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  








                                                                  AB 1847
                                                                  Page  2

          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  








                                                                  AB 1847
                                                                  Page  3

            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  








                                                                  AB 1847
                                                                  Page  4

            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."  








                                                                  AB 1847
                                                                  Page  5

               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  








                                                                  AB 1847
                                                                  Page  6

          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,  








                                                                  AB 1847
                                                                  Page  7

          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  








                                                                 AB 1847
                                                                  Page  8

          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)








                                                                  AB 1847
                                                                  Page  9

          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