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An Abuse, Rape and Domestic Violence Aid and Resource Collection
This page made possible by support from Antonio R. Sarabia II, Esq.- California Victim's Bill of Rights
ARTICLE I, SECTION 28.
The People of the State of California find and declare that the enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system to fully protect those rights, is a matter of grave statewide concern. The rights of victims pervade the criminal justice system, encompassing not only the right to restitution from the wrongdoers for financial losses suffered as a result of criminal acts, but also the more basic expectation that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance. Such public safety extends to public primary, elementary, junior high, and senior high school campuses, where students and staff have the right to be same and secure in their persons. To accomplish these goals, broad reforms in the procedural treatment of accused persons and the disposition and sentencing of convicted persons are necessary and proper as deterrents to criminal behavior and to serious disruption of people's lives.
Restitution. It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution form the persons convicted of the crimes for losses they suffer. Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section.
Right to Safe Schools. All students and staff of public primary, elementary, junior high and senior high schools have the inalienable right to attend campuses which are safe, secure and peaceful.
Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offenses, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.
Public Safety Bail. A person may be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great. Excessive bail may not be required. In setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offenses charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety shall be the primary consideration.
A person may be released on his or her own recognizance in the court's discretion, subject to the same factors considered in setting bail. However, a person charged with the commission of any serious felony shall be released on his or her own recognizance.
Before any person arrested for a serious felony may be released on bail, a hearing may be held before the magistrate or judge, and the prosecuting attorney shall be given notice and reasonable opportunity to be heard on the matter. When a judge or magistrate grants or denies bail or release on a person's own recognizance, the reasons for that decision shall be stated in the record and included in the court's minutes.
Use of Prior Convictions. Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proved to the trier of fact in open court.
As used in this article, the term "serious felony" is any crime defined in Penal Code, Section 1192.7(c).
Article I, Section 25
A person who is a victim of crime shall be treated with fairness, dignity, and respect, and shall be informed of the rights accorded under this Section. As defined by law, a victim of crime shall have the right to reasonable notice and to be present and heard during all critical stages of preconviction and postconviction proceedings; the right to be informed upon the release from custody or the escape of the accused or the offender; the right to confer with the prosecution prior to final disposition of the case; the right to refuse to be interviewed by the accused or a representative of the accused; the right to review and comment upon the presentence report prior to imposition of sentence; the right to seek restitution; and the right to a reasonably prompt conclusion of the case. The legislature shall enact laws to implement this Section. The evidentiary and procedural laws of this state shall be interpreted in a manner consistent with this Section.
Nothing in this Section shall inure to the benefit of an accused or to confer upon any person the right to appeal or seek supervisory review of any judicial decision made in a criminal proceeding. Nothing in this Section shall be the basis for an award of costs or attorney fees, for the appointment of counsel for a victim, or for any cause of action for compensation or damages against the state of Louisiana, a political subdivision, a public agency, or a court, or any officer, employee, or agent thereof. Remedies to enforce the rights enumerated in this Section shall be provided by law.
California voters in June 1982 enacted a constitutional "Victims' Bill of Rights" that includes a right not only to restitution from the wrongdoers for financial losses suffered as a result of criminal acts, but also a right for victims to be heard in criminal justice proceedings. Here are some of the highlights of victim's rights:
Right to keep address confidential. In cases of child abuse, spousal abuse and sex crimes, and victims have a right to have their addresses kept confidential. Their addresses may be given only to the attorney for the defendant, but will not appear on any forms or public documents.
Right not to be threatened or intimidated. If anyone threatens you, call your law enforcement agency to report the threat and contact the prosecutor immediately. It is a crime for anyone to attempt to dissuade or prevent you from assisting law enforcement agencies or prosecutors or from attending or giving testimony at any trial or proceeding authorized by law. It is a felony if any such efforts involve coercion, threats or force, or are done for financial gain.
Right to attend and speak at sentencing hearing. Crime victims are entitled to appear at the sentencing hearing and to speak on matters concerning the crime, the penalty and the need for restitution. You do not need to be present at the sentencing proceeding, but you have a right to attend if you wish and to reasonably express your views. The law requires that the county probation department notify you of the sentencing hearing for felony cases. Practically speaking, you will want to contact the prosecuting district attorney to let him or her know of your wish to speak at the sentencing hearing. You have a right to be informed of the sentence recommended by the probation officer to the court, but you may not view the actual probation report prior to sentencing. However, the Penal Code Section 1203.05(a) permits you to inspect the probation report within 60 days after the judgment is pronounced. You may want to write out a statement that you can read at the hearing or submit it in writing. You also may want to consider submitting a videotape. Those who have spoken at such hearings say they were given a restored sense of control and appreciated the active role in the criminal justice system.
