BILL NUMBER: SB 1943 CHAPTERED 09/18/00 CHAPTER 481 FILED WITH SECRETARY OF STATE SEPTEMBER 18, 2000 APPROVED BY GOVERNOR SEPTEMBER 16, 2000 PASSED THE SENATE AUGUST 22, 2000 PASSED THE ASSEMBLY AUGUST 18, 2000 AMENDED IN ASSEMBLY AUGUST 8, 2000 AMENDED IN SENATE APRIL 25, 2000 AMENDED IN SENATE APRIL 3, 2000 INTRODUCED BY Senator Ortiz FEBRUARY 24, 2000 An act to amend Section 16373 of the Government Code, and to amend Sections 730.6, 1714, 1752.81, 1764.2, and 1767 of the Welfare and Institutions Code, relating to youthful offenders. LEGISLATIVE COUNSEL'S DIGEST SB 1943, Ortiz. Youthful offenders. (1) Existing law provides for the forfeiture of unclaimed money of $5 or less in a prison inmate's trust account after he or she has been paroled to the Inmate Welfare Fund. This bill would provide for the forfeiture of unclaimed money of $5 or less in a youthful offender's trust account after discharge, escape, or absconding from supervision of the Department of the Youth Authority to the Benefit Fund to be used for the benefit of the resident wards. (2) Existing law requires certain restitution orders, issued as a result of a minor's conduct, to be of a dollar amount sufficient to reimburse the victim or victims, as specified. This bill would require those restitution orders to identify each victim, unless the court for good cause finds the order should not identify a victim or victims and the amount of each victim's loss; or, if the amount of restitution is unknown at the time of disposition, would require the court order to identify the victims, unless the court for good cause finds the order should not identify a victim or victims, and state that the amount of restitution is to be determined. The bill would also require restitution orders to identify co-offenders who are jointly and severally liable for restitution. (3) Existing law expresses the intent of the Legislature that the Youthful Offender Parole Board and the Director of the Youth Authority meet at least 4 times a year, as specified. This bill would specify, instead, that they meet at least twice a year. (4) Existing law requires the Director of the Youth Authority to deduct the balance owing on specified restitution orders from a ward' s trust account up to a maximum of 50% of the total held in trust, unless prohibited by federal law. This bill would revise the restitution orders specified to which this provision applies. The bill would also require trust funds of a ward who cannot be located to be used to satisfy pending restitution orders of fines, as specified, and would require the remainder, if any, to be transferred to the Benefit Fund to be used for the benefit of the resident wards. (5) Existing law authorizes the release to a victim or next of kin of specified information regarding a youthful offender committed to the Department of the Youth Authority for certain offenses. This bill would expand this provision to apply to further, specified offenses. (6) Existing law authorizes a victim or his or her representative, or the victim's next of kin or his or her representative to attend a youthful offender parole hearing. This bill would, instead, authorize the victim and one support person to attend. In the event that the victim is unable to attend the proceeding, 2 support persons designated by the victim may attend to provide information about the impact of the crime on the victim, or if the victim is no longer living, 2 members of the victim's immediate family may attend. The bill would also specify that support persons are restricted to providing information about the impact of the crime on the victim and providing physical and emotional support to the victim or the victim's family. The bill would also authorize the Department of the Youth Authority to exclude a victim or his or her support person or persons from a hearing, and would authorize the board to allow the presence of other support persons under particular circumstances surrounding the proceeding. (7) The bill would amend a provision of law added by an initiative measure which by its terms requires a 2/3 vote of each house for amendment by the Legislature. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 16373 of the Government Code is amended to read: 16373. (a) Money that has remained unclaimed in the hands of any state agency, or for which the claimant cannot be found, may be deposited in the Special Deposit Fund in trust and may be withdrawn in the same manner as other trust money. Unclaimed money of five dollars ($5) or less in an inmate's trust account after he or she has been paroled shall be forfeited, and deposited in the Inmate Welfare Fund of the Department of Corrections in the State Treasury. (b) When the Director of the Youth Authority has in his or her possession trust account money of an offender committed to or housed in the Department of the Youth Authority, any unclaimed offender trust account money of five dollars ($5) or less shall be forfeited on the date of discharge, or one year from the date of escape or absconding from the Department of the Youth Authority supervision, and shall be deposited in the Benefit Fund to be expended pursuant to Section 1752.5 of the Welfare and Institutions Code. SEC. 2. Section 730.6 of the Welfare and Institutions Code is amended to read: 730.6. (a) (1) It is the intent of the Legislature that a victim of conduct for which a minor is found to be a person described in Section 602 who incurs any economic loss as a result of the minor's conduct shall receive restitution directly from that minor. (2) Upon a minor being found to be a person described in Section 602, the court shall consider levying a fine in accordance with Section 730.5. In addition, the court shall order the minor to pay, in addition to any other penalty provided or imposed under the law, 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 (h). (b) In every case where a minor