BILL ANALYSIS
AB 1847
Page 1
Date of Hearing: April 13, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1847 (Furutani) - As Introduced: February 12, 2010
As Proposed to Be Amended
SUBJECT : CRIMINAL RESTITUTION ORDERS
KEY ISSUE : SHOULD PROSECUTING ATTORNEYS BE ALLOWED A GREATER
ROLE IN THE ENFORCEMENT OF RESTITUTION ORDERS, INCLUDING
CONDITIONAL AUTHORITY TO SERVE AN ORDER FOR INCOME DEDUCTION AND
TO REQUEST THE COURT'S PERMISSION TO OBTAIN A WRIT OF ATTACHMENT
ON A DEFENDANT'S PROPERTY?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
As proposed to be amended, this bill seeks to increase the
options available to a prosecutor to collect the full amount of
court-ordered restitution. The author has wisely proposed to
amend the bill to revise the existing restitution process
specified by Penal Code Section 1202.42, rather than create
parallel authority to enforce restitution in a related code
section for a subset of crimes. First, in counties where there
is no official agency responsible for collection of restitution,
the author's amendment would help streamline the restitution
process by authorizing the prosecuting attorney to carry out
specified functions and duties of the non-existent agency
relating to enforcement of an income deduction order when the
defendant has failed to meet an obligation to pay restitution.
In other words, this amendment simply allows the prosecuting
attorney to carry out the duties that, but for its absence, the
county agency would have been required to carry out in
facilitating collection of restitution from a defendant against
whom the court has already entered an income deduction order for
failure to pay. The author's second amendment would allow the
court, upon request of the prosecuting attorney, to 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 new
authority, if granted by the court, would make available one
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more tool for collecting restitution from a defendant. This
bill is sponsored by the Los Angeles City Attorney and supported
by sheriffs, peace officers, and crime victims. The California
Public Defenders Association has expressed opposition to the
-introduced version of the bill, primarily on the basis that it
would have granted prosecutors unprecedented statutory authority
to actively enforce restitution against a defendant when, the
public defenders felt, existing collection measures sufficiently
empower crime victims to enforce orders of restitution on their
own behalf. It is not known if the bill as now proposed to be
amended has removed the Public Defenders' opposition to the
measure.
SUMMARY : Seeks to increase the power of a prosecutor to collect
the full amount of court-ordered restitution from the defendant.
Specifically, this bill provides that for a restitution order
entered in any case the following shall apply:
1)The court may, upon 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.
2)If there is no agency in the county responsible for collection
of restitution, the prosecuting attorney may carry out the
functions and duties of the agency specified in subdivisions
(b) and (f) of Penal Code Section 1202.42, generally relating
to enforcement of an income deduction order when the defendant
has failed to meet prior obligations to pay restitution.
EXISTING LAW :
1)Provides that it is the unequivocal intention of the People of
the State of California that all persons who suffer losses as
a result of criminal activity shall have the right to
restitution from the persons convicted of the crimes for
losses victims suffer. (California Constitution, Article I,
Section 28(b).)
2)Provides that in every case in which a victim has suffered
economic loss as a result of the defendant's conduct, the
court shall require that the defendant make restitution to the
victim or victims in an amount established by court order,
based on the amount of loss claimed by the victim or victims
or any other showing to the court. Further requires the court
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to order full restitution unless it finds compelling and
extraordinary reasons for not doing so, and states them on the
record. (Penal Code Section 1202.4(f). All further statutory
references are to this code unless otherwise noted.)
3)Provides that in any case in which a defendant is ordered to
pay restitution, the order to pay restitution:
(a) 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
(b) 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. (Penal Code Section 1214.)
4)Provides that upon entry of a restitution order, the court
shall enter a separate order for income deduction upon
determination of the defendant's ability to pay, regardless of
probation status. Further provides that determination of a
defendant's ability to pay may include his or her future
earning capacity, and that the defendant shall bear the burden
of demonstrating lack of his or her ability to pay. (Penal
Code Section 1202.42(a).)
5)Provides that in any case in which the court enters a separate
order for income deduction, 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, as specified. (Penal Code Section 1202.42(b)(1).)
6)Provides that if the county 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.
Further provides that 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
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inform the defendant of that fact, and shall inform the clerk
of the court in order that an income deduction order will be
served following a 15-day appeal period. Permits the defendant
to apply for a hearing to contest the lifting of the stay, as
provided. (Penal Code Section 1202.42(b)(2).)
