BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1140 Hearing Date: July 14, 2015
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|Author: |Bonta |
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|Version: |May 28, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: California Victim Compensation and Government Claims
Board
HISTORY
Source: California Victims Compensation and Government Claims
Board
Prior Legislation:AB 1629 (Bonta), Chapter 535 of the Statutes
of 2014
AB 2809 (Leno), Chapter 587, Statutes of 2008
AB 2869 (Leno), Chapter 582, Statutes of 2006
AB 2729 (Wesson), of the 2001-2002, vetoed
AB 606 (Jackson) Chapter 584, Statutes of 1999
Support: Alameda County District Attorney; Alliance for Boys
and Men of Color; Legal Services for Prisoners with
Children; Policy Link
Opposition:None known
Assembly Floor Vote: 79 - 0
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PURPOSE
The purpose of this bill is to: 1) expand the category of
persons who may act as a victim's authorized representative; 2)
revise standards for determining if a victim failed to cooperate
with the board; 3) authorize compensation for emotional harm
suffered by minors in cases of nonconsensual distribution of
sexual images; 4) authorize compensation for emotional injury
for a victim of instilling fear through harassment by electronic
means; 5) expand eligibility of derivative victims who are
grandchildren or grandparents of the direct victim; 6) eliminate
the requirement for compensation in child abduction that the
crime continue for 30 days; 7) revise factors for determining
whether a claim should be denied because the claimant was
involved with the crime and eliminates such denials in sexual
assault, domestic violence or unlawful sexual intercourse cases;
8) provide that a domestic violence victim is not deemed
uncooperative based on interactions with at the crime scene, and
a victim of domestic violence, sexual assault or human
trafficking is not deemed uncooperative by a delay reporting the
crime; a victim; 9) prohibit denial of compensation to a sexual
assault victim solely because she or he did not file a police
report and directs the board to adopt guidelines for reviewing
other kinds of evidence in such claims; revises rules for
consideration of claims by convicted felons; 10) deny
compensation to registered sex offenders; authorizes
reimbursement for medical care only if provided by a person
licensed to perform the particular service; 11) eliminate
compensation for remedial care given in accordance with a
religious healing method; 12) allow reimbursement for purchase
of a vehicle by a permanently disabled victim; 13) authorize
reimbursement for cleaning of a car that was a crime scene; 14)
allow a claimant to request a telephonic hearing to contest
denial of a claim; 15) authorize the board to seek repayment of
relocation expenses if the victim allows the offender on the
premises; 16) authorize requests for verification of legal
services; 17) require the board to commence collection of
overpayments within seven years, except for fraud; 18) authorize
a claimant to contest an overpayment allegation; 19) provide
that evidence provided after the board denied are request for
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reconsideration may be considered only at the discretion of the
board; 20) provide that the board need not forward direct
restitution to victims in an amount below $25, unless the victim
so requests; and 21) increase the compensation rate for innocent
persons who were wrongly imprisoned from $100 to $130 per day.
Existing law:
Establishes the Victims Compensation and Government Claims Board
(VCGCB or board) to operate the California Victim Compensation
Program (CalVCP). (Gov. Code §§ 13950 et. seq.)
Provides than an application for compensation shall be filed
with VCGCB in the manner determined by the board. (Gov. Code §
13952, subd.(a).)
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 (Gov. Code §
13955):
The person from whom compensation is being sought who is
any of the following; a victim; a derivative victim; or, a
person who is entitled to reimbursement for funeral, burial
or crime scene clean-up expenses pursuant to specified
sections of the Government Code;
Either of the following conditions is met: 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;
Whether or not the crime occurred within the State of
California, the victim was any of the following: A
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California resident; a member of the military stationed in
California; or, a family member living with a member of the
military stationed in California;
If compensation is being sought for a derivative victim,
the derivative victim is a resident of California, or the
resident of another state who is any of the following: At
the time of the crimes was the parent, grandparent,
sibling, spouse, child or grandchild of the victim; at the
time of the crime was living in the household of the
victim; 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 substantially
similar to a previously listed relationship; and
Another family member of the victim including, but not
limited to, the victim's fiancé or fiancée, and who
witnessed the crime; or, is the primary caretaker of a
minor victim, but was not the primary caretaker at the time
of the crime.
Authorizes VCGCB to reimburse for pecuniary loss for the
following types of losses (Gov. Code § 13957, subd. (a)):
The amount of medical or medical-related expenses
incurred by the victim, subject to specified limitations;
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;
The expenses of non-medical remedial care and treatment
rendered in accordance with a religious method of healing
recognized by state law;
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;
Cash payment to, or on behalf of, the victim for job
retraining or similar employment-oriented services;
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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;
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
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.
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).)
States that an application shall be denied if VCGCB finds that
the victim or derivative victim failed to cooperate reasonably
with law enforcement. However, in determining whether
cooperation was reasonable, VCGCB shall consider the victim's or
derivative victim's age, physical condition, and psychological
state, cultural or linguistic barriers and compelling health and
safety concerns. These concerns include but not limited to,
reasonable fear of retaliation or harm jeopardizing the
well-being of the victim, victim's family, derivative victim or
derivative victim's family. (Gov. Code § 13956, subd. (b)(1).)
