BILL NUMBER: SB 1177 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Leno
FEBRUARY 22, 2012
An act to amend Section 1202.4 of the Penal Code, relating to
restitution.
LEGISLATIVE COUNSEL'S DIGEST
SB 1177, as introduced, Leno. Restitution for crime victims.
Existing law requires the court to order a person who is convicted
of a crime to pay a restitution fine, as prescribed, and restitution
to the victim or victims for the full amount of economic loss,
unless the court finds compelling and extraordinary reasons for not
doing so and states them on the record.
This bill would prohibit, in cases where an employer is convicted
of a crime against an employee, a payment to the employee or the
employee's kin that is made by the employer's workers' compensation
insurance carrier from being used to offset the restitution owed
unless the court finds substantial evidence that all premiums for
that insurance coverage have been made in full accordance with the
law as of the date of the crime.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1202.4 of the Penal Code is amended to read:
1202.4. (a) (1) It is the intent of the Legislature that a victim
of crime who incurs any an economic
loss as a result of the commission of a crime shall receive
restitution directly from any a
defendant convicted of that crime.
(2) Upon a person being convicted of any a
crime in the State of California, the court shall order the
defendant to pay a fine in the form of a penalty assessment in
accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so
, and states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense ,
but . If the person is convicted of a felony, the
fine shall not be less than two hundred forty dollars ($240)
starting on January 1, 2012, two hundred eighty dollars ($280)
starting on January 1, 2013, and three hundred dollars ($300)
starting on January 1, 2014, and not more than ten thousand dollars
($10,000) , if the person is convicted of a felony, and
. If the person is convicted of a misdemeanor, the
fine shall not be less than one hundred twenty dollars ($120)
starting on January 1, 2012, one hundred forty dollars ($140)
starting on January 1, 2013, and one hundred fifty dollars ($150)
starting on January 1, 2014, and not more than one thousand dollars
($1,000) , if the person is convicted of a misdemeanor
.
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of the minimum fine pursuant to
paragraph (1) multiplied by the number of years of imprisonment the
defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so ,
and states those reasons on the record. A defendant's
inability to pay shall not be considered a compelling and
extraordinary reason not to impose a restitution fine. Inability to
pay may be considered only in increasing the amount of the
restitution fine in excess of the minimum fine pursuant to paragraph
(1) of subdivision (b). The court may specify that funds confiscated
at the time of the defendant's arrest, except for funds confiscated
pursuant to Section 11469 of the Health and Safety Code, be applied
to the restitution fine if the funds are not exempt for spousal or
child support or subject to any other legal exemption.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the minimum fine pursuant to paragraph (1) of
subdivision (b), the court shall consider any relevant factors,
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered
any losses as a result of the crime, and the number of
victims involved in the crime. Those losses may include pecuniary
losses to the victim or his or her dependents as well as intangible
losses, such as psychological harm caused by the crime. Consideration
of a defendant's inability to pay may include his or her future
earning capacity. A defendant shall bear the burden of demonstrating
his or her inability to pay. Express findings by the court as to the
factors bearing on the amount of the fine shall not be required. A
separate hearing for the fine shall not be required.
(e) The restitution fine shall not be subject to penalty
assessments authorized in Section 1464 or Chapter 12 (commencing with
Section 76000) of Title 8 of the Government Code, or the state
surcharge authorized in Section 1465.7, and shall be deposited in the
Restitution Fund in the State Treasury.
(f) Except as provided in subdivisions (q) and (r), in every case
in which a victim has suffered economic loss as a result of the
defendant's conduct, the court shall require that the defendant make
restitution to the victim or victims in an amount established by
court order, based on the amount of loss claimed by the victim or
victims or any other showing to the court. If the amount of loss
cannot be ascertained at the time of sentencing, the restitution
order shall include a provision that the amount shall be determined
at the direction of the court. The court shall order full restitution
unless it finds compelling and extraordinary reasons for not doing
so , and states them on the record. The court may
specify that funds confiscated at the time of the defendant's arrest,
except for funds confiscated pursuant to Section 11469 of the Health
and Safety Code, be applied to the restitution order if the funds
are not exempt for spousal or child support or subject to any other
legal exemption.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court may
modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any a third
party. Restitution ordered pursuant to this subdivision shall be
ordered to be deposited to the Restitution Fund to the extent that
the victim, as defined in subdivision (k), has received assistance
from the Victim Compensation Program pursuant to Chapter 5
(commencing with Section 13950) of Part 4 of Division 3 of Title 2 of
the Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Mental health counseling expenses.
