CalVCB & Restitution

CalVCB & Restitution

Sara HarbargerSenior Attorney

CALVCB BENEFITS OVERVIEW

CalVCB’s Mission

CalVCB is a trusted partner in providing restorativefinancial assistance to victims (and derivativevictims) of crime.

Eligibility• As a direct result of a crime, a victim sustained a

physical injury or an emotional injury with thethreat of a physical injury.

• Physical injury is presumed when a child residesin a home where domestic violence occurred.

• Emotional injury alone in cases of sexualassault, sexual battery, child molestation,distribution of child pornography, kidnapping aminor or failure to provide for a minor.

Types of Compensation

Service Dog

Income/Support Loss

Home and Vehicle Modification

Home Security Mental Health

Funeral/Burial Relocation

Crime Scene Cleanup

Expenses NOT Covered• Not directly related to the qualifying crime

• Stolen or damaged personal or real property

• Pain and suffering

• Already paid by insurance or other reimbursement source

APPEALS OF CALVCB DENIALS

Appeal

An applicant may file an appeal within 45 days of astaff recommendation to deny compensation inwhole or in part.

Gov. Code section 13959

Hearing• An applicant’s appeal hearing is informal and

need not be conducted according to thetechnical rules of evidence. (Gov. Code section13959, subd. (e)(1).

• The hearing may be limited to the written record.(Cal. Code Regs., tit. 2 section 647.20.1.)

Reconsideration

The Board may consider a request forreconsideration of all or part of a decision onwritten request of applicant if filed with within 60days.

Gov. Code section 13959, subd. (i)

Writ of Mandate

An applicant may seek judicial review of a finaldecision by filing a petition for writ of mandatewithin 60 days of the Board’s decision.

Gov. Code section 13960

ERRONEOUSLY CONVICTED PERSONS

Claims Pursuant to Penal Code sections 4900, et seq.

Erroneously Convicted Person

Penal Code section 4900 allows a person who hasbeen erroneously convicted and imprisoned for afelony offense to apply for compensation fromCalVCB.

Pen. Code section 4900

Burden of ProofThe claimant bears the burden of proof, by apreponderance of evidence, that (1) the crime withwhich they were charged was either not committedat all, or if committed was not committed by them,and (2) they sustained injury through theirerroneous conviction and imprisonment.

Pen. Code sections 4903, subd. (a) and 4904

Factual Innocence Exception

If a claimant obtains a finding of factual innocencefor each and every conviction underlying theirincarceration as set forth in Penal Code section1485.55 or 851.865, then CalVCB willautomatically recommend payment without ahearing.


Compensation

If a claimant satisfies their burden then CalVCB shall recommend to the Legislature an award of compensation of $140 per day for pre- and post-conviction confinement.


A VICTIM’S RIGHT TO RESTITUTION

Cal. Const. art. I, section 28(b)(13)(A)

It is the unequivocal intention of the people ofthe state of California that all persons whosuffer losses as a result of criminal activity shallhave the right to seek and secure restitutionfrom the persons convicted of the crimescausing the losses they suffer.

Cal. Const. art. I, section 28(b)(13)(B)

Restitution shall be ordered from the convictedwrongdoer in every case, regardless of thesentence or disposition imposed, in which acrime victim suffers a loss.

Cal. Const. art. I, section 28(b)(13)(C)

All monetary payments, monies, and propertycollected from any person who has beenordered to make restitution shall be first appliedto pay the amounts ordered as restitution to thevictim.

Statutory RightPenal Code section 1202.4, provides for fullrestitution for all losses. No reduction or waiver forcompelling and extraordinary reasons.

Welfare & Institutions Code section 730.6,juvenile restitution statute, less comprehensivethan section 1202.4 (considers inability to pay,future earning potential).

Economic LossesExamples:

• Physical injury• Property damage• Child care• Income loss• Court costs

Pen. Code section 1202.4, subd. (f)(3)

Non-Economic Losses

Limited to violations of section 288, 288.5, or 288.7Non-economic damages are subjective, non-monetary losses, including pain and suffering, inconvenience, mental suffering, loss of consortium, injury to reputation.

People v. Smith (2011) 198 Cal.App.4th 415

Restitution OrdersA sentence without an award of full restitution toa victim is invalid. (People v. Moreno (2003) 108Cal.App.4th 1.)

