How Does Restitution Work in a California Criminal Case? Penal Code 1202.4 Explained
The short answer: restitution in a California criminal case comes in two forms, and both are governed by Penal Code section 1202.4. Victim restitution is a payment to the person or business that suffered an economic loss because of your crime, in the full amount of that loss, with no cap and no reduction for your inability to pay. The restitution fine is a separate payment to the state's Restitution Fund that applies in every felony and misdemeanor conviction, within a statutory range. Restitution is ordered at sentencing, can be set later at a restitution hearing where the defendant has the right to contest the amount, survives probation and even bankruptcy, and often drives plea negotiations in theft, vandalism, hit and run, DUI crash, and domestic violence cases from Riverside to Victorville to Los Angeles. This guide explains how the process works in practice. For the overall picture of a case, see our criminal defense practice page.
Victim restitution versus the restitution fine
Victim restitution goes to the person who lost money. Under Penal Code section 1202.4, subdivision (f), a victim who has suffered economic loss as a result of the defendant's conduct is entitled to restitution in an amount sufficient to fully reimburse the loss. The California Constitution reinforces this right through the victims' bill of rights in article I, section 28, which makes full restitution a constitutional entitlement rather than a matter of judicial discretion. The order is made in the criminal case, but it operates like a civil judgment in the victim's favor.
The restitution fine goes to the state. Under subdivision (b) of the same statute, every person convicted of a crime must also pay a restitution fine to the Restitution Fund, which funds the California Victim Compensation Board. For a felony the fine ranges from a statutory minimum of three hundred dollars up to ten thousand dollars, and for a misdemeanor from one hundred fifty dollars up to one thousand dollars, unless the court finds compelling and extraordinary reasons not to impose it. Inability to pay is not one of those reasons for the minimum fine, although it can be considered in setting a fine above the minimum. In most Inland Empire sentencings the court imposes the minimum fine in a negotiated case.
The suspended parole and probation revocation fines. When the sentence includes probation, Penal Code section 1202.44 requires an additional probation revocation restitution fine in the same amount, suspended unless probation is revoked. For prison and some county jail sentences with supervision, Penal Code section 1202.45 imposes a matching parole or post-release supervision revocation fine, also suspended. These show up on every sentencing minute order and confuse clients who think they are being charged twice. Our guide on how sentencing works in California criminal court explains where they fit.
What losses can be included in victim restitution
Economic losses only, but broadly defined. Subdivision (f)(3) of Penal Code section 1202.4 lists the categories: the value of stolen or damaged property, medical and mental health counseling expenses, lost wages for time missed because of the injury or because of time spent in court, relocation and security expenses for violent crime victims, interest at ten percent per year from the date of sentencing or loss, and actual and reasonable attorney's fees and other costs of collection. Pain and suffering and punitive damages are not available in the criminal case; a victim who wants those must file a civil lawsuit.
Common examples by case type. In a shoplifting or grand theft case, restitution is the value of unrecovered merchandise. In a vandalism case under Penal Code section 594, it is the repair or replacement cost, and the victim's estimate often becomes the number unless the defense challenges it. In a hit and run or felony DUI crash on the 10, the 15, or the 215, it is vehicle damage, medical bills, and lost income, which can run into six figures. In a corporal injury case under Penal Code section 273.5, it includes counseling costs and medical bills, and Penal Code section 1203.097 separately requires a payment to a battered women's shelter as a probation condition. In an identity theft or elder financial abuse case, it is the money taken plus the cost of repairing the victim's credit or accounts.
Restitution to the Victim Compensation Board. If the California Victim Compensation Board paid the victim's medical bills, funeral costs, or counseling, subdivision (f)(4) of Penal Code section 1202.4 requires the court to order restitution to the Board in that amount, and the Board's payment records are treated as prima facie evidence of the loss. Defense counsel should always request the Board's claim file, because it sometimes includes expenses unrelated to the charged conduct.
Insurance does not reduce the victim's claim, but it may reduce yours. The California Supreme Court held in People v. Birkett (1999) 21 Cal.4th 226 that a direct victim is entitled to full restitution from the defendant even if the victim's own insurance company already reimbursed the loss. The Court of Appeal in People v. Bernal (2002) 101 Cal.App.4th 155 reached a different result for payments made by the defendant's own insurer directly to the victim, holding that those payments offset the restitution order. In a DUI crash case, getting the defendant's auto carrier to pay the claim early can dramatically reduce the restitution balance in the criminal case.
How the amount is set: the restitution hearing
Sentencing or a later hearing. When the loss is known at sentencing, the court orders a specific dollar amount on the record and, in many counties, on form CR-110. When the amount is not yet known, the court orders restitution in an amount to be determined and retains jurisdiction to set it later under subdivision (f) of Penal Code section 1202.4. The District Attorney's victim services unit then collects documentation from the victim, and a restitution hearing is set, often months after the plea.
