BILL ANALYSIS
AB 1710
Page 1
Date of Hearing: May 4, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1710 (Nava) - As Introduced: February 2, 2010
SUMMARY : Provides that no offset from or reduction of the
amount the court finds to be the victim's full restitution, as
specified, shall be made due to any claim of comparative
negligence or other fault, intentional or otherwise on the part
of the victim and states legislative intent to abrogate the
holding of People vs. Millard (2009) 175 Cal.App.4th 7, as
specified.
EXISTING LAW :
1)States 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 restitution fine, as specified, and
restitution to the victim or victims, if any, as specified,
which shall be enforceable as if the order were a civil
judgment. [Penal Code Section 1202.4(a).]
2)Provides that 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. [Penal Code Section 1202.4(b).]
3)Mandates the restitution fine be set at the discretion of the
court and commensurate with the seriousness of the offense,
but shall not be less than $200, and not more than $10,000, if
the person is convicted of a felony, and shall not be less
than $100, and not more than $1,000, if the person is
convicted of a misdemeanor. [Penal Code Section 1202.4(b)(1)
and (2).]
4)Provides that to the extent possible, the restitution order
shall be prepared by the sentencing court and 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
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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) Mental health counseling expenses.
d) 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. Lost wages shall
include any commission income as well as any base wages.
Commission income shall be established by evidence of
commission income during the 12-month period prior to the
date of the crime for which restitution is being ordered,
unless good cause for a shorter time period is shown.
e) 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. Lost
wages shall include any commission income as well as any
base wages. Commission income shall be established by
evidence of commission income during the 12-month period
prior to the date of the crime for which restitution is
being ordered, unless good cause for a shorter time period
is shown.
f) Non-economic losses, including, but not limited to,
psychological harm, for felony violations of child
molestation.
g) Interest, at the rate of 10% per annum that accrues as
of the date of sentencing or loss, as determined by the
court.
h) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the
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victim.
i) Expenses incurred by an adult victim in relocating away
from the defendant, including, but not limited to, deposits
for utilities and telephone service, deposits for rental
housing, temporary lodging and food expenses, clothing, and
personal items. Expenses incurred pursuant to this section
shall be verified by law enforcement to be necessary for
the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional
well-being of the victim.
j) Expenses to install or increase residential security
incurred related to a crime, as defined, including, but not
limited to, a home security device or system, or replacing
or increasing the number of locks.
aa) Expenses to retrofit a residence or vehicle, or both, to
make the residence accessible to or the vehicle operational
by the victim, if the victim is permanently disabled,
whether the disability is partial or total, as a direct
result of the crime. [Penal Code Section 1202.4(f)(3)(A)
to (K).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In People v.
Millard, the jury convicted the defendant of causing bodily
injury while driving under the influence. The conviction
stemmed from an accident that occurred when the defendant
swerved his SUV into oncoming traffic and struck a
motorcyclist. During restitution proceedings, the court found
that the victim's contributory negligence was a substantial
factor in causing his injuries and therefore reduced his
restitution by 25 percent based on the doctrine of comparative
negligence.
"On the People's appeal, the court found that the restitution
provision requires a criminally negligent defendant to
reimburse a victim only to the extent the defendant's criminal
conduct caused the victim's economic losses, thereby allowing
application of comparative negligence. The issue of applying
the doctrine of comparative negligence to reduce the amount of
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victim restitution that a criminally negligent defendant must
pay was one of first impression in Millard (not the subject of
prior court rulings). This holding represents an
unprecedented application of civil standards and concepts in a
criminal matter.
"By allowing this misguided modification of restitution, the
courts will wipe out victims' long-standing protection under
the law to receive compensation that will help them repair
their lives.
"In the wake of Millard, prosecutors will likely have to prepare
for trial not just to prove the elements of the crime charged,
but also to prove levels of negligence, to make sure that a
judge at sentencing did not use the absence of evidence at
trial regarding comparative negligence as a reason to
summarily reduce the victim's constitutionally mandated
restitution.
"If Millard remains the law, prosecutors will, even after a
successful prosecution at trial or by plea, have to put on as
much evidence at a restitution hearing as would be used at a
civil trial on damages. AB 1710 (Nava) will abrogate the
ruling in Millard by amending Penal Code Section 1202.4(f) to
expressly prohibit the reduction of a victim's full
restitution amount by any claim of comparative or contributory
negligence or other fault, on the part of the victim.
