BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 519|
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THIRD READING
Bill No: SB 519
Author: Hancock (D), et al.
Amended: 6/2/15
Vote: 27
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/28/15
AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: 6-1, 5/28/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza
NOES: Nielsen
SUBJECT: Victims of crime
SOURCE: San Francisco District Attorney
DIGEST: This bill 1) prohibits the Victims Compensation and
Government Claims Board (VCGCB) from requiring a claimant to
submit documentation from the IRS, the Franchise Tax Board, or
the State Board of Equalization; 2) requires that all
correspondence from VCGCB to an applicant be in English,
Spanish, Mandarin and Cantonese Chinese, Vietnamese, Tagalog,
Korean, East Armenian, Russian, Arabic, Farsi, Mong, and Khmer;
3) prohibits denial of a minor's claim because the minor did not
cooperate with law enforcement; 4) 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; 5) prohibits VCGCB
from adopting regulations setting a maximum payment for funeral
and burial expenses less than $7,500; 6) requires VCGCB to
approve or deny an application within 90 days, not within an
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average of 90 days; 7) requires VCGCB to allow a claimant to be
accompanied by a support animal at a hearing to contest denial
of a claim; 8) provides that in a hearing to determine or modify
restitution in a criminal case, the victim may testify by
available two-way live audio and video transmission; and 9)
provides 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.
ANALYSIS:
Existing law:
1) Provides 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).)
2) 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 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).)
3) Establishes VCGCB to operate the California Victim
Compensation Program (CalVCP). (Gov. Code §§ 13950 et. seq.)
4) Provides than an application for compensation shall be filed
with VCGCB in the manner determined by VCGCB. (Gov. Code §
13952, subd.(a).)
5) States that except as provided by specified sections of the
Government Code, a person shall be eligible for compensation
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when all of the following requirements are met (Gov. Code §
13955):
a) 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.
b) 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 VCGCB
determines that there are federal funds available to the
state for the compensation of crime victims.
c) 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.
d) 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; and 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.
e) 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.
6) Authorizes VCGCB to reimburse for pecuniary loss for the
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following types of losses (Gov. Code § 13957, subd. (a)):
a) The amount of medical or medical-related expenses
incurred by the victim, subject to specified limitations;
b) 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;
c) The expenses of non-medical remedial care and
treatment rendered in accordance with a religious method
of healing recognized by state law;
d) 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;
e) Cash payment to, or on behalf of, the victim for job
retraining or similar employment-oriented services;
f) 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;
g) 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,
h) 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
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the victim.
1) 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).)
2) 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 are 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).)
3) Provides that a domestic violence claim may not be denied
solely because the victim did not make a police report.
VCGCB 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).)
4) 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 VCGCB 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 VCGCB, including, but
not limited to, the following:
a) A Law Enforcement Agency Endorsement was issued, as
specified;
b) A human trafficking caseworker has attested by
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affidavit that the individual was a victim of human
trafficking. (Gov. Code § 13956, subd. (b)(3)):
5) 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 § 13956, subd. (d).)
6) Provides that VCGCB 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).)
7) Provides that VCGCB shall approve or deny applications
within an average of 90 calendar days and no later than 180
from "of acceptance" of the application by VCGCB or victim
center.
a) VCGCB shall report quarterly to the Legislature until
it has met the time requirements for two consecutive
quarters.
b) If VCGCB does not approve or deny a claim within "180
days of the date it is accepted," VCGCB is advised the
applicant in writing of the reasons for the failure to
rule on the application. (Gov. Code § 13958.)
8) 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:
1) Provides that VCGCB shall not require a claimant to submit
documentation from the IRS, the Franchise Tax Board, or the
State Board of Equalization.
2) Requires that all correspondence from VCGCB to an applicant
must be in English, Spanish, Mandarin and Cantonese Chinese,
Vietnamese, Tagalog, Korean, East Armenian, Russian, Arabic,
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Farsi, Mong, and Khmer.
3) Provides that if the victim is a minor, VCGCB shall not deny
a claim because the minor did not cooperate with law
enforcement.
4) 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.
5) 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.
6) Prohibits VCGCB from adopting regulations setting maximum
reimbursement for funeral and burial expenses in an amount
less than $7,500.
7) Requires VCGCB to approve or deny an application within 90
days, not within an average of 90 days, but no later than 180
days.
