BILL NUMBER: SB 1768 CHAPTERED
BILL TEXT
CHAPTER 587
FILED WITH SECRETARY OF STATE SEPTEMBER 18, 1998
APPROVED BY GOVERNOR SEPTEMBER 17, 1998
PASSED THE SENATE AUGUST 27, 1998
PASSED THE ASSEMBLY AUGUST 25, 1998
AMENDED IN ASSEMBLY AUGUST 21, 1998
AMENDED IN ASSEMBLY JULY 23, 1998
AMENDED IN ASSEMBLY JULY 9, 1998
AMENDED IN ASSEMBLY JUNE 25, 1998
AMENDED IN SENATE APRIL 21, 1998
AMENDED IN SENATE MARCH 17, 1998
INTRODUCED BY Senator Kopp
(Coauthors: Senators Ayala, McPherson, and Rainey)
FEBRUARY 18, 1998
An act to amend, repeal, and add Section 2033.5 of the Code of
Civil Procedure, and to amend Sections 2085.5 and 11177.2 of, and to
amend, repeal, and add Sections 987, 1202.4, and 1214 of, the Penal
Code, relating to criminal restitution.
LEGISLATIVE COUNSEL'S DIGEST
SB 1768, Kopp. Criminal restitution: disclosure of financial
information.
(1) Under existing law, a person convicted of a crime is required
to make restitution to any victim in the amount of the economic
losses suffered by a victim as a result of the criminal conduct.
Under existing law, the victim may enforce the restitution order as a
civil money judgment, and may obtain access to the criminal
defendant's financial records and information regarding his or her
assets. Additionally, costs incurred under this existing procedure
by the victim in attempting to collect under the restitution order
are recoverable from the criminal defendant.
This bill would require the defendant, in any case in which a
restitution order may be entered, to prepare and file a disclosure
identifying all assets owned or controlled by the defendant as of the
date on which the defendant was arrested, as well as other
information relating to the defendant's financial resources. This
financial disclosure would be available to the victim. The bill also
would authorize the victim to access confidential financial
information filed by the defendant for purposes of determining his or
her ability to employ defense counsel, when the defendant fails to
file the financial disclosure required by these provisions.
The bill would authorize the court to consider the defendant's
unreasonable failure to make the disclosure as a circumstance in
aggravation of the crime for purposes of imposing the sentence, and a
factor indicating that the interests of justice would not be served
by admitting the defendant to probation, conditionally sentencing the
defendant, or imposing less than the maximum fine and sentence fixed
by law. The bill would also make it a misdemeanor for any defendant
to willfully state, on the required financial disclosure form, any
material matter that he or she knows to be false, unless this conduct
is punishable as perjury or another provision of law provides for a
greater penalty. The bill would provide that these provisions shall
become operative on January 1, 2000, unless an extension is granted
by the Judicial Council, as specified. By creating a new crime, this
bill would impose a state-mandated local program.
The bill also would require the Judicial Council to develop and
approve form interrogatories for the use of the victim in seeking to
collect under the criminal restitution order and a form for the
financial statement and the information required to be disclosed on
it pursuant to these provisions. The bill would provide that these
provisions shall become operative on January 1, 2000.
(2) Existing law requires the Director of Corrections, in any case
in which a prisoner owes a restitution order or a restitution fine,
to deduct specified amounts from the wages and trust account deposits
of the prisoner, and to transfer those amounts to the State Board of
Control for direct payment to the victim or deposit in the
Restitution Fund. Existing law also authorizes the Director of
Corrections to collect from a parolee any moneys owing on a
restitution order or a restitution fine, and requires the director to
transfer those amounts to the State Board of Control for direct
payment to the victim or deposit in the Restitution Fund.
This bill would require amounts transferred to the State Board of
Control for payment of direct orders of restitution to be paid to the
victim within 60 days from the date the restitution revenues are
received by the State Board of Control, except as specified. The
bill would require restitution revenues received by the State Board
of Control on behalf of a victim to be held in trust in the
Restitution Fund in any case in which a victim cannot be located, and
would provide for those moneys to revert to the Restitution Fund
after a specified period of time. The bill would establish a
procedure for a victim to subsequently reclaim those moneys.
(3) Existing law prohibits an inmate from being released on parole
to reside in any receiving state if the parolee is subject to an
unsatisfied order of restitution to a victim within the sending state
with certain exceptions.
This bill would make technical changes to these provisions for
purposes of clarification and would state that those provisions may
not be construed to allow the reduction or waiver of a restitution
order or fine.
(4) The bill would declare that its provisions are severable.
(5) This bill would incorporate additional changes in Section
1202.4 of the Penal Code proposed by SB 1608, to be operative if SB
1608 and this bill are both enacted and become effective on or before
January 1, 1998, and this bill is enacted last.
(6) This bill would incorporate additional changes in Section 1214
of the Penal Code proposed by SB 2139, to be operative if SB 2139
and this bill are both enacted and become effective on or before
January 1, 1998, and this bill is enacted last.
(7) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2033.5 of the Code of Civil Procedure is
amended to read:
2033.5. The Judicial Council shall develop and approve official
form interrogatories and requests for admission of the genuineness of
any relevant documents or of the truth of any relevant matters of
fact in any civil action in a state court based on personal injury,
property damage, wrongful death, unlawful detainer, breach of
contract, family law, or fraud. Use of the approved form
interrogatories and requests for admission shall be optional.
In developing the form interrogatories and requests for admission
required by this section, the Judicial Council shall consult with a
representative advisory committee which shall include, but not be
limited to, representatives of the plaintiff's bar, the defense bar,
the public interest bar, court administrators, and the public. The
form interrogatories and requests for admission shall be drafted in
nontechnical language and shall be made available through the office
of the clerk of the appropriate trial court.
The Judicial Council also shall promulgate any necessary rules to
govern the use of the form interrogatories and requests for
admission.
This section shall remain in effect only until January 1, 2000,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2000, deletes or extends that date.
