It depends on why the court is ordering payment. Direct victim restitution under Penal Code § 1202.4 generally compensates economic loss caused by the criminal conduct for which you were convicted. If the court grants probation, it may also impose restitution as a probation condition for related conduct beyond the convicted charge when the condition serves probation’s rehabilitative purpose and has a factual basis. The plea agreement and any waiver covering dismissed counts also matter. A dismissed or uncharged allegation does not automatically establish either entitlement to, or immunity from, a claimed amount. (Penal Code §§ 1202.4, 1203.1; People v. Martinez)
Which kind of order is the court considering?
Section 1202.4 requires direct restitution for a victim’s proven economic loss resulting from the defendant’s criminal conduct. The conviction and causal link matter. In People v. Martinez, a driver pleaded guilty to leaving the scene of an injury accident and received a prison sentence. The California Supreme Court held that direct restitution could cover injuries caused or worsened by leaving, but not injuries from the collision itself when criminal fault for the collision had not been established. That is why a large accident bill alone did not answer what the hit-and-run conviction caused. (Penal Code § 1202.4(a), (f); People v. Martinez)
Probation introduces a different authority. Penal Code § 1203.1 lets courts impose reasonable conditions directed to rehabilitation and public safety. In People v. Carbajal, the court upheld requiring a person convicted of misdemeanor hit-and-run to pay for damage from the underlying collision as a condition of probation. The defendant had admitted causing the damage, and the condition was reasonably related to the hit-and-run and future law-abiding conduct. The California Supreme Court later emphasized in Martinez that this probation power is broader than § 1202.4 direct restitution in a nonprobationary sentence. It still requires a reasonable relationship and a sound factual basis; it is not authority to add any loss merely because it appears in a police report. (Penal Code § 1203.1(j); People v. Carbajal; People v. Martinez)
Check any agreement about dismissed counts
Penal Code section 1192.3 addresses certain pleas in which the conviction charge caused no restitution loss but dismissed charges from the same or related conduct did. It permits restitution as a plea or probation condition when the plea is voluntary, has a factual basis, and its conditions are court-approved; the statute excludes the felonies specified in sections 1192.5 and 1192.7. For restitution attributable to a dismissed count under that provision, the court must obtain a waiver under People v. Harvey. Ask counsel to identify the exact dismissed count, agreed restitution and waiver before treating the conviction charge as the only possible basis for payment. (Penal Code § 1192.3)
How to assess a loss from a dismissed or uncharged incident
Start with the charging document, verdict or plea, any agreement about dismissed counts, the sentencing minutes, and the signed probation terms. Ask counsel to identify the legal basis for each part of the proposed award. For an award based on section 1202.4’s ordinary conviction rule, trace the claim to the convicted conduct and an eligible victim’s economic loss; separately assess any agreed restitution for dismissed counts. A separate probation condition should be tested for its relationship to the offense or rehabilitation and for a supported amount. If probation was denied or later revoked, counsel should examine the operative order and sentence rather than assuming a probation theory continues to justify every item. (People v. Martinez; People v. Carbajal)
Build an item-by-item record: who incurred the loss, what happened, the date, invoice or estimate, amount already paid, and how the claimed conduct caused it. Compare the dates with the convicted conduct and any dismissed allegations. Insurance records can help identify the amount and recipient, but a third party’s indemnification rights do not by themselves reduce a § 1202.4 award. Distinguish a dispute about causation or authority from a dispute about the number. (Penal Code § 1202.4(f)(1)–(3))
Section 1202.4 gives a defendant a hearing before a judge to dispute the amount of direct restitution. Carbajal also requires notice and a meaningful opportunity to challenge information used for a probation restitution condition; the amount must have a factual and rational basis. If a claim is overstated, identify the specific line item, contrary record, or missing causal step. The court may resolve the factual dispute without rejecting restitution altogether. (Penal Code § 1202.4(f)(1); People v. Carbajal)
For the wider sentencing context, see the Law Offices of David S. Chesley’s sentencing advocacy page. To discuss the basis and amount of a proposed restitution order, call (800) 755-5174.