Right to attend and speak at parole hearings. Victims have a right to make a statement at parole hearings. Parole hearings are held for prisoners serving an indeterminate term such as 15 years to life. . You may want to write out a statement that you can read at the hearing or submit it in writing. You also may want to consider submitting a videotape. Those who have spoken at such hearings say they were given a restored sense of control and appreciated the active role in the criminal justice system.
To be notified of parole hearings and to make a statement, you must send a written request to:
Board of Prison Terms
Victims' Assistance Program
428 J Street, Sixth Floor
Sacramento, CA 95814
If the offender was sentenced by the California Youth Authority, you must send your written request to:
California Youth Authority
Office of Prevention and Victims' Services
4241 Williamsborough Drive
Sacramento, CA 95823
Restitution and return of property. Victims have a right to restitution from the person who is convicted of a misdemeanor or felony where the victim suffered economic loss a result of the offender's conduct. The prosecuting attorney has an opportunity to assist in these assessments. The requirements are specified in Penal Code section 1202.4(b). If seeking the return of property, you may want to contact your local victim/witness assistance center for help in determining if your property can be returned to you. In some cases, it may take a while to have the property returned because they may be needed as evidence in court.
Many victims are interested in how they can be repaid for their financial losses suffered as a result of a crime. The Mandatory Restitution Act of 1996 established procedures for determining the amount of restitution to which a victim may be entitled. Information on procedures for restitution for crimes which occurred before the Act was passed, (April 24, 1996) is also included here.
The Act provides that 'identified' victims may be entitled to an order of restitution for certain losses suffered as a result of the commission of an offense as part of the criminal sentence imposed on the defendant, or as part of a plea agreement. Victims may be either individuals or businesses.
It is important to begin keeping a record of all expenses incurred as a result of the crime, so this information can be used in determining what costs may be ordered by a Judge to be repaid by a defendant if convicted.
Requesting Restitution: Under federal law, in many types of federal crimes, it is mandatory for a defendant to pay restitution for cases occurring after April 24, 1996. For most crimes committed prior to this date, Judges have more discretion on whether to order restitution.
Unfortunately, as a practical matter, a defendant who has no money or potential to make money may be unlikely to ever make meaningful restitution to the victims of a crime.
If a defendant pleads guilty or is found guilty at trial, available information on each identified victim's loss, usually obtained by the case agent during the investigation, will be provided to the U.S. Probation Office by the U.S. Attorney's Office. A presentence probation officer is assigned to investigate the background of a defendant, and prepare a presentence report for the Judge, recommending the most appropriate sentence.
Identified victims whose losses are included in the counts of conviction or as part of a plea agreement will also have the opportunity to request restitution and explain their losses in a Declaration of Victim Loss Statement. This statement is provided to victims to complete by the US. Probation Officer, after a defendant has been convicted at trial or has pleaded guilty.
Victims should consider closely the types of restitution allowable, as it is often limited, and may not include damages for such things as pain and suffering. Victims should provide receipts or other verification where possible.
Describing the Impact of the Crime: In addition, after a conviction, victims will also be asked to complete a Victim Impact Statement. This statement allows victims the opportunity to report on various consequences of the offense, including financial, social, psychological and/or medical consequences. The Victim Impact Statement provides an important way for the Judge to consider losses and harm as a result of the crime.
Restitution Available To Any Eligible Victim: In any case, at sentencing, the Judge may order reimbursement to a victim for verified lost income and necessary child care, transportation, and other expenses related to participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.
Special Categories of Victim Restitution: Victims of crimes such as telemarketing, child exploitation, interstate domestic violence and sexual assault, may be eligible for the full amount of the identified victims' losses.
Physical Injury as a Result of the Crime: For an offense resulting in physical injury to a victim, the Court may order: payment equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care; payment equal to the cost of necessary physical and occupational therapy and rehabilitation; and/or reimbursement to the victim for income lost as a result of the offense.
Restitution for Financial Loss: In most fraud cases, restitution may be ordered where victims of the offense of conviction have suffered the loss of money or some negotiable instrument (investor fraud offenses or offenses involving the misuse of stolen credit cards), or the damage or loss of property. The Court may order a defendant to pay an amount equal to each victim's actual losses, usually the value of the principle or property fraudulently obtained.