SEC. 2. Section 2033.5 is added to the Code of Civil Procedure, to
read:
2033.5. (a) The Judicial Council shall develop and approve
official form interrogatories and requests for admission of the
genuineness of any relevant documents or of the truth of any relevant
matters of fact in any civil action in a state court based on
personal injury, property damage, wrongful death, unlawful detainer,
breach of contract, family law, or fraud. Use of the approved form
interrogatories and requests for admission shall be optional.
(b) In developing the form interrogatories and requests for
admission required by this section, the Judicial Council shall
consult with a representative advisory committee which shall include,
but not be limited to, representatives of the plaintiff's bar, the
defense bar, the public interest bar, court administrators, and the
public. The form interrogatories and requests for admission shall be
drafted in nontechnical language and shall be made available through
the office of the clerk of the appropriate trial court.
(c) The Judicial Council also shall promulgate any necessary rules
to govern the use of the form interrogatories and requests for
admission.
(d) The Judicial Council shall develop and approve official form
interrogatories for use by a victim who has not received complete
payment of a restitution order made pursuant to Section 1202.4 of the
Penal Code.
(e) Notwithstanding whether a victim initiates or maintains an
action to satisfy the unpaid restitution order, a victim may propound
the form interrogatories approved pursuant to this section once each
calendar year. The defendant subject to the restitution order
shall, in responding to the interrogatories propounded, provide
current information regarding the nature, extent, and location of any
assets, income, and liabilities in which the defendant claims a
present or future interest.
(f) This section shall become operative on January 1, 2000.
SEC. 3. Section 987 of the Penal Code is amended to read:
987. (a) In a noncapital case, if the defendant appears for
arraignment without counsel, he or she shall be informed by the court
that it is his or her right to have counsel before being arraigned,
and shall be asked if he or she desires the assistance of counsel.
If he or she desires and is unable to employ counsel the court shall
assign counsel to defend him or her.
(b) In a capital case, if the defendant appears for arraignment
without counsel, the court shall inform him or her that he or she
shall be represented by counsel at all stages of the preliminary and
trial proceedings and that the representation is at his or her
expense if he or she is able to employ counsel or at public expense
if he or she is unable to employ counsel, inquire of him or her
whether he or she is able to employ counsel and, if so, whether he or
she desires to employ counsel of his or her choice or to have
counsel assigned, and allow him or her a reasonable time to send for
his or her chosen or assigned counsel. If the defendant is unable to
employ counsel, the court shall assign counsel to defend him or her.
If the defendant is able to employ counsel and either refuses to
employ counsel or appears without counsel after having had a
reasonable time to employ counsel, the court shall assign counsel.
The court shall at the first opportunity inform the defendant's
trial counsel, whether retained by the defendant or court-appointed,
of the additional duties imposed upon trial counsel in any capital
case as set forth in paragraph (1) of subdivision (b) of Section
1240.1.
(c) In order to assist the court in determining whether a
defendant is able to employ counsel in any case, the court may
require a defendant to file a financial statement or other financial
information under penalty of perjury with the court or, in its
discretion, order a defendant to appear before a county officer
designated by the court to make an inquiry into the ability of the
defendant to employ his or her own counsel. If a county officer is
designated, the county officer shall provide to the court a written
recommendation and the reason or reasons in support of the
recommendation. The determination by the court shall be made on the
record. The financial statement or other financial information
obtained from the defendant shall be confidential and privileged and
shall not be admissible in evidence in any criminal proceeding except
the prosecution of an alleged offense of perjury based upon false
material contained in the financial statement. The financial
statement shall be made available to the prosecution only for
purposes of investigation of an alleged offense of perjury based upon
false material contained in the financial statement at the
conclusion of the proceedings for which the financial statement was
required to be submitted. The financial statement and other
financial information obtained from the defendant shall not be
confidential and privileged in a proceeding under Section 987.8.
(d) In a capital case, the court may appoint an additional
attorney as a cocounsel upon a written request of the first attorney
appointed. The request shall be supported by an affidavit of the
first attorney setting forth in detail the reasons why a second
attorney should be appointed. Any affidavit filed with the court
shall be confidential and privileged. The court shall appoint a
second attorney when it is convinced by the reasons stated in the
affidavit that the appointment is necessary to provide the defendant
with effective representation. If the request is denied, the court
shall state on the record its reasons for denial of the request.
(e) This section shall remain in effect only until January 1,
2000, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2000, deletes or extends
that date.
SEC. 4. Section 987 is added to the Penal Code, to read:
987. (a) In a noncapital case, if the defendant appears for
arraignment without counsel, he or she shall be informed by the court
that it is his or her right to have counsel before being arraigned,
and shall be asked if he or she desires the assistance of counsel.
If he or she desires and is unable to employ counsel the court shall
assign counsel to defend him or her.
(b) In a capital case, if the defendant appears for arraignment
without counsel, the court shall inform him or her that he or she
shall be represented by counsel at all stages of the preliminary and
trial proceedings and that the representation is at his or her
expense if he or she is able to employ counsel or at public expense
if he or she is unable to employ counsel, inquire of him or her
whether he or she is able to employ counsel and, if so, whether he or
she desires to employ counsel of his or her choice or to have
counsel assigned, and allow him or her a reasonable time to send for
his or her chosen or assigned counsel. If the defendant is unable to
employ counsel, the court shall assign counsel to defend him or her.
If the defendant is able to employ counsel and either refuses to
employ counsel or appears without counsel after having had a
reasonable time to employ counsel, the court shall assign counsel.
The court shall at the first opportunity inform the defendant's
trial counsel, whether retained by the defendant or court-appointed,
of the additional duties imposed upon trial counsel in any capital
case as set forth in paragraph (1) of subdivision (b) of Section
1240.1.
(c) In order to assist the court in determining whether a
defendant is able to employ counsel in any case, the court may
require a defendant to file a financial statement or other financial
information under penalty of perjury with the court or, in its
discretion, order a defendant to appear before a county officer
designated by the court to make an inquiry into the ability of the
defendant to employ his or her own counsel. If a county officer is
designated, the county officer shall provide to the court a written
recommendation and the reason or reasons in support of the
recommendation. The determination by the court shall be made on the
record. Except as provided in Section 1214, the financial statement
or other financial information obtained from the defendant shall be
confidential and privileged and shall not be admissible in evidence
in any criminal proceeding except the prosecution of an alleged
offense of perjury based upon false material contained in the
financial statement. The financial statement shall be made available
to the prosecution only for purposes of investigation of an alleged
offense of perjury based upon false material contained in the
financial statement at the conclusion of the proceedings for which
the financial statement was required to be submitted. The financial
statement and other financial information obtained from the defendant
shall not be confidential and privileged in a proceeding under
Section 987.8.
