BILL ANALYSIS Ó
AB 2295
Page 1
ASSEMBLY THIRD READING
AB
2295 (Baker)
As Amended March 15, 2016
Majority vote
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Public Safety |6-0 |Jones-Sawyer, | |
| | |Melendez, Lackey, | |
| | |Lopez, Low, Santiago | |
| | | | |
| | | | |
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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.
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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.
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.
3)Specifies that inability to pay is not a compelling and
extraordinary reason not to impose victim restitution.
4)States that inability to pay is not a ground for consideration
at all in calculating victim restitution.
FISCAL EFFECT: Unknown. This bill has been keyed non-fiscal by
the Legislative Counsel.
COMMENTS: 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."
Constitutionally Protected Right to Victim Restitution: The
right of a victim to restitution from the person convicted of a
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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
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.)
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Analysis Prepared by: Sandy Uribe / PUB. S.
/ (916) 319-3744 FN: 0002689