Free Update to Chapter 40, California Criminal Law Procedure and Practice Published by CEB, 2026 Edition
These are updates to the 2026 “Victim Restitution” Chapter in the “Crim Law Bible”
Note: pages are shown in bold when a section spans several pages.
40.5 Delete People v Bufford (2007) 146 CA4th 966, 971 (court retained jurisdiction although sentence had been served)
Replace with: People v. Sinay (2025) 112 CA5 1 (court retained jurisdiction although sentence had been served and crime occurred 30 years earlier).
40.6 After citation to Anthony in the first paragraph add a last sentence:
Even if the victim’s loss of income involved an illegal activity, restitution may be ordered. HB v. Superior Court of Solano County (2023) 97 CA5 341 (sex trafficking).
Bullet point on Pen C §550 (c) (4) insert “health care” in front of “claims.”
40.9 under Right to Privacy. P. 1228
After the sentence ending in “counseling” insert
Under Evidence Code sections 994 (physician-patient) and 1014 (psychiatrist-patient) records about victims are privileged from disclosure. At the pretrial stage, defendants cannot overcome these privileges based on their Sixth Amendment rights of confrontation and cross-examination. People v. Hammon (1997) 15 C4th 1117, 1128.
Insert before the sentence starting with “Even a victim”:
In the trial of sex crimes, how the victim was dressed is not admissible on the issue of consent. Ev C §1103
Before the citation to Pen C §1054.2, change “addresses” to “personal identifying information”
Insert before the sentence starting with “Even a victim”:
In the trial of sex crimes, how the victim was dressed is not admissible on the issue of consent. Ev C §1103.
After citation to Pen C §293, insert:
A victim of human trafficking convicted of a related non-violent crime, may petition to vacate the conviction. Pen C §236.14.
After citation to Pen C §136.2, insert: P. 1229
Victims of certain crimes, who change their name, may apply to the Secretary of State to keep the new name exempt from Public Record requests. Gov C §6205 et.seq.
40.9 Under Right to Notice and Information.
Insert in the first paragraph after Pen C §679.026(c):
oag.ca.gov/system/files/media/Marsys-Card-and-Resources.pdf
Insert at end of first paragraph:
If the victim of domestic abuse has requested notification, the county probation department must notify a victim of the location of a defendant on probation. The district attorney must advise the victim of this right. PC § 679.06. If the death of a minor is being investigated, information must be provided to the parent or guardian. Pen C §679.09 (a).
Insert new paragraph:
California has a “Sexual Assault Victims’ DNA Bill of Rights.” Pen C §680 et seq. Sexual assault victims must be given a card about their rights. Pen C. §680 (2)(a). Upon request, a victim must be advised of the status of the rape kit and other crime scene evidence. Pen C §680(c)(1),Victims can electronically track their rape kit. Pen C §680.3(e) and can access the Department of Justice’s SAFE-T database portal about their forensic kit. Pen C §680 (d)(2). Victims are not to be charged for a medical evidentiary exam. Gov C §13823.95(a). Minimum standards for examination and treatment of victims are in Gov C §13823.11.
After cite to Pen C §1191.2, insert
Victims may contact the Victims’ Legal Resource Center (1800victims.org; 800 842-8467) for help. Gov C §13897 et seq.
40.9 At the heading Right to Appear and be Present
Change Section title to: Right to Appear and be Present, Other Rights
Delete: An employer cannot discharge or threaten to discharge the employee for attending proceedings if the employee has met the statutory requirements. Lab C §§230–230.2, 230.5.
Replace with: Gov C §12945.8(a). If the employer has 25 or more employees, an employee may take off time to attend judicial proceedings with a victim family member. : Gov C §12945.8(b). Sick days may be used by the employee. Lab C § 246.5
After citation to Civil Code §1946.7 insert: P. 1230
A landlord may not evict a tenant because of an act of abuse or violence against the tenant (including family), if the tenant has given documentation of the act to the landlord. CC §1161.3
Before the Note, add a new title and subsection:
Special Evidence Rule. Although recordings made without consent of other parties are generally inadmissible, a victim seeking a domestic violence restraining order may introduce evidence of a recording between her and the perpetrator. Pen C §633.6(b).
40.9 Under the heading Rights and protections at proceedings
After citation to Pen C §1347.5 insert new sentence:
A victim of human trafficking may have both a human trafficking advocate and a support person present with them at interviews by law enforcement, prosecutors and defense counsel. Pen C §236.21.
Add new last paragraph:
Normally character evidence about victims is not admissible. Ev C §1101(a). But this evidence may be offered by a defendant to prove the conduct of the victim was consistent with prior behavior. Ev C §1103(a).
