Amended in Assembly March 15, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 2295


Introduced by Assembly Member Baker

(Coauthors: Assembly Members Brough and Wilk)

(Coauthors: Senators Glazer and Nielsen)

February 18, 2016


An act to amendbegin delete Sectionend deletebegin insert Sections 186.11, 186.12, andend insert 1202.4 of the Penal Code, relating to restitution.

LEGISLATIVE COUNSEL’S DIGEST

AB 2295, as amended, 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.begin insert Existing law specifically requires a defendant subject to the aggravated white collar crime enhancement, and a person convicted of a felony involving theft, embezzlement, forgery, or fraud, with respect to the property or personal identifying information of an elder or a dependent adult, to be ordered to make full restitution to the victim or to make restitution to the victim based on his or her ability to pay.end insert

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:

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 186.11 of the end insertbegin insertPenal Codeend insertbegin insert is amended to
2read:end insert

3

186.11.  

(a) (1) Any person who commits two or more related
4felonies, a material element of which is fraud or embezzlement,
5which involve a pattern of related felony conduct, and the pattern
6of related felony conduct involves the taking of, or results in the
7loss by another person or entity of, more than one hundred thousand
8dollars ($100,000), shall be punished, upon conviction of two or
9more felonies in a single criminal proceeding, in addition and
10consecutive to the punishment prescribed for the felony offenses
11of which he or she has been convicted, by an additional term of
12imprisonment in the state prison as specified in paragraph (2) or
13(3). This enhancement shall be known as the aggravated white
14collar crime enhancement. The aggravated white collar crime
15enhancement shall only be imposed once in a single criminal
16proceeding. For purposes of this section, “pattern of related felony
17conduct” means engaging in at least two felonies that have the
18same or similar purpose, result, principals, victims, or methods of
19commission, or are otherwise interrelated by distinguishing
20characteristics, and that are not isolated events. For purposes of
21this section, “two or more related felonies” means felonies
22committed against two or more separate victims, or against the
23same victim on two or more separate occasions.

24(2) If the pattern of related felony conduct involves the taking
25of, or results in the loss by another person or entity of, more than
26five hundred thousand dollars ($500,000), the additional term of
27punishment shall be two, three, or five years in the state prison.

28(3) If the pattern of related felony conduct involves the taking
29of, or results in the loss by another person or entity of, more than
30one hundred thousand dollars ($100,000), but not more than five
31hundred thousand dollars ($500,000), the additional term of
32punishment shall be the term specified in paragraph (1) or (2) of
33subdivision (a) of Section 12022.6.

34(b) (1) The additional prison term and penalties provided for
35in subdivisions (a), (c), and (d) shall not be imposed unless the
36facts set forth in subdivision (a) are charged in the accusatory
37pleading and admitted or found to be true by the trier of fact.

P3    1(2) The additional prison term provided in paragraph (2) of
2subdivision (a) shall be in addition to any other punishment
3provided by law, including Section 12022.6, and shall not be
4limited by any other provision of law.

5(c) Any person convicted of two or more felonies, as specified
6in subdivision (a), shall also be liable for a fine not to exceed five
7hundred thousand dollars ($500,000) or double the value of the
8taking, whichever is greater, if the existence of facts that would
9make the person subject to the aggravated white collar crime
10enhancement have been admitted or found to be true by the trier
11of fact. However, if the pattern of related felony conduct involves
12the taking of more than one hundred thousand dollars ($100,000),
13but not more than five hundred thousand dollars ($500,000), the
14fine shall not exceed one hundred thousand dollars ($100,000) or
15double the value of the taking, whichever is greater.

16(d) (1) If a person is alleged to have committed two or more
17felonies, as specified in subdivision (a), and the aggravated white
18collar crime enhancement is also charged, or a person is charged
19in an accusatory pleading with a felony, a material element of
20which is fraud or embezzlement, that involves the taking or loss
21of more than one hundred thousand dollars ($100,000), and an
22allegation as to the existence of those facts, any asset or property
23that is in the control of that person, and any asset or property that
24has been transferred by that person to a third party, subsequent to
25the commission of any criminal act alleged pursuant to subdivision
26(a), other than in a bona fide purchase, whether found within or
27outside the state, may be preserved by the superior court in order
28to pay restitution and fines. Upon conviction of two or more
29felonies, as specified in subdivision (a), or a felony, a material
30element of which is fraud or embezzlement, that involves the taking
31or loss of more than one hundred thousand dollars ($100,000), this
32property may be levied upon by the superior court to pay restitution
33and fines if the existence of facts that would make the person
34subject to the aggravated white collar crime enhancement or that
35demonstrate the taking or loss of more than one hundred thousand
36dollars ($100,000) in the commission of a felony, a material
37element of which is fraud or embezzlement, have been charged in
38the accusatory pleading and admitted or found to be true by the
39trier of fact.

P4    1(2) To prevent dissipation or secreting of assets or property, the
2prosecuting agency may, at the same time as or subsequent to the
3filing of a complaint or indictment charging two or more felonies,
4as specified in subdivision (a), and the enhancement specified in
5subdivision (a), or a felony, a material element of which is fraud
6or embezzlement, that involves the taking or loss of more than one
7hundred thousand dollars ($100,000), and an allegation as to the
8existence of those facts, file a petition with the criminal division
9of the superior court of the county in which the accusatory pleading
10was filed, seeking a temporary restraining order, preliminary
11injunction, the appointment of a receiver, or any other protective
12relief necessary to preserve the property or assets. This petition
13shall commence a proceeding that shall be pendent to the criminal
14proceeding and maintained solely to affect the criminal remedies
15provided for in this section. The proceeding shall not be subject
16to or governed by the provisions of the Civil Discovery Act as set
17forth in Title 4 (commencing with Section 2016.010) of Part 4 of
18the Code of Civil Procedure. The petition shall allege that the
19defendant has been charged with two or more felonies, as specified
20in subdivision (a), and is subject to the aggravated white collar
21crime enhancement specified in subdivision (a) or that the
22defendant has been charged with a felony, a material element of
23which is fraud or embezzlement, that involves the taking or loss
24of more than one hundred thousand dollars ($100,000), and an
25allegation as to the existence of those facts. The petition shall
26identify that criminal proceeding and the assets and property to be
27affected by an order issued pursuant to this section.

28(3) A notice regarding the petition shall be provided, by personal
29service or registered mail, to every person who may have an interest
30in the property specified in the petition. Additionally, the notice
31shall be published for at least three successive weeks in a
32newspaper of general circulation in the county where the property
33affected by an order issued pursuant to this section is located. The
34notice shall state that any interested person may file a verified
35claim with the superior court stating the nature and amount of their
36claimed interest. The notice shall set forth the time within which
37a claim of interest in the protected property is required to be filed.

38(4) If the property to be preserved is real property, the
39prosecuting agency shall record, at the time of filing the petition,
40a lis pendens in each county in which the real property is situated
P5    1which specifically identifies the property by legal description, the
2name of the owner of record as shown on the latest equalized
3assessment roll, and the assessor’s parcel number.

