Upon a conviction for domestic violence in California, the defendant may be required to pay restitution to the victim. The defendant may have to make payments to a battered women's shelter or compensate the victim for counseling expenses, and other losses caused by the defendant's actions.
The penalties for a domestic violence conviction in California can add up to more than just jail time and fines. Penalties may include restitution, loss of gun rights, and domestic violence classes. Many people facing a domestic violence charge will accept a plea offer out of fear that they do not have a strong case. It is important to understand your rights before pleading guilty. Talk to an experienced local East Bay criminal defense lawyer for help with your case.
Victim Restitution for Domestic Violence
Under California Penal Code Section 243(e), upon conviction for domestic battery, “if probation is granted, the conditions of probation may include, in lieu of a fine, one or both of the following requirements:
- That the defendant makes payments to a battered women's shelter, up to a maximum of five thousand dollars ($5,000).
- That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense.”
For any order to pay a fine, restitution, or women's shelter payment, the court will make the determination based on the defendant's ability to pay. However, any payment or fine will be secondary to the defendant's payment of court-ordered child support.
If the domestic violence occurred between married spouses, the shared community property of the couple shall not be used to discharge the liability of the defendant for restitution until the defendant's separate property is exhausted. This generally means that the defendant's own property would have to be used to pay a fine before any joint property could be used to make a payment.
Fines and Restitution
The state of California usually collects restitution in the form of fines but this is separate from victim restitution. In every criminal conviction, the offender is assessed a fine, unless there are compelling and extraordinary reasons not to pay a fine. For a misdemeanor, fines range from $120 to $1,000. For a felony, fines range between $240 and $10,000.
Calculating Victim Restitution
Under the California Constitution, a victim has the right to criminal restitution anytime the victim suffers a loss. Under California Penal Code 1202.4 PC, the amount of restitution is to be based on the amount of loss claimed by the victim or victims, and can include:
- Full or partial payment for the value of stolen or damaged property.
- Medical expenses.
- Mental health counseling expenses.
- Lost wages or profits.
- Noneconomic losses for certain felonies.
- Interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court.
- Actual and reasonable attorney's fees and other costs of collection accrued by a private entity on behalf of the victim.
- Expenses incurred by an adult victim in relocating away from the defendant, including deposits for utilities and telephone service, rental housing, temporary lodging and food expenses, clothing, and personal items.
- Expenses to install residential security incurred related to certain violations.
- Home and vehicle modifications if the victim is permanently disabled.
- Credit monitoring for victims of identity theft.
The defendant has the right to a hearing to dispute the amount of restitution and the victim will have a chance to respond to any modification of the restitution order.
Failure to Pay Restitution
The restitution order acts like a civil judgment. If the defendant fails to pay restitution, the victim can file a lawsuit to compel payment. A judgment may also allow the victim to get payment by garnishing the defendant's bank account or putting a claim on property. The court can even order the defendant to pay the victim for costs associated with collecting the restitution.
Restitution orders are also not dischargeable in bankruptcy and there is no statute of limitations on payment. If the defendant declares bankruptcy, the victim can still collect restitution. If the victim fails to collect restitution for 10 years or more, the restitution order remains in effect and can be collected later.
Required Payment Even Without Financial Losses
Even if the victim does not suffer any financial losses or does not want restitution, the court may still compel the defendant to make a payment to a battered women's shelter. Payment to a battered women's shelter may be ordered up to a maximum of $5,000.
East Bay Defense Lawyer for DV Charges
East Bay attorney Lynn Gorelick has more than 35 years of criminal defense experience and understands the consequences of pleading guilty without challenging the criminal charges. Representing individuals in Alameda County and Contra Costa County, Lynn Gorelick is familiar with the local criminal laws, local officers, and the prosecutors involved. Contact East Bay criminal defense lawyer Lynn Gorelick today.