BILL ANALYSIS Ó SB 651 Page 1 Date of Hearing: June 16, 2015 Counsel: Sandy Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair SB 651(Leyva) - As Amended April 29, 2015 As Proposed to be Amended in Committee SUMMARY: Conforms the definition of "victim" for purposes of restitution in juvenile delinquency proceedings to the definition of "victim" applicable in adult criminal proceedings. Specifically, this bill: Adds the following to the definition of a "victim" for purposes of the restitution statute applicable SB 651 Page 2 in juvenile dependency proceedings: 1)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; and 2)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 above; d) Is another family member of the victim, including, but not limited to, the victim's fiancé or fiancée, and who witnessed the crime; or, e) Is the primary caretaker of a minor victim. SB 651 Page 3 EXISTING LAW: 1)States that it is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. (Cal. Const., art. I, § 28, subd. (b)(13)(A).) 2)Provides that restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss. (Cal. Const., art. I, § 28, subd. (b)(13)(B).) 3)Defines "victim" for purposes of the Victim's Bill of Rights as "a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act." The definition "also includes the person's spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is deceased, a minor, or physically or psychologically incapacitated." (Cal. Const., art. I, § 28, subd. (e).) 4)Requires victim restitution from adult criminal defendants who have been sentenced by the court in every case in which a victim has suffered an economic loss as a result of the defendant's conduct. (Pen. Code, § 1202.4, subd. (f).) SB 651 Page 4 5)Provides for victim restitution from minors who have been found by the juvenile court to have committed a crime. (Welf. & Inst. Code, § 730.6, subds. (a)(2)(B) & (h).) 6)Creates a rebuttable presumption that a parent who has legal custody of a minor is jointly and severally liable with the minor for the amount of restitution, fines, and penalty assessments. (Welf. & Inst. Code, § 730.7, subd. (a).) 7)States that a "victim" for purposes of restitution in a juvenile delinquency proceeding includes the following (in addition to the actual victim): a) The immediate surviving family of the actual victim; and b) Any 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 and that has sustained an economic loss as the result of specified criminal violations. (Welf. & Inst. Code, § 730.6, subd. (j).) 8)States that a victim for purposes of restitution in adult criminal proceedings includes the following: a) The immediate surviving family of the actual victim; b) A corporation, business trust, estate, trust, partnership, association, joint venture, government, SB 651 Page 5 governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime; c) A person who has sustained economic loss as the result of a crime and who satisfies any of the following conditions: i) At the time of the crime was the parent, grandparent, sibling, spouse, child, or grandchild of the victim; ii) At the time of the crime was living in the household of the victim; iii) 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 an immediate family member; iv) Is another family member of the victim, including, but not limited to, the victim's fiance or fiancee, and who witnessed the crime; or v) Is the primary caretaker of a minor victim; d) A person who is eligible to receive assistance from the SB 651 Page 6 Restitution Fund; and e) 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, and that has sustained an economic loss as the result of specified criminal violations. (Pen. Code, § 1202.4, subd. (k).) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "Senate Bill 651 expands the definition of a victim within the Welfare and Institutions Code so that it includes family members, guardians and significant others as 'derivative' victims of a crime committed by a minor. The changes in the definition would match the language in the Penal Code. "Under the revised definition, direct and derivative victims are eligible for compensation for out-of-pocket costs that resulted from a crime committed against them by a minor. No victim should ever be in a position to not be eligible for restitution simply because of an inconsistency in state law." 2)Constitutionally Protected Right to Victim Restitution: The right of a victim to restitution from the person convicted of a crime from which the victim suffers a loss as result of the SB 651 Page 7 criminal activity became a constitutional right when adopted by vote of the people in June 1982 as part of Proposition 8. Proposition 8 added article I, section 