4(5) If the property to be preserved are assets under the control
5of a banking or financial institution, the prosecuting agency, at the
6time of the filing of the petition, may obtain an order from the
7court directing the banking or financial institution to immediately
8disclose the account numbers and value of the assets of the accused
9held by the banking or financial institution. The prosecuting agency
10shall file a supplemental petition, specifically identifying which
11banking or financial institution accounts shall be subject to a
12temporary restraining order, preliminary injunction, or other
13protective remedy.

14(6) Any person claiming an interest in the protected property
15may, at any time within 30 days from the date of the first
16 publication of the notice of the petition, or within 30 days after
17receipt of actual notice, file with the superior court of the county
18in which the action is pending a verified claim stating the nature
19and amount of his or her interest in the property or assets. A
20verified copy of the claim shall be served by the claimant on the
21Attorney General or district attorney, as appropriate.

22(7) The imposition of fines and restitution pursuant to this
23section shall be determined by the superior court in which the
24underlying criminal offense is sentenced. Any judge who is
25assigned to the criminal division of the superior court in the county
26where the petition is filed may issue a temporary restraining order
27in conjunction with, or subsequent to, the filing of an allegation
28pursuant to this section. Any subsequent hearing on the petition
29shall also be heard by a judge assigned to the criminal division of
30the superior court in the county in which the petition is filed. At
31the time of the filing of an information or indictment in the
32underlying criminal case, any subsequent hearing on the petition
33shall be heard by the superior court judge assigned to the
34underlying criminal case.

35(e) Concurrent with or subsequent to the filing of the petition,
36the prosecuting agency may move the superior court for, and the
37superior court may issue, the following pendente lite orders to
38preserve the status quo of the property alleged in the petition:

P6    1(1) An injunction to restrain any person from transferring,
2encumbering, hypothecating, or otherwise disposing of that
3property.

4(2) Appointment of a receiver to take possession of, care for,
5manage, and operate the assets and properties so that the property
6may be maintained and preserved. The court may order that a
7receiver appointed pursuant to this section shall be compensated
8for all reasonable expenditures made or incurred by him or her in
9connection with the possession, care, management, and operation
10of any property or assets that are subject to the provisions of this
11section.

12(3) A bond or other undertaking, in lieu of other orders, of a
13value sufficient to ensure the satisfaction of restitution and fines
14imposed pursuant to this section.

15(f) (1) No preliminary injunction may be granted or receiver
16appointed by the court without notice that meets the requirements
17of paragraph (3) of subdivision (d) to all known and reasonably
18ascertainable interested parties and upon a hearing to determine
19that an order is necessary to preserve the property pending the
20outcome of the criminal proceedings. A temporary restraining
21order may be issued by the court, ex parte, pending that hearing
22in conjunction with or subsequent to the filing of the petition upon
23the application of the prosecuting attorney. The temporary
24restraining order may be based upon the sworn declaration of a
25peace officer with personal knowledge of the criminal investigation
26that establishes probable cause to believe that aggravated white
27collar crime or a felony, a material element of which is fraud or
28embezzlement, that involves the taking or loss of more than one
29hundred thousand dollars ($100,000) has taken place and that the
30amount of restitution and fines exceeds or equals the worth of the
31assets subject to the temporary restraining order. The declaration
32may include the hearsay statements of witnesses to establish the
33necessary facts. The temporary restraining order may be issued
34without notice upon a showing of good cause to the court.

35(2) The defendant, or a person who has filed a verified claim
36as provided in paragraph (6) of subdivision (d), shall have the right
37to have the court conduct an order to show cause hearing within
3810 days of the service of the request for hearing upon the
39prosecuting agency, in order to determine whether the temporary
40restraining order should remain in effect, whether relief should be
P7    1granted from any lis pendens recorded pursuant to paragraph (4)
2of subdivision (d), or whether any existing order should be
3modified in the interests of justice. Upon a showing of good cause,
4the hearing shall be held within two days of the service of the
5request for hearing upon the prosecuting agency.

6(3) In determining whether to issue a preliminary injunction or
7temporary restraining order in a proceeding brought by a
8prosecuting agency in conjunction with or subsequent to the filing
9of an allegation pursuant to this section, the court has the discretion
10to consider any matter that it deems reliable and appropriate,
11including hearsay statements, in order to reach a just and equitable
12decision. The court shall weigh the relative degree of certainty of
13the outcome on the merits and the consequences to each of the
14parties of granting the interim relief. If the prosecution is likely to
15prevail on the merits and the risk of the dissipation of assets
16outweighs the potential harm to the defendants and the interested
17parties, the court shall grant injunctive relief. The court shall give
18significant weight to the following factors:

19(A) The public interest in preserving the property or assets
20pendente lite.

21(B) The difficulty of preserving the property or assets pendente
22lite where the underlying alleged crimes involve issues of fraud
23and moral turpitude.

24(C) The fact that the requested relief is being sought by a public
25prosecutor on behalf of alleged victims of white collar crimes.

26(D) The likelihood that substantial public harm has occurred
27where aggravated white collar crime is alleged to have been
28committed.

29(E) The significant public interest involved in compensating
30the victims of white collar crime and paying court-imposed
31restitution and fines.

32(4) The court, in making its orders, may consider a defendant’s
33request for the release of a portion of the property affected by this
34section in order to pay reasonable legal fees in connection with
35the criminal proceeding, any necessary and appropriate living
36expenses pending trial and sentencing, and for the purpose of
37posting bail. The court shall weigh the needs of the public to retain
38the property against the needs of the defendant to a portion of the
39property. The court shall consider the factors listed in paragraph
40(3) prior to making any order releasing property for these purposes.

P8    1(5) The court, in making its orders, shall seek to protect the
2interests of any innocent third persons, including an innocent
3spouse, who were not involved in the commission of any criminal
4activity.

5(6) Any petition filed pursuant to this section is part of the
6criminal proceedings for purposes of appointment of counsel and
7shall be assigned to the criminal division of the superior court of
8the county in which the accusatory pleading was filed.

9(7) Based upon a noticed motion brought by the receiver
10appointed pursuant to paragraph (2) of subdivision (e), the court
11may order an interlocutory sale of property named in the petition
12when the property is liable to perish, to waste, or to be significantly
13reduced in value, or when the expenses of maintaining the property
14are disproportionate to the value thereof. The proceeds of the
15interlocutory sale shall be deposited with the court or as directed
16by the court pending determination of the proceeding pursuant to
17this section.

18(8) The court may make any orders that are necessary to preserve
19the continuing viability of any lawful business enterprise that is
20affected by the issuance of a temporary restraining order or
21preliminary injunction issued pursuant to this action.

22(9) In making its orders, the court shall seek to prevent any asset
23subject to a temporary restraining order or preliminary injunction
24from perishing, spoiling, going to waste, or otherwise being
25significantly reduced in value. Where the potential for diminution
26in value exists, the court shall appoint a receiver to dispose of or
27otherwise protect the value of the property or asset.

28(10) A preservation order shall not be issued against any assets
29of a business that are not likely to be dissipated and that may be
30subject to levy or attachment to meet the purposes of this section.

