BILL ANALYSIS Ó
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Date of Hearing: April 28, 2015
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1140 (Bonta) - As Amended April 22, 2015
As Proposed to be Amended in Committee
SUMMARY: Revises various rules governing the California Victim
Compensation Program (CalVCP). Specifically, this bill:
1)Expands the definition of a victim's "authorized
representative" to include any person having written
authorization by the victim or derivative victim, or any
person designated by law such as a legal guardian,
conservator, or social worker; but excluding any medical or
mental health provider, or its agent, who has provided
services to the victim or derivative victim.
2)Provides that an applicant may be found to have been
"uncooperative" for purposes of verifying information
necessary to process a claim under the following
circumstances:
a) He or she has information, or reasonably-obtainable
information, that is needed to process the claim but fails
to do so after the board requests it. However, The board
must take the applicant's economic, psycho-social, and
post-crime traumatic circumstances under consideration, and
cannot unreasonably reject an application solely for
failure to provide information;
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b) He or she provides false information regarding the
claim, or causes another person to do so;
c) He or she refuses to apply for benefits from other
sources to which he or she may be entitled, such as
worker's compensation, social security, state disability
insurance or unemployment insurance; or,
d) He or she threatens a board member or staff with
violence or bodily harm.
3)Authorizes compensation for a victim's emotional injury
incurred as a direct result of the nonconsensual distribution
of pictures or video of sexual conduct in which the victim
appeared, if the victim is a minor. But disallows
compensation for derivative victims.
4)Revises provisions allowing compensation for emotional injury
suffered in child abduction cases to delete the requirement
that the deprivation of custody lasted for 30 calendar days,
and instead requires only that criminal charges be filed in
the case.
5)Authorizes denial of a claim, in whole or in part, if the
board finds that denial is appropriate because of the nature
of the applicant's involvement in the events leading to the
crime, or the involvement of the person whose injury or death
gave rise to the claim. This limitation does not apply if the
victim's injury or death occurred as a direct result of the
crimes of rape, spousal rape, domestic violence, or unlawful
sexual intercourse with a minor.
6)States that factors to be considered for determining
involvement in the crime include, but are not limited to:
a) The victim or derivative victim initiated the qualifying
crime, or provoked or aggravated the suspect into
initiating the qualifying crime;
b) The qualifying crime was a reasonably foreseeable
consequence of the conduct of the victim or derivative
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victim; and,
c) The victim or derivative victim was committing a crime
that could be charged as a felony and that reasonably lead
to him or her being victimized.
7)States that if the board finds that the victim or derivative
victim was involved in events leading to the crime, factors
that may be used to mitigate or overcome involvement, include,
but are not limited to:
a) The victim's injuries were significantly more serious
than reasonably could have been expected based on the
victim's level of involvement;
b) A third party interfered in a manner not reasonably
foreseeable by the victim or derivative victim; and,
c) The victim's age, physical condition, and psychological
state, as well as any compelling health and safety
concerns.
8)Prohibits a domestic violence victim from being found to be
uncooperative based on his or her conduct with law enforcement
at the scene of a crime.
9)Prohibits a victim of domestic violence, sexual assault, or
human trafficking from being found to be uncooperative because
of a delay in reporting the crime.
10)Prohibits the denial of an application for a claim arising
from a sexual assault based solely on the failure to file a
police report.
11)Requires the board to adopt guidelines allowing it to
consider and approve applications for assistance in sexual
assault cases by relying upon evidence other than a police
report. Factors evidencing a sexual assault has occurred, may
include medical records, mental health records, and a sexual
assault examination.
12)Denies compensation to any person convicted of a violent
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felony, as specified, until that person is no longer
incarcerated and discharged from parole, probation,
post-release community supervision, or mandatory supervision.
13)Denies compensation to any person who is required to register
as a sex offender.
14)Removes current provisions which prioritize the applications
of victims who are not felons.
15)Removes limits for statutory rape counseling.
16)Expands eligibility to recoup the costs of mental health
counseling to grandparents and grandchildren.
17)Limits reimbursement for medically-related expenses to those
that were provided by a licensed medical provider.
18)Eliminates the board's authority to reimburse for expenses of
nonmedical remedial care and treatment given in accordance
with a religious method of healing recognized under state law.
19)Eliminates verification requirements for reimbursement of
increased residential-security measures.
20)Allows reimbursement for the purchase of a vehicle for a
victim who becomes permanently disabled.
21)Specifies that, as to reimbursement of costs for a victim's
relocation, the victim may be required to repay the
reimbursement if the victim notifies the perpetrator of his or
her new address or allows the offender on the premises.
Additionally, if a security deposit is required for relocation
services, the board shall be named as the recipient of the
security deposit.
22)Expands reimbursement to cover clean up expenses when the
crime scene is a vehicle.
23)Allows the board to request verification before it reimburses
for attorney's fees.
