BILL ANALYSIS
SB 586
Page 1
Date of Hearing: June 29, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 586 (Yee) - As Amended: June 17, 2010
As Proposed to be Amended in Committee
SUMMARY : Increases the victim restitution fine, as specified,
assessed in felony cases from $200 to $300.
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)Requires the court to 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 $200 or $100
minimum. The court may specify that funds confiscated at the
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time of the defendant's arrest, except for funds confiscated
pursuant to existing law, be applied to the restitution fine
if the funds are not exempt for spousal or child support or
subject to any other legal exemption. [Penal Code Section
1202.4(c).]
5)Requires the California Victim Compensation and Government
Claims Board (VCGCB) to enter into an interagency agreement
with the University of California, San Francisco, to establish
a "victims of crime recovery center" at the San Francisco
General Hospital for the purpose of providing comprehensive
and integrated services to victims of crime, subject to
conditions set forth by the VCGCB. [Government Code Section
13974.5(a).]
6)States legislative intent to provide services to meet the
needs of both victims and witnesses of crime through the
funding of local comprehensive centers for victim and witness
assistance. [Penal Code Section 13835(f).]
7)Finds that although the State of California has a fund for
needy victims of violent crimes, and compensation is available
for medical expenses, lost income or wages, and rehabilitation
costs, the application process may be difficult, complex, and
time-consuming, and victims may not be aware that the
compensation provisions exist. [Penal Code Section 13835(f).]
8)Declares that there is a need to develop methods to reduce the
trauma and insensitive treatment that victims and witnesses
may experience in the wake of a crime since all too often
citizens who become involved with the criminal justice system,
either as victims or witnesses to crime, are further
victimized by that system. [Penal Code Section 13835(a).]
9)States that when a crime is committed, the chief concern of
criminal justice agencies has been apprehending and dealing
with the criminal; and that after police leave the scene of
the crime, the victim is frequently forgotten. [Penal Code
Section 13835(b).]
10)Declares that victims often become isolated and receive
little practical advice or necessary care. [Penal Code
Section 13835(c).]
11)Declares that a large number of victims and witnesses are
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unaware of both their rights and obligations. [Penal Code
Section 13835(e).]
12)Creates the Victims of Crime Program, administered by the
VCGCB, 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 VCGCB for these purposes.
(Government Code Sections 13950 to 13968.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This proposal
increases the minimum restitution fine imposed for
misdemeanors from $100 to $150 and would increase the penalty
for the felonies from $200 to $300, which were last increased
in 1994 and 1992, respectively. Assuming three percent annual
inflation, the $100 fine in 1994 dollars would equate to $160
in 2010 dollars. The $200 fine in 1992 dollars would equate
to $340 in 2010 dollars. is reasonable and proper to expect
offenders to pay more today than they paid over 15 years ago.
The expenses incurred by victims and the cost to reimburse
them have similarly increased with inflation. Furthermore,
this change to minimum fines would increase annual revenues to
the Restitution Fund by up to $30 million. This increase is
necessary as Restitution Fund projects to be insolvent before
the end of FY 11-12. Increasing the amount of restitution
fines imposed on offenders will address this problem by
increasing a reliable revenue stream for the Fund."
2)Restitution Fines : Generally, defendants convicted of a
misdemeanor or a felony must pay a restitution fine. A
defendant convicted of a misdemeanor must pay a fine of $100
to $1,000 and a defendant convicted of a felony must pay a
fine of $200 to $10,000. [Penal Code Section 1202.4(b);
People vs. Blackburn (1999) 72 Cal.App. 4th 1520, 1534.] That
money is deposited into the VCGCB fund. Courts are required
to impose these fines unless it finds "compelling and
extraordinary" reason not to do so and must state that reason
on the record. [People vs. Menius (1994) 25 Cal.App. 4th
1290.] Inability to pay is not considered "compelling and
extraordinary". [Penal Code Section 1202.4(e).] If a
defendant is sentenced to state prison, the California
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Department of Corrections and Rehabilitation may deduct 20 to
50% of the fine from the prisoner's wages. [Penal Code
Section 2085.5(a).]
3)Victims Compensation and Government Claims Board : According
to the VCGCB's Web site:
"The California Victim Compensation Program [CalVCP] provides
compensation for victims of violent crime who are injured or
threatened with injury. Among the crimes covered are domestic
violence, child abuse, sexual and physical assault, homicide,
robbery, drunk driving and vehicular manslaughter. If a
person meets eligibility criteria, CalVCP will compensate many
types of services when the costs are not covered by other
sources. Eligible services include medical and dental care,
mental health services, income loss, funeral expenses,
rehabilitation and relocation. Funding for CalVCP comes from
restitution fines and orders, penalty assessments levied on
persons convicted of crimes and traffic offenses, and federal
matching funds."
