BILL NUMBER: SB 1177	CHAPTERED
	BILL TEXT

	CHAPTER  868
	FILED WITH SECRETARY OF STATE  SEPTEMBER 30, 2012
	APPROVED BY GOVERNOR  SEPTEMBER 30, 2012
	PASSED THE SENATE  AUGUST 22, 2012
	PASSED THE ASSEMBLY  AUGUST 20, 2012
	AMENDED IN ASSEMBLY  AUGUST 9, 2012
	AMENDED IN ASSEMBLY  JUNE 19, 2012
	AMENDED IN SENATE  APRIL 19, 2012

INTRODUCED BY   Senator Leno

                        FEBRUARY 22, 2012

   An act to amend Sections 3602 and 3754 of the Labor Code, and to
amend Section 1202.4 of the Penal Code, relating to restitution.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1177, 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 those reasons on the record.
   Existing law requires every employer except the state to secure
the payment of compensation by being insured against liability, or by
securing a certificate of consent to self-insure. Under existing
law, payment, in whole or in part, of compensation by either the
employer or the insurer is a bar to recovery against each of them of
the amount paid.
   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 dependent that is made by the employer's workers'
compensation insurance carrier from being used to offset the
restitution owed to the victim unless the court finds that the
defendant substantially met the obligation to pay premiums for that
insurance coverage.
   This bill would incorporate additional changes to Section 1202.4
of the Penal Code proposed by SB 1479, to become operative only if SB
1479 and this bill are both chaptered and become effective on or
before January 1, 2013, and this bill is chaptered last.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 3602 of the Labor Code is amended to read:
   3602.  (a) Where the conditions of compensation set forth in
Section 3600 concur, the right to recover compensation is, except as
specifically provided in this section and Sections 3706 and 4558, the
sole and exclusive remedy of the employee or his or her dependents
against the employer. The fact that either the employee or the
employer also occupied another or dual capacity prior to, or at the
time of, the employee's industrial injury shall not permit the
employee or his or her dependents to bring an action at law for
damages against the employer.
   (b) An employee, or his or her dependents in the event of his or
her death, may bring an action at law for damages against the
employer, as if this division did not apply, in the following
instances:
   (1) Where the employee's injury or death is proximately caused by
a willful physical assault by the employer.
   (2) Where the employee's injury is aggravated by the employer's
fraudulent concealment of the existence of the injury and its
connection with the employment, in which case the employer's
liability shall be limited to those damages proximately caused by the
aggravation. The burden of proof respecting apportionment of damages
between the injury and any subsequent aggravation thereof is upon
the employer.
   (3) Where the employee's injury or death is proximately caused by
a defective product manufactured by the employer and sold, leased, or
otherwise transferred for valuable consideration to an independent
third person, and that product is thereafter provided for the
employee's use by a third person.
   (c) In all cases where the conditions of compensation set forth in
Section 3600 do not concur, the liability of the employer shall be
the same as if this division had not been enacted.
   (d) (1) For the purposes of this division, including Sections 3700
and 3706, an employer may secure the payment of compensation on
employees provided to it by agreement by another employer by entering
into a valid and enforceable agreement with that other employer
under which the other employer agrees to obtain, and has, in fact,
obtained workers' compensation coverage for those employees. In those
cases, both employers shall be considered to have secured the
payment of compensation within the meaning of this section and
Sections 3700 and 3706 if there is a valid and enforceable agreement
between the employers to obtain that coverage, and that coverage, as
specified in subdivision (a) or (b) of Section 3700, has been in fact
obtained, and the coverage remains in effect for the duration of the
employment providing legally sufficient coverage to the employee or
employees who form the subject matter of the coverage. That agreement
shall not be made for the purpose of avoiding an employer's
appropriate experience rating as defined in subdivision (c) of
Section 11730 of the Insurance Code.
   (2) Employers who have complied with this subdivision shall not be
subject to civil, criminal, or other penalties for failure to
provide workers' compensation coverage or tort liability in the event
of employee injury, but may, in the absence of compliance, be
subject to all three.
   (e) As provided in paragraph (12) of subdivision (f) of Section
1202.4 of the Penal Code, in cases where an employer is convicted of
a crime against an employee, a payment to the employee or the
employee's dependent that is paid by the employer's workers'
compensation insurance carrier shall not be used to offset the amount
of the restitution order unless the court finds that the defendant
substantially met the obligation to pay premiums for that insurance
coverage.
  SEC. 2.  Section 3754 of the Labor Code is amended to read:
   3754.  Except as provided in paragraph (12) of subdivision (f) of
Section 1202.4 of the Penal Code, payment, in whole or in part, of
compensation by either the employer or the insurer shall, to the
extent thereof, be a bar to recovery against each of them of the
amount so paid.
  SEC. 3.  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 an economic loss as a result of the commission
of a crime shall receive restitution directly from a defendant
convicted of that crime.
   (2) Upon a person being convicted of 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. 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
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).
   (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 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 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 commission income as well as 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
commission income as well as 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 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. A defendant who
willfully states as true 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) A report submitted pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
   (B) A stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
   (C) A report by the probation officer, or 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). A defendant who
willfully states as true 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 dependent that
is made by the employer's workers' compensation insurance carrier
shall not be used to offset the amount of the restitution order
unless the court finds that the defendant substantially met the
obligation to pay premiums for that insurance coverage.
   (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) 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) 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) 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) 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 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 email.
   (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 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
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 a person who has been convicted of a violation of Section 350,
653h, 653s, 653u, 653w, or 653aa that involves a recording or
audiovisual work to make restitution to 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 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.
  SEC. 3.5.  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 economic loss as a result of the commission
of a crime shall receive restitution directly from a defendant
convicted of that crime.
   (2) Upon a person being convicted of 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. 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
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).
   (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 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 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 California Victim Compensation and
Government Claims Board 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 commission income as well as 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
commission income as well as 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 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. A defendant who
willfully states as true 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) A report submitted pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
   (B) A stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
   (C) A report by the probation officer, or 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). A defendant who
willfully states as true 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 dependent that
is made by the employer's workers' compensation insurance carrier
shall not be used to offset the amount of the restitution order
unless the court finds that the defendant substantially met the
obligation to pay premiums for that insurance coverage.
   (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) 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) 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) 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) 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 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 email.
   (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 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
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 a person who has been convicted of a violation of Section 350,
653h, 653s, 653u, 653w, or 653aa that involves a recording or
audiovisual work to make restitution to 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. The order of
restitution shall be based on the aggregate wholesale value of
lawfully manufactured and authorized devices or articles from which
sounds or visual images are devised corresponding to the number of
nonconforming devices or articles involved in the offense, 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. For
purposes of this subdivision, possession of nonconforming devices or
articles intended for sale constitutes actual economic loss to an
owner or lawful producer in the form of displaced legitimate
wholesale purchases. The order of restitution shall also include
reasonable costs incurred as a result of 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.
  SEC. 4.  Section 3.5 of this bill incorporates amendments to
Section 1202.4 of the Penal Code proposed by both this bill and SB
1479. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2013, (2) each bill
amends Section 1202.4 of the Penal Code, and (3) this bill is enacted
after SB 1479, in which case Section 3 of this bill shall not become
operative.