Restitution

Restitution

Non-economic damages. (People v. Lehman (May 25, 2016, No. A144800) ___ Cal.App.4th ___, available at [1].)

Amount of restitution

"As to a victim, the purpose of the restitution statute is to make that victim whole, not to give a windfall. [Victim] is not entitled to replace a used mixer with a brand new one at appellant's expense, absent some extraordinary facts. If [victim] were a car rental agency that lost a 1995 Ford Taurus, it would be entitled to the replacement value of a similar 1995 Ford Taurus, not a 1999 model." (People v. Thygesen (1999) 69 Cal.App.4th 988, 995.)

Even though an injured party is entitled to full restitution, that party cannot capriciously set an arbitrary amount for restitution. “The purpose of restitution is to make a victim whole, not to give a windfall.” (People v. Thygesen (1999) 69 Cal.App.4th 988, 995.) Suffering from an accident should not be winning the lottery. Thus, the restitution statute requires a fair, accurate, and detailed factual basis of the economic losses sustained by the injured party. “[T]he restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and it shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct . . . .” (Pen. Code, § 1202.4, subd. (f)(3), emphasis added.) “[A] trial court must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review. The burden is on the party seeking restitution to provide an adequate factual basis for the claim.” (People v. Giordano (2007) 42 Cal.4th 644, 664, emphasis added.) Restitution orders “contemplate more than a ‘bottom line’ sum.” (People v. Blakenship (1989) 213 Cal.App.3d 992, 998.) To rely on inaccurate or incomplete information would violate due process. (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080.) Restitution is not meant to turn trial courts into “a collection agency for the equivalent of a civil judgment imposed without a jury trial.” (People v. Carbajal (1999) 10 Cal.4th 1114, 1127 (disn. opn. of Mosk, J.).) In order to receive court-ordered restitution, the injured party must prove a specific actual loss.

Duty of victim to mitigate losses

"Determination of loss of use necessarily involves evidence as to a several factors. Initially, the trial court will have to determine the length of time it took (or reasonably should have taken) the victim to replace the stolen item. Next, the court will multiply the days lost by a reasonable rental rate. In computing what is reasonable, evidence will have to be supplied as to how often the item was rented and the annual (or monthly/daily) income it has historically produced." (Thygesen, at p. 995.)

"[Victim] neither testified nor produced any documentary evidence as to how often the mixer was used. Nor did [Victim] give any explanation why the mixer had not been replaced in over 13 months. Despite that total lack of evidence, the trial court made an award based on the speculative proposition that the mixer would have been rented out every week for 13 months. Logic dictates that had the mixer been that valuable, [Victim] would have replaced it in a heartbeat. The fact that [Victim] did not do so leads to the suspicion that the mixer was not all that profitable or essential to the business." (Thygesen, at p. 995.)

Insurance

Whose insurance company compensated the victim? If it was by the defendant's insurance company, that counts as if coming from the defendant. (People v. Bernal (2002) 101 Cal.App.4th 155.) If it was the victim's own insurance company, your client probably just got screwed. A victim is entitled to restitution for all of the losses, even if the victim has been compensated by victim's insurance. (People v. Birkett (1999) 21 Cal.4th 226; In re Brittany L. (2002) 99 Cal.App.4th 1381.) .)

Replacement cost or repair cost

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

Modifying restitution

After probation has expired, a trial court lacks jurisdiction to impose restitution. (People v. Waters (2015) 241 Cal.App.4th 822.)

"[A] trial court does not have jurisdiction to modify a defendant's probation to impose restitution after the defendant's probationary term has expired." (Hilton v. Superior Court (2014) 239 Cal.App.4th 766.)

Penal Code section 1202.4(f)(1)

Penal Code section 1202.46

People v. Moreno (2003) 108 Cal.App.4th 1

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