BILL NUMBER: AB 1847	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 15, 2010

INTRODUCED BY   Assembly Member Furutani

                        FEBRUARY 12, 2010

   An act to amend Section  1214   1202.42 
of the Penal Code, relating to criminal procedure.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1847, as amended, Furutani. Restitution orders.
    Under existing law, a   Existing law
provides for  victim restitution  order or restitution
fine is enforceable as a civil judgment, and continues to be
collectible after probation and parole have terminated. Existing law
requires a defendant to prepare a disclosure of assets, income, and
liabilities as of the date of arrest for the crime for which
restitution may be ordered, and requires the disclosure be made
available to the victim   orders and restitution fines
 , as specified.  Existing law authorizes  
procedures for the entry and application of court orders for income
deduction upon entry of an order for a restitution fine or for victim
restitution, and gives the agency responsible or the collection of
restitution specified powers and duties in regard to these income
deduction orders. 
   This bill would  in addition  provide that
 with respect to cases charging specified offenses relating
to driving under the influence of any alcoholic beverage or drug or
both,  the court  in its order to pay restitution
 may, upon a request of the prosecuting attorney  or
pursuant to its own authority  , order that the prosecuting
 agency   attorney  be given 
access to information regarding the defendant's assets and financial
records, and to wage garnishment or   authority to use
 lien procedures applicable to the defendant, including, but not
limited to, a writ of attachment of property.  The bill would
further provide that if there is no agency in the county responsible
for the collection of restitution, the prosecuting attorney may carry
out the functions and duties of such an agency in regard to the
income deduction orders described above, as specified. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


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

   SECTION 1.    Section 1202.42 of the   Penal
Code   is amended to read: 
   1202.42.  Upon entry of a restitution order under subdivision (c)
of Section 13967 of the Government Code, as operative on or before
September 28, 1994, paragraph (3) of subdivision (a) of Section
1202.4 of this code, or Section 1203.04 as operative on or before
August 2, 1995, the following shall apply:
   (a) The court shall enter a separate order for income deduction
upon determination of the defendant's ability to pay, regardless of
the probation status, in accordance with Section 1203. Determination
of a defendant's ability to pay may include his or her 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 amount of the fine shall not be required.
   (b) (1) In any case in which the court enters a separate order for
income deduction under this section, the order shall be stayed until
the agency in the county responsible for collection of restitution
determines that the defendant has failed to meet his or her
obligation under the restitution order and the defendant has not
provided the agency with good cause for the failure in accordance
with paragraph (2).
   (2) If the agency responsible for collection of restitution
receives information that the defendant has failed to meet his or her
obligation under the restitution order, the agency shall request the
defendant to provide evidence indicating that timely payments have
been made or provide information establishing good cause for the
failure. If the defendant fails to either provide the agency with the
evidence or fails to establish good cause within five days of the
request, the agency shall immediately inform the defendant of that
fact, and shall inform the clerk of the court in order that an income
deduction order will be served pursuant to subdivision (f) following
a 15-day appeal period. The defendant may apply for a hearing to
contest the lifting of the stay pursuant to subdivision (f).
   (c) The income deduction order shall direct a payer to deduct from
all income due and payable to the defendant the amount required by
the court to meet the defendant's obligation.
   (d) The income deduction order shall be effective so long as the
order for restitution upon which it is based is effective or until
further order of the court.
   (e) When the court orders the income deduction, the court shall
furnish to the defendant a statement of his or her rights, remedies,
and duties in regard to the income deduction order. The statement
shall state all of the following:
   (1) All fees or interest that will be imposed.
   (2) The total amount of income to be deducted for each pay period.

