BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 2 6 8 AB 2685 (Cooley) 5 As Amended May 7, 2014 Hearing date: June 17, 2014 Penal Code AL/JM:mc RESTITUTION: CALIFORNIA VICTIM COMPENSATION AND GOVERNMENT CLAIMS BOARD HISTORY Source: California Victim Compensation and Government Claims Board Prior Legislation: AB 717 (Fuller) - Ch. 582, Stats. 2008 SB 972 (Poochigian) - Ch. 238, Stats. 2005 Support: San Diego County District Attorney's Office; California Crime Victim Assistance Association; Crime Victims United of California; Merced County District Attorney's Office Opposition:Legal Services for Prisoners with Children; California Attorneys for Criminal Justice; Taxpayers for Improving Public Safety Assembly Floor Vote: Ayes 77 - Noes 0 KEY ISSUES (More) AB 2685 (Cooley) PageB SHOULD THE CALIFORNIA VICTIM COMPENSATION AND GOVERNMENT CLAIMS BOARD BE PERMITTED TO SHARE INFORMATION RELATING TO THE BOARD'S LOSSES TO SPECIFIED PARTIES PRIOR TO THE DEFENDANT'S SENTENCING? (CONTINUED) SHOULD CURRENT PROVISIONS REGARDING INMATE INHERITANCE NOTICE OBLIGATIONS TO THE BOARD BE EXTENDED TO INCLUDE HEIRS AND BENEFICIARIES WHO ARE OR HAVE PREVIOUSLY BEEN INCARCERATED, NOT ONLY CURRENTLY INCARCERATED HEIRS? SHOULD A PERSONAL REPRESENTATIVE OR ESTATE ATTORNEY WHO KNOWS, WITHOUT CONDUCTING ANY INVESTIGATION, THAT AN HEIR OR BENEFICIARY IS OR HAS PREVIOUSLY BEEN INCARCERATED BE REQUIRED TO NOTIFY THE BOARD, AS SPECIFIED? PURPOSE The purpose of this bill is to 1) clarify that the board may provide the probation department, district attorney, and court with information relevant to the Victim Compensation and Government Claims Board's losses prior to the defendant's sentencing; 2) expand inmate inheritance notice obligations to the board to beneficiaries; and 3) expand the notice obligation to the board to include the administrator of an estate if the administrator knows, without conducting any investigation, that an heir or beneficiary is or has previously been incarcerated. Victim Restitution for Pecuniary Loss Existing provisions in the California Constitution state that all crime victims have the right to seek and secure restitution from the perpetrators of these crimes. Restitution must be ordered in every case without exception. Where a defendant has been ordered to pay restitution, all money, or property collected from the defendant must be first applied to satisfy (More) AB 2685 (Cooley) PageC restitution orders. (California Constitution Article 1 § 28(b)(13)(A)-(C).) Existing law requires the court to order a defendant to make restitution to the victim or victims of the defendant's crime, based on the amount of loss claimed by the victim or victims or any other showing to the court. The court shall order full restitution for the losses caused by the defendant's crime unless the court finds and states compelling and extraordinary reasons for not doing so. (Penal Code § 1202.4(f).) Existing law states that the court retains jurisdiction over the defendant if the amount of victim restitution owed cannot be ascertained at the time of sentencing. The court also retains jurisdiction to modify a restitution order. (Penal Code § 1202.46.) Existing law provides that the amount of restitution shall not be affected by the indemnification or subrogation rights of a third party. (Penal Code § 1202.4(f)(2).) Existing law authorizes the Department of Corrections and Rehabilitation (CDCR) to collect restitution fines and restitution orders from prisoners. (Penal Code § 2085.5.) Existing law permits CDCR to contract with a private debt collection agency or the Franchise Tax Board to collect outstanding restitution payments when a parolee has failed to pay according to the terms and conditions specified by the department. (Penal Code § 3000.05.) California Victim Compensation and Government Claims Board Existing law establishes within the Government Operations Agency the California Victim Compensation and Government Claims Board (board) to operate the Victim Compensation Program, to reimburse victims of crime for the pecuniary losses they suffer as a direct result of criminal acts. Indemnification is made from the Restitution Fund, which is continuously appropriated to the (More) AB 2685 (Cooley) PageD board. Restitution fines are deposited into the fund. (Penal Code §§ 13901 and 13950 et. seq.) Existing law authorizes the board to reimburse for pecuniary loss, as follows: a) The amount of medical or medical-related expenses incurred by the victim, subject to specified limitations; b) The amount of out-patient psychiatric, psychological or other mental health counseling-related expenses incurred by the victim, as specified, including peer counseling services provided by a rape crisis center; c) The expenses of non-medical remedial care and treatment rendered in accordance with a religious method of healing recognized by state law; d) Compensation equal to the loss of income or loss of support, or both, that a victim or derivative victim incurs as a direct result of the victim's injury or the victim's death, subject to specified limitations; e) Cash payment to, or on behalf of, the victim for job retraining or similar employment-oriented services; f) The expense of installing or increasing residential security, not to exceed $1,000, with respect to a crime that occurred in the victim's residence, upon verification by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well-being of the victim; g) The expense of renovating or retrofitting a victim's residence or a vehicle to make them accessible or operational, if it is medically necessary; and h) Expenses incurred in relocating, as