7)Provides that, upon receiving notice that a defendant has not
provided evidence of timely payment or established good cause
for failure to pay restitution, the clerk of the court or
officer of the county 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. (Penal Code Section 1202.42(f)(1).)
8)Provides that the timely request for a hearing by the
defendant to contest enforcement of the income deduction order
shall stay the service of the 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. (Penal Code Section
1202.42(f)(3).)
COMMENTS : This bill, sponsored by the Los Angeles City
Attorney, seeks to increase the power of a prosecutor to collect
the full amount of court-ordered restitution from defendants.
First, the bill permits the prosecutor to request the criminal
court for authority to use lien procedures applicable to the
defendant, including a writ of attachment of property. Second,
the bill streamlines the restitution process by allowing the
prosecuting attorney, when there is no agency in the county
responsible for collection of restitution, to instead carry out
the statutory duties and functions of that agency to enforce an
income deduction order against a defendant who has failed to
meet a prior obligation to pay restitution.
In support of this bill, the author writes:
Current law allows for the sentencing judge in a
criminal case involving injury or economic loss to a
victim to order restitution . . . (and) establishes a
process for income deduction in order to collect
restitution. Under the existing process established
by Penal Code 1202.42, "the agency in the county
responsible for the collection of restitution."
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determines whether the defendant has failed to meet
the restitution obligations. The agency is also made
responsible for informing the court of the intention
to lift the (initial mandatory) hold on the order for
income deduction. However, in some jurisdictions, no
such agency exists or it is not entirely clear what
agency bears this responsibility.
AB 1847 strengthens existing law by allowing
prosecuting attorneys to carry out the functions of
the county agency in the income deduction process.
For counties that have no designated agency to handle
restitution, prosecutors would be able to make the
determination that restitution obligations are not
being met and would be able to initiate income
deduction.
Background on Criminal Restitution. When a victim of crime
suffers a loss, the court shall enter an order against the
offender to pay restitution for that loss. (Section 1202.4(f).)
A victim's right to a criminal restitution order stems from
Article I, section 28(b) of the California Constitution, which
states:
"All persons who suffer losses as a result of criminal
activity shall have the right to restitution from the
persons convicted of the crimes for losses they
suffer. Restitution shall be ordered from the
convicted persons in every case, regardless of the
sentence or disposition imposed, in which a crime
victim suffers a loss, unless compelling and
extraordinary reasons exist to the contrary . . ."
Restitution orders are to be imposed in the full amount of a
victim's economic loss, unless a judge finds compelling and
extraordinary reasons that the offender should not be ordered to
pay. (Section 1202.4(f).) If the amount of a victim's loss is
not known at the time of the offender's sentencing, the court is
required to impose a restitution order in an amount to be
determined (a "TBD order") at a later time. An offender has the
right to a hearing to dispute the amount of restitution ordered
by the judge.
In any case where a defendant is ordered to pay restitution, the
order is deemed a money judgment if the defendant was informed
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of his/her right to judicial determination of the amount was
provided with a hearing, waived a hearing, or stipulated to the
amount of the restitution order. (Section 1214(b).) The order
is fully enforceable by a victim as if it were a civil judgment
and enforceable in the same manner as is provided for the
enforcement of any other money judgment. (Section 1214(a) and
(b).)
The restitution statute also provides that 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, information regarding the
defendant's assets, use of wage garnishment, and lien
procedures. (Section 1214(b).)
Income Deduction Ordered Upon Entry of Restitution Order.
Current law, Penal Code Section 1202.42, establishes a process
for entry of a separate "income deduction order," equivalent to
wage garnishment, to facilitate the collection of restitution
from a defendant. The court is required to enter the order for
income deduction at the same time restitution is ordered. The
order for income deduction is initially stayed to give the
defendant an opportunity to make the restitution payments on his
or her own accord. If the agency in the county responsible for
collection of restitution determines that the defendant has
failed to meet obligations under the restitution order and has
not provided good cause for the failure to do so, then the stay
is lifted and income deduction is initiated. The defendant's
employer is instructed to automatically deduct regular payments
from the defendant's paychecks in the amount established by the
court to meet the restitution obligations. In the interest of
due process, the statute provides an opportunity for the
defendant to contest income deduction by applying for a hearing
to contest the lifting of the stay, and to contest enforcement
of the income deduction order in general. This process would
presumably need to be revised if attachment is to be added as an
option, as the author proposes. The proposed amendments do not
address this issue because the process takes place in a criminal
law proceeding within the jurisdiction of the Public Safety
Committee to which this bill is double-referred, rather than a
civil proceeding.
