CALIFORNIA RESTITUTION GUIDE

A COLLABORATIVE APPROACH TO THE 
COLLECTION OF RESTITUTION

Developed by

UNIVERSITY OF THE PACIFIC • McGEORGE SCHOOL OF LAW
INSTITUTE FOR ADMINISTRATIVE JUSTICE

Fall 2003
Updated Fall 2004

RESTITUTION ORDERS:  A COLLABORATIVE PROCESS

"Restitution is one of the most significant factors influencing victim satisfaction with the criminal justice process. While restitution has always been available via statute or common law, it remains one of the most underutilized means of providing crime victims with a measurable degree of justice."¹ Many victims feel that justice includes offender accountability for the financial, physical, emotional, psychological and spiritual harm caused by the crime. Restitution is a part of offender accountability and helps victims recover out-of-pocket expenses.

The process of obtaining and collecting on a restitution order can sometimes be complicated and requires the cooperation and collaboration of the entire criminal justice system. One part of the system failing to carry out its role results in further frustration by the victim and feelings of further victimization.

This instruction booklet focuses primarily on how to assist victims in obtaining a restitution order and collecting that restitution once ordered. What you will note throughout this booklet is the importance of communication among individuals and agencies involved in the process of restitution.

Restitution is a victim’s right.² In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require the defendant to make restitution to the victim or victims in an amount established by court order.³ Restitution must be sufficient to fully reimburse the victim or victims for every economic loss incurred as a result of the defendant’s criminal conduct, including, but not limited to, full payment for the value of stolen or damaged property, medical expenses, mental health counseling expenses, lost wages or lost profits incurred by the victim or the victim’s parents, if the victim is a minor, relocation expenses, and expenses to install or increase residential security.⁴ Restitution also covers some noneconomic losses, including psychological harm.⁵

Full restitution is ordered by a judge at the time of sentencing or when a plea is accepted by the court, unless the court finds compelling and extraordinary reasons for not doing so, and states them on the record.⁶ Two types of restitution must be ordered by the judge: (1) a restitution fine and (2) a restitution order directly to the victim.⁷

A restitution fine is considered a form of penalty assessment and is set at the discretion of the court commensurate with the seriousness of the offense. If an adult is convicted of a felony, the judge can order the defendant to pay the minimum amount, which is $200, or up to the legal maximum, which is $10,000. For a juvenile convicted of a felony, the minimum fine is $100 and the maximum is $1,000. If an adult is convicted of a misdemeanor, the judge can order the defendant to pay the minimum amount, which is $100, or up to the legal maximum, which is $1,000. A juvenile found to have committed one or more misdemeanor offenses shall pay a fine not to exceed $100.⁸ A portion of the money collected from the restitution fine is deposited in the Restitution Fund of the State Treasury.⁹ This fund is used to pay for the Victim Compensation Program.¹⁰ Victims of crime can apply to the Victim Compensation Program for help with reimbursement for pecuniary losses that occurred as a result of a crime.¹¹ A pecuniary loss is defined as "an economic loss or expense resulting from an injury or death to a victim of crime that has not and will not be reimbursed from any other source."¹² Victims of property crimes, with some exceptions, do not qualify for assistance from the Victim Compensation Program.¹³

A restitution order is payment by the defendant made directly to the victim or victims for any economic loss suffered as a result of a crime.¹⁴ There are six important features of a restitution order that distinguishes it from a restitution fine:

1. The money collected goes directly to the victim or as reimbursement to the Victim Compensation Program for expenses paid on behalf of the victim.

2. There is no minimum or maximum amount a judge can order.

3. A restitution order is enforceable as if it were a civil judgment.¹⁵

4. Interest at the rate of 10 percent per annum accrues as of the date of sentencing or loss as determined by the court.¹⁶

5. The court must order full restitution, unless it finds "compelling and extraordinary reasons for not doing so, and states them on the record."¹⁷

6. A restitution order can include compensation for some noneconomic losses, such as for psychological harm, for felony violations of Penal Code section 288.¹⁸

Notice of Right to Restitution

As indicated above, restitution is ordered by the judge at the time of sentencing or when a plea is accepted. A victim of any crime has the right to be given adequate notice by the probation department of all sentencing proceedings.¹⁹ The probation office notice should also inform a victim of the requirement that the court order restitution for a victim, that the victim has a right to receive a copy of the restitution order from the court, and that the victim has a right to enforce the restitution order as a civil judgment.²⁰ This same notice should inform a victim that he or she is required to furnish the probation department, district attorney, or court with information relevant to his or her losses.