The court retains jurisdiction over a defendant toimpose or modify restitution until losses may bedetermined. (Pen. Code section 1202.46.)

A RESTITUTION HEARING

Standard of Proof

The standard of proof at a restitution hearing is bya preponderance of the evidence, not proofbeyond a reasonable doubt.

People v. Lehman (2016) 247 Cal.App.4th 795

Burden of Proof

Offender bears the burden of proof to show thatthe recommendation of the probation officer or thevictim’s estimate of losses is inaccurate.

Pen. Code section 1202.4, subd. (f)

CalVCB: Restitution Orders

When CalVCB pays a victim’s crime-relatedexpenses, it is entitled to be reimbursed by thedefendant.

Pen. Code section 1202.4, subd. (f)(4)(A).

CalVCB: Evidence

Verification of expenses is met by providing thecourt with redacted and certified copies of billsidentifying services and amount(s) paid.

Pen. Code section 1202.4, subd. (f)(4)(B)

CalVCB : PresumptionCrime expenses paid by CalVCB are presumed tobe a direct result of defendant’s criminal conduct.

Defendant must rebut the presumption to obtainaccess to sealed documents submitted byCalVCB.

Pen. Code section 1202.4, subd. (f)(4)(A)

CalVCB: In-Camera Review

If evidence is offered by defendant to rebut thepresumption, the court may release additionalinformation to prosecutor and defense only afteran in-camera review of CalVCB’s unredactedrecords.

Pen. Code section 1202.4, subd. (f)(4)(C)

Restitution Hearings• Defendant or minor & parents have right to

notice/hearing.• No right to jury trial and hearsay is allowed.

(People v. Cain (2000) 82 Cal.App.4th 81.)• Prosecutor must be present (People v. Dehle

(2008) 166 Cal.App.4th 1380.)• Victim need not be present. (People v. Gemelli

(2008) 161 Cal.App.4th 1539.)

Limited Confrontation Right• Defendant has no right to confront and cross-

examine probation officer preparing report.(People v. Arbuckle (1978) 22 Cal.3d 749.)

• No right to cross-examine psychotherapist.(People v. Cain (2000) 82 Cal.App.4th 81;People v. Garcia (2010) 185 Cal.App.4th 1203.)

• However, court may allow cross-examination if itchooses.

Restitution Non-Issues• Pending civil litigation against defendant• Third party rights i.e. Medi-Cal, Insurance

(People v. Hove (1999) 76 Cal.App.4th 1266.) • Bankruptcy (People v. Moser (1996) 50

Cal.App.4th 130.)• Victim’s release of civil liability does not

relinquish defendant’s restitution obligation. (People v. Vasquez (2010) 190 Cal.App.4th

1133.)

JUVENILE CASES

Juvenile: Parental Responsibility

• Parent(s) and guardian(s) rebuttably presumed liable

• Right to notice and hearing• Age at time of crime• Ability to pay considered• Does not apply to foster parents/grandparents

Juvenile: Liability • Maximum liability of parents is $25,000. (Civil

Code section 1714.1)

• Maximum liability of parents when crime involves discharge of firearm is $30,000 - $60,000. (Civil Code section 1714.3)

• Adjusted every two years by Judicial Council.

Juvenile: Derivative Victims• Juveniles are liable for the losses they cause to

victims and derivative victims.

• Marsy’s law struck down provision of Welfare & Institutions Code section 730.6 that mandated derivative victim restitution only if the victim died.

In re Scott (2013) 221 Cal.App.4th 515

Juvenile: CalVCB Presumption

CalVCB’s presumption of evidence as stated in Penal Code section 1202.4, subd. (f)(4) is not applicable to restitution hearings held in juvenile cases under Welfare and Institutions Code section 730.6.

In re S.E. (2020) 46 Cal.App.5th 795

RESTITUTION CASE LAW

Full Restitution

Full victim restitution is mandatory whether it ispaid to the victim or to the Restitution Fund to theextent that CalVCB paid expenses on behalf thevictim.

People v. Brown (2007) 147 Cal.App.4th 1213

Restitution Orders• Enforceable as a civil judgment at any time but it

is not a civil judgment. (Vigilant Ins. Co. v. Chiu(2009) 175 Cal.App.4th 438.)

