BILL ANALYSIS
AB 2869
Page 1
Date of Hearing: April 25, 2006
Consultant: Scott Hinkle
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 2869 (Leno) - As Amended: March 30, 2006
SUMMARY : Requires the California Victim Compensation and
Government Claims Board, withstanding any other provision of law
or decision of the board, pursuant to specified sections of the
Government Code, to award compensation to an individual seeking
reimbursement for burial or funeral expenses if the deceased
person died as a result of a crime regardless of whether the
deceased person was not discharged from probation or parole as
long as the deceased person was not involved in the commission
of a crime at the time of death and the individual seeking
reimbursement is not otherwise ineligible for compensation.
EXISTING LAW :
1)Provides than an application for compensation shall be filed
with the Board in the manner determined by the Board.
[Government Code Section 13952(a).]
2)Provides that the application for compensation shall be
verified until penalty of perjury by the individual who is
seeking compensation, who may be the victim or derivative
victim, or an individual seeking reimbursement for burial,
funeral, or crime scene cleanup expenses pursuant specified
sections of the Government Code. [Government Code Section
13952(b)(1).]
3)Provides that if the individual seeking compensation is a
minor or is incompetent, the application shall be verified
under penalty or perjury or on information and belief by the
parent with legal custody, guardian, conservator, or relative
caregiver of the victim for whom the application is made.
However, if the minor seeks compensation only for expenses for
medical, medical-related, psychiatric, psychological, or other
mental health counseling-related services and the minor is
authorized by statute to consent to those services, the minor
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may verify the application for compensation under penalty of
perjury. [Government Code Section 13952(b)(1).]
4)States that except as provided by specified sections of the
Government Code, a person shall be eligible for compensation
when all of the following requirements are met (Government
Code Section 13955):
a) The person form whom compensation is being sought is any
of the following [Government Code Section 13955(a)]:
i. A victim. [Government Code Section 13955(a)(1).]
ii. A derivative victim. [Government Code Section
13955(a)(2).]
iii. A person who is entitled to reimbursement for
funeral, burial or crime scene clean up expenses pursuant
to specified sections of the Government Code.
[Government Code Section 13955(a)(3).]
b) Either of the following conditions is met [Government
Code Section 13955(b)]:
i. The crime occurred within California whether or not
the victim is a resident of California. This only
applies when the Board determines that there are federal
funds available to the state for the compensation of
crime victims. [Government Code Section 13955(b)(1).]
ii. Where or not the crime occurred within the State of
California, the victim was any of the following
[Government Code Section 13955(b)(2)]:
1. A resident of the state. [Government Code
Section 13955(b)(2)(A).]
2. A member of the military stationed in
California. [Government Code Section 13955(b)(2)(B).]
3. A family member living with a member of the
military station in California. [Government Code
Section 13955(b)(2)(C).]
c) If compensation is being sough for derivative victim,
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the derivative victim is t a resident of California or the
resident of another state who is any of the following
[Government Code Section 13955(c)]:
i. At the time of the crimes was the parent,
grandparent, sibling, spouse, child or grandchild of the
victim. [Government Code Section 13955(c)(1).]
ii. At the time of the crime was living in the
household of the victim. [Government Code Section
13955(c)(2).]
iii. At the time of the crime was a person who had
previously lived in the house of the victim for a person
of not less than two years in relationship substantially
similar to a previously listed relationship. [Government
Code Section 13955(c)(3).]
iv. Another family member of the victim including, but
not limited to, the victim's fianc? or fianc?e, and who
witnessed the crime. [Government Code Section
13955(c)(4).]
v. Is the primary caretaker of a minor victim, but was
not the primary caretaker at the time of the crime.
[Government Code Section 13955(c)(5).]
d) And other specified requirements. [Government Code
Section 13955(d) to (g).]
5)States that a person shall not be eligible for compensation
under the follow conditions (Government Code Section 13956):
a) An application shall be denied if the Board finds that
the victim or, where compensation is sought by or on behalf
of a derivative victim, either the victim or derivative
victim knowingly and willing participated in the commission
of the crime that result in the pecuniary loss for which
compensation is being sought pursuant to specified sections
of the Government Code. However, this subdivision shall
not apply if the injury or death occurred as a direct
result of rape, rape of a spouse, unlawful sexual
intercourse, or willful infliction of corporal injury.
[Government Code Section 13956(a).]
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b) An application shall be denied if the board finds that
the victim or, where compensation is sought by or on behalf
of, a derivative victim, either the victim or derivative
victim failed to cooperate reasonably with a law
enforcement agency in the apprehension and conviction of a
criminal committing the crime. However, in determining
whether cooperation has been reasonable, the Board shall
consider the victim's or derivative victim's age, physical
condition, and psychological state, cultural or linguistic
barriers, any compelling health and safety concerns
including, but not limited to, a reasonable fear of
retaliation or harm that would jeopardize the well-being of
the victim or the victim's family or the derivative victim
or the derivative victim's family, and giving due
consideration to the degree of cooperation of which the
victim or derivative victim is capable in light of the
presence of any of these factors. [Government Code Section
13956(b)(1).]
c) An application for compensation may be denied, in whole
or in part, if the Board finds that denial is appropriate
because of the nature of the victim's or other applicant's
involvement in the events leading to the crime or the
involvement of the persons whose injury or death gives rise
to the application. In the case of a minor, the Board
shall consider the minor's age, physical condition, and
psychological state, as well as any compelling health and
safety concerns, in determining whether the minor's
application should be denied pursuant to this section. The
application of a derivative victim of domestic violence
under the age of 18 years of age or a derivative victim of
trafficking under 18 years of age may not be denied on the
basis of the denial of the victim's application under this
subdivision. [Government Code Section 13956(c).]
d) Notwithstanding Government Code Section 13955, no person
who is convicted of a felony may be granted compensation
until that person has been discharged from probation or has
been released from a correctional institution and has been
discharged from parole, if any. In no case shall
compensation be granted to an applicant pursuant to this
chapter during any period of time the applicant is held in
a correctional institution. [Government Code Section
13956(d)(1).]
