BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair A
2005-2006 Regular Session B
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AB 2869 (Leno) 9
As Amended May 16, 2006
Hearing date: June 20, 2006
Government Code
JM:br
CRIME VICTIMS REIMBURSEMENT PROGRAM :
BURIAL EXPENSES AND CRIME SCENE CLEANUP
HISTORY
Source: Author
Prior Legislation: SB 972 (Poochigian) - Ch. 238, Stats. 2005
SB 631 (McPherson) - Ch. 223, Stats. 2004
SB 1423 (Chesbro) - Ch. 1141, Stats. 2002
AB 2898 (Bowler) - Ch. 1077, Stats. 1996
Support: Friends Committee on Legislation; Crime Victims United
(if amended)
Opposition:None known
Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUE
SHOULD THE VICTIMS OF CRIME PROGRAM PROVIDE REIMBURSEMENT FOR CRIME
SCENE CLEANUP, FUNERAL AND BURIAL EXPENSES WHERE THE VICTIM WAS ON
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PROBATION OR PAROLE, IF THE VICTIM WAS NOT INVOLVED IN THE CRIME IN
WHICH THE VICTIM WAS KILLED?
PURPOSE
The purpose of this bill is to provide that where a crime victim
was killed during commission of the crime, reimbursement for
crime-scene cleanup, funeral and burial expenses may be paid to
the victim's family if the victim was on probation or parole, if
the victim was not involved in the crime in which he or she was
killed.
Existing law creates the Victims of Crime Program, administered
by the California Victim Compensation and Government Claims
Board<1>, to reimburse victims of crime for the pecuniary losses
they suffer as a direct result of criminal acts.
Indemnification is made from the Restitution Fund, which is
continuously appropriated to the California Victim Compensation
and Government Claims Board for these purposes. (Govt. Code
13950-13968; note that 13969 and .2, .5, and .7 related to a
one-time 9/11/01 payment and are repealed effective 1/1/04.)
Existing statutes require a minimum restitution fine of $200 in
all felony cases and $100 in all misdemeanor cases. Courts may
set a maximum of $10,000 for felonies and $1000 for
misdemeanors. Restitution fines shall be imposed regardless of
the defendant's present ability to pay. Restitution fines are
used to pay for the Victims of Crime Program. (Pen. Code
1202.4.)
Existing law provides for restitution orders - enforceable as a
civil judgment - to ensure that a victim of a crime who incurs
any economic loss shall receive restitution directly from any
defendant convicted of that crime. If a restitution order is
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<1> This entity was formerly known as the State Board of
Control. (Govt. Code 13900 amended by AB 2491 - Ch. 1016,
Stats. 2000.)
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made, the defendant has the right to a hearing before the court
to dispute the determination of the amount of the order. A
restitution order may be modified upon motion of the District
Attorney, the victim or victims, or the defendant. (Penal Code
1202.4(f) and (i).) (NOTE: Penal Code 1202.4, subd. (f)(2)
further specifies that a restitution order may also be paid
directly to the Restitution Fund to the extent that the victim
has received assistance from the Victims of Crime Program.)
Existing law provides than an application for compensation shall
be filed with the Board in the manner determined by the Board.
(Gov. Code 13952, subd. (a).)
Existing law provides that 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. (Penal Code 1202.4, subd. (e).)
Existing law provides that the application for compensation
shall be verified under 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 to specified
sections of the Government Code. (Gov. Code 13952,
subd. (b)(1).)
Existing law 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 may verify the application for
compensation under penalty of perjury. (Gov. Code 13952,
subd. (b)(1).)
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Existing law 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
(Gov. Code 13955):
The person from whom compensation is being sought is any of
the following (Gov. Code 13955, subd. (a)):
A victim. (Gov. Code 13955, subd. (a)(1).) A
derivative victim. (Gov. Code 13955, subd.
(a)(2).)
A person who is entitled to reimbursement for
funeral, burial or crime scene cleanup expenses
pursuant to specified sections of the Government
Code. (Gov. Code 13955, subd. (a)(3).)
Either of the following conditions is met (Gov. Code
13955, subd. (b)):
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. (Gov. Code 13955,
subd. (b)(1).)
