“Are there any type of cases that restitution does not apply to?”
“The answer is restitution is constitutionally required in the state of California.”
“Constitutionally required?”
“That is correct.”
“On every case?”
“One every case.”
“Wow. Obviously, that is something most people don’t realize. Obviously, a very important point to somebody going through the criminal justice system. If that’s the case, how is it applied to a myriad of cases, whether it’s a domestic violence, or a theft, or a grand theft auto? Well, that one’s obvious, but sex crimes? How is restitution applied in those various cases?”
“The simple answer is that restitution is going to be imposed in any case where there is a victim who’s suffered some kind of financial loss. Let’s use the example of a person who’s a victim of a sex crime or domestic violence. That person gets therapy, counseling. The cost of those counseling sessions will be borne by the defendant. If there is a robbery, and the person is injured in some way, or there’s a battery and there’s a physical harm and they get medical care, that is a component of restitution. If there is a theft, obviously the value of the product, the item that is stolen, that gets reimbursed. I had a case where a client was accused of embezzling more than $600,000. While we ended up concluding that amount was a little over $300,000, the client was required to not only pay that amount back but required to reimburse the company for its risk management expenses of doing its investigation to unearth and expose the crime that had been committed.”
“In other words, to completely make the victim whole.”
“That’s the idea. As an alternative to that, restitution is a requirement of probation, but if you cannot pay, you won’t be found in violation of your probation if you simply are financially incapable of paying. If you cause an accident, let’s say you are negligent in some way, and it’s more than just careless driving, or let’s use the example of you’re driving, and you don’t have auto insurance, you don’t have liability insurance for the individual who is injured, or you don’t have property damage, then that will be included as restitution. If you are financially, literally not capable of paying, you are not in violation of probation because of that.”
“And that’s in California?”
“That’s in California. What will happen then is when the end of your probation is over, if you have not been able to make payments, because you financially cannot do it, you will not have a violation of probation. So, the probation is not extended, and that obligation will go away, once probation terminates. But certainly, the victim of a crime can always bring a civil action and pursue you that way. I will say, interestingly enough, a victim of a crime can sue you in a civil action, get a recovery in the civil case, and get restitution from you in the criminal case. So there is an advantage to the victim that gives them an extraordinary amount of power to force the defendant to come to terms with the harm that’s been caused. So just that I am perhaps a little bit more clearer about the constitutional requirement, several years ago, approximately 15-20 years ago, there was an initiative called the ‘Victims Bill Of Rights.’ In that, the people that had drafted that initiative, required restitution to be imposed in every case where there was a victim of a defendant’s behavior.
Restitution is not required in a case where there’s a so called ‘victimless’ crime. If there is a victim with some financial burden, some financial damage, restitution must be imposed. Under the constitution, it is directed at the victim, it is focused on the victim. It says the victim has the right to be reimbursed, to get restitution for any damages that the victim has suffered.”
If you’ve been charged with a crime, one of the things that you should think of is what type of defenses are available to you. There are different types of legal defenses available in criminal law, and the type of criminal defense applicable to you and your case will depend on your situation.
Criminal defense law consists of all the legal protections given to individuals who have been accused of committing a crime. In criminal court, the prosecutor must meet the burden of proof – that is, the responsibility of proving their allegations against the accused.
The police and prosecutors have plenty of resources at their disposal to go after someone and charge them with a crime. To balance the power within the justice system, certain protections are in place for the accused. These, and the skills and experience of a defense attorney will dictate how a defendant will be treated in criminal litigation.
An experienced criminal defense attorney knows how to use constitutional laws for the benefit of their client. For instance, criminal prosecution is based upon the evidence gathered by law enforcers. This evidence can be in the form of physical evidence. This will usually consist of objects found in a crime scene, like a possible weapon, tire marks, shoe print, or even tiny pieces of fabric.
Common Defenses in a Criminal Case
There are many common defenses to criminal charges. You may argue that there are inconsistencies in the prosecution’s case against you, that the evidence gathered violated your constitutional rights, or that you had a justifiable reason for committing the crime. Below are some common primary criminal law defenses.
Alibi
The defendant didn’t commit the crime you were charged for. The defense can provide an alibi proving you weren’t at the scene when the crime occurred, or present evidence and witnesses that can counter the prosecution’s case.
Self-Defense
The defendant admits to using force. However, the defense argues that it’s justified since it was done in self-defense due to the violent and threatening actions of the other party.
Insanity Defense
The defendant may plead insanity to avoid being punished, since a criminal punishment is only justified if the offender has full control over their actions and understand that what they did was wrong.
Under Influence
In certain circumstances, a defendant may commit crimes under the influence of alcohol and drugs. This can be used as a criminal defense as if it affects the defendant’s mental functioning to the point where they cannot be held accountable for their actions.
Entrapment
If law enforcement officers caused the defendant to commit a crime that they wouldn’t have otherwise committed, then it’s considered entrapment and be used as a defense in criminal court.
Innocence
Claiming innocence is one of the most basic defenses to criminal liability. You must remember that the prosecution has to prove the crime filed against you beyond a reasonable doubt. If you’re innocent, you don’t have to prove anything, but you can provide documents, testimonies, or evidence that will support the claim that you’re innocent.
Constitutional Violation
A constitutional violation is a type of criminal defense used if the evidence collected by the prosecution was gathered in a manner that violated your constitutional rights. This can include the illegal search, entry, or seizure of your house, car, clothing, etc. Failing to obtain an entry warrant, getting an improper confession, or failing to read to you your “Miranda Rights” at the time of your arrest are also constitutional violations that could lead to suppression of evidence against you or the total dismissal of the case.
Defense of Others
Similar to self-defense, you can use this type of defense if you have used a justifiable amount of force or violence to protect others who are being threatened or are in danger.
Other types of criminal defenses include defense of property, necessity, involuntary/voluntary intoxication, mistake of law, coercion, abandonment, and the statute of limitations.
If you’re accused a crime in California, it can be difficult to know where to start. That’s why you need an experienced defense attorney on your side when you face your charges. With over 20 years of experience successfully defending clients in California, Andrew Dósa understands the unique challenges of criminal defense in Alameda, CA and other areas in California.
