BILL NUMBER: SB 1210 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 11, 2012
INTRODUCED BY Senator Lieu
FEBRUARY 22, 2012
An act to amend Sections 1202.45 , 1214, and 2085.5 of
the Penal Code, and to amend Section 19280 of the Revenue and
Taxation Code, relating to restitution
criminal fines and penalties , and making an appropriation
therefor.
LEGISLATIVE COUNSEL'S DIGEST
SB 1210, as amended, Lieu. Restitution: collection of
fines. Collection of criminal fines and penalties.
Under
(1) Under existing law, in every
case where a person is convicted of a crime and whose sentence
includes parole, the court is required to assess a parole revocation
fine, as specified, for deposit into the Restitution Fund in the
State Treasury.
This bill would require a person who is subject to postrelease
community supervision or mandatory supervision, who violates the
terms of his or her postrelease community supervision or mandatory
supervision, and who is incarcerated in a county jail for that
violation, to pay a fine, for deposit into the Restitution Fund in
the State Treasury, a continuously appropriated fund. Because the
bill creates a new source of revenue for deposit into the Restitution
Fund, the bill would make an appropriation.
(2) Existing law generally provides that in any case in which a
defendant is ordered to pay restitution, the order to pay restitution
shall be deemed a money judgment that is fully enforceable by the
victim as if the restitution order were a civil judgment, and any
portion of the restitution order that remains unsatisfied after a
defendant is no longer on probation or parole is enforceable by the
victim, as specified.
This bill would also specify that any portion of a restitution
order that remains unsatisfied after a defendant is no longer on
postrelease community supervision or mandatory supervision is
enforceable by the victim pursuant to those provisions.
Existing
(3) Existing law requires the
Department of Corrections and Rehabilitation to deduct and retain
certain funds from the wages, trust account deposits, or settlement
or trial awards of a prisoner for the payment of certain fees and
fines, including restitution orders, restitution fines, and specified
administrative fees, and also authorizes the department to collect
funds from a parolee for the payment of restitution orders and fines,
unless prohibited by federal law. Under existing law, these funds
are required to be deposited in the Restitution Fund in the State
Treasury.
This bill would specify that, when a prisoner is punished by
imprisonment in a county jail for a felony , an agency
designated by the county board of supervisors is required to deduct
and retain those funds, and would also authorize that agency to
collect funds from a parolee. The bill would require these agencies
to transfer these funds for deposit in the Restitution Fund.
(4) Existing law authorizes delinquent fines, state or local
penalties, forfeitures, restitution fines and orders, and any other
amounts imposed by a superior court upon a person or entity for
criminal offenses, that total at least $100 in the aggregate, to be
referred by the superior court, the county, or the state to the
Franchise Tax Board for collection.
This bill would also authorize the referral of delinquent fines,
state and local penalties, forfeitures, restitution fines and orders,
and other amounts imposed by a juvenile court to the board for
collection.
By
(5) By imposing additional
requirements on counties, the bill would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: 2/3. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1202.45 of the Penal Code is amended to read:
1202.45. (a) In every case where a person is convicted of a crime
and whose sentence includes a period of parole, the court shall at
the time of imposing the restitution fine pursuant to subdivision (b)
of Section 1202.4, assess an additional parole revocation
restitution fine in the same amount as that imposed pursuant to
subdivision (b) of Section 1202.4.
(b) In every case where a person is convicted of a crime and is
subject to either postrelease community supervision under Section
3415 3451 or mandatory supervision
under paragraph (5) of subdivision (h) of Section 1170, and violates
the terms of the postrelease community supervision or mandatory
supervision and is incarcerated in a county jail for that violation,
the person shall pay a fine that shall be collected by the agency
designated by the board of supervisors of the county in which the
prisoner is incarcerated.
(c) The fines imposed pursuant to subdivisions (a) and (b) shall
not be subject to penalty assessments authorized by Section 1464 or
Chapter 12 (commencing with Section 76000) of Title 8 of the
Government Code, or the state surcharge authorized by Section 1465.7,
and shall be suspended unless the person's parole, postrelease
community supervision, or mandatory supervision is revoked. Fine
moneys shall be deposited in the Restitution Fund in the State
Treasury.
SEC. 2. Section 1214 of the Penal Code
is amended to read:
1214. (a) If the judgment is for a fine, including a restitution
fine ordered pursuant to Section 1202.4, 1202.44, or 1202.45, or
Section 1203.04 as operative on or before August 2, 1995, or Section
13967 of the Government Code, as operative on or before September 28,
1994, with or without imprisonment, or a diversion restitution fee
ordered pursuant to Section 1001.90, the judgment may be enforced in
the manner provided for the enforcement of money judgments generally.
