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