Metropolitan News-Enterprise


Tuesday, September 10, 2019


Page 3


Court of Appeal:

No Need to Determine Ability to Pay Victim Restitution

Opinion Answers Question Left Open by January Decision Which Mandates Ability-to-Pay Determination Before Imposing Fines and Assessments


By a MetNews Staff Writer


The First District Court of Appeal has held that there is no need for a court to consider a criminal  defendant’s ability to pay when ordering restitution directly to the victim, declining to extend the rule established earlier this year that applies to restitution fines.

Justice Alison M. Tucher of Div. Four authored the opinion, filed Friday. It affirms an order to repay to the California Victim Compensation Board the $3,999.07 it advanced to the victims.

Tucher differentiated the present case—where victim restitution was ordered—with the situation in People v. Dueñas, decided Jan. 8 by Div. Seven of this district’s Court of Appeal. There, it was held that an impoverished woman could not be forced to pay $220 in fines and fees.

Jan. 8 Decision

Acting Presiding Justice Laurie Zelon wrote:

“Because the only reason Dueñas cannot pay the fine and fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional. Accordingly, we reverse the order imposing court facilities and court operations assessments, and we remand the case to the trial court with directions to stay the execution of the restitution fine until the People prove that Dueñas has gained an ability to pay.”

Zelon noted:

California law provides for two types of restitution: direct restitution to the victim (Pen. Code, § 1202.4, subd. (f)), which is based on a direct victim’s loss, and a restitution fine (Pen. Code, § 1202.4, subd. (b)), which is not. Payment of direct victim restitution goes directly to victims and compensates them for economic losses they have suffered because of the defendant’s crime….Direct victim restitution was not ordered and is not at issue in this case.”

Dueñas Not Extended

It was in issue in the case before the First District. Tucher said:

“Based on the significant differences in purpose and effect between victim restitution and the moneys at issue in Dueñas, we decline to extend the rule of Dueñas to victim restitution. In a civil action for compensatory damages, a defendant’s wealth is irrelevant to liability….We conclude similarly that a defendant’s ability to pay victim restitution is not a proper factor to consider in setting a restitution award under section 1202.4, subdivision (f).”

The jurist provided this reasoning:

“The parties have not cited any cases extending the rule of Dueñas to victim restitution under section 1202.4, subdivision (f), and our own research has disclosed none. Case law does make clear that the purposes of the assessments and fine considered in Dueñas are different from the primary purpose of victim restitution….As Dueñas explains, the court facilities and court operations assessments are intended to maintain funding for California courts….A restitution fine is intended to be additional punishment for a crime….

“The purpose of victim restitution, on the other hand, is neither to raise funds nor to punish a defendant; it ‘is to reimburse the victim for economic losses caused by the defendant’s criminal conduct, i.e., to make the victim reasonably whole.’ ”

State Constitutional Provision

Tucher said the victim-restitution statute implements the state constitutional command in Art. I, §28(b). The provision—added by initiative in 2008 as part of the “Victims’ Bill of Rights” or “Marsy’s Law”—states:

“In order to preserve and protect a victim’s rights to justice and due process, a victim shall be entitled to the following rights:…[¶] (13) To restitution.”

Tucher remarked that while victim restitution may, like a restitution fine, contribute to the defendant’s rehabilitation to deterrence of crime, “its measure is the harm suffered by crime victims and its primary effect is to compensate those victims.”

It is not relevant, she said, that the victims have already been compensated and that the payment from the defendant will go to the California Victim Compensation Board. Tucher explained:

“We see no reason that defendant should receive a windfall—and the Restitution Fund should suffer a loss—simply because the Victims exercised their right to apply to the California Victim Compensation Board rather than waiting for the victim restitution order.”

People v. Ryan

Tucher does not mention the contrary decision in People v. Ryan, decided July 28, 1988 by Div. Three of the First District. Although an order to a burglar to pay $8,045 to the victim as restitution was affirmed, the affirmance was based on the defendant’s admission of an ability to pay.

Presiding Justice Clinton W. White (now deceased) pointed to an amendment to Penal Code §1203.04 providing that probation may not be revoked based on nonpayment of restitution and said:

“[T]he language of section 1203.2 that restitution shall be consistent with a person’s ability to pay, applies to all provisions of the Penal Code providing for direct restitution to the victim.”

The California Supreme Court in the 1991 case of People v. Cookson rejected the view White expressed in Ryan that “[t]he period of probation may not be extended for failure to make full restitution to the victim unless said failure is willful and the defendant has the ability to pay.” However, unexamined was this pronouncement in Ryan:

“An order of restitution as a condition of probation meets the requirements of due process if the defendant is afforded an opportunity to present evidence on his ability to pay as well as on the extent of the loss occasioned by his criminal conduct.”

The case is People v. Evans, A154841.


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