Amended in Assembly July 16, 2015

Amended in Senate June 2, 2015

Amended in Senate April 6, 2015

Senate Bill No. 519

Introduced by Senator Hancock

(Coauthor: Senator Leno)

February 26, 2015

An act to amend Sections 13952, 13956, 13957, 13958, and 13959 of the Government Code, and to amend begin delete Sections 1050 and end delete begin insert Section end insert 1202.4 of the Penal Code, relating to victims of crime, and making an appropriation therefor.

LEGISLATIVE COUNSEL’S DIGEST

SB 519, as amended, Hancock. Victims of crime.

(1) Existing law provides for the indemnification of victims and derivative victims of specified types of crimes by the California Victim Compensation and Government Claims Board, subject to specified criteria for, among other things, submission and verification of applications, eligibility for emergency awards and compensation for specified services, and procedures for hearings with respect to the denial of awards. Existing law requires the board to publicize programs related to these provisions, including, among others, the procedures to obtain compensation from the board. Payment of claims and certain programs administered by the board are made under these provisions from the Restitution Fund, which is continuously appropriated to the board for these purposes.

This bill would require all correspondence by the board to an applicant to be written in English, Spanish, Chinese (Mandarin and Cantonese), Vietnamese, Korean, East Armenian, Tagalog, Russian, Arabic, Farsi, Hmong, and Khmer. The bill would prohibit the board from requiring an applicant to submit documentation from the Internal Revenue Service, the Franchise Tax Board, the State Board of Equalization, the Social Security Administration, or the Employment Development Department in order to determine eligibility for compensation.

(2) Existing law authorizes the board to compensate an individual who voluntarily, and without anticipation of personal gain, pays or assumes the obligation to pay a crime victim’s funeral and burial expenses, up to $7,500, incurred as a direct result of the crime.

This bill would begin delete specifically require the board to consider granting an applicant an award up to $7,500, and end delete prohibit any regulation or policy by the board creating a maximum amount of an award pursuant to this provision for less than $7,500.

(3) Existing law requires an application for compensation to be denied if the board finds that the victim failed to cooperate reasonably with a law enforcement agency in the apprehension and conviction of a criminal committing a crime. Existing law also requires an application for compensation to be denied if a person has been convicted of a felony and is not discharged from probation.

This bill would prohibit a claim from being denied pursuant to these provisions in any case in which the victim is eligible for compensation as a minor. This bill would also remove the prohibition against granting compensation to a person convicted of a felony, but not discharged from parole, if the compensation is solely used to fund mental health counseling. By expanding the eligibility for payments from a continuously appropriated fund, this bill would make an appropriation.

(4) Existing law requires the board to approve or deny applications, based on recommendations of the board staff, within an average of 90 calendar days and no later than 180 calendar days of acceptance by the board or victim center, and to report to the Legislature if the board fails to do so, as specified.

This bill would require the board to approve or deny applications within 90 days total and modifies the reporting requirements accordingly.

(5) Existing law requires board hearings to be informal and authorizes these begin delete hearing end delete begin insert hearings end insert to not be conducted according to the technical rules relating to evidence and witnesses.

This bill would require the board to allow a service animal to accompany and support a witness while testifying at a board hearing.

begin delete

(6) Existing law authorizes a party to a criminal proceeding to move for a continuance upon a showing of good cause. Existing law describes “good cause” for purposes of that provision.

end delete begin delete

This bill would specify that “good cause” includes those cases involving elder abuse, as defined, when the prosecuting attorney has another trial, preliminary hearing, or motion to suppress in progress. This bill would also make technical changes to this provision.

end delete begin delete

(7)

end delete

begin insert (6) end insert  Existing law requires the court to order a person who is convicted of a crime to pay restitution to the victim or victims for the full amount of economic loss, unless the court finds compelling and extraordinary reasons for not doing so and states them on the record. Existing law provides the defendant the right to a hearing before a judge to dispute the determination of the amount of restitution and authorizes the court to modify the amount of restitution.

This bill would authorize a victim at a restitution or modification hearing to testify by live, 2-way audio and video transmission, if that type of transmission is available at the court.

begin delete

(8)

end delete

begin insert (7) end insert  By expanding the authorizations for use of moneys in the Restitution Fund, a continuously appropriated fund, this bill would make an appropriation.

Vote: ²⁄₃. Appropriation: yes. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 13952 of the Government Code is
amended to read:

13952.  

(a) An application for compensation shall be filed with
the board in the manner determined by the board.

(b) (1) The application for compensation shall be verified under
penalty of perjury by the individual who is seeking compensation,
who may be the victim or derivative victim, or an individual
seeking reimbursement for burial, funeral, or crime scene cleanup
expenses pursuant to subdivision (a) of Section 13957. If the
individual seeking compensation is a minor or is incompetent, the
application shall be verified under penalty of perjury or on
information and belief by the parent with legal custody, guardian,
conservator, or relative caregiver of the victim or derivative victim
for whom the application is made. However, if a minor seeks
compensation only for expenses for medical, medical-related,
psychiatric, psychological, or other mental health
counseling-related services and the minor is authorized by statute
to consent to those services, the minor may verify the application
for compensation under penalty of perjury.

(2) For purposes of this subdivision, “relative caregiver” means
a relative as defined in subdivision (h) of Section 6550 of the
Family Code, who assumed primary responsibility for the child
while the child was in the relative’s care and control, and who is
not a biological or adoptive parent.

(c) (1) The board may require submission of additional
information supporting the application that is reasonably necessary
to verify the application and determine eligibility for compensation.

(2) The staff of the board shall determine whether an application
for compensation contains all of the information required by the
board. If the staff determines that an application does not contain
all of the required information, the staff shall communicate that
determination to the applicant with a brief statement of the
additional information required. The applicant, within 30 calendar
days of being notified that the application is incomplete, may either
supply the additional information or appeal the staff’s
determination to the board, which shall review the application to
determine whether it is complete.

