Q Can a misdemeanor be settled by civil compromise?
A In a number of criminal cases involving fairly minor conduct, the law allows the accused to resolve his or her case by redressing the damages to the injured party by obtaining an agreement from that party to avoid prosecution.
This procedure is explained in California Penal Code sections 1377 and 1378. The first section states that when a person injured by misdemeanor conduct has a civil remedy, the offense may be settled by a compromise. It also lists the exceptions to this procedure. “Civil remedy” means that the injured party can sue the accused in civil court or small claims court to get money to offset any damages caused by the accused’s conduct.
The second section, 1378, authorizes trial courts to dismiss these types of misdemeanor cases when certain conditions have been met. If the injured person appears before the court and acknowledges that he or she has been compensated for any and all injury sustained by the accused person’s conduct, the court has discretion to dismiss the case and discharge the accused from any penalty. If the case is dismissed pursuant to this section, the accused person cannot be prosecuted again for the same conduct.
Practically speaking, the civil compromise is available for many types of misdemeanor cases, from hit and run cases, where the accused left the scene of an accident without exchanging contact and insurance information with the other party, to simple theft and battery cases.
The attorney for the accused person will contact the injured party and propose that the parties conduct a civil compromise to settle the case out of court. The injured party must be satisfied that it has received compensation for its damages, and must not want to go forward with the prosecution. The accused person must compensate the injured party for its damages.
The attorney for the accused usually drafts a declaration for the injured party to sign, stating that whatever harm it sustained has been redressed and that it does not desire the accused person to be prosecuted.
The attorney then will take the declaration to court and ask the judge to approve the civil compromise and dismiss the case. The injured party does have the right to be present to acknowledge that it has been compensated, but in my experience, the injured party will waive that right when signing the document and agreeing to the compromise.
So, in the end, the attorney will take the declaration and appear in court to have the case dismissed once the injuries have been redressed and the injured party has been fully compensated.
Naresh Rajan is an attorney in San Mateo County. Email firstname.lastname@example.org.