BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2295|
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THIRD READING
Bill No: AB 2295
Author: Baker (R), et al.
Amended: 3/15/16 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 5/10/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
ASSEMBLY FLOOR: 76-0, 4/7/16 - See last page for vote
SUBJECT: Restitution for crimes
SOURCE: Crime Victims United of California
DIGEST: This bill conforms 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.
ANALYSIS:
Existing law:
1)Provides in the California Constitution that all persons who
suffer losses as a result of criminal activity 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).)
2)Includes legislative intent that a victim of crime who incurs
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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).)
3)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).)
4)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).)
5)Specifies that inability to pay is not a compelling and
extraordinary reason not to impose victim restitution. (Pen.
Code, § 1202.4, subd. (g).)
6)States that inability to pay may not be considered at all in
calculating victim restitution. (Pen. Code, § 1202.4, subd.
(g).)
This bill:
1)Eliminates the authority of a court 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)Eliminates the authority of a court 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)Eliminates the discretion of a court to order less than full
restitution when it finds compelling and extraordinary reasons
for doing so, as currently provided by the restitution
statute.
Background
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
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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.
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 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
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gave that representative the ability to enforce a victim's
right. (See People v. Runyan (2012) 54 Cal.4th 849, 858-859.)
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
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.
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FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified5/11/16)
Crime Victims United of California (source)
California District Attorneys Association
California Police Chiefs Association
Contra Costa County District Attorney
STAND!
OPPOSITION: (Verified5/11/16)
California Attorneys for Criminal Justice
ASSEMBLY FLOOR: 76-0, 4/7/16
AYES: Achadjian, Alejo, Travis Allen, Atkins, Baker, Bigelow,
Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Nazarian, Obernolte, O'Donnell, Olsen, Patterson,
Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,
Wood, Rendon
NO VOTE RECORDED: Campos, Levine, Quirk
Prepared by:Jerome McGuire / PUB. S. /
5/23/16 14:19:35
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