing, the trial court may order the defendant to pay restitution in an amount to be determined by the agency that administers the victim restitution program. If the defendant disputes the agency's determination, he or she may obtain judicial review of that determination pursuant to Penal Code section 1202.4, subdivision (f)(1).id: 16148
Where a trial court imposes a section 1202.4 fine, its omission of a parole revocation fine under section 1202.45 results in an unauthorized sentence which may be addressed for the first time on appeal.Where the trial court imposed a mandatory Penal Code section 1202.4, subd.(b) restitution fine but failed to impose a mandatory section 1202.45 parole revocation fine, the judgment must be amended to impose the latter. The prosecution did not waive the issue by failing to raise it in the trial court.id: 16149
A defendant does not have the right to call the victim's psychotherapist at a restitution hearing.At a hearing to determine the amount of restitution owed to the victim, the defendant does not have a constitutional right to call and cross-examine the psychotherapist who provides counseling to the victim. Moreover, the psychotherapist's earlier statements established the counseling was directly related to the domestic violence crime.id: 16125
A restitution fine imposed at the time probation is granted survives the revocation of probation.The trial court granted a $200 restitution fine when it granted the defendant probation, but it also imposed a $500 fine later when defendants probation was revoked. Since the first restitution fine survived the revocation of probation, the second restitution fine was unauthorized.id: 16127
A restitution fine under section 1202.45 is required when the defendant is fined under section 1202.4.When the sentencing court imposes a restitution fine under Penal Code section 1202.4, subdivision (b), the court must also impose an additional fine in the same amount under section 1202.45. The additional fine is to be suspended unless the person's parole is revoked.id: 16128
Court did not err in ordering victim restitution for medical expenses which had already been paid by Medi-Care and/or Medi-Cal.The trial court did not err in ordering victim restitution in the full amount of the economic loss (in this case medical expenses) caused by defendant's criminal conduct, even though the victim had no actual losses because his medical expenses were paid by Medi-Care and/or Medi-Cal benefits.id: 16130
Defendant was not entitled to expungement where she failed to pay the full amount of restitution.Defendant argued the court was required to grant her expungement petition, despite her failure to pay the full amount of restitution, because she complied with the terms of her probation by making all court-ordered payments prior to termination. She claimed her compliance was established by the court's earlier finding she had done nothing to warrant renovation of her probation. However, for purposes of Penal Code section 1203.4, a defendant has not fulfilled a restitution condition of probation unless he or she has made all court-ordered payments for the entire period of probation and has paid his or her obligation in full. Here, defendant satisfied the first requirement but not the second. Therefore, she was not entitled to have her grand theft conviction expunged.id: 16131
Restitution order including victim's attorney's fees in the civil suit was upheld where defendant failed to demonstrate the amount requested was unreasonable.Defendant was ordered to pay direct victim restitution as a condition of probation. The amount included attorney's fees incurred by the victim to secure a civil settlement from defendant's insurance carrier. The probation report recommended payment of $7,000 for attorney's fees, and it was up to defendant to demonstrate the amount was unreasonable. Because defendant presented no information about the work actually performed in the matter, the judgment was affirmed.id: 16135
Superior Court clerk must include a restitution fine and other orders in the abstract of judgment.A judgment includes a fine. The Legislature intended that the abstract of judgment summarize the judgment. Hence the abstract of judgment should identify the amount of the restitution fine. In addition, the court's mandatory order regarding DNA testing must also be reflected in the abstract of judgment.id: 15861
The erroneous imposition of a parole revocation fine in violation of section 1202.45 is correctable despite the prosecution's failure to object.The trial court imposed a $5,000 restitution fine but only imposed and suspended a $200 parole revocation fine in violation of Penal Code section 1202.45. Where the trial court imposes a restitution fine but omits or imposes an erroneous parole revocation fine, appellate courts may correct the error though the prosecution failed to object at sentencing.id: 15050
The trial court did not err in ordering direct restitution to insurance companies since the staged accident scheme was intended to victimize the insurance companies.Defendant was convicted of participation in a scheme where he caused collisions with unsuspecting motorists for the purpose of submitting false injury claims to the insurance companies. The trial court did not err in ordering direct restitution to the insurance companies. Defendant argued the victims were the insured motorists, not their insurance providers. However, this was not a situation where the insurance company reimbursed its insureds for their losses. Instead, the objective of the present scheme was to victimize the insurance companies by inducing them to settle false claims. The order of direct restitution was proper.id: 15051