2)Restitution : When a person is convicted of a criminal
offense, he or she is generally ordered to pay restitution to
the victim. For instance, if a person vandalizes the property
of another, he or she will be ordered to compensate the victim
for the loss of the property. Although the concept of
restitution, or "restoring" the victim dates back to English
common law, California memorialized its commitment to
restitution when it enacted Proposition 115, also known as the
"Victim's Bill of Rights". The Victim's Bill of Rights
states:
"It is the unequivocal intention of the People of the State of
California that all persons who suffer losses as a result of
criminal activity shall have the right to restitution from the
persons convicted of the crimes for losses they suffer.
Restitution shall be ordered from the convicted persons in
every case, regardless of the sentence or disposition imposed,
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in which a crime victim suffers a loss, unless compelling and
extraordinary reasons exist to the contrary." [Cal. Const.
Art. I 28(b).]
Existing law further clarifies what constitutes a loss and who
may claim reimbursement. The court may impose a specific
restitution fine beyond any court-ordered fees or actual loss
which is placed in the Victim Restitution fund. [Penal Code
Section 1202.4(b).] A "victim" is defined in relevant part as
"the immediate surviving family of the actual victim or any
corporation, business, trust, estate, partnership,
association, joint venture, governmental subdivision, agency,
or instrumentality, or any other legal or commercial entity
when that entity is a direct victim of the crime." [Penal
Code Section 1202.4(k)(1) and (2).] The purpose of criminal
restitution is to make the victim whole and to punish and
rehabilitate the defendant. [People v. Moser (1996) 50
Cal.App.4th 130.]
The trial court must order full restitution unless it finds
compelling and extraordinary reasons for not doing so, and
states those reasons on the record. Penal Code Section 1202.4
provides for full restitution of victims' economic losses, but
"does not authorize direct restitution for non-economic
losses." [People vs. Giordano (2007) 42 Cal.4th 644, 656.]
"Direct victims of crime have a statutory right to restitution
on the full amount of their losses without regard to the full
or partial recoupment from other sources (except the state
Restitution Fund). [People vs. Baker (hereinafter Baker)
(2005) 126 Cal.App. 4th 463, 468.]
At a victim restitution hearing, a prima facie case for
restitution is made by the People based in part on a victim's
testimony on, or other claim or statement of, the amount of
his or her economic loss. [People vs. Prosser (hereinafter
Prosser) (2007) 157 Cal.App.4th 682, 690.] "Once the victim
has [i.e., the People have] made a prima facie showing of his
or her loss, the burden shifts to the defendant to demonstrate
that the amount of the loss is other than that claimed by the
victim." (Prosser at 691.)
The court's discretion in setting the amount of restitution is
broad, and the court may use any rational method of fixing the
amount of restitution as long as restitution is reasonably
calculated to make the victim whole. (Baker at 470.) "There
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is no requirement the restitution order be limited to the
exact amount of the loss in which the defendant is actually
found culpable, nor is there any requirement the order reflect
the amount of damages that might be recoverable in a civil
action." [People vs. Carbajal (1995) 10 Cal.4th 1114, 1121.]
3)Comparative Negligence : The language of this bill prohibits
the trial court from using a theory of "comparative
negligence" to reduce a victim's restitution order.
Comparative negligence is a method of reducing damages in tort
claims where the plaintiff's actions are in some part the
cause of the tortious conduct. For instance, if the trial
court determines the plaintiff was 25% responsible for a car
accident, the court may reduce the plaintiff's damages by 25%.
This is different than "contributory negligence". A theory
of contributory negligence means that if the plaintiff is at
all responsible for the tortious conduct, even only slightly,
he or she is awarded nothing. The California Supreme Court
adopted the theory of comparative negligence in Li vs. Yellow
Cab Company.
The Li Court stated: "For all of the foregoing reasons we
conclude that the 'all-or-nothing' rule of contributory
negligence as it presently exists in this state should be and
is herewith superseded by a system of 'pure' comparative
negligence, the fundamental purpose of which shall be to
assign responsibility and liability for damage in direct
proportion to the amount of negligence of each of the parties.
Therefore, in all actions for negligence resulting in injury
to person or property, the contributory negligence of the
person injured in person or property shall not bar recovery,
but the damages awarded shall be diminished in proportion to
the amount of negligence attributable to the person
recovering.