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24)Permits an applicant who seeks a hearing on the denial of
compensation to request a telephonic hearing.
25)Provides that evidence submitted after the board has denied a
request for reconsideration shall not be considered unless the
board chooses to reconsider the decision on its own motion.
26)Requires any board actions to collect overpayments be
commenced within seven years of the date of the overpayment,
except there is no statute of limitation for the action if
overpayment was a result of fraud, misrepresentation or
willful non-disclosure of the applicant.
27)Authorizes the recipient of an alleged overpayment to contest
that finding.
28)Provides that the board need only forward restitution
proceeds collected from a prisoner or parolee to a victim when
the payment is $25 or more, unless the victim requests
payments of a lesser amount.
29)Makes technical, non-substantive changes.
EXISTING LAW:
30)Establishes the Victim Compensation and Government Claims
Board (VCGCB) to operate the CalVCP. (Gov. Code, § 13950 et.
seq.)
31)Provides than an application for compensation shall be filed
with the board in the manner determined by the board. (Gov.
Code, § 13952, subd.(a).)
32)States that, except as provided by specified sections of the
Government Code, a person shall be eligible for compensation
when all of the following requirements are met:
a) The person form whom compensation is being sought any of
the following:
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i) A victim.
ii) A derivative victim.
iii) A person who is entitled to reimbursement for
funeral, burial or crime scene clean-up expenses pursuant
to specified sections of the Government Code.
b) Either of the following conditions is met:
i) The crime occurred within California, whether or not
the victim is a resident of California. This only
applies when the VCGCB determines that there are federal
funds available to the state for the compensation of
crime victims.
ii) Whether or not the crime occurred within the State
of California, the victim was any of the following:
(1) A California resident.
(2) A member of the military stationed in
California.
(3) A family member living with a member of the
military stationed in California.
c) If compensation is being sought for derivative victim,
the derivative victim is a resident of California, or the
resident of another state who is any of the following:
i) At the time of the crimes was the parent,
grandparent, sibling, spouse, child or grandchild of the
victim.
ii) At the time of the crime was living in the household
of the victim.
iii) At the time of the crime was a person who had
previously lived in the house of the victim for a person
of not less than two years in a relationship
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substantially similar to a previously listed
relationship.
iv) Another family member of the victim including, but
not limited to, the victim's fiancé or fiancée, and who
witnessed the crime.
v) Is the primary caretaker of a minor victim, but was
not the primary caretaker at the time of the crime.
d) And other specified requirements. (Gov. Code, § 13955.)
33)States that an application shall be denied if the board finds
that the victim failed to reasonably cooperate with law
enforcement in prosecution of the crime. (Gov. Code, § 13956,
subd. (b)(1).)
34)Disqualifies certain individuals from eligibility, including
a participant in the crime for which compensation is being
sought, and persons convicted of a felony who are currently on
probation or parole. (Gov. Code, § 13956.)
35)Authorizes the board to reimburse for pecuniary loss for the
following types of losses (Gov. Code, § 13957, subd. (a)):
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.
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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.
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
provider to be necessary for the emotional well-being of
the victim.
36)Limits the total award to or on behalf of each victim to
$35,000, except that this amount may be increased to $70,000
if federal funds for that increase are available. (Gov. Code,
§ 13957, subd. (b).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "The California
Victim Compensation and Government Claims Board administers
the California Victim Compensation Program (CalVCP) and is
authorized to compensate victims and derivative victims of
specified types of crimes through a continuously appropriated
fund, the Restitution Fund. Existing law sets forth the
eligibility requirements and limits on the amount of
compensation the CalVCP may award. The CalVCP framework was
developed several decades ago and has not been thoroughly
revised since that time.
"To address ongoing issues with outdated restrictions and the
need to modernize the program to reflect changing technologies
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and crimes, the CalVCP conducted a Statute Modernization
Project, bringing various stakeholder groups together to make
recommendations on revising and updating the state
compensation program to better serve victims.
"AB 1140 would implement many of the recommendations made by the
CalVCP Statute Modernization Project to modernize the existing
statutes. For example, current law restricts compensation of
victims of domestic violence if the victim fails to cooperate
with law enforcement or report the assault in a timely
fashion. AB 1140 would update that law to comport with current
understandings of domestic violence and the many reasons a
victim may fail to immediately report or cooperate. Current
law also restricts compensation to persons on probation or
parole and those who have participated in a crime that
resulted in their injuries. AB 1140 would delete those
restrictions and allow compensation unless the person is on
probation or parole for a violent crime or is a sex offender
and allow compensation to those who participated in a crime
unless the crime was a felony.
"The bill would also make a number of other improvements to
address emerging issues in law. For example, the bill would
include online harassment as a compensable crime and also
allow compensation to a minor who sustains emotional injury as
a direct result of the distribution of pictures or video of
sexual conduct."
