BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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6
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AB 2685 (Cooley) 5
As Amended May 7, 2014
Hearing date: June 17, 2014
Penal Code
AL/JM:mc
RESTITUTION: CALIFORNIA VICTIM COMPENSATION AND
GOVERNMENT CLAIMS BOARD
HISTORY
Source: California Victim Compensation and Government Claims
Board
Prior Legislation: AB 717 (Fuller) - Ch. 582, Stats. 2008
SB 972 (Poochigian) - Ch. 238, Stats. 2005
Support: San Diego County District Attorney's Office; California
Crime Victim Assistance Association; Crime Victims
United of California; Merced County District Attorney's
Office
Opposition:Legal Services for Prisoners with Children;
California Attorneys for Criminal Justice; Taxpayers
for Improving Public Safety
Assembly Floor Vote: Ayes 77 - Noes 0
KEY ISSUES
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SHOULD THE CALIFORNIA VICTIM COMPENSATION AND GOVERNMENT CLAIMS
BOARD BE PERMITTED TO SHARE INFORMATION RELATING TO THE BOARD'S
LOSSES TO SPECIFIED PARTIES PRIOR TO THE DEFENDANT'S SENTENCING?
(CONTINUED)
SHOULD CURRENT PROVISIONS REGARDING INMATE INHERITANCE NOTICE
OBLIGATIONS TO THE BOARD BE EXTENDED TO INCLUDE HEIRS AND
BENEFICIARIES WHO ARE OR HAVE PREVIOUSLY BEEN INCARCERATED, NOT ONLY
CURRENTLY INCARCERATED HEIRS?
SHOULD A PERSONAL REPRESENTATIVE OR ESTATE ATTORNEY WHO KNOWS,
WITHOUT CONDUCTING ANY INVESTIGATION, THAT AN HEIR OR BENEFICIARY IS
OR HAS PREVIOUSLY BEEN INCARCERATED BE REQUIRED TO NOTIFY THE BOARD,
AS SPECIFIED?
PURPOSE
The purpose of this bill is to 1) clarify that the board may
provide the probation department, district attorney, and court
with information relevant to the Victim Compensation and
Government Claims Board's losses prior to the defendant's
sentencing; 2) expand inmate inheritance notice obligations to
the board to beneficiaries; and 3) expand the notice obligation
to the board to include the administrator of an estate if the
administrator knows, without conducting any investigation, that
an heir or beneficiary is or has previously been incarcerated.
Victim Restitution for Pecuniary Loss
Existing provisions in the California Constitution state that
all crime victims have the right to seek and secure restitution
from the perpetrators of these crimes. Restitution must be
ordered in every case without exception. Where a defendant has
been ordered to pay restitution, all money, or property
collected from the defendant must be first applied to satisfy
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restitution orders. (California Constitution Article 1 �
28(b)(13)(A)-(C).)
Existing law requires the court to order a defendant to make
restitution to the victim or victims of the defendant's crime,
based on the amount of loss claimed by the victim or victims or
any other showing to the court. The court shall order full
restitution for the losses caused by the defendant's crime
unless the court finds and states compelling and extraordinary
reasons for not doing so. (Penal Code � 1202.4(f).)
Existing law states that the court retains jurisdiction over the
defendant if the amount of victim restitution owed cannot be
ascertained at the time of sentencing. The court also retains
jurisdiction to modify a restitution order. (Penal Code �
1202.46.)
Existing law provides that the amount of restitution shall not
be affected by the indemnification or subrogation rights of a
third party. (Penal Code � 1202.4(f)(2).)
Existing law authorizes the Department of Corrections and
Rehabilitation (CDCR) to collect restitution fines and
restitution orders from prisoners.
(Penal Code � 2085.5.)
Existing law permits CDCR to contract with a private debt
collection agency or the Franchise Tax Board to collect
outstanding restitution payments when a parolee has failed to
pay according to the terms and conditions specified by the
department. (Penal Code � 3000.05.)
California Victim Compensation and Government Claims Board
Existing law establishes within the Government Operations Agency
the California Victim Compensation and Government Claims Board
(board) to operate the Victim Compensation Program, 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
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board. Restitution fines are deposited into the fund. (Penal
Code �� 13901 and 13950 et. seq.)
