Law Review: Victims of crimes entitled to restitution | SierraSun.com
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Law Review: Victims of crimes entitled to restitution

 

There are not many benefits for victims of crimes, but there is one established in California’s Constitution and Penal Code 1202.4.

By analogy, there are not a lot of benefits from getting old, but there are some like discounts at movies, state parks and businesses, getting in line for the COVID-19 vaccine; and some would say wisdom comes with age. I’m still waiting.

 

CONSTITUTIONAL RIGHT TO RESTITUTION

California Constitution Article I, Section 28 provides that restitution must be imposed “in every case… in which a crime victim suffers a loss…” Penal Codes 1202.4 recites as a statement of intent: “It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime…”



Section 1202.4 goes on to list examples of different types of economic loss suffered by victims of crime. The code specifically recites “…including but not limited to, all of the following:..” The extensive list is meant to be expansive to provide money for crime victims. If they can recover from their perpetrators, which is not always easy. Most criminals don’t have a lot of assets.

 

THE CRIMINAL: MICHAEL PATRICK KELLY

Here are the facts. Charles Schwab terminated Michael Patrick Kelly’s contract as an independent investment advisor. Schwab hired a lawyer and obtained a workplace violence restraining order to protect its employees from the vindictive Kelly’s obsessive threatening behavior. Kelly was one angry ex-employee and repeatedly violated the restraining order, often pretending to be someone in the industry by the name of Craig Cross. Kelly used this false identity pretending to be Cross to meet with Schwab employees and penetrate Schwab’s business accounts.



Schwab hired a law firm to protect the company and its employees from Kelly who was engaging in an extended course of conduct to unlawfully target Schwab employees.

 

TRIAL COURT

Kelly was ultimately convicted of false impersonation of Cross and disobeying a court order.

The trial court ordered modest restitution for Cross and granted Schwab restitution in the amount of $221,140.40 for its attorney’s fees and costs of obtaining the restraining order and proving Kelly had engaged in a secret, unlawful course of conduct. The basis of the restitution awards was Penal Code 1202.4.

 

RESTITUTION CODE CHALLENGED

Kelly, to no one’s surprise, was not pleased with the restitution order. The basis of his challenge was that the restitution code allowed recovery of: “Actual and reasonable attorneys fees and other costs of collection…” Kelly claimed that Schwab’s attorney’s fees were not a collection lawsuit to “collect damages against Kelly”.

 

COURT RULING FOR SCHWAB

The Second Appellate District Court of Appeal had no problem ruling against Kelly basically reciting portions of 1202.4 requiring criminal defendants to “fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct including but not limited to all of the following…”

The Court of Appeal ruled the trial court appropriately compensated Schwab for all economic losses resulting from Kelly’s criminal behavior, including attorney fees.

The ruling was entirely appropriate.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.

 


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