Amended in Senate April 29, 2015

Senate Bill No. 651

Introduced by Senator Leyva

February 27, 2015

An act to amend Section 730.6 of the Welfare and Institutions Code, relating to begin delete juveniles, making an appropriation therefor. end delete begin insert juveniles. end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 651, as amended, Leyva. Juvenile conduct: victims.

Existing law provides that a minor who violates a criminal law may be adjudged to be a ward of the court. Existing law generally requires that the minor pay a restitution fine to be deposited into the Restitution Fund and restitution to any victim of his or her conduct. Existing law defines a victim to include the immediate surviving family of the actual victim and governmental entities, as specified.

This bill would expand the definition of victim to include a corporation, estate, or other legal or commercial entity when that entity is a direct victim of a crime. The bill would also expand the definition of victim to include a person who has sustained economic loss as a result of a crime and who satisfies specified conditions. begin delete To the extent this bill would result in payment out of the Restitution Fund, this bill would make an appropriation. end delete

Vote:  begin delete ²⁄₃ end delete begin insert majority end insert . Appropriation:  begin delete yes end delete begin insert no end insert . Fiscal committee:  begin delete yes end delete begin insert no end insert . State-mandated local program: no.

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

SECTION 1.  

Section 730.6 of the Welfare and Institutions
Code is amended to read:

730.6.  

(a) (1) It is the intent of the Legislature that a victim
of conduct for which a minor is found to be a person described in
Section 602 who incurs an economic loss as a result of the minor’s
conduct shall receive restitution directly from that minor.

(2) Upon a minor being found to be a person described in
Section 602, the court shall consider levying a fine in accordance
with Section 730.5. In addition, the court shall order the minor to
pay, in addition to any other penalty provided or imposed under
the law, 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 (h).

(b) If a minor is found to be a person described in Section 602,
the court shall impose a separate and additional restitution fine.
The restitution fine shall be set at the discretion of the court and
commensurate with the seriousness of the offense as follows:

(1) If the minor is found to be a person described in Section 602
by reason of the commission of one or more felony offenses, the
restitution fine shall not be less than one hundred dollars ($100)
and not more than one thousand dollars ($1,000). A separate
hearing for the fine shall not be required.

(2) If the minor is found to be a person described in Section 602
by reason of the commission of one or more misdemeanor offenses,
the restitution fine shall not exceed one hundred dollars ($100). A
separate hearing for the fine shall not be required.

(c) The restitution fine shall be in addition to any other
disposition or fine imposed and shall be imposed regardless of the
minor’s inability to pay. This fine shall be deposited in the
Restitution Fund.

(d) (1) In setting the amount of the fine pursuant to
subparagraph (A) of paragraph (2) of subdivision (a), the court
shall consider any relevant factors including, but not limited to,
the minor’s ability to pay, the seriousness and gravity of the offense
and the circumstances of its commission, any economic gain
derived by the minor as a result of the offense, and the extent to
which others suffered losses as a result of the offense. The 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 offense.

(2) The consideration of a minor’s ability to pay may include
his or her future earning capacity. A minor shall bear the burden
of demonstrating a lack of his or her ability to pay.

(e) Express findings of the court as to the factors bearing on the
amount of the fine shall not be required.

(f) Except as provided in subdivision (g), under no circumstances
shall the court fail to impose the separate and additional restitution
fine required by subparagraph (A) of paragraph (2) of subdivision
(a). This fine shall not be subject to penalty assessments pursuant
to Section 1464 of the Penal Code.

(g) (1) In a case in which the minor is a person described in
Section 602 by reason of having committed a felony offense, if
the court finds that there are compelling and extraordinary reasons,
the court may waive imposition of the restitution fine required by
subparagraph (A) of paragraph (2) of subdivision (a). If a waiver
is granted, the court shall state on the record all reasons supporting
the waiver.

(2) If the minor is a person described in subdivision (a) of
Section 241.1, the court shall waive imposition of the restitution
fine required by subparagraph (A) of paragraph (2) of subdivision
(a).

