A Victim s Guide to Restitution

Transcription

1 A Victim s Guide to Restitution

2 VICTIMS LEGAL RESOURCE CENTER (VLRC) About Us The Victims of Crime Resource Center (VLRC) is located on the Pacific McGeorge School of Law campus in Sacramento, California. We educate victims and their families, victim service providers, and other victim advocates on: Victims legal rights, Victims Compensation, Restitution, Civil suits, and Additional rights of domestic violence and abuse victims (including elders, children, and people with disabilities). We also offer: Technical assistance and legal research to victim service providers, and Free Know Your Rights presentations to community groups. We operate VICTIMS the statewide, toll-free hotline that gives confidential information and referrals to victims, their families, victim service providers, and victim advocates. The hotline is staffed by McGeorge law students and supervised by lawyers.

3 Table of Contents Section Topics Page Number Section 1 A Victim s Right to Restitution... 1 Section 2 The Direct Restitution Order... 7 Section 3 Restitution Collection and Enforcement: Criminal Justice System Section 4 Restitution Collection and Enforcement: Civil Justice System Section 5 Frequently Asked Questions Section 6 Resources for Victims of Crime... 29

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5 Section 1 A Victim s Right to Restitution Victims Legal Resource Center l 1

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7 Victims Rights Marsy s Law In 2008, Marsy s law, also known as the Victims Bill of Rights, was enacted. This law provides crime victims with 17 rights in the California Constitution, including the right for victims of crime to receive restitution. Restitution? Restitution is a judgment from a court that requires a person convicted of a crime to reimburse the victim of that crime for certain crime related expenses. Restitution is the act of making a good or giving equivalent for any loss, damage or injury. Who is Entitled to Restitution? Immediate victim. Immediate surviving family of a late victim. Restitution shall be ordered from the convicted wrongdoer in every case in which a crime victim suffered a loss. - Cal.Const. Art. I, 28(b)(13) Victims Legal Resource Center l 3

8 Restitution has Two Components: The Restitution 1 - Restitution Fine This is the offender s debt to society. In California, every offender convicted of a felony or misdemeanor is required to pay a restitution fine from $150 - $1,000 for misdemeanors or $300 - $10,000 for felonies. Restitution fines go into the State s Restitution Fund, which helps fund the California Victims Compensation Program a resource for helping victims of a violent crime pay for certain crime related expenses. Issues the Judge Takes into Consideration when Determining the Restitution Fine Amount The court considers all relevant factors when setting the restitution fine amount, including: Inability to pay Seriousness of the offense Circumstances of the commission of the crime Economic gain by offender Losses to others from the offense 4 l Victims Legal Resource Center

9 Fine & The Direct Restitution Order 2 - Direct Restitution Order This is the offender s debt to the victim when the victim suffers a direct monetary loss as a result of the crime. The court bases its determination of the amount of direct restitution on the amount of loss claimed by the victim(s) or by any showing to the court. Losses Covered by Restitution Order: Property loss stolen or damaged property Medical/dental expenses Mental health counseling expenses Loss of wages/income Funeral expenses Relocation expenses Home security expenses Attorney s fees Home or vehicle modifications if the victim becomes permanent disabled Interest on the Restitution Order Possible future losses Note: The offender s inability to pay cannot be considered in determining the amount of direct restitution. The District Attorney may not limit the amount of direct restitution as part of a plea bargain. Victims Legal Resource Center l 5

10 Items Considered by the Court when Determining the Direct Restitution Order: Bills Receipts Repair estimates Insurance payment stubs Payroll stubs Business records Documents related to the value of stolen or damaged property Medical expenses Wages/profits lost 6 l Victims Legal Resource Center

