BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 651|
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UNFINISHED BUSINESS
Bill No: SB 651
Author: Leyva (D)
Amended: 6/23/15
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/21/15
AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone
SENATE FLOOR: 36-0, 5/18/15 (Consent)
AYES: Allen, Anderson, Bates, Beall, Block, Cannella, De León,
Fuller, Gaines, Galgiani, Hancock, Hernandez, Hertzberg, Hill,
Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire,
Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen,
Nielsen, Pan, Roth, Runner, Stone, Vidak, Wieckowski, Wolk
NO VOTE RECORDED: Berryhill, Hall, Pavley
ASSEMBLY FLOOR: 74-0, 6/29/15 - See last page for vote
SUBJECT: Juvenile conduct: victims
SOURCE: Crime Victims Action Alliance (co-source)
Los Angeles County District Attorney's Office
(co-source)
DIGEST: This bill conforms the definition of "victim" for
purposes of restitution in juvenile delinquency proceedings to
the definition of "victim" applicable in adult criminal
restitution proceedings.
Assembly Amendments strike provisions in the existing juvenile
court restitution provisions that are redundant of the more
comprehensive provision in this bill.
ANALYSIS:
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Existing law:
1)Provides in the California Constitution 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. (Cal. Const. Art. 1 § 28, subd.
(b)(13)(A)-(C).)
2)Defines, in the California Constitution, a victim 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 term 'victim'
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), italics added.)
3)Provides for restitution orders in criminal convictions -
enforceable as a civil judgment - to ensure that a victim of a
crime who incurs any economic loss shall receive restitution
directly from any defendant convicted of that crime. If a
restitution order is made, the defendant has the right to a
hearing before the court to dispute the determination of the
amount of the order. A restitution order may be modified upon
motion of the district attorney, the victim or victims, or the
defendant. (Pen. Code § 1202.4, subds. (f) and (i).)
4)Provides that a restitution order shall be prepared by the
court and identify each victim and each loss. (Pen. Code §
1202.4, subd. (f)(3).)
5)Requires who are found in a juvenile delinquency matter must
pay victim restitution and a victim restitution fine. (Welf.
and Inst. Code § 730.6.)
6)Defines a victim for purposes of adult criminal sentencing in
a comprehensive manner. The definition includes the
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following:
a) The immediate surviving family of the actual victim.
b) A corporation, other specified commercial or legal
entity, a government or governmental subdivision, agency,
or instrumentality, when such an entity is a direct victim
of a crime.
c) A person who has sustained economic loss from a crime
and who, at the time of the crime, had the status or
identity of one of the following:
i) The parent, grandparent, sibling, spouse, child, or
grandchild of the victim One who living in the household
of the victim;
ii) One 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 familial
relationship;
iii) A more broadly defined family member of the victim
who witnessed the crime, such as the victim's fiancé or
fiancé;
iv) The primary caretaker of a minor victim;
v) A person eligible to receive assistance from the
Restitution Fund;
vi) A governmental entity that is responsible for
repairing, replacing, or restoring public or private
owned property that has been defaced with graffiti or
other inscribed material, as specified. (Pen. Code §
1202.4, subd. (k).)
7)Defines a victim for purposes of restitution in a juvenile
case to include:
a) The immediate surviving family of the actual victim;
b) A governmental entity that is responsible for repairing,
replacing, or restoring public or private owned property
that has been defaced with graffiti or other inscribed
material, as specified. (Welf. and Inst. Code § 730.6,
subd. (j).)
8)Provides in applicable appellate decisions that a juvenile
court has the authority to issue a broad restitution order,
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consistent with the rehabilitative purposes of the juvenile
court and the broad definition of a victim in the California
Constitution (In re Alexander A. (2011) 192 Cal.App.4th 847,
854-855; In re Scott H. (2013) 221 Cal.App.4th 515, 522.)
This bill adds the following to the definition of a "victim" for
purposes of the restitution statute applicable 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.
Background
Constitutionally Mandated Right to Victim Restitution. The
right of a victim to restitution from the perpetrator of a crime
that caused the victim suffer a loss became a constitutional
right when adopted as part of Proposition 8 in 1982.
Proposition 8 added article I, section 28, subdivision (b), to
the California Constitution, and provided:
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"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. Concerning restitution, the initiative made 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. ( 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, 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
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constitutional definition and is broader in its specific
provision.. (See California Judges Benchguides, Restitution,
revised 2013, §§ 83.53 & 83.54.) 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 specifically broader, statutory definition
of a victim for purposes of restitution in juvenile cases.
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 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 tranfsferred 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 Penal Code section 1202.4 - the
restitution statute that applies in adult criminal cases - to
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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.)
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/30/15)
Crime Victims Action Alliance (co-source)
Los Angeles County District Attorney's Office (co-source)
AFSCME
AFSCME, Local 685
Association of Deputy District Attorneys
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
Los Angeles County Probation Officers Union
Los Angeles Police Protective League
Riverside Sheriffs Association
OPPOSITION: (Verified6/30/15)
Youth Law Center
ARGUMENTS IN SUPPORT: The Los Angeles County District
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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 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."
ARGUMENTS 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
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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 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
ASSEMBLY FLOOR: 74-0, 6/29/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gomez, Gonzalez, Gordon, Gray,
Grove, Hadley, Harper, Holden, Irwin, Jones, Jones-Sawyer,
Kim, Lackey, Levine, Linder, Lopez, Maienschein, Mathis,
Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte,
Olsen, Patterson, Quirk, Rendon, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Gipson, Roger Hernández, Low, O'Donnell,
Perea, Ridley-Thomas
Prepared by:Jerome McGuire / PUB. S. /
7/1/15 11:49:56
**** END ****
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