BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 651


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          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  








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          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.










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          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).)










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          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,  








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               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  








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               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  








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            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,  








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            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  








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            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  








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            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.








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          "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








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          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









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