The criminal courts in California can order you to pay restitution to the victim of a domestic violence case. The state has victim compensation statutes created to help the victims receive compensation for their injuries. When you don’t have sufficient money to pay the restitution, government run-compensation plans/programs will come into play. However, you want to work closely with a competent attorney to help you throughout the entire legal process. The article will help me learn more about victim restitution in California.
What is the Legal Meaning of Victim Restitution?
Under California laws, victim restitution is the victim’s right to receive compensation for the losses they suffer due to the defendant’s domestic violence. A victim might refer to any of the following:
- A person suffering physical threats, financial harm or physical threats
- The family members of the person facing the harm
- A government, business or any other entity suffering any losses because of another person’s domestic violence
The Damages Covered by Restitution
The court will order you to pay restitution to compensate the alleged victim’s several expenses relating to the crime in question. The criminal courts in California will consider the following costs when calculating restitution fees:
Therapy, Medical or Counseling Expenses
The court will include medical bills like physical therapy, rehabilitation, and hospital costs in the restitution. The restitution will also cover the victim's counselling bills and sometimes even cover the counselling of the family members when the alleged victim dies. Also, future medical bills are included in the restitution. Speak with your domestic violence attorney to help you calculate all the medical expenses you suffer due to the defendant's acts.
When the alleged victim misses work due to sustained injuries or attending court proceedings, they might ask for compensation for their lost wages. The court might even require the defendant to compensate you as the victim the time you used to fully recover from the injuries or when attending the court proceedings. If you are self-employed, the court allows you to seek restitution for the lost profits since you cannot keep on attending your business.
The law allows the victim to seek restitution for all funeral costs, common in homicide cases. In many cases, the family members of the victim will receive restitution.
Damaged or Lost Property
The court may order restitution to repair or replace stolen items that cannot be recovered and the value of the damaged item/property. The court may also include restitution fees in the instances where specialized clean up is involved.
Other Out-of-Pocket Costs
The criminal court may also impose restitution fees for the incurred out of pocket expenses due to the offense, like the costs you encounter when collecting the alleged victim’s credit record during an identity theft offense or increased insurance premiums in cases involving a burglary.
What the Courts Will Consider When Inflicting Restitution
The court will consider several elements when imposing restitution in a particular case. The considerations might include:
- The losses sustained by the alleged victim
- The gravity and seriousness of the crime and facts surrounding the case
- The financial burden put on the alleged victim, government agencies or any other person sustaining injuries because of the crime.
- The economic increase derived by the alleged offender
- Your future capability to pay
- Your current financial resources
Although several states may require the criminal judges to order you to pay the scheduled restitution regardless of your ability to pay, the judges will consider your ability to pay the restitution in California.
Restitution Orders Vs. Restitution Fines
Restitution order, also known as victim restitution, differs from restitution fine, also known as general restitution. Victim restitution is the amount of money you pay to the alleged victim for your wrongdoings. Alternatively, a restitution fine is the amount of money you pay in every case to a restitution fund to help in supporting the victim's compensation funds. Also, the amount will vary whether you face conviction for a felony or misdemeanor charge and will range from around $100 to $10,000. In California victim’s compensation fund is a plan ordered to compensate the alleged victim’s after domestic violence. When you meet the eligibility criteria, you will receive compensation for the injuries and property damages you sustain.
What is the Amount of Victim Restitution the Criminal Court Will Order You to Pay?
According to California laws, as a victim of domestic violence, you are entitled to receive fair compensation for any reasonable expenses and losses you suffer. The prosecution team should not reduce the restitution during a plea bargain since they don’t have any right to waive the issued claims.
Sometimes the defendant may enter into a plea bargain, and thus the court orders to reduce or dismiss the charge. So, when the defendant enters a plea bargain, the court will still order you to pay the restitution provided the prosecution team obtains a Harvey Waiver. The Harvey Waiver will entitle you to receive restitution even after the court dismisses the case.
You are entitled to receive full restitution from the alleged defendant even when the insurance company will reimburse you. But when it’s the defendant’s insurance agency to pay you, the court will order the defendant to pay the remaining restitution amount. The court will determine the restitution amount during a restitution hearing.
Suppose you either don’t know the appropriate amount of your losses during the time of trial, or the alleged defendant wishes to dispute the ordered restitution amount. In that case, the case proceeds to a hearing (restitution hearing). As the victim, you will have a hard time convincing the court that the defendant’s domestic violence resulted in your damages or losses. Speak with your attorney to help you convince the court.
You should also prove the amount you are claiming is proper. Your evidence might help you prove the claim. The evidence includes business records, medical bills, among other expenses. When you don’t have the above evidence, the court will explain their losses through a victim impact statement. When you disagree with the restitution amount, you will have an opportunity to prove before the court the restitution is inappropriate. You have the right to challenge the restitution amount.