(3) The board shall not require an applicant to submit
documentation from the Internal Revenue Service, the Franchise
Tax Board, the State Board of Equalization, the Social Security
Administration, or the Employment Development Department in
order to determine eligibility for compensation.

(d) (1) The board may recognize an authorized representative
of the victim or derivative victim, who shall represent the victim
or derivative victim pursuant to rules adopted by the board.

(2) For purposes of this subdivision, “authorized representative”
means any of the following:

(A) An attorney.

(B) If the victim or derivative victim is a minor or an
incompetent adult, the legal guardian or conservator, or an
immediate family member, parent, or relative caregiver who is not
the perpetrator of the crime that gave rise to the claim.

(C) A victim assistance advocate certified pursuant to Section
13835.10 of the Penal Code.

(D) An immediate family member of the victim or derivative
victim, who has written authorization by the victim or derivative
victim, and who is not the perpetrator of the crime that gave rise
to the claim.

(E)  Other persons who shall represent the victim or derivative
victim pursuant to rules adopted by the board.

(F) A county social worker designated by a county department
of social services to represent a child abuse victim or an elder
abuse victim if that victim is unable to file on his or her own behalf.

(3) Except for attorney’s fees awarded under this chapter, no
authorized representative described in paragraph (2) shall charge,
demand, receive, or collect any amount for services rendered under
this subdivision.

(e) All correspondence by the board to an applicant shall be
written in English, Spanish, Chinese (Mandarin and Cantonese),
Vietnamese, Korean, East Armenian, Tagalog, Russian, Arabic,
Farsi, begin delete Mong, end delete begin insert Hmong, end insert and Khmer.

SEC. 2.  

Section 13956 of the Government Code is amended
to read:

13956.  

Notwithstanding Section 13955, a person shall not be
eligible for compensation under the following conditions:

(a) An application shall be denied if the board finds that the
victim or, if compensation is sought by or on behalf of a derivative
victim, either the victim or derivative victim, knowingly and
willingly participated in the commission of the crime that resulted
in the pecuniary loss for which compensation is being sought
pursuant to this chapter. However, this subdivision shall not apply
if the injury or death occurred as a direct result of a crime
committed in violation of Section 261, 262, or 273.5 of, or a crime
of unlawful sexual intercourse with a minor committed in violation
of subdivision (d) of Section 261.5 of, the Penal Code.

(b) (1) An application shall be denied if the board finds that
the victim or, if compensation is sought by, or on behalf of, a
derivative victim, either the victim or derivative victim failed to
cooperate reasonably with a law enforcement agency in the
apprehension and conviction of a criminal committing the crime.
However, in determining whether cooperation has been reasonable,
the board shall consider the victim’s or derivative victim’s age,
physical condition, and psychological state, cultural or linguistic
barriers, any compelling health and safety concerns, including, but
not limited to, a reasonable fear of retaliation or harm that would
jeopardize the well-being of the victim or the victim’s family or
the derivative victim or the derivative victim’s family, and giving
due consideration to the degree of cooperation of which the victim
or derivative victim is capable in light of the presence of any of
these factors. An application for a claim shall not be denied
pursuant to this paragraph in any case in which the victim is eligible
for compensation as a minor.

(2) An application for a claim based on domestic violence shall
not be denied solely because no police report was made by the
victim. The board shall adopt guidelines that allow the board to
consider and approve applications for assistance based on domestic
violence relying upon evidence other than a police report to
establish that a domestic violence crime has occurred. Factors
evidencing that a domestic violence crime has occurred may
include, but are not limited to, medical records documenting
injuries consistent with allegations of domestic violence, mental
health records, or the fact that the victim has obtained a temporary
or permanent restraining order, or all of these.

(3) An application for a claim based on human trafficking as
defined in Section 236.1 of the Penal Code shall not be denied
solely because no police report was made by the victim. The board
shall adopt guidelines that allow the board to consider and approve
applications for assistance based on human trafficking relying
upon evidence other than a police report to establish that a human
trafficking crime as defined in Section 236.1 of the Penal Code
has occurred. That evidence may include any reliable corroborating
information approved by the board, including, but not limited to,
the following:

(A) A Law Enforcement Agency Endorsement issued pursuant
to Section 236.2 of the Penal Code.

(B) A human trafficking caseworker, as identified in Section
1038.2 of the Evidence Code, has attested by affidavit that the
individual was a victim of human trafficking.

(4) (A) An application for a claim by a military personnel victim
based on a sexual assault by another military personnel shall not
be denied solely because it was not reported to a superior officer
or law enforcement at the time of the crime.

(B) Factors that the board shall consider for purposes of
determining if a claim qualifies for compensation include, but are
not limited to, the evidence of the following:

(i) Restricted or unrestricted reports to a military victim
advocate, sexual assault response coordinator, chaplain, attorney,
or other military personnel.

(ii) Medical or physical evidence consistent with sexual assault.

(iii) A written or oral report from military law enforcement or
a civilian law enforcement agency concluding that a sexual assault
crime was committed against the victim.

(iv) A letter or other written statement from a sexual assault
counselor, as defined in Section 1035.2 of the Evidence Code,
licensed therapist, or mental health counselor, stating that the
victim is seeking services related to the allegation of sexual assault.

(v) A credible witness to whom the victim disclosed the details
that a sexual assault crime occurred.

(vi) A restraining order from a military or civilian court against
the perpetrator of the sexual assault.

(vii) Other behavior by the victim consistent with sexual assault.

(C) For purposes of this subdivision, the sexual assault at issue
shall have occurred during military service, including deployment.

(D) For purposes of this subdivision, the sexual assault may
have been committed off base.

(E) For purposes of this subdivision, a “perpetrator” means an
individual who is any of the following at the time of the sexual
assault:

(i) An active duty military personnel from the United States
Army, Navy, Marine Corps, Air Force, or Coast Guard.

(ii) A civilian employee of any military branch specified in
clause (i), military base, or military deployment.

(iii) A contractor or agent of a private military or private security
company.

(iv) A member of the California National Guard.

