BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 2645 (Dababneh) 5
As Amended May 6, 2014
Hearing date: June 10, 2014
Penal Code
JM:sl
RESTITUTION ORDERS:
CASES TRANSFERRED BETWEEN COUNTIES
HISTORY
Source: Judicial Council
Prior Legislation: AB 492 (Quirk) Ch. 13, Stats. 2013
SB 431 (Benoit), Ch. 588, Stats. 2009
AB 306 (Aguiar) Ch. 273, Stats. 1993
Support: Unknown
Opposition:None known
Assembly Floor Vote: Ayes 77 - Noes 0
KEY ISSUE
WHERE JURISDICTION OF A PROBATION OR MANDATORY SUPERVISION MATTER
IS TRANSFERRED FROM ONE COUNTY TO ANOTHER, SHOULD THE COURT
IN THE TRANSFERRING COUNTY DETERMINE RESTITUTION,UNLESS THE
DETERMINATION CANNOT BE MADE WITHIN A REASONABLE TIME?
PURPOSE
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The purpose of this bill is to provide that where jurisdiction
of a case in which the defendant has been placed on mandatory
supervision or probation is transferred, the court in the
transferring county shall determine the amount of restitution
owed to the victim, unless the determination cannot be made in a
reasonable amount of time.
Existing law allows a person released on probation or mandatory
supervision to make a motion to transfer the case to the county
in which the person permanently resides. (Pen. Code § 1203.9,
subd. (a).)
Existing law requires the court, upon receipt of a motion for
inter-county transfer, to transfer jurisdiction of the case to
the superior court in the county in which the defendant
permanently resides, unless the transferring court determines
that the transfer would be inappropriate and states its reasons
on the record. The proposed receiving county may provide
comments for the record on the issue of transfer. (Pen. Code §
1203.9, subd. (a).)
Existing law requires the court of the receiving county to
accept the entire jurisdiction over the case. (Pen. Code §
1203.9, subd. (b).)
Existing law provides that an inter-county transfer of a
probationer must include an order committing the probationer to
the care and custody of the probation officer of the receiving
county and an order for reimbursement of reasonable costs for
processing the transfer, payable to the sending county. Copies
of the probation report and the transfer orders shall be
transmitted to the court and probation officer of the receiving
county within two weeks of the finding that the person does
permanently reside in or has permanently moved to that county.
(Pen. Code § 1203.9, subd. (c).)
Existing law requires the Judicial Council to adopt rules
providing factors for the court's consideration when determining
the appropriateness of a transfer, including but not limited to
the following:
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Permanency of residence of the offender;
Local programs available for the offender; and,
Restitution orders and victim issues. (Pen. Code §
1203.9, subd. (d).)
Existing Rules of Court state that the transferring court must
consider at least the following factors when determining whether
transfer is appropriate:
The permanency of the supervised person's residence;
The availability of appropriate programs for the
supervised person;
Restitution orders, including inability to determine
restitution amount and the victim's ability to collect;
and,
Other victim issues, including residence and places
frequented by the victim and enforcement of protective
orders. (Cal. Rules of Court, rule 4.530(f).)
Existing law states that, to the extent possible, the
transferring court must establish any amount of restitution owed
by the supervised person before it orders the transfer. (Cal.
Rules of Court, rule 4.530(g)(2).)
Existing law states it is the unequivocal intention of the
People of the State of California that all persons who suffer
losses as a result of criminal activity shall have the right to
restitution from the persons convicted of the crimes for losses
they suffer. Restitution shall be ordered from the convicted
persons in every case, regardless of the sentence or disposition
imposed, in which a crime victim suffers a loss, unless
compelling and extraordinary reasons exist to the contrary.
(Cal. Const., art. I, § 28, subd. (b).)
This bill requires a court transferring a probation or mandatory
supervision case to another county to first determine the amount
of victim restitution, unless the court is unable to make that
determination within a reasonable time.
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This bill states that if the case is transferred without a
determination of restitution, the transferring court must
complete the determination as soon as practicable.
