BILL ANALYSIS Ó
AB 2094
Page 1
Date of Hearing: April 10, 2012
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2094 (Butler) - As Introduced: February 23, 2012
SUMMARY : Eliminates judicial discretion to waive or to reduce
the domestic violence fund fee based on a defendant's ability to
pay. Specifically, this bill :
1)Prohibits the court from reducing or waiving the $400-minimum
domestic violence fund fee imposed on defendants granted
probation for a crime involving a victim of domestic violence
when the defendant does not have the ability to pay.
2)Makes technical, non-substantive changes.
EXISTING LAW :
1)Requires certain conditions be imposed when a person found
guilty of a domestic violence-related offense is granted
probation. İPenal Code Section 1203.097.]
2)Requires persons granted probation for a domestic
violence-related offense to make a minimum payment of $400.
If, after a hearing in court on the record, the court finds
that the defendant does not have the ability to pay, the court
may reduce or waive this fee. İPenal Code Section
1203.097(a)(5).]
3)Provides that two-thirds of the moneys collected from the
domestic violence probation fee shall be retained by the
counties and deposited in the Domestic Violence Programs
Special Fund, and the remainder is transferred to the State
Controller to be deposited in equal amounts in the Domestic
Violence Restraining Order Reimbursement Fund and the Domestic
Violence Training and Education Fund. İPenal Code Section
1203.097(a)(5).]
4)Specifies that the conditions of probation may include, in
lieu of a fine, but not in lieu of the fund payment, one or
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more of the following requirements:
a) That the defendant make payments to a battered women's
shelter, up to a maximum of $5,000.
b) That the defendant reimburse the victim for reasonable
expenses that the court finds are the direct result of the
defendant's offense. İPenal Code Section 1203.097(a)(11).]
5)Defines "domestic violence" as abuse perpetrated against any
of the following persons:
a) A spouse or former spouse;
b) A cohabitant or former cohabitant, as defined in Family
Code Section 6209;
c) A person with whom the respondent is having or has had a
dating or engagement relationship;
d) A person with whom the respondent has had a child;
e) A child of a party; or
f) Any other person related by consanguinity or affinity
within the second degree. İFamily Code Section 6211.]
6)Provides that any person who willfully inflicts upon a person
who is his or her spouse, former spouse, cohabitant, former
cohabitant, or the mother or father of his or her child,
corporal injury resulting in a traumatic condition is guilty
of a felony, and upon conviction thereof shall be punished by
imprisonment in the state prison for two, three, or four
years, or in a county jail for not more than one year, or by a
fine of up to $6,000, or by both that fine and imprisonment.
İPenal Code Section 273.5(a).]
7)Provides for increased incarceration and a maximum fine of
$10,000 for subsequent convictions of the crime of domestic
violence which occur within seven years of a prior conviction
for a domestic violence-related offense. İPenal Code Section
273.5(e).]
8)States that, in addition to any other penalty provided or
imposed under the law, the court shall order the defendant to
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pay both a restitution fine and restitution to the victim or
victims, if any. İPenal Code Section 1202.4(a)(3).]
9)Requires the court to assess an additional
probation-revocation restitution fine in the same amount as
that imposed for the restitution fine. This additional fine
becomes effective upon the revocation of probation, and shall
not be waived or reduced by the court, absent compelling and
extraordinary reasons stated on record. Probation-revocation
restitution fines shall be deposited in the Restitution Fund.
(Penal Code Section 1202.44.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Currently
judges are allowed to determine whether or not to assess
certain fees against defendants who commit the crime of
domestic violence. One of these fees is used to fund domestic
violence programs. This bill would continue court discretion
on waiving certain fees against defendants, but would require
the reasoning for the waiving of the fees to be put on the
record."