"The doctrine of last clear chance is abolished, and the defense
of assumption of risk is also abolished to the extent that it
is merely a variant of the former doctrine of contributory
negligence; both of these are to be subsumed under the general
process of assessing liability in proportion to negligence.
Pending future judicial or legislative developments, the trial
courts of this state are to use broad discretion in seeking to
assure that the principle stated is applied in the interest of
justice and in furtherance of the purposes and objectives set
forth in this opinion." [Li vs. Yellow Cab Company (1975) 13
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Cal.3rd 804, 829.] Hence, when a jury or a court is
determining damages in civil cases, it must apply a theory of
comparative negligence. However, prior to the Court of
Appeals ruling in People vs. Millard, courts have not usually
applied the theory of comparative negligence in criminal cases
of restitution.
4)People vs. Millard : In 2009, the California Court of Appeals
ruled that the trial court may use a theory of comparative
negligence in determining restitution in criminal cases.
First, a recounting of the relevant facts in the Millard case
is in order. On the late evening of December 2003, the
victim, Billy Frank Payne was riding his motorcycle on Tustin
Avenue in Orange County. The accident reconstructionist
assumed he was driving approximately 40 miles per hour and was
driving in the left lane (closest to the middle of the
multi-lane street). The defendant, Millard, was traveling in
the opposite direction and suddenly crossed a double yellow
line into the victim's lane without using his blinker. Payne
engaged his breaks but was unable to avoid hitting Millard's
vehicle and was badly injured. When officers arrived at the
scene, they noticed the defendant appeared to be under the
influence of alcohol. After submitting to a blood test,
Millard's blood alcohol content was between 0.11% and 0.12%,
well over the legal limit. Millard was charged with two
counts of driving under the influence (DUI) causing injury and
a great bodily injury enhancement. Millard was convicted of
DUI with injury and the enhancement found true. At the
restitution hearing, the court ruled that Payne was partly at
fault for the accident for not seeing Millard in time to avoid
the accident and wearing a dark face shield at night and
reduced his compensation by 25%. An appeal followed.
Although the Court agreed the application of comparative
negligence was an issue of first impression, it validated the
lower court's usage of comparative negligence in determining
restitution.
"The victim [e.g., Payne] should not profit more because a
person was under the influence when the victim contributed to
the accident and his injuries. The People argue that
'innocence' is in the criminal law sense and not the tort
sense. Sommers seems to belie this concept. . . . But as
noted in Sommers, fault on a victim's part should not be a
bar, just a factor to be considered by the court in its
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analysis. (Internal citation omitted).
"The court finds that the evidence is clear that Mr. Payne was
driving at a high rate of speed, driving an unsafe vehicle,
was untrained in motorcycle driving, took no evasive maneuvers
and in essence went straight into the defendant's car without
even a minimal amount of avoidance taken. Mr. Payne even had
himself in the 3rd lane of traffic prior to the accident. The
court having heard the trial became convinced that Mr. Payne
was a contributory cause of the accident.
"Comparative fault is not a defense to the crime. Payne is
entitled to restitution. The court in weighing the factors of
the trial finds that 25 percent is a reasonable figure to
assign for contributory negligence to Mr. Payne. The court
does this under the concept that it should order full
restitution unless it finds compelling and extraordinary
reasons for not doing so. When a victim in a non-malice type
case, i.e., driving while under the influence and causing
injury with no aggravation involved. A simple illegal left
turn is what this case was. . . .
"Justice and fairness require that the court make the 25 percent
adjustment based on the court hearing the trial, evaluating
the evidence and the witnesses and the facts." Multiplying
Payne's total economic losses of $1,254, 286 by Millard's 75%
comparative fault (in effect imposing partial responsibility
on Payne for his 25% comparative fault), the court concluded
Millard was responsible for $933,964 of Payne's economic
losses (before granting Millard credit of $547,800 for
economic losses already paid pursuant to the settlement
agreement).
"We have not found any case that has addressed the question of
whether the doctrine of comparative negligence may be applied
to reduce a criminally negligent defendant's obligation to pay
Penal Code Section 1202.4 restitution to a victim whose
negligence was also a substantial factor in causing the
victim's injuries. Furthermore, our review of applicable
constitutional and statutory provisions shows that question
has not been, either expressly or implicitly, addressed.
