I just dealt with a case dealing with the victim of a very serious crime (attempted murder). The initial bail in this amount was $100,000 but after discussing the case with the victim and his wife, this amount was too low. I immediately worked with the victim and his wife to contact the District Attorney and the law enforcement agencies to insure that the appropriate charge (initially assault with a firearm to be revised to attempted murder/murder), increase bail from 100k to 2million dollars and to get a criminal restraining order for both husband and wife. After advising them to gather additional evidence and provide to the police agency, a search warrant was executed. This was all done in 2 days since the defendant was going to be arraigned in “48” hours since he was in custody.
Victims in criminal cases are witnesses –they are not a party to a criminal case. Consequently, many victims are not aware that they should actively “participate” in their case. I had another victim to a rape case who called me after the criminal case was “dismissed.” She wanted me to help her get a restraining order in civil court since when the criminal case was dismissed, no criminal protective order was issued. To say, she was confused as to why her case was dismissed is “putting it mildly.” But it was too late for me to help her in the criminal process when the prosecuting agency has already decided it would not file the case.
The point is hiring a criminal attorney to assist victims in “dealing” with the criminal court system is essential. It is not only critical but as a victim of a crime, in California and many other states, it is your constitutional right. California Constitution article I, Section 28, section (b) has significantly expanded the rights of the victim. This is commonly referred to as “Marsy’s law.”
Victims of a crime, as defined under the California Constitution is a “person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act.” The term “victim” also includes the person’s spouse, parents, children, siblings, or guardian or a legal representative, such as an attorney, of a crime victim. This victim may be deceased, a minor, or physically or psychologically incapacitated.
These rights are commonly referred to as “Marsy’s Law” which was passed by California voters in 2008 as Proposition 9, the Victims’ Bill of Rights Act of 2008. This measure amended the California Constitution to provide additional rights to victims. It became the strongest and most comprehensive Constitutional victims’ rights law in the U.S. and put California in the forefront of the national victims’ rights movement.
Dr. Henry T. Nicholas, the co-founder of Broadcom Corporation was the key backer and proponent of Marsy’s Law. Marsy’s Law was named after Dr. Nicholas’ sister, Marsalee (Marsy) Nicholas. While a student at the University of California Santa Barbara, she was stalked and killed by her ex-boyfriend in 1983. Only a week after Marsy was murdered, Dr. Nicholas’ and Marsy’s mother, Mrs. Marcella Leach, walked into a grocery store after visiting her daughter’s grave and was confronted by the accused murderer. She had no idea that he had been released on bail.
Prior to the passage of the law, the courts, the prosecutors, and law enforcement had no legal obligation to keep families of victims informed. But the passage of the law changed all that. Victims or their families now could have an attorney representing and voicing their opinions on court rulings and prosecutorial acts. Courts must consider the safety of victims and families when setting bail and release conditions. Victims and family members have legal standing in bail hearings, pleas, sentencing, and parole hearings.
As for federal crimes, there are similar victim or witness rights such as presence at the hearing, right to be reasonably heard involving the release, plea, sentencing or any parole proceeding of the defendant, the right to proceedings free from unreasonable delay and the right to be treated with fairness and respect.
I have represented several victims of domestic violence, criminal threats, stalking, assaults and fraud cases, among others. When I represent a victim(s), the prosecutor must notify me of all court hearings, plea bargaining, sentencing or probation terms. My clients gain a comprehensive overview of the case proceedings and their “voice” is heard. I have spoken on behalf of my clients as to how they feel about a plea bargain, whether to request the maximum sentence or leniency, monetary restitution amount requested and so forth.
The criminal arena is intimidating, confusing and requires a skilled attorney in this area who has both the experience and the expertise to explain, advice, and reach a fair and equitable solution on behalf of the victim and their families.
For white-collar crimes, I have represented victims in their requests for monetary restitution. It is important for victims, who are entitled to restitution, to keep a record of their losses, medical expenses, property damage and counseling expenses. Documentary proof must be strict and reliable. Such information will be necessary and needed by the Probation Department. Moreover, if a civil action to collect is a viable recourse, a comprehensive accounting will be required.
Victims and their families have rights that are guaranteed under Marsy’s law in California and in some levels of federal prosecution. However, it is important to seek legal representation to insure that such rights are enforced. If you need immediate assistance, call my office at 310-601-7144 or email my office at [email protected].
To receive updates on legal matters, please like our facebook page: https://www.facebook.com/attycarinacastaneda/ or follow us on Twitter: @AttyCastaneda and Instagram: @atty.castaneda. You may also visit our website at attycastaneda.com.