BILL ANALYSIS
AB 461
Page 1
ASSEMBLY THIRD READING
AB 461 (Gaines)
As Introduced February 24, 2009
2/3 vote. Urgency
PUBLIC SAFETY 7-0 APPROPRIATIONS 17-0
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|Ayes:|Solorio, Hagman, |Ayes:|De Leon, Nielsen, |
| |Furutani, Gilmore, Hill, | |Ammiano, |
| |Ma, Skinner | |Charles Calderon, Davis, |
| | | |Duvall, Fuentes, Hall, |
| | | |Harkey, Miller, |
| | | |John A. Perez, Price, |
| | | |Skinner, Solorio, Audra |
| | | |Strickland, Torlakson, |
| | | |Krekorian |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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
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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
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
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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.
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 or attempted
commission of a felony, he or she shall receive increasing
prison sentence enhancements based upon the value of affected
property, as follows: a) one additional year for a taking or
loss in excess of $65,000; b) two additional years for a
taking or loss in excess of $200,000; c) three additional
years for a taking or loss in excess of $1.3 million; and, d)
four additional years 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.
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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
specified in this section and arise from a common scheme or
plan.
FISCAL EFFECT : According to the Assembly Appropriations'
Committee, continuing to prohibit probation for specified
offenses means more offenders will be sentenced to state prison.
Also, adding conditions of probation will result in more cases
of revoked probation that will in turn result in additional
state prison time. Based on the 34 persons sentenced to state
prison with enhancements for excessive takings over the past two
years, if five persons served one year in state prison rather
than serving probation in lieu of state incarceration, annual
General Fund costs would exceed $200,000.
COMMENTS : 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 Section 12022.6. Specifically, this statute imposes
sentence enhancements of one, two, three, or four 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 Section 12022.6 addresses sentence
enhancements for excessive takings crimes, Penal Code Section
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 Penal Code Section 1203.044 is critical because
victims are entitled to restitution and the perpetrators of many
of these high-dollar crimes should not receive probation."
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Please see the policy committee analyses for a full discussion
of this bill.
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744
FN: 0001146