11 Section 2 The Direct Restitution Order Victims Legal Resource Center l 7

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13 Restitution Order What is a Valid Restitution Order? A valid and enforceable Restitution Order includes: A set dollar amount Who the restitution is payable to Who must pay the restitution When the restitution must be paid by What is the Victim s Role in Determining Restitution? Victims should be involved in the process by working with the District Attorney s office to determine the amount. Things a victim may be asked to do or include: Fill out forms/questionnaires Submit any crime related expenses/bills/receipts Submit estimates of any future crime-related expenses Note: Although the victim s role is critical, the judge makes the ultimate decision in determining the restitution amount. Victims Legal Resource Center l 9

14 What if Restitution is Not Ordered? A sentence without a restitution order award to a victim is INVALID. If the restitution amount is left blank, please contact your local victim advocate or the Victims Legal Resource Center for additional information. The restitution amount is set as TBD (To Be Determined): If the offender s sentencing hearing occurs before the victim is able to submit all expenses and bills, the restitution may still be ordered with an amount listed as To Be Determined. Once all the expenses are ready to be submitted, the victim must contact the DA s office or the county probation department and request a Restitution Hearing or a Restitution Modification Hearing. Note: Restitution cannot be collected until a definite dollar amount is set. There are no time limitations as to when the court can set the hearing to determine the restitution amount. Victims should strive to ensure that a restitution amount is determined prior to sentencing, because it is costly to transport the incarcerated offender to court in order to attend the restitution hearing. Contact your local victim witness advocate for more information. 10 l Victims Legal Resource Center

15 Section 3 Restitution Collection & Enforcement: Criminal Justice System Victims Legal Resource Center l 11

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17 Priority Order for Restitution Collection (Cal.Pen.Code d): Restitution that is collected on behalf of the victim will be distributed as follows: First: Victims take priority over any payments made by and any monies collected from the offender. Second: After the victims have been paid in full, any further payments or monies collected are transmitted to the State Treasury for the State surcharge. Third: After the victims have been paid, and the State surcharge is satisfied, all payments made and monies collected are then applied to the restitution fine, other fines, and penalty assessments ordered by the court. Fourth: Any other reimbursable costs, such as probation costs, or costs of representation by the public defender, are the last to receive distributions of payments made or monies collected by the offender. Victims Legal Resource Center l 13

18 Collection Restitution collection differs depending on whether the offender is incarcerated and where the offender is incarcerated. Note: If the offender is not sentenced to jail or prison, or is released on probation or parole, please see Section l Victims Legal Resource Center

19 County Jail Prison County Jail If the offender is sentenced to county jail, the victim must contact a local county agency, such as the probation department, collections department, or the courts. Collections efforts vary by county, so victims should reach out to the local Victim/Witness Assistance Center to be directed to the correct county agency. California State Prisons If the offender is sentenced to a California state prison, the victim must contact the California Department of Corrections and Rehabilitation (CDCR) and submit form CDCR 1707 with their Office of Victim and Survivor Rights at The CDCR automatically collects restitution from incarcerated offenders and can send payments to the victim s home. When an offender arrives at prison, an inmate trust account is established, which acts as a bank account to accept deposits and allow withdrawals. If the offender has deposited money into his/her account, CDCR will take up to 50% to pay toward restitution. } } When offenders have a restitution fine and a restitution order, the restitution order (to the victim) will be paid first. Funds from the inmates account may come from family, friends, or jobs within the prison ($ $1.00 per hour). Victims Legal Resource Center l 15

20 If the Offender is Released from State Prison If the offender is released from state prison and restitution has not been paid in full. CDCR refers the direct restitution order to the Franchise Tax Board (FTB) for collection. The FTB is authorized to use several collection methods including wage garnishment, bank liens, and payment plans. Victims should contact the CDRC to make sure that their restitution debt has been transferred to the FTB. Note: FTB is not authorized to collect restitution from tax refunds. Back taxes/tax debt collection and child support debt collection take priority over restitution collection. 16 l Victims Legal Resource Center