   (3) That the income deduction order applies to current and
subsequent payers and periods of employment.
   (4) That a copy of the income deduction order will be served on
the defendant's payer or payers.
   (5) That enforcement of the income deduction order may only be
contested on the ground of mistake of fact regarding the amount of
restitution owed.
   (6) That the defendant is required to notify the clerk of the
court within seven days after changes in the defendant's address,
payers, and the addresses of his or her payers.
   (7) That the court order will be stayed in accordance with
subdivision (b) and that a hearing is available in accordance with
subdivision (f).
   (f) (1) Upon receiving the notice described in paragraph (2) of
subdivision (b), the clerk of the court or officer of the agency
responsible for collection of restitution shall serve an income
deduction order and the notice to payer on the defendant's payer
unless the defendant has applied for a hearing to contest the
enforcement of the income deduction order.
   (2) (A) Service by or upon any person who is a party to a
proceeding under this section shall be made in the manner prescribed
for service upon parties in a civil action.
   (B) Service upon the defendant's payer or successor payer under
this section shall be made by prepaid certified mail, return receipt
requested.
   (3) The defendant, within 15 days after being informed that the
order staying the income deduction order will be lifted, may apply
for a hearing to contest the enforcement of the income deduction
order on the ground of mistake of fact regarding the amount of
restitution owed or on the ground that the defendant has established
good cause for the nonpayment. The timely request for a hearing shall
stay the service of an income deduction order on all payers of the
defendant until a hearing is held and a determination is made as to
whether the enforcement of the income deduction order is proper.
   (4) The notice to any payer required by this subdivision shall
contain only information necessary for the payer to comply with the
income deduction order. The notice shall do all of the following:
   (A) Require the payer to deduct from the defendant's income the
amount specified in the income deduction order, and to pay that
amount to the clerk of the court.
   (B) Instruct the payer to implement the income deduction order no
later than the first payment date that occurs more than 14 days after
the date the income deduction order was served on the payer.
   (C) Instruct the payer to forward, within two days after each
payment date, to the clerk of the court the amount deducted from the
defendant's income and a statement as to whether the amount totally
or partially satisfies the periodic amount specified in the income
deduction order.
   (D) Specify that if a payer fails to deduct the proper amount from
the defendant's income, the payer is liable for the amount the payer
should have deducted, plus costs, interest, and reasonable attorney'
s fees.
   (E) Provide that the payer may collect up to five dollars ($5)
against the defendant's income to reimburse the payer for
administrative costs for the first income deduction and up to one
dollar ($1) for each deduction thereafter.
   (F) State that the income deduction order and the notice to payer
are binding on the payer until further notice by the court or until
the payer no longer provides income to the defendant.
   (G) Instruct the payer that, when he or she no longer provides
income to the defendant, he or she shall notify the clerk of the
court and shall also provide the defendant's last known address and
the name and address of the defendant's new payer, if known, and
that, if the payer violates this provision, the payer is subject to a
civil penalty not to exceed two hundred fifty dollars ($250) for the
first violation or five hundred dollars ($500) for any subsequent
violation.
   (H) State that the payer shall not discharge, refuse to employ, or
take disciplinary action against the defendant because of an income
deduction order and shall state that a violation of this provision
subjects the payer to a civil penalty not to exceed two hundred fifty
dollars ($250) for the first violation or five hundred dollars
($500) for any subsequent violation.
   (I) Inform the payer that when he or she receives income deduction
orders requiring that the income of two or more defendants be
deducted and sent to the same clerk of a court, he or she may combine
the amounts that are to be paid to the depository in a single
payment as long as he or she identifies that portion of the payment
attributable to each defendant.
   (J) Inform the payer that if the payer receives more than one
income deduction order against the same defendant, he or she shall
contact the court for further instructions.
   (5) The clerk of the court shall enforce income deduction orders
against the defendant's successor payer who is located in this state
in the same manner prescribed in this subdivision for the enforcement
of an income deduction order against a payer.
   (6) A person may not discharge, refuse to employ, or take
disciplinary action against an employee because of the enforcement of
an income deduction order. An employer who violates this provision
is subject to a civil penalty not to exceed two hundred fifty dollars
($250) for the first violation or five hundred dollars ($500) for
any subsequent violation.
   (7) When a payer no longer provides income to a defendant, he or
she shall notify the clerk of the court and shall provide the
defendant's last known address and the name and address of the
defendant's new payer, if known. A payer who violates this provision
is subject to a civil penalty not to exceed two hundred fifty dollars
($250) for the first violation or five hundred dollars ($500) for a
subsequent violation. 
   (g) The court may, upon the request of the prosecuting attorney,
order that the prosecuting attorney be given authority to use lien
procedures applicable to the defendant, including, but not limited
to, a writ of attachment of property.  
   (h) If there is no agency in the county responsible for the