Provides that a domestic violence claim may not be denied solely
because the victim did not make a police report. The board
shall adopt guidelines to consider and approve domestic violence
claims based on evidence other than a police report. The
evidence may include, but is not limited to, relevant medical or
mental health records, or the fact that the victim has obtained
a temporary or permanent restraining order. (Gov. Code § 13956,
subd. (b)(2).)
States that an application for a claim based on human
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trafficking, as defined, of the Penal Code may not be denied
solely because no police report was made by the victim. VCGCB
shall adopt guidelines that allow the board to consider and
approve applications for assistance based on human trafficking
relying upon evidence other than a police report to establish
that a human trafficking crime, as defined, has occurred. That
evidence may include any reliable corroborating information
approved by the board, including, but not limited to, the
following:
A Law Enforcement Agency Endorsement was issued, as
specified;
A human trafficking caseworker has attested by affidavit
that the individual was a victim of human trafficking.
(Gov. Code § 13956, subd. (b)(3)):
Provides that a victim of violent crime who has been convicted
of a felony may not receive compensation until released from
parole or probation. Victims who are not felons have priority
for compensation ahead of felons. (Gov. Code § 13956, subd.
(d).)
Provides that the board may deny a claim in whole or part if the
claimant, or the victim of the crime for which a derivative
victims seeks compensation, was involved in the events leading
to the crime for which compensation is sought. (Gov. Code §
13956, subd. (c).)
Provides that the board shall approve or deny applications
within an average of 90 calendar days and no later than 180 from
"of acceptance" of the application by the board or victim
center:
The board shall report quarterly to the Legislature
until it has met the time requirements for two consecutive
quarters.
If the board does not approve or deny a claim within
"180 days of the date it is accepted," the board is advise
the applicant in writing of the reasons for the failure to
rule on the application. (Gov. Code § 13958.)
This bill:
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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
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:
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;
He or she gives false information about the claim, or
causes another person to do so;
He or she refuses to apply for benefits from other
sources to which he or she may be entitled, such as
workers' compensation, Social Security, state disability
insurance or unemployment insurance or;
He or she threatens a board member or staff with
violence or bodily harm.
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; although compensation for derivative victims
is not allowed.
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.
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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.
States that factors to be considered for determining involvement
in the crime include, but are not limited to:
The victim or derivative victim initiated the qualifying
crime, or provoked or aggravated the suspect into
initiating the qualifying crime;
The qualifying crime was a reasonably foreseeable
consequence of the conduct of the victim or derivative
victim; and,
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.
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:
The victim's injuries were significantly more serious
than reasonably could have been expected based on the
victim's level of involvement;
A third party interfered in a manner not reasonably
foreseeable by the victim or derivative victim; and,
The victim's age, physical condition, and psychological
state, as well as any compelling health and safety
concerns.
Prohibits a domestic violence victim from being found to be
uncooperative based on his or her conduct with law enforcement
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at the scene of a crime.
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.
Prohibits the denial of an application for a claim arising from
a sexual assault based solely on the failure to file a police
report.
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.
Denies compensation to any person convicted of a violent felony,
as specified, until that person is no longer incarcerated and
discharged from parole, probation, post-release community
supervision, or mandatory supervision.
Denies compensation to any person who is required to register as
a sex offender.
Removes current provisions which prioritize the applications of
victims who are not felons.
Removes limits for statutory rape counseling.
Expands eligibility to recoup the costs of mental health
counseling to grandparents and grandchildren.
Limits reimbursement for medically-related expenses to those
that were provided by a licensed medical provider.
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.
Eliminates verification requirements for reimbursement of
increased residential-security measures.
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Allows reimbursement for the purchase of a vehicle for a victim
who becomes permanently disabled.
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.
Provides that if a security deposit is required for relocation
services, the board shall be named as the recipient of the
security deposit.
Expands reimbursement to cover cleaning expenses when the crime
scene is a vehicle.
Allows the board to request verification before it reimburses
for attorney's fees.
Permits an applicant who seeks a hearing on the denial of
compensation to request a telephonic hearing.
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.
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.
Authorizes the recipient of an alleged overpayment to contest
that finding.
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.
Increases the rate of compensation for a wrongfully convicted
person from $100 per day to $130 per day.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
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population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has
contributed to reducing the prison population;
Whether a proposal addresses a major area of public
safety or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
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.
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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. Purpose and History of the Victims of Crime Program (VCP)
Administered by the Victims Compensation and Government Claims
Board
The victims' compensation program was created in 1965, the first
such program in the country. VCGCB (board) provides
compensation for victims of violent crime. It reimburses
eligible victims for many crime-related expenses. Funding for
the board comes from restitution fines and penalty assessments
paid by criminal offenders, as well as federal matching funds.
The other core function of the board is to review claims against
the state and request payment of claims by the Legislature in
annual legislation. A person must present a claim for damages
against the state to the board before filing a lawsuit.