Cases move so quickly through some phases of the criminal justice system that oftentimes victims miss the opportunity to act on their right to restitution by not communicating with the probation officer, district attorney, or court about the amount of their losses prior to sentencing.

In such situations, the only way to rectify the order is to go back to court to have the amount determined. However, most district attorneys’ offices have extremely high criminal case loads and do not have time to bring cases back to court just to set a restitution amount. Additionally, many district attorneys are reluctant to bring cases back to court for modification of restitution orders because defendants have a right to a hearing before a judge to dispute the determination of the amount of restitution, and this takes additional time.²² If defendants have been sent to jail or prison, there are also exorbitant costs associated with bringing defendants back to court. It is therefore critical that victims be advised of their right to a restitution order, and of the importance of providing relevant information prior to sentencing. The request for restitution may be made by communicating with the district attorney, probation officer, or victim witness advocate, depending on how the system is structured in a particular county.

Currently, most restitution orders are issued as "minute orders." A minute order is simply a few sentences written in the clerk’s record of the day’s proceedings. Both the California Department of Corrections and Rehabilitation and the California Department of Corrections and Rehabilitation Youth Division will collect restitution on the basis of a minute order. However, minute orders are not judgments and, therefore, cannot be used for purposes of collection as a civil judgment (which is discussed further below). A minute order is simply an order and is usually not specific enough to be converted to a judgment. Only judgments are collectible, using what is known in the law as debt collection practices. Once the judge makes a restitution order, it must be converted to an abstract of judgment. This is a simple process if a victim uses the California Judicial Council form entitled "Order for Restitution and Abstract of Judgment" at the time the order is made.

The California Judicial Council has simplified the process of obtaining a restitution order and an enforceable judgment by creating the form entitled "Order for Restitution and Abstract of Judgment" (Judicial Council Form CR-110/JV790) for use in both criminal and juvenile proceedings. Although this form is not mandatory, it is strongly suggested that victims use this form to protect their right to restitution. Currently, few victims make use of this form, perhaps because many victims are not aware of its existence, and many judges do not promote the use of this form. The Order for Restitution and Abstract of Judgment (ORAJ), instructions, and other Judicial Council forms are available at the courthouse, any county law library, or on the Internet at www.courtinfo.ca.gov/forms/

The use of this form will ensure that the victim obtains all necessary information for purposes of collection. If there is more than one victim, this form identifies each victim and the amount of restitution requested by each. To guarantee the victim’s right to restitution, this form should be completed by the victim, victim advocate, or district attorney prior to sentencing, and provided to the judge at the time of sentencing for issuance as an order of the court. A minute order usually does not leave the courtroom unless a victim specifically requests a copy. However, the Order for Restitution and Abstract of Judgment is specifically designed so that the victim can leave the courtroom with an enforceable judgment that never expires. The order and judgment is filed by the clerk of the court once it is signed by the judge, and the victim leaves with a copy in hand. This form will serve the victim well regardless of how restitution is collected.

Defendant’s Statement of Assets (CR - 115)

Another Judicial Council form relevant to the process is the " Defendant’s Statement of Assets." This form is mandated for use under Penal Code §1202.2(f)(5). On this form the defendant is required to disclose all assets, income and liabilities in which the defendant held or controlled a present or future interest as of the date of defendant’s arrest for the crime for which restitution is ordered. It is a misdemeanor to falsify information required by this form.²³ The defendant must make the disclosures required by this form no later than the date set for the defendant’s sentencing and provide this form to the district attorney, unless the court directs otherwise.²⁴ The type of information disclosed on this form includes the defendant’s date of birth, social security number, driver’s license number and state where issued, present occupation and sources of income, bank accounts, property and other assets and liabilities. This type of information, which is normally presumed to be confidential, is available to every victim through the district attorneys’ office.²⁵ It is essential for the victim to obtain the Defendant’s Statement of Assets to effectively collect restitution using the debt collection practices outlined below.

