Gascon’s Orders Violate Marsy’s Law

Marsy’s Law, also called the California Victims’ Bill of Rights Act of 2008, was enacted by voters as Proposition 9 through the initiative process in the November 2008 general election. It amended the state’s constitution and certain Penal Code sections to protect and expand the legal rights of victims. It includes 17 specific rights in the judicial process, including the following:

Right 6 – Conference with the Prosecution and Notice of Pretrial Disposition: To reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding . . .the charges filed . . ., and, upon request, to be notified of and informed before any pretrial disposition of the case.

Right 7 – Notice of and Presence at Public Proceedings: To reasonable notice of all public proceedings . . . upon request, at which the defendant and the prosecutor are entitled to be present . . . and to be present at all such proceedings.

Right 8 – Appearance at Court Proceedings and Expression of Views: To be heard, upon request, at any proceeding . . . involving a post–arrest release decision, plea, sentencing . . . or any proceeding in which a right of the victim is at issue. (California Constitution, Article I, § 28(b)(6)(7) and (8).)

By contrast, deputy district attorneys are ordered to dismiss enhancements “at the first court hearing after this policy takes effect.”

Another special directive says, “all laws concerning victim notification shall be honored.”

Taken together, you cannot follow the language in Special Directive 20-08 because you have to conference with the victims, give them notice, and allow them to appear at the hearing in which you will dismiss the enhancements.

If you haven’t done this, you should notify court and counsel that you are attempting to comply with Special Directive 20-14 and Marsy’s Law by notifying the victim of your intention to dismiss the enhancements. Explain that you will follow the special directive, to the extent it is consistent with the law and the Penal Code, once you have made these notifications.

This may or may not be enough to prevent you from being put on a list or reported by the defense bar.  If the victims want to attend address the court, you should make the following record:

Additionally, and in light of Special Directive 20-14’s specific language, “All laws concerning victim notification and support shall be honored,” the People notified ________ of his/her right to attend the hearing at which time the People will move for dismissal of the special allegations and enhancements. __________,  have requested the opportunity to address the Court before ruling.