(F) For purposes of this subdivision, “sexual assault” means an
offense included in Section 261, 262, 264.1, 286, 288a, or 289 of
the Penal Code, as of the date the act that added this paragraph
was enacted.

(c) An application for compensation may be denied, in whole
or in part, if the board finds that denial is appropriate because of
the nature of the victim’s or other applicant’s involvement in the
events leading to the crime or the involvement of the persons whose
injury or death gives rise to the application. In the case of a minor,
the board shall consider the minor’s age, physical condition, and
psychological state, as well as any compelling health and safety
concerns, in determining whether the minor’s application should
be denied pursuant to this section. The application of a derivative
victim of domestic violence under 18 years of age or a derivative
victim of trafficking under 18 years of age may not be denied on
the basis of the denial of the victim’s application under this
subdivision.

(d) (1) Notwithstanding Section 13955, a person who is
convicted of a felony shall not be granted compensation until that
person has been discharged from probation or has been released
from a correctional institution and has been discharged from parole,
if any, unless the compensation is solely used to fund mental health
counseling. In no case shall compensation be granted to an
applicant pursuant to this chapter during any period of time the
applicant is held in a correctional institution.

(2) A person who has been convicted of a felony may apply for
compensation pursuant to this chapter at any time, but the award
of that compensation may not be considered until the applicant
meets the requirements for compensation set forth in paragraph
(1).

(3) Applications of victims who are not felons shall receive
priority in the award of compensation over an application submitted
by a felon who has met the requirements for compensation set
forth in paragraph (1).

SEC. 3.  

Section 13957 of the Government Code is amended
to read:

13957.  

(a) The board may grant for pecuniary loss, when the
board determines it will best aid the person seeking compensation,
as follows:

(1) Subject to the limitations set forth in Section 13957.2,
reimburse the amount of medical or medical-related expenses
incurred by the victim, including, but not limited to, eyeglasses,
hearing aids, dentures, or any prosthetic device taken, lost, or
destroyed during the commission of the crime, or the use of which
became necessary as a direct result of the crime.

(2) Subject to the limitations set forth in Section 13957.2,
reimburse the amount of outpatient psychiatric, psychological, or
other mental health counseling-related expenses incurred by the
victim or derivative victim, including peer counseling services
provided by a rape crisis center as defined by Section 13837 of
the Penal Code, and including family psychiatric, psychological,
or mental health counseling for the successful treatment of the
victim provided to family members of the victim in the presence
of the victim, whether or not the family member relationship
existed at the time of the crime, that became necessary as a direct
result of the crime, subject to the following conditions:

(A) The following persons may be reimbursed for the expense
of their outpatient mental health counseling in an amount not to
exceed ten thousand dollars ($10,000):

(i) A victim.

(ii) A derivative victim who is the surviving parent, sibling,
child, spouse, fiancé, or fiancée of a victim of a crime that directly
resulted in the death of the victim.

(iii) A derivative victim, as described in paragraphs (1) to (4),
inclusive, of subdivision (c) of Section 13955, who is the primary
caretaker of a minor victim whose claim is not denied or reduced
pursuant to Section 13956 in a total amount not to exceed ten
thousand dollars ($10,000) for not more than two derivative
victims.

(B) The following persons may be reimbursed for the expense
of their outpatient mental health counseling in an amount not to
exceed five thousand dollars ($5,000):

(i) A derivative victim not eligible for reimbursement pursuant
to subparagraph (A), provided that mental health counseling of a
derivative victim described in paragraph (5) of subdivision (c) of
Section 13955, shall be reimbursed only if that counseling is
necessary for the treatment of the victim.

(ii) A victim of a crime of unlawful sexual intercourse with a
minor committed in violation of subdivision (d) of Section 261.5
of the Penal Code. A derivative victim of a crime committed in
violation of subdivision (d) of Section 261.5 of the Penal Code
shall not be eligible for reimbursement of mental health counseling
expenses.

(iii) A minor who suffers emotional injury as a direct result of
witnessing a violent crime and who is not eligible for
reimbursement of the costs of outpatient mental health counseling
under any other provision of this chapter. To be eligible for
reimbursement under this clause, the minor must have been in
close proximity to the victim when he or she witnessed the crime.

(C) The board may reimburse a victim or derivative victim for
outpatient mental health counseling in excess of that authorized
by subparagraph (A) or (B) or for inpatient psychiatric,
psychological, or other mental health counseling if the claim is
based on dire or exceptional circumstances that require more
extensive treatment, as approved by the board.

(D) Expenses for psychiatric, psychological, or other mental
health counseling-related services may be reimbursed only if the
services were provided by either of the following individuals:

(i) A person who would have been authorized to provide those
services pursuant to former Article 1 (commencing with Section
13959) as it read on January 1, 2002.

(ii) A person who is licensed by the state to provide those
services, or who is properly supervised by a person who is so
licensed, subject to the board’s approval and subject to the
limitations and restrictions the board may impose.

(3) Reimburse the expenses of nonmedical remedial care and
treatment rendered in accordance with a religious method of healing
recognized by state law.

(4) Subject to the limitations set forth in Section 13957.5,
authorize compensation equal to the loss of income or loss of
support, or both, that a victim or derivative victim incurs as a direct
result of the victim’s or derivative victim’s injury or the victim’s
death. If the victim or derivative victim requests that the board
give priority to reimbursement of loss of income or support, the
board may not pay medical expenses, or mental health counseling
expenses, except upon the request of the victim or derivative victim
or after determining that payment of these expenses will not
decrease the funds available for payment of loss of income or
support.

(5) Authorize a cash payment to or on behalf of the victim for
job retraining or similar employment-oriented services.

(6) Reimburse the claimant for the expense of installing or
increasing residential security, not to exceed one thousand dollars
($1,000). Reimbursement shall be made either upon verification
by law enforcement that the security measures are necessary for
the personal safety of the claimant or verification by a mental
health treatment provider that the security measures are necessary
for the emotional well-being of the claimant. For purposes of this
paragraph, a claimant is the crime victim, or, if the victim is
deceased, a person who resided with the deceased at the time of
the crime. Installing or increasing residential security may include,
but need not be limited to, both of the following:

(A) Home security device or system.

