If you've been victimized by a crime, the last thing you need is a hassle from the system that's supposed to get you justice.
But sometimes that's what happens. Crime victims enjoy many rights, including the right to be treated with dignity and the right to restitution. But getting the full benefit of these rights can take time and energy. That's where victim advocacy comes into play.
A crime victim advocate is someone who knows the ins and outs of the criminal justice system and uses that knowledge on behalf of victims. A victim's advocate can
- help a witness prepare to testify in court,
- speak up for the victim at a sentencing hearing, and
- assist with the process of calculating and collecting restitution.
Our background as cops, prosecutors and criminal defense attorneys make us uniquely situated to guide victims through the criminal justice system. If you have been victimized by crime, our California Crime Victim Advocate Attorneys can help ensure you are treated with dignity, get access to all the services you need and get the compensation you deserve.
In this article, our California Crime Victim Advocate Attorneys discuss victim's rights and victim advocacy in California criminal cases.1 We cover:
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.
Sometimes crime victims get lost in the system...even though it's not supposed to be that way.
Prosecutors represent the "people" as opposed to individual "victims," and victims don't always have someone looking out for their best interests.
A crime victim advocate is someone who advocates for the victim. A crime victim advocate:
- Makes sure the victim does not "fall through the cracks"
- Educates the victim about the "victims' bill of rights"
- Helps the victim figure out the court process and what is happening
- Helps the victim get restitution
- Speaks up for the victim in court at a California sentencing hearing,
- Makes sure the prosecutor is listening to the victim
- Makes sure the victim is protected from the defendant
- Makes sure the victim gets access to all available services
Please see our related article Advocating in Court for California Crime Victims for a discussion of how our California Crime Victim Advocate Attorneys can help make sure your voice is heard at a California restitution hearing and California Sentencing hearing.
Even if rights of victims sometimes get lost in the shuffle, it's important to know that California takes such right very seriously.
In November 2008, California voters passed Marcy's Law, also known as the "Victims' Bill of Rights." Passed in honor of murdered college student Marcy Nicholas, Marcy's Law amended Article I, Section 28 of the California Constitution to strengthen the rights of crime victims.
The Victims' Bill of Rights provides crime victims with the right:
(1) To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process.
(2) To be reasonably protected from the defendant and persons acting on behalf of the defendant.
(3) To have the safety of the victim and the victim's family considered in fixing the amount of bail and release conditions for the defendant.
(4) To prevent the disclosure of confidential information or records to the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim's family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.
(5) To refuse an interview, deposition, or discovery request by the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents.
(6) To reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding, the arrest of the defendant if known by the prosecutor, the charges filed, the determination whether to extradite the defendant, and, upon request, to be notified of and informed before any pretrial disposition of the case.
(7) To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings.
(8) To be heard, upon request, at any proceeding, including any delinquency 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.
(9) To a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings.
(10) To provide information to a probation department official conducting a pre-sentence investigation concerning the impact of the offense on the victim and the victim's family and any sentencing recommendations before the sentencing of the defendant.
(11) To receive, upon request, the pre-sentence report when available to the defendant, except for those portions made confidential by law.
(12) To be informed, upon request, 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.
(13) To restitution.
(14) To the prompt return of property when no longer needed as evidence.
(15) To be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified, upon request, of the parole or other release of the offender.
(16) To have the safety of the victim, the victim's family, and the general public considered before any parole or other post-judgment release decision is made.
(17) To be informed of these rights.
Generally speaking, the criminal justice system works better when people with key information cooperate with law enforcement. Without input from crime victims and witnesses, police and prosecutors may be unable to catch perpetrators and hold them accountable.
But things are more complicated in the real world.
Some victims would rather just forget about the whole thing than endure interrogation and scrutiny on the witness stand. For other victims, testifying can cause inconvenience and financial hardship.
Testifying can be especially traumatic for victims of certain kinds of crime like rape and incest. And in cases of gang-related crimes, victims often are terrified to testify for fear of retaliation for "snitching."
Despite these real-world complications, the truth of the matter is that in some cases a witness can be compelled to cooperate, whether or not that witness wants to do so.
But the good news is there are many ways to ease the stress of cooperation and testifying, as we discuss in our related articles Witness Protection and Other Victim Services in California Criminal Cases and Preparing a California Crime Victim or Witness to Testify in Court.
The law has ways to "force" a critical witness to come to court and testify. The prosecutor (or defense attorney) can issue a subpoena ordering a witness to appear in court on a particular matter.2
If the witness disobeys the subpoena, the judge can order a warrant for the witness' arrest.3
If the judge is worried that a "material witness" (one with critical evidence about the case) will not appear as instructed, the judge can require that the witness post a bond to secure his or her return to court.
