BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 519 Hearing Date: April 28, 2015
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|Author: |Hancock |
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|Version: |April 6, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Victims of Crime
HISTORY
Source: San Francisco County District Attorney
Prior Legislation:AB 2685 (Cooley) - Ch. 508, Stats. 2014
AB 2809 (Leno) - Ch. 587, Stats. 2008
AB 2869 (Leno) - Ch. 582, Stats. 2006
AB 2413 (Spitzer) - Ch. 571, Stats. 2006
AB 105 (Cohn) - Ch. 539, Stats. 2006
SB 972 (Poochigian) - Ch. 238, Stats. 2005
SB 631 (McPherson) - Ch. 223, Stats. 2004
SB 1423 (Chesbro) - Ch. 1141, Stats. 2002
AB 2898 (Bowler) - Ch. 1077, Stats. 1996
Support: Legal Services for Prisoners with Children
Opposition:None known
PURPOSE
The purposes of this bill are to 1) prohibit the victims
compensation and Government Claims Board (the "board") from
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requiring a claimant to submit documentation from the IRS, the
Franchise Tax Board, or the State Board of Equalization; 2)
require that all correspondence from the board to an applicant
must be in English, Spanish and Chinese; 3) provides that an
adult who witnesses a crime is eligible for reimbursement for
counseling; 4) prohibit denial of a minor's claim because the
minor did not cooperate with law enforcement; 5) provide that a
crime victim who has been convicted of a felony is entitled to
compensation for mental health counseling, regardless of whether
he or she has been released from probation or parole; 6) provide
that a victim of financial exploitation of an elder person by a
relative or caretaker is eligible for counseling, as specified;
7) require reimbursement for burial expenses in the amount of
$7,500, rather than reimbursement not exceeding $7,500; 8)
require the board to approve or deny an application within 90
days, not within an average of 90 days;<1>9) require the board
to allow a claimant to be accompanied by a support animal at a
hearing to contest denial of a claim; 10) provide that good
cause for continuance of a criminal trial includes cases where a
witness was previously a victim of elder abuse or a sex crime;
11) provides that a witness in a hearing to determine or modify
restitution in a criminal case may testify by live audio and
video transmission; and 12) provide that if a person has been
granted dismissal of a conviction, or has been allowed to
withdraw a guilty plea, the person still must pay a direct
restitution order or a restitution fine.
Existing provisions in the California Constitution state that
all crime victims have the right to seek and secure restitution
from the perpetrators of these crimes. Restitution must be
ordered in every case without exception. Where a defendant has
been ordered to pay restitution, all money, or property
collected from the defendant must be first applied to satisfy
restitution orders. (California Constitution Article 1 §
28(b)(13)(A)-(C).)
Existing law requires the court to order a defendant to make
restitution to the victim or victims of the defendant's crime,
based on the amount of loss claimed by the victim or victims or
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<1> Existing law requires the board to report quarterly to the
Legislature until it has met the time requirements for two
consecutive quarters. This bill retains the reporting
requirement. (Gov. Code § 13958.)
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any other showing to the court. The court shall order full
restitution for the losses caused by the defendant's crime
unless the court finds and states compelling and extraordinary
reasons for not doing so. (Penal Code § 1202.4(f).)
Existing law establishes the Victims Compensation and Government
Claims Board (VCGCB or board) to operate the California Victim
Compensation Program (CalVCP). (Gov. Code
§§ 13950 et. seq.)
Existing law provides than an application for compensation shall
be filed with VCGCB in the manner determined by the board.
(Gov. Code § 13952, subd.(a).)
Existing law states that except as provided by specified
sections of the Government Code, a person shall be eligible for
compensation when all of the following requirements are met
(Gov. Code § 13955):
The person from whom compensation is being sought who is
any of the following; a victim; a derivative victim; or, a
person who is entitled to reimbursement for funeral, burial
or crime scene clean-up expenses pursuant to specified
sections of the Government Code.
