BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 676 (Wolk)
As Amended April 13, 2009
Hearing date: April 21, 2009
Code of Civil Procedure; Fish and Game Code; Government Code;
Penal Code; Welfare and Institutions Code
MK:br
LOCAL FEES
HISTORY
Source: Yolo County
Prior Legislation: SB 251 (Ayala) - Ch. 389, Stats. 1996
Support: Humboldt County Board of Supervisors; California Public
Defenders Association; California State Association of
Counties (CSAC)
Opposition:None known
KEY ISSUE
SHOULD THE AMOUNT IN FEES THAT A COUNTY, CITY OR COURT MAY CHARGE
FOR VARIOUS SERVICES BE INCREASED OR THE MAXIMUM AMOUNT THAT CAN BE
CHARGED ELIMINATED SO THAT ACTUAL COSTS OF THE SERVICES CAN BE
COLLECTED?
PURPOSE
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The purpose of this bill is to increase or eliminate the maximum
for various fees a county, city or court may charge for
specified services.
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 1464.)
Existing law provides for an additional county penalty
assessment of $7 for every $10 or fraction thereof, upon
every fine, penalty, or forfeiture imposed and collected by
the courts for criminal offenses, including all offenses
involving a violation of the Vehicle Code or any local
ordinance adopted pursuant to the Vehicle Code except
parking offenses. The money collected shall be placed in
any of the following funds if established by a County Board
of Supervisors: Courthouse Construction Fund; a Criminal
Justice Facilities Construction Fund; Automated Fingerprint
Identification Fund; Emergency Medical Services Fund; DNA
Identification Fund. (Government Code 76000 et seq.)
Existing law , as a part of the 2002-03 Budget Act, provides
the Legislature impose a temporary state surcharge of 20% on
every base fine collected by the court. All money collected
shall be deposited in the General Fund. (Penal Code
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1465.7.)
Existing law , as a part of the Trial Court Facilities Act of
2002 (SB 1732 - Escutia), provides the Legislature establish
the "State Court Facilities Construction Fund" and added a
state court construction penalty assessment in an amount up
to $5 for every $10 or fraction thereof, upon every fine,
penalty, or forfeiture imposed and collected by the courts
for criminal offenses. The variation in the amount is
dependant on the amount collected by the county for deposit
into the local Courthouse Construction Fund established
pursuant to Government Code Section 76100. As a result, the
penalty assessment ranges from $0.00 for every $10 in two
counties to the full $5 for every $10 in nine counties.
This provision took effect on January 1, 2003. (Government
Code 70372.)
Existing law , as part of the 2003-04 Budget, provides the
Legislature approve a flat fee of $20 on every conviction
for a criminal offense to ensure adequate funding for court
security. This provision took effect immediately. (Penal
Code 1465.8.)
Existing law , as part of Prop 69, Nov. 2004, levies a $1
penalty assessment on every $10 in fines and forfeitures
resulting from criminal and traffic offenses and dedicates
these revenues to state and local governments for DNA databank
implementation purposes - the state will receive 70% of these
funds in the first two years, 50% in the third year and 25%
annually thereafter. The remainder will go to local
governments. (Government Code 76104.6.)
Existing law , creates an additional penalty assessment of $2
on every $10 to support emergency medical services.
(Government Code 7600.5.)
Existing law provides for a fee not to exceed $15 for the
issuance of a certificate showing whether there are any federal
liens on file. (Code of Civil Procedure 2103.)
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This bill provides that the fee for the issuance of a
certificate showing whether there are any federal liens shall
cover the actual cost of the certificate.
Existing law sets forth specified fees to defray the costs of
managing and protecting fish and wildlife trust resources in
California including projects that require an environmental
impact report. In addition to other fees the county clerk may
charge a documentary handling fee of $50 per filing. (Fish and
Game Code 711.4.)
This bill removes the maximum filing fee providing instead that
the county clerk may charge a documentary handling fee per
filing to reimburse the county for the actual costs of services
rendered.
Existing law provides that the filing fee for recording and
indexing every instrument, paper or notice required or permitted
by law to be recorded is $4 for the recording of the first page
and $3 for each additional page, with the ability to charge
additional fees as specified. (Government Code 27361.)
This bill provides that the filing fee for recording and
indexing every instrument, paper or notice required or permitted
by law to be recorded is $10 for the recording of the first page
and $ 3 for each additional page, with the ability to charge
additional fees as specified.
Existing law provides whenever any instrument, paper, or notice
is recorded which contains references to more than one
previously recorded document and which requires additional
indexing by the county recorder to give notice by law, an
additional fee of $1 shall be charged for each reference to a
previously recorded document, other than the first such
reference, requiring additional indexing. (Government Code
27361.2.)