And the judge can even send a material witness to jail if the judge is really concerned about that witness not appearing as required. Authority for this is found in California Penal Code Section 1332.
Material witness statutes are common among the states. Many, like California's, permit the incarceration of the witness if he either refuses or is unable to post bond as set by the court.4
But the judge can't just willy-nilly throw a witness in jail. The judge must make sure that the witness is truly material and that there are no other options available, like electronic monitoring. Further, the judge can only remand a material witness for up to 10 days at a time.5
The 2004 case of "In re D.W." is an example of how a judge can go too far.
In that case, the prosecutor issued a subpoena to a woman identified only as "D.W.," who apparently had critical information in a case involving California Penal Code 211 robbery pc, California Penal Code 459 burglary pc and the California Three Strikes Law.
When D.W. did not show up to court, the prosecutor was forced to dismiss the charges because the prosecutor did not have any other evidence.
But the district attorney eventually re-filed the case, and when D.W. did not show up the second time around, the judge issued a warrant for her arrest. When she came to court, she did not have an attorney and the judge told her she had to either pay $50,000 bail or go to jail.
She could not pay the money, so she went to jail.
But later she got an attorney who listened to D.W.'s side of the story and got her out of jail. It turned out that D.W. did not really understand what was going on (because she did not have an attorney) and also had significant medical problems that made coming to court very difficult.
The judges who let her out of jail reasoned that D.W. might have been more cooperative if she had better understood what was going on with the court process and if the court had better understood what was going on with her and her health issues.6
A witness who refuses to testify can be held in contempt and jailed. But the law says that victims of sexual assault or domestic violence cannot be placed in jail for refusing to testify (although such victims can be fined).7
With respect to a minor under the age of 16 who refuses to testify, the court is required to consult with the probation department as to the most appropriate sanction.8
For more information about the law relating to juveniles in California, please see our related article Juvenile Criminal Defense in California.
Crime victims and their families can be eligible for monetary compensation for losses incurred as a result of a criminal offense.
Losses can include:
- stolen, damaged or destroyed property
- medical and/or therapy bills
- lost wages
- damage to a business or its property
- any reasonable attorneys' fees incurred trying to collect the ordered restitution
- funeral expenses
- mental health services
- relocation costs
- job retraining
- home security
- crime scene cleanup
Restitution can come directly from the perpetrator of the crime or from a state crime victim fund called the California Crime Victims Compensation Fund ("CalVCP").
Also note that many employers in California must provide workplace leave for victims of domestic violence.
Our California Crime Victim Advocate Attorneys are versed in the complicated computations and paperwork required for both kinds of restitution.
When a crime victim suffers financial loss as a result of a crime, the judge will order the defendant to pay back those losses as part of the defendant's sentence. This is called a restitution order.9
If the defendant does not have a way to make the payments, the judge can order the defendant to get a job.
If the defendant fails to pay the restitution amount, the defendant will violate
probation and can go to jail or suffer other sanctions.
Victims of violent crimes also can get restitution from the California Crime Victims Compensation Fund ("CalVCP"). This is a state fund paid for by restitution fines levied on all criminal defendants in California.10
Victims of violent crimes are eligible for compensation out of this fund when there is no "defendant" subject to a restitution order (and even sometimes when there is a defendant and restitution order).
In order to be eligible for CalVCP restitution, the victim must have reported the crime to the police and have cooperated with law enforcement.
The victim cannot have been a participant in the crime and there are time limits for applying.
For more information about victim restitution, please see our related articles Victim Restitution & Compensation in California Criminal Cases, Calculating Restitution Orders in California, and Making a Restitution Claim to the California Crime Victim Compensation Fund (CalVCP).
Our California Crime Victim Advocate Attorneys Can Help...
If you or loved one victim of a crime and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
To learn about crime victim advocacy in Nevada, go to our article on crime victim advocacy in Nevada.