28, subdivision (b), to the California Constitution, and provided: "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. "Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section." The Proposition was not self-executing, but rather directed the Legislature to adopt implementing legislation. (People v. Vega-Hernández (1986) 179 Cal.App.3d 1084.) In response, the Legislature enacted Penal Code sections 1202.4 and 1203.04 (repealed section related to restitution as condition of probation). (People v. Ortiz (1997) 53 Cal.App.4th 791, 795, fn. 3.) The constitutional provisions regarding restitution were amended by the voters again in 2008, when they approved Proposition 9, the Victims' Bill of Rights Act of 2008, also known as Marsy's Law. The amendments, among other things, make clear that a victim is entitled to restitution, expanded the definition of a victim to include a representative of a deceased victim, and gave that representative the ability to enforce a victim's right. (See People v. Runyan (2012) 54 Cal.4th 849, 858-859.) The current definition of a "victim" under the California Constitution includes the following: a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted com-mission of a crime or delinquent act; the person's spouse, parents, SB 651 Page 8 children, siblings, or guardian; and a lawful representative of a crime victim who is deceased, a minor, or physically or psychologically incapacitated. (Cal. Const. art I, § 28(e).) The term "victim" excludes a person in custody for an offense, the accused, and a person whom the court finds would not act in the best interests of a minor victim. (Ibid.) The statutory definition of a "victim" differs from the constitutional definition and is broader. (See California Judges Benchguides, Restitution, revised 2013, §§ 83.53 & 83.54, http://www.vcgcb.ca.gov/docs/forms/victims/restitution/Benchgui de.pdf .) A "victim" under Penal Code section 1202.4 is any individual who has suffered economic loss as a result of the commission of a crime of which the defendant was convicted. (Pen. Code, §1202.4, subd. (a)(1).) A "victim" also includes: the immediate surviving family of the actual victim; a corporation and other specified legal, commercial, or government entities when the entity is a direct victim of a crime; other individuals who suffered economic loss and who satisfy certain familial or other close relationships with the direct victim, such as a primary caretaker or a minor victim, a fiancée, or present and former household members; a person eligible to receive assistance from the Restitution Fund; and a government entity responsible for repairing public or private property damaged by vandalism. (Pen. Code, §1202.4, subd. (k).) This bill adopts the broader, statutory definition of a victim for purposes of restitution in juvenile cases. 3)Recent Case Law: In In re Scott H. (2013) 221 Cal.App.4th 515, the Second District Court of Appeal held that in light of constitutional mandates, a victim's family members are included within the class of "victims" entitled to restitution in juvenile delinquency proceedings. Appellant, who was 17 years old when he committed a violation of lewd acts upon a child, appealed the trial court's order awarding restitution to the victim's family for mental health counseling. In the SB 651 Page 9 first appeal, the court held the victim's family members, as derivative victims, were not entitled to restitution under the language of Welfare and Institutions Code section 730.6, the statute governing the issue of restitution in delinquency cases. (Id. at pp. 517-518.) The California Supreme Court granted review on its own motion and transferred the case back to the Court of Appeal to reconsider the opinion in light of Proposition 9, Marsy's Law. (In re Scott H., supra, 221 Cal.App.4th at p. 518.) In its analysis, the appellate court noted that in 1999 and 2004 the Legislature amended the restitution state applicable in adult criminal cases, Penal Code section 1202.4, to include specified derivative victims; but the Legislature did not similarly amend section 730.6. (In re Scott H., supra, 221 Cal.App.4th at p. 521.) Despite this difference in statutory language, the California Constitution requires that section 730.6 be interpreted to include derivative victims. Article I, section 28 of the Constitution, as amended by Proposition 9, outlines victim's rights, including restitution, and more broadly defines "victim." (Id. at p. 522.) Moreover, the constitutional provisions specifically refer to juvenile delinquency proceedings. (Id. at p. 523.) Here, the victim's family members fall within the constitutional definition, despite the more restrictive language of section 730.6. The Court of Appeal held that to the extent section 730.6 conflicts with the Constitution, the constitutional provisions control. (Id. at p. 522.) 