In vandalism, certain theft cases such as shoplifting and embezzlement, and criminal cases involving automobile property damage, a judge may dismiss the case if he or she is satisfied that the victim has been fully compensated for the loss or repair costs and it not desirous of prosecution. In other words, the monetary value of the loss or damage has been settled in a civil manner and the criminal court no longer has any need to be involved.
Penal Code §§ 1378 and 1379 allow a judge this power under the general principle of the dismissal being in the interests of justice (Penal Code § 1385). Depending upon the aggravating and mitigating circumstances of the case, the judge certainly may deny the request when he or she perceives simply “paying off” the victim is a windfall for the defendant.
An attorney representing an accused in these types of cases should immediately contact the victim to explore payment in exchange for a declaration from the victim that he or she has been fully compensated for the loss and he or she does not want the prosecution to proceed. Prompt action can sometimes encourage the victim to be less than cooperative with police, which can improve the chances that no criminal case will be filed.
Quickly contacting the victim must be done carefully, with sensitivity towards the victim’s loss and whether the victim is vengeful, nonchalant or even unaware that a prosecution is pending.
When the victim is a commercial establishment (i.e. Costco, Vons, Fry’s Electronics, Gelson’s, JCPenney, Sears, etc.), a loss prevention department may be involved. When this is so, the loss prevention supervisor is usually the best person to contact, preferably in person. This supervisor may be ready to specify an amount the store seeks and may have a store policy it follows in responding to a civil compromise request.
In our experience, such policies may change over time or may be subject to the circumstances of the case. So the fact that Costco, for example, refused to cooperate in a civil compromise request in the past may not mean it will continue such a policy.
The circumstances of the case may be a determining factor, too. If the value of the items, for example, do not exceed $100 or the client cooperated with loss prevention, the store may be amenable to signing a declaration for a motion for civil compromise. The store’s position may also depend upon the number of items taken and the age of the shoplifter.
Regardless of whether the victim is a commercial establishment, it is smart to discuss the mitigating factors of the case with the victim or loss prevention to make such a motion seem like the “right thing to do.” While discussing the case, it is prudent to acknowledge the victim’s anger as well to build your own credibility.
The same general approach should be followed when speaking to a victim of vandalism, embezzlement or a car crash. The goal always is to secure the victim’s signed declaration to make the client eligible for a dismissal. Keep in mind that money may not always be the only thing a victim seeks, so be open to other demands that the client may be agreeable to, i.e. a donation to a charitable organization. A discussion with your client about creative ways to make the victim happy can often make a big difference.
This article was written by Greg Hill. He has defended theft, vandalism and criminal cases involving automobile damage in both state and federal court, as well as DUI’s, domestic violence and drug offenses all over the state of California. He is an attorney in Torrance, California and a former Marine Officer. He is a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998). Visit his firm’s website at http://www.greghillassociates.com or his firm’s Facebook page at http://www.facebook.com/pages/greg-hill-associates/198954460153651.