Probation officers have the responsibility to notify victims of their constitutional rights in all cases that are referred to them by the Court. The Probation officer prepares a report to the Court prior to sentencing in both adult criminal matters and in cases where the offender is a juvenile. The purpose of this report is to advise the Court of the circumstances surrounding the offense and to make a recommendation regarding an appropriate sentence. Regardless of the ultimate disposition, the Probation officer will contact the victim of a crime and ensure that his or her views on sentencing and requests for restitution are included in the probation report. The Probation officer can advise victims of services that are available to them and can make referrals to various crime victim programs.
If the offender is sentenced to the California Department of Corrections or to the California Youth Authority, the Probation officer will be able to advise the victim how to ensure that restitution is collected and how to request special conditions of parole after the offender is released from custody.
If the offender is placed on formal probation, there will be a supervision probation officer assigned to the case. It is that officer’s responsibility to monitor the offender’s compliance with the specific conditions of probation. This would include the payment of restitution, and orders to stay away from the victim if ordered.
A victim can call the assigned probation officer and inquire regarding upcoming court hearings, compliance with court ordered restitution, and other conditions that were ordered by the Court. Inquiries regarding probation officer assignments can be directed to (619) 515-8203 for adult defendants and to (858) 694-4600 for juvenile offenders.
The Probation officer must prepare a report to the Court regarding any losses suffered by the victim of a crime. In cases where there is an identifiable monetary loss, the probation officer will recommend that the defendant pay restitution to the victim as a condition of being placed on probation and will also make a recommendation as to the amount of the monthly payment based on the defendant’s ability to pay.
The defendant in turn will be ordered by the Court to make payment on a monthly basis. If the defendant does not follow through with this obligation then he or she will be considered to be in violation of conditions of probation and can be taken back to Court for further court proceedings.
Victims should be aware that the Penal Code is very specific that probation shall not be revoked for failure of a person to make restitution unless the Court determines that the defendant has willfully failed to pay and has the ability to pay.
The California Victim Compensation and Government Claims Board administers California’s Crime Victim Compensation Program Victims of violent crime may receive financial assistance for losses resulting from a crime when these losses cannot be reimbursed by other sources. Losses that may be covered include:
- mental health counseling
- wage/income loss
- financial support
- job retraining
Personal property losses and “pain and suffering” are not reimbursed or compensated under the program.
More information regarding the Victim Compensation Program can be obtained through the San Diego County District Attorney Victim/Witness Assistance program at (619) 531-4041 or through the Customer Services Unit at 1-800-777-9229.
Orders for Restitution
“It is the unequivocal intention of the State of California the all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for the losses they suffer.” This right is protected by the State Constitution and is outlined in Penal Code section 1202.4. The Court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant’s inability to pay is not considered a compelling and extraordinary reason not to impose a restitution order. Restitution can be ordered for economic losses not limited to the following:
- Value of damaged or stolen property
- Medical expenses
- Mental health counseling
- Lost wages
- Interest on the unpaid balance
Regardless of the disposition of the case, whether the defendant is placed on probation or sentenced to State Prison, the sentence must include appropriate restitution. Once criminal restitution is ordered it is collectable as though it was a civil judgment but is not subject to the time limitations applicable to a civil order.
A victim can obtain the Order for Restitution and Abstract of Judgment (Judicial Council form # CR-110/JV-790) from the sentencing Court free of charge. Penal Code section 1214 also states in part that “a victim shall have access to all resources available under the law to enforce the restitution order, including, but not limited to, access to the defendant’s financial records, use of wage garnishment and lien procedures….”
Revenue and Recovery
The Office of Revenue and Recovery is a division of the San Diego County Auditor and Controller. It is responsible for establishing accounts, collecting debts owed to the County and disbursement of funds. Revenue and Recovery also provides collection services for the Probation Department and the Superior Court. The collection of court ordered restitution for victims is also handled by the Office of Revenue and Recovery.
When a defendant is placed on probation with a condition that he make a monthly payment to the victim of a crime, the Office of Revenue and Recovery will set up an account for the victim in conjunction with the Probation Officer. Revenue and Recovery will make monthly collections and disburse the funds to victims of crime who have been identified by the Probation Officer. If the probationer fails to make payment the Probation Officer will be notified. The administrative cost of this collection is the responsibility of the probationer, the victim pays nothing for this service.