is found to be a person described in Section 602, the court shall impose a separate and additional restitution fine. The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense as follows: (1) If the minor is found to be a person described in Section 602 by reason of the commission of one or more felony offenses, the restitution fine shall not be less than one hundred dollars ($100) and not more than one thousand dollars ($1,000). A separate hearing for the fine shall not be required. (2) If the minor is found to be a person described in Section 602 by reason of the commission of one or more misdemeanor offenses, the restitution fine shall not exceed one hundred dollars ($100). A separate hearing for the fine shall not be required. (c) The restitution fine shall be in addition to any other disposition or fine imposed and shall be imposed regardless of the minor's inability to pay. This fine shall be deposited in the Restitution Fund, the proceeds of which shall be distributed pursuant to Section 13967 of the Government Code. (d) (1) In setting the amount of the fine pursuant to subparagraph (A) of paragraph (2) of subdivision (a), the court shall consider any relevant factors including, but not limited to, the minor's ability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the minor as a result of the offense, and the extent to which others suffered losses as a result of the offense. The 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 offense. (2) The consideration of a minor's ability to pay may include his or her future earning capacity. A minor shall bear the burden of demonstrating a lack of his or her ability to pay. (e) Express findings of the court as to the factors bearing on the amount of the fine shall not be required. (f) Except as provided in subdivision (g), under no circumstances shall the court fail to impose the separate and additional restitution fine required by subparagraph (A) of paragraph (2) of subdivision (a). This fine shall not be subject to penalty assessments pursuant to Section 1464 of the Penal Code. (g) In a case in which the minor is a person described in Section 602 by reason of having committed a felony offense, if the court finds that there are compelling and extraordinary reasons, the court may waive imposition of the restitution fine required by subparagraph (A) of paragraph (2) of subdivision (a). When a waiver is granted, the court shall state on the record all reasons supporting the waiver. (h) Restitution ordered pursuant to subparagraph (B) of paragraph (2) of subdivision (a) shall be imposed in the amount of the losses, as determined. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. A minor's inability to pay shall not be considered a compelling or extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of the restitution order. A restitution order pursuant to subparagraph (B) of paragraph (2) of subdivision (a), to the extent possible, shall identify each victim, unless the court for good cause finds that the order should not identify a victim or victims, and the amount of each victim's loss to which it pertains, and shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor's conduct for which the minor was found to be a person described in Section 602, including all of the following: (1) 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. (2) Medical expenses. (3) 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. (4) 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. A minor shall have 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 minor. 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 hearing on the motion. When the amount of victim restitution is not known at the time of disposition, the court order shall identify the victim or victims, unless the court finds for good cause that the order should not identify a victim or victims, and state that the amount of restitution for each victim is to be determined. When feasible, the court shall also identify on the court order, any cooffenders who are jointly and severally liable for victim restitution. (i) A restitution order imposed pursuant to subparagraph (B) of paragraph (2) of subdivision (a) shall identify the losses to which it pertains, and shall be enforceable as a civil judgment pursuant to subdivision (r). The making of a restitution order pursuant to this subdivision shall not affect the right of a victim to recovery from the Restitution Fund in the manner provided elsewhere, 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 minor or the minor's parent or guardian arising out of the offense for which the minor was found to be a person described in Section 602. Restitution payments made pursuant to this subdivision shall be made to the Restitution Fund to the extent that the victim, as defined in subdivision (j), 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. (j) For purposes of this section, "victim" shall include the immediate surviving family of the actual victim. (k) Nothing in this section shall prevent a court from ordering restitution to 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 an offense. (l) Upon a minor being found to be a person described in Section 602, the court shall require as a condition of probation the payment of restitution fines and orders imposed under this section. Any portion of a restitution order that remains unsatisfied after a minor is no longer on probation shall continue to be enforceable by a victim pursuant to subdivision (r) until the obligation is satisfied in full. (m) Probation shall not be revoked for failure of a person to make restitution pursuant to this section as a condition of probation unless the court determines that the person has willfully failed to pay or failed to make sufficient bona fide efforts to legally acquire the resources to pay. (n) If the court finds and states on the record compelling and extraordinary