BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1847
                                                                  Page  1

          Date of Hearing:   May 4, 2010
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   AB 1847 (Furutani) - As Amended:  April 15, 2010
                       As Proposed to be Amended in Committee
           

          SUMMARY  :  Authorizes a court to grant a prosecutor the authority  
          to utilize lien procedures against a defendant.  Specifically,  
           this bill  :  

          1)States a 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.  The process of applying a lien is limited by  
            notification and a hearing process.  

          2)Authorizes a prosecuting attorney or a county probation  
            office, if there is no agency in the county responsible for  
            the collection of restitution, to carry out the functions and  
            duties of such an agency specified for collection of  
            restitution.

           EXISTING LAW  :


          1)States that upon entry of a restitution order the court shall  
            enter a separate "order for income deduction" upon a  
            determination of the defendant's ability to pay.  The  
            determination of the ability to pay may include the  
            defendant's future earning capacity.  The defendant has the  
            burden of demonstrating his or her lack of ability to pay.   
            [Penal Code Section 1202.42(a).]


          2)Specifies that the "order for income deduction" 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  








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            cause for the failure.  [Penal Code Section 1202.42(b)(1).]  


          3)States that when the agency responsible for the collection of  
            restitution receives information that the defendant has failed  
            to meet his or her obligation under the restitution order, the  
            agency shall request that the defendant 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 case within five days of the  
            request, the agency shall immediately inform the defendant of  
            that fact, and inform the clerk of the court in order that an  
            income deduction order will be served following a 15-day  
            appeal period.  The defendant may apply for a hearing to  
            contest the lifting of the stay.  [Penal Code Section  
            1202.42(b)(2).]  


          4)Specifies that income deduction orders 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.   [Penal Code Section 1202.42(c)(2).]   


          5)Specifies that 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.  [Penal Code  
            Section 1202.42(d).]  


          6)States 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 [Penal  
            Code Section 1202.42(e)]:


             a)   All fees or interest that will be imposed;


             b)   The total amount of income to be deducted for each pay  
               period;










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             c)   That the income deduction order applies to current and  
               subsequent payers and periods of employment;


             d)   That a copy of the income deduction order will be served  
               on the defendant's payer or payers;


             e)   That enforcement of the income deduction order may only  
               be contested on the ground of mistake of fact regarding the  
               amount of restitution owed;


             f)   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; and,


             g)   That the court order will be stayed and that a hearing  
               is available.


          7)Provides for the following procedures for imposition of an  
            income deduction order against a defendant [Penal Code Section  
            1202.42(f)]:


             a)   Upon receiving notice that the defendant has failed to  
               comply with the payment of restitution the clerk of the  
               court or officer of the agency responsible for collection  
               of restitution shall serve an income deduction order and  
               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.  


             b)   Service of the order shall be made in compliance and in  
               the manner prescribed for service upon parties in a civil  
               action.  


             c)   The defendant 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 the restitution  








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               owed or on the ground that the defendant has established  
               good cause for nonpayment.  The timely request for a  
               hearing (within 15 days of notice) 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.  


          8)Defines "good cause" for failure to meet an obligation or  
            "good cause" for nonpayment as, but not limited to, the  
            following:  


             a)   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.


             b)   That the defendant reasonably believes there has been an  
               administrative error with regard to his or her obligation  
               for payment.


             c)   Any other similar and justifiable reasons.


          9)Mandates fines, state or local penalties, forfeitures,  
            restitution fines, restitution orders, or any other amounts  
            imposed by a superior court of the State of California upon a  
            person or any other entity that are due and payable in an  
            amount totaling no less than $100, in the aggregate, for  
            criminal offenses, including all offenses involving a  
            violation of the Vehicle Code, may, no sooner than 90 days  
            after payment of that amount becomes delinquent, be referred  
            by the superior court, the county, or the state to the  
            Franchise Tax Board (FTB) for collection under guidelines  
            prescribed by the FTB.  [Revenue and Taxation Code Section  
            19280(a)(1).] 

