FAQ: Requesting Restitution
How do I request restitution if I am the victim of a crime?
As a victim of crime, you have a constitutional and statutory right to request restitution for your economic losses. At the time of sentencing, the deputy district attorney must ask the court to order the offender to pay restitution. You may be required to contact the probation department in your county to advise the probation officer handling the pre-sentence report of your losses. Before the sentencing, contact the district attorney's office and inform the deputy district attorney assigned to your case of your crime-related losses. The following agencies can assist you in providing information regarding your losses to the court:
- Victim Witness Assistance Centers
- The District Attorney's Office in the county where the crime happened
- The Probation Department in the county where the crime happened
It is recommended that you keep copies of all the bills, receipts, estimates of expenses and any other documents/ correspondence related to the crime. You can provide these copies to the district attorney’s office to help them calculate the amount the offender owes you and keep copies for your records should you need to refer back to them at a later date.
Do I have a right to restitution from the defendant?
Yes. If you incurred losses, including property loss, as a direct result of a crime, you have the right to ask the court to order an offender to pay restitution to you. You have the right to restitution regardless of whether or not you have received payment from an insurance company. If you have received an award from the California Victim Compensation Board (CalVCB) to cover some or all of your losses, the judge will require the offender to repay CalVCB for that amount.
If the offender is a juvenile, the offender's parents or legal guardians may be held responsible some or part of the ordered restitution. (Welf. & Inst. Code section 730.6).
Under what circumstances may the court reduce/waive a restitution fine?
Penal Code section 1202.4(b)(1) requires a restitution fine of at least $100 and not more than $1,000 for a misdemeanor conviction, and $200 and not more than $10,000 for a felony conviction, unless compelling and extraordinary reasons for not imposing the fine are stated on the record. Furthermore, Penal Code section 1202.4(c) states that the offender's inability to pay is a factor only in assessing the amount of the fine in excess of the minimum. Inability to pay is not a compelling and extraordinary reason to waive the restitution fine. Therefore, absent compelling and extraordinary reasons, a minimum restitution fine is required, regardless of whether the offender has the ability to pay it.
In setting the fine above the minimum, the court may consider any relevant factors including, but not limited to, the defendant's ability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime. Losses may include pecuniary losses to the victim or his/her dependents as well as intangible losses, such as psychological harm, caused by the crime. Consideration of a defendant's inability to pay includes his/her future earning capacity. The defendant bears the burden of demonstrating his/her inability to pay. (Penal Code section 1202.4(d))
A restitution order may not be reduced and/or waived pursuant to Marsy's Law (Victims' Bill of Rights Act of 2008: Marsy's Law).
How does the payment get to me?
If the county is collecting: Methods of collecting restitution payments vary from county to county. You may want to contact your local Victim Witness Assistance Center or District Attorney’s Office to find out what you need to do to receive payment. If you are owed restitution and your address changes, you must let the county know, so payments can be forwarded to you as they are made.
If the offender is sent to prison, or if the offender is a juvenile sent to a state facility, you must make sure you are registered with the California Department of Corrections and Rehabilitation Office of Victim and Survivor Rights and Services. Be sure to ask that a form 1707 is submitted on your behalf. Forms are available through Victim Witness Centers throughout the state. If you are owed restitution and your address changes, you must let the CDCR know, so payments can be forwarded to you as they are made.
In most felony and juvenile cases, prior to sentencing or a disposition hearing, the probation officer prepares and submits a report to the court. The report will include a recommendation regarding the amount of restitution the court should order. To assist the probation officer with the recommendation, you may need to contact the probation officer and advise him/her of your losses. If you do not receive correspondence from the probation department requesting loss information, your local District Attorney’s Office or Victim Witness Assistance Center can help you contact the probation department.
Even if you are not able to get information to the court about your restitution before the sentencing, you can still talk to the district attorney about requesting restitution at a later date, but an additional court hearing may be required.
If you have additional losses that occur after the offender is sentenced, restitution can be amended to include them. However, in both of these cases, you will have to contact the District Attorney’s Office to provide the updated information about your losses. (Penal Code section 1202.4 (f) and Welf. & Inst. Code section 730.6(h))
The offender has the right to ask for a hearing to dispute the amount of restitution ordered. You may be asked to submit documentation for your crime-related losses.
How is the issue of restitution affected when some charges against a defendant are dismissed as a result of a plea negotiation?
Restitution may be imposed on dismissed counts if the plea is freely made, the court approves all conditions, and the district attorney obtains a Harvey Waiver. (People v. Beck (1993) 17 Cal.App.4th 209, 215. See also, Penal Code section 1192.3.) Under a Harvey Waiver, the offender is required to pay restitution on all counts connected with the plea. Restitution orders are to be imposed based on the victim's losses and benefits paid by the California Victim Compensation Board (CalVCB).