BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1140 (Bonta) - California Victim Compensation and Government
Claims Board
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|Version: August 18, 2015 |Policy Vote: PUB. S. 7 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 24, 2015 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 1140 would revise numerous provisions of law
governing the California Victim Compensation Program (CalVCP),
as specified. This bill would also increase the daily
compensation rate for individuals erroneously convicted and
imprisoned from $100 to $140 per day, as specified.
Fiscal
Impact:
CalVCP benefits : Significant increase in CalVCP payments
potentially in excess of $800,000 (Special Fund*) annually due
to expanded and revised eligibility criteria, most
significantly due to the changes in eligibility criteria
related to lack of cooperation with law enforcement.
CalVCP administration : One-time costs to the Board for
resource needs potentially in excess of $150,000 (Special
Fund*) for programming changes necessary to the automated
claims processing system. Ongoing increased administrative
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workload for claims processing of increased applications.
Federal fund impact : Potential future increases in annual
federal Victims of Crime Act (VOCA) grant funds of 60 percent
reimbursement for state funds used to compensate victims to
the extent the annual cap on VOCA fund obligations is
adequately raised or removed. Additionally, VOCA grant awards
are based on state expenditures from prior years, so any
potential increases to the VOCA grant award would not be
received until 2018-19 at the earliest.
Erroneous imprisonment compensation : Potentially significant
increase in erroneous conviction compensation payments in the
range of $148,000 to $517,000 (General Fund) per claim paid.
*Restitution Fund
Background: The CalVCP, which is administered by the California Victim
Compensation and Government Claims Board (Board), provides
compensation for victims and derivative victims (including
spouses, domestic partners, children, parents, legal guardians,
siblings, grandparents, and grandchildren) who suffer physical
or emotional injury, or the threat of physical injury, as a
direct result of a violent crime. Crimes covered by the program
include domestic violence, child abuse, sexual and physical
assault, homicide, human trafficking, robbery, and vehicular
manslaughter.
Subject to specified eligibility criteria, CalVCP compensates
eligible victims for various crime-related expenses that are not
covered by other sources. Services covered include medical and
dental care, mental health services, income loss, funeral
expenses, home security, rehabilitation and relocation. Funding
for the program is provided by the Restitution Fund, which
derives its revenue from restitution fines and orders, diversion
fees, and penalty assessments levied on persons convicted of
crimes and traffic offenses. CalVCP also receives federal grant
monies from the Victims of Crime Act (VOCA). VOCA funds come
from penalties paid by offenders convicted of federal crimes.
Existing law provides that any person who, having been convicted
of a crime and imprisoned in the state prison, is granted a
pardon by the Governor because the crime with which he or she
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was charged either did not occur, or if it did occur, was not
committed by him or her, or who is innocent of the charges for
either of the foregoing reasons, and who has served any part of
the term for which imprisoned may present a claim against the
State to the Board for the pecuniary injury sustained through
the wrongful conviction and imprisonment. (Penal Code (PC) §
4900.)
Existing law provides that if the evidence shows that the crime
with which the claimant was charged was either not committed at
all, or, if committed, was not committed by the claimant, and
that the claimant has sustained pecuniary injury through his or
her erroneous conviction and imprisonment, the Board shall
report the facts of the case and its conclusions to the next
Legislature, with a recommendation that an appropriation be made
by the Legislature for the purpose of indemnifying the claimant
for the pecuniary injury. Under existing law, the amount of the
appropriation recommended shall be a sum equivalent to $100 per
day of incarceration served subsequent to the claimant's
conviction and that appropriation shall not be treated as gross
income to the recipient under the Revenue and Taxation Code. (PC
§ 4904.)
Proposed Law:
This bill would revise numerous provisions of law governing the
CalVCP, as specified. This bill would also increase the daily
compensation rate for individuals erroneously convicted and
imprisoned from $100 to $140 per day. Specifically, this bill:
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.
Revises standards for determining whether an applicant
may be found to have been "uncooperative" for purposes of
verifying information necessary to process a claim.
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
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which the victim appeared, if the victim is a minor.
Specifies that a service organization for victims of
violent crime with regard to the provision of outpatient
violence peer counseling services is a nonprofit and
charitable organization instead of a nongovernmental
organization.
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.
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.
Revises the specified factors to be considered for
determining involvement in a crime.
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.
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.
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 reimbursement limits for statutory rape
counseling.
Expands eligibility to recoup the costs of mental health
counseling to grandparents and grandchildren.
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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.
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 to $140 per day, including any
time spent in custody, including county jail. Expands the
scope of a compensable injury to include non-pecuniary
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injuries.
Related
Legislation: SB 519 (Hancock) 2015 would make numerous reforms
to rules governing the processing of CalVCP claims by the Board.
This bill is pending hearing in the Assembly Committee on
Appropriations.