Penal Code Section 1202.42, the relevant statute that the author
now proposes to amend in this bill, was first enacted into law
in 1990 as former Gov. Code Section 13967.2. (AB 1893, Ch. 45,
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Stats. 1990.) Although the statute has been in effect for many
years, it is unclear to what extent the statute is fully being
utilized by counties. In Los Angeles County, according to the
author, there is no "agency in the county responsible for
collection of restitution" as specified by Section 1202.42. In
this situation, collection of restitution becomes problematic
because the law states that the income deduction order "shall be
stayed until the agency . . . determines that the defendant has
failed to meet his or her obligation under the restitution
order." (Section 1202.42(b)(1).) Furthermore, the agency is
required to provide the defendant with an opportunity to provide
evidence indicating timely payments have been made or
establishing good cause for the failure. If the defendant
provides no such evidence, then it is the agency that ultimately
informs the court that an income deduction order shall be served
upon the defendant. (Section 1202.42(b)(2).)
Author's Amendments. The author has now prudently proposed to
amend the bill as reflected in the attached mock-up to revise
and streamline the existing restitution process specified by
Section 1202.42, rather than create a parallel authority to
enforce restitution in a related code section.
The author's proposed amendments may not only strengthen the
existing restitution process, they address a prior concern that
the bill, as introduced, may have created a situation where, at
the time the court initially ordered restitution, the judgment
of the prosecutor regarding whether or when to purse different
avenues of enforcement could be inappropriately substituted for
that of the victim herself, who is already given access to all
resources available under existing law to enforce the
restitution order on her own behalf. The Committee has
consistently rejected a number of prior bills proposing to allow
a third party to pursue an aggrieved person's rights in civil
proceedings, regardless of how well-intended the third party's
ostensible motives might be. The bill as proposed to be amended
no longer appears to raise this concern because it simply allows
the prosecuting attorney to carry out duties that, but for its
absence, the county agency would have been required to carry out
in facilitating collection of restitution from a defendant
against whom the court has already entered an income deduction
order for previous failure to pay, and adds attachment as a
corollary of garnishment.
This Bill Does Not Affect Sentencing Provisions or Require
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Restitution When the Defendant Has No Ability to Pay. In
support of this bill, the author contends that this bill does
not affect other important areas of current restitution law.
First, the author states that this bill would not impact cases
where the defendant has no ability to pay. In those cases, the
court will determine the restitution amount and make a finding
that the defendant does not have the ability to pay. The author
also contends that this bill does not affect current sentencing
provisions for those convicted of a crime, nor does it change
laws that determine a crime. The author correctly points out
that the income deduction process begins only after the
defendant has been convicted and only if restitution is ordered
by the court. The Committee finds no evidence to contradict
these two contentions.
ARGUMENTS IN OPPOSITION : The California Public Defenders
Association is opposed to the introduced version of the bill.
The Public Defenders' letter stated:
AB 1847 would be the first time that prosecuting
agencies are statutorily permitted to take such an
active role in restitution-collection. Existing
collection methods are hardly insufficient in that
they include (1) income deduction orders; (2)
requirements that the defendant provide a statement of
assets; (3) collection through the probation
department or another agency when probation is
granted; and (4) for all convicted criminals, all of
the methods of enforcing a money judgment provided in
the Code of Civil Procedure. Further, we contend that
expanding the role of the prosecuting agency into
active restitution may cost counties money to train
and (pay) wages to prosecutors to undertake this task.
It is not known if the bill as now proposed to be amended has
removed the Public Defenders' opposition to the measure.
REGISTERED SUPPORT / OPPOSITION :
Support (for the bill as introduced)
Los Angeles City Attorney's Office (sponsor)
Association for Los Angeles Deputy Sheriffs
Crime Victims United of California
Los Angeles Probation Officers Union (AFSCME Local 685)
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Los Angeles Police Protective League
Peace Officers Research Association of California (PORAC)
Riverside Sheriffs' Association
Opposition (to the bill as introduced)
California Public Defenders Association
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334