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.”