31(g) If the allegation that the defendant is subject to the
32aggravated white collar crime enhancement or has committed a
33felony, a material element of which is fraud or embezzlement, that
34involves the taking or loss of more than one hundred thousand
35dollars ($100,000) is dismissed or found by the trier of fact to be
36untrue, any preliminary injunction or temporary restraining order
37issued pursuant to this section shall be dissolved. If a jury is the
38trier of fact, and the jury is unable to reach a unanimous verdict,
39the court shall have the discretion to continue or dissolve all or a
40portion of the preliminary injunction or temporary restraining order
P9    1based upon the interests of justice. However, if the prosecuting
2agency elects not to retry the case, any preliminary injunction or
3temporary restraining order issued pursuant to this section shall
4be dissolved.

5(h) (1) (A) If the defendant is convicted of two or more
6felonies, as specified in subdivision (a), and the existence of facts
7that would make the person subject to the aggravated white collar
8crime enhancement have been admitted or found to be true by the
9trier of fact, or the defendant is convicted of a felony, a material
10element of which is fraud or embezzlement, that involves the taking
11or loss of more than one hundred thousand dollars ($100,000), and
12an allegation as to the existence of those facts has been admitted
13or found to be true by the trier of fact, the trial judge shall continue
14the preliminary injunction or temporary restraining order until the
15date of the criminal sentencing and shall make a finding at that
16time as to what portion, if any, of the property or assets subject to
17the preliminary injunction or temporary restraining order shall be
18levied upon to pay fines and restitution to victims of the crime.
19The order imposing fines and restitution may exceed the total worth
20of the property or assets subjected to the preliminary injunction
21or temporary restraining order. The court may order the immediate
22transfer of the property or assets to satisfy any judgment and
23sentence made pursuant to this section. Additionally, upon motion
24of the prosecution, the court may enter an order as part of the
25judgment and sentence making the order imposing fines and
26restitution pursuant to this section enforceable pursuant to Title 9
27(commencing with Section 680.010) of Part 2 of the Code of Civil
28Procedure.

29(B) Additionally, the court shall order the defendant to make
30full restitution to thebegin delete victim or to make restitution to the victim
31based on his or her ability to pay, as defined in subdivision (b) of
32Section 1203.1b.end delete
begin insert victim.end insert The payment of the restitution ordered
33by the court pursuant to this section shall be made a condition of
34any probation granted by the court if the existence of facts that
35would make the defendant subject to the aggravated white collar
36crime enhancement or of facts demonstrating the person committed
37a felony, a material element of which is fraud or embezzlement,
38that involves the taking or loss of more than one hundred thousand
39dollars ($100,000) have been admitted or found to be true by the
40trier of fact. Notwithstanding any other provision of law, the court
P10   1may order that the period of probation continue for up to 10 years
2or until full restitution is made to the victim, whichever is earlier.

3(C) The sentencing court shall retain jurisdiction to enforce the
4order to pay additional fines and restitution and, in appropriate
5cases, may initiate probation violation proceedings or contempt
6of court proceedings against a defendant who is found to have
7willfully failed to comply with any lawful order of the court.

8(D) If the execution of judgment is stayed pending an appeal
9of an order of the superior court pursuant to this section, the
10preliminary injunction or temporary restraining order shall be
11maintained in full force and effect during the pendency of the
12appellate period.

13(2) The order imposing fines and restitution shall not affect the
14interest in real property of any third party that was acquired prior
15to the recording of the lis pendens, unless the property was obtained
16from the defendant other than as a bona fide purchaser for value.
17If any assets or property affected by this section are subject to a
18valid lien, mortgage, security interest, or interest under a
19conditional sales contract and the amount due to the holder of the
20lien, mortgage, interest, or contract is less than the appraised value
21of the property, that person may pay to the state or the local
22government that initiated the proceeding the amount of the
23difference between the appraised value of the property and the
24amount of the lien, mortgage, security interest, or interest under a
25conditional sales contract. Upon that payment, the state or local
26entity shall relinquish all claims to the property. If the holder of
27the interest elects not to make that payment to the state or local
28governmental entity, the interest in the property shall be deemed
29transferred to the state or local governmental entity and any indicia
30of ownership of the property shall be confirmed in the state or
31local governmental entity. The appraised value shall be determined
32as of the date judgment is entered either by agreement between
33the holder of the lien, mortgage, security interest, or interest under
34a conditional sales contract and the governmental entity involved,
35or if they cannot agree, then by a court-appointed appraiser for the
36county in which the action is brought. A person holding a valid
37lien, mortgage, security interest, or interest under a conditional
38sales contract shall be paid the appraised value of his or her interest.

39(3) In making its final order, the court shall seek to protect the
40legitimately acquired interests of any innocent third persons,
P11   1including an innocent spouse, who were not involved in the
2commission of any criminal activity.

3(i) In all cases where property is to be levied upon pursuant to
4this section, a receiver appointed by the court shall be empowered
5to liquidate all property or assets which shall be distributed in the
6following order of priority:

7(1) To the receiver, or court-appointed appraiser, for all
8reasonable expenditures made or incurred by him or her in
9connection with the sale of the property or liquidation of assets,
10including all reasonable expenditures for any necessary repairs,
11storage, or transportation of any property levied upon under this
12section.

13(2) To any holder of a valid lien, mortgage, or security interest
14up to the amount of his or her interest in the property or proceeds.

15(3) To any victim as restitution for any fraudulent or unlawful
16acts alleged in the accusatory pleading that were proven by the
17prosecuting agency as part of the pattern of fraudulent or unlawful
18acts.

19(4) For payment of any fine imposed pursuant to this section.
20The proceeds obtained in payment of a fine shall be paid to the
21treasurer of the county in which the judgment was entered, or if
22the action was undertaken by the Attorney General, to the
23Treasurer. If the payment of any fine imposed pursuant to this
24 section involved losses resulting from violation of Section 550 of
25this code or Section 1871.4 of the Insurance Code, one-half of the
26fine collected shall be paid to the treasurer of the county in which
27the judgment was entered, and one-half of the fine collected shall
28be paid to the Department of Insurance for deposit in the
29appropriate account in the Insurance Fund. The proceeds from the
30fine first shall be used by a county to reimburse local prosecutors
31and enforcement agencies for the reasonable costs of investigation
32and prosecution of cases brought pursuant to this section.

33(5) To the Restitution Fund, or in cases involving convictions
34relating to insurance fraud, to the Insurance Fund as restitution for
35crimes not specifically pleaded and proven in the accusatory
36pleading.

37(j) If, after distribution pursuant to paragraphs (1) and (2) of
38subdivision (i), the value of the property to be levied upon pursuant
39to this section is insufficient to pay for restitution and fines, the
40court shall order an equitable sharing of the proceeds of the
P12   1liquidation of the property, and any other recoveries, which shall
2specify the percentage of recoveries to be devoted to each purpose.
3At least 70 percent of the proceeds remaining after distribution
4pursuant to paragraphs (1) and (2) of subdivision (i) shall be
5devoted to restitution.

