BILL NUMBER: AB 1847	AMENDED
	BILL TEXT

	AMENDED IN SENATE  AUGUST 11, 2010
	AMENDED IN ASSEMBLY  MAY 11, 2010
	AMENDED IN ASSEMBLY  APRIL 15, 2010

INTRODUCED BY   Assembly Member Furutani

                        FEBRUARY 12, 2010

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


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1847, as amended, Furutani. Restitution orders.
   Existing law provides for victim restitution 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 for the collection of
restitution specified powers and duties in regard to these income
deduction orders.
   The bill would provide that if there is no agency in the county
responsible for the collection of restitution, the county probation
office or 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. This bill would further provide, if
the defendant fails to meet his or her obligations under the
restitution order and the defendant has not provided good cause for
the failure, that a court  would  shall  be
authorized, upon the request of the prosecuting attorney, to order
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, as specified.  The bill would provide
prosecutorial immunity from liability and deny prosecutorial
reimbursement from the defendant for these proceedings, 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) If the defendant has failed to meet his or her obligation
under the restitution order and the defendant has not provided good
cause for the failure in accordance with the process set forth in
paragraph (2) of subdivision (b), 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. This
authority is in addition to any authority granted to the prosecuting
attorney in subdivision (h).
   (1) If the court authorizes a lien or other similar encumbrance on
real property pursuant to this subdivision, the court shall, within
15 days, furnish to the defendant a statement of his or her rights,
remedies, and duties in regard to the order. The statement shall
state all of the following:
   (A) That the lien is enforceable and collectible by execution
issued by order of the court, except that a lien shall not be
enforced by writ of execution on a defendant's principal place of
residence.
   (B) A legal description of the property to be encumbered.
   (C) The total amount of restitution still owed by the defendant.
   (D) That enforcement of the lien order may only be contested on
the ground of mistake of fact regarding the amount of restitution
owed  or on the ground of mistake of fact regarding the defendant'
s ownership interest of the property to be   encumbered
 .
   (E) That a hearing is available in accordance with paragraph (2).
   (F) That, upon paying the restitution order in full, the defendant
may petition the court for a full release of any related encumbrance
in accordance with paragraph (3).
   (2) The defendant, within 15 days after being informed that a lien
or other similar encumbrance on real property has been ordered, may
apply for a hearing to contest the enforcement order on the ground of
mistake of fact regarding the amount of restitution owed  , on
the ground of mistake of   fact regarding the defendant's
ownership interest of the property to be encumbered,  or on the
ground that the defendant has established good cause for the
nonpayment. The timely request for a hearing shall stay any execution
on the lien until a hearing is held and a determination is made as
to whether the enforcement order is proper.
   (3) Upon payment of the restitution order in full, the defendant
may petition the court to issue an order directing the clerk of the
court to execute a full reconveyance of title, a certificate of
discharge, or a full release of any lien against real property
created to secure performance of the restitution order. 
   (4) Neither a prosecutorial agency nor a prosecuting attorney
shall be liable for an injury caused by an act or omission in
exercising the authority granted by this subdivision. 
   (h) If there is no agency in the county responsible for the
collection of restitution, the county probation office or the
prosecuting attorney may carry out the functions and duties of such
an agency as specified in subdivisions (b) and (f). 
   (i) A prosecuting attorney shall not make any collection against,
or take any percentage of, the defendant's income or assets to
reimburse the prosecuting attorney for administrative costs in
carrying out any action authorized by this section.  
   (i) 
    (j)  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.