California Legislature—2015–16 Regular Session

Assembly Bill No. 2295

Introduced by Assembly Member Baker

(Coauthors: Assembly Members Brough and Wilk)

(Coauthors: Senators Glazer and Nielsen)

February 18, 2016

An act to amend Section 1202.4 of the Penal Code, relating to restitution.

LEGISLATIVE COUNSEL’S DIGEST

AB 2295, as introduced, Baker. Restitution for crimes.

Existing law requires the court to order a person who is convicted of a crime to pay restitution to the victim or victims for the full amount of economic loss, unless the court finds compelling and extraordinary reasons for not doing so and states them on the record.

This bill would require the court to order full restitution and would make technical, nonsubstantive changes. The bill would state the finding of the Legislature that these changes are declaratory of existing law.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1202.4 of the Penal Code, is amended to
read:

1202.4.  

(a) (1) It is the intent of the Legislature that a victim
of crime who incurs an economic loss as a result of the commission
of a crime shall receive restitution directly from a defendant
convicted of that crime.

(2) Upon a person being convicted of a crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.

(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of
the following:

(A) A restitution fine in accordance with subdivision (b).

(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order
were a civil judgment.

(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so and
states those reasons on the record.

(1) The restitution fine shall be set at the discretion of the court
and commensurate with the seriousness of the offense. If the person
is convicted of a felony, the fine shall not be less than begin delete two hundred
forty dollars ($240) starting on January 1, 2012, two hundred eighty
dollars ($280) starting on January 1, 2013, and end delete three hundred
dollars ($300) begin delete starting on January 1, 2014, end delete and not more than ten
thousand dollars ($10,000). If the person is convicted of a
misdemeanor, the fine shall not be less than begin delete one hundred twenty
dollars ($120) starting on January 1, 2012, one hundred forty
dollars ($140) starting on January 1, 2013, and end delete one hundred fifty
dollars ($150) begin delete starting on January 1, 2014, end delete and not more than one
thousand dollars ($1,000).

(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of the minimum fine pursuant
to paragraph (1) multiplied by the number of years of imprisonment
the defendant is ordered to serve, multiplied by the number of
felony counts of which the defendant is convicted.

(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record. A defendant’s inability to pay shall
not be considered a compelling and extraordinary reason not to
impose a restitution fine. Inability to pay may be considered only
in increasing the amount of the restitution fine in excess of the
minimum fine pursuant to paragraph (1) of subdivision (b). The
court may specify that funds confiscated at the time of the
defendant’s arrest, except for funds confiscated pursuant to begin delete Section
11469 end delete begin insert Chapter 8 (commencing with Section 11469) of Division
10 end insert of the Health and Safety Code, be applied to the restitution fine
if the funds are not exempt for spousal or child support or subject
to any other legal exemption.

(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the minimum fine pursuant to paragraph (1) of
subdivision (b), the court shall consider any relevant factors,
including, but not limited to, the defendant’s inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a
result of the crime, the extent to which any other person suffered
losses as a result of the crime, and the number of victims involved
in the crime. Those losses may include pecuniary losses to the
victim or his or her dependents as well as intangible losses, such
as psychological harm caused by the crime. Consideration of a
defendant’s inability to pay may include his or her future earning
capacity. A defendant shall bear the burden of demonstrating his
or her inability to pay. Express findings by the court as to the
factors bearing on the amount of the fine shall not be required. A
separate hearing for the fine shall not be required.

(e) The restitution fine shall not be subject to penalty
assessments authorized in Section 1464 or Chapter 12
(commencing with Section 76000) of Title 8 of the Government
Code, or the state surcharge authorized in Section 1465.7, and
shall be deposited in the Restitution Fund in the State Treasury.

(f) Except as provided in subdivisions (q) and (r), in every case
in which a victim has suffered economic loss as a result of the
defendant’s conduct, the court shall require that the defendant
make restitution to the victim or victims in an amount established
by court order, based on the amount of loss claimed by the victim
or victims or any other showing to the court. If the amount of loss
cannot be ascertained at the time of sentencing, the restitution
order shall include a provision that the amount shall be determined
at the direction of the court. The court shall order full begin delete restitution
unless it finds compelling and extraordinary reasons for not doing
so and states them on the record. end delete begin insert restitution. end insert The court may specify
that funds confiscated at the time of the defendant’s arrest, except
for funds confiscated pursuant to begin delete Section 11469 end delete begin insert Chapter 8
(commencing with Section 11469) of Division 10 end insert of the Health and
Safety Code, be applied to the restitution order if the funds are not
exempt for spousal or child support or subject to any other legal
exemption.

