California Legislature—2013–14 Regular Session

Assembly Bill No. 423

Introduced by Assembly Member Torres

February 15, 2013

An act to amend Section 2085.5 of the Penal Code, and to amend Sections 1752.81 and 1752.82 of the Welfare and Institutions Code, relating to restitution.

LEGISLATIVE COUNSEL’S DIGEST

AB 423, as introduced, Torres. Restitution: collection.

Existing law authorizes the imposition of a restitution fine or order to be paid to the state or the victim of a crime, as specified. Existing law requires the Secretary of Corrections and Rehabilitation, to deduct a minimum of 20% of the balance owing on the fine or order amount, whichever is less, up to a maximum of 50%, from the wages and trust account of a prisoner to fulfill his or her restitution fine or order, unless prohibited by federal law. Existing law authorizes an agency designated by the board of supervisors in a county where a prisoner is incarcerated to deduct those amounts from specified prisoners. Under existing law, 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 is exempt from restitution deductions.

Existing law requires the Director of the Division of Juvenile Justice, if an adult or minor is committed to, or housed in, a Division of Juvenile Facilities facility and he or she owes money for a restitution fine or order, to deduct the balance owing on the fine or order amount from the trust account deposits of a ward, up to a maximum of 50% of the total amount held in trust, unless prohibited by federal law. Existing law also authorizes the director to deduct a reasonable amount, not to exceed 50%, from the wages of a ward to satisfy a restitution fine or order. Existing law also authorizes the director to expend the portion of a ward’s trust funds that exceed $500 pursuant to a lawful order of a court directing payment of the funds.

This bill would require the Secretary of Corrections and Rehabilitation and the Director of the Division of Juvenile Justice, and would authorize the collecting agency of a county, to deduct either the balance owing on a restitution fine or order or 80% of the trust account or wages of a prisoner or ward, whichever is less, unless prohibited by federal law. The bill would expand these provisions to apply to a prisoner who is punished by imprisonment in any county correctional facility, and would delete the exemption for funds for the purchase of food from the institution canteen for unsupervised overnight visits. The bill would also authorizes the Director of Juvenile Justice to expend the portion of a ward’s trust funds that exceed $100 pursuant to a lawful order of a court directing payment of the funds.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

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 shall deduct begin delete a
minimum of 20 end delete begin insert 80 end insert percent or the balance owing on the fine
amount, whichever is less, begin delete up to a maximum of 50 percent end delete from
the 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) (1) When a prisoner is punished by imprisonment in a
county begin delete jail pursuant to subdivision (h) of Section 1170 end delete begin insert end insert begin insert correctional
facility end insert , 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 agency designated
by the board of supervisors in the county where the prisoner is
incarcerated is authorized to deduct begin delete a minimum of 20 end delete begin insert 80 end insert percent
or the balance owing on the fine amount, whichever is less, begin delete up to
a maximum of 50 percent end delete from the county begin delete jail end delete begin insert correctional end insert begin insert facility end insert
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.

(2) If the board of supervisors designates the county sheriff as
the collecting agency, the board of supervisors shall first obtain
the concurrence of the county sheriff.

(c) 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 shall deduct begin delete a
minimum of 20 end delete begin insert 80 end insert percent or the balance owing on the order
amount, whichever is less, begin delete up to a maximum of 50 percent end delete from
the wages and trust account deposits of a prisoner, unless prohibited
by federal law. The secretary 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.

(d) When a prisoner is punished by imprisonment in a county
begin delete jail pursuant to subdivision (h) of Section 1170 end delete begin insert correctional
facility end insert , 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 (b) of Section 1202.4, the agency designated
by the board of supervisors in the county where the prisoner is
incarcerated is authorized to deduct begin delete a minimum of 20 end delete begin insert 80 end insert percent
or the balance owing on the order amount, whichever is less, begin delete up
to a maximum of 50 percent end delete from the county begin delete jail end delete begin insert end insert begin insert correctional end insert
begin insert facility end insert equivalent of wages and trust account deposits of a prisoner,
unless prohibited by federal law. 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, or may pay the victim
directly. The sentencing court shall be provided a record of the
payments made to the victims and of the payments deposited to
the Restitution Fund pursuant to this subdivision.

