BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 364|
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THIRD READING
Bill No: AB 364
Author: Bonilla (D)
Amended: As introduced
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-0, 6/7/11
AYES: Hancock, Anderson, Liu, Price, Steinberg
NO VOTE RECORDED: Calderon, Harman
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 73-0, 5/2/11 (Consent) - See last page for
vote
SUBJECT : Asset preservation in large-scale theft cases
SOURCE : California District Attorneys Association
DIGEST : This bill (1) allows the seizing and
preservation of assets of a criminal defendant charged with
a single large-scale financial crime, and (2) repeals a
stand-alone restitution provision in the white collar crime
law and to thereby ensure that constitutional and statutory
mandatory restitution apply in such cases, as specified.
ANALYSIS : Existing law (Penal Code Section 186.11)
provides that where a defendant is convicted of two or more
related felonies involving fraud or embezzlement, and the
pattern of conduct involves the taking or loss of more than
$100,000, the defendant shall be punished by an "aggravated
CONTINUED
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white collar crime enhancement" of specified prison
enhancement term. The following applies to such cases:
The enhancement imposed only once in a criminal
proceeding.
A "pattern of related felony conduct" means engaging in
at least two felonies that have the same or similar
purpose, result, principals, victims, or methods of
commission, or are otherwise interrelated and are not
isolated events. "Two or more related felonies" are
felonies committed against two or more separate victims
or against the same victim on two or more occasions.
If the crimes involved taking or loss of more than
$500,000, the additional prison term shall be two, three,
or five years.
If the crimes involved taking or loss of between $100,000
and 500,000, the additional prison term shall be one or
two years, as specified. (Penal Code Section 186.11,
subd. (a)(1)-(3) and 12022.6, subd. (a)(1)-(2))
Existing law allows the prosecution in a case involving an
aggravated white collar crime enhancement to obtain an
order for the seizing and holding of the defendant's assets
in order to prevent the defendant from hiding or
dissipating the assets. (Penal Code Section 186.11, subd.
(e))
Existing law provides that a person who claims an interest
in the protected property may file a claim concerning his
or her interest in seized property, as specified. (Penal
Code Section 186.11, subd. (e)(6))
Existing law provides that the court shall order a
defendant subject to punishment under the white collar
crime provisions to make full restitution to victims. The
court can order the defendant to remain on probation for up
to 10 years in order to ensure payment of restitution. The
provisions for protection of assets seized from defendants
shall remain in effect through sentencing in order to
satisfy fines and restitution orders. (Penal Code Section
186.11, subds. (d) and (i)(1)(A)-(B))
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This bill provides for the preservation of assets and
property by the court of any person charged with a single
act of fraud or embezzlement if that conduct involves the
taking or loss of $100,000 or more.
This bill strikes a provision concerning restitution in
white collar crime cases that requires proof or admissions
of specified facts, while such findings or admissions are
not required in other kinds of cases before the victim is
entitled to restitution.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 6/27/11)
California District Attorneys Association (source)
American Federation of State, County and Municipal
Employees
California State Sheriffs' Association
Crime Victims United of California
ARGUMENTS IN SUPPORT : According to the author:
"AB 364 allows the state to 'freeze and seize' on behalf
of one victim, or as the result of one felony. This bill
provides greater protection than the current law. It is
not reasonable that a victim's assets should be insecure
simply because they are the only victim or that the
accused only committed one felony. One victim or twenty,
this bill provides equal protection in the preservation
of assets and property. Because of AB 364, victims of
aggravated white collar crime will no longer watch their
assets dissipate simply because they were the only
victim.
"AB 364 provides further protection and better access to
just restitution for victims of white collar crimes
involving fraud and embezzlement. By decreasing the
requirements on the number of victims and felonies, this
bill will increase the availability for victims - like
middle class families and seniors - to recover their
losses from fraud or embezzlement."
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ASSEMBLY FLOOR : 73-0, 5/2/11 (Consent)
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Campos, Carter, Cedillo,
Chesbro, Conway, Cook, Davis, Dickinson, Donnelly, Eng,
Feuer, Fletcher, Fong, Furutani, Garrick, Gatto, Gordon,
Grove, Hagman, Halderman, Hall, Harkey, Hayashi, Hill,
Huber, Hueso, Huffman, Jeffries, Jones, Knight, Lara,
Logue, Bonnie Lowenthal, Ma, Mansoor, Miller, Mitchell,
Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan,
Perea, V. Manuel P�rez, Portantino, Silva, Skinner,
Smyth, Solorio, Swanson, Torres, Valadao, Wagner,
Wieckowski, Williams, Yamada, John A. P�rez
NO VOTE RECORDED: Charles Calderon, Fuentes, Galgiani,
Gorell, Roger Hern�ndez, Mendoza, Vacancy
RJG:mw 6/28/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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