Any portion of a restitution fine or restitution fee that remains
unsatisfied after a defendant is no longer on probation or parole or
has completed diversion is enforceable by the California Victim
Compensation and Government Claims Board pursuant to this section.
Notwithstanding any other provision of law prohibiting disclosure,
the state, as defined in Section 900.6 of the Government Code, a
local public entity, as defined in Section 900.4 of the Government
Code, or any other entity, may provide the California Victim
Compensation and Government Claims Board any and all information to
assist in the collection of unpaid portions of a restitution fine for
terminated probation or parole cases, or of a restitution fee for
completed diversion cases. For purposes of the preceding sentence,
"state, as defined in Section 900.6 of the Government Code," and "any
other entity" shall not include the Franchise Tax Board.
(b) In any case in which a defendant is ordered to pay
restitution, the order to pay restitution (1) is deemed a money
judgment if the defendant was informed of his or her right to have a
judicial determination of the amount and was provided with a hearing,
waived a hearing, or stipulated to the amount of the restitution
ordered, and (2) shall be fully enforceable by a victim as if the
restitution order were a civil judgment, and enforceable in the same
manner as is provided for the enforcement of any other money
judgment. Upon the victim's request, the court shall provide the
victim in whose favor the order of restitution is entered with a
certified copy of that order and a copy of the defendant's disclosure
pursuant to paragraph (4) (5) of
subdivision (f) of Section 1202.4, affidavit or information pursuant
to paragraph (5) (6) of subdivision (f)
of Section 1202.4, or report pursuant to paragraph (7)
(8) of subdivision (f) of Section 1202.4. The
court also shall provide this information to the district attorney
upon request in connection with an investigation or prosecution
involving perjury or the veracity of the information contained within
the defendant's financial disclosure. In addition, upon request, the
court shall provide the California Victim Compensation and
Government Claims Board with a certified copy of any order imposing a
restitution fine or order and a copy of the defendant's disclosure
pursuant to paragraph (4) (5) of
subdivision (f) of Section 1202.4, affidavit or information pursuant
to paragraph (5) (6) of subdivision (f)
of Section 1202.4, or report pursuant to paragraph (7)
(8) of subdivision (f) of Section 1202.4. A
victim shall have access to all resources available under the law to
enforce the restitution order, including, but not limited to, access
to the defendant's financial records, use of wage garnishment and
lien procedures, information regarding the defendant's assets, and
the ability to apply for restitution from any fund established for
the purpose of compensating victims in civil cases. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation or , parole ,
postrelease community supervision under Section 3451, or mandatory
supervision imposed pursuant to subparagraph (B) of paragraph (5) of
subdivision (h) of Section 1170 is enforceable by the victim
pursuant to this section. Victims and the California Victim
Compensation and Government Claims Board shall inform the court
whenever an order to pay restitution is satisfied.
(c) Except as provided in subdivision (d), and notwithstanding the
amount in controversy limitation of Section 85 of the Code of Civil
Procedure, a restitution order or restitution fine that was imposed
pursuant to Section 1202.4 in any of the following cases may be
enforced in the same manner as a money judgment in a limited civil
case:
(1) In a misdemeanor case.
(2) In a case involving violation of a city or town ordinance.
(3) In a noncapital criminal case where the court has received a
plea of guilty or nolo contendere.
(d) Chapter 3 (commencing with Section 683.010) of Division 1 of
Title 9 of Part 2 of the Code of Civil Procedure shall not apply to
any of the following:
(1) A judgment for any fine.
(2) Any restitution fine or restitution order imposed pursuant to
Section 1202.4, 1202.44, or 1202.45, or Section 1203.04, as operative
on or before August 2, 1995, or Section 13967 of the Government
Code, as operative on or before September 28, 1994.
(3) Any diversion restitution fee ordered pursuant to Section
1001.90.
SEC. 2. SEC. 3. Section 2085.5 of
the Penal Code is amended to read:
2085.5. (a) In any case in which a prisoner owes a restitution
fine imposed pursuant to subdivision (a) of Section 13967 of the
Government Code, as operative prior to September 28, 1994,
subdivision (b) of Section 730.6 of the Welfare and Institutions
Code, or subdivision (b) of Section 1202.4, the Secretary of the
Department of Corrections and Rehabilitation, or, when a prisoner is
punished by imprisonment in a county jail pursuant to
subdivision (h) of Section 1170 , the agency designated by the
board of supervisors in the county where the prisoner is
incarcerated, shall deduct a minimum of 20 percent or the balance
owing on the fine amount, whichever is less, up to a maximum of 50
percent from the wages and trust account deposits of a prisoner, or
the county jail equivalent of wages and trust account deposits of a
prisoner, unless prohibited by federal law, and shall transfer that
amount to the California Victim Compensation and Government Claims
Board for deposit in the Restitution Fund in the State Treasury. Any
amount so deducted shall be credited against the amount owing on the
fine. The sentencing court shall be provided a record of the
payments.