(B) Replacing or increasing the number of locks.

(7) Reimburse the expense of renovating or retrofitting a
victim’s residence or a vehicle, or both, to make the residence, the
vehicle, or both, accessible or the vehicle operational by a victim
upon verification that the expense is medically necessary for a
victim who is permanently disabled as a direct result of the crime,
whether the disability is partial or total.

(8) (A) Authorize a cash payment or reimbursement not to
exceed two thousand dollars ($2,000) to a victim for expenses
incurred in relocating, if the expenses are determined by law
enforcement to be necessary for the personal safety of the victim
or by a mental health treatment provider to be necessary for the
emotional well-being of the victim.

(B) The cash payment or reimbursement made under this
paragraph shall only be awarded to one claimant per crime giving
rise to the relocation. The board may authorize more than one
relocation per crime if necessary for the personal safety or
emotional well-being of the claimant. However, the total cash
payment or reimbursement for all relocations due to the same crime
shall not exceed two thousand dollars ($2,000). For purposes of
this paragraph a claimant is the crime victim, or, if the victim is
deceased, a person who resided with the deceased at the time of
the crime.

(C) The board may, under compelling circumstances, award a
second cash payment or reimbursement to a victim for another
crime if both of the following conditions are met:

(i) The crime occurs more than three years from the date of the
crime giving rise to the initial relocation cash payment or
reimbursement.

(ii) The crime does not involve the same offender.

(D) When a relocation payment or reimbursement is provided
to a victim of sexual assault or domestic violence and the identity
of the offender is known to the victim, the victim shall agree not
to inform the offender of the location of the victim’s new residence
and not to allow the offender on the premises at any time, or shall
agree to seek a restraining order against the offender.

(E) Notwithstanding subparagraphs (A) and (B), the board may
increase the cash payment or reimbursement for expenses incurred
in relocating to an amount greater than two thousand dollars
($2,000), if the board finds this amount is appropriate due to the
unusual, dire, or exceptional circumstances of a particular claim.

(9) When a victim dies as a result of a crime, the board may
reimburse any individual who voluntarily, and without anticipation
of personal gain, pays or assumes the obligation to pay any of the
following expenses:

(A) The medical expenses incurred as a direct result of the crime
in an amount not to exceed the rates or limitations established by
the board.

(B) The funeral and burial expenses incurred as a direct result
of the begin delete crime end delete begin insert crime, end insert not to exceed seven thousand five hundred
dollars ($7,500). begin delete The board shall consider granting an applicant
an award up to seven thousand five hundred dollars ($7,500). end delete Any
regulation or policy by the board creating a maximum amount of
an award pursuant to this provision for less than seven thousand
five hundred dollars ($7,500) is prohibited.

(10) When the crime occurs in a residence, the board may
reimburse any individual who voluntarily, and without anticipation
of personal gain, pays or assumes the obligation to pay the
reasonable costs to clean the scene of the crime in an amount not
to exceed one thousand dollars ($1,000). Services reimbursed
pursuant to this subdivision shall be performed by persons
registered with the State Department of Public Health as trauma
scene waste practitioners in accordance with Chapter 9.5
(commencing with Section 118321) of Part 14 of Division 104 of
the Health and Safety Code.

(11) When the crime is a violation of Section 600.2 or 600.5 of
the Penal Code, the board may reimburse the expense of veterinary
services, replacement costs, or other reasonable expenses, as
ordered by the court pursuant to Section 600.2 or 600.5 of the
Penal Code, in an amount not to exceed ten thousand dollars
($10,000).

(b) The total award to or on behalf of each victim or derivative
victim may not exceed thirty-five thousand dollars ($35,000),
except that this amount may be increased to seventy thousand
dollars ($70,000) if federal funds for that increase are available.

SEC. 4.  

Section 13958 of the Government Code is amended
to read:

13958.  

The board shall approve or deny applications, based
on recommendations of the board staff, within 90 calendar days
of acceptance by the board or victim center.

(a) If the board does not meet the 90-day requirement prescribed
in this subdivision, the board shall, thereafter, report to the
Legislature, on a quarterly basis, its progress and its current average
time of processing applications. These quarterly reports shall
continue until the board meets the 90-day requirement for two
consecutive quarters.

(b) If the board fails to approve or deny an individual application
within 90 days of the date it is accepted, pursuant to this
subdivision, the board shall advise the applicant and his or her
representative, in writing, of the reason for the failure to approve
or deny the application.

SEC. 5.  

Section 13959 of the Government Code is amended
to read:

13959.  

(a) The board shall grant a hearing to an applicant who
believes he or she is entitled to compensation pursuant to this
chapter to contest a staff recommendation to deny compensation
in whole or in part.

(b) The board shall notify the applicant not less than 10 days
prior to the date of the hearing. Notwithstanding Section 11123,
if the application that the board is considering involves either a
crime against a minor, a crime of sexual assault, or a crime of
domestic violence, the board may exclude from the hearing all
persons other than board members and members of its staff, the
applicant for benefits, a minor applicant’s parents or guardians,
the applicant’s representative, witnesses, and other persons of the
applicant’s choice to provide assistance to the applicant during the
hearing. However, the board shall not exclude persons from the
hearing if the applicant or applicant’s representative requests that
the hearing be open to the public.

(c) At the hearing, the person seeking compensation shall have
the burden of establishing, by a preponderance of the evidence,
the elements for eligibility under Section 13955.

(d) Except as otherwise provided by law, in making
determinations of eligibility for compensation and in deciding
upon the amount of compensation, the board shall apply the law
in effect as of the date an application was submitted.