40.11 Under bold heading: Burden of proof and admissible evidence. P. 1232
Delete: State Dep't of State Hosps. v Superior Court (2015) 61 C4th 339, 352. Replace with: People v. Rojas (2023) 95 CA5 48, 60.
Under bold heading Restitution order, after citation to Frey insert:
The trial court cannot refer determination of restitution to a mediator nor can it make a group or class award. People v. Plains All American Pipeline, L.P. (2024) 101 CA5 872, 892, 896.
40.18 After citation to Koontz and the parenthetical, insert
However, if the court ordered restitution without an amount, because it could not be determined, it may order restitution after probation has expired. People v McCune (2024) 16 C5 980.
40.22 Delete second bullet point:
If the fruits of the crime against the victim, such as cash, are seized by law enforcement from the defendant, the victim may commence a civil action and attach the fruits of the crime. Golden Gate Candy Prods. Co. v Superior Court (1934) 1 CA2d 426.
40.24 Delete: P. 1240
It may be possible to enforce a restitution order against distributions to the defendant from irrevocable discretionary trusts. See U.S. v Harris (9th Cir 2017) 854 F3d 1053.
Replace with:
If there is a felony conviction and the defendant is a beneficiary of a trust, the court may order payment of restitution to the victim. Prob C §15305.5 (a) – (c). However, if the trust is a discretionary trust, the court may not order payment. Young v. McCoy (2007) 147 CA4 1078, 1080.
40.29 After citation to Kelly v Robinson insert new sentence: P. 1243
If a defendant convicted of a crime of violence seeks protection from a victim’s claims in a Chapter 7 bankruptcy, the victim may move to dismiss the case. 11 USC §707(c).
40.31 After citation to Crump insert: P. 1244
The People's appeal does not preclude a victim from seeking mandamus. People v. Plains All American Pipeline, L.P. (2024) 101 CA 5th 872, 884.
Before citation to Anderson, insert:
The rule of forfeiture applies to the appeal of a restitution order: failure to make a specific and timely objection on a fact issue at the restitution hearing, bars the issue from being examined on appeal. People v. Mays (2017) 15 CA5th 1232, 1237 – 8.
40.32 After citation to Pen C §§1203.4(c) (3) insert:
Pen C §1203.4a (e) (misdemeanor). A conviction may be expunged if restitution was reserved, but never ordered during probation. People v. Daffeh (2024) 104 CA5 790.
40.33 Delete:
When one has the right to counsel, California public policy mandates that one be told of that right, not that one must request it. People v Dorado (1965) 62 C2d 338, 351, overruled on other grounds in People v Cahill (1993) 5 C4th 478. Because prosecutors have the obligation to advise victims of their Marsy’s Law rights (Pen C §679.026(c)(4)), prosecutors should advise victims of their right to counsel.
Replace with:
Pen C §679.026 (a) and (b) require that victims be told of their rights in Art. I §28 of the Cal. Const. Section 28(c)(1), which states “the retained attorney of a victim. . . may enforce the rights”. Victims must be told of their right to counsel. Because Pen Code § 679.026(c) specifies that prosecutors must communicate the other rights to victims, prosecutors must inform victims of their right to counsel. Rule 1.0(b)(2) of the Rules of Professional Conduct that ethical obligations include compliance with “applicable law.” Bus. and Profes.C §6068(a) extends statutory and constitutional obligations into ethical obligations. Matter of Brimberry (Rev. Dept. 1995) 3 Cal. State Bar Ct. Rptr. 390, 397, fn. 9. The obligation of prosecutors to inform victims about their right to counsel is an ethical obligation.
Add new fourth paragraph:
Rules of Prof. Cond. §4.3 states “[i]f the lawyer knows … that the interests of the unrepresented person are in conflict with the interests of the client, the lawyer shall not give legal advice to that person.” There are possible conflicts at virtually every stage of a criminal case. At the charging stage, a crime victim may want more serious charges (with longer possible incarceration) than the People choose. At the preliminary hearing, a victim may not want to testify, but the prosecutor may insist on that testimony. At the discovery stage in an abuse case the People may want the victim to provide all the medical records the defense has subpoenaed, but the victim may want to protect their privacy and only produce some records. Prosecutors cannot give victims advice whenever there is a conflict. Statements such as “we” should or should not do something, may be understood as legal advice, resulting in a violation of Rule 4.3. Many crime victims think they are part of the People, and are represented by the prosecutor. This is more likely when English is a second language. The best way for prosecutors to prevent a Rule 4.3 violation is to give every victim a writing which says that the prosecutor does not represent the victim.
If you have any questions or suggestions, please contact Tony Sarabia, asarabia2@gmail.com or (310)377-5171 (landline).