Either of the following conditions is met: The crime
occurred within California, whether or not the victim is a
resident of California. This only applies when the VCGCB
determines that there are federal funds available to the
state for the compensation of crime victims.
Whether or not the crime occurred within the State of
California, the victim was any of the following: A
California resident; a member of the military stationed in
California; or, a family member living with a member of the
military stationed in California.
If compensation is being sought for a derivative victim,
the derivative victim is a resident of California, or the
resident of another state who is any of the following: At
the time of the crimes was the parent, grandparent,
sibling, spouse, child or grandchild of the victim; at the
time of the crime was living in the household of the
victim; at the time of the crime was a person who had
previously lived in the house of the victim for a person of
not less than two years in a relationship substantially
similar to a previously listed relationship;
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Another family member of the victim including, but not
limited to, the victim's fiancé or fiancée, and who
witnessed the crime; or, is the primary caretaker of a
minor victim, but was not the primary caretaker at the time
of the crime.
Existing law authorizes VCGCB to reimburse for pecuniary loss
for the following types of losses (Gov. Code § 13957, subd.
(a)):
The amount of medical or medical-related expenses
incurred by the victim, subject to specified limitations;
The amount of out-patient psychiatric, psychological or
other mental health counseling-related expenses incurred by
the victim, as specified, including peer counseling
services provided by a rape crisis center;
The expenses of non-medical remedial care and treatment
rendered in accordance with a religious method of healing
recognized by state law;
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 injury or the victim's
death, subject to specified limitations;
Cash payment to, or on behalf of, the victim for job
retraining or similar employment-oriented services;
The expense of installing or increasing residential
security, not to exceed $1,000, with respect to a crime
that occurred in the victim's residence, upon verification
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;
The expense of renovating or retrofitting a victim's
residence or a vehicle to make them accessible or
operational, if it is medically necessary; and,
Expenses incurred in relocating, as specified, if the
expenses are determined by law enforcement to be necessary
for the personal safety or by a mental health treatment
provider to be necessary for the emotional well-being of
the victim.
Existing law limits the total award to or on behalf of each
victim to $35,000, except that this amount may be increased to
$70,000 if federal funds for that increase are available. (Gov.
Code § 13957, subd. (b).)
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Existing law states that an application shall be denied if VCGCB
finds that the victim or derivative victim failed to cooperate
reasonably with law enforcement. However, in determining
whether cooperation was reasonable, VCGCB shall consider the
victim's or derivative victim's age, physical condition, and
psychological state, cultural or linguistic barriers and
compelling
health and safety concerns. These concerns include but not
limited to, reasonable fear of retaliation or harm jeopardizing
the well-being of the victim, victim's family, derivative victim
or derivative victim's family. (Gov. Code § 13956, subd.
(b)(1).)
Existing law provides that a domestic violence claim may not be
denied solely because the victim did not make a police report.
The board shall adopt guidelines to consider and approve
domestic violence claims based on evidence other than a police
report. The evidence may include, but is not limited to,
relevant medical or mental health records, or the fact that the
victim has obtained a temporary or permanent restraining order.
(Gov. Code § 13956, subd. (b)(2).)
Existing law states that an application for a claim based on
human trafficking, as defined, of the Penal Code may not be
denied solely because no police report was made by the victim.
VCGCB 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, has
occurred. That evidence may include any reliable corroborating
information approved by the board, including, but not limited
to, the following:
A Law Enforcement Agency Endorsement was issued, as
specified;
A human trafficking caseworker has attested by affidavit
that the individual was a victim of human trafficking.
(Gov. Code § 13956, subd. (b)(3)):
Existing law provides that a victim of violent crime who has
been convicted of a felony may not receive compensation until
released from parole or probation. Victims who are not felons
have priority for compensation ahead of felons. (Gov. Code §
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13956, subd. (d).)
Existing law provides that the board may deny a claim in whole
or part if the claimant, or the victim of the crime for which a
derivative victims seeks compensation, was involved in the
events leading to the crime for which compensation is sought.
