BILL ANALYSIS Ó
SB 1371
Page 1
Date of Hearing: June 12, 2012
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1371 (Anderson) - As Amended: May 16, 2012
SUMMARY : Prohibits a defendant from satisfying an order to pay
direct restitution to a victim, a restitution fine, or both,
through time spent in custody at the statutory rate of $30 per
day. Specifically, this bill :
1)Provides that where a defendant has been ordered to pay a
restitution order or restitution fine, or both, the defendant
may not satisfy those obligations through time spent in
custody, at the statutory rate of $30 per day.
2)Contains an urgency clause.
3)Makes technical, non-substantive changes.
EXISTING LAW :
1)States it is the unequivocal intention of the People of the
State of California that all persons who suffer losses as a
result of criminal activity shall have the right to
restitution from the persons convicted of the crimes for
losses they suffer. Restitution shall be ordered from the
convicted persons in every case, regardless of the sentence or
disposition imposed, in which a crime victim suffers a loss,
unless compelling and extraordinary reasons exist to the
contrary. ĘCal. Const., Art. I, sec. 28(b).]
2)States that, in addition to any other penalty provided or
imposed under the law, the court shall order the defendant to
pay both a restitution fine and restitution to the victim or
victims, if any. ĘPenal Code Section 1202.4(a)(3).]
3)Requires full victim restitution for economic losses
determined by the court. ĘPenal Code Section 1202.4(f).]
4)Gives the court the discretion to set the amount of the
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restitution fine commensurate with the seriousness of the
offense and other factors, as specified. ĘPenal Code Section
1202.4(b)(1) and (d).]
5)Mandates the restitution fine for felony offenses shall not be
less than $240 and not more than $10,000. ĘPenal Code Section
1202.4(b)(1).]
6)Mandates the restitution fine for misdemeanor offenses shall
not be less than $120 and not more than $1,000. ĘPenal Code
Section 1202.4(b)(1).]
7)Permits the court to set the amount of the fine as the product
of the minimum fine multiplied by the number of years of
imprisonment the defendant is ordered to serve, multiplied by
the number of felony counts of conviction. ĘPenal Code
Section 1202.4(b)(2).]
8)Requires the trial court to impose the restitution fine unless
it finds compelling and extraordinary reasons for not doing
so, and states those reasons on the record. ĘPenal Code
Section 1202.4(c).]
9)Declares that inability to pay is not a compelling reason for
declining to impose the fine, but that inability to pay can be
considered as a factor in setting the fine above the statutory
minimum. ĘPenal Code Section 1202.4(c).]
10)Authorizes the court to incarcerate a defendant until an
imposed criminal fine is satisfied, but limits such
imprisonment to the maximum term permitted for the particular
offense of conviction. ĘPenal Code Section 1205(a).]
11)Requires that the time of imprisonment for failure to pay a
fine be calculated as no more than one day for every $30 of
the fine. ĘPenal Code Section 1205(a).]
12)Specifies that imprisonment for non-payment of fines shall
apply to restitution fines and victim restitution orders only
if the defendant has defaulted on other fines. ĘPenal Code
Section 1205(e).]
13)Provides that direct victim restitution and the restitution
fine are enforceable as civil judgments. ĘPenal Code Section
1202.4(i) and 1214.]
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : 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."
2)Prioritization of Court-Ordered Debt : Penal Code Section
1203.1d prioritizes the order in which delinquent
court-ordered debt received is to be satisfied. Payments are
applied first to victim restitution, and then to the 20% state
surcharge required by Penal Code Section 1465.7. Next,
payments are applied to restitution fines pursuant to Penal
Code Section 1202.4 and any other fines, penalty assessments,
with payments made on a proportional basis to the total amount
levied for all of these items. Once these debts are
satisfied, payments are applied toward any reimbursable costs
as required by law, such as the costs of probation, probation
investigation, and attorney fees. ĘPenal Code Section
1203.1d(b).]
3)Penal Code Section 1205 : Penal Section 1205 gives the court
power to enforce payment of fine in criminal case by
imprisonment. However, imprisonment pending payment of a fine
is unconstitutional as applied to a convicted indigent
defendant if the failure to pay is due to indigence and not to
willfulness. ĘIn re Antazo (1970) 3 Cal.3d 100, 103-104.]
Penal Code Section 1205 is also used by defendants as a vehicle
to request that the trial court exercise its discretion to
convert fines to jail time.
Currently, Penal Code Section 1205(f) only authorizes crediting
custody time against amounts owed for restitution or
restitution fines if the inmate has defaulted on payment of
other fines.
4)Constitutional and Statutory Requirement that a Defendant Pay
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
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restitution to his or her victim. ĘCal. Const. Art. 1 sec.
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. ĘPenal Code Section 1202.4(f).]
Restitution provides a measure of a remedy for victims and
rehabilitation for defendants, rather than punishment alone,
in the criminal law. ĘPeople 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. ĘPeople 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 the restitution fine is 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. ĘPenal Code Section
1202.4(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. ĘPenal Code Section 1202.4 (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.
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5)California Victim Compensation and Government Claims Board
(VCGCB) : According to the VCGCB's Web site
(), VCGCB administers the California
Victim Compensation Program (CalVCP). This program provides
compensation for victims of violent crime and reimburses many
crime-related expenses. CalVCP funding comes from restitution
fines, penalty assessments, and federal matching funds.
According to the VCGCB, the projected fiscal condition of the
restitution fund (as of January 2012) is (dollars in
thousands, except in salary range):
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2010-11
2011-12
2012-13
BEGINNING BALANCE $ 45,760 $ 28,409$ 19,267
Prior Year Adjustment -
7,654 - -
Adjusted Beginning Balance $ 38,106$
28,409 $ 19,267
REVENUES, TRANSFERS, & OTHER
ADJUSTMENTS
Penalties on Felony Convictions
56,549 57,000 57,000
Fines-Crimes of Public Offense
5,989 5,000 5,000
Misc. Services to the Public
5 1 1
Escheat of Unclaimed Checks & Warrants 260
207 207
Misc. Revenue 62
1 1
Penalty Assessments 49,064
47,095 45,645
Civil & Criminal Violation Assessment
2,131 2,000 2,000
Total Revenues, Transfers & Other
Adjustments $114,060
$111,304 $109,854
Total Resources $152,166
$139,713 $129,121
EXPENDITURES & EXPENDITURE
ADJUSTMENTS
Expenditures:
California Emergency Management Agency
State Operations
235 299 19
Local Assistance
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9,715 9,715 500
Department of Justice
State Operations
336 355 360
Local Assistance
4,855 4,855 4,855
State Controller (State Operations)
80 47 40
CVCGCB
State Operations
25,364 32,392 32,779
Local Assistance
83,102 72,671 72,671
Board of State & Community Corr.
State Operations -
- 280
Local Assistance -
- 9,215
CA Financial Inf. System (State Operations)
70 112
30
Total Expenditures & Expenditure
Adjustments $123,757
$120,446 $120,749
FUND BALANCE $ 28,409 $ 19,267 $ 8,372
Reserve for Economic Uncertainties $
28,409 $ 19,267$ 8,372
6)Related Legislation : AB 898 (Alejo) , Chapter 358, Statutes
of 2011, increases the minimum restitution fine incrementally
over a three year period from $200 to $300 for a felony
conviction and from $100 to $150 for a misdemeanor conviction.
REGISTERED SUPPORT / OPPOSITION :
Support
Crime Victims United
Opposition
SB 1371
Page 8
None
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744