Senate Bill No. 1054

Introduced by Senator Pavley

February 16, 2016

An act to amend Section 2085.5 of the Penal Code, and to amend Section 19280 of the Revenue and Taxation Code, relating to restitution orders.

LEGISLATIVE COUNSEL’S DIGEST

SB 1054, as introduced, Pavley. Restitution orders: collection.

(1) Existing law, when a prisoner is punished in a county jail for a felony, in any case in which the prisoner owes a restitution order, permits the agency designated by the board of supervisors in the county where the prisoner is incarcerated to deduct a minimum of 20% or the balance owing on the order amount, whichever is less, up to a maximum of 50% from the county jail equivalent of wages and trust account deposits of a prisoner for transfer to the California Victim Compensation and Government Claims Board. Existing law allows the agency to deduct and retain an administrative fee that totals 10% of any amount transferred to the board pursuant to these provisions. Existing law additionally allows the agency to charge a fee to cover the actual administrative cost of collection, not to exceed 10% of the total amount collected, upon release of the prisoner from custody.

This bill would instead allow the designated agency to charge an administrative fee to cover the actual administrative cost of collection, not to exceed 10% of the total amount collected pursuant to the above provisions. The bill would delete the authorization to charge a fee for the actual administrative cost of collection upon release of the prisoner from custody.

(2) Existing law, unless the victim of the crime notifies the Department of Corrections and Rehabilitation or county to the contrary, allows the department or county to refer a restitution order to the Franchise Tax Board for collection.

This bill would prohibit the department or county from referring the restitution order to the Franchise Tax Board if a county agency has been designated by the county board of supervisors to collect restitution from individuals who have been sentenced to a county jail for a felony, who are on mandatory supervision, or who are on postrelease community supervision, the designated county agency has an existing collection system and objects to collection by the board, and the designated county agency informs the department or county that it will collect the restitution order. If the crime victim entitled to restitution in the order notifies either the department or the designated county agency with regard to his or her preference of a collecting agency, the bill would require the collection to be performed in accordance with that preference.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 2085.5 of the Penal Code is amended to
read:

2085.5.  

(a) In any case in which a prisoner owes a restitution
fine imposed pursuant to subdivision (a) of Section 13967 of the
Government Code, as operative prior to September 29, 1994,
subdivision (b) of Section 730.6 of the Welfare and Institutions
Code, or subdivision (b) of Section 1202.4, the Secretary of the
Department of Corrections and Rehabilitation shall deduct a
minimum of 20 percent or the balance owing on the fine amount,
whichever is less, up to a maximum of 50 percent from the wages
and trust account deposits of a prisoner, unless prohibited by
federal law, and shall transfer that amount to the California Victim
Compensation and Government Claims Board for deposit in the
Restitution Fund in the State Treasury. The amount deducted shall
be credited against the amount owing on the fine. The sentencing
court shall be provided a record of the payments.

(b) (1)  begin delete When end delete begin insert If end insert begin insert end insert a prisoner is punished by imprisonment in a
county jail pursuant to subdivision (h) of Section 1170 begin delete , in any case
in which a prisoner end delete begin insert and end insert owes a restitution fine imposed pursuant
to subdivision (a) of Section 13967 of the Government Code, as
operative prior to September 29, 1994, subdivision (b) of Section
730.6 of the Welfare and Institutions Code, or subdivision (b) of
Section 1202.4, the agency designated by the board of supervisors
in the county where the prisoner is incarcerated is authorized to
deduct a minimum of 20 percent or the balance owing on the fine
amount, whichever is less, up to a maximum of 50 percent from
the county jail equivalent of wages and trust account deposits of
a prisoner, unless prohibited by federal law, and shall transfer that
amount to the California Victim Compensation and Government
Claims Board for deposit in the Restitution Fund in the State
Treasury. The amount deducted shall be credited against the
amount owing on the fine. The sentencing court shall be provided
a record of the payments.

(2) If the board of supervisors designates the county sheriff as
the collecting agency, the board of supervisors shall first obtain
the concurrence of the county sheriff.