When a prison sentence including a period of parole has been imposed and only the execution has been suspended, the parole revocation restitution fine may be imposed.Defendant argued the parole revocation restitution fine under Penal Code section 1202.45 did not apply because he was granted probation, which does not include a period of parole. However, defendant was sentenced to four years in prison, and the court advised him that he would be on parole for three years following release from prison. The fact that execution of sentence was suspended did not negate the fact that defendant's sentence, if ultimately executed, includes a period of parole. The result would be different where probation is granted upon suspension of <U>imposition</U> of sentence, for in that situation the defendant has not been sentenced to a prison term.id: 15072
Worker's comp carrier was a direct victim of the fraud and restitution order was proper.Defendant was convicted of making fraudulent statements for the purpose of obtaining worker's compensation benefits. (Insurance Code section 1871.4) She was ordered to pay direct restitution to Fireman's Fund Insurance Company as a condition of probation. She argued that a worker's compensation carrier is not a direct victim of the offense within the meaning of Penal Code section 1202.4. However, unlike the usual liability insurance situation where the insurer reimburses the employer for crime losses, the worker's compensation insurer suffered losses for payments made to defendant directly as a result of the fraud. The restitution order was proper.id: 15073
Court-ordered victim restitution imposed for the first time at a resentencing following appeal is not punishment for double jeopardy purposes.In <i>People v Hanson</i> (2000) 23 Cal.4th 355, the California Supreme Court held that double jeopardy provisions of the state constitution prohibited a trial court from increasing a statutorily mandated restitution fine following retrial after appeal. The same result does not apply to direct restitution to victims of the crime. The court-ordered victim restitution imposed for the first time at a resentencing following appeal is not punishment and is therefore not constitutionally barred.id: 14982
The court, and not the probation officer, shall determine the amount and manner of restitution.The juvenile court improperly delegated the task of determining the amount of restitution to the probation officer. This is a matter for the court to decide unless the minor consents to the delegation to the probation officer. Nothing in the instant record suggested the minor ever consented to such an arrangement.id: 13491
The court did not err in imposing a $10,000 restitution fine despite its finding defendant lacked the ability to pay appointed counsel costs.The probation report recommended a restitution fine in the amount of $10,000. The trial court followed the recommendation. Defendant did not object to the amount and did not request a hearing on his ability to pay. The court also found defendant was unable to reimburse the county for court-appointed counsel. Defendant argued the $10,000 fine was enormous in light of this holding. However, defendant's failure to object constituted a waiver of the argument. Moreover, a defendant may lack the ability to reimburse the county for his lawyer and yet have the ability to pay a restitution fine.id: 13492
The court erred in failing to conduct a hearing on the amount of restitution to be paid to the victim's widow.The sentencing court ordered defendant to make restitution to the victim's widow for her out-of-pocket expenses relating to the victim's medical treatment and funeral. However, the court erred in failing to determine the amount of the restitution after a hearing pursuant to Government Code section 13967, subdivision (c). The matter was remanded.id: 13494
Trial court did not err in conditioning probation on payment of restitution to an insurance company.Defendant pled guilty to one count of burglary. The trial court did not err in conditioning defendant's probation on payment of restitution to the insurance company that compensated the victim. Moreover, the court did not err in ordering the $25 a month restitution payment without holding a hearing and determining defendant's ability to pay. $25 a month is a nominal amount and the record did not reflect any physical limitation preventing defendant from obtaining employment.id: 13498
Trial court did not err in making defendant jointly and severally liable for restitution.The trial court did not err in making defendant and his codefendant jointly and severally liable for the $300,00.00 in direct restitution. Joint and several liability is consistent with the defendant's obligation to reimburse the victim for his or her losses and increases the likelihood that the victim will be fully compensated. Moreover, Government Code section 13967 provides a defendant with notice and an opportunity to contest the joint and several order. The court therefore has an opportunity to determine the merits of such an order in the particular circumstances of the case.id: 13499
Trial court did not err in imposing a $5,000 restitution fine without discussing defendant's ability to pay on the record.The trial court imposed a restitution fine of $5,000 pursuant to Government Code section 13967, subdivision (a). The record did not reflect that the court gave any consideration to defendant's ability to pay the fine. However, a court need not give an explanation regarding the ability to pay a fine. The statute affords defendants a right to a hearing on the issue but does not require one. Defendant did not request a hearing on the issue but tacitly submitted that question on the probation report, which recommended a $5,000 fine. There was no error and any objection was waived.id: 13500