"On the date of the judgment in this case, article I, section
28(b) of the California Constitution provided: 'It is the
unequivocal intention of the People of the State of California
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that all persons who suffer losses as a result of criminal
activity shall have the right to restitution from the persons
convicted of the crimes for losses they suffer. Restitution
shall be ordered from the convicted persons in every case,
regardless of the sentence or disposition imposed, in which a
crime victim suffers a loss, unless compelling and
extraordinary reasons exist to the contrary.' Accordingly,
the California Constitution does not address the instant
question. Similarly, Penal Code Section 1202.4(f)(3),
provides: '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 . . . .' (Italics
added.) At first glance, that statutory provision arguably
could be interpreted as requiring a criminally negligent
defendant to fully reimburse a victim for all of the victim's
economic losses without regard to the victim's contributory
negligence.
"However, on closer review, we conclude that provision should be
interpreted as requiring a criminally negligent defendant to
reimburse a victim only to the extent his or her criminal
conduct caused the victim's economic losses, thereby
implicitly allowing the application of the doctrine of
comparative negligence to preclude restitution to the extent
the victim's own negligence was a cause of his or her
injuries. A criminal defendant is required to reimburse his
or her victim only for those economic losses suffered 'as the
result of the defendant's criminal conduct.' " [Penal Code
Section 1202.4(f)(3).] If the doctrine of comparative
negligence were not applicable, a criminally negligent
defendant could be required to reimburse a victim for economic
losses that were comparatively the result or the fault of the
victim's own negligence. [People vs. Millard (2009) 175
Cal.App 4th 7, 37-38.]
5)Arguments in Support : According to the California District
Attorneys Association , "In Millard, the jury convicted the
defendant of causing bodily injury while driving under the
influence. The conviction stemmed from an accident that
occurred when the defendant swerved his SUV into oncoming
traffic and struck a motorcyclist. The victim received a
reduced award under the state's victim restitution law (Penal
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Code section 1202.4) because the court found that his
contributory negligence and the People appealed the
application of that theory. The appellate court endorsed the
comparative negligence approach, applying many standards used
in civil cases, but not mentioned in Penal Code section 1202.4
or previous case law. Specifically, the court found that the
restitution provision requires a criminally negligent
defendant to reimburse a victim only to the extent defendant's
criminal conduct caused victim's economic losses, thereby
implicitly allowing application of comparative negligence.
"The issue of applying the doctrine of comparative negligence to
reduce the amount of victim restitution that a criminally
negligent defendant must pay was one of the first impression
of Millard (not the subject of prior court rulings). The
potential danger of the court's ruling is clear: judges can
decrease the victim restitution based on essentially
subjective decisions about level of culpability. If a victim
did not appear I court for the restitution hearing, or
otherwise was unavailable, the defendant who has plead or been
found guilty would still be able to hotly contest a matter
that, perhaps above all other factors, directly affects the
victim. Prosecutors would have to prepare for trial not just
to prove the elements of the crime charged, but also to prove
levels of negligence, to make sure that a judge sentencing did
not use the absence of evidence at trial regarding comparative
negligence as a reason to summarily reduce the victim's
constitutionally-mandated restitution.
"If Millard remains the law, prosecutors will, even after a
successful prosecution at trial or by plea, have to put on as
much evidence at a restitution hearing as would be used at a
civil trail on damages. The victim would once again be hauled
into court, accused of misdeeds and negligence, and made to
defend himself or herself against a convicted criminal's
contentions that the damages, at least in part, were really
the victim's fault.
"Finally, in comparative negligence standard, read in
conjunction with all of the constitutional right for victims
stemming from Proposition 8 (1982) and Proposition 9 (2008),
prosecutors would be in a completely untenable position.
Restitution award amounts would become fodder for defendants
to leverage a more lenient sentence, e.g., agreeing not to
contest the full amount of restitution if a lesser jail or
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prison sentence is given. If the prosecutor accedes to this,
the victim's constitutional rights have been ignored
illegally. If the prosecutor does not bend to this, the
defense can essentially seek to punish the victim for
exercising his or her right to get full restitution requiring,
even after the constitutionally-mandated jury trial is had, a
full-blown sentencing hearing re-litigating the issue of
comparative negligence and restitution. This would be
intolerable and would put victims in a demonstrably worse
position than they were in prior to the 1983 enactment of
Proposition 8 and the codification contained in Penal Code
section 1202.4."