(e) The secretary shall deduct and retain from the 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 (c). The secretary
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 (n), unless prohibited by federal
law. The secretary 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, 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.

(f) When a prisoner is punished by imprisonment in a county
begin delete jail pursuant to subdivision (h) of Section 1170 end delete begin insert correctional
facility end insert , the agency designated by the board of supervisors in the
county where the prisoner is incarcerated is authorized to deduct
and retain from the county begin delete jail end delete begin insert end insert begin insert correctional end insert begin insert facility end insert equivalent of
wages and trust account deposits of a prisoner, unless prohibited
by federal law, and administrative fee that totals 10 percent of any
amount transferred to the California Victim Compensation and
Government Claims Board pursuant to subdivision (b) or (d). The
agency is authorized to 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 (n),
unless prohibited by federal law. 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 agency. The agency is authorized to retain any
excess funds in the special deposit account for future
reimbursement of the agency’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) 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 begin delete jail pursuant
to subdivision (h) of Section 1170 end delete begin insert correctional facility end insert , 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.

(h) 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 begin delete jail pursuant to subdivision (h) of Section 1170 end delete begin insert correctional
facility end insert , the agency designated by the board of supervisors in the
county where the prisoner is incarcerated or a local collection
program, may collect from the parolee or person previously
imprisoned in begin insert a end insert county begin delete jail end delete begin insert end insert begin insert correctional end insert begin insert facility end insert 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.

(i) The secretary, or, when a prisoner is punished by
imprisonment in a county begin delete jail pursuant to subdivision (h) of Section
1170 end delete begin insert correctional facility end insert , 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 (g) or (h), unless prohibited by
federal law. The secretary 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 (n), unless prohibited by federal law. The agency is
authorized to 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 (n). 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 or the agency, as applicable. 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 or agency’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.

(j) When a prisoner has both a restitution fine and a restitution
order from the sentencing court, the Department of Corrections
and Rehabilitation shall collect the restitution order first pursuant
to subdivision (c).

(k) When a prisoner is punished by imprisonment in a county
begin delete jail pursuant to subdivision (h) of Section 1170 end delete begin insert correctional facility end insert
and that prisoner has both a restitution fine and a restitution order
from the sentencing court, if the agency designated by the board
of supervisors in the county where the prisoner is incarcerated
collects the fine and order, the agency shall collect the restitution
order first pursuant to subdivision (d).

(l) 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 begin delete jail pursuant to subdivision (h) of Section
1170 end delete begin insert correctional facility end insert , 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 (h).

begin delete

(m) 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.

(n)

end delete

begin insert (m) end insert  Any compensatory or punitive damages awarded by trial
or settlement to any inmate, 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 (e) and (i). The Department
of Corrections and Rehabilitation 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. For any prisoner punished by imprisonment
in a county jail pursuant to subdivision (h) of Section 1170, the
agency is authorized to 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.

begin delete

(o)

end delete

begin insert (n) end insert  (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) (A) 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
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, the California
Victim Compensation and Government Claims Board shall transmit
the restitution revenues to the victim in accordance with the
provisions of subdivision (c) or (h).

(B) Any victim failing to provide a current address within the
period of time specified in paragraph (2) may provide
documentation to the agency designated by the board of supervisors
in the county where the prisoner begin delete punished by imprisonment in a
county jail pursuant to subdivision (h) of Section 1170 end delete is
incarcerated, which in turn may verify that moneys were in fact
collected on behalf of the victim. Upon receipt of that verified
information from 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 (d) or (h).

SEC. 2.  

Section 1752.81 of the Welfare and Institutions Code
is amended to read:

1752.81.  

