Senate Bill No. 847

Introduced by Senator Block

January 9, 2014

An act to amend Sections 13955, 13956, and 13957 of the Government Code, relating to crime victims, and making an appropriation therefor.

LEGISLATIVE COUNSEL’S DIGEST

SB 847, as introduced, Block. Crime victim compensation: financial elder or dependent adult abuse.

Existing law provides for the compensation of victims and derivative victims of specified types of crimes by the California Victim Compensation and Government Claims Board from the Restitution Fund, a continuously appropriated fund, for specified losses suffered as a result of those crimes. Existing law sets forth eligibility requirements and specified limits on the amount of compensation the board may award.

This bill would include victims of financial elder or dependent adult abuse within the definition of crimes that are eligible for compensation under these provisions, as specified, and provide reimbursement for financial counseling, as specified, for those victims. The bill would make a derivative victim ineligible for compensation if the only crime the victim suffered was financial elder or dependent adult abuse. The bill would also provide related legislative findings and declarations.

By expanding the authorization for the use of moneys in the Restitution Fund, a continuously appropriated fund, this bill would make an appropriation.

Vote: ²⁄₃. Appropriation: yes. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) California has the highest number of older adults compared
to any other state in the nation, with 4.2 million individuals over
65 years of age counted in the 2010 census.

(b) Elderly and dependent adults are seen as easy targets by
financial predators who take advantage of their victims’ loneliness,
isolation, and vulnerability. This population often falls victim to
scams such as foreign lotteries, the sale of costly and ineffective
annuities, identity theft, reverse mortgage scams, and fraudulent
home repairs.

(c) A 1998 study reported in the Journal of the American
Medical Association found that an elder victimized by financial
abuse has a decreased projected lifespan when compared to elders
who have not suffered that exploitation.

(d) The State Department of Social Services reports that as many
as 1,600 reports of elder and dependent adult financial abuse are
under investigation per month by Adult Protective Services offices
statewide.

(e) The California Victims of Crime Program does not serve
this population even though federal law allows Victims of Crime
Act funds to be used to assist victims of financial crimes. Federal
guidelines identify elders and dependent adults as being
underserved in this area.

(f) Many states already provide assistance to victims of financial
crimes, including Colorado, Florida, Idaho, New Jersey, New
York, Oklahoma, Pennsylvania, Vermont, and Wyoming.

SEC. 2.  

Section 13955 of the Government Code is amended
to read:

13955.  

Except as provided in Section 13956, a person shall be
eligible for compensation when all of the following requirements
are met:

(a) The person for whom compensation is being sought is any
of the following:

(1) A victim.

(2) A derivative victim.

(3) (A) A person who is entitled to reimbursement for funeral,
burial, or crime scene cleanup expenses pursuant to paragraph (9)
of subdivision (a) of Section 13957.

(B) This paragraph applies without respect to any felon status
of the victim.

(b) Either of the following conditions is met:

(1) The crime occurred within this state, whether or not the
victim is a resident of the state. This paragraph shall apply only
during those time periods during which the board determines that
federal funds are available to the state for the compensation of
victims of crime.

(2) Whether or not the crime occurred within the State of
California, the victim was any of the following:

(A) A resident of the state.

(B) A member of the military stationed in California.

(C) A family member living with a member of the military
stationed in this state.

(c) If compensation is being sought for a derivative victim, the
derivative victim is a resident of this state, or resident of another
state, who is any of the following:

(1) At the time of the crime was the parent, grandparent, sibling,
spouse, child, or grandchild of the victim.

(2) At the time of the crime was living in the household of the
victim.

(3) At the time of the crime was a person who had previously
lived in the household of the victim for a period of not less than
two years in a relationship substantially similar to a relationship
listed in paragraph (1).

(4) Is another family member of the victim, including, but not
limited to, the victim’s fiancé or fiancée, and who witnessed the
crime.

(5) Is the primary caretaker of a minor victim, but was not the
primary caretaker at the time of the crime.

(d) The application is timely pursuant to Section 13953.

(e) (1) Except as provided in paragraph (2), the injury or death
was a direct result of a crime.

(2) Notwithstanding paragraph (1), no act involving the
operation of a motor vehicle, aircraft, or water vehicle that results
in injury or death constitutes a crime for the purposes of this
chapter, except when the injury or death from such an act was any
of the following:

(A) Intentionally inflicted through the use of a motor vehicle,
aircraft, or water vehicle.

(B) Caused by a driver who fails to stop at the scene of an
accident in violation of Section 20001 of the Vehicle Code.

(C) Caused by a person who is under the influence of any
alcoholic beverage or drug.

(D) Caused by a driver of a motor vehicle in the immediate act
of fleeing the scene of a crime in which he or she knowingly and
willingly participated.

