BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          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
           




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                                                           AB 2685 (Cooley)
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          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  




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                                                           AB 2685 (Cooley)
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          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  




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                                                           AB 2685 (Cooley)
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          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  




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               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).) 




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                                                           AB 2685 (Cooley)
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           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.





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             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  




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          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  




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          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,  




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          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 









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              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.



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          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  












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          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."

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