(D) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor. Lost wages shall include any commission
income as well as any base wages. Commission
income shall be established by evidence of commission income during
the 12-month period prior to the date of the crime for which
restitution is being ordered, unless good cause for a shorter time
period is shown.
(E) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution. Lost wages shall include
any commission income as well as any
base wages. Commission income shall be established by
evidence of commission income during the 12-month period prior to the
date of the crime for which restitution is being ordered, unless
good cause for a shorter time period is shown.
(F) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(G) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(H) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(I) Expenses incurred by an adult victim in relocating away from
the defendant, including, but not limited to, deposits for utilities
and telephone service, deposits for rental housing, temporary lodging
and food expenses, clothing, and personal items. Expenses incurred
pursuant to this section shall be verified by law enforcement to be
necessary for the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional well-being of
the victim.
(J) Expenses to install or increase residential security incurred
related to a crime violent felony , as
defined in subdivision (c) of Section 667.5, including, but not
limited to, a home security device or system, or replacing or
increasing the number of locks.
(K) Expenses to retrofit a residence or vehicle, or both, to make
the residence accessible to or the vehicle operational by the victim,
if the victim is permanently disabled, whether the disability is
partial or total, as a direct result of the crime.
(L) Expenses for a period of time reasonably necessary to make the
victim whole, for the costs to monitor the credit report of, and for
the costs to repair the credit of, a victim of identity theft, as
defined in Section 530.5.
(4) (A) If, as a result of the defendant's conduct, the
Restitution Fund has provided assistance to or on behalf of a victim
or derivative victim pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code, the
amount of assistance provided shall be presumed to be a direct
result of the defendant's criminal conduct and shall be included in
the amount of the restitution ordered.
(B) The amount of assistance provided by the Restitution Fund
shall be established by copies of bills submitted to the California
Victim Compensation and Government Claims Board reflecting the amount
paid by the board and whether the services for which payment was
made were for medical or dental expenses, funeral or burial expenses,
mental health counseling, wage or support losses, or rehabilitation.
Certified copies of these bills provided by the board and redacted
to protect the privacy and safety of the victim or any legal
privilege, together with a statement made under penalty of perjury by
the custodian of records that those bills were submitted to and were
paid by the board, shall be sufficient to meet this requirement.
(C) If the defendant offers evidence to rebut the presumption
established by this paragraph, the court may release additional
information contained in the records of the board to the defendant
only after reviewing that information in camera and finding that the
information is necessary for the defendant to dispute the amount of
the restitution order.
(5) Except as provided in paragraph (6), in any case in which an
order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant's arrest for the
crime for which restitution may be ordered. The financial disclosure
statements shall be made available to the victim and the board
pursuant to Section 1214. The disclosure shall be signed by the
defendant upon a form approved or adopted by the Judicial Council for
the purpose of facilitating the disclosure. Any
A defendant who willfully states as true any
a material matter that he or she knows to be
false on the disclosure required by this subdivision is guilty of a
misdemeanor, unless this conduct is punishable as perjury or another
provision of law provides for a greater penalty.
(6) A defendant who fails to file the financial disclosure
required in paragraph (5), but who has filed a financial affidavit or
financial information pursuant to subdivision (c) of Section 987,
shall be deemed to have waived the confidentiality of that affidavit
or financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f). The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (5), and paragraphs (7) to (10), inclusive, shall not
apply.
