BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 651| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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: SB 651 Page 2 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 SB 651 Page 3 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, SB 651 Page 4 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: SB 651 Page 5 "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 SB 651 Page 6 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 SB 651 Page 7 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 SB 651 Page 8 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 SB 651 Page 9 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 **** SB 651 Page 10