(Gov. Code § 13956, subd. (c).)
Existing law provides that the board shall approve or deny
applications within an average of 90 calendar days and no later
than 180 from "of acceptance" of the application by the board or
victim center.
The board shall report quarterly to the Legislature
until it has met the time requirements for two consecutive
quarters.
If the board does not approve or deny a claim within
"180 days of the date it is accepted," the board is advise
the applicant in writing of the reasons for the failure to
rule on the application. (Gov. Code § 13958.)
Existing law includes standards and consideration by the court
in granting a motion for continuance of a criminal trial,
including direction and guidance as to what constitutes good
cause for a continuance. (Pen. Code § 1050.)
This bill provides that the board shall not require a claimant
to submit documentation from the IRS, the Franchise Tax Board,
or the State Board of Equalization.
This bill requires that all correspondence from the board to an
applicant must be in English, Spanish and Chinese.
This bill provides that an adult who witnesses a crime is
eligible for reimbursement for counseling.
This bill provides that if the victim is a minor, the board
shall not deny a claim because the minor did not cooperate with
law enforcement.
This bill provides that a crime victim who has been convicted of
a felony is entitled to compensation for mental health
counseling, regardless of whether he or she has been released
from probation or parole.
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This bill provides that a victim of financial exploitation by a
caretaker or relative of a person 65 years of age or older,
where there is a reasonable fear of continued exploitation is
eligible for counseling.
This bill provides that an eligible claimant shall be granted
reimbursement for burial expenses in the amount of $7,500,
rather than reimbursement not exceeding $7,500.
This bill requires the board to approve or deny an application
within 90 days, not within an average of 90 days, but no later
than 180 days.<2>
This bill requires the board to allow a claimant to be
accompanied and supported by an animal in a hearing to contest a
staff recommendation that a claim be denied.
This bill provides that good cause for continuance of a criminal
trial where a witness was previously a victim of elder abuse.
This bill provides that a witness in a hearing to determine
restitution after conviction in a criminal case, including
modification of an existing order, may testify by live audio and
video transmission.
This bill provides that if a person, pursuant to Penal Code
Section 1203.4<3>, has been granted dismissal of a conviction,
or has been allowed to withdraw a guilty plea, the person is not
relieved of the duty to pay a direct restitution order or a
restitution fine.
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<2> Existing law requires the board to report quarterly to the
Legislature until it has met the time requirements for two
consecutive quarters. This bill retains the reporting
requirement. (Gov. Code § 13958.)
<3> This is commonly called "expungement," although the
conviction is not truly expunged, Numerous consequences still
flow from the conviction after relief has been granted under
Section 1203.4. For example, a person convicted of a felony may
not own a firearm and the conviction must be disclosed in
connection with various applications for government employment
and licensure.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
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to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
In 2004, a National Institute of Justice report
estimated that the annual nationwide costs of crime
are $105 billion in medical expenses, lost earnings,
and victims' services costs. When factoring in usual
court-awarded amounts for pain and suffering as well
as reduced quality of life, those costs explode to
$450 billion. Ensuring that crime victims are
monetarily compensated for what perpetrators do to
them is not only sound economic policy, but also
morally sound.
In March 2015, the Legislative Analyst's Office
released a report outlining ongoing issues with the
Victim Compensation and Government Claims Board
(VCGCB) and recommended that it be drastically
reorganized. But this was not the first time a state
agency noted that there were problems with the Board.
In 2008, the California State Auditor released a
report criticizing the Board. The Auditor noted that
frequently, the Board took longer than the statutorily
required 90 day time period to disburse payments to
victims. In one instance, the Board did not disburse
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payment until 255 days after receiving the victim's
application. This delay in disbursing payment
persists 7 years after the Auditor's report was
released.
In addition, the Board communicates with applicants
solely in written English. Applicants who do not speak
English or are illiterate are unable to respond to
Board requests, for instance, for more information on
their application. This lack of communication
accommodation also adds to application processing
time.