(7) Except as provided in paragraph (6), the defendant shall file
the disclosure with the clerk of the court no later than the date set
for the defendant's sentencing, unless otherwise directed by the
court. The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.
(8) In its discretion, the court may relieve the defendant of the
duty under paragraph (7) of filing with the clerk by requiring that
the defendant's disclosure be submitted as an attachment to, and be
available to, those authorized to receive the following:
(A) Any A report submitted pursuant
to subparagraph (C) of paragraph (2) of subdivision (b) of Section
1203 or subdivision (g) of Section 1203.
(B) Any A stipulation
submitted pursuant to paragraph (4) of subdivision (b) of Section
1203.
(C) Any A report by the
probation officer, or any information submitted by
the defendant applying for a conditional sentence pursuant to
subdivision (d) of Section 1203.
(9) The court may consider a defendant's unreasonable failure to
make a complete disclosure pursuant to paragraph (5) as any of the
following:
(A) A circumstance in aggravation of the crime in imposing a term
under subdivision (b) of Section 1170.
(B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.
(C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section 1203.
(D) A factor indicating that the interests of justice would not be
served by imposing less than the maximum fine and sentence fixed by
law for the case.
(10) A defendant's failure or refusal to make the required
disclosure pursuant to paragraph (5) shall not delay entry of an
order of restitution or pronouncement of sentence. In appropriate
cases, the court may do any of the following:
(A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).
(B) If sentencing the defendant under Section 1170, provide that
the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant's
employment, occupation, finances, and liabilities.
(C) If sentencing the defendant under Section 1203, set a date and
place for submission of the disclosure required by paragraph (5) as
a condition of probation or suspended sentence.
(11) If a defendant has any remaining unpaid balance on a
restitution order or fine 120 days prior to his or her scheduled
release from probation or 120 days prior to his or her completion of
a conditional sentence, the defendant shall prepare and file a new
and updated financial disclosure identifying all assets, income, and
liabilities in which the defendant holds or controls or has held or
controlled a present or future interest during the defendant's period
of probation or conditional sentence. The financial disclosure shall
be made available to the victim and the board pursuant to Section
1214. The disclosure shall be signed and prepared by the defendant on
the same form as described in paragraph (5). Any
A defendant who willfully states as true any
a material matter that he or she knows to be
false on the disclosure required by this subdivision is guilty of a
misdemeanor, unless this conduct is punishable as perjury or another
provision of law provides for a greater penalty. The financial
disclosure required by this paragraph shall be filed with the clerk
of the court no later than 90 days prior to the defendant's scheduled
release from probation or completion of the defendant's conditional
sentence.
(12) In cases where an employer is convicted of a crime against an
employee, a payment to the employee or the employee's kin that is
made by the employer's workers' compensation insurance carrier shall
not be used to offset the amount of the restitution order under
subdivision (a) unless the court finds substantial evidence that all
premiums for that insurance coverage have been made in full
accordance with the law as of the date of the crime.
(g) The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so ,
and states those reasons on the record. A defendant's
inability to pay shall not be considered a compelling and
extraordinary reason not to impose a restitution order, nor shall
inability to pay be a consideration in determining the amount of a
restitution order.
(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing with
Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, in order to determine the defendant's
financial assets for purposes of collecting on the restitution order.
(i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment.
(j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the
Restitution Fund as otherwise provided by law, except to the extent
that restitution is actually collected pursuant to the order.
Restitution collected pursuant to this subdivision shall be credited
to any other judgments for the same losses obtained against the
defendant arising out of the crime for which the defendant was
convicted.
(k) For purposes of this section, "victim" shall include all of
the following:
(1) The immediate surviving family of the actual victim.
(2) Any A corporation,
business trust, estate, trust, partnership, association, joint
venture, government, governmental subdivision, agency, or
instrumentality, or any other legal or commercial entity when that
entity is a direct victim of a crime.
(3) Any A person who has
sustained economic loss as the result of a crime and who satisfies
any of the following conditions:
(A) At the time of the crime was the parent, grandparent, sibling,
spouse, child, or grandchild of the victim.
