BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2295| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 2295 Author: Baker (R), et al. Amended: 5/24/16 in Senate 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. Senate Floor Amendments of 5/24/16 identify an additional statutory restitution provision that is not consistent with constitutional restitution requirements and amends that section in the same manner as the other statutes in this bill. 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 AB 2295 Page 2 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 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 AB 2295 Page 3 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. 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 AB 2295 Page 4 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.) 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 AB 2295 Page 5 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified5/24/16) Crime Victims United of California (source) California District Attorneys Association California Police Chiefs Association Contra Costa County District Attorney STAND! OPPOSITION: (Verified5/24/16) 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. / AB 2295 Page 6 5/25/16 13:50:21 **** END ****