This bill provides that the fee for the above shall be an amount
which will reimburse the county for actual costs of services
rendered.
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Existing law provides that whenever any instrument, paper or
notice is recorded which requires additional indexing by the
county recorder to give notice required by law and does not
refer to a previously recorded document by reference, as covered
in Section 27361.2, an additional fee of $1 shall be charged for
each group of 10 names or fractional portion thereof after the
initial group of 10 names. (Government Code 27361.8.)
This bill provides that the fee for the above shall be an amount
which will reimburse the county for the actual costs of services
rendered.
Existing law provides that notwithstanding any other provision
of law that prescribes an amount or otherwise limits the amount
of a fee or charge that may be levied by a county, a county
service area, or a county waterworks district governed by a
county board of supervisors, a county board of supervisors
shall have the authority to increase or decrease the fee or
charge, that is otherwise authorized to be levied by another
provision of law, in the amount reasonably necessary to recover
the cost of providing any product or service or the cost of
enforcing any regulation for which the fee or charge is levied.
The fee or charge may reflect the average cost of providing
any product or service or enforcing any regulation. If any
person disputes whether a fee or charge levied is reasonable;
the board of supervisors may request the county auditor to
conduct a study and determine whether the fee or charge is
reasonable. This does not apply to any fee charged or
collected by a county recorder or local registrar for filing,
recording or indexing any document, performing any service,
issuing any certificate or providing any copy of any document
pursuant to a number of specified sections including Code of
Civil Procedure Section 2103 and Government Code Sections
27361, 27361.2, 27361.3, 27361.4, and 27361.8. (Government
Code 54985)
This bill deletes the references to the CCP and Government Code
sections listed above and thus provides that the process for
charging fees under Government Code Section 54985 (a) would
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apply to those sections.
Existing law provides that every defendant shall be assessed a
registration fee not to exceed $25 when represented by appointed
counsel. Notwithstanding this subdivision, no fee shall be
required of any defendant financially unable to pay the fee.
(Penal Code 987.5.)
This bill provides that the registration fee assessed shall be
$50.
Existing law provides that if the court orders restitution made
to the victim, the board of supervisors may add a fee to cover
the actual administrative cost of collecting restitution, but
not to exceed 10% of the total amount ordered to be paid. The
fees shall be paid into the general fund of the county treasury
for the use and benefit of the county. (Penal Code 1203.1.)
This bill provides that the fee to cover the administrative
costs of collecting restitution shall not exceed 15% of the
total amount ordered to be paid.
Existing law provides that in any case in which a defendant is
convicted of an offense that is the subject of any preplea or
presentence investigation and report, whether or not probation
supervision is ordered by the court, and in any case in which a
defendant is granted probation or given a conditional sentence,
the probation officer, taking into account any amount that the
defendant is ordered to pay in fines, assessments, and
restitution, shall make a determination of the ability of the
defendant to pay all or a portion of the reasonable cost of any
probation supervision or a conditional sentence, of conducting
any preplea investigation and preparing of any preplea report,
of conducting any presentence investigation and preparing any
presentence report and of processing a jurisdictional transfer
or of processing a request for interstate compact supervision
whichever applies. A payment schedule for the fees shall be
developed. (Penal Code 1203.1b (a).)
Existing law provides that the board of supervisors in any
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county, by resolution, may establish a fee for the processing of
payments made in installments to the probation department
pursuant to this section, not to exceed the administrative and
clerical costs of the collection of those installment payments
as determined by the board of supervisors except that the fee
shall not exceed $50. (Penal Code 1203.1b (h).)
This bill removes the limitation on the amount of the fee that
may be charged for accepting probation fees in installments.
Existing law provides for a process for a defendant who has
completed his or her term of probation to petition the court for
a change of plea. A person who petitions for a change of plea
or setting aside of a verdict may be required to reimburse the
court for the actual costs of services rendered, whether or not
the petition is granted and the records are sealed or expunged,
at a rate to be determined by the court not to exceed $120, and
to reimburse the county for the actual costs at a rate to be
determined by the board of supervisors not to exceed $120 and to
reimburse the city for the actual costs of services rendered at
a rate to be determined by the city council not to exceed $120.
(Penal Code 1203.4.)
This bill removes the maximum the court, county or city may
charge for reimbursement of actual costs of services for a
change of plea for setting aside of the verdict.
