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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