1 Our California Crime Victim Advocate Attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2 California Penal Code Section 1326 provides: "(a) The process by which the attendance of a witness before a court or magistrate is required is a subpoena. It may be signed and issued by any of the following: (1) A magistrate before whom a complaint is laid or his or her clerk, the district attorney or his or her investigator, or the public defender or his or her investigator, for witnesses in the state. (2) The district attorney, his or her investigator, or, upon request of the grand jury, any judge of the superior court, for witnesses in the state, in support of an indictment or information, to appear before the court in which it is to be tried. (3) The district attorney or his or her investigator, the public defender or his or her investigator, or the clerk of the court in which a criminal action is to be tried. The clerk shall, at any time, upon application of the defendant, and without charge, issue as many blank subpoenas, subscribed by him or her, for witnesses in the state, as the defendant may require. (4) The attorney of record for the defendant. (b) A subpoena issued in a criminal action that commands the custodian of records or other qualified witness of a business to produce books, papers, documents, or records shall direct that those items be delivered by the custodian or qualified witness in the manner specified in subdivision (b) of Section 1560 of the Evidence Code. Subdivision (e) of Section 1560 of the Evidence Code shall not apply to criminal cases. (c) In a criminal action, no party, or attorney or representative of a party, may issue a subpoena commanding the custodian of records or other qualified witness of a business to provide books, papers, documents, or records, or copies thereof, relating to a person or entity other than the subpoenaed person or entity in any manner other than that specified in subdivision (b) of Section 1560 of the Evidence Code. When a defendant has issued a subpoena to a person or entity that is not a party for the production of books, papers, documents, or records, or copies thereof, the court may order an in camera hearing to determine whether or not the defense is entitled to receive the documents. The court may not order the documents disclosed to the prosecution except as required by Section 1054.3. (d) This section shall not be construed to prohibit obtaining books, papers, documents, or records with the consent of the person to whom the books, papers, documents, or records relate."
3 California Penal Code Section 881 provides: "(a) If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuses compliance with the order for that purpose, the magistrate shall commit him or her to prison until he or she complies or is legally discharged. (b) If a witness fails to appear at the preliminary hearing in response to a subpoena, the court may hear evidence, including testimony or an affidavit from the arresting or interviewing officer, and if the court determines on the basis of the evidence that the witness is a material witness, the court shall issue a bench warrant for the arrest of the witness, and upon the appearance of the witness, may commit him or her into custody until the conclusion of the preliminary hearing, or until the defendant enters a plea of nolo contendere, or the witness is otherwise legally discharged. The court may order the witness to enter into a written undertaking to the effect that he or she will appear and testify at the time and place ordered by the court or that he or she will forfeit an amount that the court deems proper. (c) Once the material witness has been taken into custody on the bench warrant he or she shall be brought before the magistrate issuing the warrant, if available, within two court days for a hearing to determine if the witness should be released on security of appearance or maintained in custody. (d) A material witness shall remain in custody under this section for no longer than 10 days. (e) If a material witness is being held in custody under this section the prosecution is entitled to have the preliminary hearing proceed, as to this witness only, within 10 days of the arraignment of the defendant. Once this material witness has completed his or her testimony the defendant shall be entitled to a reasonable continuance."
4In re Francisco M., 86 Cal.App.4th 1061, 1071 (2001).
5 California Penal Code Section 1332 provides: "(a) Notwithstanding the provisions of Sections 878 to 883, inclusive, when the court is satisfied, by proof on oath, that there is good cause to believe that any material witness for the prosecution or defense, whether the witness is an adult or a minor, will not appear and testify unless security is required, at any proceeding in connection with any criminal prosecution or in connection with a wardship petition pursuant to Section 602 of the Welfare and Institutions Code, the court may order the witness to enter into a written undertaking to the effect that he or she will appear and testify at the time and place ordered by the court or that he or she will forfeit an amount the court deems proper. (b) If the witness required to enter into an undertaking to appear and testify, either with or without sureties, refuses compliance with the order for that purpose, the court may commit the witness, if an adult, to the custody of the sheriff, and if a minor, to the custody of the probation officer or other appropriate agency, until the witness complies or is legally discharged. (c) When a person is committed pursuant to this section, he or she is entitled to an automatic review of the order requiring a written undertaking and the order committing the person, by a judge or magistrate having jurisdiction over the offense other than the one who issued the order. This review shall be held not later than two days from the time of the original order of commitment. (d) If it is determined that the witness must remain in custody, the witness is entitled to a review of that order after 10 days. (e) When a witness has entered into an undertaking to appear, upon his or her failure to do so the undertaking is forfeited in the same manner as undertakings of bail."
