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In cases in which a minor is ordered to make restitution to the victim, the parent or guardian also may be held liable for the payment of restitution.⁴² Many victims have difficulty determining if restitution was ordered by the court because juvenile cases are confidential. However, once a court orders restitution to be paid to a victim pursuant to Welfare and Institutions Code §730.6, the victim must be notified within 60 days.⁴³ The victim is entitled, upon request, to a certified copy of the order reflecting the name and address of the minor ordered to make restitution, the amount and terms or conditions of restitution, the offense that was sustained, and the name and address of the parent or guardian.⁴⁴ Again, victims are better able to protect their rights and ensure that their restitution orders are complete by using the Order for Restitution and Abstract of Judgment form provided by the Judicial Council. This form should be completed and provided to the district attorney as soon as possible. Since parents are liable for their minor children’s acts, a victim can also request that the parents complete the Defendant’s Statement of Assets form described above for adult defendants. Once again, how collection of restitution occurs depends on the status of the minor. However, often a better resource for the collection of restitution is the assets of the offender’s parents.

Parental Liability

When a minor is ordered to pay restitution to a victim or victims, a parent or guardian who has joint or sole legal and physical custody of the minor shall be rebuttably presumed to be jointly and severally liable with the minor for an amount not to exceed $25,000 for each tort of the minor.⁴⁵ However, where injury or death has resulted from the discharge of a firearm by a minor, an additional liability is incurred by a parent or guardian not to exceed $60,000 for injury or death to all persons as a result of one occurrence.⁴⁶ When considering a parent’s or guardian’s inability to pay, the court may consider future earning capacity, present income, the number of persons dependent on that income and the necessary obligations of the family. The parent or guardian has the burden to show inability to pay. ⁴⁷

CDCR Youth Division does not require the victim to complete a collection request form, as required for adult offenders. CDCR Youth Division  must begin collection as long as there is a certified restitution order from the judge. Again, the victim is encouraged to use the Order for Restitution and Abstract of Judgment, because this form includes the name of each victim who is to receive restitution and the amount each victim is to receive. If the victim has requested confidentiality, the names may be submitted under separate cover. CDCR Youth Division considers victim restitution collection and disbursement as critical functions in providing services to victims and holding offenders accountable. While a juvenile is under the jurisdiction of CDCR Youth Division, fifty (50%) percent of a ward’s trust account deposits will be collected to pay restitution.⁴⁸ If a victim has requested that restitution payments be paid directly to him/her, the victim must provide a current address to CDCR Youth Division. CDCR Youth Division forwards payments to victims quarterly. When a victim cannot be located or has died, the restitution collected will be transferred to the Compensation Board, just as with adult offenders. CDCR Youth Division monitors a minor’s compliance with an order to pay restitution, and notifies the court when a minor has complied with an order to pay restitution, and notifies the court when a minor is discharged from CDCR Youth Division.⁴⁹

The Youthful Offender Parole Board must impose as a condition of parole that the offender pay in full any restitution fine or order imposed by the court.⁵⁰ Payments may be in installments consistent with a minor’s ability to pay, and parole agents will develop payment plans. However, when a minor is discharged from CDCR Youth Division, although CDCR Youth Division must notify the court of the minor’s compliance with the restitution order, CDCR Youth Division no longer has jurisdiction to collect restitution on behalf of victims.⁵¹

If the youthful offender is on probation, in juvenile hall or a group home, or under any other county supervision, the Probation Department collects restitution from the juvenile offender in much the same manner as for adult defendants on probation.⁵²

Once the victim has completed the Order for Restitution and Abstract of Judgment form, it must be ordered by the judge and issued as an abstract of judgment by the clerk of the court. The victim should leave the court with a copy of that form in hand after the sentencing proceedings. This form functions just like a civil judgment because once the abstract of judgment is issued, it is a judgment. It may not be discharged in bankruptcy.⁵³ It allows the victim to garnish an offender’s wages, take possession of an offender’s property, or place a lien on any property or assets the offender may own.⁵⁴ The information provided below is just a quick summary of the collection methods available to a victim of crime for collecting restitution. Each collection practice requires completion of additional forms to actually collect.

Probably the victim’s most useful tool for collection of restitution is the income deduction order. The income deduction order directs an employer to deduct from all income due and payable to the defendant the amount required by the court to meet the offender’s obligation.⁵⁵ The income deduction order is effective as long as the order for restitution is effective or until further order of the court.⁵⁶ The California Judicial Council has created a form to obtain this order, but it will not be available for use until January 1, 2005. Currently, a victim would need to create a pleading requesting this order. In some counties, the Office of Revenue Recovery may offer assistance to a victim in drafting this pleading. A pleading is simply a typed request to the court with certain formatting requirements. The attached appendix includes a draft of the Judicial Council forms that will be available to obtain this order.