6(k) Unless otherwise expressly provided, the remedies or
7penalties provided by this section are cumulative to each other and
8to the remedies or penalties available under all other laws of this
9state, except that two separate actions against the same defendant
10and pertaining to the same fraudulent or unlawful acts may not be
11brought by a district attorney or the Attorney General pursuant to
12this section and Chapter 5 (commencing with Section 17200) of
13Part 2 of Division 7 of the Business and Professions Code. If a
14fine is imposed under this section, it shall be in lieu of all other
15fines that may be imposed pursuant to any other provision of law
16for the crimes for which the defendant has been convicted in the
17action.

18begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 186.12 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

19

186.12.  

(a) (1) A felony for purposes of this section means a
20felony violation of subdivision (d) or (e) of Section 368, or a felony
21violation of subdivision (c) of Section 15656 of the Welfare and
22Institutions Code, that involves the taking or loss of more than one
23hundred thousand dollars ($100,000).

24(2) If a person is charged with a felony as described in paragraph
25(1) and an allegation as to the existence of those facts has been
26made, any property that is in the control of that person, and any
27property that has been transferred by that person to a third party,
28subsequent to the commission of any criminal act alleged pursuant
29to this subdivision, other than in a bona fide purchase, whether
30found within or outside the state, may be preserved by the superior
31court in order to pay restitution imposed pursuant to this section.
32Upon conviction of the felony, this property may be levied upon
33by the superior court to pay restitution imposed pursuant to this
34section.

35(b) (1) To prevent dissipation or secreting of property, the
36prosecuting agency may, at the same time as or subsequent to the
37filing of a complaint or indictment charging a felony subject to
38this section, file a petition with the criminal division of the superior
39court of the county in which the accusatory pleading was filed,
40seeking a temporary restraining order, preliminary injunction, the
P13   1appointment of a receiver, or any other protective relief necessary
2to preserve the property. The filing of the petition shall commence
3a proceeding that shall be pendent to the criminal proceeding and
4maintained solely to affect the criminal remedies provided for in
5this section. The proceeding shall not be subject to or governed
6by the provisions of the Civil Discovery Act as set forth in Title
74 (commencing with Section 2016.010) of Part 4 of the Code of
8Civil Procedure. The petition shall allege that the defendant has
9been charged with a felony as described in paragraph (1) of
10subdivision (a) and shall identify that criminal proceeding and the
11property to be affected by an order issued pursuant to this section.

12(2) A notice regarding the petition shall be provided, by personal
13service or registered mail, to every person who may have an interest
14in the property specified in the petition. Additionally, the notice
15shall be published for at least three successive weeks in a
16newspaper of general circulation in the county where the property
17affected by an order issued pursuant to this section is located. The
18notice shall state that any interested person may file a verified
19claim with the superior court stating the nature and amount of their
20claimed interest. The notice shall set forth the time within which
21a claim of interest in the protected property is required to be filed.

22(3) If the property to be preserved is real property, the
23prosecuting agency shall record, at the time of filing the petition,
24a lis pendens in each county in which the real property is situated
25which specifically identifies the property by legal description, the
26name of the owner of record as shown on the latest equalized
27assessment roll, and the assessor’s parcel number.

28(4) If the property to be preserved are assets under the control
29of a banking or financial institution, the prosecuting agency, at the
30time of the filing of the petition, may obtain an order from the
31court directing the banking or financial institution to immediately
32disclose the account numbers and value of the assets of the accused
33held by the banking or financial institution. The prosecuting agency
34shall file a supplemental petition, specifically identifying which
35banking or financial institution accounts shall be subject to a
36temporary restraining order, preliminary injunction, or other
37protective remedy.

38(5) Any person claiming an interest in the protected property
39may, at any time within 30 days from the date of the first
40publication of the notice of the petition, or within 30 days after
P14   1receipt of actual notice, file with the superior court of the county
2in which the action is pending a verified claim stating the nature
3and amount of his or her interest in the property. A verified copy
4of the claim shall be served by the claimant on the Attorney
5General or district attorney, as appropriate.

6(6) The imposition of restitution pursuant to this section shall
7be determined by the superior court in which the underlying
8criminal offense is sentenced. Any judge who is assigned to the
9criminal division of the superior court in the county where the
10petition is filed may issue a temporary restraining order in
11conjunction with, or subsequent to, the filing of an allegation
12pursuant to this section. Any subsequent hearing on the petition
13shall also be heard by a judge assigned to the criminal division of
14the superior court in the county in which the petition is filed. At
15the time of the filing of an information or indictment in the
16underlying criminal case, any subsequent hearing on the petition
17shall be heard by the superior court judge assigned to the
18underlying criminal case.

19(c) Concurrent with or subsequent to the filing of the petition
20pursuant to this section, the prosecuting agency may move the
21superior court for, and the superior court may issue, the following
22pendente lite orders to preserve the status quo of the property
23identified in the petition:

24(1) An injunction to restrain any person from transferring,
25encumbering, hypothecating, or otherwise disposing of that
26property.

27(2) Appointment of a receiver to take possession of, care for,
28manage, and operate the properties so that the property may be
29maintained and preserved. The court may order that a receiver
30appointed pursuant to this section shall be compensated for all
31reasonable expenditures made or incurred by him or her in
32connection with the possession, care, management, and operation
33of any property that is subject to this section.

34(3) A bond or other undertaking, in lieu of other orders, of a
35value sufficient to ensure the satisfaction of restitution imposed
36pursuant to this section.

37(d) (1) No preliminary injunction may be granted or receiver
38appointed by the court without notice that meets the requirements
39of paragraph (2) of subdivision (b) to all known and reasonably
40ascertainable interested parties and upon a hearing to determine
P15   1that an order is necessary to preserve the property pending the
2outcome of the criminal proceedings. A temporary restraining
3order may be issued by the court, ex parte, pending that hearing
4in conjunction with or subsequent to the filing of the petition upon
5the application of the prosecuting attorney. The temporary
6restraining order may be based upon the sworn declaration of a
7peace officer with personal knowledge of the criminal investigation
8that establishes probable cause to believe that a felony has taken
9place and that the amount of restitution established by this section
10exceeds or equals the worth of the property subject to the temporary
11restraining order. The declaration may include the hearsay
12statements of witnesses to establish the necessary facts. The
13temporary restraining order may be issued without notice upon a
14showing of good cause to the court.

15(2) The defendant, or a person who has filed a verified claim
16as provided in paragraph (5) of subdivision (b), shall have the right
17to have the court conduct an order to show cause hearing within
1810 days of the service of the request for hearing upon the
19prosecuting agency, in order to determine whether the temporary
20restraining order should remain in effect, whether relief should be
21granted from any lis pendens recorded pursuant to paragraph (3)
22of subdivision (b), or whether any existing order should be
23modified in the interests of justice. Upon a showing of good cause,
24the hearing shall be held within two days of the service of the
25request for hearing upon the prosecuting agency.

26(3) In determining whether to issue a preliminary injunction or
27temporary restraining order in a proceeding brought by a
28prosecuting agency in conjunction with or subsequent to the filing
29of an allegation pursuant to this section, the court has the discretion
30to consider any matter that it deems reliable and appropriate,
31including hearsay statements, in order to reach a just and equitable
32decision. The court shall weigh the relative degree of certainty of
33the outcome on the merits and the consequences to each of the
34parties of granting the interim relief. If the prosecution is likely to
35prevail on the merits and the risk of dissipation of the property
36outweighs the potential harm to the defendants and the interested
37parties, the court shall grant injunctive relief. The court shall give
38significant weight to the following factors:

39(A) The public interest in preserving the property pendente lite.