Existing law authorizes the board to reimburse for pecuniary
loss, as follows:
a) The amount of medical or medical-related expenses
incurred by the victim, subject to specified limitations;
b) The amount of out-patient psychiatric, psychological or
other mental health counseling-related expenses incurred by
the victim, as specified, including peer counseling
services provided by a rape crisis center;
c) The expenses of non-medical remedial care and treatment
rendered in accordance with a religious method of healing
recognized by state law;
d) Compensation equal to the loss of income or loss of
support, or both, that a victim or derivative victim incurs
as a direct result of the victim's injury or the victim's
death, subject to specified limitations;
e) Cash payment to, or on behalf of, the victim for job
retraining or similar employment-oriented services;
f) The expense of installing or increasing residential
security, not to exceed $1,000, with respect to a crime
that occurred in the victim's residence, upon verification
by law enforcement to be necessary for the personal safety
of the victim or by a mental health treatment provider to
be necessary for the emotional well-being of the victim;
g) The expense of renovating or retrofitting a victim's
residence or a vehicle to make them accessible or
operational, if it is medically necessary; and
h) Expenses incurred in relocating, as specified, if the
expenses are determined by law enforcement to be necessary
for the personal safety or by a mental health treatment
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provider to be necessary for the emotional well-being of
the victim. (Government Code � 13957(a).)
Existing law provides that if the victim has received assistance
from the board, then the restitution payments shall be deposited
in the Restitution Fund, to the extent of the assistance
received. (Penal Code � 1202.4(f)(2).)
Existing law states that if a victim or derivative victim, as
specified, was provided assistance through the Restitution Fund,
the amount of assistance provided shall be considered a direct
result of the defendant's criminal conduct and be included in
the amount of the restitution ordered by the court. (Penal Code
� 1202.4(f)(4)(A).)
Existing law specifies that the amount of assistance provided by
the Restitution Fund shall be established by copies of bills
submitted to the board reflecting the amount paid by the board
and specifying the types of services. Certified copies of these
bills provided by the board, together with a statement made
under penalty of perjury by the custodian of records that those
bills were submitted to and were paid by the board, shall be
sufficient to meet this requirement. (Penal Code �
1202.4(f)(4)(B).)
This bill permits a representative of the board to provide
information relevant to the board's losses to the probation
department, district attorney, and court prior to the imposition
of a sentence.
Existing law provides the board subrogation rights against the
perpetrator of the crime to the extent that any compensation was
granted to the victim by the board. (Penal Code � 13963(a).)
Existing law allows victims, as specified, to file with the
court a written, audiotaped, or video recorded statement
expressing his or her views concerning the crime, the person
responsible, and the need for restitution, in lieu of a personal
appearance during judgment and sentencing. (Penal Code �
1191.15(a).)
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Existing law , in cases when a written, audiotaped, or video
recorded statement is permitted at the time of judgment or
sentence, does not prohibit the prosecutor from representing to
the court the views of the victim, his or her parent or
guardian, or the next of kin.
This bill would amend the above provision to include the
representation of the views of the board to the court.
Inmate Inheritance Notice Obligations for Restitution
Existing law requires that when a deceased person has an heir
who is confined in a prison facility under CDCR's jurisdiction
or confined in any county or city jail, road camp, industrial
farm, or other local correctional facility, the estate attorney
or if there is no estate attorney, the beneficiary; the personal
representative; or the person in possession of property of the
decedent shall notify the director of the board of the
decedent's death and the name and location of the decedent's
heir not later than 90 days after the date of death. (Probate
Code � 216.)
This bill would amend the statute above to require that when the
estate attorney, beneficiary, personal representative, or the
person in possession of the decedent's property "knows, without
conducting any investigation, that an heir or beneficiary has
previously been so confined" to notify the board of the
decedent's death no later than 90 days after the date of death.
Existing law requires the notice of the decedent's death to
include the submission of the following to the board:
a) The name, date of birth, and location of incarceration
of the decedent's heir.
b) The heir's CDCR number if incarcerated in a CDCR
facility or booking number if incarcerated in a county
facility.
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c) A copy of the decedent's death certificate.
d) The probate case number, and the name of the superior
court hearing the case. (Probate Code � 216.)
This bill would add to the section above required reporting of
the following to the board:
1) The current address of the heir or beneficiary if he or
she is no longer incarcerated.
2) The beneficiary's CDCR number if incarcerated in a CDCR
facility or booking number if incarcerated in a county
facility.
Existing law requires that if the general personal
representative or estate attorney knows or has reason to believe
that an heir is confined in a prison or correctional facility,
as specified, the general personal representative or estate
attorney must give the director of the board notice of the
decedent's death no later than 90 days after the date letters
are first issued to the general personal representative.
(Probate Code � 9202(b).)
This bill would amend the above provision to instead require the
general personal representative or estate attorney to notify the
director of the board of the decedent's death if he or she
"knows without conducting any investigation that an heir or
beneficiary is or has previously been confined in a prison or
facility," as specified, no later than 90 days after the date
letters are first issued to the general personal representative.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
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United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
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with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
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the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
Existing law provides that the VCGCB compensate crime
victims; the law permits the Board to recover these
funds from criminal offenders. AB 2685:
1) Authorizes a representative of the Board to submit
information on the Board's losses directly to the
court, probation department, or district attorney, so
as to enhance the Board's ability to collect
restitution funds from offenders; and
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2) Subject former inmates, and those classified as
beneficiaries, to the same notification requirements as
current inmates, and those classified as heirs.
