BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 139 (Holden)
As Amended March 6, 2013
Hearing date: June 4, 2013
Penal and Welfare and Institutions Codes
AA:mc
DOMESTIC VIOLENCE:
PROBATION PAYMENT
HISTORY
Source: California Partnership to End Domestic Violence
Prior Legislation: AB 2094 (Butler) - Chapter 511, Statutes of
2012
AB 2011 (Arambula) - Chapter 132, Statutes of 2010
AB 352 (Goldberg) - Chapter 431, Statutes of 2003
ABx1 93 (Burton) - Chapter 28, Statutes of 1993
Support: American Federation of State, County and Municipal
Employees (AFSCME), AFL-CIO; State Public Affairs Committee
of the Junior Leagues of California; National
Organization for Women; Peace Over Violence; Mountain Crisis
Services; Family Services of Tulare County; Human Options, Inc.;
North County Women's Shelter & Resource Center; The Women's
Foundation of California; YWCA of Glendale; DOVES of
Big Bear Valley, Inc.; Alliance Against Family Violence and
Sexual Assault; Rainbow Services, Ltd.; Casa de Esperanza;
California Communities United Institute
Opposition:California Public Defenders Association
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Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD THE PAYMENT IMPOSED ON A DEFENDANT WHO IS GRANTED PROBATION
FOR A DOMESTIC VIOLENCE CRIME BE CHARACTERIZED AS A "FEE," NOT A
"FINE"?
PURPOSE
The purpose of this bill is to characterize the payment imposed
on a defendant who is granted probation for a domestic violence
crime as a fee, not a fine.
Current law requires certain probation conditions be imposed
when a person found guilty of a domestic-violence-related
offense is granted probation. (Penal Code § 1203.097(a).)
Current law 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 § 1203.097(a)(5).)
Current law 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 §
1203.097(a)(5).s)
Current law allows the court to require as a condition of
probation that a defendant make payments of up to $5,000 to a
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battered women's shelter. These payments are in lieu of a fine,
but not in lieu of the fund payment. (Penal Code §
1203.097(a)(11).)
Current law 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 § 1214.2(a) and (b)(1).)
Current law 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 § 1214.2(b)(1).)
Current law 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
§ 18305(a).)
This bill would specify 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.
This bill would provide that the fee is not subject to reduction
for time served.
This bill would permit collection of the fee after the
termination of probation by the collection agency or its
designee.
This bill would authorize up to 8% of the moneys deposited in
the Domestic Violence Programs Special Fund to be used for
administrative costs, as specified.
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This bill would statutorily state that county boards of
supervisors may request an accounting report of the special fund
on not more than quarterly basis, and that these accounting
reports shall include all of the following:
the balance of the special fund at the beginning of the
request period;
deposits into the special fund in the request period,
including a breakdown of the sources;
disbursements of the funds during the request period;
and
the fund balance at the end of the request period.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
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historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
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reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Author's Amendments
The author intends to amend this bill in Committee to add the
following uncodified intent language:
Domestic violence affects women, men, and children of
all backgrounds, yet still remains as an underreported
crime. Holding perpetrators of domestic violence
accountable for their crimes improves public safety and
ensures resources are maximized to offer as many services
to victims.
Domestic violence programs in California provide
essential, lifesaving services for survivors and their
children fleeing from violence. Studies show that access to
these services offered by domestic violence shelters leads
to a 60-70 percent reduction in the number of repeat
assaults.
To empower victims affected by domestic violence, the
probationer's fee strengthens the programs available for
survivors and their children. Therefore, improving the
assessment, collection, and distribution of the
probationer's fee will ensure stable funding for service
providers and produce efficient county level oversight.
It is the intent of the Legislature to increase
transparency in the assessment, collection, and
disbursement of the probationer's fee and to encourage the
availability of domestic violence programs.
2. Stated Need for This Bill
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The author states:
The California State Auditor conducted a four-year
study analyzing the payments used to support domestic
violence shelters in four counties: 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 convicted of domestic violence and 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 payment issued to every
individual who is given probation for a crime of
domestic violence, is a fee, and not a fine.
3. 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.<1>
4. 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
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<1> http://www.bsa.ca.gov/pdfs/reports/2011-121.pdf.
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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 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 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
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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. Delgado (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.
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. 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
might 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.
5. 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
§ 1214.2.) There does not appear to be such statutory authority
with regard 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.
Penal Code Section 1203.1d prioritizes the order in which
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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 § 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, the California Research Bureau (CRB) completed a
report, Who Pays for Penalty Assessment Programs in
California.<2> At that time, California had more than 269
dedicated funding streams for court fines, fees, surcharges, and
penalty assessments in 16 different statutory codes. CRB
determined that the majority of penalty assessment revenue,
roughly 86 %, is generated by traffic-related offenses.
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."<3>
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<2> http://www.library.ca.gov/crb/06/03/06-003.pdf
<3> 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."<4> "Until a uniform county collection standard is
developed for criminal offenses in all 58 counties, questions
about equity will remain."<5>
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 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
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<4> Id. at p. 26.
<5> Id. at p. 14.
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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. Prior Legislation
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.
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.
AB 352 (Goldberg), Chapter 431, Statutes of 2003, among other
things, increased the mandatory minimum fine imposed on persons
granted probation for a domestic violence crime from $200 to
$400 until 2007.
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
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State Controller for deposit in the Domestic Violence
Restraining Order Reimbursement Fund and the Domestic Violence
Training and Education Fund.
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