BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1847 (Furutani) 7
As Amended May 11, 2010
Hearing date: June 29, 2010
Penal Code
JM:mc
RESTITUTION ORDERS
HISTORY
Source: Los Angeles City Attorney
Prior Legislation: AB 2928 (Spitzer) - Ch. 752, Stats. 2008
SB 1685 (Kopp) - Ch. 629, Stats. 1996
Support: Association for Los Angeles Deputy Sheriffs; Los
Angeles County Probation
Officers Union; Riverside Sheriffs' Association; Crime Victims
United of
California; Los Angeles County District Attorney; AFSCME,
AFL-CIO
Opposition:California Public Defenders Association; California
Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 74 - Noes 1
KEY ISSUES
SHOULD A PROSECUTOR, SUBJECT TO COURT APPROVAL, HAVE AUTHORITY TO
USE LIEN PROCEDURES, INCLUDING REAL PROPERTY LIENS, TO ENFORCE
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RESTITUTION ORDERS?
SHOULD THE DISTRICT ATTORNEY OR PROBATION OFFICE HAVE AUTHORITY TO
ACT AS THE AGENCY RESPONSIBLE FOR COLLECTING RESTITUTION FROM
CRIMINAL DEFENDANTS WHERE NO OTHER AGENCY IN THE COUNTY HAS THAT
DUTY?
PURPOSE
The purposes of this bill are to 1) grant authority to a
prosecutor, upon court approval, to use lien procedures,
including real property liens, against a defendant to enforce
restitution orders, as specified; and 2) provide that where
there is no county agency responsible for collecting
restitution, the district attorney or probation office may carry
out those duties.
Existing provisions in the California Constitution state that
all persons who suffer losses as a result of criminal activity
shall have the right to restitution from the perpetrators of
these crimes. Restitution shall be ordered in every case unless
compelling and extraordinary reasons exist to the contrary. The
Legislature shall adopt provisions to implement this section
during the calendar year following adoption of this section.
(Ca. Const. Art. 1 28(b).)
Existing law states legislative intent that a victim of crime
who incurs any economic loss as a result of the commission of a
crime shall receive restitution directly from any defendant
convicted of that crime. (Pen. Code 1202.4, subd. (a)(1).)
Existing law directs the court to order a defendant to make
restitution to the victim or victims of the defendant's crime.
The court shall order full restitution for the losses caused by
the defendant's crime unless the court finds and states
compelling and extraordinary reasons for not doing so. (Pen.
Code 1202.4, subd. (f).)
Existing law provides that a criminal restitution order shall be
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enforceable as though it were a civil judgment. (Pen. Code
1202.4, subd. (i).)
Existing law provides 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. (Pen. Code
1202.42, subd. (a).)
Existing law 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 cause
for the failure. (Pen. Code 1202.42, subd. (b)(1).)
Existing law 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 cause 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. (Pen. Code 1202.42, subd. (b)(2).)
Existing law 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. (Pen. Code 1202.42, subd. (c)(2).)
Existing law specifies that the income deduction order shall be
effective as long as the order for restitution upon which it is
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based is effective or until further order of the court. (Pen.
Code 1202.42, subd. (d).)
Existing law 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:
All fees or interest that will be imposed;
The total amount of income to be deducted for each pay period;
That the income deduction order applies to current and
subsequent payers and periods of employment;
That a copy of the income deduction order will be served on
the defendant's payer or payers;
That enforcement of the income deduction order may only be
contested on the ground of mistake of fact regarding the
amount of restitution owed;
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
That the court order will be stayed and that a hearing is
available. (Pen. Code 1202.42, subd. (e).)
Existing law defines "good cause" for a defendant's failure to
meet an obligation or nonpayment as including the following:
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.
The defendant reasonably believes there has been an
administrative error with regard to his or her obligation for
payment.
Any other similar and justifiable reasons.
This bill provides for the following procedures for imposition
of an income deduction order against a defendant:
Upon receiving notice that the defendant has failed to comply
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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.
Service of the order shall be made in compliance and in the
manner prescribed for service upon parties in a civil action.
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 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. (Pen. Code 1202.42,
subd. (f).)
This bill provides that a court may, upon the request of the
prosecuting attorney, order that the prosecuting attorney be
given authority to use lien procedures against a defendant,
including, but not limited to, a writ of attachment of property.
This bill 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
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federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house . .
. (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
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existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Current law establishes a process for income deduction
for collection of restitution. The court must enter
an order for income deduction at the same time
----------------------
<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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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
established by the court to meet the restitution
obligation. (Pen. Code 1202.42)
Under the existing process established by Section
1202.42, a county agency determines whether the
defendant has failed to meet the restitution
obligations. The agency is responsible for informing
the court of the intention to lift the hold on the
order for income deduction. Section 1202.42 refers to
"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.
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 with no agency designated to handle
restitution, a prosecutor could determine that
restitution obligations are not being met and could
initiate income deduction. AB 1847 would also allow
prosecutors to pursue lien procedures against a
defendant to help the victim collect court ordered
restitution in the event that the defendant does not
have a regular paycheck subject to wage garnishment.
AB 1847 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.