(e) (1) The hearing shall be informal and need not be conducted
according to the technical rules relating to evidence and witnesses.
The board may rely on any relevant evidence if it is the sort of
evidence on which responsible persons are accustomed to rely in
the conduct of serious affairs, regardless of the existence of a
common law or statutory rule that might make improper the
admission of the evidence over objection in a civil action. The
board may rely on written reports prepared for the board, or other
information received, from public agencies responsible for
investigating the crime. If the applicant or the applicant’s
representative chooses not to appear at the hearing, the board may
act solely upon the application for compensation, the staff’s report,
and other evidence that appears in the record.

(2) The board shall allow a service animal to accompany and
support a witness while testifying at a hearing.

(f) Hearings shall be held in various locations with the frequency
necessary to provide for the speedy adjudication of the applications.
If the applicant’s presence is required at the hearing, the board
shall schedule the applicant’s hearing in as convenient a location
as possible.

(g) The board may delegate the hearing of applications to
hearing officers.

(h) The decisions of the board shall be in writing. Copies of the
decisions shall be delivered to the applicant or to his or her
representative personally or sent to him or her by mail.

(i) The board may order a reconsideration of all or part of a
decision on written request of the applicant. The board shall not
grant more than one request for reconsideration with respect to
any one decision on an application for compensation. The board
shall not consider any request for reconsideration filed with the
board more than 30 calendar days after the personal delivery or
60 calendar days after the mailing of the original decision.

(j) The board may order a reconsideration of all or part of a
decision on its own motion, at its discretion, at any time.

begin delete

SEC. 6.  

Section 1050 of the Penal Code is amended to read:

1050.  

(a) The welfare of the people of the State of California
requires that all proceedings in criminal cases shall be set for trial
and heard and determined at the earliest possible time. To this end,
the Legislature finds that the criminal courts are becoming
increasingly congested with resulting adverse consequences to the
welfare of the people and the defendant. Excessive continuances
contribute substantially to this congestion and cause substantial
hardship to victims and other witnesses. Continuances also lead
to longer periods of presentence confinement for those defendants
in custody and the concomitant overcrowding and increased
expenses of local jails. It is therefore recognized that the people,
the defendant, and the victims and other witnesses have the right
to an expeditious disposition, and to that end it shall be the duty
of all courts and judicial officers and of all counsel, both for the
prosecution and the defense, to expedite these proceedings to the
greatest degree that is consistent with the ends of justice. In
accordance with this policy, criminal cases shall be given
precedence over, and set for trial and heard without regard to the
pendency of, any civil matters or proceedings. In further accordance
with this policy, death penalty cases in which both the prosecution
and the defense have informed the court that they are prepared to
proceed to trial shall be given precedence over, and set for trial
and heard without regard to the pendency of, other criminal cases
and any civil matters or proceedings, unless the court finds in the
interest of justice that it is not appropriate.

(b) To continue any hearing in a criminal proceeding, including
the trial, (1) a written notice shall be filed and served on all parties
to the proceeding at least two court days before the hearing sought
to be continued, together with affidavits or declarations detailing
specific facts showing that a continuance is necessary and (2)
within two court days of learning that he or she has a conflict in
the scheduling of any court hearing, including a trial, an attorney
shall notify the calendar clerk of each court involved, in writing,
indicating which hearing was set first. A party shall not be deemed
to have been served within the meaning of this section until that
party actually has received a copy of the documents to be served,
unless the party, after receiving actual notice of the request for
continuance, waives the right to have the documents served in a
timely manner. Regardless of the proponent of the motion, the
prosecuting attorney shall notify the people’s witnesses and the
defense attorney shall notify the defense’s witnesses of the notice
of motion, the date of the hearing, and the witnesses’ right to be
heard by the court.

(c) Notwithstanding subdivision (b), a party may make a motion
for a continuance without complying with the requirements of that
subdivision. However, unless the moving party shows good cause
for the failure to comply with those requirements, the court may
impose sanctions as provided in Section 1050.5.

(d) When a party makes a motion for a continuance without
complying with the requirements of subdivision (b), the court shall
hold a hearing on whether there is good cause for the failure to
comply with those requirements. At the conclusion of the hearing,
the court shall make a finding whether good cause has been shown
and, if it finds that there is good cause, shall state on the record
the facts proved that justify its finding. A statement of the finding
and a statement of facts proved shall be entered in the minutes. If
the moving party is unable to show good cause for the failure to
give notice, the motion for continuance shall not be granted.

(e) Continuances shall be granted only upon a showing of good
cause. Neither the convenience of the parties nor a stipulation of
the parties is in and of itself good cause.

(f) At the conclusion of the motion for continuance, the court
shall make a finding whether good cause has been shown and, if
it finds that there is good cause, shall state on the record the facts
proved that justify its finding. A statement of facts proved shall
be entered in the minutes.

(g) (1) When deciding whether or not good cause for a
continuance has been shown, the court shall consider the general
convenience and prior commitments of all witnesses, including
peace officers. Both the general convenience and prior
commitments of each witness also shall be considered in selecting
a continuance date if the motion is granted. The facts as to
inconvenience or prior commitments may be offered by the witness
or by a party to the case.

(2) For purposes of this section, “good cause” includes, but is
not limited to, those cases involving murder, as defined in
subdivision (a) of Section 187, allegations that stalking, as defined
in Section 646.9, a violation of one or more of the sections
specified in subdivision (a) of Section 11165.1 or Section 11165.6,
domestic violence, as defined in Section 13700, a hate crime, as
defined in Title 11.6 (commencing with Section 422.6) of Part 1,
or elder abuse, as defined in Section 368 of the Penal Code, has
occurred, or a case being handled in the Career Criminal
Prosecution Program pursuant to Sections 999b through 999h, and
the prosecuting attorney assigned to the case has another trial,
preliminary hearing, or motion to suppress in progress in that court
or another court. A continuance under this paragraph shall be
limited to a maximum of 10 additional court days.

(3) Only one continuance per case may be granted to the people
under this subdivision for cases involving stalking, hate crimes,
or cases handled under the Career Criminal Prosecution Program.
Any continuance granted to the people in a case involving stalking
or handled under the Career Criminal Prosecution Program shall
be for the shortest time possible, not to exceed 10 court days.