2)Existing Penalty Assessments : There are penalty assessments
and fees assessed on the base fine for a crime. Assuming a
defendant was fined $6,000 as the maximum fine for corporal
injury resulting in a traumatic condition of a spouse under
Penal Code Section 273.5(a), the following penalty assessments
would be imposed pursuant to the Penal Code and the California
Government Code:
Base Fine: $ 6,000
Penal Code 1464 assessment: $ 6,000($10 for
every $10)
Penal Code 1465.7 assessment: 1,200(20%
surcharge)
Penal Code 1465.8 assessment: 40($40
fee per criminal offense)
Government Code 70372 assessment: 3,000($5 for
every $10)
Government Code 70373 assessment: 30($30
for felony or misdo.)
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Government Code 76000 assessment: 4,200($7 for
every $10)
Government Code 76000.5 assessment: 1,200($2 for
every $10)
Government Code 76104.6 assessment: 600($1 for
every $10)
Government Code 76104.7 assessment 1,800($3 for
every $10)
Total Fine with Assessments: $24,070
3)Fines and Fees for Domestic Violence Offenders Granted
Probation : When a person is convicted of a domestic
violence-related crime and granted probation, the court is
required to impose specified conditions of probation. The
defendant must pay the domestic violence fund fee of at least
$400 at issue in this bill İPenal Code Section
1203.097(a)(5)], and may be ordered to pay a fee of up to
$5,000 to a battered women's shelter İPenal Code Section
1203.097(a)(11)(A)]. The defendant must also complete a
certified domestic violence-program, and pay for its cost.
İPenal Code Section 1203.097(a)(6) and (a)(7).] The court may
also order a defendant to enroll in a chemical dependency
program, which is paid for by the defendant. İPenal Code
Section 1203.097(a)(10)(C).]
In addition to these conditions of probation, the defendant is
required to pay a probation-supervision fee and the costs of
preparing the probation report. İPenal Code Section
1203.1b(a).] These costs are payable in installment, but the
county board of supervisors may charge a fee of up to $75 for
collecting installment payments. İPC 1203.1b(h).]
The probation-related costs are in addition to direct victim
restitution and the restitution fine ranging from $240 to
$10,000, both of which must be imposed in all cases. (Penal
Code Section 1202.4) Finally, the court must impose but stay
a probation-revocation fine in the same amount as the
restitution fine. (Penal Code Section 1202.44.) The latter
fine is only collected if probation is revoked.
4)Prioritization of Court-Ordered Debt : Penal Code Section
1203.1d prioritizes the order in which delinquent
court-ordered debt received is to be satisfied. Payments are
applied first to victim restitution, and then to the 20% state
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surcharge required by Penal Code Section 1465.7. Next,
payments are applied to restitution fines pursuant to Penal
Code Section 1202.4 and any other fines, penalty assessments,
with payments made on a proportional basis to the total amount
levied for all of these items. Once these debts are
satisfied, payments are applied toward any reimbursable costs
as required by law, such as the costs of probation , probation
investigation, and attorney fees. İPenal Code Section
1203.1d(b).] Because of the prioritization of debt required
by statute, it is unlikely that the domestic violence fund fee
will be collected when a defendant is indigent, regardless of
whether the court can consider his or her ability to pay at
the time of its imposition.
5)Effectiveness of Fines, Fees and Penalty Assessments : In
2006, on behalf of this Committee, the California Research
Bureau (CRB) completed a report, Who Pays For Penalty
Assessment Programs in California.
(.) At that
time, California had more than 269 dedicated funding streams
for court fines, fees, surcharges, and penalty assessments in
16 different statutory codes. (Id. at p. 28.) CRB determined
that the majority of penalty assessment revenue, roughly 86 %,
is generated by traffic-related offenses. (Id. at pp. 22-23.)
CRB found "the direct financial relationship between the
offenses that generate penalty assessment revenue and the
programs that benefit from those assessments is at times
difficult to discern. While a particular statute may specify
that a penalty assessment should be distributed to specific
county and state funds, the system of payment records
maintained by court and county clerks generally only
identifies the amounts distributed to the specific funds but
not the offenses that generated the dollars. In other words,
the penalty assessments all go into a big pot and are
re-allocated as directed by statute." (Id. at p. 14.)