Assembly Bill 1847 helps to ensure that victims
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receive the restitution ordered by the court. It
prevents defendants from avoiding restitution
obligations because of a disconnect in the process for
income deduction.
2. 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 include 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 failed to meet his or her
obligations. At the time the order is issued, the defendant is
informed of his or her rights as they pertain to the potential
enforcement of the income deduction order.
When a defendant fails to 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 provide "good cause" for failure to pay.
The defendant is entitled to a hearing before a magistrate to
determine whether the agency may garnish his or her wages. The
hearing turns on whether or not the defendant can establish
"good cause" for non-payment. Although the statute does not
specifically assign the burden of proof or persuasion in the
hearing, it appears that the defendant has the burden of
establishing good cause. The statute directs the magistrate to
consider whether or not there has been a substantial change in
the defendant's economic circumstances since the order was
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issued, 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. (Pen. Code 1202.42, subd.
(g).)
3. Role of Prosecutor is to Represent the People and Seek Justice
Prosecutors are public officials who have a duty to seek
justice. (Berger v. United States (1935) 295 U.S. 78.)
Prosecutors represent the People; they do not represent
individual victims. (Haraguchi v. Superior Court (2008) 43
Cal.4th 706.)
While prosecutors have duty to seek justice, they are advocates
in an adversarial system. The parties to a criminal action are
the prosecutor, representing the People of the State of
California, and the defendant. (Dix v. Superior Court (1991) 53
Cal.3d 442, 451-452.) Courts recognize that a prosecutor may
have a motivation to seek increased punishment of a defendant
once the original judgment is imposed. Courts thus enforce
rules and principles to prevent prosecutor's from pursuing such
acts improperly. (In re Bower (1985) 38 Cal.3d 865, 874-879 - a
prosecutor cannot increase charges following a defendant's
successful appeal.) Arguably, this bill could give prosecutors
the ability to essentially punish defendants after the court
imposed judgment. It may be difficult for a prosecutor to
maintain objectivity in determining whether a defendant -- the
prosecutor's adversary in the underlying litigation -- has
willfully failed to pay restitution.
The defendant must request a hearing to contest a determination
by the agency tasked with collecting restitution that he or she
has willfully failed to pay restitution. It appears that in the
hearing the defendant has the burden of establishing that good
cause exists for non-payment. It can thus be argued that this
bill allows one party in an adversarial proceeding (the
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prosecutor) to establish a presumption that the other party (the
defendant) has willfully failed to comply with court orders.
The basic function of the prosecutor is to bring charges against
a defendant, to prove those charges and argue for the sentence
the prosecutor believes is appropriate. Judgment, sentencing
and punishment are core judicial functions. The court imposes
the sentences, including setting the terms of probation,
restitution and other matters. (People v. Tenorio (1970) 3
Cal.3d 89 - functions of court and prosecutor generally,
dismissal or charges specifically.) Having prosecutors monitor
and supervise a defendant's payment of restitution could violate
the separation of powers between the judicial and executive
branches of government. Further, the prosecutor may have
strongly objected to the court's sentence and be motivated to
take action against a defendant in regards to sentencing
obligations.
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4. Argument in Support
Crime Victims United of California argues in support of AB 1847:
AB 1847 would provide that if there is no agency in
the county responsible for the collection of
restitution, the county probation office or
prosecuting attorney may carry out the functions and
duties of such an agency as to income deduction
orders. Additionally, if the defendant fails to meet
obligations under the restitution order and has not
provided good cause for failure, the court would be
authorized to order the prosecuting attorney to be
given authority to use lien procedures to include a
writ of attachment of property.
Crime victims may be unfamiliar with the legal process
and may not realize that they must use their own means
to collect the civil judgment that is owed to them.
Often times, victims will not have the resources to
pursue a civil action, and the restitution order may
go unpaid. Prosecutors should have the ability, when
appropriate, to directly advocate for methods to
ensure a victim receives the restitution ordered by
the court. This should include access to tools such
as wage garnishment and writs of attachment.
5. Argument in Opposition
The California Public Defenders Association argues in opposition
to AB 1847:
AB 1847 would provide that where a defendant has
failed to comply with a restitution order, the court
may authorize the prosecutor to use lien procedures
applicable to the defendant, including but not limited
to, a writ of attachment of property. The bill also
provides that if there is no agency in the county
responsible for the collection of restitution, the
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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 collection of restitution. The only other
statutory provision concerning prosecuting agencies
and restitution-collection is Penal Code 1202.4,
subdivision (h), added effective 1997. (SB 1685
(Kopp) Ch. 629, Stats. 2006.) That provision does not
go as far as AB 1847. This existing provision only
permits the district attorney to "... request an order
of examination ... to determine the defendant's
financial assets for ... collecting on a restitution
order."
We are deeply concerned that [this bill] may [give a
prosecutor] 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.
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, without benefit of
counsel, to be subjected to more serious charges than
the original prosecution.
Further, nothing in this measure requires defense
counsel to be apprised of any communication with
defendants by prosecutors, nor does it require that
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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 with, and this information
may be gathered from, defendants who are on active
probation. Yet these contacts occur where 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 that the bill requires that a
defendant be informed of his 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.
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