21 Section 4 Restitution Collection & Enforcement: Civil Justice System Victims Legal Resource Center l 17

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23 Civil Enforcement Steps to Enforce a Restitution Order in the Civil Process If the offender is sentenced to probation only or to a county jail, the CDCR will not collect restitution on the victim s behalf, and the restitution order will not be transferred to the FTB. However, a criminal order for restitution is enforceable as a civil judgment: 1 First, the victim must fill out form CR-110/JV-790 (Order for Restitution) and form CR-111/JV-791 (Abstract of Judgment) and obtain an official stamp from the clerk/records department of the criminal or juvenile court that ordered the restitution. Instructions on filling out these forms can be found here: Victims Legal Resource Center l 19

24 2 Second, the victim must obtain (and under Cal.Pen.Code (f)(5) is entitled to) a copy of form CR-115 (Defendant s Statement of Assets) from the Criminal Court Records Division. This form contains the offender s personal information, employment, assets, income, and liabilities. If the offender failed to file this form, the victim is entitled to the financial affidavit that was filed when seeking appointment of counsel. Instructions on filling out this form can be found here: 20 l Victims Legal Resource Center

25 3 Third, the victim may annually obtain and send form CR-200 (Form Interrogatories Crime Victim Restitution) to the offender in order to get an update on his/her financial assets. 4 Fourth, the victim should determine if the offender owns property, by reviewing the public record at the County Recorder s Office or the County Tax Assessor s Office. 5 Fifth, with the above forms and information, the victim can try all of the following methods to collect the restitution order: Income Deduction Wage Garnishment Lien Bank Levy Victims Legal Resource Center l 21

26 Methods of Collection in the Civil Process CA Penal Code 1214(b) gives victims access to all resources available under law to enforce their restitution order. When the court enters the victim restitution order, it must also enter a separate Income Deduction Order (form CR-119 and CR-118) upon determination of the offender s ability to pay. (CA Penal Code ). This order requires the offender s employer to withhold a portion of the offender s wages. A victim shall have access to all resources available under the law to enforce the restitution order - CA Penal Code 1214(b) Note: If the court determined that the offender was not able to pay at the time of sentencing, and therefore did not enter an Income Deduction Order, the victim may still collect using Wage Garnishment. 22 l Victims Legal Resource Center

27 If the offender is employed, the victim can collect restitution with a wage garnishment by filing form WG-001 (Application for Earnings Withholding Order) and EJ-130 (Writ of Execution) to have the restitution subtracted from the offender s monthly income. The victim can collect the restitution order using a lien - a legal claim against the offender s property. The victim may record the Abstract of Judgment (CR-111) with the County Recorder, which will establish an automatic lien against the offender s current or future real estate. The offender will have to pay the restitution before he/she can refinance, transfer, or sell the property. OR The victim may also place a lien on the offender s business assets or personal property by filing form JL-1 (Judgment Lien) from the Office of the Secretary of State. Victims Legal Resource Center l 23

28 Lastly, the victim can collect the restitution order with a bank levy on the offender s account by filing and serving forms EJ-130 (Writ of Execution), EJ-150 (Notice of Levy), and EJ-155 (Exemptions from the Enforcement of Judgments.) l Victims Legal Resource Center

29 Section 5 Frequently Asked Questions Victims Legal Resource Center l 25

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31 Is there a Maximum Amount of Direct Restitution for the Victim? While restitution fines to the state have statutory limits, direct restitution orders to the victims do not have limits. What if the Offender Files for Bankruptcy? Restitution orders to the victim are NOT dischargeable in bankruptcy court if the offender files for bankruptcy. People v Moser (1996) 50 CA.APP.4th 130, 136. Can I Modify the Restitution Order to Add Expenses Later? Trial courts retain jurisdiction to add or modify a restitution order, even when an appeal is pending. Courts can modify the restitution order by a motion from the prosecutor, victim, defendant, or court. What if I didn t know I had a Restitution Order? Often, the information sent to CDCR by the county courts does not include the victim address information to let CDCR know where to send money collected. Under California law, victims can come forward at any time to claim restitution collected on their behalf by contacting the CDCR at Who can Help me with Additional Questions about Restitution? There are several professionals that may be able to provide assistance with restitution questions, including your local Victim Witness Assistance Center, CDCR Office of Victim and Survivor Rights, and the Victims Legal Resource Center. Victims Legal Resource Center l 27