Moreover, "İb]ecause counties use different methods to collect
unpaid debt, offenders are treated differently. Currently
state law allows collection practices to vary from county to
county." (Id. at p. 26.) "Until a uniform county collection
standard is developed for criminal offenses in all 58
counties, questions about equity will remain." (Ibid.)
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Most concerning, CRB found, "High penalty assessments may result
in higher rates of default by the guilty parties. Some
offenders may elect to spend time in jail, or plea for
community service, rather than pay the fine and penalty
assessment. The end result may be that a substantial amount
of fines, fees, and penalties is not collected. If offenders
choose jail time in lieu of paying the fines and penalties,
additional public costs will be incurred." (Id. at p. 25.)
Judges are allowed to convert assessed fines and penalties
into jail time. İPeople v. McGarry (2002) 96 Cal.App.4th 644,
652.] Counties do not know if they are losing penalty
assessment revenue due to defaults by offenders or if they are
incurring additional costs due to jailing. (Id. at p. 26.)
6)Arguments in Support : According to the California Partnership
to End Domestic Violence , the sponsor of this bill, "Data from
the March 2004 'Domestic Violence Audit: Assessment,
Collection, and Distribution of Domestic Violence Fines and
Fees' produced by the Administrative Office of the Courts
Internal Audit Services Division indicates that over time
there has been a marked decrease in the fines assessed against
defendants. Counties are not assessing the $400 fine on a
consistent basis. In many instances, the fee is being reduced
or waived entirely, without any documentation in the court
file justifying the waiver.
Assembly Bill 2094 seeks to address this problem by requiring
specific documentation in the court record for the waiver of
the fees related to domestic violence (or in the alternative,
by eliminating the court's discretion in waiving the fee)."
7)Arguments in Opposition : According to the California Judges
Association , "Existing law permits the court to consider the
financial condition of the offender when assessing the DV fund
fee and the booking fee. This is the essential function of
judges - to make individualized decisions that take into
account the needs of victims and their dependents, the
rehabilitation of offenders, and the safety of the public.
Existing law requires courts to consider the offender's
ability to pay not only as it relates to the DV fund fee but
also in a number of other contexts. For example, "The Court
shall order the defendant to comply with all probation
requirements, including the requirements to attend counseling,
keep all program appointments, and pay program fees based upon
the ability to pay." (Penal Code § 1203.097(a)(7)(A)(i).)
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Existing law also requires batterers counseling programs to
"develop and utilize a sliding fee scale that recognizes both
the defendant's ability to pay and the necessity of programs
to meet overhead expenses" (Penal Code § 1203.097(c)(1)(P)).
Lastly, if the court imposes an additional fine, payment to a
battered women's shelter, or restitution, "the court shall
make a determination of the defendant's ability to pay . . .
In no event shall any order to make payments to a battered
women's shelter be made if it would impair the ability of the
defendant to pay direct restitution to the victim or
court-ordered child support." (Penal Code §
1203.097(a)(11)(B) İemphasis added].)
"Preserving judicial discretion allows the judge to account for
the individual economic circumstances so the courts can
fashion an appropriate sentence - something legislation simply
cannot do with similar alacrity. Judges are in the best
position to know how to judge and prioritize fees to be
exacted from the defendant. In a medium-sized county, a
typical DV Court judge will see hundreds of such cases per
year. The judge in DV Court is the one most knowledgeable
about the day to day issues involved with domestic violence.
"Indeed, were AB 2904 to pass, it seems inevitable that some
offenders will be asked to pay a fee they cannot pay, which
effectively means a) that they might be paying fees that, in
the interest of justice, should not be prioritized over other
payments (e.g., restitution payments), and b) California will
lose money in efforts to collect what is not there."