P16   1(B) The difficulty of preserving the property pendente lite where
2the underlying alleged crimes involve issues of fraud and moral
3turpitude.

4(C) The fact that the requested relief is being sought by a public
5prosecutor on behalf of alleged victims of elder or dependent adult
6financial abuse.

7(D) The likelihood that substantial public harm has occurred
8where a felony is alleged to have been committed.

9(E) The significant public interest involved in compensating
10the elder or dependent adult victim of financial abuse and paying
11court-imposed restitution.

12(4) The court, in making its orders, may consider a defendant’s
13request for the release of a portion of the property affected by this
14section in order to pay reasonable legal fees in connection with
15the criminal proceeding, any necessary and appropriate living
16expenses pending trial and sentencing, and for the purpose of
17posting bail. The court shall weigh the needs of the public to retain
18the property against the needs of the defendant to a portion of the
19property. The court shall consider the factors listed in paragraph
20(3) prior to making any order releasing property for these purposes.

21(5) The court, in making its orders, shall seek to protect the
22interests of any innocent third persons, including an innocent
23spouse, who were not involved in the commission of any criminal
24activity.

25(6) Any petition filed pursuant to this section shall be part of
26the criminal proceedings for purposes of appointment of counsel
27and shall be assigned to the criminal division of the superior court
28of the county in which the accusatory pleading was filed.

29(7) Based upon a noticed motion brought by the receiver
30appointed pursuant to paragraph (2) of subdivision (c), the court
31 may order an interlocutory sale of property identified in the petition
32when the property is liable to perish, to waste, or to be significantly
33reduced in value, or when the expenses of maintaining the property
34are disproportionate to the value thereof. The proceeds of the
35interlocutory sale shall be deposited with the court or as directed
36by the court pending determination of the proceeding pursuant to
37this section.

38(8) The court may make any orders that are necessary to preserve
39the continuing viability of any lawful business enterprise that is
P17   1affected by the issuance of a temporary restraining order or
2preliminary injunction issued pursuant to this action.

3(9) In making its orders, the court shall seek to prevent any
4property subject to a temporary restraining order or preliminary
5injunction from perishing, spoiling, going to waste, or otherwise
6being significantly reduced in value. Where the potential for
7diminution in value exists, the court shall appoint a receiver to
8dispose of or otherwise protect the value of the property.

9(10) A preservation order shall not be issued against any assets
10of a business that are not likely to be dissipated and that may be
11subject to levy or attachment to meet the purposes of this section.

12(e) If the allegation that the defendant committed a felony
13subject to this section is dismissed or found by the trier of fact to
14be untrue, any preliminary injunction or temporary restraining
15order issued pursuant to this section shall be dissolved. If a jury
16is the trier of fact, and the jury is unable to reach a unanimous
17verdict, the court shall have the discretion to continue or dissolve
18all or a portion of the preliminary injunction or temporary
19restraining order based upon the interests of justice. However, if
20the prosecuting agency elects not to retry the case, any preliminary
21injunction or temporary restraining order issued pursuant to this
22section shall be dissolved.

23(f) (1) (A) If the defendant is convicted of a felony subject to
24this section, the trial judge shall continue the preliminary injunction
25or temporary restraining order until the date of the criminal
26sentencing and shall make a finding at that time as to what portion,
27if any, of the property subject to the preliminary injunction or
28temporary restraining order shall be levied upon to pay restitution
29to victims of the crime. The order imposing restitution may exceed
30the total worth of the property subjected to the preliminary
31injunction or temporary restraining order. The court may order the
32immediate transfer of the property to satisfy any judgment and
33sentence made pursuant to this section. Additionally, upon motion
34of the prosecution, the court may enter an order as part of the
35judgment and sentence making the order imposing restitution
36pursuant to this section enforceable pursuant to Title 9
37(commencing with Section 680.010) of Part 2 of the Code of Civil
38Procedure.

39(B) Additionally, the court shall order the defendant to make
40full restitution to thebegin delete victim or to make restitution to the victim
P18   1based on his or her ability to pay, as defined in subdivision (b) of
2Section 1203.1b.end delete
begin insert victim.end insert The payment of the restitution ordered
3by the court pursuant to this section shall be made a condition of
4any probation granted by the court. Notwithstanding any other
5provision of law, the court may order that the period of probation
6continue for up to 10 years or until full restitution is made to the
7victim, whichever is earlier.

8(C) The sentencing court shall retain jurisdiction to enforce the
9order to pay additional restitution and, in appropriate cases, may
10initiate probation violation proceedings or contempt of court
11proceedings against a defendant who is found to have willfully
12failed to comply with any lawful order of the court.

13(D) If the execution of judgment is stayed pending an appeal
14of an order of the superior court pursuant to this section, the
15preliminary injunction or temporary restraining order shall be
16maintained in full force and effect during the pendency of the
17appellate period.

18(2) The order imposing restitution shall not affect the interest
19in real property of any third party that was acquired prior to the
20recording of the lis pendens, unless the property was obtained from
21the defendant other than as a bona fide purchaser for value. If any
22assets or property affected by this section are subject to a valid
23lien, mortgage, security interest, or interest under a conditional
24sales contract and the amount due to the holder of the lien,
25mortgage, interest, or contract is less than the appraised value of
26the property, that person may pay to the state or the local
27government that initiated the proceeding the amount of the
28difference between the appraised value of the property and the
29amount of the lien, mortgage, security interest, or interest under a
30conditional sales contract. Upon that payment, the state or local
31entity shall relinquish all claims to the property. If the holder of
32the interest elects not to make that payment to the state or local
33governmental entity, the interest in the property shall be deemed
34transferred to the state or local governmental entity and any indicia
35of ownership of the property shall be confirmed in the state or
36local governmental entity. The appraised value shall be determined
37as of the date judgment is entered either by agreement between
38the holder of the lien, mortgage, security interest, or interest under
39a conditional sales contract and the governmental entity involved,
40or if they cannot agree, then by a court-appointed appraiser for the
P19   1county in which the action is brought. A person holding a valid
2lien, mortgage, security interest, or interest under a conditional
3sales contract shall be paid the appraised value of his or her interest.

4(3) In making its final order, the court shall seek to protect the
5legitimately acquired interests of any innocent third persons,
6including an innocent spouse, who were not involved in the
7commission of any criminal activity.

8(g) In all cases where property is to be levied upon pursuant to
9this section, a receiver appointed by the court shall be empowered
10to liquidate all property, the proceeds of which shall be distributed
11in the following order of priority:

12(1) To the receiver, or court-appointed appraiser, for all
13reasonable expenditures made or incurred by him or her in
14connection with the sale or liquidation of the property, including
15all reasonable expenditures for any necessary repairs, storage, or
16transportation of any property levied upon under this section.

17(2) To any holder of a valid lien, mortgage, or security interest
18up to the amount of his or her interest in the property or proceeds.

19(3) To any victim as restitution for any fraudulent or unlawful
20acts alleged in the accusatory pleading that were proven by the
21prosecuting agency as part of the pattern of fraudulent or unlawful
22acts.

