BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1847| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 1847 Author: Furutani (D) Amended: 8/11/10 in Senate 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. Senate Floor Amendments of 8/11/10 (1) provide that a real property lien can be contested on the ground that the defendant does not own the encumbered property, (2) provide that a prosecutorial agency or prosecutor "shall not be liable for any injury" caused by a prosecutor's collection of restitution, (3) prohibits the prosecutor from seeking CONTINUED AB 1847 Page 2 or collecting reimbursement for the costs incurred by the prosecutor in collecting restitution. 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. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section. (Ca. Const. Art. 1 Section 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. (Penal Code Section 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. (Penal Code Section 1202.4, subd. (f).) Existing law provides that a criminal restitution order shall be enforceable as though it were a civil judgment. (Penal Code Section 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. (Penal Code Section 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 AB 1847 Page 3 provided the agency with good cause for the failure. (Penal Code Section 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. (Penal Code Section 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. (Penal Code Section 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. (Penal Code Section 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. AB 1847 Page 4 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 her payers. And 7. That the court order will be stayed and that a hearing is available. (Penal Code Section 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 AB 1847 Page 5 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 payers of the defendant until a hearing is held and a determination is made as to whether the enforcement of the income deduction order is proper. (Penal Code Section 1202.42, 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. This bill provides this bill neither a prosecutorial agency nor a prosecuting attorney shall be liable for an injury caused by an act or omission in exercising the authority granted by this bill, and (2) a prosecuting attorney shall not make any collection against, or take any percentage of, the defendant's income or assets to reimburse the prosecuting attorney for administrative costs in carrying out any action authorized by this bill. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 8/12/10) Los Angeles City Attorney (source) American Federation of State County and Municipal Employee, AFL-CIO AB 1847 Page 6 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 8/12/10) 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 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 AB 1847 Page 7 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." 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 8/12/10 Senate Floor Analyses AB 1847 Page 8 SUPPORT/OPPOSITION: SEE ABOVE **** END ****