Whether or not the crime occurred within the
State of California, the victim was any of the
following (Gov. Code 13955(b)(2)):
o A resident of the state.
(Gov. Code 13955, subd. (b)(2)(A).)
o A member of the military stationed in
California. (Gov. Code 13955, subd.
(b)(2)(B).)
o A family member living with a member
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of the military station in California.
(Gov. Code 13955, subd. (b)(2)(C).)
If compensation is being sought for derivative
victim, the derivative victim is a resident of
California or the resident of another state who is
any of the following (Gov. Code 13955, subd. (c)):
At the time of the crimes was the parent,
grandparent, sibling, spouse, child or grandchild
of the victim. (Gov. Code 13955, subd. (c)(1).)
At the time of the crime was living in the
household of the victim. (Gov. Code 13955,
subd. (c)(2).)
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. (Gov. Code
13955, subd. (c)(3).)
Another family member of the victim
including, but not limited to, the victim's
fianc? or fianc?e, and who witnessed the
crime. (Gov. Code 13955, subd. (c)(4).)
Is the primary caretaker of a minor victim,
but was not the primary caretaker at the time of
the crime. (Gov. Code 13955, subd. (c)(5).)
Other
specified requirements apply. (Gov.
Code 13955, subds. (d)-(g).)
Existing law states that a person shall not be eligible for
compensation under the follow conditions (Gov. Code 13956):
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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. (Gov. Code 13956,
subd. (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 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. (Gov. Code 13956,
subd. (b)(1).)
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
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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. (Gov. Code 13956, subd. (c).)
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. (Gov. Code 13956, subd. (d)(1).)
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 has been discharged from probation
or has been discharge from a correctional institution
and has been discharged from parole. (Gov. Code
13956, subd. (d)(2).)
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. (Gov. Code 13956, subd. (d)(3).)
Existing law provides that when a victim dies as a result of a
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 (Gov. Code
13957, subd. (a)(9)):
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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. (Gov. Code
13957, subd. (a)(9)(A).)
When the crime occurs in a residence, the reasonable
costs to clean the scene of the crime in an amount not
to exceed $1000. (Gov. Code 13957, subd. (a)(9)(B).)
The funeral and burial expenses incurred as a direct
result of the crimes, not to exceed $7,500. (Gov. Code
13957, subd. (a)(9)(B).)
Existing law 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. (Gov. Code 13957. subd.
(b).)
This bill clarifies that the Victims Compensation and Government
Claims Board (Board) is required to award compensation to a
person seeking reimbursement for crime-scene cleanup, funeral
and burial expenses of a victim that died as a result of a crime
without respect to any felony status of the victim.
COMMENTS
1. Need for This Bill
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 loved ones if they
are still on parole or probation at the time of their
violent death.
A group of constituents came to visit me who had been
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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 he 1986 Cabarga case.
2. Additional Background Concerning Denial of Claims Submitted by
Persons Who were on Probation or Parole at the Time They
became Crime Victims
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
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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.
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 members 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
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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 Board at
any given time.
3. Related Bill - AB 2413 (Spitzer) - Eliminates the Requirement
that the Victim of a Crime be Killed During the Crime before
Reimbursement for Crime Scene Cleanup Can be Made
AB 2413 (Spitzer), also set for hearing on June 20, 2006 makes
changes to the same paragraph of the victims of crime
reimbursement program that is amended by this bill. In
particular, AB 2413 deletes the requirement that a victim has to
die as a result of a crime before reimbursement for crime scene
cleanup can be paid. It appears that this bill and AB 2413 can
be described as complimentary measures.
4. Inconsistent Provisions Concerning Crime Scene Cleanup,
Funeral and Burial Expenses
Existing law (Gov. Code 13955, subd. (a) and 13957 (a)(9))
provides that a person who, in response to a murder, pays crime
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scene cleanup, funeral or burial expenses may be eligible for
reimbursement. This bill states that provisions allowing
reimbursement for crime scene cleanup, funeral and burial
expenses apply "without respect to any felony status of the
victim." This bill refers to expenses allowed under Section
13957, subdivision (a)(9). However, AB 2413 (Spitzer) amends
subdivision (a) of Section 13957 to place the provisions
concerning crime scene cleanup in paragraph (10) of subdivision
(a). AB 2413 also provides that the victim of the crime need
not die to allow reimbursement for crime scene cleanup.