Trial court did not err in awarding interest on restitution to embezzlement victim.Defendant pled guilty to one count of embezzlement. She argued the trial court erred in awarding interest on victim restitution. However, the purpose of Penal Code sections 1203.1 and 1203.04 is to require restitution orders to compensate victims for actual losses. In a typical embezzlement case the loss of use of embezzled funds is an actual loss included within the statutory term profits lost.id: 13501
Trial court properly ordered joint and several liability for all defendants convicted of improper disposal of chemicals used to manufacture controlled substances.Defendants pled guilty to violating the law regulating the disposal of hazardous waste in the manufacture of controlled substances. (Health and Safety Code section 11374.5.) Defendants argued the extent of their financial responsibility for the $12,464 penalty should vary according to their particular culpability. However, the trial court correctly ordered joint and several liability. Moreover, the court properly imposed joint and several liability for restitution pursuant to Penal Code section 1202.4, subdivision (f).id: 13502
Trial court was not required to make an express finding on defendant's ability to pay the restitution fine under section 1202.4.At sentencing the trial court imposed a $1,000 restitution fine pursuant to Penal Code section 1202.4. He argued the court erred in failing to make an express finding that he had the ability to pay and that evidence was insufficient to support such a finding. While defendant's ability to pay is a factor bearing on the amount of the fine, the court was not required to make a finding on the issue. Moreover, the record need not contain substantial evidence of defendant's ability to pay.id: 13503
Under section 13967 restitution is required in a criminal case in which a defendant is denied probation and in which the victim has suffered economic loss irrespective of whether the victim suffered physical injury.Defendant argued that a person convicted of a crime and denied probation may be ordered to pay restitution only when the criminal act caused physical injury to the crime victim. He claimed that no restitution is permitted when the loss to the crime victim is purely economic. However, the Legislature intended the word victim as used in Government Code section 13967, subdivision (c), to include anyone who has not suffered physical injury but has sustained economic loss resulting from a defendant's criminal acts.id: 13505
Victim was not required to file an auto insurance claim before collecting restitution.Defendant argued the restitution award must be reduced by the money the victim could have collected from his auto insurance company if he had filed an insurance claim for the damage to the stolen car. However, there is no affirmative duty on the part of the victim to exhaust all possible sources of reimbursement before claiming restitution. The only limitation on recovery is that the victim cannot obtain double reimbursement.id: 13506
Joint and several orders for payment of restitution made pursuant to Government Code section 13967, subdivision (c) are permissible.A sentencing court may properly order a defendant committed to prison to pay the full amount of restitution, rather than an apportioned share, under circumstances where his codefendant has been ordered to reimburse for the same loss. Joint and several orders for payment of restitution made pursuant to Government Code section 13967, subdivision (c) are permissible.id: 13466
Non-profit trade association was entitled to restitution for economic loss under Penal Code section 1202.4.Defendant was convicted of possession of counterfeit tapes for sale. The trial court properly found a non-profit trade association (The Association of Latin American Record Manufacturers) stood in the shoes of the direct victims of defendant's crime and was entitled to restitution for economic loss incurred as a result of defendant's criminal conduct. Moreover, the award was rationally calculated and based on substantial evidence including lost sales and out-of-pocket investigation expenses resulting in lost profits or wages.id: 13470
Order of joint and several liability for restitution was proper where the evidence did not show that either minor was more responsible than the other.Minor appellant argued the court erred by ordering that his liability for restitution be joint and several with that of his confederate in the burglary. However, there was no evidence that either juvenile was more responsible than the other for the loss of the vehicle's contents. The record therefore supported the court's determination that appellant should be responsible for the entire amount and may pay less if his partner also makes payment.id: 13471
Ordering repayment of victims based on crimes for which defendant was not charged was proper to rehabilitate the defendant.Defendant challenged the restitution payment as a probation condition where he was ordered to repay San Diego Gas and Electric on the basis of crimes for which he was not tried or convicted. However, the evidence showed he had been tampering with SDG&E's meters since 1982 and fraudulently obtaining gas and electricity each month. Thus, the restitution order served the purpose of rehabilitating the defendant pursuant to Penal Code section 1203.1.id: 13473
Record supported the implied finding the defendant with a wrist injury and a record of sporadic employment as a mechanic was able to pay the $4,000 restitution fine.The record supported the implied finding of an ability to pay the $4,000 restitution fine. Defendant had been periodically employed as a mechanic and the court was entitled to infer his unemployment at the time of arrest arose from a lifestyle choice. While defendant received a wrist injury requiring surgery as a result of his being handcuffed, the record did not show the injury disabled him from employment before or after surgery.id: 13475
