BILL ANALYSIS �
AB 139
Page 1
Date of Hearing: March 5, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 139 (Holden) - As Amended: March 6, 2013
SUMMARY : Clarifies that the payment imposed on a defendant who
is granted probation for a domestic violence crime is a fee, not
a fine. Specifically, this bill :
1)Specifies that the payment to be made by the defendant when
convicted of a domestic violence-related offense and granted
probation is to be treated as a fee and not a fine.
2)Provides that the fee is not subject to reduction for time
served.
3)Permits collection of the fee after the termination of
probation by the collection agency or its designee.
4)Authorizes up to 8% of the moneys deposited in the Domestic
Violence Programs Special Fund to be used for administrative
costs, as specified.
5)Allows the county board of supervisors to request an
accounting report of the special fund on not more than
quarterly basis.
6)Specifies that the accounting reports shall include all of the
following:
a) The balance of the special fund at the beginning of the
request period;
b) Deposits into the special fund in the request period,
including a breakdown of the sources;
c) Disbursements of the funds during the request period;
and,
d) The fund balance at the end of the request period.
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EXISTING LAW :
1)Requires certain probation conditions be imposed when a person
found guilty of a domestic-violence-related offense is granted
probation. [Penal Code Section 1203.097(a).]
2)Specifies that one of the mandatory conditions of probation
for a domestic-violence-related offense is a minimum payment
of $500. The court may reduce or waive the fee if, after a
hearing in open court, it finds that the defendant does not
have the ability to pay it. [Penal Code Section
1203.097(a)(5).]
3)Provides that two-thirds of the moneys collected from the
domestic violence probation fee shall be retained by the
counties and deposited in the Domestic Violence Programs
Special Fund, and the remainder is transferred to the State
Controller to be deposited in equal amounts in the Domestic
Violence Restraining Order Reimbursement Fund and the Domestic
Violence Training and Education Fund. [Penal Code Section
1203.097(a)(5).]
4)Allows the court to require as a condition of probation that a
defendant make payments of up to $5,000 to a battered women's
shelter. These payments are in lieu of a fine, but not in
lieu of the fund payment. [Penal Code Section
1203.097(a)(11).]
5)Provides that if a defendant is ordered to pay a fine as a
condition of probation, it may be enforced during the term of
probation in the same manner as is provided for the
enforcement of money judgments. If the defendant willfully
fails to pay a fine imposed as a condition of probation during
the probationary period, this may be treated as a violation of
probation. [Penal Code Section 1214.2(a) and (b)(1).]
6)Specifies that if there is an unpaid balance on a fine imposed
as a condition of probation at the end of the probationary
term, the balance may be enforced as a civil judgment. [Penal
Code Section 1214.2(b)(1).]
7)Provides that $23 of a marriage-license fee be allocated for
funding the county domestic violence shelter-based programs
special fund. [Welfare and Institutions Code Section
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18305(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The California
State Auditor conducted a four-year study analyzing the
payments used to support domestic violence shelters in Los
Angeles, Sacramento, San Diego and Santa Clara. The report
revealed that individual courts and county agencies use
different methods for collecting payments made by those
sentenced to probation.
"State courts differ in their interpretations of whether the
payments are actually fines or fees, therefore counties are
unable to distribute available domestic violence funds
accurately, thus hindering shelters' ability to provide as
many services to victims.
"AB 139 clarifies that the $500 fee issued to every individual
who is given probation for a crime of domestic violence, is an
administrative fee, and not a punitive fine."
2)Bureau of State Audits Report : In September 2012, the
California State Auditor released a report on domestic
violence payments by probationers. To ensure consistent
assessment, collection, and allocation of the payments, the
report made several recommendations including: clarification
of whether the Legislature intends the domestic violence
payment to be a fine or a fee; and whether collection entities
have the authority to continue pursuing collection of payments
once an individual's term of probation expires.
(.)
3)Fine vs. Fee : The distinction between a fine and a fee is
important in criminal cases because it has constitutional
implications. The ex post facto clauses of the federal and
California constitutions prohibit retroactive application of a
law that increases the punishment for a criminal act. (U.S.
Const., art. I, � 10, cl. 1, and Cal. Const. art. I, � 9.)