4)California Bureau of State Audits Report : The California
Bureau of State Audits reviewed the efficacy of the VCGCB in
December 2008 and made several findings as to how the VCGCB
paid claims over the last several years:
"Although the VCGCB's compensation payments significantly
declined from their level in fiscal year 2001-02, program
support costs have increased. These program support costs
account for a significant portion of the board's Restitution
Fund disbursements-ranging from 26 percent to 42 percent
during the seven-year period we reviewed. Although the board
does not set a goal that focuses on the correlation between
compensation payments and program support costs, nor does it
set other similar goals, such goals could ensure that the
board is providing the highest possible level of assistance to
victims and their families. Compensation payments declined
sharply after fiscal year 2001-02. In that fiscal year,
compensation payments totaled $123.9 million. By fiscal year
2003-04, payments had plummeted to $66.5 million, before
bottoming out at $61.6 million in fiscal year 2004-05. This
represents a 50 percent decrease in compensation payments.
"The deputy executive officer for the program (program officer)
attributed the decrease in compensation payments after fiscal
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year 2001-02 to actions that the board members took as they
attempted to ensure that the Restitution Fund, the fund from
which the board makes disbursements for the program, remained
financially viable. Effective September 2002, the board
members reduced the reimbursement rates for certain bills in
anticipation of the Restitution Fund becoming insolvent. For
example, rates for medical bills, which generally had been
paid at workers' compensation rates, were reduced to Medicare
levels.
"Also, hourly rates for mental health services were decreased by
type of service. For example, the board members reduced the
hourly rate for clinical social workers and counselors from
$90 to $70 and reduced the hourly rate for psychiatrists from
$130 to $90. However, in early 2003 the board did not have
enough money to pay all the bills it approved, so the board
members again reduced the reimbursement rates for medical
payments and delayed paying bills from providers for four
months. The rates, which had been at Medicare levels, were
reduced to 20 percent less than Medicare. The board members
also imposed limits on the number of sessions for mental
health services.
"The board members' actions had a chilling effect on the number
of applications submitted for the program. In fiscal year
2001-02, the board received 63,200 applications. By fiscal
year 2003-04, the number of applications submitted had
decreased significantly, to 49,700, reaching a low point of
46,900 in fiscal year 2005-06. The program officer indicated
that the decrease in applications and the related reduction in
payments were likely the result of several factors stemming
from the board members' attempts to maintain the solvency of
the Restitution Fund. He stated that the board members'
actions of cutting rates and delaying provider payments
reduced providers' desire to work with the program. As a
result, providers were probably less likely to tell victims to
apply for reimbursement. The program officer also stated that
victim advocates were less likely to promote the program as a
source of reimbursement to cover a victim's costs. Finally,
he noted that as the fund experienced difficulties, outreach
efforts were curtailed, which reduced knowledge of the
program, especially among providers and first responders.
"While the board's compensation payments significantly declined
from the levels reached in fiscal year 2001-02, its program
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support costs, such as those listed in the text box,
increased. As shown in Table 2, program support costs
increased from $44.4 million in fiscal year 2001-02 to $51.4
million in fiscal year 2007-08. Much of the increase did not
occur until after fiscal year 2005-06. Board staff pointed to
several reasons for the increase. For example, in fiscal year
2006-07 a significant portion of the implementation of the
CaRES [Compensation Restitution System] took place. Thus, the
board incurred administrative costs for added personnel and
information technology supplies. The board also incurred
costs for a scan facility that receives all new documents for
applications and bills and uploads them to CaRES. Another
factor that led to the increase is a greater number of
contracts with counties related to restitution and recovery
activities that support the program.
"Program support costs accounted for between 26 percent and 42
percent of the board's total disbursements during fiscal years
2001-02 through 2007-08. According to the deputy executive
officer for fiscal services (fiscal services officer), several
factors contribute to the board's program support costs making
up such a substantial portion of its total disbursements. One
factor is that the board is a stand-alone entity that shares
no administrative or overhead costs with other entities. As a
result, costs for all the management functions required for a
state entity, such as human resources, business services, and
information technology, are absorbed primarily by the
Restitution Fund."
The BSA also made several recommendations:
"The board should establish a complementary set of goals
designed to measure its success in maximizing assistance to
victims and their families. These goals should include one
that focuses on the correlation of compensation payments to
program support costs and one that establishes a target fund
balance.
"To improve its processing time for making decisions on
applications and for paying bills, the board should identify
the primary problems leading to delays and take action to
resolve them. As part of its efforts, it should develop
specific procedures for staff to use when following up with
verifying entities, and it should continue its outreach
efforts to communicate to verifying entities the importance of
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responding promptly to requests for information.
