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San Francisco Criminal Defense Lawyer Explains Restitution

Posted by Michael Geller | Sep 01, 2022 | 0 Comments

In criminal law, many people believe that justice is served exclusively through the filing of criminal charges and prosecuting a defendant before a judge and jury with the intent to convict the defendant of the charges. This notion of how criminal law works is inaccurate. In fact, according to Article 1, Section 28 of the California Constitution, someone who allegedly suffered a “loss” due to a purported criminal activity has the option to pursue “restitution” from the individual, or individuals, who are convicted of the crime that caused the loss. 

What Exactly is Restitution?

Restitution is the restoration of something that was lost or stolen. In the context of California criminal law, restitution is the amount of money, or damages, incurred by someone in connection with a criminal offense. Restitution is the amount that is ordered to be paid by a defendant to the court and/or to a victim. The primary objective of restitution is to compensate a victim for their harms and losses.

Understanding the Difference Between General Restitution and Victim Restitution

There are two major types of restitution in the context of a criminal proceeding - victim restitution and general restitution. When a defendant is convicted of committing a criminal offense, a judge has the authority to order the defendant to pay the victim to fully compensate the victim for their harms and losses. This order is known as a “victim restitution order.”

However, there are instances where a victim does not request restitution, but the court orders the defendant to pay a restitution fine. This is known as “general” restitution." The amount paid in general restitution goes toward funding the California Victims Compensation Fund. The California Victims Compensation Fund was created to help compensate people who are victims of crimes to cover expenses such as relocation, medical bills, and funeral costs.

What is a Harvey Waiver?

A Harvey waiver is a type of agreement between a district attorney and a defendant in a criminal case where any charges that are dismissed as part of a plea bargain can still be used against the defendant at sentencing. This waiver benefits a defendant who is getting a lesser charge as part of a plea agreement, but also ensures that restitution is fairly compensated to the victim for their harms and losses.

Civil Compromise

In addition to a Harvey waiver, another option potentially available to defendants is negotiating a “civil compromise.” A civil compromise is when a state prosecutor, or the judge overseeing the criminal case, agrees to dismiss criminal charges brought against a defendant in exchange for the defendant providing full compensation to the victim for their harms and losses. Though, a civil compromise is generally only available in limited circumstances. For example, pursuant to California Penal Code 1377 PC, a civil compromise is only available to defendants who have been charged with a misdemeanor criminal offense. However, a civil compromise is not available, even to misdemeanor charges when the offense was committed against a child, an elderly individual, or a member of law enforcement.

What is a Restitution Hearing?

When restitution becomes an issue in a criminal proceeding, it is important to note that a defendant has the right to request a “restitution hearing” before the judge overseeing the case. At this hearing the defendant can argue against the amount of money that the victim is seeking for restitution. It is also worth noting that the victim bears the burden of proving their harms and losses by submitting actual evidence such as receipts, medical bills, lost profits, and so forth. The standard of proof at a restitution hearing is “a preponderance of the evidence,” which means “more likely than not.” However, once a victim makes a prima facie showing of economic losses, the burden shifts to the defendant to disprove the amount of the claimed losses.

Have Questions About Restitution? Contact The Geller Firm Today

If you are being charged with a criminal offense and need guidance on how to best respond to issues related to restitution, contact The Geller Firm. Your freedom and constitutional rights are too important to be left to chance. The experienced legal professionals with The Geller Firm stand ready to help. Contact their office today to schedule a case review.

About the Author

Michael Geller

Michael Geller grew up in San Francisco, CA. He attended the University of Southern California for his undergraduate studies, the City University of New York for his medical training, and Santa Clara University School of Law for his legal education.

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