(a) Whenever the Director of the Division of Juvenile
Justice has in his or her possession in trust funds of a ward
committed to the division, the funds may be released for any
purpose when authorized by the ward. When the sum held in trust
for any ward by the director exceeds begin delete five hundred dollars ($500) end delete
begin insert one hundred dollars ($100) end insert , the amount in excess of begin delete five hundred
dollars ($500) end delete begin insert one hundred dollars ($100) end insert may be expended by
the director pursuant to a lawful order of a court directing payment
of the funds, without the authorization of the ward thereto.

(b) Whenever an adult or minor is committed to or housed in a
Division of Juvenile Facilities facility and he or she owes a
restitution fine imposed pursuant to Section 13967 of the
Government Code, as operative on or before September 28, 1994,
or Section 1202.4 or 1203.04 of the Penal Code, as operative on
or before August 2, 1995, or pursuant to Section 729.6, 730.6 or
731.1, as operative on or before August 2, 1995, the director shall
deduct the balance owing on the fine amount from the trust account
deposits of a ward, begin delete up to a maximum of 50 end delete begin insert or 80 end insert percent of the
total amount held in trust, begin insert which end insert begin insert ever end insert begin insert is less, end insert unless prohibited by
federal law. The director 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.

(c) Whenever an adult or minor is committed to, or housed in,
a Division of Juvenile Facilities facility and he or she owes
restitution to a victim imposed pursuant to Section 13967 of the
Government Code, as operative on or before September 28, 1994,
or Section 1202.4 or 1203.04 of the Penal Code, as operative on
or before August 2, 1995, or pursuant to Section 729.6, 730.6, or
731.1, as operative on or before August 2, 1995, the director shall
deduct the balance owing on the order amount from the trust
account deposits of a ward, begin delete up to a maximum of 50 end delete begin insert or 80 end insert percent
of the total amount held in trust, unless prohibited by federal law.
The director shall transfer that amount directly to the victim. If the
restitution is owed to a person who has filed an application with
the Victims of Crime Program, the director 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.

(d) Any compensatory or punitive damages awarded by trial or
settlement to a minor or adult committed to the Division of Juvenile
Facilities in connection with a civil action brought against any
federal, state, or local jail 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 the
minor or adult. The balance of any award shall be forwarded to
the minor or adult committed to the Division of Juvenile Facilities
after full payment of all outstanding restitution orders and
restitution fines subject to subdivision (e). The Division of Juvenile
Facilities shall make all reasonable efforts to notify the victims of
the crime for which the minor or adult was committed concerning
the pending payment of any compensatory or punitive damages.
This subdivision shall apply to cases settled or awarded on or after
April 26, 1996, pursuant to Sections 807 and 808 of Title VIII of
the federal Prison Litigation Reform Act of 1995 (P.L. 104-134;
18 U.S.C. Sec. 3626 (Historical and Statutory Notes)).

(e) The director shall deduct and retain from the trust account
deposits of a ward, unless prohibited by federal law, an
administrative fee that totals 10 percent of any amount transferred
pursuant to subdivision (b) and (c), or 5 percent of any amount
transferred pursuant to subdivision (d). The director shall deposit
the administrative fee moneys in a special deposit account for
reimbursing administrative and support costs of the restitution and
victims program of the Division of Juvenile Facilities. The director,
at his or her discretion, may retain any excess funds in the special
deposit account for future reimbursement of the division’s
administrative and support costs for the restitution and victims
program or may transfer all or part of the excess funds for deposit
in the Restitution Fund.

(f) When a ward has both a restitution fine and a restitution
order from the sentencing court, the Division of Juvenile Facilities
shall collect the restitution order first pursuant to subdivision (c).