4)Argument in Support: The Los Angeles County District Attorney's Office, a co-sponsor of this bill, states, "Currently there are conflicting definitions of 'victim' in the Penal Code and the Welfare and Institutions Code. The Penal Code defines a 'victim' as the direct victim or a derivative victim (a parent, grandparent, siblings, spouse, child, or grandchild of the victim, or was at the time of the crime, living in the household of the victim). Under the Welfare and Institutions Code, a victim's immediate family SB 651 Page 10 members are not entitled to restitution for their out-of-pocket, crime related expenses because they do not fall within the section's code definition of 'victim.' ? "Because the Welfare and Institution Code definition of 'victim' does not mirror Penal Code definition of a 'victim,' a victim's immediate family, who suffered a loss as a result of the criminal activity of a minor, as opposed to an adult, may not be awarded restitution for out-of-pocket expenses incurred as a result of the direct victim's losses. (i.e. a mother of a minor victim may only be compensated for expenses she incurred paying for her child's mental health counseling, not her own.) "Since Welfare and Institutions Code Section 730.6(j) does not mirror Penal Code Section 1202.4(f), as it pertains to the definition of 'victim,' our office has had to rely on the court's interpretation of the statute, as opposed to its unambiguous language to obtain restitution orders on behalf of derivative victims simply because the offender is a minor as opposed to an adult." 5)Argument in Opposition: According to the Youth Law Center, "Because there are no limits on the amount of restitution that young people can be ordered to pay and because judges cannot consider a youth's ability to pay in determining what restitution to order, many young people leave the juvenile justice system with restitution debts so high that repaying them is a practical impossibility. "The purpose of restitution is three-fold: to aid in a young person's rehabilitation, to deter future delinquent behavior, and to make the victim whole. When a juvenile court orders restitution that is beyond a young person's ability to pay, none of these goals are achieved. The likelihood that a victim will be made whole is significantly diminished, and the young person is burdened with a debt that will make it more difficult to begin his or her life as a responsible and law-abiding member of the community. SB 651 Page 11 "SB 651 would impose a further burden on young people who are struggling to turn their lives around by greatly expanding the definition of victim to include a number of potential new restitution claimants. Such an expansion increases the odds that restitution will be ordered in an amount that is beyond a young person's ability to pay. We are particularly concerned that SB 651 expands the definition of victim to include a 'corporation, business trust, estate, partnership, association, joint venture, government, government subdivision, agency, or instrumentality, or any other legal or commercial entity.' Adding this large new category to the definition of victim will add significantly to the costs that are imposed on young people, adding a further barrier to rehabilitation." 6)Related Legislation: SB 456 (Block) makes an adult or juvenile offender convicted of making a criminal threat to discharge a firearm on campus liable for the reasonable costs of an emergency response by a public agency. SB 456 is pending hearing in this committee today. 7)Prior Legislation: AB 576 (Torres), Chapter 454, Statutes of 2009, expanded the definition of a "victim" for the purposes of restitution to include any governmental entity responsible for repairing, replacing or restoring public and privately owned property defaced with graffiti or other inscribed material, as specified, and has sustained economic loss as a result. REGISTERED SUPPORT / OPPOSITION: Support SB 651 Page 12 Los Angeles County District Attorney's Office (Co-Sponsor) Crime Victims Action Alliance (Co-Sponsor) American Federation of State, County and Municipal Employees Association for Los Angeles Deputy Sheriffs Association of Deputy District Attorneys California District Attorneys Association California Police Chiefs Association Los Angeles County Probation Officers Union Los Angeles Deputy Sheriffs Association Los Angeles Police Protective League Riverside Sheriffs Association Opposition California Public Defenders Association Youth Law Center Analysis Prepared by:Sandy Uribe / PUB. S. / (916) 319-3744 SB 651 Page 13