Restitution made directly to victim in lieu of restitution fine may exceed $10,000.00.A restitution fine pursuant to Government Code section 13967, subdivision (a) may be imposed (with a $10,000.00 limit), but the in lieu of language in subdivision (c) requires that if restitution to the victim is to be paid, the maximum restitution fine that can be imposed is not $10,000.00, but $10,000.00 less the amount of restitution to the victim. A credit toward the maximum restitution fine allowable must be given for that amount of direct restitution to be paid to the victim. Therefore, if a defendant must pay $5,000.00 to the victim, a restitution fine may not exceed $5,000.00.id: 13477
Restitution order is not precluded by bankruptcy law.A state court can order the defendant in a criminal case to pay restitution to a victim whose civil claim against the defendant for the damage covered by the restitution order has been discharged in bankruptcy. Because a restitution order serves the purpose of punishment, deterrence and rehabilitation, rather than the forced payment of a discharged debt, it is not precluded by bankruptcy law.id: 13479
Restitution order was proper for securities violation notwithstanding that the fraudulent behavior of a third party may have contributed to the victim's losses.Defendant was convicted of using false statements in the sale of securities. He argued the court's restitution order was improper since the proximate cause of the victim's losses was the fraudulent scheme of a third party. However, the order was proper since defendant was convicted of a strict liability offense and there was a direct relationship between the victim's losses and defendant's conduct.id: 13482
Restitution order was proper despite the fact that the victim's loss had been discharged in bankruptcy.Defendant argued the trial court erred in awarding $15,950 in restitution to the victim for a diamond necklace, because the victim's loss, (the amount he owed on the necklace) had been discharged in bankruptcy. Therefore, defendant argued, there was no loss and the award should be reduced in accordance with Penal Code section 1202.4 or section 1202.04. However, the restitution order violated neither former section 1202.04, nor former section 1202.4. The victim was not necessarily made whole merely because he was obliged to file for bankruptcy. Moreover, defendant would receive a windfall if he was relieved of the obligation to pay for the necklace.id: 13483
Section 13967, subdivision (c) permits recovery for profits lost due to time spent appearing in court as a witness.Defendant was convicted of the robbery of the victim's store and sentenced to prison. He argued the trial court erred in permitting the victim to recover (as part of the restitution award under Government Code section 13967, subdivision (c)) the amount of losses she incurred in closing her business so that she could testify in court. However, the money lost while acting as a witness is recoverable under section 13967, subdivision (c).id: 13486
So long as defendant is not imprisoned due to his inability to pay restitution the failure to consider ability to pay did not violate equal protection.Defendant argued the court ordered restitution without considering his ability to pay and the failure to make an express finding of his ability to pay violated the equal protection clause. However, so long as defendant is not imprisoned due to his inability to pay San Diego Gas and Electric, the restitution order did not violate equal protection.id: 13488
Statements by the victims' mothers at sentencing pursuant to Penal Code section 1191.1 did not impair the right to a fundamentally fair hearing.Defendant pled guilty to two counts of child molestation. At sentencing the mothers of the two victims spoke in favor of imprisonment. Because the statements were made at sentencing rather than trial, the right to confrontation was not implicated.id: 13489
Court erred in failing to order direct victim restitution where probation was denied and victim suffered economic loss.Defendant pled guilty to robbery and was denied probation. The victim was a victim pursuant to Government Code section 13967, subdivision (c), where she suffered economic loss without physical injury. Moreover, the victim restitution is mandatory and the court lacked discretion to impose a restitution fine in lieu of direct restitution. That the plea agreement was silent as to direct restitution did not matter since such restitution is the victim's constitutional right and cannot be the subject of plea negotiations. While the instant court erred in failing to advise defendant that direct victim restitution would be a consequence of his plea, and failed to order direct restitution, both errors can be corrected on remand.id: 13435
Court has discretion to order restitution to the owner of a parked car struck by defendant.Defendant was convicted of hit-and-run driving in violation of Vehicle Code section 20002, subdivision (a). The trial court did not err in ordering restitution to the owner of the parked car struck by defendant as a condition of probation.id: 13437
Court may consider defendant's future ability to pay restitution fine including prison wages.In imposing restitution fine, the trial court must consider a defendant's ability to pay. However, the trial court is not limited to a consideration of defendant's present ability to pay but may consider defendant's ability to pay in the future. The trial court properly found defendant's fine could be paid out of future prison wages pursuant to Penal Code section 2085.5.id: 13438