(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court
may modify the amount, on its own motion or on the motion of
the district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion. A victim at a restitution
hearing or modification hearing described in this paragraph may
testify by live, two-way audio and video transmission, if testimony
by live, two-way audio and video transmission is available at the
court.

(2) Determination of the amount of restitution ordered pursuant
to this subdivision shall not be affected by the indemnification or
subrogation rights of a third party. Restitution ordered pursuant to
this subdivision shall be ordered to be deposited begin delete to end delete begin insert in end insert the
Restitution Fund to the extent that the victim, as defined in
subdivision (k), has received assistance from the California Victim
Compensation and Government Claims Board pursuant to Chapter
5 (commencing with Section 13950) of Part 4 of Division 3 of
Title 2 of the Government Code.

(3) To the extent possible, the restitution order shall be prepared
by the sentencing court, shall identify each victim and each loss
to which it pertains, and shall be of a dollar amount that is sufficient
to fully reimburse the victim or victims for every determined
economic loss incurred as the result of the defendant’s criminal
conduct, including, but not limited to, all of the following:

(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.

(B) Medical expenses.

(C) Mental health counseling expenses.

(D) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor’s
parent, parents, guardian, or guardians, while caring for the injured
minor. Lost wages shall include commission income as well as
base wages. Commission income shall be established by evidence
of commission income during the 12-month period prior to the
date of the crime for which restitution is being ordered, unless
good cause for a shorter time period is shown.

(E) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor’s parent, parents,
guardian, or guardians, due to time spent as a witness or in assisting
the police or prosecution. Lost wages shall include commission
income as well as base wages. Commission income shall be
established by evidence of commission income during the
12-month period prior to the date of the crime for which restitution
is being ordered, unless good cause for a shorter time period is
shown.

(F) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.

(G) Interest, at the rate of 10 percent per annum, that accrues
as of the date of sentencing or loss, as determined by the court.

(H) Actual and reasonable attorney’s fees and other costs of
collection accrued by a private entity on behalf of the victim.

(I) Expenses incurred by an adult victim in relocating away
from the defendant, including, but not limited to, deposits for
utilities and telephone service, deposits for rental housing,
temporary lodging and food expenses, clothing, and personal items.
Expenses incurred pursuant to this section shall be verified 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.

(J) Expenses to install or increase residential security incurred
related to a violent felony, as defined in subdivision (c) of Section
667.5, including, but not limited to, a home security device or
system, or replacing or increasing the number of locks.

(K) Expenses to retrofit a residence or vehicle, or both, to make
the residence accessible to or the vehicle operational by the victim,
if the victim is permanently disabled, whether the disability is
partial or total, as a direct result of the crime.

(L) Expenses for a period of time reasonably necessary to make
the victim whole, for the costs to monitor the credit report of, and
for the costs to repair the credit of, a victim of identity theft, as
defined in Section 530.5.

(4) (A) If, as a result of the defendant’s conduct, the Restitution
Fund has provided assistance to or on behalf of a victim or
derivative victim pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code,
the amount of assistance provided shall be presumed to be a direct
result of the defendant’s criminal conduct and shall be included
in the amount of the restitution ordered.

(B) The amount of assistance provided by the Restitution Fund
shall be established by copies of bills submitted to the California
Victim Compensation and Government Claims Board reflecting
the amount paid by the board and whether the services for which
payment was made were for medical or dental expenses, funeral
or burial expenses, mental health counseling, wage or support
losses, or rehabilitation. Certified copies of these bills provided
by the board and redacted to protect the privacy and safety of the
victim or any legal privilege, 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.

(C) If the defendant offers evidence to rebut the presumption
established by this paragraph, the court may release additional
information contained in the records of the board to the defendant
only after reviewing that information in camera and finding that
the information is necessary for the defendant to dispute the amount
of the restitution order.

(5) Except as provided in paragraph (6), in any case in which
an order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant’s arrest for the
crime for which restitution may be ordered. The financial disclosure
statements shall be made available to the victim and the board
pursuant to Section 1214. The disclosure shall be signed by the
defendant upon a form approved or adopted by the Judicial Council
for the purpose of facilitating the disclosure. A defendant who
willfully states as true a material matter that he or she knows to
be false on the disclosure required by this subdivision is guilty of
a misdemeanor, unless this conduct is punishable as perjury or
another provision of law provides for a greater penalty.

(6) A defendant who fails to file the financial disclosure required
in paragraph (5), but who has filed a financial affidavit or financial
information pursuant to subdivision (c) of Section 987, shall be
deemed to have waived the confidentiality of that affidavit or
financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f). The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (5), and paragraphs (7) to (10), inclusive, shall not
apply.

