BILL NUMBER: AB 461	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Gaines

                        FEBRUARY 24, 2009

   An act to add and repeal Section 1203.044 of the Penal Code,
relating to economic crimes, and declaring the urgency thereof, to
take effect immediately.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 461, as introduced, Gaines. Economic Crime Act of 1992:
reenactment.
   Provisions of law known as the Economic Crime Act of 1992 provided
for specified limitations with respect to probation for, the
imposition of specified restitution orders on, and a surcharge on a
defendant convicted of a felony for theft of an amount exceeding
$50,000. The Economic Crime Act of 1992 was repealed by its own terms
on January 1, 2008.
   This bill would reenact those provisions and provide for their
repeal on January 1, 2019, unless a later enacted statute, enacted
before January 1, 2019, deletes or extends the date.
   Because this bill would impose additional duties on local
officials, it would impose a state-mandated local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
   With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
   This bill would declare that it is to take effect immediately as
an urgency statute.
   Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1203.044 is added to the Penal Code, to read:
   1203.044.  (a) This section shall apply only to a defendant
convicted of a felony for theft of an amount exceeding fifty thousand
dollars ($50,000) in a single transaction or occurrence. This
section shall not apply unless the fact that the crime that involved
the theft of an amount exceeding fifty thousand dollars ($50,000) in
a single transaction or occurrence is charged in the accusatory
pleading and either admitted by the defendant in open court or found
to be true by the trier of fact. Aggregate losses from more than one
criminal act shall not be considered in determining if this section
applies.
   (b) Notwithstanding any other law, probation shall not be granted
to a defendant convicted of a crime to which subdivision (a) applies
if the defendant was previously convicted of an offense for which an
enhancement pursuant to Section 12022.6 was found true even if that
enhancement was not imposed by the sentencing court. The prior
conviction shall be alleged in the accusatory pleading and either
admitted by the defendant in open court or found to be true by the
trier of fact.
   (c) In deciding whether to grant probation to a defendant
convicted of a crime to which subdivision (a) applies, the court
shall consider all relevant information, including the extent to
which the defendant has attempted to pay restitution to the victim
between the date upon which the defendant was convicted and the date
of sentencing. A defendant claiming inability to pay restitution
before the date of sentencing shall provide a statement of assets,
income, and liabilities, as set forth in subdivision (j) to the
court, the probation department, and the prosecution.
   (d) In addition to the restrictions on probation imposed by
subdivisions (b) and (c), probation shall not be granted to any
person convicted of theft in an amount exceeding one hundred thousand
dollars ($100,000) in a single transaction or occurrence, except in
unusual cases if the interests of justice would best be served if the
person is granted probation. The fact that the theft was of an
amount exceeding one hundred thousand dollars ($100,000) in a single
transaction or occurrence, shall be alleged in the accusatory
pleading and either admitted by the defendant in open court or found
to be true by the trier of fact. This subdivision shall not authorize
a grant of probation otherwise prohibited under subdivision (b) or
(c). If probation is granted pursuant to this subdivision, the court
shall specify on the record and shall enter in the minutes the
circumstances indicating that the interests of justice would best be
served by that disposition. Aggregate losses from more than one
criminal act shall not be considered in determining whether this
subdivision applies.
   (e) Subject to subdivision (f), if a defendant is convicted of a
crime to which subdivision (a) applies and the court grants
probation, a court shall impose at least a 90-day sentence in a
county jail as a condition of probation. If the defendant was
convicted of a crime to which subdivision (d) applies, and the court
grants probation, the court shall impose at least a 180-day sentence
in a county jail as a condition of probation.
   (f) The court shall designate a portion of any sentence imposed
pursuant to subdivision (e) as a mandatory in-custody term. For the
purpose of this section only, "mandatory in-custody term" means that
the defendant shall serve that term, notwithstanding credits pursuant
to Section 4019, in custody in a county jail. The defendant shall
not be allowed release on any program during that term, including
work furlough, work release, public service program, or electronic
monitoring. The court shall designate the mandatory in-custody term
as follows:
   (1) If the defendant was convicted of a crime to which subdivision
(a) applies, the mandatory in-custody term shall be no less than 30
days. If the person serves a mandatory in-custody term of at least 30
days, the court may, in the interests of justice, and for reasons
stated in the record, reduce the mandatory minimum 90-day sentence
required by subdivision (e).
   (2) If the defendant was convicted of a crime to which subdivision
(d) applies, the mandatory in-custody term shall be no less than 60
days. If the person serves a mandatory in-custody term of at least 60
days, the court may, in the interests of justice, and for reasons
stated in the record, reduce the mandatory minimum 180-day sentence
required by subdivision (e).
   (g) If a defendant is convicted of a crime to which subdivision
(a) applies, and the court grants probation, the court shall require
the defendant as a condition of probation to pay restitution to the
victim and to pay a surcharge to the county in the amount of 20
percent of the restitution ordered by the court, as follows:
   (1) The surcharge is not subject to any assessments otherwise
imposed by Section 1464. The surcharge shall be paid into the county
treasury and placed in the general fund to be used exclusively for
the investigation and prosecution of white collar crime offenses and
to pay the expenses incurred by the county in administering this
section, including increased costs incurred as a result of offenders
serving mandatory in-custody terms pursuant to this section.