(g) Notwithstanding subdivisions (a), (b), and (c), whenever the
director holds in trust a ward’s funds in excess of five dollars ($5)
and the ward cannot be located, after one year from the date of
discharge, absconding from the Division of Juvenile Facilities
supervision, or escape, the Division of Juvenile Facilities shall
apply the trust account balance to any unsatisfied victim restitution
order or fine owed by that ward. If the victim restitution order or
fine has been satisfied, the remainder of the ward’s trust account
balance, if any, shall be transferred to the Benefit Fund to be
expended pursuant to Section 1752.5. If the victim to whom a
particular ward owes restitution cannot be located, the moneys
shall be transferred to the Benefit Fund to be expended pursuant
to Section 1752.5.

SEC. 3.  

Section 1752.82 of the Welfare and Institutions Code
is amended to read:

1752.82.  

(a) Whenever an adult or minor is committed to or
housed in a begin delete Youth Authority end delete begin insert Division of Juvenile Facilities end insert facility
and he or she owes restitution to a victim or a restitution fine
imposed pursuant to Section 13967, as operative on or before
September 28, 1994, of the Government Code, or Section 1202.4
of the Penal Code, or Section 1203.04, as operative on or before
August 2, 1994, of the Penal Code, or pursuant to Section 729.6,
as operative on or before August 2, 1995, Section 730.6 or 731.1,
as operative on or before August 2, 1995, the director begin delete may end delete begin insert shall end insert
deduct begin delete a reasonable amount not to exceed 50 end delete begin insert either the balance
owing on the restitution fine or order or 80 end insert percent from the wages
of that adult or minor begin delete and the end delete begin insert , whichever is less, unless prohibited
by federal law. The end insert amount so deducted, exclusive of the costs of
administering this section, which shall be retained by the director,
shall be transferred to the California Victim Compensation and
Government Claims Board for deposit in the Restitution Fund in
the State Treasury in the case of a restitution fine, or, in the case
of a restitution order, and upon the request of the victim, shall be
paid directly to the victim. Any amount so deducted shall be
credited against the amount owing on the fine or to the victim. The
committing court shall be provided a record of any payments.

(b) A victim who has requested that restitution payments be
paid directly to him or her pursuant to subdivision (a) shall provide
a current address to the begin delete Youth Authority end delete begin insert division end insert to enable the
begin delete Youth Authority end delete begin insert division end insert to send restitution payments collected
on the victim’s behalf to the victim.

(c) In the case of a restitution order, whenever the victim has
died, cannot be located, or has not requested the restitution
payment, the director begin delete may end delete begin insert shall end insert deduct begin delete a reasonable amount not
to exceed 50 end delete begin insert either the balance owing on the restitution order or
80 end insert percent of the wages of that adult or minor begin delete and the end delete begin insert , unless
prohibited by federal law. The end insert amount so deducted, exclusive of
the costs of administering this section, which shall be retained by
the director, shall be transferred to the California Victim
Compensation and Government Claims Board, pursuant to
subdivision (d), after one year has elapsed from the time the ward
is discharged by the begin delete Youth Authority Board end delete begin insert Division of Juvenile
Justice end insert . Any amount so deducted shall be credited against the
amount owing to the victim. The funds so transferred shall be
deposited in the Restitution Fund.

(d) If the begin delete Youth Authority end delete begin insert Division of Juvenile Facilities end insert has
collected restitution payments on behalf of a victim, the victim
shall request those payments no later than one year after the ward
has been discharged by the begin delete Youth Authority Board end delete begin insert Division of
Juvenile Justice end insert . Any victim who fails to request those payments
within that time period shall have relinquished all rights to the
payments, unless he or she can show reasonable cause for failure
to request those payments within that time period.

(e) The director shall transfer to the California Victim
Compensation and Government Claims Board all restitution
payments collected prior to the effective date of this section on
behalf of victims who have died, cannot be located, or have not
requested restitution payments. The California Victim
Compensation and Government Claims Board shall deposit these
amounts in the Restitution Fund.

(f) For purposes of this section, “victim” includes a victim’s
immediate surviving family member, on whose behalf restitution
has been ordered.