(c) In any case in which a prisoner owes a restitution order
imposed pursuant to subdivision (c) of Section 13967 of the
Government Code, as operative prior to September 29, 1994,
subdivision (h) of Section 730.6 of the Welfare and Institutions
Code, or subdivision (f) of Section 1202.4, the Secretary of the
Department of Corrections and Rehabilitation shall deduct a
minimum of 20 percent or the balance owing on the order amount,
whichever is less, up to a maximum of 50 percent from the wages
and trust account deposits of a prisoner, unless prohibited by
federal law. The secretary shall transfer that amount to the
California Victim Compensation and Government Claims Board
for direct payment to the victim, or payment shall be made to the
Restitution Fund to the extent that the victim has received
assistance pursuant to that program. The sentencing court shall be
provided a record of the payments made to victims and of the
payments deposited to the Restitution Fund pursuant to this
subdivision.

(d)  begin delete When end delete begin insert If end insert a prisoner is punished by imprisonment in a county
jail pursuant to subdivision (h) of Section 1170 begin delete , in any case in
which a prisoner end delete begin insert and end insert owes a restitution order imposed pursuant
to subdivision (c) of Section 13967 of the Government Code, as
operative prior to September 29, 1994, subdivision (h) of Section
730.6 of the Welfare and Institutions Code, or subdivision (b) of
Section 1202.4, the agency designated by the board of supervisors
in the county where the prisoner is incarcerated is authorized to
deduct a minimum of 20 percent or the balance owing on the order
amount, whichever is less, up to a maximum of 50 percent from
the county jail equivalent of wages and trust account deposits of
a prisoner, unless prohibited by federal law. The agency shall
transfer that amount to the California Victim Compensation and
Government Claims Board for direct payment to the victim, or
payment shall be made to the Restitution Fund to the extent that
the victim has received assistance pursuant to that program, or
may pay the victim directly. The sentencing court shall be provided
a record of the payments made to the victims and of the payments
deposited to the Restitution Fund pursuant to this subdivision.

(e) The secretary shall deduct and retain from the wages and
trust account deposits of a prisoner, unless prohibited by federal
law, an administrative fee that totals 10 percent of any amount
transferred to the California Victim Compensation and Government
Claims Board pursuant to subdivision (a) or (c). The secretary
shall deduct and retain from any prisoner settlement or trial award,
an administrative fee that totals 5 percent of any amount paid from
the settlement or award to satisfy an outstanding restitution order
or fine pursuant to subdivision (n), unless prohibited by federal
law. The secretary shall deposit the administrative fee moneys in
a special deposit account for reimbursing administrative and
support costs of the restitution program of the Department of
Corrections and Rehabilitation. The secretary, at his or her
discretion, may retain any excess funds in the special deposit
account for future reimbursement of the department’s
administrative and support costs for the restitution program or may
transfer all or part of the excess funds for deposit in the Restitution
Fund.

(f)  begin delete When end delete begin insert If end insert a prisoner is punished by imprisonment in a county
jail pursuant to subdivision (h) of Section 1170, the agency
designated by the board of supervisors in the county where the
prisoner is incarcerated is authorized to deduct and retain from the
county jail equivalent of wages and trust account deposits of a
prisoner, unless prohibited by federal law, an administrative fee
begin delete that totals 10 percent of any amount transferred to the California
Victim Compensation and Government Claims Board end delete begin insert to cover the
actual administrative cost of collection, not to exceed 10 percent
of the total amount collected end insert pursuant to subdivision (b) or (d).
The agency is authorized to deduct and retain from a prisoner
settlement or trial award an administrative fee that totals 5 percent
of any amount paid from the settlement or award to satisfy an
outstanding restitution order or fine pursuant to subdivision (n),
unless prohibited by federal law. begin delete Upon release from custody
pursuant to subdivision (h) of Section 1170, the agency is
authorized to charge a fee to cover the actual administrative cost
of collection, not to exceed 10 percent of the total amount collected. end delete
The agency shall deposit the administrative fee moneys in a special
deposit account for reimbursing administrative and support costs
of the restitution program of the agency. The agency is authorized
to retain any excess funds in the special deposit account for future
reimbursement of the agency’s administrative and support costs
for the restitution program or may transfer all or part of the excess
funds for deposit in the Restitution Fund.