Court may look to future earnings in determining whether defendant has the ability to pay a restitution fine.Government Code section 13967, subdivision (a) requires a finding, express or implied, that a defendant is able to pay before imposing a restitution fine in any amount. A defendant does not waive the right to challenge on appeal the findings of ability to pay restitution fines based upon his or her silence in the lower court. Evidence supported the court's implied finding that defendant was able to pay the $200 given defendant's future earning capacity. Although defendant has experienced health problems there was no evidence that he was physically or mentally unable to support himself through legitimate employment.id: 13439
Court may look to future prison wages as well as the possibility of employment upon release from prison in making an ability to pay restitution determination.In making an ability to pay restitution determination the court may consider a defendant's future prison wages in their entirety as well as the possibility of employment upon defendant's release from prison. This will not deprive inmates of all incentive to become part of the prison work force. The lure of early release will be incentive enough.id: 13440
Court was not required to hold a hearing before releasing the seized money to the victim.Defendant was convicted of auto theft and the court ordered him to pay restitution to the victim. Defendant argued the court erred in ordering the victim be given the $1,100.00 seized from defendant without holding a hearing on whether this money belonged to the victim. However, the court had already entered a valid restitution order as part of the negotiated plea. There was no question that the victim was entitled to the money and it was unnecessary to prove that the money seized from defendant actually belonged to the victim.id: 13442
Defendant cannot object for the first time on appeal to the imposition of a restitution fine on the grounds of an inability to pay.Defendant had opportunities both at the time of the plea and at sentencing to challenge the restitution fine on the grounds of an inability to pay. His failure to do so precluded review of the issue on appeal.id: 13443
Defendant failed to challenge the arbitrary method used by SDG&E to calculate the amount of gas stolen by defendant.Defendant argued the restitution amount was based on inaccurate information because of the imprecise method San Diego Gas and Electric (SDG&E) used to estimate how much gas and electricity he stole. However, SDG&E's estimate was based on a reasonable calculation and defendant had ample opportunity to present evidence discrediting the estimate, though he made no effort to do so.id: 13444
Defendant failed to show any impropriety in the child molest victim's sentence recommendations.Defendant argued the child molest victims should not have been allowed to recommend at the sentencing hearing that defendant be sentenced to a 21 year prison term, because pursuant to Penal Code section 1191.1, victims may express their views concerning the crime, but the sentence recommendation was impermissible. However, the victims' comments that defendant should received the maximum term so that he would not be able to hurt other little girls could reasonably be construed as a summary of their views concerning the crime. Even if the comments did not fall within the ambit of allowable comments under the provision any error was harmless as defendant failed to present evidence to show the sentence would have been more lenient absent the children's statements.id: 13445
Defendant may be required to pay as restitution the appreciated value of the assets he embezzled from trust accounts.Pursuant to former Penal Code section 1203.04, a criminal defendant may be ordered to pay as restitution to the victim the appreciated value of assets he embezzled from trust accounts.id: 13446
Defendant waived the claim that restitution victim might have also collected from an insurance company by not raising the issue in the trial court.Following a conviction of arson, the court ordered defendant to pay restitution pursuant to Government Code section 13967, subdivision (c), to the owner of the building. Defendant argued the court erred in failing to inquire whether the owner had sought reimbursement from an insurance company. However, defendant waived the issue by failing to raise it in the trial court.id: 13447
Defendant was not entitled to a jury trial on the amount of restitution.Defendant's due process rights are protected if he is given notice of the amount of restitution sought and an opportunity to contest that amount. He was not entitled to a jury trial on the amount of restitution.id: 13448
Defendant was not entitled to full custody credits for the new offense where part of his custody was attributable to his probation violation.Defendant spent 179 days in custody between his arrest and sentencing. He was, however, on parole when he committed the instant offenses. Twelve days after his arrest he admitted being in violation of parole for several reasons, including the instant offense, and was ordered to serve a ten month term for the parole violations. At the sentencing in the instant case defendant argued he was entitled to 179 days credit because the 179 days in custody was attributable to proceedings related to the same conduct for which the defendant has been convicted. However, defendant was not entitled to the credit because he was unable to show that but for the offenses underlying the proceedings which resulted in his sentence, he would not have served the parole revocation term for which he sought additional credit.id: 13449
