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People v. Fulton6/12/2003
loss claimed by the victim or victims or any other showing to the court." (Ibid.) Full restitution is mandatory unless the court "finds compelling and extraordinary reasons for not doing so, and states them on the record." (Ibid.) A defendant is entitled to "a hearing before a judge to dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1).) In determining the amount of restitution, the court is required to order "a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as a result of the defendant's criminal conduct." (§ 1202.4, subd. (f)(3).)
At the core of the victim restitution statutory scheme is the mandate that a victim who suffers economic loss is entitled to restitution and that the restitution is to be "based on the amount of loss claimed by the victim." Thus, a victim seeking restitution (or someone on his or her behalf) initiates the process by identifying the type of loss (§ 1202.4, subd. (f)(3)) he or she has sustained and its monetary value. Where the restitution claimed is attorney fees, this requirement is met when the record contains prima facie evidence of reasonable attorney fees incurred by the victim to recover the economic losses. (Cf. In re S.S. (1995) 37 Cal.App.4th 543, 546-547; People v. Scroggins (1987) 191 Cal.App.3d 502, 508; People v. Hartley (1984) 163 Cal.App.3d 126, 130, fn. 3; see also Evid. Code, § 500.)
Once the record contains evidence showing the victim suffered economic losses and incurred reasonable attorney fees to recover those losses, this showing establishes the amount of restitution the victim is entitled to receive, unless challenged by the defendant. In that event, the burden shifts to the defendant to show the portion of the attorney fees that are not recoverable because those fees can be attributed solely to a nonrecoverable category of non-economic losses. (See People v. Foster (1993) 14 Cal.App.4th 939, 946; People v. Baumann (1985) 176 Cal.App.3d 67, 80-82; People v. Hartley, supra, 163 Cal.App.3d at p. 130.) This approach complies with the statutory mandate that the amount of restitution is to be based on the "loss claimed by the victim" and the designated right of the defendant to a hearing "to dispute the determination of the amount of restitution."
We disagree with the assertion by Fulton and amicus curiae Appellate Defenders that due process precludes placing the burden of proof on the defendant to show the attorney fees were incurred solely to recover non-economic losses. Due process requires that the prosecution prove beyond a reasonable doubt all of the elements of the charged offenses. (People v. Babbitt (1988) 45 Cal.3d 660, 692.) However, when the defense raises factual issues collateral to the question of the accused's guilt or innocence, there is no constitutional impediment to requiring the accused to prove these collateral facts by a preponderance of the evidence. (Id. at pp. 693-694; People v. Frye (1998) 18 Cal.4th 894, 967-969; see also People v. Allen (1999) 21 Cal.4th 424, 435-436; People v. Hawthorne (1992) 4 Cal.4th 43, 79.) A challenge to the amount of restitution to the victim is entirely collateral to the defendant's guilt or innocence. Moreover, the defendant's burden does not arise until the victim has made a prima facie showing of his or her claimed loss. Thus, there is no due process impediment to placing the burden of proving apportionment of fees between economic and non-economic damages on the defendant.
Additionally, as acknowledged by Fulton and amicus curiae, one of the factors to consider in evaluating whether the burden of proof should be shifted from one party to the other is "the most desirabl
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