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:  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  








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            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
          







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          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  







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          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  







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          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. /







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