(d) In a capital case, the court may appoint an additional
attorney as a cocounsel upon a written request of the first attorney
appointed. The request shall be supported by an affidavit of the
first attorney setting forth in detail the reasons why a second
attorney should be appointed. Any affidavit filed with the court
shall be confidential and privileged. The court shall appoint a
second attorney when it is convinced by the reasons stated in the
affidavit that the appointment is necessary to provide the defendant
with effective representation. If the request is denied, the court
shall state on the record its reasons for denial of the request.
(e) This section shall become operative on January 1, 2000.
SEC. 5. Section 1202.4 of the Penal Code is amended to read:
1202.4. (a) (1) It is the intent of the Legislature 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.
(2) Upon a person being convicted of any crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment pursuant to Section 1214.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense, but shall
not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony,
and shall not be less than one hundred dollars ($100), and not more
than one thousand dollars ($1,000), if the person is convicted of a
misdemeanor.
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of felony counts of which
the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the
two-hundred-dollar ($200) or one-hundred-dollar ($100) minimum.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the two-hundred-dollar ($200) or one-hundred-dollar
($100) minimum, the court shall consider any relevant factors
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered any losses
as a result of the crime, and the number of victims involved in the
crime. Those losses may include pecuniary losses to the victim or
his or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a defendant'
s inability to pay may include his or her future earning capacity. A
defendant shall bear the burden of demonstrating his or her
inability to pay. Express findings by the court as to the factors
bearing on the amount of the fine shall not be required. A separate
hearing for the fine shall not be required.
(e) The restitution fine shall not be subject to penalty
assessments as provided in Section 1464, and shall be deposited in
the Restitution Fund in the State Treasury.
(f) In every case in which a victim has suffered economic loss as
a result of the defendant's conduct, the court shall require that the
defendant make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed by
the victim or victims or any other showing to the court. If the
amount of loss cannot be ascertained at the time of sentencing, the
restitution order shall include a provision that the amount shall be
determined at the direction of the court. The court shall order full
restitution unless it finds compelling and extraordinary reasons for
not doing so, and states them on the record.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court
may modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party. Restitution payments made
pursuant to this subdivision shall be made to the Restitution Fund to
the extent that the victim, as defined in subdivision (k), has
received assistance pursuant to Article 1 (commencing with Section
13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the
Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor.
(D) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution.
(E) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(F) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(G) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(g) The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution order, nor shall inability to pay be a consideration
in determining the amount of a restitution order.
(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing with
Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, in order to determine the defendant's
financial assets for purposes of collecting on the restitution order.
(i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment, pursuant to
Section 1214.
(j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the
Restitution Fund as otherwise provided by law, except to the extent
that restitution is actually collected pursuant to the order.
Restitution collected pursuant to this subdivision shall be credited
to any other judgments for the same losses obtained against the
defendant arising out of the crime for which the defendant was
convicted.
(k) For purposes of this section, "victim" shall include the
immediate surviving family of the actual victim. "Victim" shall also
include any 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.
(l) At its discretion, the board of supervisors of any county may
impose a fee to cover the actual administrative cost of collecting
the restitution fine, not to exceed 10 percent of the amount ordered
to be paid, to be added to the restitution fine and included in the
order of the court, the proceeds of which shall be deposited in the
general fund of the county.
(m) In every case in which the defendant is granted probation, the
court shall make the payment of restitution fines and orders imposed
pursuant to this section a condition of probation. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation shall continue to be enforceable by a victim
pursuant to Section 1214 until the obligation is satisfied.
(n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine or full restitution
order should not be required, the court shall order, as a condition
of probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition to
the finding that restitution should not be required. Upon
revocation of probation, the court shall impose restitution pursuant
to this section.
(o) The provisions of Section 13966.01 of the Government Code
shall apply to restitution imposed pursuant to this section.
(p) This section shall remain in effect only until January 1,
2000, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2000, deletes or extends
that date.
SEC. 5.5. Section 1202.4 of the Penal Code is amended to read:
1202.4. (a) (1) It is the intent of the Legislature 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.
(2) Upon a person being convicted of any crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense, but shall
not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony,
and shall not be less than one hundred dollars ($100), and not more
than one thousand dollars ($1,000), if the person is convicted of a
misdemeanor.
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of felony counts of which
the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the
two-hundred-dollar ($200) or one-hundred-dollar ($100) minimum.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the two-hundred-dollar ($200) or one-hundred-dollar
($100) minimum, the court shall consider any relevant factors
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered any losses
as a result of the crime, and the number of victims involved in the
crime. Those losses may include pecuniary losses to the victim or
his or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a defendant'
s inability to pay may include his or her future earning capacity. A
defendant shall bear the burden of demonstrating his or her
inability to pay. Express findings by the court as to the factors
bearing on the amount of the fine shall not be required. A separate
hearing for the fine shall not be required.
(e) The restitution fine shall not be subject to penalty
assessments as provided in Section 1464, and shall be deposited in
the Restitution Fund in the State Treasury.
(f) In every case in which a victim has suffered economic loss as
a result of the defendant's conduct, the court shall require that the
defendant make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed by
the victim or victims or any other showing to the court. If the
amount of loss cannot be ascertained at the time of sentencing, the
restitution order shall include a provision that the amount shall be
determined at the direction of the court. The court shall order full
restitution unless it finds compelling and extraordinary reasons for
not doing so, and states them on the record.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court
may modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party. Restitution payments made
pursuant to this subdivision shall be made to the Restitution Fund to
the extent that the victim, as defined in subdivision (k), has
received assistance pursuant to Article 1 (commencing with Section
13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the
Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor.
