Victims Should be Told of Their Right to Counsel

In January of this year, at the request of the Court of Appeal in People v. Smith, the Attorney General of California wrote that California victims have a constitutional right to counsel at a restitution hearing.


       "Accordingly, Doe’s retained attorney properly sought and secured restitution for     Doe in accordance with Doe’s constitutionally enumerated rights to be heard and to seek and secure restitution. (See Cal. Const., art. I, §28, subds. (b)(8) & (b)(13)(A).) The language of Article I, section 28, subdivision (c)(1) unambiguously authorizes such conduct. . ."

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The Attorney General advocated that victims have a constitutional right to counsel. The Smith Court agreed: "[victim] Doe had a right to not only be notified of the restitution and to be present, but also to be heard. She was also entitled to have counsel represent her in being heard."  

It is clear that victims have a right to counsel. The burning question now is whether this is such an important right that victims should be told about it.  To put it another way, do victims only get the right to counsel if they know about it and ask for it, or should all victims  be told about this right? We are fortunate to have a rich jurisprudence on this issue.

The U.S. Supreme Court established that the right to counsel is a fundamental right.

    "While the question has never been categorically determined by this court, a consideration of the nature of the right [to counsel] and a review of the expressions of this and other courts, makes it clear that the right to the aid of counsel is of this fundamental character."  Powell v. Alabama (1932) 287 US 45, 67 - 68.
   
    "The state decisions which refer to the matter, invariably recognize the right to the aid of counsel as fundamental in character."  Id at 70.
   

Not only is the right to counsel a fundamental right, but it is also a critical right which enables one to understand and exercise their other rights.

    "[W]ithout the aid of an attorney other protections which the law affords would often avail defendant little since it cannot be assumed that he is sufficiently articulate and adequately conversant with his constitutional and legal rights and his procedural duties to protect himself throughout the course of criminal proceedings."

    People v. Mattson (1959) 51 Cal.2d 777, 789, rev’d on other grounds, People v. Taylor (2009) 47 Cal. 4th 850.

This is certainly true of many victims who cannot decipher the rights listed on a Marsy’s Law card without talking with an attorney - let alone know how to exercise those rights in court.

Last century the California Supreme Court made it crystal clear that we do not make participants in the criminal system guess at whether they have a fundamental right to counsel:

    "Finally, we must recognize that the imposition of the requirement for the request would discriminate against the defendant who does not know his rights. The defendant who does not ask for counsel is the very defendant who most needs counsel.  We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal request and by such failure demonstrates his helplessness. To require the request would be to favor the defendant whose sophistication or status had fortuitously prompted him to make it."

    People v. Dorado (1965) 62 Cal. 2d 338, 351(footnote omitted); overruled on other grounds People v. Cahill (1993) 5 Cal. 4th 478.

It would be a sad anomaly to have a justice system which deprives a less informed rape victim - by not telling her of her fundamental constitutional right to counsel - while giving the benefit of advice about the right to counsel to the man accused of the rapes.  Dorado makes it clear that such a  policy would favor not only defendants over victims, but also well heeled victims over poor victims.

I believe the law is clear on this issue and that no more decisions or statutes are needed  to determine whether a victim’s right to counsel should remain a secret from most victims - it should not and victims should be told in clear, simple language of this right.

Victims are Not Told of their right to an Attorney, But Criminals are

There is something shocking happening every day in the California court system. If a victim of multiple rapes meets a District Attorney, she will never be told of her constitutional right to counsel. But if the defendant charged with those multiple rapes meets the same  District Attorney, the District Attorney will immediately tell him of his right to counsel.

Several years ago Marsy’s law passed and gave victims a constitutional right to an attorney (at their own expense).  A brand new case, People v. Smith, has just ruled that the California Constitution means what it says:

 Marsy's Law added several provisions relating to victim restitution to the California   Constitution. The victim has the right (1) to be notified of and to be present at all public proceedings, (2) to be heard at any proceeding, including the sentencing hearing, and (3) to receive restitution. (Cal. Const., art. I, § 28, subd. (b)(7), (8) & (13).) The victim has the right to "seek and secure restitution . . . ." (Cal. Const., art. I, § 28, subd. (b)(13)(A).) And "[a] victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim, may enforce the rights enumerated in subdivision (b) in any trial or appellate court with jurisdiction over the case as a matter of right.
  
As a result of these provisions, [victim] Doe had a right to not only be notified of the restitution and to be present, but also to be heard. She was also entitled to have counsel represent her in being heard.