This will close the gaps in current law and will
provide the Board with a more effective enforcement
mechanism for collecting restitution.
2.Background: California Victim Compensation Program (VCP)
According to the Victims' Bill of Rights Act in the California
Constitution, "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." (California Constitution Article 1 �
28(b)(13)(A).) Under specified circumstances, victims of
criminal acts may recover compensation from the Restitution Fund
through the Victim Compensation Program (VCP).<1> California's
VCP is administered by the board to reimburse victims of violent
crime for crime-related expenses, such as medical and dental
treatment, mental health services, income loss, funeral and
burial expenses, and loss of support for dependents in the event
a victim is killed or disabled because of a crime. VCP is
considered a "payer of last resort" and provides financial
assistance to crime victims when eligible losses and expenses
cannot be paid by other sources, such as health insurance or
worker's compensation.
When a victim has suffered an economic loss as a result of a
crime, current law requires judges to order the offender pay
restitution as his or her debt to the victim. (California
Constitution Article 1 � 28(b)(13)(B) A restitution order does
not preclude a victim's right to financial assistance from the
Restitution Fund, but the amount of such assistance is reduced
by the amount the victim ultimately receives for the same loss
under the restitution order. (Penal Code � 1202.4(j).) To the
extent that compensation is provided to the victim, paid
restitution is deposited into the Restitution Fund to replenish
---------------------------
<1> See California Benchguide 83: Restitution.
http://www.vcgcb.ca.gov/docs/forms/victims/restitution/benchguide
.pdf.
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the fund. (Penal Code � 1202.4(f)(2).) The court clerk is
required to notify the board within 90 days of the court's
imposition of a restitution order if the defendant is ordered to
pay restitution to the board because the victim has received
compensation from the Restitution Fund. (Penal Code �
1202.4(p).) More broadly, when VCP compensates a victim, the
board is subrogated to the victim's rights against persons
liable for restitution. (Penal Code � 1202.4(f)(2); Government
Code � 13963(a).) A restitution order is considered a life-long
debt that the defendant owes until it is paid.
3.Effect of This Bill
Currently, courts are required to consider the amount of
financial assistance a victim receives from the Restitution Fund
when determining restitution. This bill clarifies that the
board is allowed to submit information to the probation
department, district attorney, and court relating to the
recovery of moneys owed to the Restitution Fund for inclusion
under the court's restitution order.
A person who is in charge of an estate has to locate heirs and
beneficiaries in order to make distributions. Under current
law, if the administrator of an estate learns that an heir is
incarcerated, then he or she is required to notify the board.
The board can then pursue collection activities if the inmate
owes restitution. This bill expands the notice obligation to
cover beneficiaries as well as heirs. This bill also expands
the notice obligation to cover those heirs and beneficiaries the
administrator knows were previously incarcerated, not just those
presently incarcerated. However, the administrator need not
conduct any investigation to determine prior incarceration.
IS " WITHOUT CONDUCTING ANY INVESTIGATION" A REASONABLE AND
CLEAR MEASURE OF ACCOUNTABILITY?
4.Suggested Technical Amendments
Estate attorneys and general personal representatives are
expected to carry out their duties with reasonable care and due
diligence. A standard to require notification to the board only
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when the administrator knows "without conducting any
investigation" the current or prior incarceration of an heir or
beneficiary may be misconstrued as an exemption to the notice
obligation should such knowledge become apparent through the
normal course of the administrator's duties and investigations.
To avoid such vagueness and confusion, the author may wish to
consider replacing "without conducting any investigation" with
"without conducting any investigation beyond the normal course
of his or her duties," when applicable.
Amendment #1:
On page 6, lines 13-14, replace "without conducting any
investigation" with "without conducting any investigation beyond
the normal course of his or her duties."
Amendment #2:
On page 7, line 9, replace "without conducting any
investigation" with "without conducting any investigation beyond
the normal course of his or her duties."
In the context of victim restitution in current statute, "loss"
specifically connotes the victim's economic loss as a direct
result of the commission of a crime but not as it relates to the
board's compensation of a victim from the Restitution Fund.
(Penal Code � 1202.4.) The author may wish to consider an
amendment to replace "board's losses" under Section 13963(i) of
the bill with "recovery of moneys owed to the Restitution Fund"
to ensure consistency with existing language in law.
Amendment #3:
On page 5, lines 6-7, replace "board's losses" with "recovery of
moneys owed to the Restitution Fund."
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