What is the test for determining the amount of restitution a defendant must receive at a restitution hearing?

California, United States of America


The following excerpt is from People v. Westin, B204594 (Cal. App. 9/30/2008), B204594 (Cal. App. 2008):

"A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. `[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.' [Citation.] [Penal Code section] 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner's statement made in the probation report about the value of stolen or damaged property. [Citations.] Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. [Citation.] The defendant has the burden of rebutting the victim's statement of losses, and to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property. [Citation.]" (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543.) A defendant does not have a constitutional right to confront witnesses at a hearing to determine the amount of restitution. The scope of a defendant's due process rights at a hearing is "very limited." (People v. Cain (2000) 82 Cal.App.4th 81, 86.)

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