3. Audit of the Victims of Crime Program
The Bureau of State Audit (BSA) report in 2008 included the
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following highlights:
From fiscal years 2001-02 through 2004-05, program
compensation payments decreased from $123.9 million to
$61.6 million - a 50 percent decline. Despite the
significant decline in payments, the costs to support the
program increased.
Administrative costs make up a significant portion of
the Restitution Fund disbursements - ranging from 26
percent to 42 percent annually.
The board did not always process applications and bills
as promptly or efficiently as it could have. Board staff
took longer than 180 days to process applications in two
instances out of 49, and longer than 90 days to pay bills
for 23 of 77 paid bills.
The board did not adequately investigate alternative
sources of funding for victim reimbursement, such as
insurance and public aid.
The program's numerous problems with the transition to a
new application and bill processing system led to a
reported increase in complaints regarding delays in
processing applications and bills.
Some payments in CaRES appeared to be erroneous.
Although board staff provided explanations for the
erroneous payments, the fact that they were unaware of
these items indicated an absence of controls that would
prevent erroneous payments.
The board lacks the necessary system documentation for
CaRES.
There are no benchmarks, performance measures, or formal
written procedures for workload management.
In 2010, BSA found that the program had partially corrected five
of the problems noted in the audit and corrected five others.
The BSA urged the board to continue correcting the problems
noted in the report. For example:
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The board reduced administrative costs, but processing
times for claims had increased.
The board increased collections, but it had not
determined whether outreach programs had been successful
and satisfaction with the program had increased.
The board implemented better training program for
employees who examined claims submitted by crime victims.
The board developed an inventory monitoring system and
set performance benchmarks. The monitoring should improve
identification and understanding of eligibility
requirements.
Board training does include an emphasis on alternative
funding sources.
The board did complete a chapter on appeals of denials
in its manual.
The board did improve its use of the CaRES computer
system. However, claims were still more quickly processed
in the local agencies with which the board contracts.
It appears that the BSA has not issued a progress report or
update on the program since 2010.
4. Legislative Analyst's Report
The Legislative Analyst issued a report on March 18, 2015 about
services for crime victims, with an emphasis on the Victims of
Crime Program as administered by the board. LAO recommended
major changes to the entire program. At this point, a bill has
not been introduced to implement the LAO recommendations. It
does appear that changes made in this bill to the existing
operation of the program could be integrated into any
re-organization of the board and its functions.
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5. Board Responses to Issues Raised in Reports and Hearings
As noted above, the board has faced criticism for inefficiency,
overly strict standards for denying claims, particularly in
sexual assault or domestic violence claims. There have also
been criticisms that claims were denied because the forms were
missing information or included mistakes, rather than because
the victim was underserving of compensation and that
communication with victims was incomplete or not sufficiently
helpful. In addition to the BSA audit and LAO reports, there
have been a number of legislative hearings on the services
provided by the board.
In response to these criticisms, the board has sought to reduce
claim processing and payment times, has implemented statutory
directives to change claim review standards in domestic violence
and sexual assault cases. The board, as noted in Comment #3,
moved to address problems identified in the audit by the BSA.
The board has stated that it faces constant funding pressure,
noting that it often operates with a structural deficit.
Further, some problems with reviewing claims and communicating
with claimants may be inherent in the compensation system. In
comparison with joint powers agencies - usually in a county
district attorney office - board personnel in Sacramento do not
have direct contact with victims. They review claims on paper
and cannot know the background of each case and each victim.
This bill appears to be an attempt by the board to address a
wide range of issues in a single piece of legislation. It
further appears that the board has done a fairly thorough
internal review in order to propose these statutory changes.
Prior to introduction of the bill, the board met with
legislative staff and other interested parties.
6. Proposed Amendments to Include Provisions for SB 519
(Hancock) in this Bill
The author and the board has also agreed to include in this bill
a number of the provisions in SB 519 (Hancock) - pending in
Assembly Public Safety - another bill that concerns victim
compensation issues. For example, SB 519 addresses
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communication problems by requiring the board to translate
responses to victims into numerous languages. While
informational materials and claim forms are translated into
Spanish, direct correspondence with a claimant is currently only
written in English. A victim who speaks and reads a language
other than English cannot respond to any correspondence from the
board - including requests for additional information necessary
to decide the claim from - if the correspondence to the victim
is only written in English.
7. Concerns about the Claims Appeals Process
It appears that the sponsor of SB 519 - the San Francisco
District Attorney - still has concerns that the appeals process
for denied claims takes too long and that claimants are not
adequately informed about the status of their cases. The board
has stated that it has increased staffing for appeals and that
much progress has been made. It is the understanding of
committee staff that the board and the District Attorney are
continuing to discuss the appeals issues
Committee members may wish to ask board representatives to
describe what steps the board is taking to improve the process
for appeals of denied claims. Committee members may also wish to
ask the board to informally review the overall status of the
process and separate appeals into categories. This could reveal
patterns or specific issues that the board could address.
Committee staff understands that the amendments AB 1140
described in this comment will be taken in Appropriations. The
authors are discussing the details of other possible amendments.
-- END -
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