(7) Except as provided in paragraph (6), the defendant shall file
the disclosure with the clerk of the court no later than the date set
for the defendant’s sentencing, unless otherwise directed by the
court. The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.

(8) In its discretion, the court may relieve the defendant of the
duty under paragraph (7) of filing with the clerk by requiring that
the defendant’s disclosure be submitted as an attachment to, and
be available to, those authorized to receive the following:

(A) A report submitted pursuant to subparagraph begin delete (C) end delete begin insert (D) end insert of
paragraph (2) of subdivision (b) of Section 1203 or subdivision
(g) of Section 1203.

(B) A stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.

(C) A report by the probation officer, or information submitted
by the defendant applying for a conditional sentence pursuant to
subdivision (d) of Section 1203.

(9) The court may consider a defendant’s unreasonable failure
to make a complete disclosure pursuant to paragraph (5) as any of
the following:

(A) A circumstance in aggravation of the crime in imposing a
term under subdivision (b) of Section 1170.

(B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.

(C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section
1203.

(D) A factor indicating that the interests of justice would not
be served by imposing less than the maximum fine and sentence
fixed by law for the case.

(10) A defendant’s failure or refusal to make the required
disclosure pursuant to paragraph (5) shall not delay entry of an
order of restitution or pronouncement of sentence. In appropriate
cases, the court may do any of the following:

(A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).

(B) If sentencing the defendant under Section 1170, provide
that the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant’s
employment, occupation, finances, and liabilities.

(C) If sentencing the defendant under Section 1203, set a date
and place for submission of the disclosure required by paragraph
(5) as a condition of probation or suspended sentence.

(11) If a defendant has any remaining unpaid balance on a
restitution order or fine 120 days prior to his or her scheduled
release from probation or 120 days prior to his or her completion
of a conditional sentence, the defendant shall prepare and file a
new and updated financial disclosure identifying all assets, income,
and liabilities in which the defendant holds or controls or has held
or controlled a present or future interest during the defendant’s
period of probation or conditional sentence. The financial
disclosure shall be made available to the victim and the board
pursuant to Section 1214. The disclosure shall be signed and
prepared by the defendant on the same form as described in
paragraph (5). A defendant who willfully states as true a material
matter that he or she knows to be false on the disclosure required
by this subdivision is guilty of a misdemeanor, unless this conduct
is punishable as perjury or another provision of law provides for
a greater penalty. The financial disclosure required by this
paragraph shall be filed with the clerk of the court no later than
90 days prior to the defendant’s scheduled release from probation
or completion of the defendant’s conditional sentence.

(12) In cases where an employer is convicted of a crime against
an employee, a payment to the employee or the employee’s
dependent that is made by the employer’s workers’ compensation
insurance carrier shall not be used to offset the amount of the
restitution order unless the court finds that the defendant
substantially met the obligation to pay premiums for that insurance
coverage.

(g)  begin delete The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record. end delete A defendant’s inability to pay shall
not be begin delete considered a compelling and extraordinary reason not to
impose a restitution order, nor shall inability to pay be end delete a
consideration in determining the amount of a restitution order.

(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing
with Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part
2 of the Code of Civil Procedure, in order to determine the
defendant’s financial assets for purposes of collecting on the
restitution order.

(i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment.

(j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the Restitution
Fund as otherwise provided by law, except to the extent that
restitution is actually collected pursuant to the order. Restitution
collected pursuant to this subdivision shall be credited to any other
judgments for the same losses obtained against the defendant
arising out of the crime for which the defendant was convicted.

(k) For purposes of this section, “victim” shall include all of
the following:

(1) The immediate surviving family of the actual victim.

(2) A corporation, business trust, estate, trust, partnership,
association, joint venture, government, governmental subdivision,
agency, or instrumentality, or any other legal or commercial entity
when that entity is a direct victim of a crime.

(3) A person who has sustained economic loss as the result of
a crime and who satisfies any of the following conditions:

(A) At the time of the crime was the parent, grandparent, sibling,
spouse, child, or grandchild of the victim.

(B) At the time of the crime was living in the household of the
victim.

(C) At the time of the crime was a person who had previously
lived in the household of the victim for a period of not less than
two years in a relationship substantially similar to a relationship
listed in subparagraph (A).

(D) Is another family member of the victim, including, but not
limited to, the victim’s fiancé or fiancée, and who witnessed the
crime.

(E) Is the primary caretaker of a minor victim.

(4) A person who is eligible to receive assistance from the
Restitution Fund pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code.

