BILL ANALYSIS
AB 461
Page 1
Date of Hearing: March 31, 2009
Consultant: Larry Yee
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 461 (Gaines) - As Introduced: February 24, 2009
SUMMARY : Reenacts the Economic Crime Act of 1992, addressing
felony theft restitution and probation grant limitations, with a
sunset date of January 1, 2019. Specifically, this bill :
1)Provides that when considering whether to grant probation to a
defendant convicted of a felony for a theft in excess of
$50,000 in a single transaction or occurrence, the court shall
consider the extent to which the defendant has attempted to
pay restitution between the date of conviction and the date of
sentencing.
2)Provides that a defendant claiming inability to pay
restitution before the date of sentencing shall provide a
statement of assets, income, and liabilities.
3)Prevents the court from granting probation to any defendant
who has suffered a prior conviction where a court found
enhancements for intentional taking, damaging or destruction
of property in the commission (or attempted commission) of a
felony in excess of $50,000.
4)States that probation shall not be granted to any defendant
who commits theft in an amount exceeding $100,000 in a single
transaction or occurrence, except in unusual circumstances
where the interests of justice would best be served by the
grant of probation. Requires mandatory custody time when
probation is granted.
a) Mandates at least a 90-day sentence when probation is
granted for a felony conviction involving a theft in excess
of $50,000 in a single transaction or occurrence. At least
30 days of this sentence must be served "in-custody"
regardless of any available programs, including work
furlough, work release, public service programs, or
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electronic monitoring.
b) Mandates at least a 180-day sentence when probation is
granted for a felony conviction involving a theft in excess
of $100,000 in a single transaction or occurrence. At
least 60 days of the sentence must be served "in-custody"
regardless of any available programs, including work
furlough, work release, public service programs, or
electronic monitoring.
5)Provides that all probation terms under this act must be 10
years. After five years of probation, the defendant is
released from all of the standard terms and conditions of
felony probation and remains subject to the special terms and
conditions of probation imposed under this section.
6)States that when a defendant is granted probation for a felony
theft of greater than $50,000, the court shall require
additional terms:
a) Requires that the defendant pay restitution to the
victim and a surcharge to the county in an amount equal to
20% of the restitution ordered.
b) Mandates that the defendant provide the county financial
officer with specified tax documents and specified
statements of income, assets, and liabilities within 30
days of being granted probation and annually thereafter.
Any knowing misrepresentation of accuracy in these
documents constitutes a violation of probation.
c) Permits the Franchise Tax Board and the Employment
Development Department to release specified financial
information to the county financial officer related to the
defendant once probation has been granted.
d) Requires the defendant (during the period of probation)
to notify the county financial officer within 30 days after
receipt of any money, personal property, or real property
in excess of $5,000 other than the regular salary of the
defendant or the defendant's spouse.
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7)Allows the county financial officer to implement a suggested
payment schedule for payment of restitution and the attached
surcharge based on specified findings related to the
defendant's reported financial records. Any willful failure
to comply with the suggested payment schedule shall constitute
a violation of probation.
8)The court shall factor the defendant's ability to pay
according to specified findings related to the defendant's
reportable current income and future earning capacity.
9)Requires personal appearance by the defendant at all hearing
related to the offense, unless the defendant is incarcerated
or otherwise excused by the court.
EXISTING LAW :
1)Provides that when a person intentionally takes, damages or
destroys any property in the commission of or attempted
commission of a felony, he or she shall receive increasing
enhancements of prison sentences based upon the value of
affected property, as follows [Penal Code Section 12022.6]:
a) One additional year of imprisonment for a taking or loss
in excess of $65,000;
b) Two additional years of imprisonment for a taking or
loss in excess of $200,000;
c) Three additional years of imprisonment for a taking or
loss in excess of $1.3 million; and,
d) Four additional years of imprisonment for a taking or
loss in excess of $3.2 million.
2)Provides that except in unusual cases where the interests of
justice would best be served if the person is granted
probation, probation shall not be granted to any person
convicted of a crime of theft or an amount exceeding $100,000.
[Penal Code Section 1203.045.]
3)Provides in any accusatory pleading involving multiple charges
of taking, damage, or destruction, the additional terms
provided in this section may be imposed if the aggregate
losses to the victims from all felonies exceed the amounts
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specified in this section and arise from a common scheme or
plan. [Penal Code Section 12022.6(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The Economic
Crime Act and the excessive takings enhancement statute have
been extremely important in the prosecution and punishment of
white collar crime. In 2007, the Legislature passed and the
Governor signed AB 1705 (Niello), extending the sunset date
from January 1, 2008 to January 1, 2018 for excessive takings
enhancements under Penal Code 12022.6. Specifically, this
statute imposes sentence enhancements of 1, 2, 3, or 4 years
for felony convictions in which the crime involves taking,
damaging, or destroying property of a value that exceeds
established threshold values.
"While Penal Code 12022.6 addresses sentence enhancements for
excessive takings crimes, Penal Code 1203.044 was the
statute that formerly addressed restitution for felony theft
and limitations on grants of probation.
"AB 1705 extended the sunset date for excessive takings
enhancements. This measure would essentially complete the
goal of AB 1705 by re-enacting the restitution and probation
provisions that were inadvertently allowed to sunset.
Re-enacting 1203.044 is critical because victims are
entitled to restitution and the perpetrators of many of these
high-dollar crimes should not receive probation."
2)Argument in Support : According to the California District
Attorneys Association (the sponsor of this bill), "By passing
AB 1705 and thereby extending the sunset date in section
12022.6, the Legislature expressed its overwhelming support
for the then-existing penalty enhancements for excessive
takings. This measure would essentially complete the goal of
AB 1705 by re-enacting the restitution and probation
provisions that were inadvertently allowed to sunset.
Re-enacting Penal Code section 1203.044 is critical because
the victims of these crimes should be entitled to restitution
and the perpetrators of high-dollar felony theft should not
receive probation under certain circumstances. These truths
should not be affected by the oversight that allowed this
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effective statute to sunset."
3)Prior Legislation :
a) AB 1994 (Gaines), of the 2007-08 Legislative Session,
which would have reinstated provisions of the Economic
Crime Act of 1992, was virtually identical to this bill.
AB 1994 was never heard by the Senate Committee on Public
Safety.
b) AB 1705 (Niello), Chapter 420, Statutes of 2007,
extended the sunset to January 1, 2018 on the excessive
takings enhancements under Penal Code Section 12022.6.
c) AB 293 (Cunneen), Chapter 551, Statutes of 1997,
extended the sunset to January 1, 2008 for the Economic
Crime Act of 1992.
d) SB 541 (Presley), of the 1991-92 Legislative Session,
established the Economic Crime Act of 1992.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (Sponsor)
Opposition
None received
Analysis Prepared by : Larry Yee / PUB. S. / (916) 319-3744