Defendant whose sentence was suspended pending his commitment to the California Rehabilitation Center cannot challenge the restitution fine until he is discharged from the CRC and returned to the trial court.Defendant was convicted of burglary and other offenses and was sentenced to three years in prison and a $200 restitution fine. Following the filing of a petition for commitment to the California Rehabilitation Center defendant was determined to be a drug addict. His sentence was suspended and he was committed to the CRC for three years. When he is discharged from the CRC he will be returned to the trial court who will dismiss the charges or impose sentence. Defendant at that time can challenge the propriety of the restitution fine. Any ruling at this time on what is for sentencing purposes only an interlocutory judgment would be premature.id: 13450
Direct restitution order was proper where it was not part of the initial sentence, execution of which was suspended, but rather was imposed as a condition of probation which was later revoked.The trial court has jurisdiction after revoking probation to modify a judgment to add an order of direct victim restitution where direct victim restitution was not part of the initial suspended sentence, but rather was a condition of probation.id: 13452
Direct restitution under section 13967 for pre-1990 losses is limited to $10,000.00.Before 1990, the direct restitution and restitution fine pursuant to Government Code section 13967 could not exceed a total of $10,000.00, regardless of the number of counts or victims involved. Effective January 1, 1990, section 13967 was amended to permit direct restitution in the amount of the losses, as determined. Having decided that restitution constitutes punishment for these purposes, it follows that the ex post facto prohibition may not exceed a total of $10,000.00 as to the pre-1990 losses. The matter was remanded for a restitution hearing so that the trial court could determine which crimes or losses occurred before 1990.id: 13453
Evidence supported direct restitution order as the victim's itemization was not too ambiguous with respect to the nature of the claimed items.In challenging the direct restitution order appellant argued the auto theft victim's losses were insufficiently proven by her itemized statement. However, the court disallowed two items as ambiguous or inexplicable. The remaining items were identified, and their values asserted with sufficient specificity to permit a defense to the claims.id: 13455
Failure to advise that the $100 minimum restitution fine was mandatory did not require a reduction of the $5,000 fine imposed.Appellant argued the court should reduce the $5,000 restitution fine to the $100 statutory minimum because he was not advised that the restitution fine prescribed by Government Code section 13967, subd. (a) was a <i>mandatory</i> consequence of his plea, but rather was advised that it was a <i>possible</i> consequence. Thus, he reasoned, he was misled into believing he had the opportunity to persuade the court not to impose the fine. However, only the statutory $100 minimum restitution fine is mandatory, and any amount in excess of $100 is discretionary with the court. Since appellant was advised of a maximum possible restitution fine of $10,000 and the court only imposed $5,000, he could not complain that the discretionary amount of the fine exceeded that of which he was advised might be imposed.id: 13456
Failure to hold a hearing on ability to pay restitution did not violate due process where defendant had the opportunity to present evidence on this issue.Defendant argued the trial court erred in failing to hold a hearing on his ability to pay restitution. While no formal and specific hearing on defendant's ability to pay was held, he had an opportunity to present evidence on this issue. At the sentencing hearing he was permitted to voice objections to the probation officer's report and did not object to the recommended restitution. Likewise, at the subsequent hearing to determine the amount of restitution defendant did not mention he was unable to pay. The failure to hold a hearing on ability to pay restitution was not a violation of due process.id: 13457
Failure to object to the restitution order was not a waiver where the court totally rejected the probation officer's recommendations.The sentencing court's absolute refusal to accept the restitution recommendations of the probation report, coupled with the court's peremptory imposition of a restitution order totally at odds with the recommendations of the probation report, all without affording defendant a reasonable opportunity to challenge the accuracy/validity of the restitution order which was made, denied defendant his constitutional right to the due process of law. Defendant did not waive the issue of the validity of the probation order by not objecting to the same at the sentencing hearing.id: 13458
Failure to object waived the issue of ability to pay restitution fine.Defendant argued the trial court's failure to condition the $200 restitution fine on a finding of ability to pay violated Government Code section 13967, subdivision (a). However, defendant waived his right to waive the issue on appeal because he failed to make a timely objection to the fine at either the initial sentencing hearing or the subsequent sentence execution hearing.id: 13459
Government Code authorizes direct restitution to the Franchise Tax Board.Appellant argued that the restitution order to the Franchise Tax Board was unauthorized because Government Code section 13967. subdivision (c) authorizes direct restitution to natural persons only. However, the Government Code provision does not preclude direct restitution to the Tax Board.id: 13460
Government Code section 13967. subdivision (c) authorizes restitution for purely economic injury.Appellant argued that Government Code section 13967. subdivision (c) does not authorize restitution for purely economic losses such as property damage or monetary loss. However, a court may order direct restitution to crime victims for purely economic losses.id: 13461