(h) Upon a showing that the attorney of record at the time of
the defendant’s first appearance in the superior court on an
indictment or information is a Member of the Legislature of this
state and that the Legislature is in session or that a legislative
interim committee of which the attorney is a duly appointed
member is meeting or is to meet within the next seven days, the
defendant shall be entitled to a reasonable continuance not to
exceed 30 days.

(i) A continuance shall be granted only for that period of time
shown to be necessary by the evidence considered at the hearing
on the motion. Whenever any continuance is granted, the court
shall state on the record the facts proved that justify the length of
the continuance, and those facts shall be entered in the minutes.

(j) Whenever it shall appear that any court may be required,
because of the condition of its calendar, to dismiss an action
pursuant to Section 1382, the court must immediately notify the
Chair of the Judicial Council.

(k) This section shall not apply when the preliminary
examination is set on a date less than 10 court days from the date
of the defendant’s arraignment on the complaint, and the
prosecution or the defendant moves to continue the preliminary
examination to a date not more than 10 court days from the date
of the defendant’s arraignment on the complaint.

(l) This section is directory only and does not mandate dismissal
of an action by its terms.

end delete

begin delete SEC. 7. end delete
begin insert SEC. 6. end insert   

Section 1202.4 of the Penal Code is amended to read:

1202.4.  

(a) (1) It is the intent of the Legislature that a victim
of crime who incurs an economic loss as a result of the commission
of a crime shall receive restitution directly from a defendant
convicted of that crime.

(2) Upon a person being convicted of a crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.

(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of
the following:

(A) A restitution fine in accordance with subdivision (b).

(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order
were a civil judgment.

(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so and
states those reasons on the record.

(1) The restitution fine shall be set at the discretion of the court
and commensurate with the seriousness of the offense. If the person
is convicted of a felony, the fine shall not be less than two hundred
forty dollars ($240) starting on January 1, 2012, two hundred eighty
dollars ($280) starting on January 1, 2013, and three hundred
dollars ($300) starting on January 1, 2014, and not more than ten
thousand dollars ($10,000). If the person is convicted of a
misdemeanor, the fine shall not be less than one hundred twenty
dollars ($120) starting on January 1, 2012, one hundred forty
dollars ($140) starting on January 1, 2013, and one hundred fifty
dollars ($150) starting on January 1, 2014, and not more than one
thousand dollars ($1,000).

(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of the minimum fine pursuant
to paragraph (1) multiplied by the number of years of imprisonment
the defendant is ordered to serve, multiplied by the number of
felony counts of which the defendant is convicted.

(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record. A defendant’s inability to pay shall
not be considered a compelling and extraordinary reason not to
impose a restitution fine. Inability to pay may be considered only
in increasing the amount of the restitution fine in excess of the
minimum fine pursuant to paragraph (1) of subdivision (b). The
court may specify that funds confiscated at the time of the
defendant’s arrest, except for funds confiscated pursuant to Section
11469 of the Health and Safety Code, be applied to the restitution
fine if the funds are not exempt for spousal or child support or
subject to any other legal exemption.

(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the minimum fine pursuant to paragraph (1) of
subdivision (b), the court shall consider any relevant factors,
including, but not limited to, the defendant’s inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a
result of the crime, the extent to which any other person suffered
losses as a result of the crime, and the number of victims involved
in the crime. Those losses may include pecuniary losses to the
victim or his or her dependents as well as intangible losses, such
as psychological harm caused by the crime. Consideration of a
defendant’s inability to pay may include his or her future earning
capacity. A defendant shall bear the burden of demonstrating his
or her inability to pay. Express findings by the court as to the
factors bearing on the amount of the fine shall not be required. A
separate hearing for the fine shall not be required.

(e) The restitution fine shall not be subject to penalty
assessments authorized in Section 1464 or Chapter 12
(commencing with Section 76000) of Title 8 of the Government
Code, or the state surcharge authorized in Section 1465.7, and
shall be deposited in the Restitution Fund in the State Treasury.

(f) Except as provided in subdivisions (q) and (r), in every case
in which a victim has suffered economic loss as a result of the
defendant’s conduct, the court shall require that the defendant
make restitution to the victim or victims in an amount established
by court order, based on the amount of loss claimed by the victim
or victims or any other showing to the court. If the amount of loss
cannot be ascertained at the time of sentencing, the restitution
order shall include a provision that the amount shall be determined
at the direction of the court. The court shall order full restitution
unless it finds compelling and extraordinary reasons for not doing
so and states them on the record. The court may specify that funds
confiscated at the time of the defendant’s arrest, except for funds
confiscated pursuant to Section 11469 of the Health and Safety
Code, be applied to the restitution order if the funds are not exempt
for spousal or child support or subject to any other legal exemption.

(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court
may modify the amount, on its own motion or on the motion of
the district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion. A victim at a restitution
hearing or modification hearing described in this paragraph may
testify by live, two-way audio and video transmission, if testimony
by live, two-way audio and video transmission is available at the
court.

(2) Determination of the amount of restitution ordered pursuant
to this subdivision shall not be affected by the indemnification or
subrogation rights of a third party. Restitution ordered pursuant to
this subdivision shall be ordered to be deposited to the Restitution
Fund to the extent that the victim, as defined in subdivision (k),
has received assistance from the California Victim Compensation
and Government Claims Board pursuant to Chapter 5 (commencing
with Section 13950) of Part 4 of Division 3 of Title 2 of the
Government Code.

(3) To the extent possible, the restitution order shall be prepared
by the sentencing court, shall identify each victim and each loss
to which it pertains, and shall be of a dollar amount that is sufficient
to fully reimburse the victim or victims for every determined
economic loss incurred as the result of the defendant’s criminal
conduct, including, but not limited to, all of the following:

(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.

(B) Medical expenses.

(C) Mental health counseling expenses.

