BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1054       Hearing Date:    April 5, 2016    
          
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          |Author:    |Pavley                                               |
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          |Version:   |February 16, 2016                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JM                                                   |
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                      Subject:  Restitution Orders:  Collection



          HISTORY

          Source:   Los Angeles County District Attorney

          Prior Legislation:SB 1210 (Lieu) - Chapter 762, Stats. of 2012

          Support:  California District Attorneys Association; California  
                    Public Defenders Association; California State  
                    Sheriffs' Association

          Opposition:None known

                                                


          PURPOSE

          The purpose of this bill is to 1) clarify that county collection  
          entities may deduct an administrative fee for collecting  
          payments for restitution orders and restitution fines from a  
          jail inmate prior to the inmate's release; 2) provide that if a  
          county collection agency objects to the referral, collection of  
          direct restitution from offenders shall not be referred to the  
          Franchise Tax Board, subject to the preference of the victim;  
          and 3) consistently provide that an administrative fee retained  







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          by a county entity shall cover the actual costs of collection,  
          to a maximum of 10% of the total. 

          Existing provisions in the California Constitution state that  
          all persons who suffer losses as a result of criminal activity  
          shall have the right to restitution from the perpetrators of  
          these crimes.  Restitution shall be ordered in every case unless  
          compelling and extraordinary reasons exist and the Legislature  
          shall enact statutes to implement the constitutional restitution  
          provisions. (Cal. Const. Art. 1 § 28 (b).)

          Existing law states legislative intent that a victim of crime  
          who incurs any economic loss as a result of the commission of a  
          crime shall receive restitution directly from any defendant  
          convicted of that crime.  (Pen. Code § 1202.4, subd. (a)(1).)

          Existing law provides that where a defendant is committed to  
          prison and subject to parole, the court shall impose a separate  
          parole restitution fine in the same amount as the restitution  
          fine itself.  This additional parole revocation restitution fine  
          is not subject to penalty assessments, as specified, or a  
          specified state surcharge, and shall be suspended unless the  
          person's parole is revoked.  Parole revocation restitution fine  
          moneys are deposited in the Restitution Fund in the State  
          Treasury.  (Pen. Code § 1202.45, subd. (a) and (c).)

          Existing law provides that in every case where a person is  
          convicted of a crime and subject to either postrelease community  
          supervision (Pen. Code § 3451 - PRCS), or mandatory supervision  
          as a felon sentenced to a jail term pursuant to Penal Code  
          section 1170(h)(5), the court shall impose an additional  
          supervision revocation restitution fine and stay that fine until  
          and unless the person's supervision is revoked.  Post Release  
          Community Supervision (PRCS) and mandatory supervision  
          revocation restitution fines are deposited in the Restitution  
          Fund in the State Treasury.  (Pen. Code § 1202.45, subd.  
          (b)-(c).)

          Existing law provides that where a person on PRCS or mandatory  
          supervision is incarcerated pursuant to a supervision  
          revocation, the person shall pay the fine previously ordered and  
          stayed by the court that shall be collected by the agency  
          designated by the board of supervisors of the county in which  
          the prisoner is incarcerated.  (Pen. Code § 1202.45, subd. (b).)








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          Existing law provides that any "portion of a [direct]  
          restitution order that remains unsatisfied after a defendant is  
          no longer on probation, parole, mandatory supervision or PRCS is  
          enforceable by the victim" as though the order was a civil  
          judgment.  (Penal Code § 1214, subd. (b).)

          Existing law provides for the Secretary of the California  
          Department of Corrections and Rehabilitation (CDCR) to make  
          deductions from an inmate's wages and trust account deposits and  
          transferred for deposit in the Restitution Fund where a prisoner  
          owes a restitution fine, as specified.  (Penal Code § 2085.5.)

          Existing law provides that the agency designated by the board of  
          supervisors in the county of incarceration may make deductions  
          from the wages and jail trust account of an inmates serving a  
          sentenced felony jail term pursuant to Penal Code section 1170  
          (h).

          Existing law provides that that the agency designated by the  
          board of supervisors in the county of incarceration may collect  
          outstanding restitution orders and restitution fines from  
          persons on PRCS or mandatory supervision.  (Pen. Code § 2085.6.)

          Existing law generally provides that the entity collecting  
          criminal fines, restitution fines and restitution orders may  
          retain a 10 % administrative fee or an administrative fee that  
          covers the cost of collection, up to a maximum of 10%, as  
          specified.  (Pen. Code § 2085.5-2085.6.)
                           
          Existing law provides that court-ordered restitution fines for  
          criminal offenses and juvenile adjudications may be referred to  
          the Franchise Tax Board (FTB) for collection, as specified.   
          (Rev, and Tax. Code § 19280.)  

          This bill authorizes the agency designated by the county to  
          collect restitution fines and orders from sentenced felony jail  
          inmates to retain an administrative fee to cover the actual  
          costs of collection, up to 10%.

          This bill clarifies that the agency designated by the county to  
          collect restitution fines and orders from sentenced felony jail  
          inmates may retain the administrative fee at the time the  
          restitution order or fine is collected.