It is very sad that prosecutors give charged criminals better advice about their right to counsel than they give to victims.

I am not aware of any District Attorney’s office in the state who advises victims of their constitutional right to counsel.  If one visits the links to the Los Angeles, Orange County and San Francisco District Attorneys' pages on Marsy’s Law one will see that there is not one word about the right of a victim to an attorney:

    link to LA County DA on Marsy’s law   http://da.lacounty.gov/pdf/marsys_law.pdf

    link to Orange County DA on Marsy’s law
     http://www.orangecountyda.com/docs/104634622009marsy_s_law.pdf


     Link to SF County DA on Marsy’s law:
     http://www.sfdistrictattorney.org/index.aspx?page=26

California Victims' Right to Active Counsel Vindicated

Ever since People v. Dehle (2008) 166 Cal.App.4th 1380, some prosecutors and courts have taken the position that victim’s counsel have little or no role to play in restitution hearings.  While they may be present, victim’s counsel should not actively present evidence. While Dehle emphasized the important role a prosecutor has in restitution, its holding was quite narrow. In Dehle a shocking event happened, a court allowed a hearing without counsel for one of the parties being present.  That party was the People and their counsel was the district attorney. Of course, this should not have happened. Few hearings are ever permitted without a party being present. Dehle held a trial court cannot have a restitution hearing without the counsel for the People. The District Attorney must be informed about and participate in all restitution hearings and have the opportunity to review restitution information. This narrow holding sometimes was broadened to minimize the role of victim’s counsel. Not surprisingly, defense counsel endorsed this narrowing - what defense counsel would not be happy to have a victim’s counsel reduced to an observer?

    This misinterpretation of Dehle should be at an end with People v. Smith (2011)___Cal App 4th ___. Smith rightly recognized that a couple of months after Dehle, Marcy’s law was passed. This 2008 Proposition 9 took the statutory right of a victim to counsel (Penal Code §1191.1) and made it a constitutional right. Cal. Const. Article I, Section 28(c)(1). Smith hit the nail on the head when it held that a constitutional right to counsel must include the right to active counsel.  “[Victim] Doe was entitled to have her attorney present evidence and argument at the restitution hearing, and that involvement did not invade the exclusive province of the district attorney’s prosecutorial authority.”

No Insurance for Criminal Defendants

There is a line of restitution cases, starting with People v. Bernal (2002) 101 Cal. App. 4th 155, and continuing through cases such as People v. Jennings (2005) 128 Cal. App.4th 42, which hold that a criminal defendant is entitled to credit toward his or her restitution obligation to a victim for payments made by the defendant's insurance company to the victim in a related civil case.

    But this line of cases is wrong because insurance cannot provide protection for crimes. State Farm Fire & Cas. Co. v. Superior Court (1987) 191 Cal. App. 3d 74, 78, held that: "[r]estitution is ordered as punishment in a criminal case. No conceivable justification exists for allowing an individual to pass on such liability to an insurance carrier." In State Farm a criminal defendant unsuccessfully sought defense from his insurer in his criminal prosecution for assault and attempted murder.

    The California Supreme Court did an extensive analysis of insurable claims in Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1270. After citing State Farm with approval,  Bank of the West explained that "as a matter of public policy, an insured's payment of certain types of restitution cannot be covered by insurance."  Under State Farm and Bank of the West an insured cannot go through the front door to get coverage of criminal restitution - that is,  tender defense of the criminal case to its insurer. Bernal held - without citing State Farm or Bank of the West -  that defendants can go in the back door by getting credit toward restitution for an insurer’s payment on a civil case.  Bernal is not correct.

    Bernal cited another Supreme Court case extensively: People v. Birkett (1999) 21 Cal. 4th 226, 246.  It quoted a passage from Birkett which should have alerted it that giving criminal defendants credit for an insurance payment was not consistent with California law: "[T]he Legislature intended to require a probationary offender, for rehabilitative and deterrent purposes, to make full restitution for all losses his crime had caused, and that such reparation should go entirely to the individual or entity the offender had directly wronged, regardless of that victim's reimbursement from other sources."  A criminal defendant has to pay his or her own way when dealing with the costs of crime and cannot get the benefit of insurance.