8)Related Legislation :
a) SB 1379 (Rubio) increases the amount of the minimum
payment by a defendant when he or she is granted probation
for a crime of domestic violence to $500. SB 1379 is
pending hearing by the Senate Public Safety Committee.
b) AB 1852 (Campos) authorizes the Santa Clara County Board
of Supervisors and the City Council of San Jose to
authorize an increase in the fees for marriage licenses and
certified copies of certain vital records up to a maximum
of $5 per license or record and requires the fees to be
allocated by the county for purposes relating to domestic
violence prevention, intervention, and prosecution. AB
1852 is pending hearing by the Assembly Judiciary
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Committee.
c) AB 2467 (Hueso) authorizes a court to place a defendant
who is convicted of domestic violence or stalking, as
defined above, where probation is granted or the execution
or imposition of a sentence is suspended, to be placed on
active global positioning system monitoring, as specified.
AB 2467 is pending hearing by this Committee.
9)Prior Legislation :
a) AB 2011 (Arambula), Chapter 132, Statutes of 2010,
increased the minimum fee paid by a person granted
probation for a crime of domestic violence from $200 to
$400, and changed the distribution formula of the monies
collected.
b) AB 2405 (Arambula), Chapter 241, Statutes of 2008,
allowed counties to authorize an additional fee up to $250
upon every fine, penalty, or forfeiture imposed and
collected by the courts for specified crimes involving
domestic violence and directed the funds to domestic
violence programs that focus on assisting immigrants,
refugees, and persons residing in rural communities.
c) AB 2695 (Goldberg), Chapter 476, Statutes of 2006,
extended the sunset date from 2007 to 2010 on the $400
minimum mandatory fine an individual granted probation for
a domestic violence crime. AB 2695 also eliminated the
2007 sunset date on the waiving of fees associated with
service of process for specified restraining orders and
injunctions.
d) AB 352 (Goldberg), Chapter 431, Statutes of 2003, among
other things, increased the mandatory minimum fine imposed
on persons granted probation for a domestic violence crime
from $200 to $400 until 2007.
e) ABx1 93 (Burton), Chapter 28, Statutes of 1993, required
a person granted probation for a domestic-violence crime to
make a minimum payment of $200. Two-thirds of the money
was to be retained by counties and deposited in the
domestic violence programs special fund. The remainder to
be transferred to the State Controller for deposit in the
Domestic Violence Restraining Order Reimbursement Fund and
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the Domestic Violence Training and Education Fund.
REGISTERED SUPPORT / OPPOSITION :
Support
California Partnership to End Domestic Violence (Sponsor)
Alliance Against Family Violence and Sexual Assault
Alternatives to Violence
American Federation of State, County and Municipal Employees
Asian Americans for Community Involvement
California Communities United Institute
Casa de Esperanza
Catalyst Domestic Violence Services
Center for Domestic Peace
Center for Violence-Free Relationships
Community Overcoming Relationship Abuse
Community Solutions
Domestic Violence and Sexual Assault Coalition
Human Options, Inc.
Humboldt Domestic Violence Services
Lake Family Resource Center
Morongo Basin Unity Home
Mountain Crisis Service
North County Women's Shelter & Resource Center
Peace Over Violence
Rainbow Services, Ltd.
Rural Human Services' Herrington House
Shalom Bayit
Shasta Women's Refuge
Sheperd's Door Domestic Violence Resource Center
Sojourn Services for Battered Women and Their Children
STAND! For Families Free of Violence
Su Casa - Ending Domestic Violence
Walnut Avenue Women's Center
Wild Iris
WOMAN, Inc.
Women's and Children's Crisis Shelter
Women's Crisis Support - Defensa de Mujeres
Yolo County Sexual Assault and Domestic Violence Center
YWCA of Silicon Valley
Two private individuals
Opposition
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California Attorneys for Criminal Justice
California Judges Association
California Public Defenders Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744