32 How is Victim Restitution Different from Victim Compensation? The collection of restitution from the offender is a different process than receiving compensation from the California Victim Compensation Program (CalVCP). CalVCP provides financial assistance to victims of crime when certain losses and expenses cannot be paid by other sources (such as health insurance or worker s compensation). If restitution was ordered for the victim but the offender is not able to pay immediately, the victim can apply for compensation from CalVCP, and the offender must repay CalVCP. If the victim receives compensation from CalVCP and the offender or another source also pays for the same expenses, the victim must repay CalVCP. CalVCP covers violent crime-related expenses, including: Medical/dental expenses Mental health treatment Income/support loss Funeral/burial expenses Relocation expenses Home security expenses CalVCP does not cover property damage or theft. For more information about victim compensation, contact CalVCP at Will a Civil Suit affect my Restitution Order? An order of restitution for the victim does not preclude the victim from pursuing a separate civil action The victim can file a civil action against the offender under tort law for damages not included in restitution or compensation, such as pain and suffering What if the Offender is a Juvenile? Juvenile offenders are also subject to mandatory restitution fines of $100 to $1,000 for felonies and a misdemeanor fine not to exceed $100 there is no statutory minimum for a misdemeanor fine Inability to pay does not justify a failure to impose a restitution fine, but can be a factor in setting the amount of the fine The juvenile s parent or guardian is presumed to be jointly and severally liable for the restitution owed (Welfare & Institutions Code 730.7) 28 l Victims Legal Resource Center

33 Section 6 Resources for Victims of Crime Victims Legal Resource Center l 29

34 The California Department of Corrections and Rehabilitation (CDCR): CDCR- Office of Victim & Survivor Rights & Services provides assistance to victims after the offender has been incarcerated. They can assist victims with obtaining restitution, requesting notification about custody/parole hearings, and writing victim impact statements. Phone Number: Website: California Victims Compensation Program (CalVCP) CalVCP is a program that helps reimburse victims of violent crime for certain crime-related expenses. Victims have the right to apply for reimbursement for losses such as: medical, funeral, relocation, income loss, and more. Phone Number: Website: National Center for Victims of Crime The National Center for Victims of Crime is a nonprofit organization that advocates for victims rights, trains professionals who work with victims, and serves as a trusted source of information on victims issues. The National Center is an advocacy organization committed to and works on behalf of crime victims and their families to advance victims rights and help victims of crime rebuild their lives. Phone Number: LAW-HELP ( ) Website: The State of California - Franchise Tax Board (FTB) Collects restitution on behalf of victims when an offender is released from state prison. Phone Number: Website: 30 l Victims Legal Resource Center

35 Victims Legal Resource Center (VLRC) VLRC is mandated by state law to provide victims of crime with information about their rights as a victim and to provide them with local resources based on their needs. We give assistance finding local resources, such as: counseling, shelters, advocacy, and more. Phone Number: VICTIMS ( ) Website: Victims Legal Resource Center l 31

36 Other VLRC Publications Include: Cyberbullying A Guide to Victims Services Help for Victims of Crime in California Help for Victims with Disabilities Help for Victims of Domestic Violence Help for Victims of Elder Abuse A Victim s Guide to the Criminal Justice System Victims Rights in California Marsy s Law Order free materials for yourself, friends, family, or organization by visiting VICTIMS( ) This publication was supported by Grant No VA-GX-0063 awarded by the Office for Victims of Crime, U.S. Department of Justice through the California Governor s Office of Emergency Services (Cal OES). The opinions, findings, conclusions, and recommendations expressed in this publication are those of the author(s) and not necessarily those of Cal OES or U.S. Department of Justice. Published 2015