          10)Provides that the amounts referred by the superior court, the  
            county, or state under this section may include any amounts  
            that a government entity may add to the court-imposed  








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            obligation as a result of the underlying offense, trial, or  
            conviction.  For purposes of this article, those amounts shall  
            be deemed to be imposed by the court.  [Revenue and Taxation  
            Code Section 19280(a)(2)(A).]

          11)Necessitates that restitution orders may be referred to the  
            FTB only by a government entity, as agreed upon by the FTB,  
            provided that all of the following apply:

             a)   The government entity has the authority to collect on  
               behalf of the state or the victim;

             b)   The government entity shall be responsible for  
               distributing the restitution order collections, as  
               appropriate;

             c)   The government entity shall ensure, in making the  
               referrals and distributions, that it coordinates with any  
               other related collection activities that may occur by  
               superior courts, counties, or other state agencies; and,

             d)   The government entity shall ensure compliance with laws  
               relating to the reimbursement of the State Restitution  
               Fund.  [Revenue and Taxation Code Section 19280(a)(2)(B).]

          12)Requests that the FTB establish criteria for referral, which  
            shall include setting forth a minimum dollar amount subject to  
            referral and collection.  [Revenue and Taxation Code Section  
            19280(a)(2)(C).]

          13)States that the FTB, in conjunction with the Judicial  
            Council, shall seek whatever additional resources are needed  
            to accept referrals from all 58 counties or superior courts.   
            [Revenue and Taxation Code Section 19280(b).]

          14)Provides that written notice to the debtor from the FTB, any  
            amount referred to the FTB and any interest thereon, including  
            any interest on the amount referred that accrued prior to the  
            date of referral, shall be treated as final and due and  
            payable to the State of California, and shall be collected  
            from the debtor by the FTB in any manner authorized under the  
            law for collection of a delinquent personal income tax  
            liability, including, but not limited to, issuance of an order  
            and levy in the manner provided for earnings withholding  
            orders for taxes.  [Revenue and Taxation Code Section  








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            19280(c).]

           FISCAL EFFECT  :   None

           COMMENTS  :   

           1)Author's Statement  :  "Criminal activity involving a victim can  
            leave the victim emotionally and financially devastated.   
            Injuries sustained can burden a victim and his or her family  
            with mounting medical bills, especially if the injury prevents  
            the victim from working.  Resulting medical costs often make  
            it difficult for the victim to make necessary payments for  
            both food and shelter.

          "In extreme circumstances, when the victim is killed, the family  
            could be financially unprepared to cover the costs of a  
            funeral.  A young child who dies may not have had life  
            insurance; or a mother or father may have been the primary  
            earner, leaving the surviving family to worry about their  
            financial future.

          "Current law allows for the sentencing judge in a criminal case  
            involving injury or economic loss to a victim to order  
            restitution.  Restitution can be ordered to reimburse the  
            victim for losses including but not limited to: stolen or  
            damaged property, medical expenses, mental health counseling,  
            and lost wages or profits due to injury or time spent as a  
            witness or in assisting prosecution.  

          "The ultimate aim of restitution is to make a victim whole  
            again.  AB 1847 helps to ensure that victims are not  
            victimized a second time by a defendant's failure to pay  
            restitution."

           2)Background  :  According to the background provided by the  
            author, "[c]urrent law establishes a process for income  
            deduction to occur in order to collect restitution.  The court  
            is required to enter an order for income deduction at the same  
            time that restitution is ordered.  The order for income  
            deduction initially is put on hold to give the defendant an  
            opportunity to make payments on his/her own.  If the defendant  
            fails to meet the obligations of the restitution order, the  
            hold 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  








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            established by the court to meet the restitution obligation.   
            (Penal Code Section 1202.42.)

          "Under the existing process established by Penal Code Section  
            1202.42, the income deduction process involves a county agency  
            that 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 hold on  
            the order for income deduction.  

          "Penal Code Section 1202.42 references 'the agency in the county  
            responsible for collection of restitution.'  However, in some  
            jurisdictions, no such agency exists or it's not entirely  
            clear what agency bears this responsibility.  