23(h) Unless otherwise expressly provided, the remedies or
24penalties provided by this section are cumulative to each other and
25to the remedies or penalties available under all other laws of this
26state, except that two separate actions against the same defendant
27and pertaining to the same fraudulent or unlawful acts may not be
28brought by a district attorney or the Attorney General pursuant to
29this section and Chapter 5 (commencing with Section 17200) of
30Part 2 of Division 7 of the Business and Professions Code.

31

begin deleteSECTION 1.end delete
32begin insertSEC. 3.end insert  

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

33

1202.4.  

(a) (1) It is the intent of the Legislature that a victim
34of crime who incurs an economic loss as a result of the commission
35of a crime shall receive restitution directly from a defendant
36convicted of that crime.

37(2) Upon a person being convicted of a crime in the State of
38California, the court shall order the defendant to pay a fine in the
39form of a penalty assessment in accordance with Section 1464.

P20   1(3) The court, in addition to any other penalty provided or
2imposed under the law, shall order the defendant to pay both of
3the following:

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

5(B) Restitution to the victim or victims, if any, in accordance
6with subdivision (f), which shall be enforceable as if the order
7were a civil judgment.

8(b) In every case where a person is convicted of a crime, the
9court shall impose a separate and additional restitution fine, unless
10it finds compelling and extraordinary reasons for not doing so and
11states those reasons on the record.

12(1) The restitution fine shall be set at the discretion of the court
13and commensurate with the seriousness of the offense. If the person
14is convicted of a felony, the fine shall not be less than three hundred
15dollars ($300) and not more than ten thousand dollars ($10,000).
16If the person is convicted of a misdemeanor, the fine shall not be
17less than one hundred fifty dollars ($150) and not more than one
18thousand dollars ($1,000).

19(2) In setting a felony restitution fine, the court may determine
20the amount of the fine as the product of the minimum fine pursuant
21to paragraph (1) multiplied by the number of years of imprisonment
22the defendant is ordered to serve, multiplied by the number of
23felony counts of which the defendant is convicted.

24(c) The court shall impose the restitution fine unless it finds
25compelling and extraordinary reasons for not doing so and states
26those reasons on the record. A defendant’s inability to pay shall
27not be considered a compelling and extraordinary reason not to
28impose a restitution fine. Inability to pay may be considered only
29in increasing the amount of the restitution fine in excess of the
30minimum fine pursuant to paragraph (1) of subdivision (b). The
31court may specify that funds confiscated at the time of the
32defendant’s arrest, except for funds confiscated pursuant to Chapter
338 (commencing with Section 11469) of Division 10 of the Health
34and Safety Code, be applied to the restitution fine if the funds are
35not exempt for spousal or child support or subject to any other
36legal exemption.

37(d) In setting the amount of the fine pursuant to subdivision (b)
38in excess of the minimum fine pursuant to paragraph (1) of
39subdivision (b), the court shall consider any relevant factors,
40including, but not limited to, the defendant’s inability to pay, the
P21   1seriousness and gravity of the offense and the circumstances of its
2commission, any economic gain derived by the defendant as a
3result of the crime, the extent to which any other person suffered
4losses as a result of the crime, and the number of victims involved
5in the crime. Those losses may include pecuniary losses to the
6victim or his or her dependents as well as intangible losses, such
7as psychological harm caused by the crime. Consideration of a
8defendant’s inability to pay may include his or her future earning
9capacity. A defendant shall bear the burden of demonstrating his
10or her inability to pay. Express findings by the court as to the
11factors bearing on the amount of the fine shall not be required. A
12separate hearing for the fine shall not be required.

13(e) The restitution fine shall not be subject to penalty
14assessments authorized in Section 1464 or Chapter 12
15(commencing with Section 76000) of Title 8 of the Government
16Code, or the state surcharge authorized in Section 1465.7, and
17shall be deposited in the Restitution Fund in the State Treasury.

18(f) Except as provided in subdivisions (q) and (r), in every case
19in which a victim has suffered economic loss as a result of the
20defendant’s conduct, the court shall require that the defendant
21make restitution to the victim or victims in an amount established
22by court order, based on the amount of loss claimed by the victim
23or victims or any other showing to the court. If the amount of loss
24cannot be ascertained at the time of sentencing, the restitution
25order shall include a provision that the amount shall be determined
26at the direction of the court. The court shall order full restitution.
27The court may specify that funds confiscated at the time of the
28defendant’s arrest, except for funds confiscated pursuant to Chapter
29 8 (commencing with Section 11469) of Division 10 of the Health
30and Safety Code, be applied to the restitution order if the funds
31are not exempt for spousal or child support or subject to any other
32legal exemption.

33(1) The defendant has the right to a hearing before a judge to
34dispute the determination of the amount of restitution. The court
35may modify the amount, on its own motion or on the motion of
36the district attorney, the victim or victims, or the defendant. If a
37motion is made for modification of a restitution order, the victim
38shall be notified of that motion at least 10 days prior to the
39proceeding held to decide the motion. A victim at a restitution
40hearing or modification hearing described in this paragraph may
P22   1testify by live, two-way audio and video transmission, if testimony
2by live, two-way audio and video transmission is available at the
3court.

4(2) Determination of the amount of restitution ordered pursuant
5to this subdivision shall not be affected by the indemnification or
6subrogation rights of a third party. Restitution ordered pursuant to
7this subdivision shall be ordered to be deposited in the Restitution
8Fund to the extent that the victim, as defined in subdivision (k),
9has received assistance from the California Victim Compensation
10and Government Claims Board pursuant to Chapter 5 (commencing
11with Section 13950) of Part 4 of Division 3 of Title 2 of the
12Government Code.

13(3) To the extent possible, the restitution order shall be prepared
14by the sentencing court, shall identify each victim and each loss
15to which it pertains, and shall be of a dollar amount that is sufficient
16to fully reimburse the victim or victims for every determined
17economic loss incurred as the result of the defendant’s criminal
18conduct, including, but not limited to, all of the following:

19(A) Full or partial payment for the value of stolen or damaged
20property. The value of stolen or damaged property shall be the
21replacement cost of like property, or the actual cost of repairing
22the property when repair is possible.

23(B) Medical expenses.

24(C) Mental health counseling expenses.

25(D) Wages or profits lost due to injury incurred by the victim,
26and if the victim is a minor, wages or profits lost by the minor’s
27parent, parents, guardian, or guardians, while caring for the injured
28minor. Lost wages shall include commission income as well as
29base wages. Commission income shall be established by evidence
30of commission income during the 12-month period prior to the
31date of the crime for which restitution is being ordered, unless
32good cause for a shorter time period is shown.

33(E) Wages or profits lost by the victim, and if the victim is a
34minor, wages or profits lost by the minor’s parent, parents,
35guardian, or guardians, due to time spent as a witness or in assisting
36the police or prosecution. Lost wages shall include commission
37income as well as base wages. Commission income shall be
38established by evidence of commission income during the
3912-month period prior to the date of the crime for which restitution
P23   1is being ordered, unless good cause for a shorter time period is
2shown.