collection of restitution, the prosecuting attorney may carry out the
functions and duties of such an agency as specified in subdivisions
(b) and (f).  
   (g) 
    (i)  As used in this section, "good cause" for failure
to meet an obligation or "good cause" for nonpayment means, but shall
not be limited to, any of the following:
   (1) That there has been a substantial change in the defendant's
economic circumstances, such as involuntary unemployment, involuntary
cost-of-living increases, or costs incurred as the result of medical
circumstances or a natural disaster.
   (2) That the defendant reasonably believes there has been an
administrative error with regard to his or her obligation for
payment.
   (3) Any other similar and justifiable reasons. 
  SECTION 1.    Section 1214 of the Penal Code is
amended to read:
   1214.  (a) If the judgment is for a fine, including a restitution
fine ordered pursuant to Section 1202.4, 1202.44, or 1202.45, or
Section 1203.04 as operative on or before August 2, 1995, or Section
13967 of the Government Code, as operative on or before September 28,
1994, with or without imprisonment, or a diversion restitution fee
ordered pursuant to Section 1001.90, the judgment may be enforced in
the manner provided for the enforcement of money judgments generally.
Any portion of a restitution fine or restitution fee that remains
unsatisfied after a defendant is no longer on probation or parole or
has completed diversion is enforceable by the California Victim
Compensation and Government Claims Board pursuant to this section.
Notwithstanding any other provision of law prohibiting disclosure,
the state, as defined in Section 900.6 of the Government Code, a
local public entity, as defined in Section 900.4 of the Government
Code, or any other entity, may provide the California Victim
Compensation and Government Claims Board any and all information to
assist in the collection of unpaid portions of a restitution fine for
terminated probation or parole cases, or of a restitution fee for
completed diversion cases. For purposes of the preceding sentence,
"state, as defined in Section 900.6 of the Government Code," and "any
other entity" shall not include the Franchise Tax Board.
   (b) In any case in which a defendant is ordered to pay
restitution, the order to pay restitution (1) is deemed a money
judgment if the defendant was informed of his or her right to have a
judicial determination of the amount and was provided with a hearing,
waived a hearing, or stipulated to the amount of the restitution
ordered, and (2) shall be fully enforceable by a victim as if the
restitution order were a civil judgment, and enforceable in the same
manner as is provided for the enforcement of any other money
judgment. Upon the victim's request, the court shall provide the
victim in whose favor the order of restitution is entered with a
certified copy of that order and a copy of the defendant's disclosure
pursuant to paragraph (4) of subdivision (f) of Section 1202.4,
affidavit or information pursuant to paragraph (5) of subdivision (f)
of Section 1202.4, or report pursuant to paragraph (7) of
subdivision (f) of Section 1202.4. The court also shall provide this
information to the district attorney upon request in connection with
an investigation or prosecution involving perjury or the veracity of
the information contained within the defendant's financial
disclosure. In addition, upon request, the court shall provide the
California Victim Compensation and Government Claims Board with a
certified copy of any order imposing a restitution fine or order and
a copy of the defendant's disclosure pursuant to paragraph (4) of
subdivision (f) of Section 1202.4, affidavit or information pursuant
to paragraph (5) of subdivision (f) of Section 1202.4, or report
pursuant to paragraph (7) of subdivision (f) of Section 1202.4. A
victim shall have access to all resources available under the law to
enforce the restitution order, including, but not limited to, access
to the defendant's financial records, use of wage garnishment and
lien procedures, information regarding the defendant's assets, and
the ability to apply for restitution from any fund established for
the purpose of compensating victims in civil cases. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation or parole is enforceable by the victim pursuant
to this section. Victims and the California Victim Compensation and
Government Claims Board shall inform the court whenever an order to
pay restitution is satisfied.
   (c) Notwithstanding subdivision (b) or any other provision, with
respect to cases charged under Section 191.5, subdivision (a) or (b)
of Section 23152 of the Vehicle Code, or subdivision (a) or (b) of
Section 23153 of the Vehicle Code, the court in its order to pay
restitution may, upon a request of the prosecuting attorney or
pursuant to its own authority, order that the prosecuting agency be
given access to information regarding the defendant's assets and
financial records, and authority to use wage garnishment or lien
procedures applicable to the defendant, including, but not limited
to, a writ of attachment of property.
   (d) Except as provided in subdivision (e), and notwithstanding the
amount in controversy limitation of Section 85 of the Code of Civil
Procedure, a restitution order or restitution fine that was imposed
pursuant to Section 1202.4 in any of the following cases may be
enforced in the same manner as a money judgment in a limited civil
case:
   (1) In a misdemeanor case.
   (2) In a case involving violation of a city or town ordinance.
   (3) In a noncapital criminal case where the court has received a
plea of guilty or nolo contendere.
   (e) Chapter 3 (commencing with Section 683.010) of Division 1 of
Title 9 of Part 2 of the Code of Civil Procedure shall not apply to a
judgment for any fine or restitution ordered pursuant to Section
1202.4 or Section 1203.04 as operative on or before August 2, 1995,
or Section 13967 of the Government Code, as operative on or before
September 28, 1994, or to a diversion restitution fee ordered
pursuant to Section 1001.90.