(b) In any case in which a prisoner owes a restitution order
imposed pursuant to subdivision (c) of Section 13967 of the
Government Code, as operative prior to September 28, 1994,
subdivision (h) of Section 730.6 of the Welfare and Institutions
Code, or subdivision (f) of Section 1202.4, the Secretary of the
Department of Corrections and Rehabilitation, or, when a prisoner is
punished by imprisonment in a county jail pursuant to
subdivision (h) of Section 1170 , the agency designated by the
board of supervisors in the county where the prisoner is
incarcerated, shall deduct a minimum of 20 percent or the balance
owing on the order amount, whichever is less, up to a maximum of 50
percent from the wages and trust account deposits of a prisoner, or
the county jail equivalent of wages and trust account deposits of a
prisoner, unless prohibited by federal law. The secretary or the
agency shall transfer that amount to the California Victim
Compensation and Government Claims Board for direct payment to the
victim, or payment shall be made to the Restitution Fund to the
extent that the victim has received assistance pursuant to that
program. The sentencing court shall be provided a record of the
payments made to victims and of the payments deposited to the
Restitution Fund pursuant to this subdivision.
(c) The secretary, or, when a prisoner is punished by imprisonment
in a county jail pursuant to subdivision (h) of Section 1170
, the agency designated by the board of supervisors in the
county where the prisoner is incarcerated, shall deduct and retain
from the wages and trust account deposits of a prisoner, or the
county jail equivalent of wages and trust account deposits of a
prisoner, unless prohibited by federal law, an administrative fee
that totals 10 percent of any amount transferred to the California
Victim Compensation and Government Claims Board pursuant to
subdivision (a) or (b). The secretary or the agency shall deduct and
retain from any prisoner settlement or trial award, an administrative
fee that totals 5 percent of any amount paid from the settlement or
award to satisfy an outstanding restitution order or fine pursuant to
subdivision (j), unless prohibited by federal law. The secretary or
the agency shall deposit the administrative fee moneys in a special
deposit account for reimbursing administrative and support costs of
the restitution program of the Department of Corrections and
Rehabilitation. The secretary, at his or her discretion, or the
agency may retain any excess funds in the special deposit account for
future reimbursement of the department's administrative and support
costs for the restitution program or may transfer all or part of the
excess funds for deposit in the Restitution Fund.
(d) In any case in which a parolee owes a restitution fine imposed
pursuant to subdivision (a) of Section 13967 of the Government Code,
as operative prior to September 28, 1994, subdivision (b) of Section
730.6 of the Welfare and Institutions Code, or subdivision (b) of
Section 1202.4, the secretary, or, when a prisoner is punished by
imprisonment in a county jail pursuant to subdivision
(h) of Section 1170 , the agency designated by the board of
supervisors in the county where the prisoner is incarcerated, may
collect from the parolee any moneys owing on the restitution fine
amount, unless prohibited by federal law. The secretary or the agency
shall transfer that amount to the California Victim Compensation and
Government Claims Board for deposit in the Restitution Fund in the
State Treasury. Any amount so deducted shall be credited against the
amount owing on the fine. The sentencing court shall be provided a
record of the payments.
(e) In any case in which a parolee owes a direct order of
restitution, imposed pursuant to subdivision (c) of Section 13967 of
the Government Code, as operative prior to September 28, 1994,
subdivision (h) of Section 730.6 of the Welfare and Institutions
Code, or paragraph (3) of subdivision (a) of Section 1202.4, the
secretary, or, when a prisoner is punished by imprisonment in a
county jail pursuant to subdivision (h) of Section 1170 ,
the agency designated by the board of supervisors in the county where
the prisoner is incarcerated, may collect from the parolee any
moneys owing, unless prohibited by federal law. The secretary or the
agency shall transfer that amount to the California Victim
Compensation and Government Claims Board for direct payment to the
victim, or payment shall be made to the Restitution Fund to the
extent that the victim has received assistance pursuant to that
program. The sentencing court shall be provided a record of the
payments made by the offender pursuant to this subdivision.