6In re D.W., 123 Cal.App.4th 491, 498 (2004) ("'The unique posture of the material witness' requires special attention to ensure that the procedures leading to the incarceration of a witness are fair and comply with 'procedural safeguards allowing the interests of the witness to be heard in conjunction with the interests of the state.' (Francisco M., supra, 86 Cal.App.4th at p. 1075.) The opportunity for the witness to be heard has its roots in the federal and state Constitutions which provide a person may not be deprived of his or her liberty without due process of law.... Because the witness may be unfamiliar with the judicial system, representation by counsel is essential to challenge the allegations seeking the witness's detention. For example, because of the witness's unfamiliarity of the facts of the case and the Evidence Code, counsel would be in a better position to argue whether the witness's testimony is in fact material and otherwise likely to be admissible. It is unlikely the witness would have any knowledge as to what constitutes proper service of a subpoena or how to challenge the validity of service. Counsel would be able to pose a challenge to the validity of service if it was appropriate. Also, counsel is generally far more capable of articulating the reasons why the witness may have previously failed to respond to a subpoena. Here, it is alleged D. W. suffers from a potentially terminal illness and receives medical treatment on a regular basis. D. W.'s medical condition may explain why she failed to appear at one or both of her scheduled appearances. Not being conversant with the criminal justice system, D. W. may not have been aware of the less restrictive means of detention to assure her appearance in court....Neither the minute order nor the transcript of D. W.'s appearance before Judge Kreber indicate there was: (1) a declaration or testimony on 'proof on oath;' (2) good cause presented to the court attesting to the fact D. W. was a material witness; (3) evidence she would not appear and testify as required; or (4) any indication a petition had been filed asking the court to detain D. W. pursuant to section 1332. In fact, the minute order of D. W.'s appearance before Judge Kreber clearly reflects the court simply recalled the outstanding warrant and transferred the matter to Judge Briseno's court for hearing. Consequently, D. W. was never afforded an opportunity to challenge the allegations requiring her incarceration as provided in section 1332, subdivision (a). Therefore, the subsequent 'review' proceedings pursuant to section 1332, subdivision (c), before Judges Briseno and Stanford, were meaningless. We conclude D. W. was illegally deprived of her liberty because she was denied counsel and was never provided the proper hearings required by section 1332.
7 California Code of Civil Procedure Section 1219 provides: "(a) Except as provided in subdivision (b), when the contempt consists of the omission to perform an act which is yet in the power of the person to perform, he or she may be imprisoned until he or she has performed it, and in that case the act shall be specified in the warrant of commitment. (b) Notwithstanding any other law, no court may imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt when the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime. (c) As used in this section, the following terms have the following meanings: (1) "Sexual assault" means any act made punishable by Section 261, 262, 264.1, 285, 286, 288, 288a, or 289 of the Penal Code. (2) "Domestic violence" means "domestic violence" as defined in Section 6211 of the Family Code."
8 California Code of Civil Procedure Section 1219.5 provides: "(a) Except as provided in subdivision (c), in any case in which a contempt consists of the refusal of a minor under the age of 16 years to take the oath or to testify, before imposing any sanction for the contempt, the court shall first refer the matter to the probation officer in charge of matters coming before the juvenile court for a report and recommendation as to the appropriateness of the imposition of a sanction. The probation officer shall prepare and file the report and recommendation within the time directed by the court. In making the report and recommendation, the probation officer shall consider factors such as the maturity of the minor, the reasons for the minor's refusal to take the oath or to testify, the probability that available sanctions will affect the decision of the minor not to take the oath or not to testify, the potential impact on the minor of his or her testimony, the potential impact on the pending litigation of the minor's unavailability as a witness, and the appropriateness of the various available sanctions in the minor's case. The court shall consider the report and recommendation in imposing a sanction in the case. (b) In any such case in which the court orders the minor to be placed outside of his or her home, the placement shall be in the least restrictive setting available. Except as provided in subdivision (d), the court shall not order the minor to be placed ina secure facility unless other placements have been made and the minor has fled the custody and control of the person under the control of whom he or she has been placed or has persistently refused to obey the reasonable and proper orders or directions of the person under the control of whom he or she has been placed. (c) The court may impose a sanction for contempt prior to receipt of the report and recommendation required by subdivision (a) if the court enters a finding, supported by specific facts stated on the record, that the minor would be likely to flee if released before the receipt of the report and recommendation. (d) The court may order the minor placed in a secure facility without first attempting the nonsecure placement required by subdivision (b) if the court enters a finding, supported by specific facts stated on the record, that the minor would be likely to flee if released to nonsecure placement as a prerequisite to secure confinement."
9 California Penal Code Section 1202.4(f)
10 California Penal Code Section 1202.4(a) - (e) provides: "(a) (1) It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. (2) Upon a person being convicted of any crime in the State of California, the court shall order the defendant to pay a fine in the form of a penalty assessment in accordance with Section 1464. (3) The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay both of the following: (A) A restitution fine in accordance with subdivision (b). (B) Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment. (b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor. (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted. (c) The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the two-hundred-dollar ($200) or one-hundred-dollar ($100) minimum. The court may specify that funds confiscated at the time of the defendant's arrest, except for funds confiscated pursuant to Section 11469 of the Health and Safety Code, be applied to the restitution fine if the funds are not exempt for spousal or child support or subject to any other legal exemption. (d) In setting the amount of the fine pursuant to subdivision (b) in excess of the two hundred-dollar ($200) or one hundred-dollar ($100) minimum, the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendant's inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required. (e) The restitution fine shall not be subject to penalty assessments authorized in Section 1464 or Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, or the state surcharge authorized in Section 1465.7, and shall be deposited in the Restitution Fund in the State Treasury."