2)Background: CalVCP provides compensation for victims of
violent crime. It reimburses eligible victims for many
crime-related expenses, such as medical treatment, mental
health services, funeral expenses, home security, and
relocation services. Funding for the board comes from
restitution fines and penalty assessments paid by criminal
offenders, as well as federal matching funds. (See CVGCB
Website < http://www.vcgcb.ca.gov/board >.)
3)Governor's Budget Proposal: "The Governor's budget for 2015-16
proposes to reorganize VCGCB beginning in 2016-17. The
proposed change would result in the board having primarily
victim programs to administer, as opposed to its current role
which includes responsibility for certain non-victim
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programs." (See The 2015-16 Budget: Improving State Programs
for Crime Victims, by J. Peters, Legislative Analyst's Office,
March 18, 2015, p. 3,
< http://www.lao.ca.gov/reports/2015/budget/crime-victims/crime-
victims-031815.pdf >.) The budget proposes $105 million,
primarily from the Restitution Fund, and federal funds, which
is a decrease of $14 million from the levels provided in
2014-15. (Id. at p. 6.)
4)Legislative Analyst's Office (LAO) Report: The LAO's March
2015 report, Improving State Programs for Crime Victims, made
several recommendations. The LAO agreed with the Governor's
proposal to restructure the VCGCB to focus solely on
administering victim programs, and shifting victim programs
administered by other departments to the VCGCB. The LOA also
found that the board needs to develop a comprehensive
strategy, which among other things should assess the
appropriate number, scope, and priority of the state's
existing programs, as well as conducting periodic program
evaluations to see which victim programs are most effective
and should be expanded in the future. (Improving State
Programs for Crime Victims, supra, pp. 18-20, <
http://www.lao.ca.gov/reports/2015/budget/crime-victims/crime-v
ictims-031815.pdf >.)
5)Argument in Support: According to the Alameda County District
Attorney, "As you may know, the California Victim Compensation
and Government Claims Board administers the California Victim
Compensation Program (CalVCP), which compensates victims and
derivate victims of specified types of crimes through a
continuously appropriated fund, the Restitution fund. To
address ongoing issues with outdated restrictions and the need
to modernize the program to reflect changing technologies and
crimes, the CalVCP conducted a Statute Modernization Project,
bringing various stakeholder groups together to make
recommendations on revising and updating the state
compensation program to better serve victims.
"AB 1140 implements the recommendations made by the CalVCP
Modernization Project."
6)Argument in Opposition: According to the California District
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Attorneys Association, "Section 5 of the bill (on p. 19)
amends Government Code section 13957(a)(1) to provide for
reimbursement only for medical or medical-related expenses
incurred by the victim for services that were provided by a
licensed medical provider.
"This is directly contrary to established law. In People v.
Keichler (2005) 129 Cal.App.4th 1039, the 3rd District Court
of Appeal upheld compensation for Laotian Hill Tribe assault
victims who paid for a shaman's spirit healing ceremony,
rather than incur Western medical expenses, after a full trial
hearing including expert testimony on the value of such a
ceremony. ?
"Finally, we ask that language be added to the bill to require
that any compensation received by a supervised felon first be
applied to any victim restitution, fines, and fees that they
owe in the case for which they are being supervised."
7)Related Legislation: SB 519 (Hancock) expands eligibility for
compensation for crime victims to include counseling to a
person who is an adult witness of a crime. The bill would also
expand eligibility for compensation for mental health services
and relocation benefits to a person who is 65 years of age or
older and sustained financial exploitation by a relative or
caretaker, if there is a reasonable fear of continued
exploitation. SB 519 is pending hearing in the Senate Public
Safety Committee.
8)Prior Legislation:
a) AB 2809 (Leno), Chapter 587, Statutes of 2008, allowed a
minor who suffers emotional injury as a direct result of
witnessing a violent crime to be eligible for reimbursement
for the costs of outpatient mental health counseling if the
minor was in close proximity to the victim when he or she
witnessed the crime
b) AB 2869 (Leno), Chapter 582, Statutes of 2006, specified
that the provisions authorizing reimbursement for funeral
and burial expenses under existing law apply without
respect to any felon status of the victim.
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c) AB 2729 (Wesson), of the 2001-2002 Legislative Session,
would have expanded mental health services to include
reimbursement for domestic violence peer counselors. AB
2729 was vetoed.
d) AB 606 (Jackson) Chapter 584, Statutes of 1999,
authorized reimbursement of services provided by child life
specialists under specified circumstances, and added
benefits for relocation, residential security, home and
vehicle modification.
REGISTERED SUPPORT / OPPOSITION:
Support
Alameda County District Attorney
Alliance for Boys and Men of Color
Legal Services for Prisoners with Children
Policy Link
Opposition
California District Attorneys Association
California Public Defenders Association
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744