BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1847|
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THIRD READING
Bill No: AB 1847
Author: Furutani (D)
Amended: 5/11/10 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 4-1, 6/29/10
AYES: Cedillo, Huff, Steinberg, Wright
NOES: Leno
NO VOTE RECORDED: Cogdill, Hancock
ASSEMBLY FLOOR : 74-1, 5/13/10 - See last page for vote
SUBJECT : Restitution orders
SOURCE : Los Angeles City Attorney
DIGEST : This bill (1) grants 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) provides that where there is
no county agency responsible for collecting restitution,
the district attorney or probation office may carry out
those duties.
ANALYSIS : 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.
CONTINUED
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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 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
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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 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:
1. All fees or interest that will be imposed.
2. The total amount of income to be deducted for each pay
period.
3. That the income deduction order applies to current and
subsequent payers and periods of employment.
4. That a copy of the income deduction order will be served
on the defendant's payer or payers.
5. That enforcement of the income deduction order may only
be contested on the ground of mistake of fact regarding
the amount of restitution owed.
6. 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
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her payers. And
7. 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:
1. 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.
2. The defendant reasonably believes there has been an
administrative error with regard to his or her
obligation for payment.
3. Any other similar and justifiable reasons.
This bill provides for the following procedures for
imposition of an income deduction order against a
defendant:
1. 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.
2. Service of the order shall be made in compliance and in
the manner prescribed for service upon parties in a
civil action.
3. 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
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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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/1/10)
Los Angeles City Attorney (source)
American Federation of State County and Municipal Employee,
AFL-CIO
Association for Los Angeles Deputy Sheriffs
Crime Victims United of California.
Los Angeles County District Attorney
Los Angeles County Probation Officers Union
Riverside Sheriffs' Association
OPPOSITION : (Verified 7/1/10)
California Public Defenders Association
California Attorneys for Criminal Justice
ARGUMENTS IN SUPPORT : Crime Victims United of California
argues in support of this bill and states, "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
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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."
ARGUMENTS IN OPPOSITION : The California Public Defenders
Association argues in opposition to this bill and writes,
"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 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
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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."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Bass, Beall,
Bill Berryhill, Blakeslee, Block, Blumenfield, Bradford,
Brownley, Buchanan, Charles Calderon, Carter, Chesbro,
Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore,
Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuller,
Furutani, Gaines, Galgiani, Garrick, Gilmore, Hall,
Harkey, Hayashi, Hernandez, Hill, Huber, Huffman,
Jeffries, Jones, Knight, Lieu, Logue, Bonnie Lowenthal,
Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello,
Nielsen, Norby, V. Manuel Perez, Portantino, Ruskin,
Salas, Saldana, Silva, Smyth, Solorio, Audra Strickland,
Swanson, Torlakson, Torres, Torrico, Tran, Villines,
Yamada, John A. Perez
NOES: Fuentes
NO VOTE RECORDED: Tom Berryhill, Caballero, Hagman,
Skinner, Vacancy
RJG:do 7/2/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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