Fines are generally considered punitive because they arise
from convictions. [People v. Alford (2007) 42 Cal.4th 749,
757.] In contrast, "fees" are generally considered "a fixed
charge" applied to users of the system, and are not considered
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punitive. [People v. High (2004) 119 Cal.App.4th 1192, 1199.]
Whether a payment is a fine or a fee does not necessarily depend
on the descriptive language used by the Legislature. In
determining the character of a payment as a fine or a as a
fee, the courts consider whether the Legislature intended the
sanction to be punitive, and, if not, whether the sanction is
so punitive in effect as to prevent the court from
legitimately viewing it as regulatory or civil in nature,
despite the legislative intent. [People v. Alford, supra, 42
Cal.4th at p. 755.] "The United States Supreme Court has
articulated certain non-exclusive factors governing this
determination. 'The factors most relevant to our analysis are
whether, in its necessary operation, the regulatory scheme:
has been regarded in our history and tradition as punishment;
imposes an affirmative disability or restraint; promotes the
traditional aims of punishment; has a rational connection to a
nonpunitive purpose; or is excessive with regard to this
purpose.' " [Id. at 757, quoting Smith v. Doe (2003) 538 U.S.
84.]
Based on these factors, the criminal laboratory analysis "fee"
(Health and Safety Code Section 11372.5) has been deemed to be
a fine, despite the Legislature calling it a "fee." In so
holding, the court found it significant that the "fee" is
imposed only upon conviction for specified criminal offenses;
it has no application in the civil context; it is assessed in
proportion to the defendant's culpability because it attaches
to each separate conviction; it is mandatory and not dependent
on ability to pay; and that the monies collected are to be
used for law enforcement purposes. [People v. Sharret (2011)
191 Cal.App.4th 859, 869-870.]
This bill seeks to clarify that the payment imposed on a
defendant who is granted probation for a domestic violence
crime is a fee, and not a fine. As to this particular
payment, two cases are instructive. In People v. Delagdo
(2006) 140 Cal.App.4th 1157, the Court of Appeal held that the
mandatory probation conditions listed in Penal Code Section
1203.097, including the payment at issue here, could not be
applied to a defendant whose crimes were committed before the
statute's effective date because to do so would violate the
prohibition against ex post facto laws. This suggests the
payment is punitive.
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On the other hand, an opinion issued by the Office of the
Attorney General (OAG) considered whether the payment
constituted a fine for the purposes of assessing penalty
assessments, and concluded it did not. [81 Ops.Cal.Atty.Gen.
131 (1998).] The OAG relied on the language of the statutory
scheme. The Legislature labeled it as a "payment" and never
used the words "penalty," "fine," or "forfeiture" to describe
it. And in a different subdivision, the Legislature
distinguished between the "fund payment" on the one hand and a
"fine" on the other.
Although this bill deems the payment to be a fee, based on the
relevant factors discussed above, it is possible that a court
will determine otherwise because: the fee is only imposed
upon conviction; it has no application in the civil context;
it is a mandatory condition of probation; and the amount is
significant.
4)Collection of Fee after the Probationary Period : Currently,
there is statutory authority by which any balance remaining on
a fine imposed as a condition of probation may be collected
after the period of probation ends. (Penal Code Section
1214.2.) There does not appear to be such statutory authority
with regards to most fees. While this bill contains a
provision saying the local collection agency may collect the
fee after termination of probation, it is unclear what the
enforcement mechanism would be.
5)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 and 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 other
reimbursable costs, such as fees. [Penal Code Section
1203.1d(b).] By characterizing this payment as a fee,
disbursements will be in the last category of priority.
6)Effectiveness of Fines, Fees and Penalty Assessments : In
2006, on behalf of this Committee, the California Research
Bureau (CRB) completed a report, Who Pays for Penalty
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Assessment Programs in California.
(.) At that
time, California had more than 269 dedicated funding streams
for court fines, fees, surcharges, and penalty assessments in
16 different statutory codes. (Id. at p. 28.) CRB determined
that the majority of penalty assessment revenue, roughly 86 %,
is generated by traffic-related offenses. (Id. at pp. 22-23.)