reasons why restitution should not be required as provided in paragraph (2) of subdivision (a), the court shall order, as a condition of probation, that the minor perform specified community service. (o) The court may avoid ordering community service as a condition of probation only if it finds and states on the record compelling and extraordinary reasons not to order community service in addition to the finding that restitution pursuant to paragraph (2) of subdivision (a) should not be required. (p) When a minor is committed to the Department of the Youth Authority, the court shall order restitution to be paid to the victim or victims, if any. Payment of restitution to the victim or victims pursuant to this subdivision shall take priority in time over payment of any other restitution fine imposed pursuant to this section. (q) 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. (r) If the judgment is for a restitution fine ordered pursuant to subparagraph (A) of paragraph (2) of subdivision (a), or a restitution order imposed pursuant to subparagraph (B) of paragraph (2) of subdivision (a), the judgment may be enforced in the manner provided in Section 1214 of the Penal Code. SEC. 3. Section 1714 of the Welfare and Institutions Code is amended to read: 1714. (a) It is the intention of the Legislature that the Youthful Offender Parole Board and the Director of the Youth Authority shall cooperate with each other in the establishment of the classification, transfer, discipline, training, and treatment policies of the Department of the Youth Authority, to the end that the objectives of the state youth correctional system can best be attained. The director and the board shall, not less than two times each calendar year, meet for the purpose of discussion of classification, transfer, discipline, training, and treatment policies and problems, and for the purpose of discussion of policies relating to the functions and duties of the board, and it is the intent of the Legislature that whenever possible there shall be agreement on these subjects. However, in order to maintain responsibility for the secure and orderly administration of the Youth Authority, the Director of the Youth Authority shall have the final right to determine the policies on classification, transfer, discipline, training and treatment, and the board shall have the final right to determine the policies on its duties and functions. (b) The Director of the Youth Authority may transfer persons confined in one institution or facility of the Department of the Youth Authority to another. The Youthful Offender Parole Board may request the director to transfer a person who is under the jurisdiction of the department pursuant to Section 1731.5 if, after review of the case history in the course of routine procedures, such transfer is deemed advisable for the further diagnosis and treatment of the ward. The director shall as soon as practicable comply with such request, provided that, if facilities are not available he or she shall report that fact to the board and shall make the transfer as soon as facilities become available; provided further, that if in the opinion of the director such transfer would endanger security he or she may report that fact to the board and refuse to make such transfer. SEC. 4. Section 1752.81 of the Welfare and Institutions Code is amended to read: 1752.81. (a) Whenever the Director of the Youth Authority has in his or her possession in trust funds of a ward committed to the authority, the funds may be released for any purpose when authorized by the ward. When the sum held in trust for any ward by the Director of the Youth Authority exceeds five hundred dollars ($500), the amount in excess of five hundred dollars ($500) may be expended by the director pursuant to a lawful order of a court directing payment of the funds, without the authorization of the ward thereto. (b) Whenever an adult or minor is committed to or housed in a Youth Authority facility and he or she owes a restitution fine imposed pursuant to Section 13967 of the Government Code, as operative on or before September 28, 1994, or Section 1202.4 or 1203.04 of the Penal Code, as operative on or before August 2, 1995, or pursuant to Section 729.6, 730.6 or 731.1, as operative on or before August 2, 1995, the Director of the Youth Authority shall deduct the balance owing on the fine amount from the trust account deposits of a ward, up to a maximum of 50 percent of the total amount held in trust, unless prohibited by federal law. The director 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. (c) Whenever an adult or minor is committed to, or housed in, a Youth Authority facility and he or she owes restitution to a victim imposed pursuant to Section 13967 of the Government Code, as operative on or before September 28, 1994, or Section 1202.4 or 1203.04 of the Penal Code, as operative on or before August 2, 1995, or pursuant to Section 729.6, 730.6, or 731.1, as operative on or before August 2, 1995, the Director of the Youth Authority shall deduct the balance owing on the order amount from the trust account deposits of a ward, up to a maximum of 50 percent of the total amount held in trust, unless prohibited by federal law. The director shall transfer that amount directly to the victim. 