• Never expires – Adult and Juvenile (In re J.H.(2020) 47 Cal.App.5th 495.)

• Court has broad discretion to order restitution asa condition of probation. (Pen. Code section1203.1.)

Restitution Obligation Until paid in full:

• Defendant is supposed to be unable to expungeconviction but probation can be terminated. (Peoplev. Covington (2000) 82 Cal.App.4th 1263.)

• Once paid in full, file Satisfaction of JudgmentEJ-100.

Restitution Offsets

The party seeking an offset or credit to therestitution order has the burden of proof as toeach fact the existence or nonexistence of whichis essential to the claim for relief they areasserting.

Evid. Code section 500

Restitution OffsetsDefendant is entitled to an offset if their insurancepays a settlement. (People v. Bernal (2002) 101Cal.App.4th 155.)

Defendant can be entitled to an offset if theiremployer’s insurance pays the settlement. (Peoplev. Short (2008) 160 Cal.App.4th 899.)

Defendant can be entitled to an offset if they are onparent’s vehicle insurance policy. (People v.Jennings (2005) 128 Cal.App.4th 42.)

Restitution OffsetsDefendant is not entitled to an offset if victim’sinsurance paid bills. (People v. Birkett (1999) 21Cal.App.4th 226.)

Defendant is not entitled to an offset for the portionof the settlement paid to attorney fees. (People v.Jennings (2005) 128 Cal.App.4th 42.)

Defendant is not entitled to an offset if they are notnamed on the policy. (People v. Hamilton (2003)114 Cal.App.4th 932.)

Repair Costs

Although cost to repair victim’s truck ($2,812.94)was more than the purchase price of the vehicle($950), court has discretion to require defendant topay for the repair of the vehicle so that the victimgets her vehicle back in the same condition it wasbefore defendant vandalized it.

People v. Stanley (2012) 54 Cal.4th 734

All Court Appearances

Derivative victim who was an MD entitled torestitution for time spent in court and away frommedical practice. Doctor attended all courtproceedings whether he was needed or not.$6,250 at $125 per hour was reasonable.

People v. Moore (2009) 177 Cal.App.4th 1229

Travel Costs

Parents of minor deceased victim entitled toreceive reimbursement from defendant for parking,mileage, and other expenses that were incurredwhile attending court appearances.

People v. Crisler (2008) 165 Cal.App.4th 1503

Future Support Loss

Future support loss of deceased’s wife is propersubject of restitution order. Trial court ordered fiveyears of future loss. Court noted that the amount ofloss was imprecise and arbitrary but not sufficientto warrant reversal.

People v. Giordano (2007) 42 Cal.4th 644

Restitution to HospitalOrdering restitution directly to the hospital in aprobation case was appropriate because thedecedent’s family would be unduly burdened byhaving to open or keep open the victim’s estateand by having to forward each restitution paymentto the hospital.

People v. Anderson (2010) 50 Cal.4th 19

Restitution to City

A restitution order requiring defendant to pay a city$18,878 in restitution for 32 incidents of graffiti wasnot an abuse of discretion.

People v. Santori (2015) 243 Cal.App.4th 122

Full Payment

Defendant properly ordered to pay the amount thatthe victim’s health plan would accept as paymentin full, not the billed amount.

People v. Duong (2010) 180 Cal.App.4th 1533

Attorney FeesVictims can recover attorney fees incurred torecover economic losses and both economic andnoneconomic losses, but not noneconomic lossesalone. When both are recovered, the court is notrequired to reduce the attorney fees incurred.

People v. Grundfor (2019) 39 Cal.App.5th 22

Comparative Fault

Need not apportion fault when the victim was not asubstantial factor in causing the accident.

People v. Watson (2013) 220 Cal.App.4th 313

Comparative Fault

Restitution requires criminally negligentdefendants to reimburse victims only to extentdefendant’s conduct caused victim’s economiclosses.

People v. Millard (2009) 175 Cal.App.4th 7

Hit-and-Run

If only convicted of leaving the scene of an accident,restitution must be proven to be related to the leaving(increased injury) and not the collision.

People v. Martinez (2014) 226 Cal.App.4th 1156

If sentenced to probation, the court can makerestitution for property damage a term of probation.