Imposition of the minimum restitution fine for juveniles does not require a finding of ability to pay.Welfare and Institutions Code section 730.6, subdivision (b) does not require the court to consider a minor's ability to pay where, as here, it imposes the statutory minimum fine of $100.00.id: 13462
In certain circumstances the crime victim may challenge the improper recall of sentence.After Bradley had been convicted and had begun serving his prison sentence, the district attorney attempted to secure a recall of the sentence in exchange for Bradley's testimony in another murder trial. The superior court acted in excess of its jurisdiction in recalling the sentence since Penal Code section 1170 permits recall only to correct a disparate sentence. Moreover, in the unusual circumstances of this case, the victim in Bradley's case had standing to petition the court for an extraordinary writ challenging the recall.id: 13463
Insurance company was a victim for restitution purposes where defendant was granted probation.Government Code section 13959 governs restitution when probation is denied. In such cases an insurance company is not considered a victim for purposes of restitution. However, an insurance company is treated as a victim under Penal Code section 1203, governing restitution to a victim who has not been reimbursed from the Restitution Fund when probation is granted. Defendant argued the disparate treatment of an insurance company is an anomaly unintended by the Legislature. However, the Legislature deliberately intended the term victim to have different applications under the two statutory schemes. Therefore, the court did not err in ordering defendant, who was granted probation, to pay restitution to the insurance company.id: 13464
Insurance company who indemnifies its insureds following a crime is a victim for restitution purposes.The term victim should be construed broadly to include insurance carriers that suffer the consequences of crime by virtue of indemnification of their insureds. In such cases, the restitution order will further the objectives of deterring future criminal activity and thus rehabilitating the defendant.id: 13465
$5,000 restitution fine for narcotics trafficker was not an abuse of discretion.Defendant was convicted of transporting cocaine. The trial court did not abuse its discretion in imposing a $5,000 restitution fine under Government Code 13967, subdivision (a), which authorizes a fine up to $10,000.id: 13421
A defrauded government agency is a victim within the meaning of Government Code section 13967, subdivision (c).When a defendant is convicted of welfare fraud pursuant to Welfare and Institutions Code section 10980, subdivision (c), and the trial court denies probation, the court may, under the authority of Government Code section 13967, subdivision (c), order the defendant to pay restitution to the defrauded government agency.id: 13423
A restitution order on a crime committed in 1989 is limited to $10,000.In 1989 defendant pled guilty to eight residential burglaries. The court erred in ordering him to pay $93,000 in restitution. In 1989, Government Code section 13967, subdivision (c) provided restitution shall be ordered in the amount of the loss not to exceed $10,000. It did not give the court authority to order restitution up to $10,000 for each victim or on each count. Nor did it allow a restitution order exceeding $10,000 where a defendant was sentenced in one hearing on two or more cases.id: 13424
Ability to pay need not be considered where failure to pay restitution will not result in imprisonment.Unlike the situation involving restitution as a condition of probation, a defendant cannot be imprisoned for failing to pay the restitution ordered under Government Code section 13967 subdivision (c), which provides that it shall be enforceable as a civil judgment. Therefore, a court may order direct restitution to a victim without regard to the victim's ability to pay.id: 13425
Absent unusual circumstances or a showing to the contrary the original cost of a stolen item may be treated as evidence of replacement cost for purposes of restitution.As a condition of probation defendant was ordered to pay restitution of $8,000.00 to the victim, representing the original cost of the Persian rug for which the victim received no payment from her insurance company. Defendant argued on appeal that the original cost of the stolen property is not an acceptable basis for a restitution award, and the records must contain evidence of the replacement cost of the property. However, absent unusual circumstances, or a showing by defendant to the contrary, the original cost of a stolen item may be treated as evidence of replacement cost for purposes of restitution.id: 13426
Any error in imposing the restitution fine without determining defendant's ability to pay was waived where defendant expressly waived a probation report and requested immediate sentencing.Defendant pled guilty to first degree burglary. He personally waived preparation of a probation report stating that he wanted to be sentenced immediately, and his counsel joined in the waiver. He argued the court erred in imposing a $400 restitution fine pursuant to Government Code section 13967 without determining his ability to pay. However, having expressly waived a probation report and requested immediate sentencing, defendant waived his contention by failing to object to the restitution fine below.id: 13427
Burglary victim who arrived home while police held defendants at gunpoint was entitled to restitution for damages to her transmission as she quickly shifted gears to get away.Officer caught defendants burglarizing the victim's home. As the victim was arriving home in her car, she saw an officer on her front lawn holding a gun. She immediately changed gears in an attempt to make a K-turn, to get out of the line of fire. This driving caused damage to her transmission. Because the damage to the victim's car was the result of defendant's conduct, the restitution order pursuant to Government Code section 13967, subdivision (c) was properly imposed.id: 13428