(E) Caused by a person who commits vehicular manslaughter
in violation of subdivision (b) of Section 191.5, subdivision (c) of
Section 192, or Section 192.5 of the Penal Code.

(F) Caused by any party where a peace officer is operating a
motor vehicle in an effort to apprehend a suspect, and the suspect
is evading, fleeing, or otherwise attempting to elude the peace
officer.

(f) As a direct result of the crime, the victim or derivative victim
sustained one or more of the following:

(1) Physical injury. The board may presume a child who has
been the witness of a crime of domestic violence has sustained
physical injury. A child who resides in a home where a crime or
crimes of domestic violence have occurred may be presumed by
the board to have sustained physical injury, regardless of whether
the child has witnessed the crime.

(2) Emotional injury and a threat of physical injury.

(3) Emotional injury, where the crime was a violation of any of
the following provisions:

(A) Section 236.1, 261, 262, 271, 273a, 273d, 285, 286, 288,
288a, 288.5, or 289, or subdivision (b) or (c) of Section 311.4, of
the Penal Code.

(B) Section 270 of the Penal Code, where the emotional injury
was a result of conduct other than a failure to pay child support,
and criminal charges were filed.

(C) Section 261.5 of the Penal Code, and criminal charges were
filed.

(D) Section 278 or 278.5 of the Penal Code, where the
deprivation of custody as described in those sections has endured
for 30 calendar days or more. For purposes of this paragraph, the
child, and not the nonoffending parent or other caretaker, shall be
deemed the victim.

begin insert

(E) Subdivision (d) or (e) of Section 368 of the Penal Code.

end insert

(g) The injury or death has resulted or may result in pecuniary
loss within the scope of compensation pursuant to Sections 13957
to 13957.7, inclusive.

SEC. 3.  

Section 13956 of the Government Code is amended
to read:

13956.  

Notwithstanding Section 13955, a person shall not be
eligible for compensation under the following conditions:

(a) An application shall be denied if the board finds that the
victim or, where compensation is sought by or on behalf of a
derivative victim, either the victim or derivative victim, knowingly
and willingly participated in the commission of the crime that
resulted in the pecuniary loss for which compensation is being
sought pursuant to this chapter. However, this subdivision shall
not apply if the injury or death occurred as a direct result of a crime
committed in violation of Section 261, 262, or 273.5 of, or a crime
of unlawful sexual intercourse with a minor committed in violation
of subdivision (d) of Section 261.5 of, the Penal Code.

(b) (1) An application shall be denied if the board finds that
the victim or, where compensation is sought by, or on behalf of,
a derivative victim, either the victim or derivative victim failed to
cooperate reasonably with a law enforcement agency in the
apprehension and conviction of a criminal committing the crime.
However, in determining whether cooperation has been reasonable,
the board shall consider the victim’s or derivative victim’s age,
physical condition, and psychological state, cultural or linguistic
barriers, any compelling health and safety concerns, including, but
not limited to, a reasonable fear of retaliation or harm that would
jeopardize the well-being of the victim or the victim’s family or
the derivative victim or the derivative victim’s family, and giving
due consideration to the degree of cooperation of which the victim
or derivative victim is capable in light of the presence of any of
these factors.

(2) An application for a claim based on domestic violence may
not be denied solely because no police report was made by the
victim. The board shall adopt guidelines that allow the board to
consider and approve applications for assistance based on domestic
violence relying upon evidence other than a police report to
establish that a domestic violence crime has occurred. Factors
evidencing that a domestic violence crime has occurred may
include, but are not limited to, medical records documenting
injuries consistent with allegations of domestic violence, mental
health records, or the fact that the victim has obtained a temporary
or permanent restraining order, or all of these.

(3) An application for a claim based on human trafficking as
defined in Section 236.1 of the Penal Code may not be denied
solely because no police report was made by the victim. The board
shall adopt guidelines that allow the board to consider and approve
applications for assistance based on human trafficking relying
upon evidence other than a police report to establish that a human
trafficking crime as defined in Section 236.1 has occurred. That
evidence may include any reliable corroborating information
approved by the board, including, but not limited to, the following:

(A) A Law Enforcement Agency Endorsement issued pursuant
to Section 236.2 of the Penal Code.

(B) A human trafficking caseworker as identified in Section
1038.2 of the Evidence Code, has attested by affidavit that the
individual was a victim of human trafficking.

(c) An application for compensation may be denied, in whole
or in part, if the board finds that denial is appropriate because of
the nature of the victim’s or other applicant’s involvement in the
events leading to the crime or the involvement of the persons whose
injury or death gives rise to the application. In the case of a minor,
the board shall consider the minor’s age, physical condition, and
psychological state, as well as any compelling health and safety
concerns, in determining whether the minor’s application should
be denied pursuant to this section. The application of a derivative
victim of domestic violence under the age of 18 years of age or a
derivative victim of trafficking under 18 years of age may not be
denied on the basis of the denial of the victim’s application under
this subdivision.