Form Interrogatories - Crime Victim Restitution (CR- 200)

To further expedite the restitution collection process, the Judicial Council has created form interrogatories for use by crime victims, entitled "Form Interrogatories - Crime Victim Restitution." These forms consist of specific detailed questions concerning the defendant’s income, employment, assets and liabilities. These forms have been available for use since January 1, 2004. These forms may be used once each calendar year and the defendant is required to provide current information regarding the nature, extent, and location of any assets, income and liabilities.²⁶

The simplest way to collect on an order of restitution is to have someone else do it. However, this is only possible during the time that the offender is under the jurisdiction of the criminal justice system.

By law, the California Department of Corrections and Rehabilitation (CDCR) must collect money from inmates owing restitution.²⁷ Currently, CDCR will deduct 50% of the inmate’s wages and trust account deposits to pay a restitution order. If an inmate has a restitution fine and a restitution order, the order is collected before the fine.²⁸ Restitution can be collected as long as the offender is in a state prison or reception center, but not if the offender is in a community correctional facility, or local jail. The downside of this requirement is that if an inmate does not deposit any money into his/her trust account while incarcerated, there will be no restitution to collect.

Restitution collected from an inmate’s trust deposits is transferred to the California Victim Compensation and Government Claims Board (Compensation Board) for direct payment to the victim. The restitution revenues are paid to the victim within 60 days from the date the money is received by CVCGCB. However, if the payment is less than $50, the payment need not be forwarded to the victim until the payment reaches $50, or within 180 days from the date the first payment is received, whichever occurs first.²⁹

As of January 1, 2007, CDCR started collecting immediately on orders with or without contact from the victim.  However, it is still imperative that victims fill out the correct forms with CDCR so that monies collected can be properly dispersed.  CDCR has created a form to facilitate this request -- Victim Services and Restitution Collection Request Form. The form can be obtained through the CDCR Office of Victim Services and Restitution by calling (888) 562-5874 or by downloading it from CDCR’s Web Site (www.cdcr.ca.gov/Victims/Direct_Order_Instructions.html). It is also available from any local Victim-Witness Assistance Center. The Order for Restitution and Abstract of Judgment and Defendant’s Statement of Assets may be used to fill out CDCR’s form. A victim should also provide CDCR with a copy of the Order for Restitution and Abstract of Judgment and Defendant’s Statement of Assets, because these forms contain useful details.

CDCR’s current accounting system permits CDCR to collect restitution for only one victim at a time. Because some inmates have multiple victims, CDCR has instituted a "first come, first serve" basis for collection of victim restitution. This is one reason it is so important to counsel victims through the restitution process because the victim may never collect unless his request is received by CDCR in a timely fashion. With inmates typically receiving between 38 cents and one dollar per hour in prison, it usually takes a long time for a victim to collect on a restitution order. Very importantly, it is essential that the victim keep CDCR informed of his/her current address. If a victim cannot be located, restitution received by CVCGB on behalf of a victim will revert to the Restitution Fund at the end of the state fiscal year after the fiscal year in which the funds were deposited.³⁰

If the offender is out on parole, the California Department of Corrections still has jurisdiction to collect restitution from the defendant. In fact, CDCR may contract with a private debt collection agency or with the Franchise Tax Board to make collections on behalf of the victim from parolees.³¹ However, currently CDCR only collects from parolees who volunteer to pay restitution.³² If CDCR is collecting restitution from a parolee who has voluntarily agreed to pay, the process is exactly the same as that described above for inmates. It is important to keep in mind that restitution payments are not a general condition of parole, and a parolee cannot be violated for nonpayment. However, in an unusual case, a victim could request that the Board of Prison Terms impose a special condition which would require a parolee to make regular restitution payments to the victim.³³ Currently, if a parolee wishes to transfer his/her parole out of state, restitution to the victim must be fully satisfied prior to the granting of a transfer request.³⁴  

Because of the voluntary nature of collections from parolees, a victim should not wait until an inmate is out on parole to submit his/her collection form to CDCR.