          "Assembly Bill 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.

          "Assembly Bill 1847 would not impact cases where the defendant  
            has no ability to pay (i.e., no discernible income, assets,  
            etc.).  In those cases, the court will determine the  
            restitution amount and make a finding that the defendant does  
            not have the ability to pay.

          "Also, Assembly Bill 1847 does not affect the current sentencing  
            provisions for those convicted of a crime nor does it change  
            the laws that determine the crime.  The income deduction  
            process begins only after the defendant has been convicted and  
            only if restitution is ordered by the court.

          "Assembly Bill 1847 helps to ensure that victims receive the  
            restitution ordered by the court.  It avoids the possibility  
            that defendants are allowed to skip out on their restitution  
            obligations because of a disconnect in the process for income  
            deduction."

           3)Restitution Generally  :  Restitution was originally intended to  
            rehabilitate defendants.  However, in California restitution  
            has been turned into a victim's right when a victim suffers a  
            loss as a result of criminal conduct to gain redress from the  








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            person convicted of the crime that caused the loss.     
           
           4)Income Deduction Orders for Restitution  :  Under current law,  
            courts may issue income deduction orders when a defendant is  
            ordered to pay restitution.  Income deduction orders may be  
            used to give notice to the defendant's employers or payers so  
            that the agency responsible for the collection of restitution  
            may garnish the wages of a defendant to pay restitution.   
            Income deduction orders specify a series of procedural  
            requirements to comply with due process.  

            Specifically, income deduction orders are issued at the time  
            the defendant is ordered to pay restitution; however, the  
            income deduction order is stayed until the defendant has been  
            found to be incompliant with the order to pay restitution.   
            Primarily, at the time the order is issued, the defendant is  
            provided information as to his or her rights as they pertain  
            to the potential enforcement of the income deduction order.   
            Once a defendant has failed to willfully pay restitution, the  
            agency responsible for collection of the restitution may seek  
            to enforce the income deduction order.  Notice is provided to  
            the defendant that the agency intends to enforce the income  
            deduction order and garnish the wages of the defendant.  The  
            defendant then has 15 days to object to the enforcement of the  
            order and challenge the "good cause" finding of the agency  
            that the defendant has failed to comply with the timely  
            payment of restitution.  If the defendant objects, he or she  
            is entitled to a hearing before a magistrate to determine  
            whether the agency may garnish his or her wages.  At issue at  
            the hearing is whether "good cause" for non-payment exists.   
            Specifically, the magistrate must look at whether 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.  Further, the  
            court may determine whether the defendant reasonably believes  
            there has been an administrative error with regard to his or  
            her obligation for payment.  The court may also look at any  
            other similar and justifiable reasons.  

            These procedural safeguards ensure due process to a defendant  
            prior to the enforcement of an income deduction order to pay  
            restitution.  

           5)The Amendments in Committee Make Sure Procedural Due Process  








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            is Afforded by this Legislation Prior to the Encumbrance of a  
            Defendant's Real Property  :  Unlike the procedural due process  
            requirements afforded defendants prior to the garnishments of  
            their wages, this bill as originally drafted failed to protect  
            the right of the defendant to a hearing prior to the use of a  
            lien or writ of attachment upon his or her real property.  All  
            American citizens are afforded procedural due process of law  
            under the 14th Amendment to the U.S. Constitution.  The  
            government may not deprive or encumber a citizen's "life,  
            liberty, or property" without first affording the citizen with  
            the right to freely and fairly object to the encumbrance.  The  
            most recent version of this bill failed to grant citizens any  
            due process rights prior to granting a prosecutor with the  
            right to issue a lien on real property.  However, as amended,  
            this bill now applies virtually the same procedural safeguards  
            afforded defendants who suffer wage garnishments as a result  
            of failure to pay restitution:  
           
              a)   A finding that the defendant failed to willfully pay  
               restitution on his or her own accord.  The defendant can be  
               completely current on payments (or ahead of schedule on  
               payments) and a prosecutor may utilize lien procedures or a  
               writ of attachment upon his or her real property.  

             b)   Notice of the intent to utilize a lien or a writ of  
               attachment upon the defendant's real property.  

             c)   An opportunity to object to the use of a lien or a writ  
               of attachment.  

             d)   A finding by a court that the defendant has failed to  
               show "good cause" as to non-payment of restitution.     
              