(g) In any case in which a parolee owes a restitution fine
imposed pursuant to subdivision (a) of Section 13967 of the
Government Code, as operative prior to September 29, 1994,
subdivision (b) of Section 730.6 of the Welfare and Institutions
Code, or subdivision (b) of Section 1202.4, the secretary, or, when
a prisoner is punished by imprisonment in a county jail pursuant
to subdivision (h) of Section 1170, the agency designated by the
board of supervisors in the county where the prisoner is
incarcerated, may collect from the parolee or, pursuant to Section
2085.6, from a person previously imprisoned in county jail any
moneys owing on the restitution fine amount, unless prohibited
by federal law. The secretary or the agency shall transfer that
amount to the California Victim Compensation and Government
Claims Board for deposit in the Restitution Fund in the State
Treasury. The amount deducted shall be credited against the
amount owing on the fine. The sentencing court shall be provided
a record of the payments.

(h) In any case in which a parolee owes a direct order of
restitution, imposed pursuant to subdivision (c) of Section 13967
of the Government Code, as operative prior to September 29, 1994,
subdivision (h) of Section 730.6 of the Welfare and Institutions
Code, or paragraph (3) of subdivision (a) of Section 1202.4, the
secretary, or, when a prisoner is punished by imprisonment in a
county jail pursuant to subdivision (h) of Section 1170, the agency
designated by the board of supervisors in the county where the
prisoner is incarcerated or a local collection program, may collect
from the parolee or, pursuant to Section 2085.6, from a person
previously imprisoned in county jail any moneys owing, unless
prohibited by federal law. The secretary or the agency shall transfer
that amount to the California Victim Compensation and
Government Claims Board for direct payment to the victim, or
payment shall be made to the Restitution Fund to the extent that
the victim has received assistance pursuant to that program, or the
agency may pay the victim directly. The sentencing court shall be
provided a record of the payments made by the offender pursuant
to this subdivision.

(i) The secretary, or, begin delete when end delete begin insert if end insert a prisoner is punished by
imprisonment in a county jail pursuant to subdivision (h) of Section
1170, the agency designated by the board of supervisors in the
county where the prisoner is incarcerated, may deduct and retain
from moneys collected from parolees or persons previously
imprisoned in county jail an administrative fee that totals 10 percent
of any amount transferred to the California Victim Compensation
and Government Claims Board pursuant to subdivision (g) or (h),
unless prohibited by federal law. The secretary shall deduct and
retain from any settlement or trial award of a parolee an
administrative fee that totals 5 percent of an amount paid from the
settlement or award to satisfy an outstanding restitution order or
fine pursuant to subdivision (n), unless prohibited by federal law.
The agency is authorized to deduct and retain from any settlement
or trial award of a person previously imprisoned in county jail an
administrative fee that totals 5 percent of any amount paid from
the settlement or award to satisfy an outstanding restitution order
or fine pursuant to subdivision (n). The secretary or the agency
shall deposit the administrative fee moneys in a special deposit
account for reimbursing administrative and support costs of the
restitution program of the Department of Corrections and
Rehabilitation or the agency, as applicable. The secretary, at his
or her discretion, or the agency may retain any excess funds in the
special deposit account for future reimbursement of the
department’s or agency’s administrative and support costs for the
restitution program or may transfer all or part of the excess funds
for deposit in the Restitution Fund.

(j)  begin delete When end delete begin insert If end insert a prisoner has both a restitution fine and a restitution
order from the sentencing court, the Department of Corrections
and Rehabilitation shall collect the restitution order first pursuant
to subdivision (c).

(k)  begin delete When end delete begin insert If end insert a prisoner is punished by imprisonment in a county
jail pursuant to subdivision (h) of Section 1170 and that prisoner
has both a restitution fine and a restitution order from the
sentencing court, if the agency designated by the board of
supervisors in the county where the prisoner is incarcerated collects
the fine and order, the agency shall collect the restitution order
first pursuant to subdivision (d).

(l)  begin delete When end delete begin insert If end insert a parolee has both a restitution fine and a restitution
order from the sentencing court, the Department of Corrections
and Rehabilitation, begin delete or, when end delete begin insert or if end insert the prisoner is punished by
imprisonment in a county jail pursuant to subdivision (h) of Section
1170, the agency designated by the board of supervisors in the
county where the prisoner is incarcerated, may collect the
restitution order first, pursuant to subdivision (h).

(m) If an inmate is housed at an institution that requires food
to be purchased from the institution canteen for unsupervised
overnight visits, and if the money for the purchase of this food is
received from funds other than the inmate’s wages, that money
shall be exempt from restitution deductions. This exemption shall
apply to the actual amount spent on food for the visit up to a
maximum of fifty dollars ($50) for visits that include the inmate
and one visitor, seventy dollars ($70) for visits that include the
inmate and two or three visitors, and eighty dollars ($80) for visits
that include the inmate and four or more visitors.

