BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1210 (Lieu) 0
As Amended April 11, 2012
Hearing date: April 17, 2012
Penal Code
AA:mc
VICTIM RESTITUTION:
REALIGNMENT
HISTORY
Source: Los Angeles County District Attorney's Office;
California District Attorneys Association; Crime Victims Action
Alliance
Prior Legislation: None
Support: Crime Victims United of California; California Police
Chiefs Association
Opposition:None known
KEY ISSUE
SHOULD SEVERAL VICTIM RESTITUTION CODE SECTIONS BE REVISED TO
REFLECT FELONS SUBJECT TO LOCAL SUPERVISION PURSUANT TO THE PUBLIC
SAFETY REALIGNMENT OF 2011?
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PURPOSE
The purpose of this bill is to make essentially technical
revisions to victim restitution statutes to include persons
subject to local supervision according to provisions of the 2011
Public Safety Realignment, as specified.
Existing provisions in the California Constitution state that
all persons who suffer losses as a result of criminal activity
shall have the right to restitution from the perpetrators of
these crimes. Restitution shall be ordered in every case unless
compelling and extraordinary reasons exist to the contrary. The
Legislature shall adopt provisions to implement this section
during the calendar year following adoption of this section.
(Ca. Const. Art. 1 � 28(b).)
Existing law states legislative intent that a victim of crime
who incurs any economic loss as a result of the commission of a
crime shall receive restitution directly from any defendant
convicted of that crime. (Pen. Code � 1202.4, subd. (a)(1).)
Existing law provides that where a defendant is committed
to prison and subject to parole, the court shall impose a
separate parole restitution fine in the same amount as the
restitution fine itself. This additional parole revocation
restitution fine is not subject to penalty assessments, as
specified, or a specified state surcharge, and shall be
suspended unless the person's parole is revoked. Parole
revocation restitution fine moneys are deposited in the
Restitution Fund in the State Treasury. (Pen. Code �
1202.45.)
This bill would revise this provision to provide
additionally that in every case where a person is convicted
of a crime and is subject to either postrelease community
supervision, as specified (Penal Code � 3451), or mandatory
supervision as a felon sentenced pursuant to Penal Code
section 1170(h)(5)(jail felony sentencing), and the person
violates the terms of the postrelease community supervision
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or mandatory supervision and is incarcerated in a county
jail for that violation, the person shall pay a fine that
shall be collected by the agency designated by the board of
supervisors of the county in which the prisoner is
incarcerated.
Current law generally provides for the enforcement of
fines, including restitution fines, as specified, and
provides that any "portion of a restitution order that
remains unsatisfied after a defendant is no longer on
probation or parole is enforceable by the victim pursuant
to this section." (Penal Code � 1214.)
This bill would amend this section to include a reference
to defendants no longer on postrelease community
supervision, as specified (Penal Code � 3451), and
mandatory supervision imposed pursuant to Penal Code
section 1170(h)(5)(B)(jail felony sentencing).
Current law provides for the Secretary of the Department of
Corrections and Rehabilitation to make deductions from an
inmate's wages and trust account deposits and transferred
for deposit in the Restitution Fund where a prisoner owes a
restitution fine, as specified. (Penal Code � 2085.5.)
This bill would revise this statute to additionally provide
for prisoners punished by imprisonment in a county jail
pursuant to Penal Code section 1170(h) (jail felons) and
the agency designated by the board of supervisors in the
county where the prisoner is incarcerated, and to add "or
the county jail equivalent of wages and trust account
deposits of a prisoner," as specified. This bill
additionally revises subdivision (j) of this statute to
include a cross reference to persons on postrelease
community supervision (Penal Code � 3451) or subject to
Penal Code section 1170(h)(5)(B)(jail felony sentencing).
Current law generally provides that restitution fines for
criminal offenses imposed by a superior court be referred
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to the Franchise Tax Board for collection under guidelines
prescribed by the Franchise Tax Board, as specified.