All those who are convicted of misdemeanor crimes are eligible for probation as a sentence. The maximum probation sentence is three years in most cases.³⁵ If the defendant’s sentence includes probation, the victim should talk with the probation officer prior to sentencing to ensure that the probation officer includes in his/her report a recommendation that the defendant be required to pay restitution to the victim as a condition of probation.³⁶

CDCR has no jurisdiction to collect restitution from a person on probation. However, if restitution is a condition of probation, the probation officer must establish an account into which restitution payments are deposited on behalf of the victim.³⁷ Any restitution payments received by the probation department by cash or money order will be forwarded to a victim within 30 days of receipt. Restitution payments in the form of a check received by probation will be forwarded within 45 days to the victim. However, if the amount is less than $50, probation may wait until 180 days from the time the first payment was received by the department before forwarding to the victim.³⁸

In 2002, a priority was established by the legislature to ensure that any money received from an offender for restitution goes first to pay the victim, and then, to any restitution fines or other entities.³⁹ This one legislative change has dramatically affected the number of victims receiving full restitution, because now the victim must be paid before the county can receive reimbursement for legal assistance, probation costs, costs of confinement, and any other reimbursable costs.

If a probationer fails to pay the restitution that is a condition of his/her probation, probation can be revoked only if the court determines that the probationer has willfully failed to pay and has the ability to pay.⁴⁰ Therefore, very few probations are actually revoked for failure to pay restitution. If restitution is not collected during the probation period, collection then becomes the responsibility of the victim, who must use one or more of the collection methods created for collection of a civil judgment.⁴¹ (See below, p. 11)

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1 New Directions from the Field: Victims’ Rights and Services for the 21st Century, U.S. Department of Justice,
   Office of Justice Programs, Office for Victims of Crime, 1998, p. 357.

  2 California Constitution Article 1, § 8
 
  3 California Penal Code § 1202.4(f)

  4 California Penal Code § 1202.4(f)(3)(A-K)

  5 California Penal Code § 1202.4(f)(3)(F)

  6 California Penal Code §1202.4(f)

  7 California Penal Code §1202.4(a)(3)(A-B)

  8 California Penal Code §1202.4(b)(1), Welfare and Institutions Code § 730.6(b)

  9 California Penal Code § 1202.4(e)

  10 California Government Code § 13964

  11 California Government Code § 13950

  12 California Government Code § 13951

  13 California Government Code § 13955

  14 California Penal Code § 1202.4(f)

  15 California Penal Code § 1202.4(a)(3)(B) and 1202.4(i)

  16 California Penal Code § 1202.4(f)(3)(F)

  17 California Penal Code § 1202.4(f)

  19 California Penal Code § 1191

  20 California Penal Code § 1191.2

  21 California Penal Code § 1202.4(f)

  22 California Penal Code § 1202.4(f)(1) and § 1203.3

  23 California Penal Code § 1202.4(f)(5)

  24 California Penal Code § 1202.4(f)(7)

  25 California Penal Code § 1202.4(f)(5) and § 1214(b)

  26 California Code of Civil Procedure § 2033.5(d)&(e)

  27 California Penal Code § 2085.5

  28 California Penal Code § 2085.5(h)

  29 California Penal Code § 2085.5(k)(1)

  30 California Penal Code § 2085.5(k)(2)

  31 California Penal Code § 3000.05

  32 California Penal Code § 2085.5(e)

  33 California Penal Code § 2513(g)

  34 California Penal Code 11177.2

  35 California Penal Code § 1203.1

 ³⁶  California Penal Code § 1203(C) and California Rules of Court Rule 4.411.5

 ³⁷  California Penal Code § 1202.8

  ³⁸  California Penal Code § 1203.1

  ³⁹   California Penal Code § 1203.1d

  ⁴⁰  California Penal Code § 1203(e) (13)(j) and 1203.2

  ⁴¹  California Penal Code § 1203(e) (13)(j) and § 1214(b)