BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2295 Hearing Date: May 10, 2016
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|Author: |Baker |
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|Version: |March 15, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JM |
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Subject: Restitution for Crimes
HISTORY
Source: Crime Victims United of California
Prior Legislation:None known
Support: California Police Chiefs Association; California
District Attorneys Association; Office of the District
Attorney Contra Costa County; STAND!
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: 76 - 0
PURPOSE
The purpose of this bill is to conform statutory restitution
provisions to the requirement in the California Constitution
that each victim is entitled restitution from the perpetrator of
the crime in which the victim suffered a loss.
Existing provisions in the California Constitution state that
all persons who suffer losses as a result of criminal activity
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shall have the right to restitution from the perpetrators of
these crimes. Restitution shall be ordered in every case
"regardless of the sentence or disposition imposed" and the
Legislature shall enact statutes to implement the constitutional
restitution provisions. (Cal. Const. Art. 1 § 28 (b).)
Existing law states legislative intent that a victim of crime
who incurs any economic loss as a result of the commission of a
crime shall receive restitution directly from any defendant
convicted of that crime. (Pen. Code § 1202.4, subd. (a)(1).)
Existing law 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).)
Existing law 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).)
Existing law specifies that inability to pay is not a compelling
and extraordinary reason not to impose victim restitution.
(Pen. Code, § 1202.4, subd. (g).)
Existing law states that inability to pay is not a ground for
consideration at all in calculating victim restitution. (Pen.
Code, § 1202.4, subd. (g).)
This bill 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.
This bill 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.
This bill 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
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consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
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 violent offenses have
enumerated rights. 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.
2.California Constitutional 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:
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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 restitution provisions in Proposition 8 adding Article I,
Section 28 (d) to the Constitution were not self-executing. The
initiative 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 Questioned the
Constitutionality of Statutes Authorizing a Court to Order a
Defendant to Pay Less than Full Restitution
People v. Pierce (2015) 234 Cal.App.4th 1334 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
of 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
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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 the court to order the
defendant to pay less than full restitution where the trial
court finds "compelling and extraordinary reasons" to do so.
The court in Pierce questioned whether this language remained
valid after the passage of Proposition 9. 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.
-- END -
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