(d) (1) Notwithstanding Section 13955, no person who is
convicted of a felony may be granted compensation until that
person has been discharged from probation or has been released
from a correctional institution and has been discharged from parole,
if any. In no case shall compensation be granted to an applicant
pursuant to this chapter during any period of time the applicant is
held in a correctional institution.

(2) A person who has been convicted of a felony may apply for
compensation pursuant to this chapter at any time, but the award
of that compensation may not be considered until the applicant
meets the requirements for compensation set forth in paragraph
(1).

(3) Applications of victims who are not felons shall receive
priority in the award of compensation over an application submitted
by a felon who has met the requirements for compensation set
forth in paragraph (1).

begin insert

(e) A derivative victim shall not be eligible for compensation if
the only crime the victim suffered is elder or dependent adult abuse
described in subdivision (d) or (e) of Section 368 of the Penal
Code.

end insert

SEC. 4.  

Section 13957 of the Government Code is amended
to read:

13957.  

(a) The board may grant for pecuniary loss, when the
board determines it will best aid the person seeking compensation,
as follows:

(1) Subject to the limitations set forth in Section 13957.2,
reimburse the amount of medical or medical-related expenses
incurred by the victim, including, but not limited to, eyeglasses,
hearing aids, dentures, or any prosthetic device taken, lost, or
destroyed during the commission of the crime, or the use of which
became necessary as a direct result of the crime.

(2) Subject to the limitations set forth in Section 13957.2,
reimburse the amount of outpatient psychiatric, psychological, or
other mental health counseling-related expenses incurred by the
victim or derivative victim, including peer counseling services
provided by a rape crisis center as defined by Section 13837 of
the Penal Code, and including family psychiatric, psychological,
or mental health counseling for the successful treatment of the
victim provided to family members of the victim in the presence
of the victim, whether or not the family member relationship
existed at the time of the crime, that became necessary as a direct
result of the crime, subject to the following conditions:

(A) The following persons may be reimbursed for the expense
of their outpatient mental health counseling in an amount not to
exceed ten thousand dollars ($10,000):

(i) A victim.

(ii) A derivative victim who is the surviving parent, sibling,
child, spouse, fiancé, or fiancée of a victim of a crime that directly
resulted in the death of the victim.

(iii) A derivative victim, as described in paragraphs (1) to (4),
inclusive, of subdivision (c) of Section 13955, who is the primary
caretaker of a minor victim whose claim is not denied or reduced
pursuant to Section 13956 in a total amount not to exceed ten
thousand dollars ($10,000) for not more than two derivative
victims.

(B) The following persons may be reimbursed for the expense
of their outpatient mental health counseling in an amount not to
exceed five thousand dollars ($5,000):

(i) A derivative victim not eligible for reimbursement pursuant
to subparagraph (A), provided that mental health counseling of a
derivative victim described in paragraph (5) of subdivision (c) of
Section 13955, shall be reimbursed only if that counseling is
necessary for the treatment of the victim.

(ii) A victim of a crime of unlawful sexual intercourse with a
minor committed in violation of subdivision (d) of Section 261.5
of the Penal Code. A derivative victim of a crime committed in
violation of subdivision (d) of Section 261.5 of the Penal Code
shall not be eligible for reimbursement of mental health counseling
expenses.

(iii) A minor who suffers emotional injury as a direct result of
witnessing a violent crime and who is not eligible for
reimbursement of the costs of outpatient mental health counseling
under any other provision of this chapter. To be eligible for
reimbursement under this clause, the minor must have been in
close proximity to the victim when he or she witnessed the crime.

(C) The board may reimburse a victim or derivative victim for
outpatient mental health counseling in excess of that authorized
by subparagraph (A) or (B) or for inpatient psychiatric,
psychological, or other mental health counseling if the claim is
based on dire or exceptional circumstances that require more
extensive treatment, as approved by the board.

(D) Expenses for psychiatric, psychological, or other mental
health counseling-related services may be reimbursed only if the
services were provided by either of the following individuals:

(i) A person who would have been authorized to provide those
services pursuant to former Article 1 (commencing with Section
13959) as it read on January 1, 2002.

(ii) A person who is licensed by the state to provide those
services, or who is properly supervised by a person who is so
licensed, subject to the board’s approval and subject to the
limitations and restrictions the board may impose.

(3) Reimburse the expenses of nonmedical remedial care and
treatment rendered in accordance with a religious method of healing
recognized by state law.