(D) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor’s
parent, parents, guardian, or guardians, while caring for the injured
minor. Lost wages shall include commission income as well as
base wages. Commission income shall be established by evidence
of commission income during the 12-month period prior to the
date of the crime for which restitution is being ordered, unless
good cause for a shorter time period is shown.

(E) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor’s parent, parents,
guardian, or guardians, due to time spent as a witness or in assisting
the police or prosecution. Lost wages shall include commission
income as well as base wages. Commission income shall be
established by evidence of commission income during the
12-month period prior to the date of the crime for which restitution
is being ordered, unless good cause for a shorter time period is
shown.

(F) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.

(G) Interest, at the rate of 10 percent per annum, that accrues
as of the date of sentencing or loss, as determined by the court.

(H) Actual and reasonable attorney’s fees and other costs of
collection accrued by a private entity on behalf of the victim.

(I) Expenses incurred by an adult victim in relocating away
from the defendant, including, but not limited to, deposits for
utilities and telephone service, deposits for rental housing,
temporary lodging and food expenses, clothing, and personal items.
Expenses incurred pursuant to this section shall be verified by law
enforcement to be necessary for the personal safety of the victim
or by a mental health treatment provider to be necessary for the
emotional well-being of the victim.

(J) Expenses to install or increase residential security incurred
related to a violent felony, as defined in subdivision (c) of Section
667.5, including, but not limited to, a home security device or
system, or replacing or increasing the number of locks.

(K) Expenses to retrofit a residence or vehicle, or both, to make
the residence accessible to or the vehicle operational by the victim,
if the victim is permanently disabled, whether the disability is
partial or total, as a direct result of the crime.

(L) Expenses for a period of time reasonably necessary to make
the victim whole, for the costs to monitor the credit report of, and
for the costs to repair the credit of, a victim of identity theft, as
defined in Section 530.5.

(4) (A) If, as a result of the defendant’s conduct, the Restitution
Fund has provided assistance to or on behalf of a victim or
derivative victim pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code,
the amount of assistance provided shall be presumed to be a direct
result of the defendant’s criminal conduct and shall be included
in the amount of the restitution ordered.

(B) The amount of assistance provided by the Restitution Fund
shall be established by copies of bills submitted to the California
Victim Compensation and Government Claims Board reflecting
the amount paid by the board and whether the services for which
payment was made were for medical or dental expenses, funeral
or burial expenses, mental health counseling, wage or support
losses, or rehabilitation. Certified copies of these bills provided
by the board and redacted to protect the privacy and safety of the
victim or any legal privilege, together with a statement made under
penalty of perjury by the custodian of records that those bills were
submitted to and were paid by the board, shall be sufficient to meet
this requirement.

(C) If the defendant offers evidence to rebut the presumption
established by this paragraph, the court may release additional
information contained in the records of the board to the defendant
only after reviewing that information in camera and finding that
the information is necessary for the defendant to dispute the amount
of the restitution order.

(5) Except as provided in paragraph (6), in any case in which
an order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant’s arrest for the
crime for which restitution may be ordered. The financial disclosure
statements shall be made available to the victim and the board
pursuant to Section 1214. The disclosure shall be signed by the
defendant upon a form approved or adopted by the Judicial Council
for the purpose of facilitating the disclosure. A defendant who
willfully states as true a material matter that he or she knows to
be false on the disclosure required by this subdivision is guilty of
a misdemeanor, unless this conduct is punishable as perjury or
another provision of law provides for a greater penalty.

(6) A defendant who fails to file the financial disclosure required
in paragraph (5), but who has filed a financial affidavit or financial
information pursuant to subdivision (c) of Section 987, shall be
deemed to have waived the confidentiality of that affidavit or
financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f). The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (5), and paragraphs (7) to (10), inclusive, shall not
apply.

(7) Except as provided in paragraph (6), the defendant shall file
the disclosure with the clerk of the court no later than the date set
for the defendant’s sentencing, unless otherwise directed by the
court. The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.

(8) In its discretion, the court may relieve the defendant of the
duty under paragraph (7) of filing with the clerk by requiring that
the defendant’s disclosure be submitted as an attachment to, and
be available to, those authorized to receive the following:

(A) A report submitted pursuant to subparagraph (C) of
paragraph (2) of subdivision (b) of Section 1203 or subdivision
(g) of Section 1203.

(B) A stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.

(C) A report by the probation officer, or information submitted
by the defendant applying for a conditional sentence pursuant to
subdivision (d) of Section 1203.

(9) The court may consider a defendant’s unreasonable failure
to make a complete disclosure pursuant to paragraph (5) as any of
the following:

(A) A circumstance in aggravation of the crime in imposing a
term under subdivision (b) of Section 1170.

(B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.

(C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section
1203.

(D) A factor indicating that the interests of justice would not
be served by imposing less than the maximum fine and sentence
fixed by law for the case.

(10) A defendant’s failure or refusal to make the required
disclosure pursuant to paragraph (5) shall not delay entry of an
order of restitution or pronouncement of sentence. In appropriate
cases, the court may do any of the following:

(A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).

(B) If sentencing the defendant under Section 1170, provide
that the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant’s
employment, occupation, finances, and liabilities.

(C) If sentencing the defendant under Section 1203, set a date
and place for submission of the disclosure required by paragraph
(5) as a condition of probation or suspended sentence.

(11) If a defendant has any remaining unpaid balance on a
restitution order or fine 120 days prior to his or her scheduled
release from probation or 120 days prior to his or her completion
of a conditional sentence, the defendant shall prepare and file a
new and updated financial disclosure identifying all assets, income,
and liabilities in which the defendant holds or controls or has held
or controlled a present or future interest during the defendant’s
period of probation or conditional sentence. The financial
disclosure shall be made available to the victim and the board
pursuant to Section 1214. The disclosure shall be signed and
prepared by the defendant on the same form as described in
paragraph (5). A defendant who willfully states as true a material
matter that he or she knows to be false on the disclosure required
by this subdivision is guilty of a misdemeanor, unless this conduct
is punishable as perjury or another provision of law provides for
a greater penalty. The financial disclosure required by this
paragraph shall be filed with the clerk of the court no later than
90 days prior to the defendant’s scheduled release from probation
or completion of the defendant’s conditional sentence.