(D) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution.
(E) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(F) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(G) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(g) The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution order, nor shall inability to pay be a consideration
in determining the amount of a restitution order.
(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing with
Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, in order to determine the defendant's
financial assets for purposes of collecting on the restitution order.
(i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment.
(j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the
Restitution Fund as otherwise provided by law, except to the extent
that restitution is actually collected pursuant to the order.
Restitution collected pursuant to this subdivision shall be credited
to any other judgments for the same losses obtained against the
defendant arising out of the crime for which the defendant was
convicted.
(k) For purposes of this section, "victim" shall include the
immediate surviving family of the actual victim. "Victim" shall also
include any 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.
(l) At its discretion, the board of supervisors of any county may
impose a fee to cover the actual administrative cost of collecting
the restitution fine, not to exceed 10 percent of the amount ordered
to be paid, to be added to the restitution fine and included in the
order of the court, the proceeds of which shall be deposited in the
general fund of the county.
(m) In every case in which the defendant is granted probation, the
court shall make the payment of restitution fines and orders imposed
pursuant to this section a condition of probation. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation shall continue to be enforceable by a victim
pursuant to Section 1214 until the obligation is satisfied.
(n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine or full restitution
order should not be required, the court shall order, as a condition
of probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition to
the finding that restitution should not be required. Upon
revocation of probation, the court shall impose restitution pursuant
to this section.
(o) The provisions of Section 13966.01 of the Government Code
shall apply to restitution imposed pursuant to this section.
(p) This section shall remain in effect only until January 1,
2000, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2000, deletes or extends
that date.
SEC. 6. Section 1202.4 is added to the Penal Code, to read:
1202.4. (a) (1) It is the intent of the Legislature 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.
(2) Upon a person being convicted of any crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment pursuant to Section 1214.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense, but shall
not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony,
and shall not be less than one hundred dollars ($100), and not more
than one thousand dollars ($1,000), if the person is convicted of a
misdemeanor.
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of felony counts of which
the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the
two-hundred-dollar ($200) or one-hundred-dollar ($100) minimum.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the two-hundred-dollar ($200) or one-hundred-dollar
($100) minimum, the court shall consider any relevant factors
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered any losses
as a result of the crime, and the number of victims involved in the
crime. Those losses may include pecuniary losses to the victim or
his or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a defendant'
s inability to pay may include his or her future earning capacity. A
defendant shall bear the burden of demonstrating his or her
inability to pay. Express findings by the court as to the factors
bearing on the amount of the fine shall not be required. A separate
hearing for the fine shall not be required.
(e) The restitution fine shall not be subject to penalty
assessments as provided in Section 1464, and shall be deposited in
the Restitution Fund in the State Treasury.
(f) In every case in which a victim has suffered economic loss as
a result of the defendant's conduct, the court shall require that the
defendant make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed by
the victim or victims or any other showing to the court. If the
amount of loss cannot be ascertained at the time of sentencing, the
restitution order shall include a provision that the amount shall be
determined at the direction of the court. The court shall order full
restitution unless it finds compelling and extraordinary reasons for
not doing so, and states them on the record.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court
may modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party. Restitution payments made
pursuant to this subdivision shall be made to the Restitution Fund to
the extent that the victim, as defined in subdivision (k), has
received assistance pursuant to Article 1 (commencing with Section
13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the
Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor.
(D) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution.
(E) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(F) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(G) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(4) Except as provided in paragraph (5), in any case in which an
order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant's arrest for the
crime for which restitution may be ordered. This disclosure shall be
available to the victim pursuant to Section 1214, and any use the
court may make of the disclosure shall be subject to the restrictions
of subdivision (g). The disclosure shall be signed by the defendant
upon a form approved or adopted by the Judicial Council for the
purpose of facilitating the disclosure. Any defendant who willfully
states as true any material matter that he or she knows to be false
on the disclosure required by this subdivision is guilty of a
misdemeanor, unless this conduct is punishable as perjury or another
provision of law provides for a greater penalty.
(5) A defendant who fails to file the financial disclosure
required in paragraph (4), but who has filed a financial affidavit or
financial information pursuant to subdivision (c) of Section 987,
shall be deemed to have waived the confidentiality of that affidavit
or financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f). The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (4), and paragraphs (6), (7), (8), and (9) shall not
apply.
(6) Except as provided in paragraph (5), the defendant shall file
the disclosure with the clerk of the court no later than the date set
for the defendant's sentencing, unless otherwise directed by the
court. The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.
(7) In its discretion, the court may relieve the defendant of the
duty under paragraph (6) of filing with the clerk by requiring that
the defendant's disclosure be submitted as an attachment to, and be
available to, those authorized to receive the following:
(A) Any report submitted pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
(B) Any stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
(C) Any report by the probation officer, or any information
submitted by the defendant applying for a conditional sentence
pursuant to subdivision (d) of Section 1203.
(8) The court may consider a defendant's unreasonable failure to
make a complete disclosure pursuant to paragraph (4) as any of the
following:
(A) A circumstance in aggravation of the crime in imposing a term
under subdivision (b) of Section 1170.
(B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.
(C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section 1203.
(D) A factor indicating that the interests of justice would not be
served by imposing less than the maximum fine and sentence fixed by
law for the case.
(9) A defendant's failure or refusal to make the required
disclosure pursuant to paragraph (4) shall not delay entry of an
order of restitution or pronouncement of sentence. In appropriate
cases, the court may do any of the following:
(A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).
(B) If sentencing the defendant under Section 1170, provide that
the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant's
employment, occupation, finances, and liabilities.
(C) If sentencing the defendant under Section 1203, set a date and
place for submission of the disclosure required by paragraph (4) as
a condition of probation or suspended sentence.
(g) The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution order, nor shall inability to pay be a consideration
in determining the amount of a restitution order.
(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing with
Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, in order to determine the defendant's
financial assets for purposes of collecting on the restitution order.
(i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment, pursuant to
Section 1214.
(j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the
Restitution Fund as otherwise provided by law, except to the extent
that restitution is actually collected pursuant to the order.
