BILL NUMBER: AB 423 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 9, 2013
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 add Section 5035 to the
Penal Code, relating to corrections .
LEGISLATIVE COUNSEL'S DIGEST
AB 423, as amended, Torres. Restitution: collection.
Department of Corrections and Rehabilitation:
restitution data.
Existing law provides for the administration of the state
correctional system by the Department of Corrections and
Rehabilitation. Existing law requires the department to study the
programmatic and fiscal feasability of providing for rehabilitation
information and tracking functionality within the Strategic Offender
Management System, as specified.
This bill would require the department to include in the Strategic
Offender Management System, or any successor system maintained by
the department, information regarding restitution fines or orders for
inmates within its jurisdiction, and to utilize that system to
ensure that the California Victim Compensation and Government Claims
Board is provided with accurate and up-to-date information regarding
unfulfilled restitution fines and orders.
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 5035 is added to the
Penal Code , immediately following Section 5032, to read:
5035. The Department of Corrections and Rehabilitation shall
include in the Strategic Offender Management System, or any successor
system maintained by the department, information regarding
restitution fines or orders for inmates within its jurisdiction,
including the amount necessary to fulfill a fine or order, the
amounts that have been collected from the offender, if any, and the
status of efforts to collect any remaining balance. The department
shall utilize that system to ensure that the California Victim
Compensation and Government Claims Board is provided with accurate
and up-to-date information regarding unfulfilled restitution fines
and orders.
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 80 percent
or the balance owing on the fine amount, whichever is less, 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
correctional facility, 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 80 percent or the balance owing
on the fine amount, whichever is less, from the county correctional
facility 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 80 percent
or the balance owing on the order amount, whichever is less, 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
correctional facility, 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 80 percent or the
balance owing on the order amount, whichever is less, from the county
correctional facility 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
correctional facility, 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 correctional facility
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 correctional facility, 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 correctional facility, 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 a county correctional facility 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 correctional facility, 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
correctional facility 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 correctional facility, 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).
(m) 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.
(n) (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 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 one hundred dollars ($100), the amount in
excess of one hundred dollars ($100) 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, or 80
percent of the total amount held in trust, whichever is less, 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, or 80 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 Division of Juvenile Facilities 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 shall deduct either the balance owing on the
restitution fine or order or 80 percent from the wages of that adult
or minor, whichever is less, unless prohibited by federal law. The
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 division to enable the division 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 shall deduct either
the balance owing on the restitution order or 80
percent of the wages of that adult or minor, unless prohibited by
federal law. The 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 Division of
Juvenile Justice. 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 Division of Juvenile Facilities 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 Division of Juvenile Justice. 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.