BILL ANALYSIS Ó AB 2295 Page 1 Date of Hearing: April 5, 2016 Counsel: Sandra Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 2295 (Baker) - As Amended March 15, 2016 SUMMARY: Conforms several restitution provisions to the constitutional requirement that a victim is entitled to full restitution. Specifically, this bill: 1)Removes the ability of a judge to order less than full restitution to the victim based on the defendant's ability to pay under the aggravated white collar crime enhancement. 2)Removes the ability of a judge to order less than full restitution to the victim based on the defendant's ability to pay under the "seize and freeze" provisions for aggravated elder or dependent adult financial abuse. 3)Removes court authority to order less than full restitution when it finds compelling and extraordinary reasons for doing so, as currently provided by the restitution statute. EXISTING LAW: 1)Requires the court to order the defendant to pay victim restitution in every case in which a victim has suffered an economic loss as a result of the defendant's conduct. (Pen. Code, § 1202, subd. (f).) AB 2295 Page 2 2)Requires the court to order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. (Pen. Code, § 1202.4, subd. (g).) 3)Specifies that inability to pay is not a compelling and extraordinary reason not to impose victim restitution. (Pen. Code, § 1202.4, subd. (g).) 4)States that inability to pay is not a ground for consideration at all in calculating victim restitution. (Pen. Code, § 1202.4, subd. (g).) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "AB 2295 would amend the Penal Code to remove any ambiguity about a victim's right to full restitution. Specifically, AB 2295 would correct the Penal Code to conform to the California Constitution as amended by the passage of Marsy's Law. In doing this, this bill will resolve any conflict in California Law regarding victim's right to restitution." 2)Constitutionally Protected Right to Victim Restitution: The right of a victim to restitution from the person convicted of a crime from which the victim suffers a loss as result of the criminal activity became a constitutional right when adopted by vote of the people in June 1982 as part of Proposition 8. Proposition 8 added article I, section 28, subdivision (b), to the California Constitution, and provided: "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. "Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature AB 2295 Page 3 shall adopt provisions to implement this section during the calendar year following adoption of this section." The Proposition was not self-executing, but rather directed the Legislature to adopt implementing legislation. (People v. Vega-Hernández (1986) 179 Cal.App.3d 1084.) In response, the Legislature enacted Penal Code sections 1202.4 and 1203.04 (repealed section related to restitution as condition of probation). (People v. Ortiz (1997) 53 Cal.App.4th 791, 795, fn. 3.) The constitutional provisions regarding restitution were amended by the voters again in 2008, when they approved Proposition 9, the Victims' Bill of Rights Act of 2008, also known as Marsy's Law. The amendments, among other things, make clear that a victim is entitled to restitution, expanded the definition of a victim to include a representative of a deceased victim, and gave that representative the ability to enforce a victim's right. (See People v. Runyan (2012) 54 Cal.4th 849, 858-859.) 3)People v. Pierce (2015) 234 Cal. App. 4th 1334: People v. Pierce, supra, was an appeal from a restitution order after the defendant pled to a home invasion robbery and admitted he acted in concert with two other men. One his codefendants had left the scene in the victim's truck and crashed it into a telephone pole, damaging the pole and another house. (Id. at p. 1336.) One of the claims raised by the defendant was that the trial court erred in imposing restitution for damages caused by a codefendant because the prosecutor explicitly waived the claim at the initial sentencing hearing. The appellate court rejected the argument. (Id. at p. 1337.) The court held that the prosecutor cannot waive a victim's right to restitution because it is constitutionally mandated. (Id. at p. 1338.) Citing Penal Code section 1202.4, subdivision (f), the court noted that the trial court cannot generally stray from the mandate of ordering full restitution. (Ibid.) In dicta, the court observed that the language of Penal Code section 1202.4, subdivision (f) allows less than full restitution where the trial court finds "compelling and extraordinary reasons." But the court questioned whether this language remained valid after the passage of Proposition 9. AB 2295 Page 4 The court noted that before the passage of Proposition 9, the constitutional provision regarding the right to restitution said, "restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary." Proposition 9 amended that provision to delete the language "unless compelling and extraordinary reasons exist to the contrary." On this basis, the appellate court encouraged the Legislature to conform the language of Penal Code section 1202.4. (People v. Pierce, supra, 234 Cal.App.4th 1334, 1338, fn. 2.) This bill deletes language in several statutes which authorizes the court to order less than full restitution based either on the defendant's ability to pay or for compelling and extraordinary reasons because they conflict with the constitutional right of a victim to full restitution. 