(12) In cases where an employer is convicted of a crime against
an employee, a payment to the employee or the employee’s
dependent that is made by the employer’s workers’ compensation
insurance carrier shall not be used to offset the amount of the
restitution order unless the court finds that the defendant
substantially met the obligation to pay premiums for that insurance
coverage.

(g) The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record. A defendant’s inability to pay shall
not be considered a compelling and extraordinary reason not to
impose a restitution order, nor shall inability to pay be a
consideration in determining the amount of a restitution order.

(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing
with Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part
2 of the Code of Civil Procedure, in order to determine the
defendant’s financial assets for purposes of collecting on the
restitution order.

(i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment.

(j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the Restitution
Fund as otherwise provided by law, except to the extent that
restitution is actually collected pursuant to the order. Restitution
collected pursuant to this subdivision shall be credited to any other
judgments for the same losses obtained against the defendant
arising out of the crime for which the defendant was convicted.

(k) For purposes of this section, “victim” shall include all of
the following:

(1) The immediate surviving family of the actual victim.

(2) A corporation, business trust, estate, trust, partnership,
association, joint venture, government, governmental subdivision,
agency, or instrumentality, or any other legal or commercial entity
when that entity is a direct victim of a crime.

(3) A person who has sustained economic loss as the result of
a crime and who satisfies any of the following conditions:

(A) At the time of the crime was the parent, grandparent, sibling,
spouse, child, or grandchild of the victim.

(B) At the time of the crime was living in the household of the
victim.

(C) At the time of the crime was a person who had previously
lived in the household of the victim for a period of not less than
two years in a relationship substantially similar to a relationship
listed in subparagraph (A).

(D) Is another family member of the victim, including, but not
limited to, the victim’s fiancé or fiancée, and who witnessed the
crime.

(E) Is the primary caretaker of a minor victim.

(4) A person who is eligible to receive assistance from the
Restitution Fund pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code.

(5) A governmental entity that is responsible for repairing,
replacing, or restoring public or privately owned property that has
been defaced with graffiti or other inscribed material, as defined
in subdivision (e) of Section 594, and that has sustained an
economic loss as the result of a violation of Section 594, 594.3,
594.4, 640.5, 640.6, or begin delete 640.7 of the Penal Code. end delete begin insert 640.7. end insert

(l) At its discretion, the board of supervisors of a county may
impose a fee to cover the actual administrative cost of collecting
the restitution fine, not to exceed 10 percent of the amount ordered
to be paid, to be added to the restitution fine and included in the
order of the court, the proceeds of which shall be deposited in the
general fund of the county.

(m) In every case in which the defendant is granted probation,
the court shall make the payment of restitution fines and orders
imposed pursuant to this section a condition of probation. Any
portion of a restitution order that remains unsatisfied after a
defendant is no longer on probation shall continue to be enforceable
by a victim pursuant to Section 1214 until the obligation is
satisfied.

(n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine or full restitution order
should not be required, the court shall order, as a condition of
probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition
to the finding that restitution should not be required. Upon
revocation of probation, the court shall impose restitution pursuant
to this section.

(o) The provisions of Section 13963 of the Government Code
shall apply to restitution imposed pursuant to this section.

(p) The court clerk shall notify the California Victim
Compensation and Government Claims Board within 90 days of
an order of restitution being imposed if the defendant is ordered
to pay restitution to the board due to the victim receiving
compensation from the Restitution Fund. Notification shall be
accomplished by mailing a copy of the court order to the board,
which may be done periodically by bulk mail or email.

(q) Upon conviction for a violation of Section 236.1, the court
shall, in addition to any other penalty or restitution, order the
defendant to pay restitution to the victim in a case in which a victim
has suffered economic loss as a result of the defendant’s conduct.
The court shall require that the defendant make restitution to the
victim or victims in an amount established by court order, based
on the amount of loss claimed by the victim or victims or another
showing to the court. In determining restitution pursuant to this
section, the court shall base its order upon the greater of the
following: the gross value of the victim’s labor or services based
upon the comparable value of similar services in the labor market
in which the offense occurred, or the value of the victim’s labor
as guaranteed under California law, or the actual income derived
by the defendant from the victim’s labor or services or any other
appropriate means to provide reparations to the victim.

(r) (1) In addition to any other penalty or fine, the court shall
order a person who has been convicted of a violation of Section
350, 653h, 653s, 653u, 653w, or 653aa that involves a recording
or audiovisual work to make restitution to an owner or lawful
producer, or trade association acting on behalf of the owner or
lawful producer, of a phonograph record, disc, wire, tape, film, or
other device or article from which sounds or visual images are
derived that suffered economic loss resulting from the violation.
The order of restitution shall be based on the aggregate wholesale
value of lawfully manufactured and authorized devices or articles
from which sounds or visual images are devised corresponding to
the number of nonconforming devices or articles involved in the
offense, unless a higher value can be proved in the case of (A) an
unreleased audio work, or (B) an audiovisual work that, at the time
of unauthorized distribution, has not been made available in copies
for sale to the general public in the United States on a digital
versatile disc. For purposes of this subdivision, possession of
nonconforming devices or articles intended for sale constitutes
actual economic loss to an owner or lawful producer in the form
of displaced legitimate wholesale purchases. The order of
restitution shall also include reasonable costs incurred as a result
of an investigation of the violation undertaken by the owner, lawful
producer, or trade association acting on behalf of the owner or
lawful producer. “Aggregate wholesale value” means the average
wholesale value of lawfully manufactured and authorized sound
or audiovisual recordings. Proof of the specific wholesale value
of each nonconforming device or article is not required.

(2) As used in this subdivision, “audiovisual work” and
“recording” shall have the same meaning as in Section 653w.