People v. Carbajal (1995) 10 Cal.4th 1114

Residential SecurityA victim is entitled to restitution for residential securityif related to a violation of Penal Code section 273.5 orif the violation is a violent felony defined under section667.5. (Pen. Code section 1202.4, subd. (f)(3)(J).)

People v. Salas (2017) 9 Cal.App.5th 736

Penal Code section 1202.4 does not preclude the court from ordering restitution for residential security because it is an economic loss.

People v. Henderson (2018) 20 Cal.App.5th 467

Non-Economic Award• Prosecution not required to present victim

testimony, affidavits or expert declarations inconnection with restitution hearing.

• Trial testimony, sentencing statements andprobation report are sufficient to establishlosses.

People v. Lehman (2016) 247 Cal.App.4th 795

Non-Economic AwardThe trial court may impose restitution for non-economic losses to the minor victim’s motherbecause she is a victim in her own right pursuantto Penal Code section 1202.4, subd. (k)(3) and (4).

People v. Montiel (2019) 35 Cal.App.5th 312

Post-Death Losses

Post-death expenses are not to be a part ofrestitution to the victim’s estate (gross vehicularmanslaughter – decedent is the victim, not theestate.)

People v. Runyan (2012) 54 Cal.4th 849

Jurisdiction• Trial court’s retention of jurisdiction to determine

and award victim restitution was permissibleeven though the defendant’s probation hadexpired.

• California Supreme Court found that trial courtretained subject matter jurisdiction because thedefendant delayed the hearing.

People v. Ford (2013) 217 Cal.App.4th 1354

Jurisdiction• Defendant was properly ordered to pay victim

restitution after her prison sentence was fullyserved.

• PC 1202.46 allows determination of restitution atany time.

People v. Bufford (2007) 146 Cal.App.4th 966

Lack of Juridiction

• The court determined that it did not havejurisdiction to modify or impose additionalrestitution after defendant’s probationary termhad expired.

People v. Hilton (2014) 224 Cal.App.4th 47

COLLECTING RESTITUTION

CR-110 & 111 and JV-790 & 791

• Order for Restitution and Abstract of Judgment

• Clearly lists the victim and accompanying order

• Never expires

Financial Disclosure CR-115• Adult offenders must disclose all assets, income

and liabilities from date of arrest. (Pen. Codesection 1202.4, subd. (f)(5).)

• Required to file a new form 120 days prior totermination of probation. (Pen. Code section1202.4, subd. (f)(11).)

• Filed with court clerk before sentencing unlessotherwise directed by court.

• Copy to victim.

Collection Resources• CA Dept. of Corrections and Rehabilitation• Franchise Tax Board• Probation• County collections• Courts• Private collection Agencies• CalVCB Probate and Settlement Recovery• Direct victim collections

CA Department of Corrections and Rehabilitation

• Authorized to deduct up to 50 percent from aninmate’s trust account to collect restitutionorders and fines. (Pen. Code section 2085.5.)

• Authorized to collect restitution orders and finesfrom prior prison sentences. (People v. Ellis(2019) 31 Cal.App.5th 1090.)

Release from Prison • Remaining restitution orders and fines are sent

to the Franchise Tax Board. (Rev. & Tax Codesection 19280, subd. (a)(1).)

• Disbursements to victim every six months orwhen $50 is collected.

Probation • The court shall make the payment of restitution a

condition of probation. (Pen. Code section1202.4, subd. (m).)

• Any payment received by the court or probationshall be forwarded to the victim. (Pen. Codesection 1203.1, subd. (b).)

• When probation terminates, unsatisfiedrestitution shall continue to be enforceable.(Pen. Code section 1202.4, subd. (m).)

CalVCB Collections• Attorneys or other estate representatives are

required to notify CalVCB when an heir isincarcerated or was previously incarcerated. Theestate shall reimburse CalVCB before the heir.(Probate Code sections 216 and 9202.)

• CalVCB files liens on insurance and civilsettlements to recover benefits. (Gov. Codesection 13963.)

Direct Victim Collections• A restitution order is enforceable as if it were

a civil judgment and may be collected untilsatisfied. (Pen. Code sections 1202.4, subd.(i) and 1214.) i.e. a victim can:

• Request a bank levy• Request a wage garnishment• File a writ of execution• File a lien at county Recorder’s Office

QUESTIONS?

