BILL NUMBER: SB 519 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JULY 16, 2015
AMENDED IN SENATE JUNE 2, 2015
AMENDED IN SENATE APRIL 6, 2015
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 Sections 1050 and
Section 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 specifically require the board to
consider granting an applicant an award up to $7,500, and
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 hearing hearings 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.
(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.
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.
(7)
(6) 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.
(8)
(7) 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,
Mong, Hmong, 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 crime crime, not to exceed seven
thousand five hundred dollars ($7,500). The board shall
consider granting an applicant an award up to seven thousand five
hundred dollars ($7,500). 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.
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.
SEC. 7. SEC. 6. 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 640.7 of the Penal Code.
640.7.
( 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.