What if the person who is the victim in my case doesn’t want to prosecute? Can I work out a money deal with him so that he is paid restitution and I am not prosecuted? The answer to this question is: sometimes. It’s not buying justice or bribing someone so they don’t cooperate with the police or the prosecution. The Penal Code actually provides for this perfectly legal resolution of some criminal cases.
Penal Code Sections 1377 and 1378 deal with these issues. Penal Code Section 1377 states: “When the person injured by an act constituting a misdemeanor has a remedy by a civil action, the offense may be compromised as provided in Section 1378”. The types of crimes expressly excluded from this remedy are: 1) acts committed upon or by an officer of justice, while in the execution of the duties of his or her office, or; 2) acts done riotously, or; 3) acts done with an intent to commit a felony, or; 4) acts done in violation of any court order in a domestic situation, or; 5) upon a family or household member or any person when the violation involves any person described in certain sections of the Family Code or a particular section of the Penal Code, or; 6) acts upon an elder, or; 7) acts upon a child. As you can imagine there are public policy reasons that the court won’t allow cases to be dismissed upon payment of monies in a compromise.
However, this leaves many cases which can be compromised and possibly dismissed.
Penal Code Section 1378 sets forth the procedure that has to be followed in order to obtain a compromise. The injured person must appear in court and state that he has received satisfaction for the injury. If the court accepts that statement then all proceedings can be stayed and the defendant discharged. That is the technical word for what is essentially a dismissal. The judge can stop it but usually if the victim is satisfied and there isn’t a public policy reason to prevent the compromise, the court will allow it.
A civil compromise pursuant to Penal Code Sections 1377 and 1378 is a powerful and useful defense tool in the hands of a qualified and experienced criminal defense attorney.