(f) The secretary, or, when a prisoner is punished by imprisonment
in a county jail pursuant to subdivision (h) of
Section 1170 , the agency designated by the board of
supervisors in the county where the prisoner is incarcerated, may
deduct and retain from any moneys collected from parolees an
administrative fee that totals 10 percent of any amount transferred
to the California Victim Compensation and Government Claims Board
pursuant to subdivision (d) or (e), unless prohibited by federal law.
The secretary or the agency shall deduct and retain from any
settlement or trial award of a parolee an administrative fee that
totals 5 percent of any amount paid from the settlement or award to
satisfy an outstanding restitution order or fine pursuant to
subdivision (j), unless prohibited by federal law. The secretary or
the agency shall deposit the administrative fee moneys in a special
deposit account for reimbursing administrative and support costs of
the restitution program of the Department of Corrections and
Rehabilitation. The secretary, at his or her discretion, or the
agency may retain any excess funds in the special deposit account for
future reimbursement of the department's administrative and support
costs for the restitution program or may transfer all or part of the
excess funds for deposit in the Restitution Fund.
(g) When a prisoner has both a restitution fine and a restitution
order from the sentencing court, the Department of Corrections and
Rehabilitation, or, when a prisoner is punished by imprisonment in a
county jail pursuant to subdivision (h) of Section 1170 ,
the agency designated by the board of supervisors in the county where
the prisoner is incarcerated, shall collect the restitution order
first pursuant to subdivision (b).
(h) When a parolee has both a restitution fine and a restitution
order from the sentencing court, the Department of Corrections and
Rehabilitation, or, when the prisoner is punished by imprisonment in
a county jail pursuant to subdivision (h) of Section 1170 ,
the agency designated by the board of supervisors in the county
where the prisoner is incarcerated, may collect the restitution order
first, pursuant to subdivision (e).
(i) If an inmate is housed at an institution that requires food to
be purchased from the institution canteen for unsupervised overnight
visits, and if the money for the purchase of this food is received
from funds other than the inmate's wages, that money shall be exempt
from restitution deductions. This exemption shall apply to the actual
amount spent on food for the visit up to a maximum of fifty dollars
($50) for visits that include the inmate and one visitor, seventy
dollars ($70) for visits that include the inmate and two or three
visitors, and eighty dollars ($80) for visits that include the inmate
and four or more visitors.
(j) Any compensatory or punitive damages awarded by trial or
settlement to any inmate or parolee ,
parolee, person placed on postrelease community supervision pursuant
to Section 3451, or defendant on mandatory supervision imposed
pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of
Section 1170, in connection with a civil action brought against
any federal, state, or local jail, prison, or correctional facility,
or any official or agent thereof, shall be paid directly, after
payment of reasonable attorney's fees and litigation costs approved
by the court, to satisfy any outstanding restitution orders or
restitution fines against that person. The balance of any award shall
be forwarded to the payee after full payment of all outstanding
restitution orders and restitution fines, subject to subdivisions (c)
and (f). The Department of Corrections and Rehabilitation, or, when
a prisoner is punished by imprisonment in a county jail pursuant
to subdivision (h) of Section 1170 , the agency designated by
the board of supervisors in the county where the prisoner is
incarcerated, shall make all reasonable efforts to notify the victims
of the crime for which that person was convicted concerning the
pending payment of any compensatory or punitive damages.
(k) (1) Amounts transferred to the California Victim Compensation
and Government Claims Board for payment of direct orders of
restitution shall be paid to the victim within 60 days from the date
the restitution revenues are received by the California Victim
Compensation and Government Claims Board. If the restitution payment
to a victim is less than fifty dollars ($50), then payment need not
be forwarded to that victim until the payment reaches fifty dollars
($50) or until 180 days from the date the first payment is received,
whichever occurs sooner.
(2) In any case in which a victim cannot be located, the
restitution revenues received by the California Victim Compensation
and Government Claims Board on behalf of the victim shall be held in
trust in the Restitution Fund until the end of the state fiscal year
subsequent to the state fiscal year in which the funds were deposited
or until the time that the victim has provided current address
information, whichever occurs sooner. Amounts remaining in trust at
the end of the specified period of time shall revert to the
Restitution Fund.
(3) Any victim failing to provide a current address within the
period of time specified in paragraph (2) may provide documentation
to the Department of Corrections and Rehabilitation or, when a
prisoner is punished by imprisonment in a county jail pursuant
to subdivision (h) of Section 1170 , to the agency designated
by the board of supervisors in the county where the prisoner is
incarcerated, which in turn shall verify that moneys were in fact
collected on behalf of the victim. Upon receipt of that verified
information from the Department of Corrections and Rehabilitation or
the agency, the California Victim Compensation and Government Claims
Board shall transmit the restitution revenues to the victim in
accordance with the provisions of subdivision (b) or (e).