A victim must ensure that the Office of Revenue and Recovery is updated should there be a change of address by the victim. The Office can be contacted by phone at (619) 515-6200, there is also a web site that offers greater explanation of their services that can be viewed at www.sdorr.com
If a victim is dissatisfied with the restitution being collected and disbursed by the Office of Revenue and Recovery then civil processes can be pursued by the victim. The sentencing Court will provide a copy of the court order for restitution that can be utilized as a civil judgment. If a victim is unsure how to utilize a criminal restitution order then a private collection attorney or a commercial judgment collection service could be utilized.
Other Collection Options
A criminal restitution order is immediately enforceable as though it was a civil judgment. A victim has access to all resources available under the law to enforce the restitution order, including but not limited to all of the following:
- Access to the defendant’s financial records
- Use of wage garnishment and lien procedures
- Information regarding the defendant’s assets
A victim with a restitution order does not need to “sue” the defendant because the judgment has already been made by the Court. After obtaining the Order For Restitution and Abstract Of Judgment (#CR-110), a victim may pursue collection of the debt on his/her own, or may contact a judgment collection service or collections attorney for expert advice and to ensure that their interests are well represented.
California Department of Corrections
The California Department of Corrections operates the Office of Victim’s Services. Victims of crime can request special conditions of parole, notification of release from prison, and collection of restitution through this office.
If a victim wishes to have restitution collected from the inmate while he is in state prison, the victim must complete the appropriate request form CDC#1707.
The toll free assistance number is 1-888-562-5874.
Victim Witness Assistance
The San Diego County District Attorney operates the Victim/Witness Assistance Program. This program offers comprehensive services to crime victims. Victim Advocates are located throughout the County and offer assistance including:
- Crisis intervention
- Emergency assistance (housing, food, medical care, etc…)
- Community resource referrals
- Assistance with filing Victims of Crime Compensation Claims
- Information about the Criminal Justice System (case status, impact statements, restitution, etc…)
Advocates are available to intercede on behalf of victims with family and friends, as well as, law enforcement officers and prosecutors. The program can be reached at (619) 531-4041.
The California Constitution protects victims of crime and has established a Victim's Bill Of Rights. A victim of crime has rights not limited to the following:
- To be treated with fairness, dignity, and respect
- To be protected from law violators
- To be safe and secure at school
- To be present and heard at all critical stages of the pre-conviction and post-conviction proceedings
- To refuse to be interviewed by the accused or a representative of the accused
- To seek restitution
These are rights that are held by all Californians. Article I, Sections 28 of the California Constitution is the foundation for many of the mandates in the criminal justice system. The California constitution Declaration of Rights can be viewed in its entirety here.
Victim Rights are the law and are reflected throughout the various California State Codes. The Penal Code establishes criminal law, outlines punishments, and assigns responsibility to the various members of the criminal justice system. It is also very specific as to the rights of victims and witnesses of crime. Penal Code Title 17 was enacted to ensure that all victims and witnesses of crime are treated with dignity, respect, courtesy, and sensitivity. The rights are enumerated in Penal Code Section 679.02 and include:
- The right to be informed of court proceedings in a timely manner
- The right to be informed of the final disposition of the case
- The right of a victim to appear and to express his or her views on punishment
- The right of a victim to be notified of a defendant’s parole from State Prison
- The right of victims to civil recovery and to be compensated by the Victim Compensation Program if they are the victim of violent crime
Welfare and Institutions Code
The Welfare and Institutions Code outlines a victim’s rights as it relates to juvenile offenders. Victims have a right to be present during juvenile proceedings with a few exceptions, to participate in “victim offender conferencing," to submit a victim impact report and have it included in the Probation Officer’s Social Study report to the Court. (see Welfare and Institutions Code section 656.2)
Also, “It is the intent of the Legislature that a victim…who incurs any economic loss as a result of the minor’s conduct shall receive restitution directly from that minor…” (see Welfare and Institutions Code section 730.6) Losses that can be considered for restitution include the following:
- Value of stolen or damaged property
- Medical expenses
- Wages or lost profits incurred by the victim or the victim’s parent or guardian if the victim was a minor
Liability for payment of restitution is shared by the juvenile offender’s parent or guardian who has joint or sole legal and physical custody and control of the minor. A restitution order is immediately enforceable as though it were a civil judgment. As with an adult offender, the code is specific that probation shall not be revoked for failure of a person to make restitution as a condition of probation unless the Court determines that the person has willfully failed to pay or failed to make sufficient bona fide efforts to legally acquire the resources to pay.