BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 314 (Calderon)
As Amended April 2, 2009
Hearing date: April 28 2009
Government Code
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VICTIMS OF CRIME PROGRAM:
COLLECTION OF RESTITUTION FINES; REIMBURSEMENT PAYMENTS
HISTORY
Source: Author
Prior Legislation: AB 2928 (Spitzer) - Ch. 752, Stats. 2008
SB 1203 (Runner) - 2008, failed passage in Assembly
Public Safety
AB 105 (Cohn) - Ch. 539, Stats. 2006
AB 2413 (Spitzer) - Ch. 571, Stats. 2006
Support: Los Angeles County District Attorney; California
Coalition Against Sexual Assault; Crime Victims United;
Chief Probation Officers of California
Opposition:None known
KEY ISSUES
SHOULD UNPAID RESTITUTION FINES BE DEDUCTED FROM A PERSON'S
INCOME TAX REFUND?
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SHOULD THE VICTIMS COMPENSATION AND GOVERNMENT CLAIMS BOARD BE
AUTHORIZED TO REIMBURSE A VICTIM FOR RELOCATION EXPENSES IN EXCESS
OF $2,000, IF THE ADDITIONAL FUNDS ARE DIRELY NEEDED TO PROTECT THE
VICTIM'S PHYSICAL OR EMOTIONAL WELL-BEING?
SHOULD THE LEGISLATURE FIND AND DECLARE THAT THE VICTIMS OF CRIME
FUND SHOULD NOT BE USED FOR PURPOSES OTHER THAN REIMBURSEMENT OF AND
SERVICES TO VICTIMS?
PURPOSE
The purposes of this bill are to 1) direct the Controller to
deduct unpaid restitution fines from a person's income tax
refund; and 2) authorize the Victims Compensation and Government
Claims Board to authorize reimbursement of more than $2,000 -
the maximum allowed by statute - for a victim's relocation
expenses, where the additional money is necessary for the
victim's physical or emotional well-being.
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 $1,000 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. (Penal 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
made, the defendant has the right to a hearing before the court
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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).)<1>
Existing law provides that in setting a felony restitution fine,
the court may determine the amount of the fine as the product of
$200 multiplied by the number of years of imprisonment the
defendant is ordered to serve, multiplied by the number of
felony counts of which the defendant is convicted. The court
shall impose the restitution fine unless it finds compelling and
extraordinary reasons for not doing so, and states those reasons
on the record. A defendant's inability to pay shall not be
considered a compelling and extraordinary reason not to impose a
restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the
$200 or $100 minimum. (Penal Code 1202.4, subd. (b)(1) and
(c).)
Existing law provides that where a defendant is placed on
probation, the court shall impose a probation revocation
restitution fine in the same amount as the standard restitution
fine. The fine shall be stayed unless and until the defendant's
probation is revoked. (Pen. Code 1202.44.)
Existing law provides that where a defendant is sentenced to
prison, the court shall impose a parole revocation restitution
fine in the same amount as the standard restitution fine. The
fine shall be stayed unless and until the defendant's parole is
revoked. (Pen. Code 1202.45.)
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(e).)
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<1> Penal Code 1202.4(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.
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Existing law provides that in any case in which a prisoner owes
a restitution fine or order the California Department of
Corrections and Rehabilitation (CDCR) shall deduct a minimum of
20 percent or the balance owing on the fine amount, whichever
is less, up to a maximum of 50 percent from the wages and trust
account deposits of a prisoner, unless prohibited by federal
law, and shall transfer that amount to the California Victim
Compensation and Government Claims Board (CVGCB) for deposit in
the Restitution Fund, as specified. The CDCR shall deduct and
retain from the wages and trust account deposits of a prisoner,
unless prohibited by federal law, an administrative fee that
totals 10 percent of any amount transferred, as specified.
(Penal Code 2085.5, subds. (a)-(c).)
Existing law provides that where a parolee owes a restitution
fine, the Department of Corrections and Rehabilitation (CDCR)
may collect the fine unless prohibited by federal law. CDCR
shall transfer that money to CVGCB for deposit in the
Restitution Fund. (Pen. Code 2085.5, subds.(d)-(e).)
Existing law provides that where a parolee owes direct
restitution to a victim, CDCR may collect the fine unless
prohibited by federal law. CDCR shall transfer that money to
CVGCB for direct payment to the victim. (Pen. Code 2085.5,
subds. (d)-(e).)
Existing law provides that CDCR may retain an administrative fee
of 10 percent of any fine or restitution collected from an
inmate or parolee for transfer to CVGCB. CDCR shall retain an
administrative fee of 5 percent of any settlement or trial award
paid to a parolee, where the settlement or award is used to
satisfy a restitution order or fine. (Pen. Code 2085.5,
subds. (c ) and (e).)