(4) Subject to the limitations set forth in Section 13957.5,
authorize 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 or derivative victim’s injury or the victim’s
death. If the victim or derivative victim requests that the board
give priority to reimbursement of loss of income or support, the
board may not pay medical expenses, or mental health counseling
expenses, except upon the request of the victim or derivative victim
or after determining that payment of these expenses will not
decrease the funds available for payment of loss of income or
support.

(5) Authorize a cash payment to or on behalf of the victim for
job retraining or similar employment-oriented services.

(6) Reimburse the claimant for the expense of installing or
increasing residential security, not to exceed one thousand dollars
($1,000). Reimbursement shall be made either upon verification
by law enforcement that the security measures are necessary for
the personal safety of the claimant or verification by a mental
health treatment provider that the security measures are necessary
for the emotional well-being of the claimant. For purposes of this
paragraph, a claimant is the crime victim, or, if the victim is
deceased, a person who resided with the deceased at the time of
the crime. Installing or increasing residential security may include,
but need not be limited to, both of the following:

(A) Home security device or system.

(B) Replacing or increasing the number of locks.

(7) Reimburse the expense of renovating or retrofitting a
victim’s residence or a vehicle, or both, to make the residence, the
vehicle, or both, accessible or the vehicle operational by a victim
upon verification that the expense is medically necessary for a
victim who is permanently disabled as a direct result of the crime,
whether the disability is partial or total.

(8) (A) Authorize a cash payment or reimbursement not to
exceed two thousand dollars ($2,000) to a victim for expenses
incurred in relocating, if the expenses are determined 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.

(B) The cash payment or reimbursement made under this
paragraph shall only be awarded to one claimant per crime giving
rise to the relocation. The board may authorize more than one
relocation per crime if necessary for the personal safety or
emotional well-being of the claimant. However, the total cash
payment or reimbursement for all relocations due to the same crime
shall not exceed two thousand dollars ($2,000). For purposes of
this paragraph a claimant is the crime victim, or, if the victim is
deceased, a person who resided with the deceased at the time of
the crime.

(C) The board may, under compelling circumstances, award a
second cash payment or reimbursement to a victim for another
crime if both of the following conditions are met:

(i) The crime occurs more than three years from the date of the
crime giving rise to the initial relocation cash payment or
reimbursement.

(ii) The crime does not involve the same offender.

(D) When a relocation payment or reimbursement is provided
to a victim of sexual assault or domestic violence and the identity
of the offender is known to the victim, the victim shall agree not
to inform the offender of the location of the victim’s new residence
and not to allow the offender on the premises at any time, or shall
agree to seek a restraining order against the offender.

(E) Notwithstanding subparagraphs (A) and (B), the board may
increase the cash payment or reimbursement for expenses incurred
in relocating to an amount greater than two thousand dollars
($2,000), if the board finds this amount is appropriate due to the
unusual, dire, or exceptional circumstances of a particular claim.

(9) When a victim dies as a result of a crime, the board may
reimburse any individual who voluntarily, and without anticipation
of personal gain, pays or assumes the obligation to pay any of the
following expenses:

(A) The medical expenses incurred as a direct result of the crime
in an amount not to exceed the rates or limitations established by
the board.

(B) The funeral and burial expenses incurred as a direct result
of the crime, not to exceed seven thousand five hundred dollars
($7,500).

(10) When the crime occurs in a residence, the board may
reimburse any individual who voluntarily, and without anticipation
of personal gain, pays or assumes the obligation to pay the
reasonable costs to clean the scene of the crime in an amount not
to exceed one thousand dollars ($1,000). Services reimbursed
pursuant to this subdivision shall be performed by persons
registered with the State Department of Public Health as trauma
scene waste practitioners in accordance with Chapter 9.5
(commencing with Section 118321) of Part 14 of Division 104 of
the Health and Safety Code.

begin insert

(11) Reimburse the expense of financial counseling for a victim
of a crime described in subdivision (d) or (e) of Section 368 of the
Penal Code as follows:

end insert begin insert

(A) The cost of financial counseling in an amount not to exceed
two thousand dollars ($2,000).

end insert begin insert

(B) A victim who receives both mental health counseling and
financial counseling under this section may be reimbursed in an
amount not to exceed a combined total of ten thousand dollars
($10,000) with a maximum of two thousand dollars ($2,000)
apportioned for financial counseling.

end insert begin insert

(C) Reimbursable financial counseling expenses shall be
provided by a certified financial counselor or adviser providing
services that may include analysis of a victim’s financial situation,
including income-producing capacity and crime-related financial
obligations, assistance with restructuring budget and debt,
assistance in accessing insurance, public assistance, and other
benefits, and assistance in completing the financial aspects of
victim impact statements.

end insert

(b) The total award to or on behalf of each victim or derivative
victim may not exceed thirty-five thousand dollars ($35,000),
except that this amount may be increased to seventy thousand
dollars ($70,000) if federal funds for that increase are available.