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. The sentencing court shall be provided a record of the payments made to victims and of the payments deposited to the Restitution Fund pursuant to this subdivision. (d) Any compensatory or punitive damages awarded by trial or settlement to a minor or adult committed to the Department of the Youth Authority in connection with a civil action brought against any federal, state, or local jail 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 minor or adult. The balance of any award shall be forwarded to the minor or adult committed to the Department of the Youth Authority after full payment of all outstanding restitution orders and restitution fines subject to subdivision (e). The Department of the Youth Authority shall make all reasonable efforts to notify the victims of the crime for which the minor or adult was committed 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). (e) The director shall deduct and retain from the trust account deposits of a ward, unless prohibited by federal law, an administrative fee that totals 10 percent of any amount transferred pursuant to subdivision (b) and (c), or 5 percent of any amount transferred pursuant to subdivision (d). The director shall deposit the administrative fee moneys in a special deposit account for reimbursing administrative and support costs of the restitution and victims program of the Department of the Youth Authority. 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 and victims program or may transfer all or part of the excess funds for deposit in the Restitution Fund. (f) When a ward has both a restitution fine and a restitution order from the sentencing court, the Department of the Youth Authority shall collect the restitution order first pursuant to subdivision (c). (g) Notwithstanding subdivisions (a), (b), and (c), whenever the Director of the Youth Authority holds in trust a ward's funds in excess of five dollars ($5) and the ward cannot be located, after one year from the date of discharge, absconding from the Department of the Youth Authority supervision, or escape, the Department of the Youth Authority shall apply the trust account balance to any unsatisfied victim restitution order or fine owed by that ward. If the victim restitution order or fine has been satisfied, the remainder of the ward's trust account balance, if any, shall be transferred to the Benefit Fund to be expended pursuant to Section 1752.5. If the victim to whom a particular ward owes restitution cannot be located, the money shall be transferred to the Benefit Fund to be expended pursuant to Section 1752.5. SEC. 5. Section 1764.2 of the Welfare and Institutions Code is amended to read: 1764.2. (a) Notwithstanding any other provision of law, the director or the director's designee shall release the information described in Section 1764 regarding a person committed to the Youth Authority for an offense described in subdivision (a) of Section 676, or an offense described in Section 273.5, 288, or 646.9 of the Penal Code, to the victim of the offense, the next of kin of the victim, or his or her representative as designated by the victim or next of kin pursuant to Section 1767, upon request, unless the court has ordered confidentiality under subdivision (c) of Section 676. The victim or the next of kin shall be identified by the court or the probation department in the offender's commitment documents before the director is required to disclose this information. (b) The director or the director's designee shall, with respect to persons committed to the Youth Authority, including persons committed to the Department of Corrections who have been transferred to the Youth Authority, for an offense described in subdivision (a) of Section 676, or an offense described in Section 273.5, 288, or 646.9 of the Penal Code, inform each victim of that offense, the victim's next of kin, or his or her representative as designated by the victim or next of kin pursuant to Section 1767, of his or her right to request and receive information pursuant to subdivision (a) and Section 1767. SEC. 6. Section 1767 of the Welfare and Institutions Code is amended to read: 1767. (a) Upon request, written notice of any hearing to consider the release on parole of any person under the control of the Youth Authority for the commission of a crime or committed to the authority as a person described in Section 602 shall be sent by the Department of the Youth Authority at least 30 days before the hearing to any victim of a crime committed by the person, or to the next of kin of the victim if the victim has died or is a minor. The requesting party shall keep the board apprised of his or her current mailing address. (b) Any one of the following persons may appear, personally or by counsel, at the hearing: (1) The victim of the offense and one support person of his or her choosing. (2) In the event that the victim is unable to attend the proceeding, two support persons designated by the victim may attend to provide information about the impact of the crime on the victim. (3) If the victim is no longer living, two members of the victim's immediate family may attend. (4) If none of those persons appear personally at the hearing, any one of them may submit a statement recorded on videotape for the board's consideration at the hearing. Those persons shall also have the right to submit a written statement to the board at least 10 days prior to the scheduled hearing for the board's consideration at the hearing. (c) The board, in deciding whether to release the person on parole, shall consider the statements of victims, next of kin, or statements made on their behalf pursuant to this section and shall include in its report a statement of whether the person would pose a threat to public safety if released on parole. The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors. (d) A representative designated by the victim or the victim's next of kin shall be either that person's legal counsel or a family or household member of the victim, for the purposes of this section. (e) Support persons may only provide information about the impact of the crime on the victim and provide physical and emotional support to the victim or the victim's family. (f) Nothing in this section shall prevent the board from excluding a victim or his or her support person or persons from a hearing. The board may allow the presence of other support persons under particular circumstances surrounding the proceeding.