In California, when a person is injured by an act constituting a misdemeanor and has a remedy by a civil action, the offense may be compromised pursuant to Penal Code Sections 1377 to 1379. The person injured (victim) must appear before the court (in person or by written declaration) where the criminal case is pending and acknowledge that he or she has received full compensation for their loss or injury. The victim must also convey to the court that he or she is not desirous of prosecution.
If the court is satisfied it will order all criminal proceedings stayed and the defendant to be discharged. The court's order of discharge and the reasons for it must be entered into the record. This order is a bar to another prosecution for the same offense. There is no requirement that the prosecutor consent to the civil compromise. However, it is in the best interests of the defendant and his attorney that the prosecutor agree with the civil compromise. Civil compromises are not available for all misdemeanors.
Some of the offenses excluded from civil compromises include:
- Offenses committed against a peace officer while executing the duties of his or her office. Penal Code 1377(b).
- Offenses committed with intent to commit a felony. Penal Code 1377(c).
- Riotous offenses. Penal Code 1377 (b).
- Offenses committed in violation of a court order. Penal Code 273.6 or 273.65.
- Offenses committed on a child. Penal Code 647.6 or 11165.6.
- Offenses committed against an elder. Penal Code 368 & Welfare and Institutions Code 15656.
- Offenses committed in a domestic violence matter by or on a family or household member
In California, civil compromises are most effective in crimes involving theft (small dollar amount and not with major chain department stores), minor vandalism, hit and run, and embezzlement.
It is critical that an attorney negotiating a civil compromise on behalf of his or her client comply with the civil compromise statutes because it is a crime to condition settlement of a civil claim on the nonprosecution of a criminal action. (Penal Code 153). Negotiating a civil compromise is a tricky proposition. Consult with an experienced California criminal defense lawyer to determine if a civil compromise can be negotiated in your case to prevent a criminal conviction.