3(F) Noneconomic losses, including, but not limited to,
4psychological harm, for felony violations of Section 288.

5(G) Interest, at the rate of 10 percent per annum, that accrues
6as of the date of sentencing or loss, as determined by the court.

7(H) Actual and reasonable attorney’s fees and other costs of
8collection accrued by a private entity on behalf of the victim.

9(I) Expenses incurred by an adult victim in relocating away
10from the defendant, including, but not limited to, deposits for
11utilities and telephone service, deposits for rental housing,
12temporary lodging and food expenses, clothing, and personal items.
13Expenses incurred pursuant to this section shall be verified by law
14enforcement to be necessary for the personal safety of the victim
15or by a mental health treatment provider to be necessary for the
16emotional well-being of the victim.

17(J) Expenses to install or increase residential security incurred
18related to a violent felony, as defined in subdivision (c) of Section
19667.5, including, but not limited to, a home security device or
20system, or replacing or increasing the number of locks.

21(K) Expenses to retrofit a residence or vehicle, or both, to make
22the residence accessible to or the vehicle operational by the victim,
23if the victim is permanently disabled, whether the disability is
24partial or total, as a direct result of the crime.

25(L) Expenses for a period of time reasonably necessary to make
26the victim whole, for the costs to monitor the credit report of, and
27for the costs to repair the credit of, a victim of identity theft, as
28defined in Section 530.5.

29(4) (A) If, as a result of the defendant’s conduct, the Restitution
30Fund has provided assistance to or on behalf of a victim or
31derivative victim pursuant to Chapter 5 (commencing with Section
3213950) of Part 4 of Division 3 of Title 2 of the Government Code,
33the amount of assistance provided shall be presumed to be a direct
34result of the defendant’s criminal conduct and shall be included
35in the amount of the restitution ordered.

36(B) The amount of assistance provided by the Restitution Fund
37shall be established by copies of bills submitted to the California
38Victim Compensation and Government Claims Board reflecting
39the amount paid by the board and whether the services for which
40payment was made were for medical or dental expenses, funeral
P24   1or burial expenses, mental health counseling, wage or support
2losses, or rehabilitation. Certified copies of these bills provided
3by the board and redacted to protect the privacy and safety of the
4victim or any legal privilege, together with a statement made under
5penalty of perjury by the custodian of records that those bills were
6submitted to and were paid by the board, shall be sufficient to meet
7this requirement.

8(C) If the defendant offers evidence to rebut the presumption
9established by this paragraph, the court may release additional
10information contained in the records of the board to the defendant
11only after reviewing that information in camera and finding that
12the information is necessary for the defendant to dispute the amount
13of the restitution order.

14(5) Except as provided in paragraph (6), in any case in which
15an order may be entered pursuant to this subdivision, the defendant
16shall prepare and file a disclosure identifying all assets, income,
17and liabilities in which the defendant held or controlled a present
18or future interest as of the date of the defendant’s arrest for the
19crime for which restitution may be ordered. The financial disclosure
20statements shall be made available to the victim and the board
21pursuant to Section 1214. The disclosure shall be signed by the
22defendant upon a form approved or adopted by the Judicial Council
23for the purpose of facilitating the disclosure. A defendant who
24willfully states as true a material matter that he or she knows to
25be false on the disclosure required by this subdivision is guilty of
26a misdemeanor, unless this conduct is punishable as perjury or
27another provision of law provides for a greater penalty.

28(6) A defendant who fails to file the financial disclosure required
29in paragraph (5), but who has filed a financial affidavit or financial
30information pursuant to subdivision (c) of Section 987, shall be
31deemed to have waived the confidentiality of that affidavit or
32financial information as to a victim in whose favor the order of
33restitution is entered pursuant to subdivision (f). The affidavit or
34information shall serve in lieu of the financial disclosure required
35in paragraph (5), and paragraphs (7) to (10), inclusive, shall not
36apply.

37(7) Except as provided in paragraph (6), the defendant shall file
38the disclosure with the clerk of the court no later than the date set
39 for the defendant’s sentencing, unless otherwise directed by the
P25   1court. The disclosure may be inspected or copied as provided by
2subdivision (b), (c), or (d) of Section 1203.05.

3(8) In its discretion, the court may relieve the defendant of the
4duty under paragraph (7) of filing with the clerk by requiring that
5the defendant’s disclosure be submitted as an attachment to, and
6be available to, those authorized to receive the following:

7(A) A report submitted pursuant to subparagraph (D) of
8paragraph (2) of subdivision (b) of Section 1203 or subdivision
9(g) of Section 1203.

10(B) A stipulation submitted pursuant to paragraph (4) of
11subdivision (b) of Section 1203.

12(C) A report by the probation officer, or information submitted
13by the defendant applying for a conditional sentence pursuant to
14subdivision (d) of Section 1203.

15(9) The court may consider a defendant’s unreasonable failure
16to make a complete disclosure pursuant to paragraph (5) as any of
17the following:

18(A) A circumstance in aggravation of the crime in imposing a
19term under subdivision (b) of Section 1170.

20(B) A factor indicating that the interests of justice would not be
21served by admitting the defendant to probation under Section 1203.

22(C) A factor indicating that the interests of justice would not be
23served by conditionally sentencing the defendant under Section
241203.

25(D) A factor indicating that the interests of justice would not
26be served by imposing less than the maximum fine and sentence
27fixed by law for the case.

28(10) A defendant’s failure or refusal to make the required
29disclosure pursuant to paragraph (5) shall not delay entry of an
30order of restitution or pronouncement of sentence. In appropriate
31cases, the court may do any of the following:

32(A) Require the defendant to be examined by the district attorney
33pursuant to subdivision (h).

34(B) If sentencing the defendant under Section 1170, provide
35that the victim shall receive a copy of the portion of the probation
36 report filed pursuant to Section 1203.10 concerning the defendant’s
37employment, occupation, finances, and liabilities.

38(C) If sentencing the defendant under Section 1203, set a date
39and place for submission of the disclosure required by paragraph
40(5) as a condition of probation or suspended sentence.

P26   1(11) If a defendant has any remaining unpaid balance on a
2restitution order or fine 120 days prior to his or her scheduled
3release from probation or 120 days prior to his or her completion
4of a conditional sentence, the defendant shall prepare and file a
5new and updated financial disclosure identifying all assets, income,
6and liabilities in which the defendant holds or controls or has held
7or controlled a present or future interest during the defendant’s
8period of probation or conditional sentence. The financial
9disclosure shall be made available to the victim and the board
10pursuant to Section 1214. The disclosure shall be signed and
11prepared by the defendant on the same form as described in
12paragraph (5). A defendant who willfully states as true a material
13matter that he or she knows to be false on the disclosure required
14by this subdivision is guilty of a misdemeanor, unless this conduct
15is punishable as perjury or another provision of law provides for
16a greater penalty. The financial disclosure required by this
17paragraph shall be filed with the clerk of the court no later than
1890 days prior to the defendant’s scheduled release from probation
19or completion of the defendant’s conditional sentence.

20(12) In cases where an employer is convicted of a crime against
21an employee, a payment to the employee or the employee’s
22dependent that is made by the employer’s workers’ compensation
23insurance carrier shall not be used to offset the amount of the
24restitution order unless the court finds that the defendant
25substantially met the obligation to pay premiums for that insurance
26coverage.

