BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 364| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 364 Author: Bonilla (D) Amended: As introduced Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 5-0, 6/7/11 AYES: Hancock, Anderson, Liu, Price, Steinberg NO VOTE RECORDED: Calderon, Harman SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : 73-0, 5/2/11 (Consent) - See last page for vote SUBJECT : Asset preservation in large-scale theft cases SOURCE : California District Attorneys Association DIGEST : This bill (1) allows the seizing and preservation of assets of a criminal defendant charged with a single large-scale financial crime, and (2) repeals a stand-alone restitution provision in the white collar crime law and to thereby ensure that constitutional and statutory mandatory restitution apply in such cases, as specified. ANALYSIS : Existing law (Penal Code Section 186.11) provides that where a defendant is convicted of two or more related felonies involving fraud or embezzlement, and the pattern of conduct involves the taking or loss of more than $100,000, the defendant shall be punished by an "aggravated CONTINUED AB 364 Page 2 white collar crime enhancement" of specified prison enhancement term. The following applies to such cases: The enhancement imposed only once in a criminal proceeding. A "pattern of related felony conduct" means engaging in at least two felonies that have the same or similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated and are not isolated events. "Two or more related felonies" are felonies committed against two or more separate victims or against the same victim on two or more occasions. If the crimes involved taking or loss of more than $500,000, the additional prison term shall be two, three, or five years. If the crimes involved taking or loss of between $100,000 and 500,000, the additional prison term shall be one or two years, as specified. (Penal Code Section 186.11, subd. (a)(1)-(3) and 12022.6, subd. (a)(1)-(2)) Existing law allows the prosecution in a case involving an aggravated white collar crime enhancement to obtain an order for the seizing and holding of the defendant's assets in order to prevent the defendant from hiding or dissipating the assets. (Penal Code Section 186.11, subd. (e)) Existing law provides that a person who claims an interest in the protected property may file a claim concerning his or her interest in seized property, as specified. (Penal Code Section 186.11, subd. (e)(6)) Existing law provides that the court shall order a defendant subject to punishment under the white collar crime provisions to make full restitution to victims. The court can order the defendant to remain on probation for up to 10 years in order to ensure payment of restitution. The provisions for protection of assets seized from defendants shall remain in effect through sentencing in order to satisfy fines and restitution orders. (Penal Code Section 186.11, subds. (d) and (i)(1)(A)-(B)) AB 364 Page 3 This bill provides for the preservation of assets and property by the court of any person charged with a single act of fraud or embezzlement if that conduct involves the taking or loss of $100,000 or more. This bill strikes a provision concerning restitution in white collar crime cases that requires proof or admissions of specified facts, while such findings or admissions are not required in other kinds of cases before the victim is entitled to restitution. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes SUPPORT : (Verified 6/27/11) California District Attorneys Association (source) American Federation of State, County and Municipal Employees California State Sheriffs' Association Crime Victims United of California ARGUMENTS IN SUPPORT : According to the author: "AB 364 allows the state to 'freeze and seize' on behalf of one victim, or as the result of one felony. This bill provides greater protection than the current law. It is not reasonable that a victim's assets should be insecure simply because they are the only victim or that the accused only committed one felony. One victim or twenty, this bill provides equal protection in the preservation of assets and property. Because of AB 364, victims of aggravated white collar crime will no longer watch their assets dissipate simply because they were the only victim. "AB 364 provides further protection and better access to just restitution for victims of white collar crimes involving fraud and embezzlement. By decreasing the requirements on the number of victims and felonies, this bill will increase the availability for victims - like middle class families and seniors - to recover their losses from fraud or embezzlement." AB 364 Page 4 ASSEMBLY FLOOR : 73-0, 5/2/11 (Consent) AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, Bill Berryhill, Block, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Campos, Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson, Donnelly, Eng, Feuer, Fletcher, Fong, Furutani, Garrick, Gatto, Gordon, Grove, Hagman, Halderman, Hall, Harkey, Hayashi, Hill, Huber, Hueso, Huffman, Jeffries, Jones, Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor, Miller, Mitchell, Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan, Perea, V. Manuel Pérez, Portantino, Silva, Skinner, Smyth, Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski, Williams, Yamada, John A. Pérez NO VOTE RECORDED: Charles Calderon, Fuentes, Galgiani, Gorell, Roger Hernández, Mendoza, Vacancy RJG:mw 6/28/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****