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          This bill provides that if a county agency has been designated  
          to collect restitution orders from sentenced felony jail  
          inmates, persons on PRCS or mandatory supervision and the county  
          agency has a collection system and objects to referral of the  
          order to FTB for collection, CDCR or the county shall not refer  
          the order to FTB.  The victim entitled to the restitution may  
          designate the agency that will collect the restitution.  

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  








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          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1.Need for This Bill

          According to the author:

               SB 1054 addresses legal ambiguities in the collection  
               of victim restitution fines from inmates sentenced to  
               county jail pursuant to Penal Code Section 1170(h) and  
               inmates released from state prison to Post-Release  
               Community Supervision (PRCS).  It is unclear  when  a  
               county sheriff is authorized to collect a state  
               authorized administrative fee.  Consequently, sheriffs  
               may be unable to collect administrative fees to pay  
               for restitution collection from sentenced 1170 (h)  








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               inmates.  In addition, because of an anomaly in  
               current law, an individual on PRCS can be referred to  
               the state Franchise Tax Board for collection of  
               restitution, despite being on local supervision.  This  
               dual state-local authority could lead to unfair  
               restitution collection from an individual released to  
               PRCS.  SB 1054 would specify that counties that  
               supervise criminal populations can collect the  
               restitution and related administrative costs and thus  
               help victims received restitution.   The bill provides  
               fairness in collecting restitution from criminal  
               offenders released to PRCS, who at the present time  
               may be ordered to pay the same restitution fines to  
               the state and the county.      

               In 2012, the Legislature authorized the collection of  
               restitution from county jail inmate accounts from  
               sentenced Penal Code section 1170(h) inmate.  Since  
               that time, there has been confusion regarding the  
               collection of administrative fees by county sheriffs  
               pursuant to this statute.  Because of this confusion,  
               some counties (Monterey, San Diego and Sacramento)  
               believe that the collection of the fee is not  
               authorized until the inmate is released.  However,  
               inmates may empty out their account to prevent the  
               county sheriff from collecting an administrative fee  
               upon their release.  The California Department of  
               Corrections and Rehabilitation has always interpreted  
               the language to allow for immediate collection of the  
               administrative fee, but not all counties agree. This  
               bill is consistent with recent legislation and  
               clarifies the issue for counties. 

               CDCR may refer a former prison inmate to the FTB for  
               collection of restitution.  Currently an individual on  
               Post Release Community Supervision (PRCS) can be  
               referred to the FTB, despite the fact that their  
               supervision is local.  AB 109 transferred supervision  
               of inmates to local control.  It is inconsistent with  
               AB 109 for the State to continue to collect  
               restitution from an individual who is being supervised  
               at the county level.  Current law could lead to unfair  
               double collection of restitution, hindering the  
               successful reentry of an individual back into the  








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               community. 



               SB 1054 will resolve these issues to clearly express  
 
               that a county sheriff can collect the 10%  
 
               administrative fee at the time restitution is  
 
               collected on behalf of the victim, and by amending the  
 
               Revenue and Tax Code to allow a county that is  
 
               collecting restitution from an individual on PRCS to  
 
               have primary authority to do so.  After an individual  
 
               is released from PRCS the county would then transfer  
 
               responsibility to the FTB to collect remaining  
 
               restitution. 



          2.Administrative Fee Provisions and Rules for referring a  
            Collection order to the Franchise Tax Board for Collection  
            where a County Agency has a Collection System

          This bill does not set new policy.  It is largely a technical  
          bill to conform restitution collections procedures to the Public  
          Safety Realignment of 2011 and make collection administrative  
          fee procedures consistent.  That realignment provided for some  
          felons to be supervised locally on Post Release Community  
          Supervision immediately following release from prison.  In  
          sentencing an inmate to a realignment felony jail term, the  
          court may stay a portion of the sentence and place the person on  
          "mandatory supervision."

          Agencies charged with collecting restitution orders and  
          restitution fines from sentenced felony jail inmates generally  
          may retain an administrative fee of 10% of the amount collected.  
           Agencies charged with collecting restitution orders and  








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          restitution fines from persons on PRCS or mandatory supervision  
          may retain an administrative fee that covers the cost of  
          collection up to 10%.  This bill provides that the amount  
          collected as an administrative fee shall cover the actual cost  
          of collection and not exceed 10%.  Further, the bill addresses  
          an apparent inconsistency in the law and clarifies that the  
          administrative fee may be collected at the time the order or  
          fine is collected, not only upon release of the inmate from  
          jail. 

          This bill also provides that if a county has designated an  
          agency for the collection of restitution orders and the agency  
          has a collection system, the following shall apply:  neither  
          CDCR nor a county shall not refer collection of a restitution  
          order to FTB if the designated agency objects to referral of the  
          order to FTB.  However, the victim may choose which agency shall  
          collect the order.

          3.Sponsor's Proposed Technical Amendments 

          The sponsor - the Los Angeles County District Attorney - has  
          concluded that some of the confusion in the statutes concerning  
          collection of direct restitution orders and restitution fines  
          arises from the way the statutes are organized.  The provisions  
          concerning collection from inmates in custody and convicted  
          defendants who have been released, with or without supervision,  
          are in the same code section.  The sponsor has proposed that the  
          existing section be divided into two sections, such that the  
          existing collection provisions and the substantive changes  
          proposed by this bill will clearer and more efficiently  
          implemented.   



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