Thus, this bill states that crime scene cleanup reimbursement
can be paid to a person regardless of "felon status," but the
bill refers to a paragraph that will not include reimbursement
for crime scene cleanup if AB 2413 is enacted.
DO THE PROVISIONS OF THIS BILL AND THOSE IN AB 2413 (SPITZER)
NEED TO BE COORDINATED IN ORDER TO ELIMINATE A CONFLICT IN
STATUTORY REFERENCES AS CONCERNS REIMBURSEMENT FOR CRIME SCENE
CLEANUP?
Further, this bill raises the issue of whether or not
reimbursement for crime scene cleanup can be paid to the victim
of a crime, not a third party, particularly where the victim is
a felon. Staff members at the Board told Committee staff that
the Board interprets "felon status" to mean that a person is on
probation or parole. The Board also would expect that
reimbursement for crime scene cleanup would not be paid to a
person who is on felony probation or parole. However, the terms
of AB 2413 and this bill can certainly be read to allow or
require that reimbursement for crime scene cleanup be paid to
the victim of a violent crime who is on felony probation or
parole.
DOES THE TERM "FELON STATUS" MEAN THAT A PERSON IS ON PROBATION
OR PAROLE, OR DOES THIS MEAN THAT THE PERSON HAS BEEN PREVIOUSLY
CONVICTED OF A FELONY?
WOULD A CRIME VICTIM WHO IS ON FELONY PROBATION OR PAROLE BE
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ELIGIBLE FOR REIMBURSEMENT FOR CRIME SCENE CLEANUP (IF THE
VICTIM WAS NOT INVOLVED IN THE CRIME) THROUGH THE JOINT
OPERATION OF THIS BILL AND AB 2413 (SPITZER)?
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5. Crime Victims United - Request for Monitoring of Additional
Claims Related to This Bill
Crime Victims United (CVUC) would support this bill "if amended
to address a single concern." The suggested amendment is to
provide that "the additional claims that the Board would fulfill
as a result of this clarification in law be tracked and
monitored. This information would provide helpful insight into
the impact that this clarification would have on the ability of
the Board to pay its claims to all victims in need."
Crime Victims United does not state how the information about
claims by persons who have been convicted of felonies would be
used to set policy. Perhaps CVUC would seek additional funding
for the program if claims related to the bill increase the
number of claims made to the program. Perhaps CVUC would seek
to limit or prohibit claims by persons who have been convicted
of felonies that are unrelated to the claim.
6. Fund Surplus and Expenses Information
It appears that the Fund is in good financial shape. The fund
has a rising surplus and collections have improved significantly
in recent years.
2005 Projections for the Status of the Restitution Fund<2>
Surplus/reserve: It was projected that the
reserve for the Fund would increase from the prior
fiscal year's $44.5 million by about that same
amount. It will continue to increase slightly from
about $66.2 million at the end of 2004-05 to an
estimated $72.5 million at the end of fiscal year
2005-06.
Claims: It was estimated that 2005 claim
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<2> This information is taken from the analysis of SB 972
(Poochigian), Ch. 238, Stats. 2005, and is based upon data from
the Board.
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payments to victims from the Restitution Fund would
total $75 million, an increase of $7.8 million or
11.6% from the prior year. In fiscal year 2005-06,
estimated claims payments were projected to increase
by $8 million, or 10.7% to $83 million.
2006-07 Budget Year Projections (Budget Committee Information)
Surplus/reserve: It is projected that at the end
of fiscal year 2006-07, the Fund will have a surplus
of $109.8 million.
Expenses: It is projected that total expenditures
(claims and administrative costs) in fiscal year 2006-07
will be $101.3 million. Expenditures will rise slowly to
$102.7 million for 2006-07.
IS THE RESTITUTION FUND IN GOOD FINANCIAL SHAPE?
SHOULD EXISTING LAW BE CLARIFIED SO AS TO CONFIRM THAT CRIME
SCENE CLEANUP, FUNERAL AND BURIAL EXPENSES MAY BE PAID
REGARDLESS OF THE FELON STATUS OF THE VICTIM, UNLESS THE VICTIM
WAS INVOLVED IN THE UNDERLYING CRIME?
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