Can the court order the defendant to pay me for losses where my insurance company has already reimbursed me for those losses?
Yes. Under Penal Code section 1202.4(f)(2), a restitution order is independent of insurance benefits. However, your insurance policy may have provisions for reimbursement from you should you recover from the defendant.
In People v Birkett (1999) 21Cal.4th 226 and In re Brittany L. (2002) 99 Cal.App.4th 1381, the court held that trial courts are not to consider whether the victim has been, or will be, reimbursed from an insurance company or third parties in ordering victim restitution.
Furthermore, case law has denied offset where the victim received payments from Medicare. In People v. Hove (1999) 76 Cal.App.4th 1255, the court, following the reasoning in Birkett, held that the defendant should not be shielded from restitution by the fortuity that his victim had Medicare coverage.
However, when the defendant’s insurance has paid, the defendant is entitled to an offset. (People v. Bernal) (2002) 101 Cal. App. 4th 155.)
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A defendant, charged with a felony offense, has been placed on court-ordered diversion. Is restitution applicable in this case?
Yes. In accordance with Penal Code section 1001.90(b), the court shall impose a diversion restitution fee of not less than $100 and not more than $1,000. This fee is mandatory, except for persons whose cases are diverted pursuant to Penal Code Chapter 2.8, “Diversion of Mentally Retarded Defendants”. Diversion usually involves drug crimes or bad checks.
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