4)Argument in Support: According to Crime Victims United of California, the sponsor of this bill, "In 2008, California voters passed Proposition 9, also known as Marsy's Law, which codified that victims of crimes such as assault, abuse, homicide, robbery, human trafficking, and other violence offenses have enumerated rights. One of these rights was the unconditional right to receive restitution from the offender for the loss suffered by the victim. Before Marsy's Law, the California Penal Code permitted courts to provide less than full restitution when there were 'compelling and extraordinary reasons' to do so. Marsy's law mandates that 'restitution shall be ordered from the convicted wrongdoer in every case regardless of the disposition of the sentence imposed, in which a crime victim suffers a loss (C.A. Const. art. I § 28, cl. 13b).'" "Various sections of the California Penal Code, including Sections 1202.4(f) and (g) permit trial courts to provide less than full restitution to victims. California's Penal Code conflicts with Marsy's Law in the California Constitution as amended by voters in Proposition 9. A recent appellate court noted the inconsistency in People v. Pierce, published on March 6, 2015, stating 'Though section 1202.4(f) and (g) AB 2295 Page 5 permits a trial court to provide less than full restitution where it provides "compelling and extraordinary reasons" for doing so, we question whether this discretion statutorily afforded the court is constitutionally sound in light of the amendment of Article 1, Section 28, subdivision (b) of the California Constitution effectuated by the voter's approval of Proposition 9, the Victim's Bill of Rights Act of 2008: Marsy's Law (Eff. Nov. 5, 2008).' AB 2295 would amend the Penal Code to remove any ambiguity about a victim's right to full restitution. Specifically, AB 2295 would correct the Penal Code to conform to the California Constitution as amended by the passage of Marsy's Law." 5)Argument in Opposition: According to the California Attorneys for Criminal Justice, "In eliminating the discretion of the court to not impose an order of restitution in appropriate circumstances, we will be denying the ability of the court to make a reasoned decision on a case-by-case basis. It is essential that our judges retain discretion to allow for fair and just decisions pertaining to the imposition of an order for restitution, and sentencing in general. There can be no question that there are certain circumstances upon which an order of restitution would not be appropriate; thus, it is essential that our courts retain discretion to make such a finding. Maintaining this discretion will also further support the implementation of the Separation of Powers doctrine which is so essential to the fair administration of justice in our court system." 6)Related Legislation: a) AB 2477 (Patterson) overturns case law holding that a court lacks jurisdiction to modify a restitution order after the defendant's probation expires, thereby extending jurisdiction for restitution indefinitely. AB 2477 failed passage in this Committee and has been granted reconsideration. AB 2295 Page 6 b) SB 1054 (Pavley) prohibits the Department of Corrections and Rehabilitation or a county from referring an outstanding restitution order to the Franchise Tax Board if a county agency has been designated by the board of supervisors to collect restitution. SB 1054 is pending in the Senate Public Safety Committee. 7)Prior Legislation: Proposition 9, of the November 2008 general election, Marsy's Law, significantly expands the rights of crime victims in California by giving them specified constitutional rights, including expanded right to restitution. REGISTERED SUPPORT / OPPOSITION: Support Crime Victims United of California (Sponsor) California Catholic Conference California District Attorneys Association California Police Chiefs Association Contra Costa County District Attorney Stand for Families Free of Violence Opposition California Attorneys for Criminal Justice Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 AB 2295 Page 7