"The board should ensure that staff consistently verifies and
document that bills received could not be paid from other
reimbursable sources. Additionally, the board should
consistently maintain documentation of its formal approval of
applications and bills.
"To ensure that it maximizes its use of the Compensation
Restitution System (CaRES), the board should continue
correcting problems as they arise and develop goals,
objectives, and benchmarks related to the functions it carries
out under CaRES that will allow it to measure its progress in
providing prompt, high-quality service. Additionally, it
should develop and maintain system documentation sufficient to
allow staff to address modifications and questions about the
system more efficiently and effectively.
"The board should develop written procedures for managing its
workload and should implement the reporting function in CaRES
as soon as possible. Further, it should establish benchmarks
and performance measures to evaluate whether it is effectively
managing its workload.
"To ensure that the board appropriately carries out its outreach
efforts, it should develop a comprehensive plan that
prioritizes its efforts and focuses on those in need of
program services, and it should consider demographic and crime
statistics information when planning outreach strategies.
Additionally, the board should seek input from key
stakeholders such as assistance centers, JP units, and other
advocacy groups and associations to gain insight regarding
underserved and vulnerable populations. Further, it should
establish quantitative measures to evaluate the effectiveness
of its outreach efforts." [California State Auditor (December
2008) (hereinafter BSA Report) Victim Compensation and
Government Claims Board: "It Has Begun Improving the Victim
Compensation Program, but More Remains to be Done" Report
2008-113, pgs. 1-6.]
5)Current State of the VCGCB Fund : According to figures
provided by the VCGCB, "The Restitution Fund balance at the
end of FY [Fiscal Year] 07-08 was $133.1 million." SBx3 2
(Ducheny), Chapter 2, Statutes of 2009-10 Extraordinary
Session, relating to the Budget Act of 2008, appropriated $80
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million of that balance to the General Fund. VCGCB projects
the fund will be at $31 million by the end of FY 2009-10 and
$6.5 million at the end of FY 2010-11 and claims the fund will
be insolvent before the end of FY 2011-12.
The VCGCB Fund also receives a portion of the penalty
assessments levied on criminal convictions. Existing law
provides for an additional "state penalty" of $10 for every
$10 or fraction thereof, upon every fine, penalty or
forfeiture imposed and collected by the courts for criminal
offenses including all offenses, except parking offenses,
involving the Vehicle Code. Of the money collected, 70% is
transmitted to the state and 30% remains with the county. The
state portion of the money collected from the penalty is
distributed in specified percentages among: the Fish and Game
Preservation Fund (0.33%); the Restitution Fund (32.02%); the
Peace Officers Training Fund (23.99%); the Driver Training
Penalty Assessment Fund (25.70%); the Corrections Training
Fund (7.88%); the Local Public Prosecutors and Public
Defenders Fund (0.78%, not to exceed $850,000 per year); the
Victim-Witness Assistance Fund (8.64%); and the Traumatic
Brain Injury Fund (0.66%). (Penal Code Section 1464.)
According to the above-mentioned Bureau of State Audit Report,
"The [VCGCB fund] is financed by money held in the State's
Restitution Fund. The two main sources of revenue for the
Restitution Fund are restitution fines, penalty assessments
and other amounts collected by the State and Counties, and a
federal grant." [BSA Report (2008) pgs. 9-10.] Forty-one
percent of revenue deposited in the VCGCB Fund is from
restitution fines and fees; 35% is from penalty assessments;
18% is from federal grants; 4% is from restitution orders,
and; the remaining are liens on civil suits, fines for driving
under the influence and miscellaneous revenue. [BSA Report,
pg. 10.] Although the budget agreement transferred a total of
$80 million from the VCGCB Fund, there does not appear to be
an inadequate amount of money coming in. Are existing fines
sufficient to restore the Fund? What prevents the Governor
from re-allocating the money again, creating a need for
further increase?
6)Arguments in Support : According to the California Coalition
Against Sexual Assault , "Since 1965, the CalVCP has been
providing financial assistance to victims of violent crime,
including domestic violence, child abuse, sexual and physical
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assault, homicide, robbery, drunk driving and vehicular
manslaughter. Victims are compensated for many types of
services when no other sources of reimbursement are available.
Eligible services include medical and dental care, mental
health services, income loss, funeral and burial expenses,
rehabilitation, and crime scene clean up and emergency
relocation.
