BILL ANALYSIS Ó
AB 2295
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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).)
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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
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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.
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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)
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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.
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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
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