Victim restitution does not allow a victim to keep a phone that was later returned to her undamaged, and also be awarded the cost of the phone. After a physical altercation between defendant and his girlfriend, M., she fled the house, leaving her phone behind. Defendant pled no contest to battery in a dating relationship and returned the phone to M. at the sentencing hearing. At the restitution hearing, M. sought the $629.99 purchase price of her phone. M. testified she intended to return the phone for a full refund but when defendant returned it at sentencing, it was outside the store’s refund period. She further testified that she now hoped to sell or use the phone. The court awarded her the $629.99 and allowed her to keep the phone. Held: Reversed. A victim restitution order is intended to compensate victims for their actual losses. It is not intended to provide victims a windfall. If lost property is recovered, the court has the discretion to either (1) allow the victim to retain the goods and order the defendant to pay for the diminution in value or (2) order the defendant to pay the victim for the value of the goods when stolen and give the merchandise to the defendant for disposal to offset the amount the defendant owed to the victim.
Editor’s note: The Court of Appeal disagreed with respondent’s argument defendant had not met his procedural burden in the trial court to challenge the restitution amount. Procedurally, once the victim has made a prima facie showing of their loss, the burden shifts to the defendant to demonstrate the amount is other than that claimed by the victim. Defendant met this burden by 1) reminding the court that the phone was returned to M. at the sentencing hearing, 2) arguing that M. should not recover the cost of the phone, and 3) eliciting testimony from M. that she hoped to sell or use the phone.