SEC. 4. Section 19280 of the Revenue
and Taxation Code is amended to read:
19280. (a) (1) Fines, state or local penalties, bail,
forfeitures, restitution fines, restitution orders, or any other
amounts imposed by a juvenile or superior court of the
State of California upon a person or any other entity that are due
and payable in an amount totaling no less than one hundred dollars
($100), in the aggregate, for criminal offenses, including all
offenses involving a violation of the Vehicle Code, and any amounts
due pursuant to Section 903.1 of the Welfare and Institutions Code
may, no sooner than 90 days after payment of that amount becomes
delinquent, be referred by the juvenile or superior court,
the county, or the state to the Franchise Tax Board for collection
under guidelines prescribed by the Franchise Tax Board. Unless the
victim of the crime notifies the Department of Corrections and
Rehabilitation to the contrary, the Department of Corrections and
Rehabilitation may refer a restitution order to the Franchise Tax
Board, in accordance with subparagraph (B) of paragraph (2), for any
person subject to the restitution order who is or has been under the
jurisdiction of the Department of Corrections and Rehabilitation.
(2) For purposes of this subdivision:
(A) The amounts referred by the juvenile or superior
court, the county, or the state under this section may
include an administrative fee and any amounts that a government
entity may add to the court-imposed obligation as a result of the
underlying offense, trial, or conviction. For purposes of this
article, those amounts shall be deemed to be imposed by the court.
(B) Restitution orders may be referred to the Franchise Tax Board
only by a government entity, as agreed upon by the Franchise Tax
Board, provided that all of the following apply:
(i) The government entity has the authority to collect on behalf
of the state or the victim.
(ii) The government entity shall be responsible for distributing
the restitution order collections, as appropriate.
(iii) The government entity shall ensure, in making the referrals
and distributions, that it coordinates with any other related
collection activities that may occur by superior courts, counties, or
other state agencies.
(iv) The government entity shall ensure compliance with laws
relating to the reimbursement of the State Restitution Fund.
(C) The Franchise Tax Board shall establish criteria for referral,
which shall include setting forth a minimum dollar amount subject to
referral and collection.
(b) The Franchise Tax Board, in conjunction with the Judicial
Council, shall seek whatever additional resources are needed to
accept referrals from all 58 counties or superior courts.
(c) Upon written notice to the debtor from the Franchise Tax
Board, any amount referred to the Franchise Tax Board under
subdivision (a) and any interest thereon, including any interest on
the amount referred under subdivision (a) that accrued prior to the
date of referral, shall be treated as final and due and payable to
the State of California, and shall be collected from the debtor by
the Franchise Tax Board in any manner authorized under the law for
collection of a delinquent personal income tax liability, including,
but not limited to, issuance of an order and levy under Article 4
(commencing with Section 706.070) of Chapter 5 of Division 2 of Title
9 of Part 2 of the Code of Civil Procedure in the manner provided
for earnings withholding orders for taxes.
(d) (1) Part 10 (commencing with Section 17001), this part, Part
10.7 (commencing with Section 21001), and Part 11 (commencing with
Section 23001) shall apply to amounts referred under this article in
the same manner and with the same force and effect and to the full
extent as if the language of those laws had been incorporated in full
into this article, except to the extent that any provision is either
inconsistent with this article or is not relevant to this article.
(2) Any information, information sources, or enforcement remedies
and capabilities available to the court or the state referring to the
amount due described in subdivision (a), shall be available to the
Franchise Tax Board to be used in conjunction with, or independent
of, the information, information sources, or remedies and
capabilities available to the Franchise Tax Board for purposes of
administering Part 10 (commencing with Section 17001), this part,
Part 10.7 (commencing with Section 21001), or Part 11 (commencing
with Section 23001).
(e) The activities required to implement and administer this part
shall not interfere with the primary mission of the Franchise Tax
Board to administer Part 10 (commencing with Section 17001) and Part
11 (commencing with Section 23001).
(f) For amounts referred for collection under subdivision (a),
interest shall accrue at the greater of the rate applicable to the
amount due being collected or the rate provided under Section 19521.
When notice of the amount due includes interest and is mailed to the
debtor and the amount is paid within 15 days after the date of
notice, interest shall not be imposed for the period after the date
of notice.
(g) In no event shall a collection under this article be construed
as a payment of income taxes imposed under Part 10 (commencing with
Section 17001) or Part 11 (commencing with Section 23001).
SEC. 3. SEC. 5. If the Commission on
State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.