(n) Compensatory or punitive damages awarded by trial or
settlement to any inmate, parolee, person placed on postrelease
community supervision pursuant to Section 3451, or defendant on
mandatory supervision imposed pursuant to subparagraph (B) of
paragraph (5) of subdivision (h) of Section 1170, in connection
with a civil action brought against a federal, state, or local jail,
prison, or correctional facility, or any official or agent thereof,
shall be paid directly, after payment of reasonable attorney’s fees
and litigation costs approved by the court, to satisfy any
outstanding restitution orders or restitution fines against that
person. The balance of the award shall be forwarded to the payee
after full payment of all outstanding restitution orders and
restitution fines, subject to subdivisions (e) and (i). The Department
of Corrections and Rehabilitation shall make all reasonable efforts
to notify the victims of the crime for which that person was
convicted concerning the pending payment of any compensatory
or punitive damages. For any prisoner punished by imprisonment
in a county jail pursuant to subdivision (h) of Section 1170, the
agency is authorized to make all reasonable efforts to notify the
victims of the crime for which that person was convicted
concerning the pending payment of any compensatory or punitive
damages.

(o) (1) Amounts transferred to the California Victim
Compensation and Government Claims Board for payment of
direct orders of restitution shall be paid to the victim within 60
days from the date the restitution revenues are received by the
California Victim Compensation and Government Claims Board.
If the restitution payment to a victim is less than twenty-five dollars
($25), then payment need not be forwarded to that victim until the
payment reaches twenty-five dollars ($25) or when the victim
requests payment of the lesser amount.

(2) If a victim cannot be located, the restitution revenues
received by the California Victim Compensation and Government
Claims Board on behalf of the victim shall be held in trust in the
Restitution Fund until the end of the state fiscal year subsequent
to the state fiscal year in which the funds were deposited or until
the time that the victim has provided current address information,
whichever occurs sooner. Amounts remaining in trust at the end
of the specified period of time shall revert to the Restitution Fund.

(3) (A) A victim failing to provide a current address within the
period of time specified in paragraph (2) may provide
documentation to the Department of Corrections and Rehabilitation,
which shall verify that moneys were collected on behalf of the
victim. Upon receipt of that verified information from the
Department of Corrections and Rehabilitation, the California
Victim Compensation and Government Claims Board shall transmit
the restitution revenues to the victim in accordance with the
provisions of subdivision (c) or (h).

(B) A victim failing to provide a current address within the
period of time specified in paragraph (2) may provide
documentation to the agency designated by the board of supervisors
in the county where the prisoner punished by imprisonment in a
county jail pursuant to subdivision (h) of Section 1170 is
incarcerated, which may verify that moneys were collected on
behalf of the victim. Upon receipt of that verified information from
the agency, the California Victim Compensation and Government
Claims Board shall transmit the restitution revenues to the victim
in accordance with the provisions of subdivision (d) or (h).

SEC. 2.  

Section 19280 of the Revenue and Taxation Code is
amended to read:

19280.  

(a) (1)  begin insert (A) end insert begin insert   end insert Fines, state or local penalties, bail,
forfeitures, restitution fines, restitution orders, or any other amounts
imposed by a juvenile or superior court of the State of California
upon a person or any other entity that are due and payable in an
amount totaling no less than one hundred dollars ($100), in the
aggregate, for criminal offenses, including all offenses involving
a violation of the Vehicle Code, and any amounts due pursuant to
Section 903.1 of the Welfare and Institutions Code may, no sooner
than 90 days after payment of that amount becomes delinquent,
be referred by the juvenile or superior court, the county, or the
state to the Franchise Tax Board for collection under guidelines
prescribed by the Franchise Tax Board. begin delete Unless the victim of the
crime notifies the Department of Corrections and Rehabilitation
or county to the contrary, end delete begin insert Except as specified in subparagraph
(B), end insert the Department of Corrections and Rehabilitation or county
may refer a restitution order to the Franchise Tax Board, in
accordance with subparagraph (B) of paragraph (2), for any person
subject to the restitution order who is or has been under the
jurisdiction of the Department of Corrections and Rehabilitation
or county.