Over half the time, for an application was denied, the
reason stated was the applicant did not "cooperate"
with law police because he or she failed to file a
police report. This requirement, in particular,
disproportionately affects minors. Often, an applicant
who is a minor does not file a police report with good
reason: in many of the cases, the applicant either did
so to avoid retaliation by the perpetrator, or was
suffering from post-traumatic stress because of the
crime.
In addition, under current law adult witnesses to a
crime are not entitled to compensation. Even though a
witness may not have been a crime victim per se, the
trauma of having to witness and experience the
crime-especially if it involves sexual assault or
homicide-can be extreme. For instance, an individual
may be witness to a gruesome drive-by shooting which
results in a death, but not be entitled to
compensation because he or she was not the victim.
Current law also does not reflect current funeral
costs. Under the Board's current regulations, a
victim's family is entitled to up to $5000 for funeral
expenses. However, the average funeral now costs
between $7000 and $1000, which would force a victim's
family to pay for a large sum of the costs.
2. Purpose and History of the Victims of Crime Program (VCP)
The victims' compensation program was created in 1965, the first
such program in the country. VCGCB provides compensation for
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victims of violent crime. It reimburses eligible victims for
many crime-related expenses. Funding for the board comes from
restitution fines and penalty assessments paid by criminal
offenders, as well as federal matching funds.
The other core function of the board is to review claims against
the state and request payment of claims by the Legislature in
annual legislation. A person must present a claim for damages
against the state to the board before filing a lawsuit.
3. Audit of the VCP
The Bureau of State Audit (BSA) report in 2008 included the
following highlights:
From fiscal years 2001-02 through 2004-05, program
compensation payments decreased from $123.9 million to
$61.6 million - a 50 percent decline. Despite the
significant decline in payments, the costs to support the
program increased.
Administrative costs make up a significant portion of
the Restitution Fund disbursements - ranging from 26
percent to 42 percent annually.
The program did not always process applications and
bills as promptly or efficiently as it could have. Board
staff took longer than 180 days to process applications in
two instances out of 49, and longer than 90 days to pay
bills for 23 of 77 paid bills.
The board did not adequately investigate alternative
sources of funding for victim reimbursement, such as
insurance and public aid.
The program's numerous problems with the transition to a
new application and bill processing system led to a
reported increase in complaints regarding delays in
processing applications and bills.
Some payments in CaRES appeared to be erroneous.
Although board staff provided explanations for the
erroneous payments, the fact that they were unaware of
these items indicated an absence of controls that would
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prevent erroneous payments.
The board lacks the necessary system documentation for
CaRES.
There are no benchmarks, performance measures, or formal
written procedures for workload management.
In 2010, BSA found that the program had partially corrected five
of the problems noted in the audit and corrected five others.
The BSA urged the board to continue correcting the problems
noted in the report. For example:
The board reduced administrative costs, but processing
times for claims had increased.
The board increased collections, but it had not
determined whether outreach programs had been successful
and satisfaction with the program had increased.
The board implemented better training program for
employees who examined claims submitted by crime victims.
The board developed an inventory monitoring system and
set performance benchmarks. The monitoring should improve
identification and understanding of eligibility
requirements.
Board training does include an emphasis on alternative
funding sources.
The board did complete a chapter on appeals of denials
in its manual.
The board did improve its use of the CaRES computer
system. However, claims were still more quickly processed
in the local agencies with which the board contracts.
It appears that the BSA has not issued a progress report or
update on the program since 2010.
4. Legislative Analyst's Report
As noted in the author's statement, the Legislative Analyst
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issued a report on the board. LAO did recommend major changes
to the entire program. At this point, a bill has not been
introduced to implement the LAO recommendations. It does appear
that changes made in this bill to the existing operation of the
program could be integrated into any re-organization of the
board and its functions.
5. Related Bills
AB 1140 (Bonta) and SB 556 (DeLeon), which is on consent before
the committee, both propose changes related to victim
compensation and the board's operations.
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