Tag Archives: Restitution

Discretion, Duty of the court, Juveniles, Sentencing, Standard of review

Case 001112

Posted on by Gary McCurdy

Error and/or relief

It was error for the juvenile court to order the minor to pay restitution to the victim at the rate of (a specific dollar amount was named) per month, where the court had not ordered an amount of restitution that was owed, and had not declared that the amount could not be determined at the present time.

Remanded to the juvenile court. For the purposes of making an order regarding the amount of restitution payable by the minor, the court needs to determine what the amount of loss is, or if, instead, the loss cannot be ascertained at the time of disposition.

First Holding:

Welfare and Institutions Code section 730.6(a)(2) provides that upon a minor being found to be a person described in section 602, the court shall order the minor to pay, in addition to any other penalty provided or imposed under the law, restitution to the victim or victims, if any, in accordance with subdivision (b).

Authority:

WIC 730.6(a)(2)

Second Holding:

Section 730.6(b)(1) provides that restitution to the victim, who incurs an economic loss as a result of the minor’s conduct, shall be imposed in the amount of the losses, as determined. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation.

Authority:

WIC 730.6(b)(2)

Third Holding:

Because the statute authorizes the restitution amount to be determined at any time during the term of the commitment or probation, restitution orders may be made after the disposition order, even years later.

Authority:

In re A.R. (2022) 78 Cal.App.5th 184, 187-188 [court affirmed 2021 restitution order where disposition order was made in 2016]

Fourth Holding:

Restitution in a juvenile wardship case may be ordered either pursuant to section 730.6, or alternatively as a condition of probation.

Authority:

WIC 730(a)(1)

In re T.C. (2009) 173 Cal.App.4th 837, 844-845 [holding that section 730.6 specifies when restitution must be imposed, and section 730 states when restitution may be imposed as a condition of probation]

Fifth Holding:

Generally, an order of restitution will not be overturned in the absence of an abuse of discretion. The court abuses its discretion when it acts contrary to law or fails to use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.

Authority:

In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016

Sixth Holding:

The record should be harmonized if possible, including consideration of the probation report. However, we do not believe it is possible in this instance to do so.

(Gary note: The appellate court noted that the probation report’s observations and recommendations were inconsistent because of the lack of determination of the amount of restitution.)

Because of inconsistencies in the probation report, we cannot assume that the court incorporated its recommendations. We must remand to the juvenile court to make the necessary findings.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

In re P.O. (2016) 246 Cal.App.4th 288, 292 fn. 4 [where the probation conditions in question only appear in a probation department form and nowhere else in the record, the reviewing court would nevertheless assume that these conditions were in fact imposed]

Juveniles, Sentencing, Standard of review

Case 000987

Posted on by Gary McCurdy

Error and/or relief

We affirm the juvenile court’s restitution order as modified to reduce the amount of restitution by $110.

First Holding:

In calculating restitution a court need not ascertain the exact amount of loss, and a restitution award based upon estimates and averages. A court retains broad discretion to estimate costs incurred by a party seeking restitution.

Authority:

Luis M. v. Superior Court (2014) 59 Cal.4th 300, 309-310

Second Holding:

A restitution order is reviewed under the abuse of discretion standard. The court’s factual findings supporting restitution are reviewed for substantial evidence and a restitution order that is based upon an error in law constitutes an abuse of discretion. A victim’s restitution right to restitution is to be construed broadly and liberally.

Authority:

In re J.L. (2026) 121 Cal.App.5th 355, 361

In re K.F. (2009) 173 Cal.App.4th 655, 661

Third Holding:

A juvenile court does not abuse its discretion if there is a factual and rational basis for the amount of restitution ordered. The court may use any rational method of fixing the amount of restitution, provided it is reasonably calculated to make the victim whole, and provided it is consistent with the purpose of rehabilitation.

There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action. Nonetheless, a juvenile court must use a rational method of calculation and must rely on facts found by a preponderance of the evidence to make the victim whole.

Authority:

In re J.L. (2026) 121 Cal.App.5th 355, 361

In re Alexander A. (2011) 192 Cal.App.4th 847, 853, 855-856

In re S.O. (2018) 24 Cal.App.5th 1094, 1102

Fourth Holding:

Restitution hearings are intended to be informal, and Welfare and Institutions Code section 730.6 does not, by its terms, require any particular kind of proof. A prima facie showing of loss may be based on the victim’s testimony. Once the victim makes a prima facie showing of economic losses incurred as a result of the minor’s delinquent acts, the burden shifts to the minor to disprove the amount of the losses claimed by the victim.

Authority:

People v. Weatherton (2015) 238 Cal.App.4th 676, 684

In re J.L. (2026) 121 Cal.App.5th 355, 362

In re S.O. (2018) 24 Cal.App.5th 1094, 1102

People v. Millard (2009) 175 Cal.App.4th 7, 26

Fifth Holding:

Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. The minor argues that the victim’s testimony was sometimes internally inconsistent; however, inconsistencies and conflicts in the evidence go to credibility of witnesses and weight of the evidence, which are matters for the trial court.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 202

In re S.A. (2010) 182 Cal.App.4th 1128, 1149

Jurisdiction, Juveniles

Case 000774

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred by holding the minor jointly and severally liable for victim restitution.