(5) A governmental entity that is responsible for repairing,
replacing, or restoring public or privately owned property that has
been defaced with graffiti or other inscribed material, as defined
in subdivision (e) of Section 594, and that has sustained an
economic loss as the result of a violation of Section 594, 594.3,
594.4, 640.5, 640.6, or 640.7.

(l) At its discretion, the board of supervisors of a county may
impose a fee to cover the actual administrative cost of collecting
the restitution fine, not to exceed 10 percent of the amount ordered
to be paid, to be added to the restitution fine and included in the
order of the court, the proceeds of which shall be deposited in the
general fund of the county.

(m) In every case in which the defendant is granted probation,
the court shall make the payment of restitution fines and orders
imposed pursuant to this section a condition of probation. Any
portion of a restitution order that remains unsatisfied after a
defendant is no longer on probation shall continue to be enforceable
by a victim pursuant to Section 1214 until the obligation is
satisfied.

(n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine begin delete or full restitution order end delete
should not be required, the court shall order, as a condition of
probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition
to the finding that begin insert a end insert restitution begin insert fine end insert should not be required. Upon
revocation of probation, the court shall impose begin insert the end insert restitution begin insert fine end insert
pursuant to this section.

(o) The provisions of Section 13963 of the Government Code
shall apply to restitution imposed pursuant to this section.

(p) The court clerk shall notify the California Victim
Compensation and Government Claims Board within 90 days of
an order of restitution being imposed if the defendant is ordered
to pay restitution to the board due to the victim receiving
compensation from the Restitution Fund. Notification shall be
accomplished by mailing a copy of the court order to the board,
which may be done periodically by bulk mail or email.

(q) Upon conviction for a violation of Section 236.1, the court
shall, in addition to any other penalty or restitution, order the
defendant to pay restitution to the victim in a case in which a victim
has suffered economic loss as a result of the defendant’s conduct.
The court shall require that the defendant make restitution to the
victim or victims in an amount established by court order, based
on the amount of loss claimed by the victim or victims or another
showing to the court. In determining restitution pursuant to this
section, the court shall base its order upon the greater of the
following: the gross value of the victim’s labor or services based
upon the comparable value of similar services in the labor market
in which the offense occurred, or the value of the victim’s labor
as guaranteed under California law, or the actual income derived
by the defendant from the victim’s labor or services or any other
appropriate means to provide reparations to the victim.

(r) (1) In addition to any other penalty or fine, the court shall
order a person who has been convicted of a violation of Section
350, 653h, 653s, 653u, 653w, or 653aa that involves a recording
or audiovisual work to make restitution to an owner or lawful
producer, or trade association acting on behalf of the owner or
lawful producer, of a phonograph record, disc, wire, tape, film, or
other device or article from which sounds or visual images are
derived that suffered economic loss resulting from the violation.
The order of restitution shall be based on the aggregate wholesale
value of lawfully manufactured and authorized devices or articles
from which sounds or visual images are devised corresponding to
the number of nonconforming devices or articles involved in the
offense, unless a higher value can be proved in the case of (A) an
unreleased audio work, or (B) an audiovisual work that, at the time
of unauthorized distribution, has not been made available in copies
for sale to the general public in the United States on a digital
versatile disc. For purposes of this subdivision, possession of
nonconforming devices or articles intended for sale constitutes
actual economic loss to an owner or lawful producer in the form
of displaced legitimate wholesale purchases. The order of
restitution shall also include reasonable costs incurred as a result
of an investigation of the violation undertaken by the owner, lawful
producer, or trade association acting on behalf of the owner or
lawful producer. “Aggregate wholesale value” means the average
wholesale value of lawfully manufactured and authorized sound
or audiovisual recordings. Proof of the specific wholesale value
of each nonconforming device or article is not required.

(2) As used in this subdivision, “audiovisual work” and
“recording” shall have the same meaning as in Section 653w.

SEC. 2.  

The Legislature finds and declares that this measure
is declaratory of existing law, as described in footnote 2 of People
v. Pierce (2015) 234 Cal.App.4th 1334 (hereafter Pierce). As noted
in that case, subdivision (b) of Section 28 of Article I of the
California Constitution, as amended by Proposition 9 (Marsy’s
Law) at the November 4, 2008, general election, requires that
“restitution shall be ordered from the convicted wrongdoer in every
case, regardless of the sentence or disposition imposed, in which
a crime victim suffers a loss.” By providing that a court has
authority to order less than full restitution in situations where a
victim suffers a loss, subdivision (f) of Section 1202.4 of the Penal
Code is inconsistent with the constitutional requirement. The court
in Pierce encouraged the Legislature to conform this requirement
to the constitution. This measure would do so.