The income deduction order is most useful when the offender is employed and sentenced to probation. At the time of sentencing, the victim can apply for an income deduction order, which is similar to the earnings withholding order used with collection of civil judgments.⁵⁷ Since income deduction orders are used primarily with offenders sentenced to probation, the court likes to give the offender the opportunity to pay the restitution on his/her own without the embarrassment of involving the offender’s employer. Therefore, the practice is to have the court issue an income deduction order, but to have the order "stayed" (meaning held in abeyance) until the court or agency in the county responsible for collection determines that the defendant has not provided the agency with good cause for failure to pay restitution.⁵⁸

Once the agency responsible for collection believes that the defendant has failed to meet his/her obligation under the restitution order, the agency shall ask the defendant to provide evidence within five days that payments have been made or provide good cause as to why the payments have not been made. If the defendant does not comply with this request, the agency shall immediately inform the defendant and the clerk of the court. The defendant will have fifteen days to apply for a hearing to contest the lifting of the stay. If the defendant does not request the hearing, the clerk of the court or agency responsible for collection of restitution shall serve the income deduction order and notice on the defendant’s employer.⁵⁹ Service on the defendant is in the same manner as for parties in a civil action.⁶⁰ Service on the defendant’s employer may be by prepaid certified mail, return receipt requested.⁶¹ The employer is required to implement the order by the first pay period that occurs more than 14 days after service of the income deduction order.⁶²

If the defendant requests a hearing to contest the enforcement of the income deduction order, the stay will remain in effect until a hearing is held to determine whether enforcement of the income deduction order is proper.⁶³ If at the hearing, the court determines that the defendant has failed to pay the restitution without good cause, the court will lift the stay of the income deduction order and require the defendant’s employer to deduct the amount of restitution authorized by the court. This method of collection is also available once an offender is released from prison, jail, or the youth authority; however, it may need to be used in conjunction with the debtor’s exam described below.

2. Debtor’s Examination

Under Penal Code § 1202.4(h), a victim can request that the district attorney perform a debtor’s examination to determine the defendant’s financial assets for purposes of collecting on the restitution order. The debtor’s exam is a good way to update the defendant’s assets. However, if the defendant completed the defendant’s statement of assets form or the crime victim interrogatories, a debtor’s exam may not be necessary because the victim may already have the defendant’s financial and personal information. Additionally, since the crime victim restitution interrogatories may be used once each calendar year, a victim may want to send another set of interrogatories before using a debtor’s exam. In any case, the debtor’s exam would be most useful when the defendant has spent time incarcerated and now has returned to employment. Under this procedure, the district attorney or victim would have to serve the defendant with notice of a debtor’s exam. The defendant would come to court to be questioned concerning his or her employment and financial assets. After obtaining this information, the victim would need to use one of the methods discussed in this section to actually collect.

A lien is an interest in property that secures payment of a debt or performance of an obligation. If the victim wants to attach the offender’s personal or real property, the abstract of judgment form can be taken to the county recorder’s office and recorded against the property on file with the county. Victims may contact the local county recorder’s office for filing requirements. If a victim does not know what property an offender owns, the victim may use the debtor’s exam discussed above to discover that information. At the conclusion of the debtor’s exam, the victim may ask the court or referee to order the offender (judgment debtor) to use his or her interest in some property to satisfy the money judgment.⁶⁴ Such an order creates a lien on the property or debt.⁶⁵


4. Levying Property

A

Another customary means of enforcing a money judgment is by levying on the judgment debtor’s nonexempt property using a writ of execution.⁶⁶ A levy is the legal process of obtaining money through the seizure and sale of property. Generally, all property of the judgment debtor is subject to enforcement of the judgment, unless otherwise provided by law.⁶⁷

The most common type of property to be levied is bank accounts.⁶⁸ Other examples of property subject to levy under execution include:

• Real estate under CCP § 700.015;

• Growing crops or timber to be cut under CCP § 700.020;

• Minerals (including oil and gas) to be extracted, or accounts receivable resulting from their sale at the wellhead or minehead under CCP § 700.020;

• Personal property in the sheriff’s custody under CCP § 700.080(a);

• Personal property used as a dwelling under CCP § 700.080(a);

• Property in a safe deposit box under CCP § 700.150.

A writ of execution may be issued at any time within 10 years after entry of a money judgment.⁶⁹ Remember, a restitution order is enforceable just as if it were a civil judgment; therefore, as soon as the abstract of judgment is issued by the court clerk the 10 years begins to run.⁷⁰ Restitution orders do not have time limits like other civil judgments. A Writ of Execution (Judicial Council Form EJ-130) is issued by the clerk of the court in which the judgment was entered, through application by the judgment creditor (victim) and payment of a $7 issuance fee.⁷¹ The writ is directed to the sheriff in the county where the levy is to be made. A separate writ must be issued for each county in which a levy is to occur.

For some victims, collecting restitution may be a fairly simple process if the restitution amount is low and the victim is able to use the services of CDCR, CDCR Youth Division, the county probation department, or county revenue recovery office. However, if the restitution amount is high and the offender is no longer part of the criminal justice system, a victim will be on his or her own for collecting restitution amounts and may want to use the services of a debt collection attorney or reputable debt collection service. A victim advocate is still one of the most important resources available to a victim of crime, because obtaining the Order for Restitution and Abstract of Judgment from the beginning will ensure that the collection process will proceed more smoothly. The victim advocate should be able to enlist the cooperation of the district attorney, probation department, CDCR, and CDCR Youth Division in walking the victim through the restitution process. It is only through cooperation and collaboration by all agencies involved in the criminal justice system that a victim can feel that justice was served.

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