8) Requires VCGCB 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.
9) Provides that good cause for continuance of a criminal trial
where a witness was previously a victim of elder abuse.
10) 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.
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11)Provides that if a person, pursuant to Penal Code Section
1203.4, 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.
Background
The victims' compensation program was created in 1965 - the
first such program in the country - and is part of VCGCB. The
program provides compensation for victims of violent crime.
Funding for the program comes from restitution fines and penalty
assessments paid by criminal offenders, as well as federal
matching funds. The other core function of VCGCB 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 VCGCB before filing a
lawsuit.
The Bureau of State Audit (BSA) report in 2008 included the
following highlights:
1)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.
2)Administrative costs make up a significant portion of the
Restitution Fund disbursements - ranging from 26 percent to 42
percent annually.
3)The program did not always process applications and bills as
promptly or efficiently as it could have. VCGCB 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.
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4)VCGCB did not adequately investigate alternative sources of
funding for victim reimbursement, such as insurance and public
aid.
5)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.
6)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 prevent erroneous payments.
7)VCGCB lacks the necessary system documentation for CaRES.
8)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 VCGCB to continue correcting the problems noted in
the report. For example:
1)VCGCB reduced administrative costs, but processing times for
claims had increased.
2)VCGCB increased collections, but it had not determined whether
outreach programs had been successful and satisfaction with
the program had increased.
3)VCGCB implemented better training program for employees who
examined claims submitted by crime victims.
4)VCGCB developed an inventory monitoring system and set
performance benchmarks. The monitoring should improve
identification and understanding of eligibility requirements.
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5)VCGCB training does include an emphasis on alternative funding
sources.
6)VCGCB did complete a chapter on appeals of denials in its
manual.
7)VCGCB 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.
The Legislative Analyst (LAO) recently issued a report that
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 VCGCB and its functions.
FISCAL EFFECT: Appropriation: Yes Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee:
Victim benefits: Major increase in CalVCP payments,
potentially in excess of $4 million (Special Fund) annually
due to the expanded eligibility criteria and revised payment
provisions of this bill.
VCGCB administration: One-time costs to VCGCB for resource
needs potentially in excess of $150,000 (Special Fund*) for
programming changes necessary to the automated claims
processing system. Ongoing increased administrative workload
for claims processing of increased applications.
Federal fund impact: Potential future increases in annual
federal Victims of Crime Act (VOCA) grant funds of 60 percent
reimbursement for state funds used to compensate victims to
the extent the annual cap on VOCA fund obligations is
adequately raised or removed. Additionally, VOCA grant awards
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are based on state expenditures from prior years, so any
potential increases to the VOCA grant award would not be
received until 2018-19.
SUPPORT: (Verified 6/1/15)
San Francisco District Attorney (source)
California Catholic Conference
Californians for Safety and Justice
Crime Victims United of California
Institute on Aging
Legal Services for Prisoners with Children
Santa Clara County District Attorney
OPPOSITION: (Verified 6/1/15)
None received
ARGUMENTS IN SUPPORT:
According to the author:
"In 2004, a National Institute of Justice report estimated
annual nationwide costs of crime at $105 billion in medical
expenses, lost earnings, and victims' services. Adding standard
amounts for pain and suffering and reduced quality of life,
those costs explode to $450 billion. Ensuring that crime
victims are 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 recommended
that the Victim Compensation and Government Claims Board (board)
be drastically reorganized. This was not the first time a state
agency identified problems with the board. In 2008, the
California State Auditor noted that frequently the board delayed
payments to victims beyond the required 90 day time. In one
instance, the board paid the victim 255 days after the
application was filed. Delays in disbursing payment persist
seven years after the Auditor's report was released.
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"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, including for more
information on their application. This lack of accommodation
adds to application processing time.
"Over 50% of denials are based on the applicant's failure to
'cooperate' with law enforcement, meaning the victim did not
file a police report. This requirement disproportionately
affects minors, as it is common for a minor to not file a police
report so to avoid retaliation or because he or she was
suffering from post-traumatic stress.
"Finally, the board's current regulations set maximum funeral
expenses at $5000, although the average funeral now costs
between $7000 and $10,000. This bill would prohibit board
regulations setting maximum funeral and burial expenses below
the statutory maximum of $7,500.
Prepared by:Jerome McGuire / PUB. S. /
6/2/15 22:16:54
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