The Rights of Victims

California has been a national model in affording rights to crime victims since voters enacted the Victims' Bill of Rights in 1982. (Cal. Const., Art. I, § 28.) Pro-victim sentiments peaked again in November 2008 when voters revised the state constitution and enacted the Victims' Bill of Rights Act of 2008, commonly known as Marsy's Law. The measure granted expansive rights to all crime victims.

Background
Marsy's Law grew out of frustrations experienced by the family of Marsy Nicholas, a 21-year-old UC Santa Barbara student who was murdered by a former boyfriend. After the defendant was released on bail, the victim's mother was shocked to see him at a local supermarket; the family had been given no notice of the bail hearing, let alone an opportunity to testify. Years later - after the killer was convicted and sentenced to life in prison - Marsy's mother suffered a heart attack from the stress of attending a parole hearing. The family continued to endure additional parole hearings, always fearful their daughter's killer would be released from confinement.

This traumatic experience helped shape Marsy's Law, which more broadly enumerated constitutional rights for crime victims from the moment of initial contact with law enforcement through postconviction parole proceedings. Though many of these rights already existed in various statutes, Marsy's Law added new ones and embedded important concepts into Article 28 of the state constitution itself.

Marsy's Law is intended to ensure that all crime victims are treated with fairness, dignity, and respect for privacy; are free from intimidation, harassment, and abuse throughout the criminal or juvenile justice process; and are protected from the defendant and from persons acting on the defendant's behalf. It applies when courts consider bail before trial, the trial itself, and postconviction decisions about sentencing, probation, parole, or release. (See Cal. Const. Art. I, § 28, sections (b)(1), (2), (3), (7), (8), and (12).)

Constitutional Rights
Since the passage of Marsy's Law, Article I, section 28 of the California Constitution now enumerates 17 rights for victims of all crimes - including misdemeanors, felonies, and even infractions - and it provides for personal enforcement of these rights in the courts by victims and their representatives.

For openers, every crime victim is entitled to receive a "Marsy's Rights card" summarizing these rights. The Penal Code specifies that every law enforcement agency shall "at the time of initial contact with a crime victim, during follow-up investigation, or as soon thereafter as deemed appropriate by investigating officers or prosecuting attorneys," provide or make available to each victim such a card. (Pen. Code, § 679.026(b) and (c).) Additionally, the Attorney General's office must maintain a state-funded website that identifies and explains the rights guaranteed by Marsy's Law. (§ 679.026(c)(2).)

Two key aspects of this law that deserve special attention involve notification and restitution.

Right to Notice
As noted above, crime victims are entitled to notification about their collective and specific rights during each stage of criminal proceedings, and at many of these stages they have the right to be present and heard by the court. Assuming that a proper request is made:

n Victims are entitled to reasonable notice and to confer with the prosecuting agency regarding arrest of the defendant; charges filed; determination of whether to extradite the defendant; and notification before any pretrial disposition. (Cal. Const. Art. I, § 28(b)(6).)

- Victims are also entitled to "reasonable notice" and the right to attend all public proceedings at which the defendant and the prosecutor are entitled to be present, as well as all parole or other postconviction release proceedings. (Cal. Const. Art. I, § 28, section (b)(7).)

- Victims have the right to be heard at any proceeding "involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue." (Cal. Const. Art. I, § 28(b)(8).)

Court rulings had long permitted a victim's family to submit an impact statement during the penalty phase of a capital case. (People v. Pollock, 32 Cal. 4th 1153, 1181 (2004); People v. Edwards, 54 Cal. 3d 787, 832-836 (1991).) For other sentencing hearings and juvenile disposition hearings, victims had the right to attend and to make personal, written, or taped victim- impact statements. (Pen. Code, §§ 679.02(a)(3), 1191.1, and 1191.15.)

Marsy's Law extended such rights to "any proceeding" - including plea hearings - where "a right of the victim may be at issue." (Cal. Const. Art. I, § 28(b)(8).)

