BILL ANALYSIS �
AB 898
Page 1
Date of Hearing: May 3, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 898 (Alejo) - As Amended: April 25, 2011
SUMMARY : Amends existing provisions of law pertaining to
criminal restitution fines. Specifically, this bill :
1)Increases the restitution fine for felony offenses from a
minimum of $200 to $400, and a maximum of $10,000 to not more
than $20,000.
2)Increases the restitution fine for misdemeanor offenses from a
minimum of $100 to $200, and a maximum of $1000 to not more
than $2,000.
3)Modifies the existing formula the court may use to set the
amount of the fine to: the product of $400 multiplied by the
number of years of imprisonment the defendant is ordered to
serve, multiplied by the number of felony counts of
conviction.
EXISTING LAW :
1)States that, in addition to any other penalty provided or
imposed under the law, the court shall order the defendant to
pay both a restitution fine and restitution to the victim or
victims, if any. �Penal Code Section 1202.4(a)(3).]
2)Gives the court the discretion to set the amount of the
restitution fine commensurate with the seriousness of the
offense and other factors, as specified. �Penal Code Section
1202.4(b)(1) and (d).]
3)Mandates the restitution fine for felony offenses shall not be
less than $200 and not more than $10,000. �Penal Code Section
1202.4(b)(1).]
4)Mandates the restitution fine for misdemeanor offenses shall
not be less than $100 and not more than $1,000. �Penal Code
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Section 1202.4(b)(1).]
5)Permits the court to set 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 conviction. �Penal Code Section
1202.4(b)(2).]
6)Requires the trial court to impose the 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(c).]
7)Declares that inability to pay is not a compelling reason for
declining to impose the fine, but that inability to pay can be
considered as a factor in setting the fine above the statutory
minimum. �Penal Code Section 1202.4(c).]
8)Requires the court to assess an additional
probation-revocation restitution fine in the same amount as
that imposed for the restitution fine. This additional fine
becomes effective upon the revocation of probation, and shall
not be waived or reduced by the court, absent compelling and
extraordinary reasons stated on record. Probation-revocation
restitution fines shall be deposited in the Restitution Fund.
(Penal Code Section 1202.44.)
9)Requires the court to assess an additional parole-revocation
restitution fine in the same amount as that imposed for the
restitution fine. This additional fine is suspended unless
parole is revoked. The parole-revocation restitution fines
shall be deposited in the Restitution Fund. (Penal Code
Section 1202.45.)
10)Declares the restitution fine is not subject to penalty
assessments. �Penal Code Section 1202.4(e).]
11)Provides that when a defendant is sentenced to state prison,
the California Department of Corrections and Rehabilitation
may deduct 20 to 50% of the fine from the prisoner's wages.
�Penal Code Section 2085.5(a).]
FISCAL EFFECT : Unknown
COMMENTS :
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1)Author's Statement : According to the author, "AB 898
preserves the California Victim Compensation Program (CalVCP)
by updating restitution fines for the first time in nearly two
decades. Since Fiscal Year (FY) 2004-05, payouts to victims
or their families, which often include medical and mental
health treatment, and funeral expenses, have been increasing
faster than revenues.
"All money comes from restitution fines imposed on convicted
defendants; nothing is paid out of the General Fund or
revenues from taxes and fees.
"AB 898 updates restitution fines based on inflationary changes,
ensuring that the CalVCP is a lasting resource for crime
victims.
"Since January, the board that operates CalVCP has approved
several cuts in disbursements in an attempt to prevent
insolvency. These cuts directly affect victims' ability to
access quality health and mental services and to recover from
violent crime.
"This bill is needed to ensure that crime victims have this
excellent resource for years to come."
2)Restitution Fines : A convicted defendant must pay a
restitution fine. The amount varies in the trial court's
discretion, ranging from a minimum of $200 to a maximum of
$10,000, and may be calculated by multiplying $200 by the
years of imprisonment imposed and then multiplying by the
number of counts. �People v. Hanson (2000) 23 Cal.4th 355,
362.]
Imposition of the mandatory restitution fine actually results in
automatic imposition of two, and possibly three, fines. If a
defendant is granted probation, the court is required to
impose and suspended a probation-revocation restitution fine
in this same amount. This amount becomes due if the
defendant's probation is revoked. (Penal Code Section
1202.44.) When a defendant is sentenced to prison, instead of
probation, the court is mandated to impose and suspend a
parole-revocation restitution fine in the same amount as the
restitution fine. The stay on the parole-revocation fine is
lifted if the parolee violates probation. (Penal Code Section
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1202.45.)
Thus, in a situation where a defendant is granted probation,
subsequently violates probation, and is then sentenced to
state prison, that defendant actually faces three fines in the
same amount as the restitution fine. Given the recidivism
rates of offenders, this is a very common scenario. The money
from all of three fines, not just the restitution fund fine,
is deposited in the restitution fund.