Deductions from Income Tax Refunds for Delinquent Accounts
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Existing law provides that the State Controller shall offset
delinquent accounts - deduct money from income tax refunds - In
the following priority:
Nonpayment of child or family support accounts enforced
by a local child support agency.
The nonpayment of child or family support accounts
enforced by someone other than a local child support
agency.
Nonpayment of spousal support accounts enforced by a
local child support agency.
Nonpayment of spousal support accounts enforced by
someone other than a local child support agency.
The benefit overpayment accounts administered by the
Employment Development Department if no signed
reimbursement agreement exists, or if two consecutive
payments on a reimbursement agreement are delinquent at any
time.
Other offset accounts in the priority determined by the
Controller. (Gov. Code 12419.3)
This bill directs the State Controller to offset "nonpayment of
penalties to the Restitution Fund" against the person's income
tax refund, with a priority beneath that of nonpayment of child
and spousal support orders.
Victims of Crime Fund Structure and Payments
Existing law creates the Victims of Crime Program, administered
by the California Victim Compensation and Government Claims
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Board<2>, 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. (Gov. Code
13950-13968; note that 13969, .2, .5, and .7 related to a
one-time 9/11/01 payment and are repealed effective 1/1/04.)
Existing law authorizes reimbursement to a victim for "[t]he
medical or medical related expenses incurred by the victim?."
(Gov. Code 13957, subd. (a)(1).)
Existing law provides that the total award to or on behalf of
each victim or derivative victim may not 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).)
Existing law (Gov. Code 13957, subd. (a)) provides that the
Victims Compensation and Government Claims Board may grant a
crime victim's claim for pecuniary loss for the following
purposes:
Reimbursement for the amount of medical or medical-related
expenses incurred by the victim including, but not limited to,
eyeglasses, hearing aids, dentures, or any prosthetic device
taken, lost, or destroyed during the commission of the crime,
or the use of which became necessary as a direct result of the
crime.
Reimbursement for the amount of out-patient psychiatric,
psychological or other mental health counseling-related
expenses incurred by the victim or derivative victim, as
specified. The victim or derivative victim, as specified, may
be reimbursed for the expense of his or her out-patient mental
health counseling in an amount not to exceed $10,000. Victims
and derivative victims, as specified, who are not eligible for
up to $10,000 of reimbursement may be eligible to be
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<2> 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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reimbursed for the expense of their out-patient mental health
counseling in an amount not to exceed $3,000.
Reimbursement for the expenses of non-medical remedial care
and treatment rendered in accordance with a religious method
of healing recognized by state law.
Compensation equal to the loss of income or loss of support,
or both, that a victim or derivative victim incurs as a direct
result of the victim's or derivative victim's injury or the
victim's death.
Cash payment to, or on behalf of, the victim for job
retraining or similar employment-oriented services.
Reimbursement for the expense of installing or increasing
residential security, not to exceed $1,000, with respect to a
crime that occurred in the victim's residence, upon
verification 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.
Reimbursement for the expense of renovating or retrofitting a
victim's residence or a vehicle, or both, to make the
residence, the vehicle, or both, accessible or the vehicle
operational by a victim upon verification that the expense is
medically necessary for a victim who is permanently disabled
as a direct result of the crime, whether the disability is
partial or total.
Cash payment or reimbursement not to exceed $2,000 to a victim
for expenses incurred in relocating if the expenses are
determined 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.
The board may authorize more than one relocation per crime if
necessary for the well-being of the victim, as defined,
although total reimbursement may not exceed $2,000.
The board, under compelling circumstances, may award
reimbursement for moving expenses to the same victim for a
second crime if both of the following conditions are met:
The crime occurs more than three years from the date
of the crime giving rise to the initial relocation cash
payment or reimbursement; and,
The crime does not involve the same offender.
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Existing law authorizes the board to "establish maximum rates
and service limitations for medical and medical-related
services, and for mental health and counseling services ?"
(Gov. Code 13957.2)
This bill provides that the board may approve reimbursement in
excess of $2,000 for expenses incurred by a victim in relocating
his or her residence where justified by "unusual, dire or
exceptional circumstances."
This bill makes the following findings and declarations:
The Legislature should not borrow or otherwise use
funds from the Restitution Fund to offset other
expenses or to supplement the state's budget, because
funds dedicated for the victims of crime should be
reserved for that sole purpose, and continuous raiding
of the Restitution Fund for purposes unrelated to the
victims of crime have threatened the solvency of the
Restitution Fund.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<3>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
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<3> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate
population must be reduced to at most 120% to 145% of
design capacity, with some institutions or clinical
programs at or below 100%. We caution the parties,
however, that these are not firm figures and that the
Court reserves the right - until its final ruling - to
determine that a higher or lower figure is appropriate
in general or in particular types of facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<4>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
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<4> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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1. Need for This Bill
The author states:
The Victims' Restitution Fund receives most of its
revenue from fines and penalties collected from
criminal offenders. Under current law, State agencies
may order that the Franchise Tax Board (FTB) divert
tax return money to agencies that are owed outstanding
debt. Different types of debt are assigned different
priority levels in order to determine their order of
payment.