6)Arguments in Opposition :
a) California Judges Association , "Current law already
requires a court to grant full restitution to a victim
'unless it finds compelling and extraordinary reasons for
not doing so . . . ' (Penal Code Section 1202.4(f).) The
case of People vs. Millard (2009) 175 Cal.App.4th 7
exemplifies how the current law is applied. In Millard,
the court affirmed a trial court's decision to 'reduce the
amount of restitution by 25 percent because the victim's
contributory or comparative negligence in causing the
accident. The evidence supported inferences that the
victim was speeding, inattentive, wore a dark face shield,
drove an unsafe motorcycle and/or failed to attempt to
avoid the collision.' (Id.)
"AB 1710 would effectively overturn Millard, stripping the
criminal court of its ability to consider comparative fault
when determining restitution. Such a change in the law is
unnecessary and unjustified. Moreover, it is worth noting
that by forcing the court to ignore comparative fault in
criminal cases, victims will have a strong incentive
(through the prosecuting agency) to push for restitution in
criminal court where full recovery would be possible,
rather than in civil court where recovery may be reduced by
comparative fault. Such forum may burden already
overloaded criminal court dockets and perhaps prosecuting
agencies' caseloads, as well."
b) California Public Defenders Association : "AB 1710 would
deny a court the ability to apply the doctrine of
comparative negligence in determining the appropriate
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amount of restitution to be awarded to a victim even when
the victim's own negligence or fault, whether intentional
or otherwise, contributed to the economic loss at issue. As
required by Prop 8 and existing Penal Code section 1202.4,
a defendant in a criminal case is required to reimburse the
victim only for those economic losses suffered as the
result of the criminal defendant's conduct. (People v.
Millard, 175 Cal.App.4th 7 (2009)). As pointed out by the
court in Millard, Penal Code section 1202.4, subdivision
(f)(3), provides: "To the extent possible, the restitution
order ?. 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 ? ." (Italics added.)
"As discussed in Millard, existing law already provides that
a party who commits intentional misconduct should not be
entitled to escape responsibility for damages based upon
the negligence of the victim. The doctrine of comparative
negligence only applies to cases where the defendant's
actions amounted to negligence and where the victim's
actions or conduct substantially contributed to the losses.
The application of the doctrine of comparative negligence
applies in cases where the defendant's offense is, in
effect, merely criminal negligence, in contrast to the
intentional crimes and torts (e.g., murder, robbery, and
battery) to which the doctrine of comparative negligence
would not apply. Application of comparative negligence
holds a criminally negligent defendant responsible for the
full amount of the victim's economic losses that resulted
from the defendant's proportionate fault. The victim will
still receive full reimbursement for economic losses
attributable to the criminally negligent defendant's
offense and which reflect the proportion of the defendant's
fault which caused the victim's losses.
"The Millard court concluded that provision should be
interpreted as requiring a criminally negligent defendant
to reimburse a victim only to the extent his or her
criminal conduct caused the victim's economic losses,
thereby implicitly allowing the application of the doctrine
of comparative negligence to preclude restitution to the
extent the victim's own negligence was a cause of his or
her injuries. If the doctrine of comparative negligence
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were not applicable, a criminally negligent defendant could
be required to reimburse a victim for economic losses that
were comparatively the result or the fault of the victim's
own negligence. As pointed out in Millard, the logical and
consistent approach to victim restitution as applied in
Penal Code section 1202.4 is to parallel a victim's usual
tort civil remedy for economic losses caused by the
defendant's criminal conduct.
"By way of illustration, as pointed out by the Millard court,
if a trial court found that a defendant's criminal
negligence was only a 5 percent factor in causing a
victim's losses and the victim's own negligence was a 95
percent factor in causing his or her own losses, a
restitution order compelling the defendant to pay 100
percent of the victim's economic losses would violate
fundamental notions fairness as well as responsibility and
liability for damage in direct proportion to the amount of
negligence of each of the parties cited by the California
Supreme Court in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804,
(Li, supra, 13 Cal.3d at p. 829.)
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
California Coalition Against Sexual Assault
California District Attorneys Association
California Narcotics Officers Association
California Peace Officers Association
California Police Chiefs Association
California Probation Parole and Correctional
Association
California State Sheriffs' Association
Chief Probation Officers of California
Crime Victims United
Los Angeles Police Protective League
Los Angeles Probation Officers Union
Riverside Sheriffs Association
Opposition
California Judges Association
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California Public Defenders Association
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744