The defendant has a right to a hearing. Subdivision (f)(1) of the statute gives the defendant the right to a hearing before a judge to dispute the amount. The standard of proof is a preponderance of the evidence, and the rules of evidence are relaxed; the court can rely on the probation report, the victim's statement, receipts, estimates, and testimony. Under decisions such as People v. Gemelli (2008) 161 Cal.App.4th 1539, the victim's statement of the loss is enough to make a prima facie case, and the burden then shifts to the defendant to show that the claimed amount is excessive, duplicative, or unrelated to the crime. Showing up without documentation of your own means the victim's number stands.
What the defense actually challenges. Restitution hearings at the Riverside Hall of Justice, the San Bernardino Justice Center, and the Clara Shortridge Foltz Criminal Justice Center are usually won or lost on details: whether a replacement cost for a ten-year-old television should be the price of a new one, whether the lost wages claim is supported by pay records, whether the counseling bills relate to this incident or a prior one, whether the vehicle damage estimate exceeds the car's value, and whether the loss was actually caused by the conduct the defendant pleaded to. The Court of Appeal in People v. Millard (2009) 175 Cal.App.4th 7 also held that a trial court may reduce a restitution award in a DUI injury case to account for the victim's own comparative negligence, which is a significant argument in crash cases. Our guide on what makes a criminal case weak applies to the restitution evidence as much as to the guilt evidence.
The Harvey waiver and dismissed counts. Under People v. Harvey (1979) 25 Cal.3d 754, a court generally may not order restitution for losses tied to counts that were dismissed as part of a plea bargain unless the defendant agrees, which is called a Harvey waiver. Prosecutors in San Bernardino County and Riverside County routinely require a Harvey waiver as a condition of dismissing counts, and the waiver is written on the plea form. Before agreeing, you need to know what losses the dismissed counts carry. Our guide on whether to take a plea deal explains how to evaluate the full cost of an offer, and our article on no contest pleas under Penal Code section 1016 explains why the form of the plea matters in a later civil case.
Ability to pay, probation, and what happens if you cannot pay
Inability to pay does not reduce victim restitution. Subdivision (g) of Penal Code section 1202.4 states that a defendant's inability to pay is not a consideration in determining the amount of a restitution order. The court must order the full amount even if the defendant is unemployed or in custody. What the court can do is set a payment schedule, and the probation department or the county's collection unit administers it.
Restitution as a probation condition. When probation is granted, payment of restitution becomes a condition of probation under Penal Code section 1203.1, and the court has broad power to require restitution as a probation condition even for losses that would not qualify under section 1202.4. The California Supreme Court upheld that power in People v. Carbajal (1995) 10 Cal.4th 1114, where a hit and run defendant was ordered to pay for the damage to the other car as a probation condition even though the crime he pleaded to was leaving the scene rather than causing the collision. See our guide on how probation works in California.
A violation requires a willful failure. Penal Code section 1203.2, subdivision (a), provides that probation may not be revoked for failure to pay restitution unless the court finds that the defendant willfully failed to pay and had the ability to pay. The United States Supreme Court reached the same conclusion as a matter of due process in Bearden v. Georgia (1983) 461 U.S. 660. A client in Hesperia who lost a job and fell behind on payments should document the job loss and the efforts to find work, because that evidence is what the judge weighs at a violation hearing. Our guide on probation violation hearings at the Victorville courthouse explains the process.
Restitution outlives probation. Under Penal Code section 1214, a restitution order is enforceable as a civil judgment, and the balance does not disappear when probation ends. Unpaid restitution can also complicate a request to terminate probation early under Penal Code section 1203.3 and a petition for dismissal under Penal Code section 1203.4 on form CR-180, because judges often ask whether the victim has been made whole before granting discretionary relief, although the dismissal does not erase the restitution obligation either way. See our guides on terminating probation early and expunging a criminal record.
Bankruptcy does not help. The United States Supreme Court held in Kelly v. Robinson (1986) 479 U.S. 36 that restitution ordered as part of a state criminal sentence is not dischargeable in a Chapter 7 bankruptcy, and federal law treats criminal restitution as nondischargeable in other chapters as well. The practical result is that restitution follows the defendant until it is paid, and the victim or the county can use wage garnishment, liens, and tax refund intercepts to collect.