Provisions Regarding Allowable Restitution: In most cases, attorney fees, and tax penalties are not included in court ordered restitution. The Court may order the return of property or money to a victim or to someone a victim chooses. The Court may also order restitution to persons other than victims of a convicted offense, if agreed to in a plea agreement.
If a victim dies, restitution may also be paid to a victim's estate. Documents verifying a victim's death and information on power of attorney may be requested by the U.S. Clerk of Court, prior to any restitution being paid. In cases such as these, it is very important to keep the U.S. Attorney's Victim/Witness Assistance Program or the U.S. Clerk of Court, Fiscal Unit informed of any address changes.
A court may decline to order restitution if it finds that determining restitution in a case is too complex.
In most cases, if the victim consents, the Court may order the defendant to make restitution by performing "service" instead of money, or to make restitution to a person or organization designated by the victim. Victims should list such suggestions on their Victim Impact Statement which is provided if a defendant is convicted of a crime for which they are an identified victim.
In addition, a victim may at any time assign his/her own interest in restitution payments to the Crime Victims Fund, through the U.S. Treasury. This fund provides funding to assist crime victim assistance and compensation programs throughout the U.S.
How Does a Victim Begin Receiving Money? For cases, in which the crimes were committed after April 24, 1996, the U.S. Clerk of Court is charged with the collection and distribution of restitution as any payment becomes available. For crimes committed prior to that date, the U.S. Attorney's Office, Financial Litigation Unit (FLU) or the U.S. Clerk of Court may be responsible, depending on the District.
If you are awarded restitution, simply keep the U.S. Attorney's Office Victim/Witness Assistance Program or the U.S. Clerk of Court/Fiscal Unit informed of where you live and if your address changes. Any restitution payment owed will be forwarded to you as it becomes available.
The U.S. Attorney's Office, Financial Litigation Unit (FLU) is charged with enforcing orders of restitution. In the Central District of California, in cases in which a restitution order is made, the Financial Litigation Unit (FLU) of the U.S. Attorney's Office will file a lien on behalf of identified victims.
The FLU unit will pursue various means to enforce restitution, as the judgment and its resources permit, on behalf of identified victims for 20 years from the filing date of the Judgment, (plus the time period of actual incarceration) or until the death of the defendant. While a defendant is under the supervision of a probation officer, that probation officer will also monitor and ensure appropriate restitution is paid, where possible.
Can Victims File a Lien Against a Defendant? A victim may also choose to request the U.S. Clerk of Court to issue an Abstract of Judgment certifying that a judgment has been entered in a victim's favor in the amount specified in the Judgment. A victim may then file this with the Recorder's Office for any county in which it is believed the defendant has assets, in the state in which a defendant was convicted in federal court.
Upon its recording, the Abstract of Judgment becomes a lien upon the property of the defendant in that county/state in the same manner as a state court judgment. Victims should consult with a private attorney for specific information.
A copy of the Abstract of Judgment may be downloaded from the U.S. Clerk of Court Internet web page, or by contacting the U.S. Clerk of Court. Victims must complete the form and submit it to the U.S. Clerk of Court before the Abstract will be "issued" by the U.S. Clerk of court.
Additional Restitution Provisions: An order of restitution is not dischargeable in a defendant's bankruptcy. Under the Act, if an identified victim discovers further losses after a judgment has been filed, that victim has 60 days after discovery of the losses, to petition the Court for an amended restitution order. This order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitution.
After a Judge has imposed a restitution order, the U.S. Attorney or an identified victim may later make a motion to the Court if he/she discovers a material change in the defendant's economic circumstances that affects his or her ability to pay restitution. Victims with such information should contact the U.S. Attorney's Office.
The U.S. Attorney's Office is required to certify to the Court that victims who are owed restitution are notified about such material changes. Upon receipt of such notification, the Court has the discretion to adjust the defendant's payment schedule or require payment in full, as the interests of justice require.
Other Available Remedies: Victims of violent crimes may be eligible for victim compensation which can often pay for medical and psychological costs, loss of income or support, or funeral expenses related to the crime.
In some cases, victims of fraud crimes may be able to seek some recovery through a regulatory agency. In some cases, a victim may also wish to file a civil action or file in small claims court against a defendant to recoup losses caused by the crime. For advice on the wisdom of such a suit, you should consult with a private attorney of your choice, or the Small Claims Court in the county in which the crime occurred. There is usually a statute of limitations which limits the time in which a civil suit can be filed.
