BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1371 (Anderson) 1
As Amended April 19, 2012
Hearing date: April 24, 2012
Penal Code
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RESTITUTION AND RESTITUTION FINES:
PROHIBITION ON SATISFYING THE DEBT BY INCARCERATION
HISTORY
Source: Author
Prior Legislation: AB 3343 (Hannigan) - Ch. 1242, Stats. 1994
AB 1505 (La Suer) - Ch. 555, Stats. 2006
Support: Unknown
Opposition:None known
KEY ISSUE
WHERE A DEFENDANT HAS BEEN ORDERED TO PAY A RESTITUTION FINE OR
DIRECT RESITITUTION TO A CRIME VICTIM, SHOULD THERE BE A PROHIBITION
ON ALLOWING THE DEFENDANT TO SATISFY THE OBLIGATION THROUGH TIME
SPENT IN CUSTODY, AS SPECIFIED?
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SB 1371 (Anderson)
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PURPOSE
The purpose of this bill is to provide that where a defendant
has been ordered to pay a restitution fine or direct
restitution, the defendant may not satisfy the obligation
through time spent in custody, calculated at the statutory rate
of $30 per day.
Existing provisions in the California Constitution state that
all crime victims have the right to seek and secure restitution
from the perpetrators of these crimes. Restitution must be
ordered in every case without exception. Where a defendant has
been ordered to pay restitution, all money, or property
collected from the defendant must be first applied to satisfy
restitution orders. (Cal. Const. Art. 1 § 28, subd.
(b)(13)(A)-(C).)
Existing law states legislative intent that a victim of crime
who incurs any economic loss as a result of the commission of a
crime shall receive restitution directly from any defendant
convicted of that crime. (Pen. Code § 1202.4, subd. (a)(1).)
Existing law directs the court to order a defendant to make
restitution to the victim or victims of the defendant's crime.
The court shall order full restitution for the losses caused by
the defendant's crime unless the court finds and states
compelling and extraordinary reasons for not doing so. (Pen.
Code § 1202.4, subd. (f).)
Existing law provides that a criminal restitution order shall be
enforceable as though it were a civil judgment. (Pen. Code §
1202.4, subd. (i).)
Existing law provides in every case where a person is convicted
of a crime, the court shall impose a separate and additional
restitution fine unless the court finds compelling and
extraordinary reasons for not doing so and states those reasons
on the record. The restitution fine for a misdemeanor shall be
no less than $120 and no more than $1,000. The restitution fine
for a felony shall be no less than $240 and no more than
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$10,000.<1> Where a defendant is committed to prison, the court
may set the restitution fine as the product of the number of
years of imprisonment and $200. Restitution fines are not
subject to penalty assessments. (Pen. Code § 1202.4, subd.
(b).)
Existing law provides where an order is made for payment of
restitution, reimbursement for legal assistance, the costs of
probation, the cost of jail or confinement, or any reimbursable
cost, the court or county financial officer - after determining
the amount of any fine and penalty assessments - shall apply the
following priorities:
If full payment is made, the court shall apportion the
money.
If installment payments are made, or money is collected
by the Franchise Tax Board collection service, disbursement
shall be made in the following order:
o Direct restitution.
o State surcharges of 20% on top of penalty
assessments added to fines.
o Fines, penalty assessments and restitution
fines - made proportionately.
o Any other reimbursable costs. (Pen. Code §
1203.1d.)
Existing law creates the Victims of Crime Program, administered
by the California Victim Compensation and Government Claims
Board<2> (VCGCB), to reimburse victims of crime for the
pecuniary losses they suffer as a direct result of criminal
acts. Indemnification is made from the Restitution Fund, which
is continuously appropriated to the VCGC. Restitution fines are
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<1> The minimum restitution fine for a misdemeanor will rise to
$140 on 1/1/2013 and $150 on 1/1/2014. Minimum fines for
felonies will be rise to $280 on 1/1/2013 and $300 on 1/1/2014.
(Pen. Code § 1202.4, subd. (b)(1).)
<2> This entity was formerly known as the State Board of
Control. (Govt. Code § 13900 amended by AB 2491 - Ch. 1016,
Stats. 2000.) Hereinafter, references to "the board" are
references to the CVCGCB.
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deposited into the fund. (Gov. Code §§ 13950-13968.)
Existing law provides that when a defendant is sentenced to
state prison and owes a restitution fine or a restitution order,
the California Department of Corrections and Rehabilitation may
deduct 20 to 50% from the prisoner's wages to satisfy these
obligations. These funds shall be transmitted to the VCGCG for
direct payment to a victim, for deposit into the Restitution
Fund for payments to qualifying victims, and to reimburse the
VCGCB for payments made to victims. (Pen. Code § 2085.5, subd.
(a)-(b).)
Existing law provides that where the court orders a criminal
defendant to pay a fine, with or without other punishment, the
court may direct that the defendant be imprisoned until the fine
is paid. The time of imprisonment shall be calculated as no
more than one day for each $30 owed in fines. A defendant
imprisoned for non-payment of a fine shall be credited on the
fine for each day of imprisonment. (Pen. Code § 1205, subd.