Restitution collected pursuant to this subdivision shall be credited
to any other judgments for the same losses obtained against the
defendant arising out of the crime for which the defendant was
convicted.
(k) For purposes of this section, "victim" shall include the
immediate surviving family of the actual victim. "Victim" shall also
include any 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.
(l) At its discretion, the board of supervisors of any county may
impose a fee to cover the actual administrative cost of collecting
the restitution fine, not to exceed 10 percent of the amount ordered
to be paid, to be added to the restitution fine and included in the
order of the court, the proceeds of which shall be deposited in the
general fund of the county.
(m) In every case in which the defendant is granted probation, the
court shall make the payment of restitution fines and orders imposed
pursuant to this section a condition of probation. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation shall continue to be enforceable by a victim
pursuant to Section 1214 until the obligation is satisfied.
(n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine or full restitution
order should not be required, the court shall order, as a condition
of probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition to
the finding that restitution should not be required. Upon
revocation of probation, the court shall impose restitution pursuant
to this section.
(o) The provisions of Section 13966.01 of the Government Code
shall apply to restitution imposed pursuant to this section.
(p) (1) This section shall become operative on January 1, 2000,
except when all of the following apply:
(A) A majority of judges of a court apply to the Judicial Council
for an extension.
(B) The judicial application described in paragraph (1) documents
the need for time to adjust restitution procedures and practices, as
well as to facilitate judicial education and training in direct
restitution to victims under subdivision (f).
(C) The Judicial Council grants the extension upon finding good
cause.
(2) Upon the grant of an extension pursuant to the application of
a court under this subdivision, the provisions of former Section 1214
shall continue to apply with respect to that court. The extension
may be for any period of time set by the Judicial Council, but shall
not exceed January 1, 2002, in any case.
SEC. 6.5. Section 1202.4 of the Penal Code is amended to read:
1202.4. (a) (1) It is the intent of the Legislature 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.
(2) Upon a person being convicted of any crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense, but shall
not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony,
and shall not be less than one hundred dollars ($100), and not more
than one thousand dollars ($1,000), if the person is convicted of a
misdemeanor.
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of felony counts of which
the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the
two-hundred-dollar ($200) or one-hundred-dollar ($100) minimum.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the two-hundred-dollar ($200) or one-hundred-dollar
($100) minimum, the court shall consider any relevant factors
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered any losses
as a result of the crime, and the number of victims involved in the
crime. Those losses may include pecuniary losses to the victim or
his or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a defendant'
s inability to pay may include his or her future earning capacity. A
defendant shall bear the burden of demonstrating his or her
inability to pay. Express findings by the court as to the factors
bearing on the amount of the fine shall not be required. A separate
hearing for the fine shall not be required.
(e) The restitution fine shall not be subject to penalty
assessments as provided in Section 1464, and shall be deposited in
the Restitution Fund in the State Treasury.
(f) In every case in which a victim has suffered economic loss as
a result of the defendant's conduct, the court shall require that the
defendant make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed by
the victim or victims or any other showing to the court. If the
amount of loss cannot be ascertained at the time of sentencing, the
restitution order shall include a provision that the amount shall be
determined at the direction of the court. The court shall order full
restitution unless it finds compelling and extraordinary reasons for
not doing so, and states them on the record.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court
may modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party. Restitution payments made
pursuant to this subdivision shall be made to the Restitution Fund to
the extent that the victim, as defined in subdivision (k), has
received assistance pursuant to Article 1 (commencing with Section
13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the
Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor.
(D) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution.
(E) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(F) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(G) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(4) Except as provided in paragraph (5), in any case in which an
order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant's arrest for the
crime for which restitution may be ordered. This disclosure shall be
available to the victim pursuant to Section 1214, and any use the
court may make of the disclosure shall be subject to the restrictions
of subdivision (g). The disclosure shall be signed by the defendant
upon a form approved or adopted by the Judicial Council for the
purpose of facilitating the disclosure. Any defendant who willfully
states as true any material matter that he or she knows to be false
on the disclosure required by this subdivision is guilty of a
misdemeanor, unless this conduct is punishable as perjury or another
provision of law provides for a greater penalty.
(5) A defendant who fails to file the financial disclosure
required in paragraph (4), but who has filed a financial affidavit or
financial information pursuant to subdivision (c) of Section 987,
shall be deemed to have waived the confidentiality of that affidavit
or financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f). The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (4), and paragraphs (6), (7), (8), and (9) shall not
apply.
(6) Except as provided in paragraph (5), the defendant shall
file the disclosure with the clerk of the court no later than the
date set for the defendant's sentencing, unless otherwise directed by
the court. The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.
(7) In its discretion, the court may relieve the defendant of the
duty under paragraph (6) of filing with the clerk by requiring that
the defendant's disclosure be submitted as an attachment to, and be
available to, those authorized to receive the following:
(A) Any report submitted pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
(B) Any stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
(C) Any report by the probation officer, or any information
submitted by the defendant applying for a conditional sentence
pursuant to subdivision (d) of Section 1203.
(8) The court may consider a defendant's unreasonable failure to
make a complete disclosure pursuant to paragraph (4) as any of the
following:
(A) A circumstance in aggravation of the crime in imposing a term
under subdivision (b) of Section 1170.
(B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.
(C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section 1203.
(D) A factor indicating that the interests of justice would not be
served by imposing less than the maximum fine and sentence fixed by
law for the case.
(9) A defendant's failure or refusal to make the required
disclosure pursuant to paragraph (4) shall not delay entry of an
order of restitution or pronouncement of sentence. In appropriate
cases, the court may do any of the following:
(A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).
(B) If sentencing the defendant under Section 1170, provide that
the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant's
employment, occupation, finances, and liabilities.
(C) If sentencing the defendant under Section 1203, set a date and
place for submission of the disclosure required by paragraph (4) as
a condition of probation or suspended sentence.
(g) The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution order, nor shall inability to pay be a consideration
in determining the amount of a restitution order.
(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing with
Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, in order to determine the defendant's
financial assets for purposes of collecting on the restitution order.
(i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment.