(B) At the time of the crime was living in the household of the
victim.
(C) At the time of the crime was a person who had previously lived
in the household of the victim for a period of not less than two
years in a relationship substantially similar to a relationship
listed in subparagraph (A).
(D) Is another family member of the victim, including, but not
limited to, the victim's fiancé or fiancée, and who witnessed the
crime.
(E) Is the primary caretaker of a minor victim.
(4) Any A person who is
eligible to receive assistance from the Restitution Fund pursuant to
Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of
Title 2 of the Government Code.
(5) Any A governmental
entity that is responsible for repairing, replacing, or restoring
public or privately owned property that has been defaced with
graffiti or other inscribed material, as defined in subdivision (e)
of Section 594, and that has sustained an economic loss as the result
of a violation of Section 594, 594.3, 594.4, 640.5, 640.6, or 640.7
of the Penal Code.
( l ) At its discretion, the board of supervisors of
any a county may impose a fee to cover
the actual administrative cost of collecting the restitution fine,
not to exceed 10 percent of the amount ordered to be paid, to be
added to the restitution fine and included in the order of the court,
the proceeds of which shall be deposited in the general fund of the
county.
(m) In every case in which the defendant is granted probation, the
court shall make the payment of restitution fines and orders imposed
pursuant to this section a condition of probation. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation shall continue to be enforceable by a victim
pursuant to Section 1214 until the obligation is satisfied.
(n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine or full restitution
order should not be required, the court shall order, as a condition
of probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition to
the finding that restitution should not be required. Upon revocation
of probation, the court shall impose restitution pursuant to this
section.
(o) The provisions of Section 13963 of the Government Code shall
apply to restitution imposed pursuant to this section.
(p) The court clerk shall notify the California Victim
Compensation and Government Claims Board within 90 days of an order
of restitution being imposed if the defendant is ordered to pay
restitution to the board due to the victim receiving compensation
from the Restitution Fund. Notification shall be accomplished by
mailing a copy of the court order to the board, which may be done
periodically by bulk mail or e-mail.
(q) Upon conviction for a violation of Section 236.1, the court
shall, in addition to any other penalty or restitution, order the
defendant to pay restitution to the victim in any
a case in which a victim has suffered economic loss as a
result of the defendant's conduct. The court shall require that the
defendant make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed by
the victim or victims or any other another
showing to the court. In determining restitution pursuant to
this section, the court shall base its order upon the greater of the
following: the gross value of the victim's labor or services based
upon the comparable value of similar services in the labor market in
which the offense occurred, or the value of the victim's labor as
guaranteed under California law, or the actual income derived by the
defendant from the victim's labor or services or any other
appropriate means to provide reparations to the victim.
(r) (1) In addition to any other penalty or fine, the court shall
order any a person who has been
convicted of any a violation of Section
350, 653h, 653s, 653u, 653w, or 653aa that involves a recording or
audiovisual work to make restitution to any
an owner or lawful producer, or trade association acting on
behalf of the owner or lawful producer, of a phonograph record, disc,
wire, tape, film, or other device or article from which sounds or
visual images are derived that suffered economic loss resulting from
the violation. For the purpose of calculating restitution, the value
of each nonconforming article or device shall be based on the
aggregate wholesale value of lawfully manufactured and authorized
devices or articles from which sounds or visual images are devised,
unless a higher value can be proved in the case of (A) an unreleased
audio work, or (B) an audiovisual work that, at the time of
unauthorized distribution, has not been made available in copies for
sale to the general public in the United States on a digital
versatile disc. The order of restitution shall also include
reasonable costs incurred as a result of any
an investigation of the violation undertaken by the owner,
lawful producer, or trade association acting on behalf of the owner
or lawful producer. "Aggregate wholesale value" means the average
wholesale value of lawfully manufactured and authorized sound or
audiovisual recordings. Proof of the specific wholesale value of each
nonconforming device or article is not required.
(2) As used in this subdivision, "audiovisual work" and "recording"
shall have the same meaning as in Section 653w.