This bill states that, with the exception of the restitution
order, the receiving county has full jurisdiction over the case.
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 that 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.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted 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
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inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing 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 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, 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." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
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In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
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
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. Need for This Bill
According to the author:
This measure will protect victims from unnecessary
hardship while restitution amounts are being
determined by requiring that the amount be set before
a court transfer can take place, except in special
circumstances. Under current law a victim risks losing
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restitution if they cannot travel to the receiving
county to pursue restitution in person. Victims should
not be forced to deal with extensive delays, incur
travel costs and spend time away from work and loved
ones in order to get the restitution due to them as a
victim of crime.
2. A Victim's Right to Restitution - Retention of Jurisdiction
over Restitution by the Court in the County of the Offense and
the Trial
Crime victims have a constitutionally protected right to
restitution from the defendant who harmed them. (Cal. Const.,
Art. I, § 28(b).) A court retains jurisdiction of a case for
the purpose of imposing restitution until the losses are
determined. (Pen. Code, § 1202.4, subd. (f).) The court in
People v. Bufford (2007) 146 Cal.App.4th 966, 970, held that the
trial court retained jurisdiction to set restitution following
completion of prison term. However, the California Supreme
Court has granted review on the issue of whether a trial court
has jurisdiction to award restitution to the victim although the
defendant's probationary term had expired nine days earlier.
(S212940/A135733 - People v. Ford (2013) formerly at 217
Cal.App.4th 1354.) The Ford case has been joined with a
juvenile court matter. The case has been fully briefed. The
decision of the Supreme Court will be filed following oral
arguments before the court.
When a case is transferred from one county to another, the
transferring county loses jurisdiction, and the receiving county
accepts full jurisdiction of the case. (Pen. Code, 1203.9,
subd. (b).) The Rules of Court promulgated by the Judicial
Council require that whenever possible the transferring county
establish the amount of victim restitution owed before making
such a transfer. (Cal. Rules of Court, rule 4.530(g)(2).)
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According to the sponsor of this bill, cases are often
transferred from one county to another county without a
determination of victim restitution. The receiving court is not
as well situated to determine restitution as the court in which
the defendant was convicted, as the relevant witnesses and
information are in the transferring county. The victim may
also suffer hardship if required to travel to the receiving
county to seek restitution. Requiring the transferring county
whenever possible to determine restitution before transferring
the case reduces these concerns.
3. Argument in Support
The Judicial Council , the sponsor of this bill, writes:
Under existing law, transferring courts must consider
restitution orders and victim issues before deciding
the appropriateness of a proposed inter-county
transfer. (Pen. Code, § 1203.9(e)(3).) Despite the
California Rules of Court requirement that courts
consider: (1) whether the transfer would impair the
ability of the receiving court to determine a
restitution amount; (2) impair the ability of the
victim to collect court-order restitution; and (3) to
the extent possible, establish the amount of
restitution before transfer; courts often transfer
cases without first determining victim restitution
amounts and without any indication that the
restitution amount was properly considered. (Cal.
Rules of Court, rules 4.530(f)(3) & 4.530(g)(2).) As
a result, receiving courts are often unable to
determine accurate restitution amounts because the
relevant witnesses and information are not readily
available in the receiving county. Those transfers
also create significant hardships on victims who risk
losing restitution if they are unable to travel to the
receiving county to pursue or clarify a request for
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restitution in person.
To improve victim access to restitution and promote
efficiencies in determining restitution amounts, AB
2645 amends section 1203.9 to (1) prohibit transfers
until restitution amounts have been determined unless
a transferring court finds that a determination of
restitution cannot be made within a reasonable amount
of time from the date of the motion to transfer; (2)
require courts that transfer cases without first
determining restitution to retain jurisdiction to
determine the amount as soon as practicable; and (3)
clarify that, in all other respects, the receiving
court receives full jurisdiction over the matter. AB
2645 will facilitate the collection of victim
restitution without compromising public safety.
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