Requirement for Full Restitution in Califonia

It is considered a truism in restitution that the trial court has a great deal of latitude in determining how much restitution to order for a victim.  This translates into a wide range of discretion - which ties into the standard on appeal of abuse of discretion.  That rule may be true for some aspects of victim restitution, but it is not the rule for all aspects.  Once a victim has provided the court with a rational basis for restitution and shown what full restitution is, the court is required to order full restitution unless there are “compelling and extraordinary reasons” for not doing so. This is the standard under Penal Code  §1202.4(g) as well as an appellate decision:

"A sentence without an award of victim restitution is invalid. A trial court has no discretion over the issuance of the award itself and really very little discretion over the amount of the award. The statute requires the award be set in an amount which will fully reimburse the victim for his or her losses unless there are clear and compelling reasons not to do so. A court's reasons for awarding less than full restitution must be stated on the record. Thus, just as a sentence lacking a victim restitution award is invalid, a sentence awarding less than full victim restitution is similarly unauthorized when the court fails to state clear and compelling reasons for its decision."

People v. Brown (2007) 147 Cal. App.4th 1213, 1226 (citations, quotations and footnote omitted).

Making Restitution Real

There is a new federal report on collection of restitution “Making Restitution Real: Five Case Studies on Improving Restitution Collection” which can be found at this link:

http://www.ncvc.org/ncvc/main.aspx?dbID=DB_PublicPolicy185

It has a section on the California court system restitution collection strategy.

Restituion and Civil Settlements

In June 1982, (1982 Proposition 8) the people of California made recovery of victim restitution a Constitutional right.  Ever since then, defendants have been arguing that a civil settlement and payment to a victim (typically paid by an insurance company) means that the defendant cannot be ordered to pay restitution to that victim.  This argument is often made to try to avoid restitution by riding on the coat tails of an insurance company payment. However, one of the oldest laws on the California books (from 1872) instructs: “When the violation of a right admits of both a civil and criminal remedy the right to prosecute the one is not merged in the other.” Code of Civil Procedure §32, entitled “Civil and Criminal Remedies not Merged.”  In other words, a civil settlement with a victim should not foreclose victim restitution.

Not surprisingly, every California appellate court that has heard a defendant argue that his civil settlement with the victim means he cannot be forced to pay restitution has rejected that argument. The latest case is from December 2010. “[T]he settlement of a civil action and release of the defendant by the crime victim does not discharge the defendant's responsibility to satisfy the restitution order.” People v. Vasquez (2010)190 Cal. App. 4th 1126, 1133.  

What to Award: Cost of Repair or Cost of Replacement, when Repair is More than Replacement?

One interesting question in victim restitution decisions is whether these  decisions should be guided by tort law principles when determining losses.  One line of cases has held that tort law principles should apply. For example, People v. Chappelone (2010) 183 Cal. App. 4th 1159 established principles for valuation of stolen property: (a) restitution is limited to market value; (b) a court must consider the cost of the property to the victim; and (c) if property is returned to a victim, the victim is only entitled to the value of the loss of use    during the time he or she did not have the property. These cases reason that the main approach in determining the amount of restitution should be an economic analysis which considers only the most efficient expense with regard to lost or damaged property. For example, if a car is worth $5,000 and the crime causes damage to the car which will cost $6,000 to repair, the victim should only get $5,000.

The argument against this position is that the purposes of restitution are much broader and include rehabilitation of the defendant and minimizing additional disruption to a victim whose life has already been disrupted.  Under these cases, the victim can receive the $6,000 cost of repair for a $5,000 car.  The most recent of these is In re Alexander A. (2011) ___CA 4th_____.  That case reasoned:

We, too, reject the imposition of strict tort law on restitution orders. The California Supreme Court recently reiterated the long-standing principle "[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action."

Thus in the broader sense of providing relief to the victim from injury, the trial court may consider the impact of alternative restitution orders on the victim as long as the restitution order itself is consistent with juvenile justice goals of compensation for economic loss, rehabilitation and deterrence.

In some cases in which the costs of repair exceed the value of a replacement vehicle, it may be more convenient for the victim to visit a dealer and purchase another car. In other cases, as here, the victim may prefer to repair his or her damaged car, despite its age.

Focusing on the rehabilitation and convenience for the victim are important policy considerations, which give this line of cases the upper hand. 

But the convenience of the victim does not need to be divorced from economic harm to the victim. Victims should advise the court of the other costs involved in an alternative award.  For example, if a court were inclined to limit restitution to the cost of replacement, the victim could tell the court of the time and costs associated with finding a new car and seek to get those as well. It is easy for courts to assume that a victim's time is worth little or nothing if the court is not specifically told of the costs the victim will incur. A victim is not required to spend his holidays and weekends trying to fix the harm caused by the defendant.  A victim could advise the court that it will take several days of time to find a new car and value that time at his current compensation.  If this were done the court should award that amount as well.