(j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the
Restitution Fund as otherwise provided by law, except to the extent
that restitution is actually collected pursuant to the order.
Restitution collected pursuant to this subdivision shall be credited
to any other judgments for the same losses obtained against the
defendant arising out of the crime for which the defendant was
convicted.
(k) For purposes of this section, "victim" shall include the
immediate surviving family of the actual victim. "Victim" shall also
include any 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.
(l) At its discretion, the board of supervisors of any county may
impose a fee to cover the actual administrative cost of collecting
the restitution fine, not to exceed 10 percent of the amount ordered
to be paid, to be added to the restitution fine and included in the
order of the court, the proceeds of which shall be deposited in the
general fund of the county.
(m) In every case in which the defendant is granted probation, the
court shall make the payment of restitution fines and orders imposed
pursuant to this section a condition of probation. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation shall continue to be enforceable by a victim
pursuant to Section 1214 until the obligation is satisfied.
(n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine or full restitution
order should not be required, the court shall order, as a condition
of probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition to
the finding that restitution should not be required. Upon
revocation of probation, the court shall impose restitution pursuant
to this section.
(o) The provisions of Section 13966.01 of the Government Code
shall apply to restitution imposed pursuant to this section.
(p) (1) This section shall become operative on January 1, 2000,
except when all of the following apply:
(A) A majority of judges of a court apply to the Judicial Council
for an extension.
(B) The judicial application described in paragraph (1) documents
the need for time to adjust restitution procedures and practices, as
well as to facilitate judicial education and training in direct
restitution to victims under subdivision (f).
(C) The Judicial Council grants the extension upon finding good
cause.
(2) Upon the grant of an extension pursuant to the application of
a court under this subdivision, the provisions of former Section 1214
shall continue to apply with respect to that court. The extension
may be for any period of time set by the Judicial Council, but shall
not exceed January 1, 2002, in any case.
SEC. 7. Section 1214 of the Penal Code is amended to read:
1214. (a) If the judgment is for a fine, including a restitution
fine ordered pursuant to Section 1202.4 or Section 1203.04, as
operative on or before August 2, 1995, or Section 13967 of the
Government Code, as operative on or before September 28, 1994, with
or without imprisonment, the judgment may be enforced in the manner
provided for the enforcement of money judgments generally.
(b) In any case in which a defendant is ordered to pay
restitution, the order to pay restitution (1) is deemed a money
judgment if the defendant was informed of his or her right to have a
judicial determination of the amount and was provided with a hearing,
waived a hearing, or stipulated to the amount of the restitution
ordered, and (2) shall be fully enforceable by a victim as if the
restitution order were a civil judgment, and enforceable in the same
manner as is provided for the enforcement of any other money
judgment. Upon the victim's request, the court shall provide the
victim in whose favor the order of restitution is entered with a
certified copy of that order. In addition, upon request, the court
shall provide the State Board of Control with a certified copy of any
order imposing a restitution fine or order. A victim shall have
access to all resources available under the law to enforce the
restitution order, including, but not limited to, access to the
defendant's financial records, use of wage garnishment and lien
procedures, information regarding the defendant's assets, and the
ability to apply for restitution from any fund established for the
purpose of compensating victims in civil cases. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation or parole is enforceable by the victim pursuant
to this section. Victims and the State Board of Control shall inform
the court whenever an order to pay restitution is satisfied.
(c) Chapter 3 (commencing with Section 683.010) of Division 1 of
Title 9 of Part 2 of the Code of Civil Procedure shall not apply to a
judgment for any fine or restitution ordered pursuant to Section
1202.4 or Section 1203.04, as operative on or before August 2, 1995,
or Section 13967 of the Government Code, as operative on or before
September 28, 1994.
(d) This section shall remain in effect only until January 1,
2000, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2000, deletes or extends
that date.
SEC. 7.5. Section 1214 of the Penal Code is amended to read:
1214. (a) If the judgment is for a fine, including a restitution
fine ordered pursuant to Section 1202.4 or Section 1203.04, as
operative on or before August 2, 1995, or Section 13967 of the
Government Code, as operative on or before September 28, 1994, with
or without imprisonment, the judgment may be enforced in the manner
provided for the enforcement of money judgments generally.
(b) In any case in which a defendant is ordered to pay
restitution, the order to pay restitution (1) is deemed a money
judgment if the defendant was informed of his or her right to have a
judicial determination of the amount and was provided with a hearing,
waived a hearing, or stipulated to the amount of the restitution
ordered, and (2) shall be fully enforceable by a victim as if the
restitution order were a civil judgment, and enforceable in the same
manner as is provided for the enforcement of any other money
judgment. Upon the victim's request, the court shall provide the
victim in whose favor the order of restitution is entered with a
certified copy of that order. In addition, upon request, the court
shall provide the State Board of Control with a certified copy of any
order imposing a restitution fine or order. A victim shall have
access to all resources available under the law to enforce the
restitution order, including, but not limited to, access to the
defendant's financial records, use of wage garnishment and lien
procedures, information regarding the defendant's assets, and the
ability to apply for restitution from any fund established for the
purpose of compensating victims in civil cases. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation or parole is enforceable by the victim pursuant
to this section. Victims and the State Board of Control shall inform
the court whenever an order to pay restitution is satisfied.
(c) Except as provided in subdivision (d), and notwithstanding the
amount in controversy limitation of Section 85 of the Code of Civil
Procedure, a restitution order or restitution fine that was imposed
pursuant to Section 1202.4 by the municipal court, or by the superior
court acting pursuant to subdivision (d) of Section 1462, may be
enforced in the same manner as a money judgment in a limited civil
case.
(d) Chapter 3 (commencing with Section 683.010) of Division 1 of
Title 9 of Part 2 of the Code of Civil Procedure shall not apply to a
judgment for any fine or restitution ordered pursuant to Section
1202.4 or Section 1203.04, as operative on or before August 2, 1995,
or Section 13967 of the Government Code, as operative on or before
September 28, 1994.
(e) This section shall remain in effect only until January 1,
2000, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2000, deletes or extends
that date.