First Holding:

Restitution orders are subject to review on appeal for an abuse of discretion. The ‘court abuses its discretion when it acts contrary to law.

Authority:

In re Travis J. (2013) 222 Cal.App.4th 187, 202

Second Holding:

Welfare and Institutions Code section 730.6 governs restitution in cases where a minor is adjudicated a ward of the court pursuant to section 602. Under this statute, a victim of conduct for which a minor is found to be a person described in section 602 who incurs an economic loss as a result of the minor’s conduct shall receive restitution directly from that minor.

For the purposes of victim restitution, each minor shall be held severally liable, and shall not be held jointly and severally liable as co-offenders. The court shall apportion liability based on each minor’s percentage of responsibility or fault for all economic losses included in the order of restitution. The aggregate amount of apportioned liability for all minors involved shall not exceed 100 percent in total.

Authority:

WIC 730.6

WIC 602

In re M.W. (2008) 169 Cal.App.4th 1, 4

Third Holding:

The error has not been waived, as the failure to object to a restitution order that exceeds the court’s statutory authority does not waive the claim of error.

Authority:

In re Paul R. (1996) 42 Cal.App.4th 1582, 1590

Duty of the court, Sentencing

Case 000731

Posted on by Gary McCurdy

Error and/or relief

The defendant was resentenced under section 1172.75. We remand with directions to the trial court to recalculate the defendant’s custodial credits and to reimpose the restitution order with joint and several liability.

First Holding:

When the defendant was originally sentenced in 2008, the trial court imposed a restitution order of (more than $50,000) on all three defendants. The court ordered joint and several liability, that is, each defendant is entitled to a credit for any actual payments by the other. The trial court has the authority to order direct victim restitution paid by all defendants jointly and severally. On resentencing, the court reimposed an order for restitution in the same amount, but did not make an order of joint and several liability. To prevent the possibility of unjust enrichment—a double recovery by the victim—the restitution order must be corrected to reflect joint and several liability.

Authority:

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535

People v. Leon (2004) 124 Cal.App.4th 620, 622 [if two defendants convicted of the same crime caused economic loss, a court may impose liability on each defendant to pay the full amount of the economic loss, as long as the victim does not obtain a double recovery]

Second Holding:

The trial court erred in delegating the recalculation of the defendant’s custody credits to the Department of Corrections and Rehabilitation. The trial court should have recalculated and pronounced the number of custody credits the defendant had garnered to the date of resentencing. When a prison term already in progress is modified the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000724

Posted on by Gary McCurdy

Error and/or relief

The victim restitution award for expenses paid by the Victim Compensation Board violates the defendant’s right to due process and is reversed because the prosecution did not present bills to establish the amount paid as required pursuant to section 1202.4(f)(4)(B). The matter is remanded for the court to hold a new restitution hearing. Additionally, The abstract of judgment should be corrected to reflect the defendant was sentenced to 40 years to life (rather than 50 years to life).

First Holding:

The only evidence presented at the restitution hearing was the set of California Victim Compensation Board forms submitted by the prosecution, over the objection of counsel. No certified copies of the bills were introduced, nor was a declaration under penalty of perjury by the custodian of records. Restitution for expenses paid by the California Victim Compensation Board requires proof established by copies of bills submitted to the Board, reflecting the amount paid, pursuant to section 1202.4(f)(4)(B).

Authority:

PEN 1202.4(f)(4)(B)

Second Holding:

In California, crime victims have the right to receive restitution for losses attributable to the defendant’s actions. Indeed, in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.

Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner’s statement made in the probation report about the value of stolen or damaged property. This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution.

When the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.

Authority:

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

PEN 1202.4(a)(1)

People v. Lockwood (2013) 214 Cal.App.4th 91, 96

People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320

Third Holding:

However, section 1202.4(f)(4) includes special provisions that are applicable when, as here, state funds are used to provide assistance to or on behalf of a victim.

The amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation Board reflecting the amount paid by the board and whether the services for which payment was made were for medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation.

Certified copies of these bills provided by the board and redacted to protect the privacy and safety of the victim or any legal privilege, together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board, shall be sufficient to meet this requirement.

The section 1202.4(f)(4)(B) restitution order lacks the necessary evidentiary support and must be vacated and the case remanded for a new restitution hearing.

Authority:

PEN 1202.4(f)(4)

People v. Lockwood (2013) 214 Cal.App.4th 91, 96

Fourth Holding:

The abstract of judgment states defendant was sentenced to a term of 50 years to life on count 1. It also reflects defendant was sentenced to 25 years on the section 12022.53(d) enhancement. However, defendant was sentenced to 15 years to life on count 1 and 25 years to life for the section 12022.53(d) firearm enhancement.

When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties. On remand, the trial court is instructed to prepare a corrected abstract of judgment.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 89