The California Constitution states that all those who suffer losses due to criminal activity are entitled to
restitution from the offender. California Penal Code section 1202.4 states “…a victim of crime who
incurs any economic loss as a result of the commission of a crime shall receive restitution directly from
any defendant convicted of that crime.”

What is victim restitution?

The judge in the criminal case makes an order of restitution to the victim of a crime involving financial
loss. Restitution is meant to return the victim to his or her position prior to the crime, by covering
monetary losses and costs. The court order can require restitution to be paid in a lump sum payment or
on a payment schedule.

Who qualifies as a victim for purposes of restitution?

Restitution orders can be granted to actual victims of a crime, immediate surviving family members of
the victim, corporations and business entities, and others who are close to the victim and have suffered
economic loss because of the crime.

How much restitution is a victim entitled to?

CA Penal Code Section 1202.4 states that a judge will order full restitution unless there are compelling
or extraordinary reasons not to do so. Inability to pay restitution is not considered a compelling and
extraordinary reason.

What is included in the reimbursement amount?

Victims are entitled to reimbursement for the full amount of financial loss, but nonfinancial losses are
usually not covered. Financial losses include, but are not limited to:

• Cost or cost of repair for lost, stolen, or damaged property;
• Medical expenses, which includes mental health counseling and dental expenses;
• Loss of wages or profits (due to injury or due to time spent helping the police or prosecution);
• Moving or security expenses;
• Interest at a rate of 10% per year;
• Attorney fees and collection costs;
• Expenses related to credit monitoring and credit repair in identity theft cases.

How are economic damages assessed?

The victim has the responsibility of showing that the defendant’s criminal conduct caused his or her
losses. Victims can present the following documents to the court as evidence of financial loss:

• Bills;
• Records;
• Statements;
• Estimates for repairs;
• Receipts;
• Payroll stubs.

 

The defendant can request a restitution hearing to dispute the amount requested by the victim.

How to request restitution:

• Make sure that the probation department, district attorney, and court know about all losses and
  expenses incurred because of the crime.
• Save and submit all information related to the losses including receipts, bills, repair estimates,
  and the like to the probation department. (Make sure to make copies for your personal records).
• In felony cases, the probation department writes a report that is provide to the defendant’s
  attorney, the prosecutor and the judge, recommending an amount for the judge to order as
  restitution.
• Each county has a Victim Witness Assistance Center (VWAC) that can provide a victim advocate
  to assist in restitution collection. VWAC can be located at:
  www.vcgcb.ca.gov/victims/localhelp.aspx. The victim can also hire an attorney for
  representation regarding restitution and other issues.

How to determine if the defendant has the means to pay restitution:

Victims have a right to inquire about the defendant’s income and any assets including property and bank
accounts that can be used to cover restitution. The defendant files a completed Defendant’s Statement
of Assets (CR-115) with the court.

The victim is entitled to request a copy from the court or to get defendant’s financial information. To
request this financial information:

• Obtain a blank copy of form CR-115 or download the form here:
  www.courts.ca.gov/documents/cr115.pdf
• Mail the blank form to the defendant’s lawyer with a letter requesting that the form be
  completed and sent back at least one week before the sentencing date.
• If the completed form is not received, the victim can then ask the district attorney, a victim
  advocate, or the county probation department for help.

If the defendant has assets, the victim may ask the district attorney to request a court order freezing the
assets until after sentencing. If the defendant is working, the victim can request an income deduction
order at the sentencing hearing.

What to do if the defendant fails to pay the ordered restitution:

Mandatory restitution is like a civil judgment. If the defendant fails to pay the victim, the victim can sue
the defendant in civil court. The court then can order garnishment of the defendant’s wages. Failure to
make payments can also lead to probation consequences including a California Probation Revocation
Hearing where the judge orders the defendant to comply with restitution obligations.

Other consequences for failure to pay restitution include:

• County jail time or prison;
• Wage garnishment; and
• Order that restitution be satisfied from the offender’s assets.

Can the offender discharge restitution by filing for bankruptcy?

Restitution cannot be discharged by bankruptcy. Under a Chapter 7 Bankruptcy the debtor will be
protected from arrest for failure to make payments. When the bankruptcy case ends, the payments
must resume. Restitution payments are considered preferential payments under bankruptcy law,
meaning that they take priority over other forms of debt.

A Chapter 13 bankruptcy will lead to a payment plan to make it easier for the defendant to meet his or
her pending obligations. During a repayment plan, the government cannot seize the defendant’s assets
for failure to make payments. However, the defendant must still pay the restitution in full.

Here are some steps to take to safeguard payment:

1) If the defendant is sentenced to prison, submit form CDCR 1707;

2) If the defendant is sentenced to probation, county jail, or state prison contact the probation or
parole department for help collecting restitution;

3) Make sure to keep your address current with county revenue and recovery services, the county
probation department, CDCR, or any other agency that may send the restitution payments.

4) If restitution has not been paid in full within 4 months of completing probation, ask the district
attorney or the probation department to request that the court to extend the probation period.

5) Make sure to keep a full and accurate record of all restitution payments received.