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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