            The right of citizens to unencumbered real property is one of  
            the most fundamental property rights afforded by the system of  
            property laws.  The very idea that fewer protections should be  
            afforded to a defendant's homestead than are given to a  
            defendant's paycheck is counter intuitive and contrary to  
            basic constitutional principles.  The amendments to this bill  
            remedy this issue.     
             
           6)Specifically Granting Prosecutors the Right to Collect  
            Restitution  :  Under current law, no agency is specifically  
            designated for the collection of restitution.  Local  
            jurisdictions generally determine who is best equipped with  








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            the resources to collect restitution.  In general, counties  
            choose to have the county probation department collect  
            restitution.  County probation departments are generally  
            equipped with the resources and know how to track the  
            activities of defendants and probationers.  The vast majority  
            of individuals ordered to pay restitution are either placed on  
            probation or sentenced to time in custody (either county jail  
            or state prison).  Probation departments are generally  
            responsible for determining the ability of the defendants to  
            pay restitutions and fines and collect those fines.  
             
             The FTB collects restitution from inmates in state prison and  
            those released on parole.  According to an April 20, 2010  
            press release from the California Department of Corrections  
            and Rehabilitation (CDCR)  
            (), California leads the  
            world in collecting restitution orders on behalf of crime  
            victims.  CDCR has now partnered with the FTB to collect  
            restitution on behalf of victims.  According to the press  
            release, "California, already the clear national leader in  
            victim restitution, is making a historic enhancement to the  
            program. Until now, once adult offenders left CDCR  
            jurisdiction, victims were left to collect restitution on  
            their own.  Now FTB will use the same collection process for  
            adult offenders no longer under CDCR jurisdiction as they use  
            for citizens who have underpaid taxes."
             
             This bill specifically grants prosecuting attorneys the  
            ability to collect restitution if there is no other agency in  
            the county to collect restitution.  Given the way the vast  
            majority of California counties operate, county probation  
            offices should be the default agency for the collection of  
            restitution rather than local prosecutors.  Nothing has been  
            provided to indicate that there is an existing problem with  
            county probation offices collecting restitution and no  
            arguments have been provided to indicate that prosecutorial  
            resources should be utilized to collect restitution when  
            county probation offices and the FTB are generally given that  
            responsibility under the current system.   
             
           7)Argument in Support  :  According to the  City of Los Angeles  ,  
            [c]riminal activity involving a victim can leave a victim  
            emotionally and financially devastated.  Injuries sustained  
            can burden a victim and his or her family with mounting  








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            medical bills, especially if the injury keeps the victim from  
            being able to work.  Restitution can be awarded to alleviate  
            this burden, but should a defendant fail to make ordered  
            restitution payments, or probation expires prior to payment of  
                      the full restitution award, the victim's primary recourse is  
            to hire an attorney, proceed to civil court and seek a Writ of  
            Execution.  
             
             "Many crime victims are unaware of the legal process and do  
            not know that they must satisfy their own judgment.  Often  
            times, burdened by unexpected costs, victims will not have the  
            resources to pursue a civil action and the restitution order  
            may go unpaid.  The Legislature acknowledged this inherent  
            problem when it added Section 1202.42 to the Penal Code years  
            ago.  

            "AB 1847 would augment this existing process by authorizing  
            prosecutors, when appropriate in a particular case, to  
            directly advocate for the victim's restitution, using tools  
            such as wage garnishment and writs of attachment."

           8)Argument in Opposition:   According to the  California Public  
            Defenders Association  , "AB 1847 would provide that where a  
            defendant has failed to comply with a restitution order, 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. 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.
           
            "This would be the first time that prosecuting agencies are  
            statutorily permitted to take such an active role in  
            restitution-collection.  
           