SB 314 puts payments to the Restitution Fund from the
FTB at a higher priority than payments to other
entities. Secondly, SB 314 recognizes that continuous
raiding by the Governor and/or Legislature has left
the Victims Restitution Fund (housed under the VCGCB)
threatened with insolvency. SB 314 makes clear that
the purpose of the VCP is for payment for services
directly administered to victims of violent crimes.
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2. Condition of the Victims of Crime Fund
2007- 2008 Financial summary (in millions)
Beginning Fund Balance 136.2
Revenue
Restitution Fines and Fees 63.1
Penalty Assessments 54.0
Restitution Orders 7.0
Civil or Criminal Violations 1.9
Liens on Civil Suits 1.2
Federal VOCA Grant 32.1
Miscellaneous Revenue 1.2
Subtotal FY 2007-08 Revenue 160.5
Total Reserves and FY 2007-08 Revenue 296.7
Expenditures
Adjusted Claims Payments 82.1
Program Costs
Salaries and Benefits 21.7
Joint Powers Contracts 11.1
Criminal Restitution Compact Contracts 2.9
Interagency and Other Contracts 1.8
Facilities Operations & Pro Rata 3.8
Data Center and Processing 4.0
Operating Expenses 1.5
Total Program Costs 46.8
Special Appropriations
Department of Justice 6.7
Office of Emergency Services 10.2
Ten Percent Rebate Program 5.7
State Controllers Office
.03
County Special Elections Costs 2.6
Total Special Appropriations 25.2
Total Expenditures 154.1
Ending Fund Balance 142.6
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The fund balance will be reduced by more than pursuant to the
recent budget agreement:
2008-2009 Transfer to General Fund - 80
3. Transfer of $80 Million to the General Fund from Victims Fund
As is noted at the end of the tables of the financial condition
of the fund, $80 million has been or will be transferred from
the Victims of Crime Fund to the General Fund because of the
ongoing fiscal-budget crisis. Further, increased awareness of
the fund by victims, better victim assistance in local agencies
with "joint powers" agreements with the fund and other pressures
on the fund arguably demonstrates a need for more aggressive and
complete collection of restitution fines and orders.
This bill will direct the Controller to deduct delinquent
restitution fine amounts from a person's income tax refunds.
Child, spousal and family support orders will have greater
priority for deductions from a person's income tax refund.
Arguably, this bill will allow more efficient and thorough
collection of restitution fines without harming the dependents
of persons with delinquent restitution fines.
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SHOULD THE LEGISLATURE DECLARE THAT MONEY FROM THE VICTIMS OF
CRIME FUND SHOULD NOT BE TRANSFERRED TO SUPPORT OTHER PROGRAMS
AND THAT VICTIM COMPENSATION FUNDS SHOULD BE DEDICATED TO VICTIM
SERVICES?
IN LIGHT OF PRESSURES ON THE VICTIMS FUND - INCLUDING TRANSFER
OF $80 MILLION TO THE GENERAL FUND AS PART OF THE REVISED
2008-2009 BUDGET, SHOULD PROVISIONS FOR INCREASING COLLECTION OF
DELINQUENT RESTITUTION FINES BE ADOPTED?
SHOULD SUCH PROVISIONS INCLUDE DEDUCTING DELINQUENT AMOUNTS FROM
INCOME TAX REFUNDS?
4. Increased Relocation Expenses
Under existing laws and rules, a victim may receive a maximum of
$70,000 in compensation from the compensation program. However,
there are limits for specific expenses, including a maximum of
$2,000 for relocation expenses. A victim can be compensated for
moving twice in response to a single crime. Further, a victim
who has received compensation for relocation after one crime can
receive compensation for relocation where necessary after a new
crime, if the second crime was committed by a different
perpetrator.
Arguably, circumstances will arise where a victim has reasonably
incurred more than $2,000 in relocation expenses. This bill
would allow a victim to receive more than $2,000 in
reimbursement in "unusual, dire or exceptional circumstances."
The bill does not entitle a crime victim to the additional
reimbursement. The board would determine if such circumstances
have been established.
SHOULD A CRIME VICTIM BE ELIGIBLE FOR REIMBURSEMENT FOR
RELOCATION EXPENSES IN EXCESS OF $2,000 IF THE EXPENSES WERE
JUSTIFIED BY "UNUSUAL, DIRE OR EXCEPTIONAL CIRCUMSTANCES?"
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