BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
2
0
9
AB 2094 (Butler) 4
As Amended April 24, 2012
Hearing date: June 12, 2012
Penal Code
AA:dl
DOMESTIC VIOLENCE:
MANDATORY MINIMUM PROBATION FINE
HISTORY
Source: California Partnership to End Domestic Violence
Prior Legislation: AB 2011 (Arambula) - Ch. 132, Stats. 2010
AB 2695 (Goldberg) - Ch. 476, Stats. 2006
AB 352 (Goldberg) - Ch. 431, Stats. 2003
AB 2030 (Goldberg) - Ch. 1009, Stats. 2002
AB 217 (Pavley) - Ch. 2, Stats. 2001
AB 1570 (Pavley) - Ch. 568, Stats. 2001
AB 93X (Burton) - 1993-94, 1st Ex. Sess.
Support: American Federation of State, County and Municipal
Employees (AFSCME),
AFL-CIO; California Communities United Institute
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 74 - Noes 0
AB 2094 (Butler)
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KEY ISSUES
SHOULD THE MANDATORY MINIMUM FINE IMPOSED ON PERSONS GRANTED
PROBATION FOR A DOMESTIC VIOLENCE OFFENSE BE INCREASED FROM $400
TO $500?
IF THE COURT EXERCISES ITS DISCRETION TO REDUCE OR WAIVE THIS FEE,
SHOULD THE COURT BE REQUIRED TO STATE THE REASON ON THE RECORD?
PURPOSE
The purpose of this bill is to 1) increase from $400 to $500 the
fee imposed on persons granted probation for a domestic violence
offense, as specified; and 2) to require a court to state its
reasons for reducing or waiving this fee on the record.
Under current law , if a person is granted probation for a
domestic violence crime, as specified, the terms of probation
shall include all of the following:
(1) A minimum period of probation of 36 months, which may
include a period of summary probation as appropriate.
(2) A criminal court protective order protecting the victim
from further acts of violence, threats, stalking, sexual abuse,
and harassment, and, if appropriate, containing residence
exclusion or stay-away conditions.
(3) Notice to the victim of the disposition of the case.
(4) Booking the defendant within one week of sentencing if
the defendant has not already been booked.
(5) A minimum payment by the defendant of $400 to be
disbursed as specified. 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. (Penal Code § 1203.097(a).)
This bill would increase the minimum fine from $400 to $500.
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This bill additionally would require a court to state the reason
for exercising its discretion to reduce or waive this fee on the
record.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
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Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Stated Need for This Bill
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The author states:
This bill would raise the minimum fee of the domestic
violence service provider's fund from $400 to $500.
This bill will continue to allow the courts discretion
on assessing, reducing and waiving of the domestic
violence fee if the defendant is unable to pay. If
the fee is reduced or waived, the judge will state on
the record their reasoning for making that decision.
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.)
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)
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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 ĘPenal
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 ĘPenal Code Section
1203.097(a)(11)(A)]. The defendant must also complete a
certified domestic violence-program, and pay for its cost.
ĘPenal 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. ĘPenal 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. ĘPenal 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. ĘPC 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 surcharge required by Penal Code Section 1465.7.
Next, payments are applied to restitution fines pursuant to
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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. ĘPenal 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, the California Research Bureau (CRB) completed a
report, Who Pays For Penalty Assessment Programs in
California.<1> 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, "Ęb]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
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<1> .
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developed for criminal offenses in all 58 counties, questions
about equity will remain." (Ibid.)
CRB additionally found, "(h)igh 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. ĘPeople 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. Pending Audit
Domestic violence fees currently are the subject of an audit
being performed by the Bureau of State Audits. Due in August of
this year, the audit will include the following:
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1. Review and evaluate the laws, rules, and
regulations significant to the audit objectives.
2. For a sample of four counties, to the extent
possible, obtain the following information regarding
their domestic violence program's special fund for
each year in the most recent four-year period:
(a) Total amount of fee revenue collected.
(b) Determine whether revenue from fees
collected from individuals granted probation for
crimes of domestic violence (Penal Code, Section
1203.097(a)) are separately tracked for accounting
purposes.
(c) Beginning and ending balances of the
account and the fund.
(d) Amount of fee revenue transferred to
domestic violence programs. Identify recipients of
this funding that are not domestic violence programs,
if any.
(e) The number of individuals served by the
shelters receiving funding from the probation
fee.
(f) Determine how long the counties are
holding these funds before transferring them to the
shelters.
(g) Determine if the counties' use of these
funds complies with statutory requirements.
3. For a sample of courts in the counties selected,
assess the extent to which each court has an adequate
process for handling the domestic violence probation
fees by determining the following for each year in the
most recent four-year period:
(a) Whether the counties receive all
necessary information related to the fees from the
courts.
(b) The frequency of complete fee payments
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by probationers.
(c) The extent to which mechanisms exist to
enforce payment of the fee and the
effectiveness of those mechanisms.
(d) The extent to which the courts are
completely and accurately remitting the fees paid.
(e) How long the courts are holding these
funds before transferring them to the counties.
4. Review and assess any other issues that are
significant to domestic violence probation fees.
GIVEN THIS PENDING AUDIT, IS THIS BILL PREMATURE?
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