SEC. 8. Section 1214 is added to the Penal Code, to read:
1214. (a) If the judgment is for a fine, including a restitution
fine ordered pursuant to Section 1202.4 or Section 1203.04 as
operative on or before August 2, 1995, or Section 13967 of the
Government Code, as operative on or before September 28, 1994, with
or without imprisonment, the judgment may be enforced in the manner
provided for the enforcement of money judgments generally.
(b) In any case in which a defendant is ordered to pay
restitution, the order to pay restitution (1) is deemed a money
judgment if the defendant was informed of his or her right to have a
judicial determination of the amount and was provided with a hearing,
waived a hearing, or stipulated to the amount of the restitution
ordered, and (2) shall be fully enforceable by a victim as if the
restitution order were a civil judgment, and enforceable in the same
manner as is provided for the enforcement of any other money
judgment. Upon the victim's request, the court shall provide the
victim in whose favor the order of restitution is entered with a
certified copy of that order and a copy of the defendant's disclosure
pursuant to paragraph (4) of subdivision (f) of Section 1202.4, or
affidavit or information pursuant to paragraph (5) of subdivision (f)
of Section 1202.4, or report pursuant to paragraph (7) of
subdivision (f) of Section 1202.4. The court also shall provide this
information to the district attorney upon request in connection with
an investigation or prosecution involving perjury or the veracity of
the information contained within the defendant's financial
disclosure. In addition, upon request, the court shall provide the
State Board of Control with a certified copy of any order imposing a
restitution fine or order and a copy of the defendant's disclosure
pursuant to paragraph (4) of subdivision (f) of Section 1202.4, or
affidavit or information pursuant to paragraph (5) of subdivision (f)
of Section 1202.4, or report pursuant to paragraph (7) of
subdivision (f) of Section 1202.4. A victim shall have access to all
resources available under the law to enforce the restitution order,
including, but not limited to, access to the defendant's financial
records, use of wage garnishment and lien procedures, information
regarding the defendant's assets, and the ability to apply for
restitution from any fund established for the purpose of compensating
victims in civil cases. Any portion of a restitution order that
remains unsatisfied after a defendant is no longer on probation or
parole is enforceable by the victim pursuant to this section.
Victims and the State Board of Control shall inform the court
whenever an order to pay restitution is satisfied.
(c) Chapter 3 (commencing with Section 683.010) of Division 1 of
Title 9 of Part 2 of the Code of Civil Procedure shall not apply to a
judgment for any fine or restitution ordered pursuant to Section
1202.4 or Section 1203.04 as operative on or before August 2, 1995,
or Section 13967 of the Government Code, as operative on or before
September 28, 1994.
(d) (1) This section shall become operative on January 1, 2000,
except when all of the following apply:
(A) A majority of judges of a court apply to the Judicial Council
for an extension.
(B) The judicial application described in paragraph (1) documents
the need for time to adjust restitution procedures and practices, as
well as to facilitate judicial education and training in direct
restitution to victims under subdivision (f).
(C) The Judicial Council grants the extension upon finding good
cause.
(2) Upon the grant of an extension pursuant to the application of
a court under this subdivision, the provisions of former Section
1202.4 shall continue to apply with respect to that court. The
extension may be for any period of time set by the Judicial Council,
but shall not exceed January 1, 2002, in any case.
SEC. 8.5. Section 1214 of the Penal Code is amended to read:
1214. (a) If the judgment is for a fine, including a restitution
fine ordered pursuant to Section 1202.4 or Section 1203.04, as
operative on or before August 2, 1995, or Section 13967 of the
Government Code, as operative on or before September 28, 1994, with
or without imprisonment, the judgment may be enforced in the manner
provided for the enforcement of money judgments generally.
(b) In any case in which a defendant is ordered to pay
restitution, the order to pay restitution (1) is deemed a money
judgment if the defendant was informed of his or her right to have a
judicial determination of the amount and was provided with a hearing,
waived a hearing, or stipulated to the amount of the restitution
ordered, and (2) shall be fully enforceable by a victim as if the
restitution order were a civil judgment, and enforceable in the same
manner as is provided for the enforcement of any other money
judgment. Upon the victim's request, the court shall provide the
victim in whose favor the order of restitution is entered with a
certified copy of that order and a copy of the defendant's disclosure
pursuant to paragraph (4) of subdivision (f) of Section 1202.4, or
affidavit or information pursuant to paragraph (5) of subdivision (f)
of Section 1202.4, or report pursuant to paragraph (7) of
subdivision (f) of Section 1202.4. The court also shall provide this
information to the district attorney upon request in connection with
an investigation or prosecution involving perjury or the veracity of
the information contained within the defendant's financial
disclosure. In addition, upon request, the court shall provide the
State Board of Control with a certified copy of any order imposing a
restitution fine or order and a copy of the defendant's disclosure
pursuant to paragraph (4) of subdivision (f) of Section 1202.4, or
affidavit or information pursuant to paragraph (5) of subdivision (f)
of Section 1202.4, or report pursuant to paragraph (7) of
subdivision (f) of Section 1202.4. A victim shall have access to all
resources available under the law to enforce the restitution order,
including, but not limited to, access to the defendant's financial
records, use of wage garnishment and lien procedures, information
regarding the defendant's assets, and the ability to apply for
restitution from any fund established for the purpose of compensating
victims in civil cases. Any portion of a restitution order that
remains unsatisfied after a defendant is no longer on probation or
parole is enforceable by the victim pursuant to this section.
Victims and the State Board of Control shall inform the court
whenever an order to pay restitution is satisfied.
(c) Except as provided in subdivision (d), and notwithstanding the
amount in controversy limitation of Section 85 of the Code of Civil
Procedure, a restitution order or restitution fine that was imposed
pursuant to Section 1202.4 by the municipal court, or by the superior
court acting pursuant to subdivision (d) of Section 1462, may be
enforced in the same manner as a money judgment in a limited civil
case.
(d) Chapter 3 (commencing with Section 683.010) of Division 1 of
Title 9 of Part 2 of the Code of Civil Procedure shall not apply to a
judgment for any fine or restitution ordered pursuant to Section
1202.4 or Section 1203.04, as operative on or before August 2, 1995,
or Section 13967 of the Government Code, as operative on or before
September 28, 1994.