specified, if the expenses are determined by law enforcement to be necessary for the personal safety or by a mental health treatment (More) AB 2685 (Cooley) PageE provider to be necessary for the emotional well-being of the victim. (Government Code § 13957(a).) Existing law provides that if the victim has received assistance from the board, then the restitution payments shall be deposited in the Restitution Fund, to the extent of the assistance received. (Penal Code § 1202.4(f)(2).) Existing law states that if a victim or derivative victim, as specified, was provided assistance through the Restitution Fund, the amount of assistance provided shall be considered a direct result of the defendant's criminal conduct and be included in the amount of the restitution ordered by the court. (Penal Code § 1202.4(f)(4)(A).) Existing law specifies that the amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the board reflecting the amount paid by the board and specifying the types of services. Certified copies of these bills provided by the board, together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board, shall be sufficient to meet this requirement. (Penal Code § 1202.4(f)(4)(B).) This bill permits a representative of the board to provide information relevant to the board's losses to the probation department, district attorney, and court prior to the imposition of a sentence. Existing law provides the board subrogation rights against the perpetrator of the crime to the extent that any compensation was granted to the victim by the board. (Penal Code § 13963(a).) Existing law allows victims, as specified, to file with the court a written, audiotaped, or video recorded statement expressing his or her views concerning the crime, the person responsible, and the need for restitution, in lieu of a personal appearance during judgment and sentencing. (Penal Code § 1191.15(a).) (More) AB 2685 (Cooley) PageF Existing law , in cases when a written, audiotaped, or video recorded statement is permitted at the time of judgment or sentence, does not prohibit the prosecutor from representing to the court the views of the victim, his or her parent or guardian, or the next of kin. This bill would amend the above provision to include the representation of the views of the board to the court. Inmate Inheritance Notice Obligations for Restitution Existing law requires that when a deceased person has an heir who is confined in a prison facility under CDCR's jurisdiction or confined in any county or city jail, road camp, industrial farm, or other local correctional facility, the estate attorney or if there is no estate attorney, the beneficiary; the personal representative; or the person in possession of property of the decedent shall notify the director of the board of the decedent's death and the name and location of the decedent's heir not later than 90 days after the date of death. (Probate Code § 216.) This bill would amend the statute above to require that when the estate attorney, beneficiary, personal representative, or the person in possession of the decedent's property "knows, without conducting any investigation, that an heir or beneficiary has previously been so confined" to notify the board of the decedent's death no later than 90 days after the date of death. Existing law requires the notice of the decedent's death to include the submission of the following to the board: a) The name, date of birth, and location of incarceration of the decedent's heir. b) The heir's CDCR number if incarcerated in a CDCR facility or booking number if incarcerated in a county facility. (More) AB 2685 (Cooley) PageG c) A copy of the decedent's death certificate. d) The probate case number, and the name of the superior court hearing the case. (Probate Code § 216.) This bill would add to the section above required reporting of the following to the board: 1) The current address of the heir or beneficiary if he or she is no longer incarcerated. 2) The beneficiary's CDCR number if incarcerated in a CDCR facility or booking number if incarcerated in a county facility. Existing law requires that if the general personal representative or estate attorney knows or has reason to believe that an heir is confined in a prison or correctional facility, as specified, the general personal representative or estate attorney must give the director of the board notice of the decedent's death no later than 90 days after the date letters are first issued to the general personal representative. (Probate Code § 9202(b).) This bill would amend the above provision to instead require the general personal representative or estate attorney to notify the director of the board of the decedent's death if he or she "knows without conducting any investigation that an heir or beneficiary is or has previously been confined in a prison or facility," as specified, no later than 90 days after the date letters are first issued to the general personal representative. 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 (More) AB 2685 (Cooley) PageH 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 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 (More) AB 2685 (Cooley) PageI 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. 