How restitution shapes plea negotiations
Paying early changes the offer. Deputy district attorneys in Riverside, San Bernardino, and Los Angeles County regularly treat early restitution as a mitigating factor. In a theft, vandalism, or hit and run case, arriving at the pretrial conference with proof that the victim has been repaid often opens the door to a reduced charge, misdemeanor diversion under Penal Code section 1001.95, or a dismissal. Restitution is also a standard condition of mental health diversion under Penal Code section 1001.36 and of most other diversion programs. Our guides on misdemeanor diversion, mental health diversion, and how to get criminal charges dismissed explain those paths.
Civil compromise in misdemeanor cases. For certain misdemeanors with an identifiable victim who has a civil remedy, Penal Code section 1377 and Penal Code section 1378 allow the court to dismiss the case when the victim appears and acknowledges satisfaction. Civil compromise is not available for domestic violence offenses, offenses against officers, or offenses committed with intent to commit a felony, and some judges and prosecutors disfavor it, but in a minor vandalism or petty theft case in Ontario, Pasadena, or Long Beach it can end the matter outright. The shoplifting and receiving stolen property guides discuss when this works.
Restitution in juvenile and DUI cases. Juvenile courts order restitution under Welfare and Institutions Code section 730.6, and parents can be held jointly liable. In DUI cases without injury there is usually no victim restitution, but a crash converts the case into one where the restitution exposure may exceed the fine and the jail exposure combined, which is one more reason to involve the insurance carrier immediately. Our article on what happens after a DUI arrest covers the early steps.
Practical steps if restitution is on the table
Get the documentation early. Ask for the victim's loss statement, receipts, estimates, medical bills, and the Victim Compensation Board file as part of discovery under Penal Code section 1054.1. Involve insurance. Auto, homeowner's, and renter's policies sometimes cover the loss, and payments by your own carrier offset the order under Bernal. Do not contact the victim directly. In a domestic violence or protective order case, contact violates the order; in any case, it looks like witness tampering. Route offers through counsel.
Build a payment record. Judges in Victorville, Riverside, and Santa Ana respond to a defendant who has made consistent payments, however small. Ask for a hearing when the number is wrong. Many defendants accept inflated figures because they do not know they can contest them. Our article on public defender versus private attorney explains why restitution hearings are a place where individual attention matters.
Frequently Asked Questions
What is the difference between restitution and a restitution fine in California?
One goes to the victim and one goes to the state. Victim restitution under Penal Code section 1202.4, subdivision (f), reimburses the victim's actual economic loss with no cap. The restitution fine under subdivision (b) is paid to the state Restitution Fund within a statutory range in every felony and misdemeanor conviction, regardless of whether there is a victim.
Can the court consider my inability to pay restitution?
Not for victim restitution. Subdivision (g) of Penal Code section 1202.4 bars the court from reducing victim restitution based on inability to pay, although the court can set a payment plan. Ability to pay can be considered in setting a restitution fine above the statutory minimum, and under Penal Code section 1203.2 probation cannot be revoked for nonpayment unless the failure was willful.
Does restitution go away when probation ends or if I file bankruptcy?
No. A restitution order is enforceable as a civil judgment under Penal Code section 1214 after probation ends, and the United States Supreme Court held in Kelly v. Robinson (1986) 479 U.S. 36 that criminal restitution is not dischargeable in bankruptcy. Interest accrues at ten percent per year under subdivision (f)(3) of Penal Code section 1202.4.
Can I contest the amount of restitution the victim is claiming?
Yes. Subdivision (f)(1) of Penal Code section 1202.4 gives the defendant the right to a restitution hearing before a judge. The victim's statement makes a prima facie case under People v. Gemelli (2008) 161 Cal.App.4th 1539, and the defense then presents evidence that the amount is inflated, duplicative, unsupported, or unrelated to the crime of conviction.
Do I have to pay restitution for charges that were dismissed in my plea deal?
Only if you signed a Harvey waiver. Under People v. Harvey (1979) 25 Cal.3d 754, the court cannot base restitution on dismissed counts unless the defendant agrees to allow it as part of the plea bargain. Prosecutors in the Inland Empire and Los Angeles County usually require that waiver when they dismiss counts, so review the plea form carefully before signing.
Does paying restitution early help my criminal case?
Often, yes. Prosecutors and judges treat early repayment as evidence of accountability, and it frequently supports a reduced charge, diversion under Penal Code section 1001.95, a civil compromise under Penal Code section 1377, or a lighter sentence. No lawyer can promise a particular result, and payment should always be routed through counsel rather than made directly to a protected person.
Gramling Law Group defends theft, vandalism, hit and run, DUI, and domestic violence cases and handles restitution hearings at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Victorville courthouse, the Clara Shortridge Foltz Criminal Justice Center, the Central Justice Center in Santa Ana, and criminal courts throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options, including limited-scope representation for a restitution hearing alone. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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