3)Judicial Council Evaluating Penalty Assessments : The Judicial
Council was authorized to convene a task force to identify and
evaluate all fees, fines, forfeitures, penalties, and
assessments currently in place. The funding for this task
force was authorized by SB 857 (Committee on Budget and Fiscal
Review), Statutes of 2010, Chapter 720. This task force is
expected to present recommendations to Judicial Council and
the Legislature by June 30, 2011.
4)Calculation of Fines and Fees Has Become Burdensome and
Complex : "However laudable these charges may be, the
patchwork nature of the ever-growing financial penalties in
criminal actions has created a system that begins to match the
complexity of the federal income tax. . . . It is doubtful
that criminal trial lawyers and trial court judges have the
ability to keep track of the myriad of charges that now attach
to criminal convictions." �People v. Castellanos (2009) 175
Cal.App.4th 1524, 1533, J. KRIEGLER, concurring.]
"From the institutional viewpoint of the criminal justice
system, the current approach is problematic. The penalties in
a criminal action, including any financial penalties, should
be easily identifiable. Prosecutors should be able to clearly
determine the financial consequences of a case when assessing
punishment and negotiating case settlements. Defense counsel
should be able to clearly and concisely explain the possible
financial charges to the client to ensure that when a guilty
or no contest plea is entered, the defendant does so with full
knowledge of its economic consequences. And trial courts
should not have to search the Penal, Government, or Health and
Safety Codes in an attempt to identify mandatory fines, fees,
or penalties, some of which may have no logical connection to
a pending case. This is not a trifling matter. This court
deals with issues surrounding the imposition of financial
charges on a regular basis. Undoubtedly, the trial courts
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expend precious resources in attempting to properly impose the
mandated penalties. The expansive criminal justice system in
California generates large amounts of revenue for the state
and local governments. It ought to do so in a more
straightforward manner. There is one final note to add. As
the Legislature grapples with the budget deficit, there is
talk of new and additional fines, fees, and assessments in
criminal cases. The system, as it exists, is likely to only
become more complicated in the immediate future." �People v.
Castellanos, supra, 175 Cal.App.4th at pp. 1533-1534.]
5)California Victim Compensation and Government Claims Board
(VCGCB) : According to the VCGCB's Web site
(), VCGCB administers CalVCP. This
program provides compensation for victims of violent crime and
reimburses many crime-related expenses. CalVCP funding comes
from restitution fines, penalty assessments, and federal
matching funds.
6)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
year 2001-02 to actions that the board members took as they
attempted to ensure that the Restitution Fund, the fund from
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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
support costs, such as those listed in the text box,
increased. As shown in Table 2, program support costs
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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
responding promptly to requests for information.
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"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.]
7)Restitution Fund Condition : According to the VCGCB, the
projected fiscal condition of the restitution fund (as of
February 17, 2011) is:
Proposed Governor's Budget
With
Adopted Board Actions
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2009-10 2010-11 2011-12 2012-13
Beginning Balance 45.8
45.8 29.8 23.0
Prior Year Adjustments 6.0 0.0
0.0 0.0
Adjusted Beginning Balance 51.8 45.8
29.8 23.0
Revenue 117.3 113.3 112.3
111.7
Expenditures
Restitution Fund
State Operations 31.7 33.7
34.9 34.9
(Savings) (3.5)
(2.2) (2.2)
Other Expenditures 15.2 15.4
15.4 15.5
Claims (State Share -
Excludes VOCA) 58.2 65.2
53.4 55.4
Local Assistance 14.1 14.1
13.4 13.4
Ten Percent Rebate 4.2 4.2
4.2 4.2
Total Expenditures 123.4 129.3 119.1
121.2
Reserve 45.8 29.8
23.0 13.5
8)Argument in Support : According to the California Coalition
Against Sexual Assault (the sponsor of this bill),
"Unfortunately the State Restitution Fund is projected to be
insolvent by FY 2012-2013 without any long term reforms.
Recently, the Board approved cuts and lowered payment caps to
many Victim Compensation Programs, directly affecting victims,
their next of kin and their ability to recover from violent
crime.
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"We strongly believe this minor update to the restitution fine
will adjust the fine limits to 2010 levels and allow for the
Board to collect at the rates originally intended by the
Legislature."
9)Argument in Opposition : According to the California Public
Defenders Association , "In addition to restitution fines,
public defender clients are already required to pay a host of
other fines and fees, many of which have penalty assessments
attached. . . .
"The increase in the minimum and maximum restitution fines is
being proposed regardless of the type of crime committed,
whether any victim was involved, and is just an attempt to
make up for lost revenue benefitting the criminal justice
system."
10)Prior Legislation : SB 586 (Yee), of the 2009-10 Legislative
Session, would have increased the minimum victim restitution
fine in felony cases from $200 to $300. SB 586 was never
heard by the Assembly Committee on Appropriations.
REGISTERED SUPPORT / OPPOSITION :
Support
California Coalition Against Sexual Assault (Sponsor)
Crime Victims Action Alliance
Crime Victims United of California
Opposition
California Public Defenders Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744