Existing law provides for a process for a person who was
convicted of a misdemeanor when he or she was under 18 years of
age at the time of the offense to apply to have the records of
the conviction sealed. The law further provides that a person
who petitions for an order sealing his or her record may be
required to reimburse the court for the actual cost of services
rendered, whether or not the petition is granted and the records
are sealed or expunged, at a rate to be determined by the court
not to exceed $120, and to reimburse the county for the actual
costs of services rendered, at a rate to be determined by the
county board of supervisors not to exceed $120, and to reimburse
any city for the actual cost of services rendered, at a rate to
be determined by the city council not to exceed $120. (Penal
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Code 1203.45.)
This bill removes the maximum the court, county or city may
charge for reimbursement of actual costs of services for a
change of plea for the sealing of juvenile records.
Existing law provides for a process for a person to satisfy a
fine by imprisonment at a rate of not more than one day for each
$30 in fine ordered. A person convicted of a misdemeanor may
also pay the fine in specified installments. A defendant shall
pay to the clerk of the court or the collecting agency a fee for
processing of installment accounts. This fee shall equal the
administrative and clerical costs, as determined by the board of
supervisors, except that the fee shall not exceed $35. (Penal
Code 1205.)
This bill removes the maximum fee that may be charged for paying
a fine in installments.
Existing law provides for the regulation of the release of local
criminal history information. The law further provides that a
local agency taking fingerprints of a person who is an applicant
for licensing, employment or certification may charge a fee not
to exceed $10 to cover the cost of taking the fingerprints and
processing the required documents. (Penal Code 13300.)
This bill removes the maximum fee for taking fingerprints and
processing the required documents.
Existing law provides that the father, mother, spouse or other
person liable for the support of a minor shall be liable for the
reasonable costs of support of the minor while the minor is
placed, or detained in or committed to any institution because
of delinquency or truancy shall be liable for the reasonable
costs of support while the minor is placed.. In evaluating a
family's financial ability to pay, the county shall take into
consideration the family's income, the necessary obligations of
the family, and the number of persons dependant upon this
income. Costs of support means only actual costs incurred by
the county for food and food preparation, clothing, personal
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supplies and medical expenses, not to exceed a combined maximum
of costs of $15 per day except that the maximum cost of $15 per
day shall be adjusted every third year beginning January 1, 1998
to reflect the percentage change in the calendar year annual
average of the California Consumer Price Index, All Urban
Consumers, published by the Department of Industrial Relations,
for the three-year period. (Welfare and Institutions Code
903.)
This bill provides that the combined maximum of costs shall be
$45 per day adjusted every third year.
Existing law provides that the father, mother, spouse, or other
person liable for the support of a minor person, the person
himself or herself if he or she is an adult shall unless
indigent, be liable for the cost to the county and court for any
investigation related to the sealing and for the sealing of any
juvenile court or arrest records. The liability of those
persons and estates shall be a joint and several liability. In
the event a petition is filed for an order sealing a record, the
father, mother, spouse, or other person liable for support of a
minor, that person if he or she is an adult, maybe required to
reimburse the county and court for the actual costs of services
rendered, whether or not the petition is granted and the records
are sealed or expunged, at a rate to be determined by the county
board of supervisors for the county and by the court for the
court, not to exceed $120. The court may order reimbursement in
any case in which the petitioner appears to have the ability to
pay, without undue hardship, all or any portion of the costs for
services. (Welfare and Institutions Code 903.3.)
This bill deletes the maximum that can be charged for the
reimbursement.
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
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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
incarceration.<1>
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
----------------------
<1> "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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remedy the unconstitutional prison conditions.
. . .
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.<2>
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
---------------------------
<2> 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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crisis outlined above.
COMMENTS
1. Need for This bill
According to the author:
Government Code 54986 describes the procedures that counties
must follow to change fees otherwise authorized by law. If
state law does not prescribe an amount or otherwise limit a
fee, GC 54985 allows a board of supervisors to "increase or
decrease a fee or charge . . . in the amount reasonably
necessary to recover the cost" of providing a good or service
or enforcing a regulation. GC 54985 also excludes a large
number of fees from this provision. These fees are set by the
state and include, among others, civil fees, county recorder
fees and all fees charged by agricultural commissioners.
The fees set by state law, including vital records fees,
recording fees and civil fees charged by the sheriff's
department, appear to be the most inflexible and costly for
counties. Many county fees set by the state do not cover the
cost of providing the service. The process to increase these
fees is cumbersome and the Legislature does not regularly
review these fees to address changes in cost. Some have not
been updated in 20-30 years. Some of these fees predate the
reimbursable mandate provisions and thus are not eligible for
state reimbursement.
When a fee based service does not recover sufficient funds to
cover the cost of providing the service, the difference comes
out of the county's general fund. The cost of these services
is supposed to be borne by only those using the services, but
ends up being subsidized by all taxpayers - including those
who never use a particular service. This in turn puts
pressure on other services that are funded by the county
general fund, such as indigent health care, libraries, and law
enforcement.