            "The only other statutory provision concerning prosecuting  
            agencies and restitution-collection is Penal Code 1214,  
            subdivision (h), added effective 1997. That section does not  
            go as far as AB 1847 seeks to in that it only permits the  
            district attorney to "... request an order of examination ...  
            to determine the defendant's financial assets for ...  
            collecting on a restitution order."  
            








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            "We are deeply concerned that an unintended consequence of  
            allowing the prosecutor to use lien attachments while also  
            authorizing the prosecutor to stand in the shoes of a  
            collection agency is that the prosecutor may have an incentive  
            to inflate the actual figures of damage or injury.  Collection  
            agencies get paid a percentage of what is collected--the  
            higher the restitution amount, the higher the amount paid to  
            the collection agency.  Accordingly, a clear conflict of  
            interest arises where the prosecutor acts as both arbiter and  
            collector.   

            "Further, we are equally concerned regarding direct access to  
            both represented and unrepresented Defendants, particularly  
            those still on probation, by the prosecutor.  All forms  
            requiring signature for purposes of restitution determination  
            and collection will most likely be required to be signed under  
            penalty of perjury.  Failure to adequately understand such  
            forms may lead Defendants unassisted by counsel to be  
            subjected to more serious charges than those originally  
            prosecuted for.  Further, nothing in this measure requires  
            defense counsel to be apprised of any communication with  
            Defendants by prosecutors, nor does it require that Defense  
            counsel be advised of information requested of or collected  
            from Defendants, or of any forms to be signed by Defendants.   
            Accordingly, these communications may occur, and this  
            information may be gathered from Defendants who are on active  
            probation, where the Defendants have no guarantee of  
            consultation with or advisement by appointed counsel.  We  
            contend this is not only in violation of  a Defendant's 6th  
            Amendment right to counsel, and 5th Amendment right against  
            self incrimination, but also, that this may lead to Defendants  
            being subject to probation violations. While we appreciate the  
            author's amendments which propose to ensure that a defendant  
            is fully informed of his rights and that a defendant has a  
            right to a hearing in the event there is a mistake of fact or  
            good cause for failure to pay, such rights are afforded the  
            defendant after the prosecutor has been in contact with the  
            Defendant and has made determinations regarding restitution.

            "Further, existing collection measures are hardly insufficient  
            in that they include (1) income deduction orders under Penal  
            Code section 1202.42 (implemented by Judicial Council form  
            CR-118), (2) requirements that the defendant provide a  
            statement of assets under Penal Code section 1202.4,  
            subdivision (f) (implemented by Judicial Council form CR-115),  








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            (3) collection through the probation department or another  
            agency when probation is granted, and, (4) for all convicted  
            criminals including prisoners, generally, all of the methods  
            of enforcing a money judgment provided in the Code of Civil  
            Procedure, under existing Penal Code section 1214, subdivision  
            (a); see, generally, Witkin, California Procedure (5th Ed),  
            Ch. X, Enforcement of Judgment.
           
            "Further, we contend that expanding the role of the  
            prosecuting agency into active restitution-collection may cost  
            counties (and cities with prosecuting agencies) money, to  
            train prosecutors, and for the wages of prosecutors, to  
            undertake this task. Local governments will be loath to spend  
            money during these tight economic times for this unnecessary  
            expansion."

           9)Prior Legislation  :  AB 2928 (Spitzer), Chapter 752, Statutes  
            of 2008, allows the CDCR to refer restitution awards to the  
            FTB for collection.  

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Los Angeles City Attorney (Sponsor)
          American Federation of State, County, and Municipal 
            Employees, Local 685
          Association for Los Angeles Deputy Sheriffs
          Crime Victims United of California  
          Los Angeles County Probation Officers' Union 
          Los Angeles Police Protective League 
          Los Angeles Probation Officers Union 
          Mothers Against Drunk Drivers 
          Peace Officers Research Association of California 
          Riverside Sheriffs Association 

           Opposition 
           
          California Public Defenders Association 
           

          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916)  
          319-3744