   (2) The court shall also enter an income deduction order as
provided in Section 13967.2 of the Government Code to secure payment
of the surcharge. That order may be enforced to secure payment of the
surcharge as provided by those provisions.
   (3) The county board of supervisors shall not charge the fee
provided for by Section 1203.1, subdivision (l) of Section 1202.4, or
subdivision (d) of Section 13967, as operative on or before
September 28, 1994, of the Government Code for the collection of
restitution or any restitution fine.
   (4) The defendant shall not be required to pay the costs of
probation as otherwise required by subdivision (b) of Section 1203.1.

   (h) Notwithstanding any other law, if a defendant is convicted of
a crime to which subdivision (a) applies and the court grants
probation, as a condition of probation, within 30 court days after
being granted probation, and annually thereafter, the defendant shall
provide the county financial officer with all of the following
documents and records:
   (1) True and correct copies of all income tax and personal
property tax returns for the previous tax year, including W-2 forms
filed on the defendant's behalf with any state tax agency. If the
defendant is unable to supply a copy of a state tax return, the
defendant shall provide a true and correct copy of all income tax
returns for the previous tax year filed on his or her behalf with the
federal government. The defendant is not required to provide any
particular document if to do so would violate federal law or the law
of the state in which the document was filed. However, this section
shall supersede all other laws in this state concerning the right to
privacy with respect to tax returns filed with this state. If, during
the term of probation, the defendant intentionally fails to provide
the county financial officer with any document that he or she knows
is required to be provided under this subdivision, that failure shall
constitute a violation of probation.
   (2) A statement of income, assets, and liabilities as defined in
subdivision (j).
   (i) The submission by the defendant of any tax document pursuant
to paragraph (1) of subdivision (h) that the defendant knows does not
accurately state the defendant's income, or if required, the
defendant's personal property, if the inaccuracy is material,
constitutes a violation of probation.
   (j) A statement of income, assets, and liabilities form, that is
consistent with the disclosure requirements of this section, may be
established by the financial officer of each county. That statement
shall require the defendant to furnish relevant financial information
identifying the defendant's income, assets, possessions, or
liabilities, actual or contingent. The statement may include the
following:
   (1) All real property in which the defendant has any interest.
   (2) Any item of personal property worth more than three thousand
dollars ($3,000) in which the defendant has any interest, including,
but not limited to, vehicles, airplanes, boats, computers, and
consumer electronics. Any collection of jewelry, coins, silver,
china, artwork, antiques, or other collectibles in which the
defendant has any interest, if that collection is worth more than
three thousand dollars ($3,000).
   (3) All domestic and foreign assets in the defendant's name, or in
the name of the defendant's spouse or minor children, of a value
over three thousand dollars ($3,000) and in whatever form, including,
but not limited to, bank accounts, securities, stock options, bonds,
mutual funds, money market funds, certificates of deposits,
annuities, commodities, precious metals, deferred compensation
accounts, individual retirement accounts, and related or analogous
accounts.
   (4) All insurance policies in which the defendant or the defendant'
s spouse or minor children retain a cash value.
   (5) All pension funds in which the defendant has a vested right.
   (6) All insurance policies of which the defendant is a
beneficiary.
   (7) All contracts, agreements, judgments, awards, or prizes
granting the defendant the right to receive money or real or personal
property in the future, including alimony and child support.
   (8) All trusts of which the defendant is a beneficiary.
   (9) All unrevoked wills of a decedent if the defendant or
defendant's spouse or minor child is a beneficiary.
   (10) All lawsuits currently maintained by the defendant or by or
against a corporation in which the defendant owns more than a
25-percent interest if the suit includes a prayer for damages.
   (11) All corporations of which the defendant is an officer. If the
defendant is an officer in a corporation sole, subchapter S
corporation, or closely held corporation, and controls more equity of
that corporation than any other individual, the county financial
officer shall have authority to request other records of the
corporation.
   (12) All debts in excess of three thousand dollars ($3,000) owed
by the defendant to any person or entity.
   (13) Copies of all applications for loans made by the defendant
during the last year.
   (14) All encumbrances on any real and personal property in which
the defendant has any interest.
   (15) All sales, transfers, assignments, quitclaims, conveyances,
or encumbrances of any interest in real or personal property of a
value exceeding three thousand dollars ($3,000) made by the defendant
during the period beginning one year before charges were filed to
the present, including the identity of the recipient of same, and
relationship, if any, to the defendant.
   (k) The information contained in the statement of income, assets,
and liabilities shall not be available to the public. Information
received pursuant to this subdivision shall not be disclosed to any
member of the public. Any disclosure in violation of this section
shall be a contempt of court punishable by a fine not exceeding one
thousand dollars ($1,000), and shall also create a civil cause of
action for damages.
   (l) After providing the statement of income, assets, and
liabilities, the defendant shall provide the county financial officer
with copies of any documents representing or reflecting the
financial information set forth in subdivision (j) as requested by
that officer.
