Restitution – May Judge Rely Upon Victim Estimates?

Restitution is an area that causes a lot of anxiety in some clients, as they may have reached an advantageous resolution, but then the judge awards the victim a large amount in restitution.  It can sometimes seem like restitution is punishment on top of sentence terms. 

 

Penal Code § 1202.4(f) seems to invite this type of windfall for a victim in a criminal case, as this code section requires judges to order defendants to make restitution to any victim who suffered economic loss because of defendant’s criminal conduct.  Victims will seem to exaggerate their economic losses and judges often appear to “rubber stamp” the inflated claims as an order.

Section 1202.4(f) continues, stating restitution “shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct . . .” 

The language used in the code that judges are “required” to award restitution and that restitution “shall” be awarded, we believe, leads to judges ordering restitution even when the victim actually suffers no damages.  This can be particularly true in domestic violence cases based upon a defendant pushing a victim and the victim suffers no visible injury whatsoever, but defendant is ordered to pay hundreds or even thousands of dollars based on incredible claims made by an angry ex-spouse or ex-girlfriend.

The following California Court of Appeal ruling out of the First District (San Francisco) epitomizes this situation.

The District Attorney’s Office for the County of San Francisco charged Joshua Jerceo Pittman, as well as his co-defendant, Deandre Quininne, with multiple felony offenses committed on two days in 2020.

As to Mr. Pittman, he was charged with four counts of first-degree residential burglary and one count of first degree residential robbery (Penal Code §§ 459, 460(a)) committed against a 16-year-old female victim (Penal Code §§ 211, 212.5(a)).

The allegations against Mr. Pittman also included an allegation that he was on bail when he committed the offenses (Penal Code § 12022.1(b), that he had served a prior prison term (Penal Code § 667.5(a)) and that he was on parole at the time of the offenses (Penal Code § 1203.085(b)).  Indeed, Mr. Pittman was wearing a GPS-monitor anklet when he committed each offense and the device recorded his location in each home.

In December, 2021, Mr. Pittman reached a plea bargain, wherein he pleaded guilty to two amended charges of second-degree burglary and the remaining charges were dismissed.  The judge imposed two concurrent two-year prison terms and released Mr. Pittman to his parole officer because his pre-trial confinement exceeded the length of his new sentence.

A restitution hearing was also set.  At the time, two of the victims, who were spouses, discovered their home had been burglarized, the victims told police that Mr. Pittman and Mr. Quininne had taken a safe and jewelry worth $10,000.  The victims itemized their losses as $5,000 for a five-carat sapphire diamond ring wit gold bands, $150 for the safe, $500 for two pearl necklaces, $150 for two pearl earrings and $400 for a necklace and earring set.  The total of such items was $6,700.  The victims had no receipts for any of the items, explaining that some of the items were wedding presents from decades earlier and that other items were also gifts or just very old, so receipts were not available.

However, at the restitution hearing, the same items were valued by the victims at $37,815.  The demand for restitution also included a demand for $5,500 for damage “to the bathroom floor and vanity,” as well as $85 for damage to the front door.  Defendants had no documents to support any of the claims.  Counsel for the victims explained that the five-carat ring was valued at $15,000, not $5,000 as originally estimated.

The judge handling the restitution hearing awarded the victims $6,700 and Mr. Pittman appealed to the California Court of Appeal for the First District, which affirmed the trial court judge.  

The appellate court explained that once the victim makes a prima facie showing of economic loss, the defendant has the burden of disproving any amounts claimed.  On appeal, the judgment will be presumed correct and attacking it requires a demonstration of prejudicial error.  In this case, Mr. Pittman failed to demonstrate any judicial error in awarding the victims $6,700.

We find this ruling rather disturbing insofar as the appellate court placed the burden of disproving any amounts claimed on defendant once the judge finds that the victim makes a prima facie showing of any damages.  People v. Gemelli (2008) 161 Cal. App. 4th 1539, 1543.

The appellate court further noted that while receipts from purchase of jewelry 45 years earlier certainly may not be available, an invoice for repairing or replacing the bathroom tile and vanity should be available and presented for restitution, but here it was not.

The ruling is silent as to exactly what is required for a victim to make a prima facie showing of damages.  Here, the judge regarded the police report statements as sufficient, which the probation report adopted as true.