Prison, Probation and Victim Restitution

Antonio R. Sarabia II Dec. 17, 2019

Being a crime victim is traumatic. As a result, it is not surprising that most crime victims are dismayed to hear that a defendant is getting probation instead of being sentenced to jail or prison. Most victims wish for more serious punishment. But when it comes to victim restitution, probation is a more serious punishment than jail or prison.

First, a jail or prison sentence narrows the scope of restitution. When a defendant is sentenced to jail or prison without probation, restitution is limited to losses proximately caused by the conduct of which the defendant was convicted and that conduct must have been a substantial factor in causing the losses. A conviction and prison sentence for leaving the scene of a crime is unlikely to lead to restitution for the victim who was run over — because there was no conviction for hitting the victim. A prison sentence sharply defines the available restitution. The crime of which the defendant is convicted can reduce or eliminate restitution.

In contrast, when restitution is ordered as a condition of probation under Penal Code Section 1203.1(a)(3), the court's discretion is circumscribed only by the purposes of probation: Restitution must be reasonably related to the crime of which the defendant was convicted, the goal of deterring future criminality or rehabilitating the defendant. Consequently, when ordering restitution as a condition of probation, the court has broad discretion. Not only is the narrowing effect of a particular statute avoided, but a whole new horizon opens — the purposes of probation. The goals of deterring future criminal conduct and defendant rehabilitation are very broad. A judge allowing a defendant to remain out of jail on probation has wide discretion in determining what will help the defendant learn the error of his or her ways. Since a defendant is getting an important benefit, remaining out of jail, the defendant is also more likely to be flexible — and accepting — as to restitution.

The range of possibilities can be understood in the context of several cases. In one probation case, victim restitution was ordered for losses caused by a crime related to the crime of which the defendant was convicted, even though the defendant did not even participate in the crime causing loss. In re I.M., 125 Cal. App. 4th 1195 (2005). In another case, restitution was ordered to victims of noncriminal conduct related to the defendant's crime. People v. Miller, 256 Cal. App. 2nd 348 (1967).

Second, in addition to broadening the scope of restitution, probation offers victims potent enforcement tools. These enforcement tools spring from the fact that a court retains power over a defendant on probation.

When the court grants probation and orders the defendant to make restitution, timely payment is a condition of probation. Willful failure to pay restitution can result in revocation of probation and imprisonment. The court may require the defendant to get a job to pay restitution as a condition of probation.

If the trial court determines that the defendant has the ability to pay restitution, it must enter a separate order for income deduction (called wage garnishment in other contexts) once restitution has been determined. Penal Code Section 1202.42. These income deductions are used to pay restitution to the victim.

In all cases, no later than the date of sentencing, the defendant must disclose all assets using Judicial Council Form CR-115 (Defendant's Statement of Assets). Penal Code Section 1202.4(f)(5), (7)-(8). In addition, the victim or the prosecutor can use interrogatories to discover a defendant's assets: Judicial Council Form CR-200, FormInterrogatories-Crime Victim Restitution. The role of this asset information varies greatly between prison cases and probation cases. Many defendants who have a restitution order entered against them realize that disclosing assets may allow the victim to use those assets to pay the restitution order. As a result, there is a temptation not to disclose all assets. Since the Statement of Assets and Interrogatory Responses are filed with the court, failure to disclose all assets, if proved by the victim or the prosecutor, means that a defendant on probation has not been truthful on a court form. That conduct can jeopardize probation and is likely to upset the court — which has continuing supervision of the defendant on probation.

It is common for defendants to seek an early release from probation. California Gov.Gavin Newsom just signed Assembly Bill 433, which gives crime victims a new right: tobe notified before the criminal defendant is given an early release from probation. A victim who is still owed money can go to court and let the court know he or she is still owed money before the court grants the defendant's request to end probation early.

Many defendants seek to have a conviction expunged after the end of probation. But even if probation has terminated, a conviction should not be expunged if restitution is still owed. Penal Code Section 1203.4; People v Johnson, 211 Cal. App. 4th 252, 261(2012).

A probation sentence provides victims with much stronger rights to restitution and a much better ability to collect restitution.

Antonio R. Sarabia II practices law in Redondo Beach with a focus on victims’ rights, contracts, trademarks, copyrights and the apparel business.