begin insert

(B) The Department of Corrections and Rehabilitation or county
shall not refer a restitution order to the Franchise Tax Board if a
county agency has been designated by the county board of
supervisors to collect restitution from individuals who (i) have
been sentenced to a county jail pursuant to subdivision (h) of
Section 1170 of the Penal Code, (ii) are on mandatory supervision
pursuant to paragraph (5) of subdivision (h) of Section 1170 of
the Penal Code, or (iii) are on postrelease community supervision
pursuant to Title 2.05 (commencing with Section 3450) of Part 3
of the Penal Code, the designated county agency has an existing
collection system and objects to collection by the Franchise Tax
Board, and the designated county agency informs the Department
of Corrections and Rehabilitation or county that it will collect the
restitution order. If the crime victim entitled to restitution in the
order notifies either the Department of Correction and
Rehabilitation or the designated county agency with regard to his
or her preference of a collecting agency, that preference shall be
honored and the collection shall be performed in accordance with
the preference of the victim.

end insert

(2) For purposes of this subdivision:

(A) The amounts referred by the juvenile or superior court, the
county, or the state under this section may include an administrative
fee and any amounts that a government entity may add to the
court-imposed obligation as a result of the underlying offense,
trial, or conviction. For purposes of this article, those amounts
shall be deemed to be imposed by the court.

(B) Restitution orders may be referred to the Franchise Tax
Board only by a government entity, as agreed upon by the
Franchise Tax Board, provided that all of the following apply:

(i) The government entity has the authority to collect on behalf
of the state or the victim.

(ii) The government entity shall be responsible for distributing
the restitution order collections, as appropriate.

(iii) The government entity shall ensure, in making the referrals
and distributions, that it coordinates with any other related
collection activities that may occur by superior courts, counties,
or other state agencies.

(iv) The government entity shall ensure compliance with laws
relating to the reimbursement of the State Restitution Fund.

(C) The Franchise Tax Board shall establish criteria for referral
that shall include setting forth a minimum dollar amount subject
to referral and collection.

(b) The Franchise Tax Board, in conjunction with the Judicial
Council, shall seek whatever additional resources are needed to
accept referrals from all 58 counties or superior courts.

(c) Upon written notice to the debtor from the Franchise Tax
Board, any amount referred to the Franchise Tax Board under
subdivision (a) and any interest thereon, including any interest on
the amount referred under subdivision (a) that accrued prior to the
date of referral, shall be treated as final and due and payable to the
State of California, and shall be collected from the debtor by the
Franchise Tax Board in any manner authorized under the law for
collection of a delinquent personal income tax liability, including,
but not limited to, issuance of an order and levy under Article 4
(commencing with Section 706.070) of Chapter 5 of Division 2
of Title 9 of Part 2 of the Code of Civil Procedure in the manner
provided for earnings withholding orders for taxes.

(d) (1) Part 10 (commencing with Section 17001), this part,
Part 10.7 (commencing with Section 21001), and Part 11
(commencing with Section 23001) shall apply to amounts referred
under this article in the same manner and with the same force and
effect and to the full extent as if the language of those laws had
been incorporated in full into this article, except to the extent that
any provision is either inconsistent with this article or is not
relevant to this article.

(2) Any information, information sources, or enforcement
remedies and capabilities available to the court or the state referring
to the amount due described in subdivision (a) shall be available
to the Franchise Tax Board to be used in conjunction with, or
independent of, the information, information sources, or remedies
and capabilities available to the Franchise Tax Board for purposes
of administering Part 10 (commencing with Section 17001), this
part, Part 10.7 (commencing with Section 21001), or Part 11
(commencing with Section 23001).

(e) The activities required to implement and administer this part
shall not interfere with the primary mission of the Franchise Tax
Board to administer Part 10 (commencing with Section 17001)
and Part 11 (commencing with Section 23001).

(f) For amounts referred for collection under subdivision (a),
interest shall accrue at the greater of the rate applicable to the
amount due being collected or the rate provided under Section
19521. When notice of the amount due includes interest and is
mailed to the debtor and the amount is paid within 15 days after
the date of notice, interest shall not be imposed for the period after
the date of notice.

(g) A collection under this article is not a payment of income
taxes imposed under Part 10 (commencing with Section 17001)
or Part 11 (commencing with Section 23001).