Restitution Hearing Brief

notes and delete them before filing.
3. Verify all statutory citations are current as of filing date.
4. Attach all supporting exhibits referenced herein.
5. Serve on prosecution and victim(s) per applicable rules.
-->

RESTITUTION HEARING BRIEF

TABLE OF CONTENTS

1. Caption
2. Brief Header
3. Statement of the Case
4. Statutory Framework
5. Victim Information
6. Disputed Restitution Amount
7. Defense Arguments
8. Proposed Alternative Amount
9. Ability-to-Pay Analysis
10. Payment Plan Proposal
11. Legal Authority
12. Conclusion
13. Certificate of Service

Caption

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [________________________________]

Brief Header

DEFENDANT'S BRIEF IN SUPPORT OF CONTESTED RESTITUTION AMOUNT

Defense Counsel: [________________________________]
State Bar No.: [________________________________]
Firm: [________________________________]
Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

Statement of the Case

On or about [__/__/____], the Defendant, [________________________________], was charged with [________________________________] in violation of California Penal Code Section [________________________________].

On [__/__/____], the Defendant was [convicted by plea / convicted at trial] of the following offense(s):

On [__/__/____], the Court sentenced the Defendant to [________________________________].

Statutory Framework

California Penal Code Section 1202.4 governs victim restitution in criminal cases.

• Mandatory Restitution: Under Penal Code 1202.4(b), in every case where a victim has suffered economic loss as a result of the defendant's conduct, the court shall require the defendant to make restitution to the victim in an amount established by court order based on the amount of loss claimed by the victim or any other showing to the court.

• Standard of Proof: The People bear the initial burden of making a prima facie showing of the victim's losses. Once a prima facie showing is made, the burden shifts to the defendant to disprove the amount. (People v. Millard (2009) 175 Cal.App.4th 7, 26.)

• Hearing Right: Under Penal Code 1202.4(f)(1), the defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. There is no right to a jury trial on restitution.

• Recoverable Losses: Penal Code 1202.4(f)(3) enumerates recoverable economic losses including medical expenses, mental health counseling, lost wages, property damage, and other direct losses.

Victim Information

Disputed Restitution Amount

Defense Arguments

A. Causation

[________________________________]

B. Amount Calculation Errors

[________________________________]

C. Inability to Pay

[________________________________]

D. Speculative Damages

[________________________________]

E. Insurance Coverage Offset

☐ Victim received insurance proceeds of $[________________________________]
☐ Insurance claim pending for $[________________________________]
☐ No insurance coverage applicable

[________________________________]

F. Collateral Source

[________________________________]

Proposed Alternative Amount

Based on the foregoing arguments, the Defense respectfully proposes a total restitution amount of $[________________________________], calculated as follows:

Ability-to-Pay Analysis

Income

Assets

Monthly Obligations

Net Monthly Disposable Income: $[________________________________]

Payment Plan Proposal

The Defendant respectfully proposes the following payment plan:

• Total Restitution Amount: $[________________________________]
• Initial Lump Sum Payment: $[________________________________] (if applicable)
• Monthly Payment Amount: $[________________________________]
• Payment Start Date: [__/__/____]
• Estimated Completion Date: [__/__/____]

Legal Authority

1. People v. Millard (2009) 175 Cal.App.4th 7 -- The prosecution must make a prima facie showing of losses; the burden then shifts to the defendant to challenge the amount.

2. People v. Giordano (2007) 42 Cal.4th 644 -- Restitution must reflect the victim's actual economic loss and must be supported by a factual basis in the record.

3. People v. Chappelone (2010) 183 Cal.App.4th 1159 -- Speculative or unsubstantiated damages are not a proper basis for a restitution order.

4. People v. Bernal (2002) 101 Cal.App.4th 155 -- The collateral source rule does not apply in criminal restitution proceedings; payments from other sources should offset the restitution amount.

5. People v. Kramis (2012) 209 Cal.App.4th 346 -- Ability to pay may be considered in setting the schedule and manner of restitution payments.

6. Cal. Penal Code 1202.4 -- Establishes mandatory victim restitution, recoverable losses, and hearing procedures.

Conclusion

For the foregoing reasons, the Defense respectfully requests that this Court:

☐ Reduce the restitution amount from $[________________________________] to $[________________________________];
☐ Exclude speculative and unsupported damages from the restitution order;
☐ Credit insurance proceeds and collateral source payments against the restitution amount;
☐ Approve the proposed payment plan as set forth herein;
☐ Grant such other and further relief as the Court deems just and proper.

Dated: [__/__/____]

Respectfully submitted,

________________________________________
[________________________________]
Attorney for Defendant
State Bar No. [________________________________]

Certificate of Service

I, [________________________________], hereby certify that on [__/__/____], I served a true and correct copy of the foregoing DEFENDANT'S BRIEF IN SUPPORT OF CONTESTED RESTITUTION AMOUNT on the following parties by the method indicated:

☐ Personal delivery
☐ U.S. Mail, first class, postage prepaid
☐ Electronic service via [________________________________]

District Attorney's Office:
[________________________________]
[________________________________]
[________________________________]

Victim(s) / Victim's Attorney (if applicable):
[________________________________]
[________________________________]
[________________________________]

Dated: [__/__/____]

________________________________________
[________________________________]

California-Specific Notes

• Mandatory vs. Discretionary: Victim restitution is mandatory under Penal Code 1202.4(b) in all cases where the victim suffered economic loss. The court has no discretion to deny restitution entirely.
• Standard of Proof: Preponderance of the evidence. The prosecution makes the prima facie case; the burden then shifts to the defendant.
• Appellate Review: Reviewed for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644.)
• Enforcement: Restitution orders are enforceable as civil judgments under Penal Code 1214(b). The victim may enforce the order for 10 years after the date of judgment.
• Restitution Fine: Separate from victim restitution, the court must impose a restitution fine under Penal Code 1202.4(b)(1), ranging from $300 to $10,000 for felonies.
• Modification: The court may modify the amount of restitution on its own motion or on motion of any party under Penal Code 1202.4(f)(1). The victim must receive 10 days' notice before any modification hearing.