- Finally, victims have the right to be informed "of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody." (Cal. Const. Art. I, § 28(b)(12).)

A vital part of this system is the telephone alert component - Victim Information and Notification Everyday (VINE) - which allows victims to receive recorded alerts about the release or escape a specified inmate. VINE alerts are available in English, Spanish, and Vietnamese, as well as by email, text message, or TTY device. Anyone can register confidentially with VINE by phone (800/464-3568) or online (www.vinelink.com). Some courts and prosecution offices allow victims to track cases based on a case number or a defendant's name and date of birth. In some counties the service may be expanded to notify victims of relevant court dates.

Restitution for Injuries
Compensating crime victims for injuries is an equally compelling component of California's pledge of fairness to persons harmed by criminal acts. The concept of restitution is flexible, and meant to "restore" someone or something to its previous place. Marsy's Law declares that it is the unequivocal intention of the People of the State of California that victims "shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer." (Cal. Const. Art. I, § 28(b)(13)(A).)

The California Department of Corrections and Rehabilitation collects money from offenders to distribute to crime victims - in the case of restitution awards, even after an offender is off parole. Importantly, all money and property collected from an offender ordered to make restitution must first be applied to pay the victim. (Cal. Const. Art. I, § 28(b)(13)(C).)

These efforts are intended to help assure victims of adequate recovery for their losses. But California's restitution fund presently contains more than $10 million in unclaimed money. The money is available to crime victims, but they must take action to assert their rights: Injured parties must file a claim, and pending claims cannot be processed if the state lacks proper contact information or other supporting data. Attorneys can be of great assistance to a crime victim by ensuring that claims are properly filed.

Restitution must be provided to any person or entity that is the object of a crime. Section 1202.4 provides that under certain circumstances crime victims (including a victim's family members and derivative victims) may be entitled to the cost of repairing or replacing stolen or damaged property; medical, dental, or rehabilitation expenses; mental health counseling; damages for psychological harm or emotional distress; lost wages or profits; relocation expenses for personal security; and funeral and burial expenses.

Additionally, Penal Code section 1203.1(j) serves as a catch-all provision, granting judges broad authority to order restitution that might otherwise fall outside of an enumerated category.

To be sure, disputes may arise over whether compensation should be required or how to calculate losses. And although restitution is often made to replace property with an item of "like" value, this does not mean a windfall for victims to obtain newer or more expensive items. (See In re Anthony M., 156 Cal. App. 4th 1010, 1017 (2007).)

But what if a victim wants to repair property, even if the cost exceeds actual replacement value? In a recent case, one court reasoned that a victim may choose to repair rather than replace a damaged automobile and the full repair costs would be granted, with the dual goals of rehabilitating the offender and redressing the injury (In re Alexander A., 192 Cal. App. 4th 847 (2011)). In a Yolo County case now before the California Supreme Court, the issue is whether a victim is entitled to the full cost of repair, even if it exceeds the original purchase price (People v. Stanley (pending as No. S185961)).

It is worth noting that because restitution in these circumstances also serves punitive, deterrent, and rehabilitative purposes, it may be ordered regardless of whether the victim may potentially be reimbursed by a collateral source, such as an insurance carrier. (See People v. Birkett, 21 Cal. 4th 226 (1999).)

Victims also are entitled to a prompt return of their property when it is no longer needed as evidence. (Cal. Const. Art. I, § 28(b)(14).)

The Process
Under Article I, section 28(c), crime victims can seek restitution in any of four ways: by pro per direct application; through a retained attorney; via a legal representative; or by relying on the prosecuting attorney to make the request.

Lawyers representing crime victims should maintain ongoing contact with the prosecuting office to discuss crime-related losses. In addition, they should stay in touch with the probation department in the county where the criminal proceedings take place, so the probation officer can include a full itemization of claimed losses in the offender's presentencing report. Each of California's counties has assistance centers to help crime victims obtain compensation.

