BILL ANALYSIS                                                                                                                                                                                                    Ó




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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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