Marsy’s Law: Non-Economic Pain and Suffering Restitution

In People v. Smith, the Court of Appeal upheld a trial court’s order for restitution amounting to more than $750,000 for the victim’s pain and suffering for having been sexually abused for 15 years.

Under 2008’s Marsy’s Law, trial courts are required to pay restitution to a crime victim “in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.” (Penal Code § 1202.4 (f).) “The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution ….“ (§ 1202.4 (f)(1).)

In general, the amount of restitution is limited to the economic losses suffered by the victim. However, for felony § 288 convictions, the court may order restitution for “[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288.” (§ 1202.4 (f)(3)(F); People v. Fulton (2003) 109 Cal. App. 4th 876, 884, fn. 5.)

In the recent case People v. Smith, the Court of Appeal upheld a trial court’s order for restitution amounting to more than $750,000 for the victim’s pain and suffering for having been sexually abused for 15 years.

Economic damages are “objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities.” (Civ.Code, § 1431.2, subd. (b)(1).) Noneconomic damages are “subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.” (Civ.Code, § 1431.2, subd. (b)(2).)