Paying the Restitution
After the court determines the restitution amount, it will require the defendant to pay you. The payment will become a part of the defendant’s probation punishment. The criminal judge will order you to pay the total restitution amount or develop a plan favouring your financial capability.
When you are uncomfortable with the defendant paying the restitution to you, you may request the court to order the defendant to pay the amount to the local probation department and then forward the money to you. The defendant will also have to pay an administrative fee of around 10% of the total restitution.
What Happens When the Defendant Fail to Pay the Restitution?
When the defendant fails to pay you the restitution money, you may contact the prosecution team for them to plan a violation hearing (probation hearing). If the failure were willful, it would attract incarceration, probation violation, among other penalties. However, you will not face additional penalties when you fail to pay the restitution because of financial capabilities.
If you cannot pay the amount at all, the court might order you to seek a job as a part of the probation for you to pay the restitution. Again, when you have a conviction for sexual assault on a minor or aged person, the court will order you to seek legitimate employment for you to cover for their psychological or medical treatment.
What Happens When Your Probation Expires, and the Restitution Payment is Not Yet Paid?
When your probation term comes to an end, and you have not fully paid the restitution fee, the court will then convert your remaining payment into a civil judgement. When it appears you will finish the probation term without paying the restitution amount, you must then prepare and file a financial disclosure. Also, under the state’s laws, you will not receive expungement of your criminal records when you have an unpaid restitution fee. But you will be eligible for expungement once you clear the remaining restitution.
Who is Eligible for Restitution in California Domestic Case?
Under the state’s laws, not everyone will be subject to restitution. The following are groups of the people eligible to receive restitution after a domestic violence case in California:
Direct Victims, primary people who suffer direct injuries, are entitled to restitution. For instance, when you sustain damages for your property or injuries in domestic violence, you will become subject to restitution.
Indirect Victims, in cases where domestic violence result in death, the surviving family member will be eligible for restitution.
Third Parties, the entities which have provided recovery to the alleged victim, may like compensation programs, victim service agencies, and government entities to receive restitution. For instance, when the alleged victim has received compensation from the insurance company for the sustained injuries, the court will order you to pay restitution to the insurance company.
The Government, if the court doesn’t identify the victim of the offense, the court will not order you to pay the restitution as part of your sentence. Sometimes the court will consider the society and the government the appropriate victim of the case, mainly under drug offenses, welfare fraud and prostitution. Thus the court will order you to pay the restitution to the entities responsible for investigating the crime.
Special Circumstances in Domestic Violence Cases
A domestic crime might affect the victim in many ways. Thus you might wonder how to receive restitution after any domestic case. However, your attorney will help in educating you about the restitution you are entitled to receive. The victim restitution laws are unique to several people, as discussed below:
A Victim of Violent Offense
When you are a victim of a violent domestic offense, you will apply directly for the compensation program. Thus the defendant will have to pay the restitution to the victim compensation program instead of paying the money to the victim.
When the court orders a minor to pay restitution, their parents/guardians become liable for making the payments. The judge will consider the following factors when determining the restitution:
The Minor’s Future Earning Capacity
Other financial obligations like health insurance, clothing expenses, food and mortgage payments
The extra number of dependants the child’s parent has
When you face domestic violence charge for victimizing your spouse under California:
- PC 243(e) domestic battery law
- Violation of protective order
- PC 273 corporal injury on your spouse
- PC 262 spousal rape
The law doesn’t allow you to use community property when paying the restitution unless your separate property is exhausted. In this case, community property involves any property or money you acquired during your marriage other than a gift or inheritance. Alternatively, separate property includes any gift, inheritance, property or money you had before your marriage.
Victim Restitution Vs Civil Lawsuit
There are three critical differences between a civil lawsuit and victim restitution in California. The differences are discussed as follows:
Victim restitution is a process ordered at the time of your sentence. However, a civil lawsuit takes many years to resolve.
During a criminal prosecution, the alleged victim will submit their bills, receipts, and other documents to the prosecutor to present to the court and the defense. However, in a lawsuit, your defense lawyer will require the alleged victim to take part in a disposition that might last several days.
When the victim files a civil lawsuit, their attorney will obtain a fee of around 40% of the total recovery. But it's not the case in crime victim restitution since the district attorney helps the alleged victim issue their expenses, but they don't collect any fee. When the alleged victim decides to employ a lawyer to help collect restitution, the court may add the fee to the restitution amount.
Contact a San Diego Domestic Violence Lawyer Near Me
Victim restitution is an essential part of domestic violence cases. Fortunately, it helps the alleged victim obtain fair compensation for the damages and injuries they sustain. However, working throughout the entire legal process alone might be a challenging situation. Thus you want to seek legal help from a competent attorney. At the Domestic Violence Attorney Law Firm, we are ready to help you receive the restitution you deserve. We have helped countless people seeking restitution in San Diego, CA. Call us right away at 619-393-8588, and we will jump into your case immediately.