Santa Ana City Councilman Victimizes Subordinates

Santa Ana City Councilman Bustamante Charged with Molestation - Will The Victims' Right to Counsel Remain Hidden From Them?

In July, City Councilman Bustamante was charged with molesting seven women.  While this is bad enough for those women, there is more bad news ahead.  

Mr. Bustamente has been advised of his constitutional right to his own attorney.  In fact he has already retained one of the most prestigious defense counsel in Southern California: Mr. James Riddet. Unlike Mr. Bustamante, the victims have probably not been advised of their constitutional (California Constitution, Article 1, section 28(c)(1)) right to counsel.  Sadly,  the perpetrator is being dealt a full deck by the prosecution - which always alerts defendants to their right to counsel. But District Attorneys have not implemented any procedures for notifying victims of their right to counsel. Nor has the California Attorney General. 

Do victims need counsel? Certainly and this case is likely to be a prime example of why they need counsel. The typical strategy for sophisticated defense counsel in molestation cases is to question the ethics of the victims.  But these defense counsel rarely stop at ethics, they often seek medical and psychological records of the victims.  Victims have not one, not two, but three California Constitutional rights of privacy which might protect these records. Who will tell the victims about these constitutional rights to privacy? Probably no one. The incentive is often for the prosecution to cooperate in surrendering victim's records. This makes it is less likely that the case is later challenged on the grounds that the defense did not get everything it sought.

But the prosecution will remind Mr. Bustamante of his right against self-incrimination.

While it is true that victims have to pay for their own counsel, this does not detract from the importance of telling them of this right. Even poor victims alerted to their right to counsel can consider legal aid. It has long been established in this country that just because one is poor, that does not mean one's rights are hidden from them. 

Under the current state of affairs, the women who were victimized by Mr. Bustamante stand to be victimized again by a system which does not alert them to their constitutional right to counsel.

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.