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2. Penalty Assessments on Criminal Fines
Until the budget year 2002-2003, there was 170% in penalty
assessments applied to every fine, the current penalty
assessments are approximately 280%. (See Penal Code 1464;
Penal Code 1465.7; Penal Code 1465.8; Government Code
70372; Government Code 7600.5; Government Code 76000 et
seq.; Government Code 76104.6.) This means that the
standard misdemeanor fine of up to $1000 is actually a fine
of up to $3800. These assessments are in addition to any
restitution ordered or any other fees required.
3. Changes to Penal Code Fees in This Bill
This bill makes a number of changes to Penal Code fees. Most of
these fees have not been raised for more than 10 years.
a. Public Defender Fees
Under existing law, a person who is determined to need a
public defender is assessed a fee not to exceed $25 unless
he or she is financially unable to pay the fee. This bill
would increase that fee to $50.
b. Restitution Collection Fee
A defendant who is convicted of any crime is usually ordered
to pay restitution to the victim. Existing law provides
that the county may require a fee not to exceed 10% of the
ordered restitution in order to cover the administrative
cost of collecting the restitution. This bill increases the
amount the county may collect to 15% of the restitution
ordered.
c. Probation cost Fees
Existing law provides that when a person is given probation,
the probation officer shall make a determination of a
person's ability to pay reasonable probation costs, taking
into consideration all fines and restitution. The law
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requires that a payment schedule shall be created for the
payment of these fees. The law provides that the board of
supervisors may establish a fee for the processing of
payments made in installments to the probation department
not to exceed the administrative and clerical costs of the
collection of those installment payments not to exceed $50.
This bill removes the $50 maximum for the fee to collect the
probation fees in installments.
d. Fees for Sealing of Records or Changing a Plea
Existing law sets forth when a person who has completed
probation can change his or her plea or make a motion to set
aside a verdict or to seal the record of a juvenile
conviction. Current law provides that subject to the
ability to pay, the court may charge a fee to cover costs
not to exceed $120, the county may charge a fee to cover
costs not to exceed $120 and a city may charge a fee to
cover costs not to exceed $120. This bill removes the $120
maximum allowed for these fees.
e. Fine Payment Plan Fee
As noted in Comment #2, criminal fines can be very high.
Even a $250 fine is actually $900 once penalty assessments
are taken into account. If a person cannot pay a fine they
can be jailed for a time certain to pay the fine at a rate
of $30 credit for each day in jail. Existing law provides
that fines may be paid in installments and allows the clerk
of the court or collecting agency to charge a fee not to
exceed $35 to cover administrative costs of collecting the
fines through a payment plan. This bill removes the maximum
that may be charged.
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The section that allows for the payment of a fine in
payments also contains language that is no longer
appropriate ever since the state took over the
administration of the courts. The bill should take
amendments to Penal Code Section 1205 (d) to update the
language to reflect the change in who administers the
collection of these fines.
SHOULD THIS BILL BE AMENDED TO UPDATE THE LANGUAGE TO REFLECT
THE STATE'S MANAGEMENT OF THE COURTS?
f. Charge to take Fingerprints
A person who needs fingerprints for a license, employment or
certification may go to a local law enforcement office to
have the fingerprints taken. Existing law permits a $10 fee
to be charged. This bill removes the maximum fee that can
be charged to cover the administrative costs.
g. Juvenile Hall Fee
Under existing law, the person financially responsible for a
juvenile who is incarcerated in a juvenile facility is
liable for the reasonable costs of caring for the juvenile
up to approximately $25 a day (statutorily $15 a day plus
the allowable Consumer Price Index changes). This bill
would raise that fee to $45 with reassessment of the fee
every third year ($45 a day amounts to $1350 for a 30-day
month).
SHOULD THESE FEES PLACED ON CRIMINAL DEFENDANTS BE INCREASED?
WHAT ADDITIONAL BURDEN WILL INCREASED FEES PLACE ON A DEFENDANT
TO PAY EXISTING FINES AND POTENTIALLY RESULT IN THE DEFENDANT
OPTING TO "PAY OFF" THE FINE BY DOING TIME IN JAIL?
IF THE FINES SHOULD BE INCREASED SHOULD THE MAXIMUM BE OPEN
ENDED OR SHOULD A NEW MAXIMUM BE PUT INTO PLACE?
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4. Other Fee Changes
This bill also changes or removes the maximum fees for
specified documents to be searched, recorded or filed in
specified Code of Civil Procedure, Government Code and Fish and
Game Code Sections.
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