(Revenue and Taxation Code � 19280.)
This bill would revise this provision to expressly include
a juvenile court.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
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On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
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This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Stated Need for This Bill
The author states:
Last year, AB 109 realigned public safety services in
California. As part of the Realignment plan thousands
of convicted felons are no longer being sent to the
California Department of Corrections and
Rehabilitation (CDCR), instead they are being housed
in local jails. Unfortunately, the Realignment plan
failed to give sheriffs the authority to collect
restitution for victims from these convicted felons.
SB 1210 corrects this oversight by providing
California's sheriffs the authority to collect
restitution from these offenders in order to help the
victims of their crimes receive the restitution they
are rightfully due.
Restitution is mandated by the California Constitution
and was amended in 1989 to explicitly state that it is
"the unequivocal intention of the People of the State
of California that all persons who suffer losses as a
result of criminal activity shall have the right to
seek and secure restitution from the persons convicted
of the crimes causing the losses they suffer." (Cal.
Const., Art. I � 28, subd. (b)(13)(A).)
As part of a defendant's sentence, a court will order
the defendant to pay restitution to their victims for
the losses suffered by the victim as a result of the
defendant's criminal activity. In order to help crime
victims collect the restitution they are
constitutionally due, CDCR deducts a minimum of 20% up
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to a maximum of 50% from the wages and trust account
deposits a prisoner has and transfers that money to
the California Victim Compensation and Government
Claims Board for direct payment to the victim.
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As part of last year's Realignment plan, defendants
convicted of certain felony crimes must be
incarcerated in county jails rather than a state
prison. Unfortunately, when this occurs, the
Realignment plan failed to include any provisions for
the collection of restitution by county sheriffs.
SB 1210 provides local governments with the same
authority the state has to collect restitution from
these offenders in order to help the victims of their
crimes and to collect fines owed to the state when
offenders are incarcerated in a county jail instead of
a state prison.
SB 1210 would also give counties the right to collect
a parole revocation fine when an offender violates
parole after being incarcerated in county jail instead
of state prisons. The parole revocation fines are
used by the California Victim Compensation Program to
help cover treatment and other support services for
victims and their families.
Right now felons who are sentenced to county jail
rather than state prison pursuant to California's
newly enacted realignment plan are not paying their
victims for the losses they caused by their criminal
activity, despite the requirement in California's
constitution that victims have a right to restitution
from their perpetrators for the losses they suffered,
nor are parolees who are serving their parole
revocation in county jails instead of state prisons
paying their parole revocation fines. These
oversights must be corrected so that crime victims
receive the restitution they deserve and so that these
prisoners do not receive an unforeseen windfall from
the Realignment plan.
2. What This Bill Would Do
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As explained above, this is an essentially technical bill which
revises several criminal restitution statutes to conform to the
Public Safety Realignment of 2011. That realignment provided
for some felons to be supervised locally (instead of by state
parole) immediately following release from prison (See Penal
Code � 3451 et seq., the "Postrelease Community Supervision Act
of 2011"), and also provided for some felons, based upon their
crime of conviction and criminal record history, to be
incarcerated locally instead of in state prison. (See Penal
Code � 1170(h).)
This bill includes these two new categories of offenders in
restitution provisions, and additionally clarifies that
restitution orders imposed by the juvenile court are the same as
those imposed by the superior court.
3. Technical Suggestion
In its amendments to Penal Code section 1202.45, this bill would
provide, with respect to the realigned offenders subject to its
provisions, that "the person shall pay a fine that shall be
collected by the agency designated by the board of supervisors
of the county in which the prisoner is incarcerated." Existing
law specifies that the fine be imposed pursuant to Penal Code
section 1202.4, which specifies how that fine is calculated.
The language in this bill does not contain that cross-reference.
For clarity, members and the author may wish to consider
revising the bill's language to include this cross-reference.
SHOULD THIS AMENDMENT BE MADE?
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