(e) (1) This section shall become operative on January 1, 2000,
except when all of the following apply:
(A) A majority of judges of a court apply to the Judicial Council
for an extension.
(B) The judicial application described in paragraph (1) documents
the need for time to adjust restitution procedures and practices, as
well as to facilitate judicial education and training in direct
restitution to victims under subdivision (f).
(C) The Judicial Council grants the extension upon finding good
cause.
(2) Upon the grant of an extension pursuant to the application of
a court under this subdivision, the provisions of former Section
1202.4 shall continue to apply with respect to that court. The
extension may be for any period of time set by the Judicial Council,
but shall not exceed January 1, 2002, in any case.
SEC. 9. 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 28, 1994, or
subdivision (b) of Section 1202.4, the Director of Corrections 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 State Board of
Control for deposit in the Restitution Fund in the State Treasury.
Any amount so deducted shall be credited against the amount owing on
the fine. The sentencing court shall be provided a record of the
payments.
(b) 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 28, 1994, or
subdivision (f) of Section 1202.4, the Director of Corrections 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. If the restitution is owed to a person who has filed an
application with the Victims of Crime Program, the director shall
transfer that amount to the State Board of Control 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. No deductions shall be made on behalf of victims who have
not filed an application with the Victims of Crime 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.
(c) The director 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 State Board of Control pursuant to subdivision (a) or (b).
The director 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 (j), unless
prohibited by federal law. The director 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. The director, 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.
(d) 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 28, 1994, or subdivision (b) of
Section 1202.4, the Director of Corrections may collect from the
parolee any moneys owing on the restitution fine amount, unless
prohibited by federal law, and shall transfer that amount to the
State Board of Control for deposit in the Restitution Fund in the
State Treasury. Any amount so deducted shall be credited against the
amount owing on the fine. The sentencing court shall be provided a
record of the payments.
(e) In any case in which a parolee owes a restitution fine,
subject to an order, imposed pursuant to subdivision (c) of Section
13967 of the Government Code, as operative prior to September 28,
1994, or paragraph (3) of subdivision (a) of Section 1202.4, the
Director of Corrections may collect from the parolee any moneys
owing, unless prohibited by federal law. If the restitution is owed
to a person who has filed an application with the Victims of Crime
Program, the director shall transfer that amount to the State Board
of Control 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. No deductions shall be made on
behalf of victims who have not filed an application with the Victims
of Crime Program. The sentencing court shall be provided a record of
the payments made by the offender pursuant to this subdivision.
(f) The director may deduct and retain from any moneys collected
from parolees an administrative fee that totals 10 percent of any
amount transferred to the State Board of Control pursuant to
subdivision (d) or (e), unless prohibited by federal law. The
director 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. The
director, 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.
(g) When a prisoner has both a restitution fine and a restitution
order from the sentencing court, the Department of Corrections shall
collect the restitution order first pursuant to subdivision (b).
(h) When a parolee has both a restitution fine and order from the
sentencing court, the Department of Corrections may collect the
restitution order first, pursuant to subdivision (e).
(i) 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.
(j) Any compensatory or punitive damages awarded by trial or
settlement to a prisoner in connection with a civil action brought
against any 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 the prisoner. The balance of any award shall be forwarded to
the prisoner after full payment of all outstanding restitution
orders and restitution fines, subject to subdivision (c). The
Department of Corrections shall make all reasonable efforts to notify
the victims of the crime for which the prisoner was convicted
concerning the pending payment of any compensatory or punitive
damages. This subdivision shall apply to cases settled or awarded on
or after April 26, 1996, pursuant to Sections 807 and 808 of the
federal Prison Litigation Reform Act of 1995 (Title 8, P.L. 104-134).
(k) (1) Amounts transferred to the State Board of Control 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 State Board of Control. If the restitution payment to a victim
is less than fifty dollars ($50), then payment need not be forwarded
to that victim until the payment reaches fifty dollars ($50) or until
180 days from the date the first payment is received, whichever
occurs sooner.
(2) In any case in which a victim cannot be located, the
restitution revenues received by the State Board of Control 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 such time as 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) Any victim failing to provide a current address within the
period of time specified in paragraph (2) may provide documentation
to the Department of Corrections, which in turn shall verify that
moneys were in fact collected on behalf of the victim. Upon receipt
of that verified information from the Department of Corrections, the
State Board of Control shall transmit the restitution revenues to the
victim in accordance with the provisions of subdivision (b).
SEC. 10. Section 11177.2 of the Penal Code is amended to read:
11177.2. (a) No parolee or inmate may be released on parole to
reside in any other receiving state if the parolee or inmate is
subject to an unsatisfied order of restitution to a victim or a
restitution fine within the sending state.
(b) A parolee or inmate may be granted an exception to the
prohibition in subdivision (a) if the parolee or inmate posts a bond
for the amount of the restitution order.
(c) A parolee or inmate may petition the court for a hearing to
determine whether, in the interests of justice, the prohibition
against leaving the state should be waived. This section shall not
be construed to allow the reduction or waiver of a restitution order
or fine.
SEC. 11. The provisions of this act are severable. If any
provision of this act or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
SEC. 12. Sections 5.5 and 6.5 of this bill incorporate amendments
to Section 1202.4 of the Penal Code proposed by both this bill and SB
1608. These sections shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 1999, (2)
each bill amends Section 1202.4 of the Penal Code, and (3) this bill
is enacted after SB 1608, in which case Sections 5 and 6 of this bill
shall not become operative.
SEC. 13. Sections 7.5 and 8.5 of this bill incorporate amendments
to Section 1214 of the Penal Code proposed by both this bill and SB
2139. These sections shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 1999, (2)
each bill amends Section 1214 of the Penal Code, and (3) this bill is
enacted after SB 2139, in which case Section 1214 of the Penal Code
as amended by SB 2139, shall remain operative only until the
operative date of this bill, at which time Sections 7.5 and 8.5 of
this bill shall become operative, and Sections 7 and 8 of this bill
shall not become operative.
SEC. 14. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIIIB of the California Constitution.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.