(h) (1) Restitution ordered pursuant to subparagraph (B) of
paragraph (2) of subdivision (a) shall be imposed in the amount
of the losses, as determined. 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 at any time during the term of the
commitment or probation. The court shall order full restitution
unless it finds compelling and extraordinary reasons for not doing
so, and states them on the record. A minor’s inability to pay shall
not be considered a compelling or extraordinary reason not to
impose a restitution order, nor shall inability to pay be a
consideration in determining the amount of the restitution order.
A restitution order pursuant to subparagraph (B) of paragraph (2)
of subdivision (a), to the extent possible, shall identify each victim,
unless the court for good cause finds that the order should not
identify a victim or victims, and the amount of each victim’s loss
to which it pertains, and shall be of a dollar amount sufficient to
fully reimburse the victim or victims for all determined economic
losses incurred as the result of the minor’s conduct for which the
minor was found to be a person described in Section 602, including
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) 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 any commission income as well
as any 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.

(D) 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 any commission
income as well as any 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.

(2) A minor shall have 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 minor. 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 hearing on the
motion. If the amount of victim restitution is not known at the time
of disposition, the court order shall identify the victim or victims,
unless the court finds for good cause that the order should not
identify a victim or victims, and state that the amount of restitution
for each victim is to be determined. If feasible, the court shall also
identify on the court order, any cooffenders who are jointly and
severally liable for victim restitution.

(i) A restitution order imposed pursuant to subparagraph (B) of
paragraph (2) of subdivision (a) shall identify the losses to which
it pertains, and shall be enforceable as a civil judgment pursuant
to subdivision (r). The making of a restitution order pursuant to
this subdivision shall not affect the right of a victim to recovery
from the Restitution Fund in the manner provided elsewhere, 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 minor or the minor’s parent or guardian arising out of the
offense for which the minor was found to be a person described
in Section 602. Restitution imposed shall be ordered to be made
to the Restitution Fund to the extent that the victim, as defined in
subdivision (j), has received assistance from the Victims of Crime
Program pursuant to Article 5 (commencing with Section 13959)
of Chapter 5 of Part 4 of Division 3 of Title 2 of the Government
Code.

(j) For purposes of this section, “victim” shall include:

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

(2) 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 of the Penal Code, 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.

(3) 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.

(4) 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.

begin delete

(5) 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.

end delete

(k) This section shall not prevent a court from ordering
restitution to 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 an offense. If the direct victim
is a group home or other facility licensed to provide residential
care in which the minor was placed as a dependent or ward of the
court, or an employee thereof, restitution shall be limited to
out-of-pocket expenses that are not covered by insurance and that
are paid by the facility or employee.

(l) Upon a minor being found to be a person described in Section
602, the court shall require, as a condition of probation, the
payment of restitution fines and orders imposed under this section.
Any portion of a restitution order that remains unsatisfied after a
minor is no longer on probation shall continue to be enforceable
by a victim pursuant to subdivision (r) until the obligation is
satisfied in full.

(m) Probation shall not be revoked for failure of a person to
make restitution pursuant to this section as a condition of probation
unless the court determines that the person has willfully failed to
pay or failed to make sufficient bona fide efforts to legally acquire
the resources to pay.

(n) If the court finds and states on the record compelling and
extraordinary reasons why restitution should not be required as
provided in paragraph (2) of subdivision (a), the court shall order,
as a condition of probation, that the minor perform specified
community service.

(o) The court may avoid ordering community service as a
condition of probation only if it finds and states on the record
compelling and extraordinary reasons not to order community
service in addition to the finding that restitution pursuant to
paragraph (2) of subdivision (a) should not be required.

(p) If a minor is committed to the Division of Juvenile Facilities,
Department of Corrections and Rehabilitation, the court shall order
restitution to be paid to the victim or victims, if any. Payment of
restitution to the victim or victims pursuant to this subdivision
shall take priority in time over payment of any other restitution
fine imposed pursuant to this section.

(q) At its discretion, the board of supervisors of any 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.

(r) If the judgment is for a restitution fine ordered pursuant to
subparagraph (A) of paragraph (2) of subdivision (a), or a
restitution order imposed pursuant to subparagraph (B) of
paragraph (2) of subdivision (a), the judgment may be enforced
in the manner provided in Section 1214 of the Penal Code.