Restitution has been an issue in two cases this week. Briefly, when one person is convicted of committing a crime against another, he is liable for “restitution” or payment for the damages caused by that crime. In a theft case, this means he must repay what he is accused of stealing and any affiliated costs, like replacement goods. In an assault and battery case, he must pay for doctors bills. In a hit and run, he must pay for damages to the other car.
In the Orange County criminal courts, especially the Harbor Justice Center, restitution is handled in one of two ways. It is either spelled out as an exact dollar amount at the time of the plea bargain or “to be determined”. When restitution is “to be determined”, the criminal case file is handed over to the Orange County criminal court’s Victim Witness office, which then contacts the victim and asks them to list the damages that they suffered.
The problem here is the law. California criminal law is very harsh in saying that restitution is suppose to be “punitive”. What that translates into, really, is what a victim wants, a victim gets. Although a judge joked this week that he refused to award $50,000 in psychiatric bills to a woman who sought restitution from a hit and run car accident, the law does not favor criminal defendants. Most defendants are shocked to learn that they can and will be held responsible for amounts that insurance company has already paid.
Case in point. Defendant takes his friend’s car without permission and is in a car accident. Defendant is convicted for “vehicle tampering” or “grand theft auto” and ordered to make restitution. Meanwhile, his friend submitted the car repairs to his insurance company and had only to pay his $500 deductible. The friend is contacted by the Orange County criminal courts Victim Witness office and asked for the amount of his damages. He submits the repair bills of $16,000. Defendant is ordered to pay his friend $16,500 (the repair bills plus the deductible.) Defendant, shocked at that amount, argues that his friend makes a $16,000 profit or windfall and neither the Orange County District Attorney, nor the judge has any sympathy for him. If he is not able to pay the full restitution amount, he will either have his probation revoked or extended and he will not be able to ever get the case expunged.
Second case. Three men take used equipment from their employer. One man takes $100 worth of equipment, another takes $300 worth and the third takes $20,000. All are convicted in the same case. Restitution is to be determined. The employer sends in forms saying his loss was “20,400”. The Orange County Probation Office then bills EACH defendant for $20,400. It does not matter that the employer ends up with over $60,000. Restitution law is meant to be punitive, the judge reminds counsel.
How can a qualified criminal defense attorney get around these rules and save his defendant hundreds or thousands of dollars?
Whenever possible, determine the amount of restitution in advance and require that your defendant pay only that amount of restitution by spelling it out on the Tahl forms before your client signs anything.
In the examples above, counsel should show the District Attorney proof that the car had been repaired and offer restitution of the $500 deductible amount before the case is dealt. Similarly, he should agree that his defendant is only going to pay for the $100 amount of equipment that his client took before his client pleads guilty to anything.
If you or a loved one are required to pay restitution in a criminal law case, or need a criminal defense attorney, contact Orange County Criminal Lawyer Staycie R. Sena at 949-477-8088 today.