"The State Restitution Fund is on the verge of insolvency after
yeas of pet projects, record low collections, state borrowing
and increased service costs. In 2009, the Legislative
Analyst's Office informed the Senate Public safety Committee
that 'the Restitution Fund has increasingly become a source of
support for the expansion of various programs such as CalEMA's
California Gang Reduction, Intervention, and Prevention
Program' and 'if current expenditure trends continue, the
Restitution Fund will not be able to fully support VCP as well
as other programs. We estimate the fund could be insolvent in
2012-13.'
"In a CalVCP memorandum addressed to the California Coalition
Against Sexual Assault, it states, 'Since July 2004, CalVCP
has experienced an increase in applications and related claims
payouts. The number of applications received have increased
an average of four percent and claims payments average 12
percent per year. In FY 2008-09, CalVCP received eight
percent more application and paid out 16 percent more, over
$94 million, for victims' losses as compared to FY 2007-08.'
"The current statutory limits were set in the early 1990s and
have never been adjusted for inflation, slowly losing market
value as the financial cost of crimes continue to rise for
victims and service providers. SB 586 would adjust the
minimum limits to compensate for inflationary changes, while
still maintaining judicial flexibility when fines are
assessed."
7)Arguments in Opposition :
a) According to the California Public Defenders
Association , "80 percent of criminal defendants in
California meet the indigency requirements for receiving a
public defense counsel. These individuals struggle to be
able to pay existing fines, fees and penalties. The 50
percent increase to the minimum restitution fine as
envisions by this bill would create an untenable burden for
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indigent criminal defendants."
b) According to the Taxpayers for Improving Public Safety ,
"This bill would increase the minimum restitution fine to
$300 if the person is convicted of a felony, and to $150 if
the person is convicted of a misdemeanor. During a time in
which California is experiencing an economic "depression"
and at a time that the Legislature cannot fund important
governmental functions because of a lack of revenue, there
is little justification for imposing a tax increase, which
in effect this sanction is, on those least able to afford
payment. There is no justification for criminal conduct or
the damage to the victim of crime. However, impossibly
burdening an individual with a reimbursement sanctions
assures recidivism. The ability of a county jail inmate to
earn any money to pay toward the balance on a restitution
assessment is so small as to be immeasurable. For CDCR
inmates, the situation is even worse in that 55% of what an
inmate earns is redirected to payment of victim and court
restitution.
"The typical employed inmate nets less than $0.10 per hour.
From this fund, an inmate must pay for medical visits, and
such necessities as soap, shampoo, toothpaste,
toothbrushes, vitamins, etc. Although most individuals
assume that inmates are provided these items, they are not
provided in sufficient quantities for an inmate to have
them for an entire month. If this legislation is adopted
and inmates' wages are diverted to payment of an increased
restitution, inmates will not be able to maintain basic
hygiene which will create increased public health risks for
inmates and staff (MRSA and Clostridium difficile - known
as C-diff, by way of example) as well as creating increased
dental health problems when inmates do not seek
prophylactic dental treatment.
"Further, this legislation impinges upon the discretion of
the courts and by its nature, suggests that judges are not
sufficiently competent at the time of sentencing to
determine the appropriate amount of restitution. In the
courtroom, the prosecutor and the victim are capable of
explaining to the court why the restitution assessment
should be set higher than the minimum. If the court, after
hearing the evidence, believes that the current minimum
amount is the appropriate assessment, why should the
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legislature intervene and tell the judges that they do not
know what they are doing?
"A further unintended consequence of this amendment will be
to distance inmate family members from inmates. Currently,
any money sent by an inmate family member to an inmate is
subject to the restitution assessment. Thus, if a family
member sends an inmate $100.00, $55.00 is given to the
restitution fund. This is a tax on the family members of
inmates, which this committee seeks to increase. Already,
many family members have passed the tipping point and no
longer send money to inmates for necessities of life.
"Finally, CDCR relies heavily upon receipts from the inmate
welfare fund which is generated from the sale to inmates
from their limited income while in prison. The largest
single source for this fund which generated over $26
million for CDCR in 2008 is inmate canteen purchases. If
there is an increase in the amount of restitution, there
will be a corresponding decrease in the amount which
inmates spend on canteen purchases. Where is the
legislature going to find the funds necessary to replace
the lost funds to the inmate welfare fund when inmates use
all of their earnings for medical care?
8)Related Legislation : SB 733 (Leno) authorizes VCGCB to
evaluate applications and award grants totaling up to $3
million, up to $1.7 million per center, to multi-disciplinary
trauma recovery centers that provide specified services to and
resources for crime victims. SB 733 is pending hearing by the
Assembly Committee on Appropriations.
REGISTERED SUPPORT / OPPOSITION :
Support
California Coalition Against Sexual Assault
Crime Victims United
Victim Compensation and Government Claims Board
Opposition
California Public Defenders Association
Taxpayers for Improving Public Safety
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Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744