Harvest

*645 Opinion

In People v. Hanson (2000) 23 Cal.4th 355 [97 Cal.Rpfr.2d 58, 1 P.3d 650 ], our Supreme Court held that the double jeopardy provisions of the California Constitution prohibited a trial court from increasing a statutorily mandated restitution fine following retrial after appeal. The issue presented here is whether the same result applies to direct restitution to victims of crime. We conclude that court-ordered victim restitution imposed for the first time at a resentencing following appeal is not punishment and is therefore not constitutionally barred.

Background

Defendant Joshua Harvest was convicted of the first degree murder of Joel Vigil and the second degree murder of Michael Gialouris. The jury found true a multiple-murder special-circumstance allegation. There was no provision for victim restitution made at his sentencing because the court reserved the issue. On defendant’s appeal, this court affirmed the first degree murder conviction; the second degree murder conviction and the special circumstance finding were reversed, and the prosecution was given the choice between a retrial or consenting to a reduction of the charge to voluntary manslaughter. (People…

I respectfully dissent. In my view the legislative genesis of restitution fines and victim restitution does not permit the conclusion reached by the majority, to wit; that the Legislature expressly or impliedly indicated a preference that victim restitution is a civil punishment. Nor can I subscribe to the view that the statutory scheme is not so punitive in purpose and effect that, whatever indication the punishment may have been intended as civil, it operates as a criminal penalty. (People v. Hanson (2000) 23 Cal.4th 355, 361 [ 97 Cal.Rptr.2d 58 , 1 P.3d 650 ].)

The appropriate analysis as set out by our Supreme Court is to look first to the Legislature’s characterization of the punishment. (People v. Hanson, supra, 23 Cal.4th at p. 361 ; Hudson v. United States (1997) 522 U.S. 93, 99-100 [ 118 S.Ct. 488, 493 , 139 L.Ed.2d 450 , 162 A.L.R. Fed. 737 ].) As the Hanson court noted, the provisions for both types of restitution are now encompassed in Penal Code section 1202.4, having been moved there in 1994 from the Government Code. (Stats. 1994, ch. 1106, § 3.) Although victim restitution was first imposed on this defendant only by an order of July 1999, the court applied the…