27(g) A defendant’s inability to pay shall not be a consideration
28in determining the amount of a restitution order.

29(h) The district attorney may request an order of examination
30pursuant to the procedures specified in Article 2 (commencing
31with Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part
322 of the Code of Civil Procedure, in order to determine the
33defendant’s financial assets for purposes of collecting on the
34restitution order.

35(i) A restitution order imposed pursuant to subdivision (f) shall
36be enforceable as if the order were a civil judgment.

37(j) The making of a restitution order pursuant to subdivision (f)
38shall not affect the right of a victim to recovery from the Restitution
39Fund as otherwise provided by law, except to the extent that
40restitution is actually collected pursuant to the order. Restitution
P27   1collected pursuant to this subdivision shall be credited to any other
2judgments for the same losses obtained against the defendant
3arising out of the crime for which the defendant was convicted.

4(k) For purposes of this section, “victim” shall include all of
5the following:

6(1) The immediate surviving family of the actual victim.

7(2) A corporation, business trust, estate, trust, partnership,
8association, joint venture, government, governmental subdivision,
9agency, or instrumentality, or any other legal or commercial entity
10when that entity is a direct victim of a crime.

11(3) A person who has sustained economic loss as the result of
12a crime and who satisfies any of the following conditions:

13(A) At the time of the crime was the parent, grandparent, sibling,
14spouse, child, or grandchild of the victim.

15(B) At the time of the crime was living in the household of the
16victim.

17(C) At the time of the crime was a person who had previously
18lived in the household of the victim for a period of not less than
19two years in a relationship substantially similar to a relationship
20listed in subparagraph (A).

21(D) Is another family member of the victim, including, but not
22limited to, the victim’s fiancé or fiancée, and who witnessed the
23crime.

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

25(4) A person who is eligible to receive assistance from the
26Restitution Fund pursuant to Chapter 5 (commencing with Section
2713950) of Part 4 of Division 3 of Title 2 of the Government Code.

28(5) A governmental entity that is responsible for repairing,
29replacing, or restoring public or privately owned property that has
30been defaced with graffiti or other inscribed material, as defined
31in subdivision (e) of Section 594, and that has sustained an
32economic loss as the result of a violation of Section 594, 594.3,
33594.4, 640.5, 640.6, or 640.7.

34(l) At its discretion, the board of supervisors of a county may
35impose a fee to cover the actual administrative cost of collecting
36the restitution fine, not to exceed 10 percent of the amount ordered
37to be paid, to be added to the restitution fine and included in the
38order of the court, the proceeds of which shall be deposited in the
39general fund of the county.

P28   1(m) In every case in which the defendant is granted probation,
2the court shall make the payment of restitution fines and orders
3imposed pursuant to this section a condition of probation. Any
4portion of a restitution order that remains unsatisfied after a
5defendant is no longer on probation shall continue to be enforceable
6by a victim pursuant to Section 1214 until the obligation is
7satisfied.

8(n) If the court finds and states on the record compelling and
9extraordinary reasons why a restitution fine should not be required,
10the court shall order, as a condition of probation, that the defendant
11perform specified community service, unless it finds and states on
12the record compelling and extraordinary reasons not to require
13community service in addition to the finding that a restitution fine
14should not be required. Upon revocation of probation, the court
15shall impose the restitution fine pursuant to this section.

16(o) The provisions of Section 13963 of the Government Code
17shall apply to restitution imposed pursuant to this section.

18(p) The court clerk shall notify the California Victim
19Compensation and Government Claims Board within 90 days of
20an order of restitution being imposed if the defendant is ordered
21to pay restitution to the board due to the victim receiving
22compensation from the Restitution Fund. Notification shall be
23accomplished by mailing a copy of the court order to the board,
24which may be done periodically by bulk mail or email.

25(q) Upon conviction for a violation of Section 236.1, the court
26shall, in addition to any other penalty or restitution, order the
27defendant to pay restitution to the victim in a case in which a victim
28has suffered economic loss as a result of the defendant’s conduct.
29The court shall require that the defendant make restitution to the
30victim or victims in an amount established by court order, based
31on the amount of loss claimed by the victim or victims or another
32showing to the court. In determining restitution pursuant to this
33section, the court shall base its order upon the greater of the
34following: the gross value of the victim’s labor or services based
35upon the comparable value of similar services in the labor market
36in which the offense occurred, or the value of the victim’s labor
37as guaranteed under California law, or the actual income derived
38by the defendant from the victim’s labor or services or any other
39appropriate means to provide reparations to the victim.

P29   1(r) (1) In addition to any other penalty or fine, the court shall
2order a person who has been convicted of a violation of Section
3350, 653h, 653s, 653u, 653w, or 653aa that involves a recording
4or audiovisual work to make restitution to an owner or lawful
5producer, or trade association acting on behalf of the owner or
6lawful producer, of a phonograph record, disc, wire, tape, film, or
7other device or article from which sounds or visual images are
8derived that suffered economic loss resulting from the violation.
9The order of restitution shall be based on the aggregate wholesale
10value of lawfully manufactured and authorized devices or articles
11from which sounds or visual images are devised corresponding to
12the number of nonconforming devices or articles involved in the
13 offense, unless a higher value can be proved in the case of (A) an
14unreleased audio work, or (B) an audiovisual work that, at the time
15of unauthorized distribution, has not been made available in copies
16for sale to the general public in the United States on a digital
17versatile disc. For purposes of this subdivision, possession of
18nonconforming devices or articles intended for sale constitutes
19actual economic loss to an owner or lawful producer in the form
20of displaced legitimate wholesale purchases. The order of
21restitution shall also include reasonable costs incurred as a result
22of an investigation of the violation undertaken by the owner, lawful
23producer, or trade association acting on behalf of the owner or
24lawful producer. “Aggregate wholesale value” means the average
25wholesale value of lawfully manufactured and authorized sound
26or audiovisual recordings. Proof of the specific wholesale value
27of each nonconforming device or article is not required.

28(2) As used in this subdivision, “audiovisual work” and
29“recording” shall have the same meaning as in Section 653w.

30

begin deleteSEC. 2.end delete
31begin insertSEC. 4.end insert  

The Legislature finds and declares that this measure
32is declaratory of existing law, as described in footnote 2 of People
33v. Pierce (2015) 234 Cal.App.4th 1334 (hereafter Pierce). As noted
34in that case, subdivision (b) of Section 28 of Article I of the
35California Constitution, as amended by Proposition 9 (Marsy’s
36Law) at the November 4, 2008, general election, requires that
37“restitution shall be ordered from the convicted wrongdoer in every
38case, regardless of the sentence or disposition imposed, in which
39a crime victim suffers a loss.” By providing that a court has
40authority to order less than full restitution in situations where a
P30   1victim suffers a loss, subdivision (f) of Section 1202.4 of the Penal
2Code is inconsistent with the constitutional requirement. The court
3in Pierce encouraged the Legislature to conform this requirement
4to thebegin delete constitutionend deletebegin insert Constitutionend insert. This measure would do so.



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