Obtaining restitution does not necessarily require an extensive court hearing. Prosecutors typically negotiate restitution for victims during plea bargains or in connection with sentencing. And even when an evidentiary hearing is required, loss can be established by a preponderance of the evidence (People v. Millard, 175 Cal. App. 4th 7, 26 (2009)). Courts are entitled to rely on hearsay or other documentary evidence otherwise not admissible at trial (People v. Hove, 76 Cal. App. 4th 1266, 1274-1275 (1999)).

Another important point is that restitution orders are based on the victim's losses, irrespective of the nature of the crime. Therefore, when charges are dismissed as the result of a plea bargain, the charges can still be considered for sentencing purposes if a defendant executes a Harvey waiver (People v. Harvey, 25 Cal. 3d 754 (1979). In such a case, restitution also can be imposed for attributed losses (People v. Beck, 17 Cal. App. 4th 209 (1993); Cal. Pen. Code § 1192.3.)

One court recently held that a Harvey waiver was not needed where the victim was not the "immediate object of defendant's crime." (People v. Verni, 197 Cal. App. 4th 124 (2011).) Verni held that a defendant who pleaded guilty to aggravated mayhem (but not arson) when he burned a victim in an apartment fire was also liable to the apartment owner for economic loss and fire damage to the apartment. The court reasoned that the property itself was an immediate object of the defendant's crime, which made the property owner a direct victim of aggravated mayhem.

Because restitution is often grounded in concepts of tort law, understand that courts may apply principles of comparative fault to reduce compensation. Indeed, this occurred in a drunken driving case when the victim's own negligence factored into the amount of restitution awarded. (People v. Millard, 175 Cal. App. 4th 7 (2009).) Although the court did not directly address Marsy's Law, it noted that Penal Code section 1202.4(f)(3) contemplates restitution designed to reimburse victims for loss "incurred as the result of the defendant's criminal conduct" rather than losses caused by the victim. The court further reasoned that such a limitation accorded with relevant tort principles and did not undermine the deterrence and rehabilitation purposes of victim restitution (Millard, 175 Cal. App. 4th at 41-44.)

Additionally, restitution principles allow a victim to recover attorneys fees - including those paid via a contingent fee arrangement (People v. Taylor, 197 Cal. App. 4th 757 (2011)).

Once the court issues a restitution order, it is enforceable as if it were a civil judgment. (Pen. Code, § 1214(a) and (b)). Further, restitution orders are not dischargeable in bankruptcy. (Kelly v. Robinson, 479 U.S. 36, 50 (1986); Brookman v. State Bar, 46 Cal. 3d 1004, 1009 (1988).)

And keep in mind that when a minor has been ordered to make restitution, a parent or guardian is rebuttably presumed to be jointly and severally liable for the obligation. (Cal. Civ. Code, § 1714.1.)

Recovery by a victim is not precluded when defendants are indigent. Inability to pay is not a compelling and extraordinary reason for refusing to impose a restitution order and is not considered when determining the amount. (Pen. Code, § 1202.4(g).)

Equally important, the Victim Compensation and Government Claims Board operates the State Restitution Fund, designed to compensate crime victims and assist them in collecting any court-ordered restitution. Much of the fund's revenue comes from restitution fines, diversion fees, restitution orders, inmate trust account garnishment, and penalties paid by all criminal offenders. The State Victim Compensation Program also receives federal grant monies under the Victims of Crime Act. (42 U.S.C. §§ 10601-10608 (penalties paid by those convicted of federal crimes).)

In every case, the issue of restitution is subject to the discretion of the trial court. A trial court is not required to make an order in keeping with the exact amount of the claimed loss; nor can the amount be "arbitrary or capricious." The key requirement is that courts "use a rational method that could reasonably be said to make the victim whole." (People v. Holmberg, 195 Cal. App. 4th 1310, 1320 (2011).)

In just a few years, Marsy's Law has taken root. Prosecutors, defense counsel, and lawyers representing crime victims should know the parameters of these special provisions designed to enforce crime victims' rights.

Bradley A. Weinreb is a deputy attorney general in San Diego, where he serves as the AG's state coordinator for Marsy's Law.

---