What If I Expect Damages from a Civil Suit or Receive Compensation from Other Sources? If a victim has received compensation from insurance, disability, the Crime Victims' Compensation Fund, or any other source with respect to a loss, the Court shall order that restitution be paid to the person/company who provided or is obligated to provide the compensation. However, the restitution order shall provide that all restitution is payable to actual victims first.
Any amount ordered paid as restitution shall be reduced by any amount later recovered as compensatory damages for the same loss in any related civil proceeding.
I need more help - who can I contact? Antonio R. Sarabia II is the leading expert in California on recovery of victim restitution. He has written several articles on the subject and is the author of the chapter on Victim Restitution in California Criminal Law Procedure and Practice (the leading treatise used by judges, district attorneys and defense counsel in criminal matters). In one case his client was awarded victim restitution of more than $700,000.
For more information, check his website at: http://www.calrestitution.com/
The Victim Compensation Program (VCP) can help victims of violent crime and their families deal with the emotional, physical, and financial aftermath of crime. Victims can apply for compensation by filing an application with the California Victim Compensation and Government Claims Board (Board), which administers the VCP.Who is eligible for compensation?
Applications may also be accepted after these filing periods under certain circumstances.
People in the following categories are generally eligible for compensation. If you are not sure whether or not you might qualify, please call us at 1-800-777-9229. Applications may be filed by:
The time for filing an application is still one year from the date the crime occurred.What are examples of crimes that are typically covered?
The VCP may reimburse the following expenses if they are necessary due to a crime and if there are no other sources of reimbursement available such as health insurance, worker's compensation or other benefits. Caps or limits may apply.
Assistance is limited to the amount of out-of-pocket expenses or bills incurred by or on behalf of the victim or applicant that have not been reimbursed by other sources such as insurance, and the amount of lost wages or loss of support (based on the victim's income) if that benefit is applicable.
The limits of various types of benefits are described below. For crimes that occurred prior to January 1, 2001, the total of all benefits paid to one person could not exceed $46,000. For crimes that occurred on or after January 1, 2001, the maximum amount that can be reimbursed is $70,000.
California law authorizes the Board to establish maximum rates and service limitations for reimbursement of medical and medical-related services and for mental health and counseling services. Currently, the VCP has established the following rate limits for medical, medical-related and mental health services:
Medical and Dental Services: Eligible medical expenses are reimbursed at the Medicare rate minus 20 percent. Currently, all eligible dental expenses will be reimbursed at the DentiCal rate.
Mental Health Services: Reimbursement is set at $90 per hour for services provided by a licensed psychiatrist or licensed clinical psychologist. Reimbursement is set at $70 per hour for services provided by a licensed clinical social worker, marriage and family therapist (MFT), MFT or psychology intern, mental health nurse, or clinical nurse specialist with a specialty in psychiatric mental health nursing. Group therapy is reimbursed at 40 percent of the maximum individual session rates above. Family therapy is reimbursed at individual session rates above. Mental health session limits became effective February 3, 2003, and apply to all applications submitted on or after February 3, 2003, as well as some submitted prior to that date.
Find our more about the session limits by calling the VCP at 1-800-777-9229.
Initially, an eligible victim will receive up to 5 mental health counseling sessions. No additional sessions will be approved without the submission of a Treatment Plan (TP) by the therapist. If the TP is approved, eligible victims may receive up to 10 more sessions, for a total of 15. No sessions beyond the first 15 will be reimbursed without submission of a Treatment Progress Report (TPR) by the therapist.
When a TPR is approved: An eligible victim who was a minor at the time of the crime may receive up to 25 more sessions, for a total of 40; An eligible victim who was an adult at the time of the crime may receive up to 15 more sessions, for a total of 30; and An eligible applicant who is a close family member or fiancÚ(e) of a homicide victim may receive up to 15 more sessions, for a total of 30. Up to two eligible applicants who are the primary caretakers of a minor victim may share a combined total of 30 sessions.
If the therapist determines additional treatment is necessary once a victim reaches the session limits of 15, 30, or 40 sessions, an Additional Treatment Plan (ATP) must be submitted for review. If approved, a limited number of additional sessions may be authorized.
What if I have reimbursements from other sources?
The VCP can only reimburse qualified expenses that have not or will not be paid by any other source such as health insurance, workers compensation, MediCal, or other benefits. By law, the VCP is the "payer of last resort." If any other sources of reimbursement are available for the applicant's crime-related losses, they must be used before VCP payment can be made. Other reimbursement sources that may be available include, but are not limited to:
- Medical/health, dental, or vision insurance
- Public program benefits (MediCal, unemployment insurance, disability benefits, etc.)