CRB found "the direct financial relationship between the
offenses that generate penalty assessment revenue and the
programs that benefit from those assessments is at times
difficult to discern. While a particular statute may specify
that a penalty assessment should be distributed to specific
county and state funds, the system of payment records
maintained by court and county clerks generally only
identifies the amounts distributed to the specific funds but
not the offenses that generated the dollars. In other words,
the penalty assessments all go into a big pot and are
re-allocated as directed by statute." (Id. at p. 14.)
Moreover, "[b]ecause counties use different methods to collect
unpaid debt, offenders are treated differently. Currently
state law allows collection practices to vary from county to
county." (Id. at p. 26.) "Until a uniform county collection
standard is developed for criminal offenses in all 58
counties, questions about equity will remain." (Ibid.)
7)Argument in Support : According to the California Partnership
to End Domestic Violence (the sponsor of this bill), "A recent
state audit revealed that courts and counties have been
inconsistent in their collection and distribution of fees
charged to offenders convicted of domestic violence. As these
fees ultimately go to local domestic violence shelters, these
inconsistencies have led to a significant reduction in
available funding for domestic violence victims, and reduced
accountability for individuals convicted of a domestic
violence crime.
"Among the auditor's recommendations was that the Legislature
clarify the type of assessment to ensure consistency across
counties. AB 139 would clarify that the $500 payment is an
administrative fee, and not a punitive fine, therefore the
offender must pay unless the judge determines they are
financially unable. This clarification is important because
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it would ensure the Legislature's intent to use portions of
the $500 fee to generate funding for local domestic violence
programs."
8)Argument in Opposition : According to the California Public
Defenders Association , "Approximately three quarters of those
charged with a misdemeanor and 90% of those charged with a
felony meet the indigency requirements of being represented by
a public defender, meaning in the vast majority of these
cases, individuals charged with these crimes likely do not
have the ability to pay any or all of these associated fines
and fees.
"It is counterproductive to our client's rehabilitation and
reintegration into their families and communities to take away
judicial discretion to award a reduction in fines based on
time served. Our clients, who are substantially fined and
must pay for a 52 week domestic violence counseling program at
their own expense, may find the additional burden associated
with no option of reduction in fines in exchange for time
served financially untenable. This may result in a reduction
in participation in the requisite programs, failure to pay
existing fines, and associated jail time."
9)Related Legislation : SB 38 (De Le�n) clarifies whether the
assessment on domestic violence probationers under Penal Code
Section 1203.097 is a fine or a fee, and also clarifies the
allocation of the collected funds. SB 38 is pending referral
by the Senate Rules Committee.
10)Prior Legislation :
a) AB 2094 (Butler), Chapter 511, Statutes of 2012,
increased the domestic violence fund payment from a minimum
of $400 to a minimum of $500, and required the court to
state a reason on the record if it reduces or waives the
minimum fee.
b) AB 2011 (Arambula), Chapter 132, Statutes of 2010,
increased the minimum fee paid by a person granted
probation for a crime of domestic violence from $200 to
$400, and changed the distribution formula of the monies
collected.
c) AB 352 (Goldberg), Chapter 431, Statutes of 2003, among
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other things, increased the mandatory minimum fine imposed
on persons granted probation for a domestic violence crime
from $200 to $400 until 2007.
d) ABx1 93 (Burton), Chapter 28, Statutes of 1993, required
a person granted probation for a domestic-violence crime to
make a minimum payment of $200. Two-thirds of the money
was to be retained by counties and deposited in the
domestic violence programs special fund. The remainder to
be transferred to the State Controller for deposit in the
Domestic Violence Restraining Order Reimbursement Fund and
the Domestic Violence Training and Education Fund.
REGISTERED SUPPORT / OPPOSITION :
Support
California Partnership to End Domestic Violence (Sponsor)
Alliance Against Family Violence and Sexual Assault
California Communities United Institute
Casa de Esperanza, Inc.
Domestic Violence Education and Services
Family Services of Tulare County
Human Options, Inc.
Mountain Crisis Services
North County Women's Shelter and Resource Center
Peace of Violence
Rainbow Services
Women's Foundation of California
Opposition
California Public Defenders Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744