SB 556 (de Leon) 2015 would define "application processing time"
for the approval or denial of a victim's compensation claim for
CalVCP, and requires the Board to annually post on its internet
website its current average time of processing applications, the
number of applications approved and denied, and the number of
incomplete applications received. This bill is pending on the
Assembly Floor.
SB 635 (Nielsen) 2015 would raise the compensation for an
erroneously convicted and imprisoned person from $100 to $140
per day of incarceration served, including any time spent in
custody in county jail that is considered to be part of the term
of incarceration. This bill would also expand the scope of a
compensable injury to include non-pecuniary injuries. This bill
is pending hearing in the Assembly Committee on Appropriations.
Prior Legislation: AB 1629 (Bonta) Chapter 535/2014 authorizes
reimbursement under the CalVCP to a crime victim or a derivative
victim for outpatient violence-peer-counseling expenses
incurred, as specified.
Staff
Comments: The Board has estimated the provisions of this
measure could increase payments from the CalVCP potentially in
excess of $700,000 (Restitution Fund) annually, as follows:
Cooperation with Law Enforcement - Approximately 400
applications are denied based on domestic violence and 100
based on sexual assault per year due to lack of cooperation
with law enforcement. If half of these applicants were made
eligible by the changes in denial due to lack of cooperation
with law enforcement at an average payment of $2,250 per
application, the total payment increase would be approximately
$550,000 per year.
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Online Harassment - The Board surveyed several counties on the
number of times that charges had been filed or referred from
law enforcement for potential charges under Penal Code §
653.2. An extrapolation based on population projects an
average of 35 violations per year since 2010. Some cases that
would be eligible under this section already may be eligible
due to in-person harassment committed along with harassment by
electronic means. In addition, cases that involve only
emotional injury are generally only eligible for reimbursement
of mental health counseling expenses. Any increase in payments
due to the eligibility of the crime of online harassment is
anticipated to be negligible and absorbable.
Vehicular Crime-Scene Cleanup - Over the past three fiscal
years, CalVCP has reimbursed an average of 29 crime-scene
cleanup claims per year at a total cost of $26,000 per year.
Any increase in payments due making vehicular crime-scenes
eligible for cleanup services is anticipated to be negligible
and absorbable.
Denial Due to Participation in a Crime - Approximately 45
applicants per year are denied due to participation in a
crime. If half of these applicants were made eligible by the
change in denial due to participation at an average payment of
$2,250 per application, the total payment increase would be
approximately $50,000 per year.
Applicants with Felon Status - Over the past three fiscal
years, the Board has denied reimbursement of expenses of
approximately 90 applicants per year due to their felon
status. If half of these applicants were made eligible by the
allowance of payments to non-violent felons at an average
payment of $2,250 per application, the total payment increase
would be approximately $100,000 per year.
Alignment of Mental Health Counseling Limits - Specified
direct victims are currently eligible for $5,000 in mental
health counseling reimbursement, and the Board is unaware of a
significant number of cases where the applicant has exhausted
this amount. Therefore, it is estimated that granting
additional specified victims the same mental health counseling
limit allowed for other victims will result in any significant
increase in payouts. Any potential increase in payouts due to
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this change is anticipated to be negligible and absorbable.
Distribution of Restitution Orders to Victims - Holding
distribution of payments under $25 is anticipated to ease
administration of this function.
Denial of Minors for Lack of Cooperation - Prohibiting denial
of a minor for lack of cooperation would likely have a cost of
less than $100,000. Currently, approximately 70 minors per
year are denied in part due to lack of cooperation. It is
likely that some of these minors would still be denied for
other reasons such as a lack of evidence substantiating a
crime.
Erroneous Conviction Compensation
By increasing the daily rate of compensation for an erroneously
convicted and imprisoned person from $100 per day of
incarceration served to $140 per day of incarceration served,
including any time spent in custody in county jail that is
considered to be part of the term of incarceration, this bill
will result in increased payment amounts from the General Fund.
Since 2001, there have been 17 claims approved for payment of
compensation for erroneous convictions. While it is unknown how
many approved claims will be impacted prospectively, based on
the average claim payment of about $369,000, increasing the
daily compensation rate to $140 per day would increase the
average claim payment to nearly $517,000, an increase of
$148,000 per claim.
The impact of additionally compensating a person for time spent
in custody in county jail that is considered part of the term of
incarceration would also increase the cost of each claim
payment. Costs would be dependent on the individual case. While
the average length of stay in jail that would be applicable
under the provisions of this bill is unknown, for context, every
25 days spent in custody in county jail would result in
additional costs of $3,500 per claim. To the extent the time
spent in jail is greater or less, costs would vary accordingly.
This bill removes the existing requirement that a claimant prove
the loss was pecuniary in nature. As a result, this provision
could result in approval of claims that otherwise would have
been denied under current law. The Board indicates one claim in
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2014 was denied for lack of pecuniary loss. While the number of
claimants impacted is not estimated to be significant, the
potential increase in payments is estimated at $517,000 per
claim.
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