Sara [email protected]

THANK YOU!

[email protected]

1-800-777-9229

CRIME VICTIM ASSISTANCE CENTER

SHASTA COUNTY DISTRICT ATTORNEY’S OFFICE

1355 West StRedding CA 96001530-225-5220

ADVOCATES IN THE DA OFFICE PROVIDE…

Mandatory services:Crisis intervention Emergency AssistanceResources and ReferralsApplication Assistance for VCB BenefitsProperty ReturnInformation about the Criminal Justice ProcessCourt SupportTraining for Law EnforcementVictim Impact StatementsNotification to Family and EmployerRestitutionTranslation

Optional Services:Creditor InterventionChild Care AssistanceWitness NotificationFuneral ArrangementsCrime Prevention InformationWitness ProtectionRestraining Order AssistanceTransportation AssistanceCourt Waiting AreaDirect CounselingOutreach

CALIFORNIA VICTIM COMPENSATIONDirect Victim:Medical and/or Dental ExpensesMoving/Relocation ExpensesMental Health TreatmentIncome LossHome Security ImprovementsJob RetrainingCrime Scene Clean-upHome or Vehicle ModificationsMileage

Derivative Victim:Mental Health TreatmentFuneral and/or Burial ExpensesMedical Expenses (for a deceased victim)Income Loss (Due to hospitalization or death of a child)Crime Scene Clean-upLoss of SupportHome Security ImprovementsMileage

ELIGIBILITY REQUIREMENTS• Crime documentation

• Apply within 7 years with exceptions including:an application based on sexual assault of a minor may be filed any time prior

to the victim’s 28th birthday.

• Cooperate with CalVCB• Cooperate with Law Enforcement

QUALIFYING CRIMES

Assault Child AbuseDomestic ViolenceDrunk DrivingElder AbuseHate Crimes

Sexual AssaultStalkingVehicular ManslaughterRobberyOnline HarassmentHuman TraffickingHomicide

ELIGIBLE VICTIMS

Government Code § 13951(g) defines “victim” as an individual who sustains injury, threat of injury or death as a direct result of a crime as specified in subdivision (f) of Section 13955

Government Code § 13951(g) defines “derivative victim” as

• The parent, grandparent, sibling, spouse, child, or grandchild of the victim.

• Someone living in the household of the victim.

• A person who previously lived in the household of the victim for a period of not less than two years in a relationship substantially similar to a parent, grandparent, sibling, spouse, child, or grandchild of the victim.

• The primary caretaker of a minor victim, but was not the primary caretaker at the time of the crime.

• Another family member of the victim (related by blood, marriage, registered partnership, or adoption) who witnessed the crime.

Funeral/Burial Expenses Allowed Based on Cultural Traditions

•Clothing or buckskin to make the clothing for the deceased

•Material needed to make the burial and gifting quilts (these are not made until a person is deceased)

•Wood, paint, markers, and other building supplies needed to mark the grave as dictated by tribal custom

•Smudging supplies (tobacco, dried herbs or a smudge stick, clay or stone bowls, sea shells, and a feather or fan)

•1/3 cord of wood for a healing/sweat lodge

The California Victim Compensation Program Website

www.calvcb.ca.gov

FOR MORE INFORMATION VISIT:

QUESTIONS

ADVOCATES IN THE DA VICTIM WITNESS OFFICE ASSIST CLIENTS WITH…

Gathering supporting documents for:*Medical and/or dental expenses*Moving or relocation*Funeral/Burial Expenses*Income loss*Home security improvements*Home or vehicle modifications*Crime scene clean-upProperty ReturnVictim Impact StatementsRestitution

Types of documents:Insurance information/Explanation of Benefits

Caregiver’s Affidavit

CWS Cross Reports

Relocation Packet:

Law Enforcement Relocation Verification Form

Medical or Mental Health Provider Relocation Verification Form

Relocation Rental Verification

Relocation Expense Verification Form

Death Certificates/Funerial and Burial Invoices

Medical travel expense receipts

Medical and dental bills

Receipts for security improvements

Documents supporting prosecution:

Photos of injuries

Text messages

Videos

Voicemails

Letters

Restraining order documents:

DV100, CH100

Order After Hearing; DV130, CH130

CalVCB & Restitution

Documents

Transcript of CalVCB & Restitution