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e) A person convicted of a felony may apply for
compensation pursuant to this chapter at any time, but the
award of that compensation may not be considered until the
applicant meets the requirements for compensation set forth
in paragraph has been discharged from probation or has been
discharge from a correctional institution and has been
discharged from parole. [Government Code Section
13956(d)(2).]
f) Applications of victims who are not felons shall receive
priority in the award of compensation over an application
submitted by a felon who has met the requirements for
compensation. [Government Code Section 13956(d)(3).]
6)Provides that when a victim dies as a result of crime, the
Board may reimburse any individual who voluntarily, and
without anticipation of personal gain, pay or assumes the
obligation to pay any of the following expenses [Government
Code Section 13957(a)(9)]:
a) The medical expenses incurred as a direct result of the
crime in an amount not to exceed the rates or limitations
established by the Board. [Government Code Section
13957(a)(9)(A).]
b) When the crime occurs in a residence, the reasonable
costs to clean the scene of the crime in an amount not to
exceed $1,000. [Government Code Section 13957(a)(9)(B).]
c) The funeral and burial expenses incurred as a direct
result of the crimes, not toe exceed $7,500. [Government
Code Section 13957(a)(9)(B).]
7)Provides that the total award to or on behalf of each victim
or derivative victim may no exceed $35,000, except that this
amount may be increased to $70,000 if federal funds for that
increase are available. [Government Code Section 13957(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Current law is
sufficiently ambiguous as to allow the Board to deny claims of
family members to pay for the burial or funeral costs of their
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loved ones if they were still on parole or probation at the
time of their violent death.
"A group of constituents came to visit me who had been denied
such claims. These constituents were so proud of their
sons/family members who had left their gang pasts behind after
release from prison, were working hard to support their
families, but were gunned down by their former gang for doing
exactly what society had asked them to do - distance
themselves from the gang and live honest and hard-working
lives.
"The simple fact that their sons were still on parole or
probation (for a lesser crime) at the time they were gunned
down resulted in a denial of their families' claims for
burial/funeral expenses.
"This bill attempts to provide clarity in the statute so that
guidance from the Board governing claims for burial or funeral
expenses is consistent from year to year so that we treat
victims of violent crime consistently as long as they were not
perpetrators of the crime that resulted in their death . This
bill provides that clarity, without making it possible for the
Board to pay claims for perpetrators of the crime, such as in
the 1986 Cabarga case."
2)Background : According to background submitted by the author,
"Current guidance and claim forms issued by the Board indicate
that a person is ineligible for compensation as a victim of
crime if he/she (the dead person) was on probation or parole
at the time of the crime. This includes compensation for
burial costs for a victim who dies as a result of the crime.
The Board currently considers the victim to be the dead
person, not the family members (derivative victims) who have
lost their loved one due to the crime and now are burdened
with the costs of burial as a result of the crime.
"Under the interpretation of the current Board, a family
member who has lost a loved one to violent crime is not
considered a 'derivative victim' for purposes of submitting a
claim on the Fund unless the deceased victim of crime was not
on probation or parole at the time of their killing regardless
of whether or not the deceased was a participant in the crime
that resulted in their death.
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"Legislative Counsel has opined (orally, upon submission of
this bill's language) that the current guidance and forms
issued by the Board are inconsistent with the underlying
statute - that family members ARE entitled to file and collect
on claims to cover burial costs under current law and are
reluctant to restate current law in the statute.
"Victims of Crime Restitution Fund (VCRF) staff notes that the
practice of the Board has been inconsistent over the years.
At times, under previous boards, such claims were honored;
under other boards, such claims have been denied.
"VCRF staff have provided the following historical explanation
for the inconsistency:
'About 20 years ago, three-year-old Tara B. and her 10-year
old brother, Jeremy, were abducted from their car in a store
parking lot. Jeremy escaped after a short period of time, but
Tara was held for several weeks. The kidnappers, Luis (Tree
Frog) Johnson and Alex Cabarga, were ultimately arrested and
sent to prison.
'Cabarga filed a $700 claim for mental health treatment
received in prison, which was paid in 1986 by the Board.
Although victims' claims are confidential, the news of the
inmate claim was leaked to the press, which caused much public
outrage, resulting in the felon/probationer exclusion in the
statute.
'Members of the public who have been denied claims to assist
them in burying their loved ones have appealed to the author's
office for assistance. Former gang members who were still on
parole and were trying desperately to distance themselves from
their former associates and gang members were gunned down for
doing exactly what society expects of them - leaving the gang
life. Many of them are from poor families still reeling from
the economic impact of losing an income while their family
member was in prison. Now, they must try to deal with their
loss without victim assistance and face further economic
hardship to cover the burial or funeral costs.'
"The author believes this is unfair, as well as inconsistent
with the statute.
"This bill attempts to provide clarity in the statute so that
guidance does not vary according to the membership of the
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Board at any given time."
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Scott Hinkle / PUB. S. / (916) 319-3744