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