- Auto insurance
- Workers' compensation benefits
- Court-ordered restitution
- Civil lawsuit recoveries
Applicants are responsible for informing the VCP of all available reimbursement sources for their losses. Applicants must repay the VCP for any payments for which it was later determined they were not eligible.
Does the Victim Compensation Program have the right to be reimbursed if another source pays later on?
The state is entitled to recover the amount of assistance granted to a victim out of any recovery by or on behalf of the victim from any third party liable for the victim's losses. This right is secured by a statutory lien against the recovery (Government Code Section 13963). The state is also entitled to recover the amount of assistance granted out of any form of workers' compensation (Labor Code Section 4903(h)). The VCP application includes a notice of the state's lien and recovery rights.
How do I apply for compensation?
There are several ways to apply for compensation:
Contact your local Victim/Witness Assistance Center for help.
You can apply on-line or download an application in PDF format, print it, and mail it in.
Call 1-800-777-9229 to receive an application by mail or to get help with applying.
An applicant may request an emergency award for reimbursement of any eligible expense if the Board determines that such an award is necessary to avoid or mitigate substantial hardship that may result from delaying compensation until complete and final consideration on an application. If granted, an Emergency Award represents an advance pending the final award of compensation. The amount of the Emergency Award shall be dependent upon the immediate needs of the victim or derivative victim subject to the rates and benefit limitations established by the Board. The applicant must repay any amount awarded on the Emergency Award if the regular application is later found to be ineligible for the VCP.
What are the time limitations for filing an application?
An application for VCP compensation should be filed within one year of the date of the crime, one year after the victim turns 18 years of age, or one year from the date the victim or derivative victim knew or in the exercise of ordinary diligence could have discovered that an injury or death had been sustained as a direct result of a crime, whichever is later.
Under certain circumstances, the Board may grant an extension of this time period for good cause. Some of the reasons an extension may be granted include:
A recommendation from the prosecuting attorney regarding the victim's or derivative victim's cooperation with law enforcement and the prosecuting attorney in the apprehension and prosecution of the person charged with the crime.
Whether particular events occurring during the prosecution or in the punishment of the person convicted of the crime have resulted in the victim or derivative victim incurring additional pecuniary loss. Whether the nature of the crime is such that a delayed reporting of the crime is reasonably excusable.
For crimes on or after January 1, 2002, a family member or other applicant may file an application at any time after the Board has accepted the application filed by or on behalf of a victim of the same qualifying crime.
A parent with legal custody, guardian, conservator, or relative caregiver may sign an application filed on behalf of a minor or victim. However, an eligible minor victim or derivative victim may sign the VCP application on his or her own behalf in certain circumstances.
How can I get more information?
California Victim Compensation and Government Claims Board
Victim Compensation Program
P.O. Box 3036
Sacramento, CA 95812-3036
If you have suffered a personal injury or monetary or property loss, regardless of the criminal case outcome, you have the right to file a civil suit against the defendant to attempt to recover your losses (e.g., medical bills, lost wages and general damages). For smaller cases, maybe only serveral thousand dollars, you can probably take a case to small claims court yourself. For larger cases where there are numerous points and/or large sums involved, you should retain the services of a personal injury attorney. You can use the services of Legal Match for free. Just post your case anonymously and let attorneys evaluate your case and respond.
In certain circumstances, third parties other than the criminal defendant(s), may be liable for your crime losses or injuries. You may want to check with the local prosecutor or a private attorney for information regarding possible litigation involving either a criminal defendant or third parties who may also be held responsible for your losses.
Time limits for filing civil suits vary from as little as six months to three years. If you think you may have the right to sue, it is important to contact an attorney as soon as possible to make sure you do not lose your legal standing.
In some criminal cases, the court may make a restitution order enforceable as a civil judgment. For information on whether your restitution order is enforceable as a civil judgment, you should contact your county clerk's office or the prosecuting attorney's office.
Article: Adult Survivors of Childhood Abuse and the Statute of Limitations from Adult Victims of Childhood Abuse.
Initial support for this project was provided by the U.S. Department of Justice, Office for Victims of Crime, under the Helping Outreach Programs Expand (H.O.P.E.) program in 2005. Points of view in this website are those of the authors and do not necessarily represent the official position or policies of the U.S. Dept. of Justice. This site depends on contributions from our users. Please consider making a donation.