(a).)
Existing law provides where the court imposes a fine as a
condition of probation, including imposition of "restitution
fines or restitution orders," the defendant shall pay the fine
to the court clerk. Upon default, the court shall order the
arrest of the defendant who shall show cause why he or she
should not be imprisoned until the fine is paid. If the court
has given the defendant time to pay the fine, or allowed payment
of the fine in installments, the court shall order the
defaulting defendant to be imprisoned until the fine is paid.
(Pen. Code § 1205, subd. (b).)
Existing law concerning imprisonment for non-payment of fines
shall apply to restitution fines and restitution orders only if
the defendant has defaulted on other fines. (Pen. Code § 1205,
subd. (e).)
This bill provides that where a defendant has been ordered to
pay direct restitution to a victim or a restitution fine, or
both, the defendant may not satisfy the obligation or
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obligations through time spent in custody, as specified, at the
statutory rate of $30 per day.
COMMENTS
1. Need for This Bill
According to the author:
The purpose of Senate Bill 1371 is simply to ensure
that restitution fines and orders are not eligible to
be converted to additional time in prison. With this
bill, we can minimize the loss of potential
restitution collection.
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2. Clear Constitutional and Statutory Requirement that a
Defendant Pay Direct Restitution
to the Victim and a Restitution Fine to Fund the Victims of
Crime Program
The California Constitution unequivocally provides that a
criminal defendant shall pay restitution to his or her victim.
(Cal. Const. Art. 1 § 28, subd. (b).) Penal Code Section 1202.4
implements the dictates of the Constitution in this regard,
specifically providing that a restitution order shall cover all
economic losses suffered by a victim. (Pen. Code §1202.4, subd.
(f).) Restitution provides a measure of a remedy for victims
and rehabilitation for defendants, rather than punishment alone,
in the criminal law. (People v. Crow (1993) 6 Cal.4th 952,
958.)
It appears that allowing a defendant to satisfy an order to pay
direct restitution to the victim by crediting the defendant $30
against the order for each day of incarceration against the
amount of restitution would contravene the dictates of the
Constitution. Allowing a defendant to satisfy a restitution
order by serving a term of incarceration - essentially a
punishment meted out and collected by the state - would
frustrate the purpose of restitution. That is, the purpose of
restitution is to repay the victim for economic losses and
rehabilitate the defendant, but the execution of a term of
imprisonment, or payment of a fine to the state, does nothing to
repair the harm caused to the victim and little to rehabilitate
the defendant. (People v. Moser (1996) 50 Cal.App.4th 130,
135-136 - difference between restitution and a criminal fine.)
Additional incarceration of the defendant could even harm the
victim's ability to obtain and execute a civil judgment against
the defendant, as the defendants cannot earn any significant
income while incarcerated.
Similarly, the purpose of a restitution fine appears to assist
all crime victims in recovering economic losses, even a victim
who has little prospect of collecting restitution from the
person who committed a crime against him or her. (Pen. Code §
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1202.4. subd. (b).) Unless compelling and extraordinary
circumstances are shown, all persons convicted of crimes must
pay a restitution fine to make amends to society in a way that
helps crime victims. Inability to pay does not constitute
compelling and extraordinary circumstances excusing payment of a
restitution fine. Inability to pay only affects the calculation
of the amount of any fine greater than the minimum fine. (Pen.
Code § 1202.4, subd. (c).) Arguably, the purpose of the
restitution fine is defeated if the defendant simply serves a
term of incarceration instead paying a monetary penalty that
goes to victims.
The VCGCB has informed Committee staff that criminal defendants
have obtained orders that they be allowed to satisfy restitution
fines and restitution orders through credits of $30 per each day
in custody. For example, a defendant ordered to pay a
restitution fine of $3,000 could satisfy that debt after 100
days in custody. It also appears that the fine credits have
been granted as to custody time the defendant will serve in any
event, not custody time imposed in addition to the underlying
term of incarceration. The Victims of Crime Fund would receive
nothing from this arrangement, limiting the ability of the
program to award compensation to victims.
Further, as the VCGCB has noted in discussions with Committee
staff, an order allowing an inmate to satisfy a restitution
order or restitution fine appears to be in conflict with
existing law. That is, Penal Code Section 1205, subdivision
(f), only authorizes crediting custody time against amounts owed
for restitution or restitution fines if the inmate has defaulted
on payment of other fines. Penal Code Section 1203.1d appears
to require collection of direct restitution before collection of
fines or fees and that restitution fines, general criminal fines
and penalty assessments shall be collected in proportionate
measure, but after restitution. Thus, a defendant would not
default on other fines before defaulting on restitution orders
and restitution fines.
WHERE A DEFENDANT HAS BEEN ORDERED TO PAY A RESITUTION FINE OR
DIRECT RESTITUTION TO HIS OR HER VICTIM, SHOULD THERE BE A
SB 1371 (Anderson)
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PROHIBITION ON SATISFYING THE OBLIGATIONS THROUGH INCARCERATION?
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