By failing to object in the trial court defendant waived his right to contest the restitution fine on appeal.Defendant argued the trial court erred in imposing $2,200 in restitution fines when he had no earnings or assets with which to pay that amount. However, defendant's failure to object in the trial court to the imposition of a restitution fine constitutes a waiver of the right to complain thereof on appeal.id: 13429
Court did not err in designating the State Board of Control a victim for restitution purposes.Defendant argued the $19,806 restitution order was unauthorized because the State Board of Control is not a victim for purposes of the restitution statutory scheme. However, the State Board of Control, as the administrator of the State's Restitution Fund, unlike an insurance company, functions without any quid pro quo. Moreover, effective September 29, 1994, the Legislature enacted Penal Code section 1202.4, subdivision (f) which directs payment to the Restitution Fund. Although the statute was enacted subsequent to the sentencing in this case it is purely procedural and does not violate ex post facto laws.id: 13432
Court did not err in holding defendants jointly and severally liable for restitution as a condition of probation.Joint and several liability for restitution ordered to be paid to a victim as a condition of probation is valid.id: 13433
Court did not err by ordering restitution for future medical expenses.Defendant was convicted of hit and run causing injury. The court ordered restitution to the victim under Government Code section 13967 for past and future medical expenses. Contrary to defendant's claim the plain language of section 13967 does not prohibit tid: 13434
Original sentence omitting reference to restitution award was invalid and defendant was properly resentenced.Defendant argued the original sentence which made no provision for victim restitution was a valid sentence. However, victim restitution was mandatory under Penal Code section 1202.4 and California Constitution, article 1, section 28, subdivision (b). Since the court did not state clear and compelling reasons for not awarding restitution, the sentence was invalid and the trial court properly resentenced defendant and included a restitution award.id: 13385
Failure to advise defendant of restitution as a consequence of the plea was not prejudicial where the plea bargain was favorable and his claims of victim fraud were speculative.Defendant was resentenced after the original sentence failed to include a restitution award. At the time of the plea he was not advised that one of the consequences of the plea would be the requirement to pay victim restitution. Advisement as to the consequences of the plea is not constitutionally mandated and the plea will be set aside only upon a showing of prejudice. There was no prejudice in the instant case where the plea bargain was very favorable to defendant, and his lawsuits and claims of fraud by the victims were purely speculative.id: 11554
Court did not err in failing to advise defendant he might be required to pay restitution before accepting his plea.Defendant argued that because the trial judge did not inform him he could be required to pay restitution to San Diego Gas & Electric as a condition of probation, the restitution order went beyond the scope of his <i>Harvey</i> waiver where the court must advise the defendant of the penal consequences of his plea. However, the restitution order was not a penal consequence, it was a condition of probation. Moreover, the record showed defendant always expected to pay restitution, it was only the amount to which he objected when facing sentence.id: 11532
Restitution to the victim in the dismissed count as a condition of probation did not violate the plea agreement.Defendant argued the restitution order of $4,560 as a condition of probation violated the negotiated plea agreement. The plea agreement did not mention direct restitution to the alleged victim in dismissed count 1 as a condition of probation. However, unlike a restitution fine, a direct victim restitution order imposed as a condition of probation does not violate the plea agreement. Moreover, since the plea agreement contained a <i>Harvey</i> waiver wherein the court could consider the dismissed count for purposes of restitution the order for payment of restitution to the victim of the dismissed but related count was permissible.id: 11505
Direct restitution order did not violate ex post facto laws where the harm being compensated was the cumulative result of a series of acts beginning before the law was enacted and ending after the enactment.Appellant pled guilty to seven sex offenses<197>four occurring in 1986 and three in 1987 and was ordered to pay $500.00 restitution to the crime victim's fund under Government Code section 13967, subdivision (a). Later, under section 13967, subdivision (c) (enacted at the beginning of 1987) he was ordered to pay $10,000.00 directly to the victim. Appellant argued the direct restitution to the victim violated the constitutional prohibition against ex post facto laws. However, under the facts of the case, there was no retrospective application of subdivision (c). The fact that some of the offenses giving rise to the harm occurred before the enactment of subdivision (c) was irrelevant. The harm being compensated (psychiatric counseling) was the cumulative result of a continuing series of acts stretching over 1986 and 1987.id: 9547
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245