BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   AB 364|
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                                 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 
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          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))







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          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."







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           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

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