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, (More) AB 2685 (Cooley) PageJ 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: Existing law provides that the VCGCB compensate crime victims; the law permits the Board to recover these funds from criminal offenders. AB 2685: 1) Authorizes a representative of the Board to submit information on the Board's losses directly to the court, probation department, or district attorney, so as to enhance the Board's ability to collect restitution funds from offenders; and (More) 2) Subject former inmates, and those classified as beneficiaries, to the same notification requirements as current inmates, and those classified as heirs. This will close the gaps in current law and will provide the Board with a more effective enforcement mechanism for collecting restitution. 2.Background: California Victim Compensation Program (VCP) According to the Victims' Bill of Rights Act in the California Constitution, "all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer." (California Constitution Article 1 § 28(b)(13)(A).) Under specified circumstances, victims of criminal acts may recover compensation from the Restitution Fund through the Victim Compensation Program (VCP).<1> California's VCP is administered by the board to reimburse victims of violent crime for crime-related expenses, such as medical and dental treatment, mental health services, income loss, funeral and burial expenses, and loss of support for dependents in the event a victim is killed or disabled because of a crime. VCP is considered a "payer of last resort" and provides financial assistance to crime victims when eligible losses and expenses cannot be paid by other sources, such as health insurance or worker's compensation. When a victim has suffered an economic loss as a result of a crime, current law requires judges to order the offender pay restitution as his or her debt to the victim. (California Constitution Article 1 § 28(b)(13)(B) A restitution order does not preclude a victim's right to financial assistance from the Restitution Fund, but the amount of such assistance is reduced by the amount the victim ultimately receives for the same loss under the restitution order. (Penal Code § 1202.4(j).) To the extent that compensation is provided to the victim, paid restitution is deposited into the Restitution Fund to replenish --------------------------- <1> See California Benchguide 83: Restitution. http://www.vcgcb.ca.gov/docs/forms/victims/restitution/benchguide .pdf. (More) AB 2685 (Cooley) PageL the fund. (Penal Code § 1202.4(f)(2).) The court clerk is required to notify the board within 90 days of the court's imposition of a restitution order if the defendant is ordered to pay restitution to the board because the victim has received compensation from the Restitution Fund. (Penal Code § 1202.4(p).) More broadly, when VCP compensates a victim, the board is subrogated to the victim's rights against persons liable for restitution. (Penal Code § 1202.4(f)(2); Government Code § 13963(a).) A restitution order is considered a life-long debt that the defendant owes until it is paid. 3.Effect of This Bill Currently, courts are required to consider the amount of financial assistance a victim receives from the Restitution Fund when determining restitution. This bill clarifies that the board is allowed to submit information to the probation department, district attorney, and court relating to the recovery of moneys owed to the Restitution Fund for inclusion under the court's restitution order. A person who is in charge of an estate has to locate heirs and beneficiaries in order to make distributions. Under current law, if the administrator of an estate learns that an heir is incarcerated, then he or she is required to notify the board. The board can then pursue collection activities if the inmate owes restitution. This bill expands the notice obligation to cover beneficiaries as well as heirs. This bill also expands the notice obligation to cover those heirs and beneficiaries the administrator knows were previously incarcerated, not just those presently incarcerated. However, the administrator need not conduct any investigation to determine prior incarceration. IS " WITHOUT CONDUCTING ANY INVESTIGATION" A REASONABLE AND CLEAR MEASURE OF ACCOUNTABILITY? 4.Suggested Technical Amendments Estate attorneys and general personal representatives are expected to carry out their duties with reasonable care and due diligence. A standard to require notification to the board only AB 2685 (Cooley) PageM when the administrator knows "without conducting any investigation" the current or prior incarceration of an heir or beneficiary may be misconstrued as an exemption to the notice obligation should such knowledge become apparent through the normal course of the administrator's duties and investigations. To avoid such vagueness and confusion, the author may wish to consider replacing "without conducting any investigation" with "without conducting any investigation beyond the normal course of his or her duties," when applicable. Amendment #1: On page 6, lines 13-14, replace "without conducting any investigation" with "without conducting any investigation beyond the normal course of his or her duties." Amendment #2: On page 7, line 9, replace "without conducting any investigation" with "without conducting any investigation beyond the normal course of his or her duties." In the context of victim restitution in current statute, "loss" specifically connotes the victim's economic loss as a direct result of the commission of a crime but not as it relates to the board's compensation of a victim from the Restitution Fund. (Penal Code § 1202.4.) The author may wish to consider an amendment to replace "board's losses" under Section 13963(i) of the bill with "recovery of moneys owed to the Restitution Fund" to ensure consistency with existing language in law. Amendment #3: On page 5, lines 6-7, replace "board's losses" with "recovery of moneys owed to the Restitution Fund." ***************