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