   (m) The defendant shall sign the statement of income, assets, and
liabilities under penalty of perjury. The provision of information
known to be false, or the intentional failure to provide material
information knowing that it was required to have been provided, shall
constitute a violation of probation.
   (n) The Franchise Tax Board and the Employment Development
Department shall release copies of income tax returns filed by the
defendant and other information concerning the defendant's current
income and place of employment to the county financial officer upon
request. That information shall be kept confidential and shall not be
made available to any member of the public. Any unauthorized release
shall be subject to subdivision (k). The county shall reimburse the
reasonable administrative expenses incurred by those agencies in
providing this information.
   (o) During the term of probation, the defendant shall notify the
county financial officer in writing within 30 days, after receipt
from any source of any money or real or personal property that has a
value of over five thousand dollars ($5,000), apart from the salary
from the defendant's and the defendant's spouse's regular employment.
The defendant shall report the source and value of the money or real
or personal property received. This information shall not be made
available to the public or the victim. Any unauthorized release shall
be subject to subdivision (k).
   (p) The term of probation in all cases shall be 10 years. However,
after the defendant has served five years of probation, the
defendant shall be released from all terms and conditions of
probation except those terms and conditions included within this
section. A court may not revoke or otherwise terminate probation
within 10 years unless and until the defendant has satisfied both the
restitution judgment and the surcharge, or the defendant is
imprisoned for a violation of probation. Upon satisfying the
restitution judgment, the defendant is entitled to a court order
vacating that judgment and removing it from the public record.
Amounts owing on the surcharge are forgiven upon completion of the
term of probation.
   (q) The county financial officer shall establish a suggested
payment schedule each year to ensure that the defendant remits
amounts to make restitution to the victim and pay the surcharge. The
county financial officer shall evaluate the defendant's current
earnings, future earning capacity, assets (including assets that are
in trust or in accounts where penalties may be incurred upon
premature withdrawal of funds), and liabilities, and set payments to
the county based upon the defendant's ability to pay. The defendant
shall bear the burden of demonstrating the lack of his or her ability
to pay. If the defendant objects to the suggested payment schedule,
the court shall set the schedule. Express findings by the court as to
the factors bearing on the payment schedule shall not be required.
After the payment schedule is set, a defendant may request a change
in the schedule upon a change of circumstances. The restitution
schedule shall set a reasonable payment amount and shall not set
payments in an amount that is likely to cause severe financial
hardship to the defendant or his or her family.
   (r) The willful failure to pay the amounts required by the payment
schedule or to comply with the requirements of the county financial
officer or the probation department pursuant to this section, if the
defendant is able to pay or comply, is a violation of probation.
   (s) In determining the defendant's ability to pay, the court shall
consider whether the annual payment required, including any money or
property seized to satisfy the restitution judgment, exceeds 15
percent of the defendant's taxable income for the previous year as
identified on the defendant's tax return for the defendant's state of
residence or on the defendant's federal tax return. If the defendant
has filed a joint return, the defendant's income for purposes of
this section shall be presumed to be the total of all wages earned by
the defendant, plus one-half of all other nonsalary income listed on
the tax return and accompanying schedules, unless the defendant
demonstrates otherwise. The court shall also consider the defendant's
current income and future earning capacity. A defendant shall bear
the burden of demonstrating lack of his or her ability to pay.
Express findings by the court as to the factors bearing on the
payment schedule shall not be required.
   (t) The defendant shall personally appear at any hearing held
pursuant to any provision of this section unless the defendant is
incarcerated or otherwise excused by the court, in which case the
defendant may appear through counsel.
   (u) Notwithstanding subdivision (d) of Section 1203.1, the county
financial officer shall distribute proceeds collected by the county
pursuant to this section as follows:
   (1) If the restitution judgment has been satisfied, but the
surcharge remains outstanding, all amounts paid by the defendant
shall be kept by the county and applied to the surcharge.
   (2) If the surcharge has been satisfied, but the restitution
judgment has not been satisfied, all amounts submitted to the county
shall be remitted to the victim.
   (3) If neither judgment has been satisfied, the county shall remit
70 percent of the amounts collected to the victim. Those amounts
shall be credited to the restitution judgment. The remaining 30
percent shall be retained by the county and credited toward the
surcharge.
   (v) Neither this section, nor the amendments to Section 12022.6 of
the Penal Code enacted pursuant to Chapter 104 of the Statutes of
1992, are intended to lessen or otherwise mitigate sentences that
could otherwise be imposed under any law in effect when the offense
was committed.
   (w) For the purpose of this section, a county may designate an
appropriate employee of the county probation department, the
department of revenue, or any other analogous county department to
act as the county financial officer pursuant to this section.
   (x) This section shall remain in effect only until January 1,
2019, and as of that date is repealed, unless a later enacted
statute, which is enacted before January 1, 2019, deletes or extends
that date.
  SEC. 2.  It is the intent of the Legislature in enacting this act
to reenact the provisions of the Economic Crime Act of 1992.
  SEC. 3.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
   However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
  SEC. 4.  This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
   In order to protect Californians from ongoing devastating economic
theft, it is necessary this act go into effect immediately.