SB 756: Restitution: noneconomic losses: child sexual abuse.
- Session Year: 2017-2018
- House: Senate
- Latest Version Date: 2017-07-21
Existing law requires the court to order a person who is convicted of a crime to pay restitution to the victim or victims for the full amount of economic loss, unless the court finds compelling and extraordinary reasons for not doing so and states them on the record. Existing law requires the restitution order to be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendants criminal conduct, including, but not limited to, noneconomic losses for psychological harm stemming from felony incidents of lewd and lascivious acts with a minor, as defined.
Restitution fines are deposited in the Restitution Fund, which is continuously appropriated, to the extent that a victim has been compensated by that fund.
This bill would include in the required restitution order amount noneconomic losses for psychological harm stemming from felony incidents of repeated or recurring incidents of sexual abuse of a child under 14 years of age or from felony incidents of sexual contact with a child under 10 years of age. By sending additional money to a continuously appropriated fund, this bill makes an appropriation.
Existing law requires the court to order a person who is convicted of a crime to pay restitution to the victim or victims for the full amount of economic loss, unless the court finds compelling and extraordinary reasons for not doing so and states them on the record. Existing law requires the restitution order to be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendants criminal conduct, including, but not limited to, noneconomic losses for psychological harm stemming from felony incidents of lewd and lascivious acts with a minor, as defined.
Restitution fines are deposited in the Restitution Fund, which is continuously appropriated, to the extent that a victim has been compensated by that fund.
This bill would include in the required restitution order amount noneconomic losses for psychological harm stemming from felony incidents of repeated or recurring incidents of sexual abuse of a child under 14 years of age or from felony incidents of sexual contact with a child under 10 years of age. By sending additional money to a continuously appropriated fund, this bill makes an appropriation.
Existing law requires the court to order a person who is convicted of a crime to pay restitution to the victim or victims for the full amount of economic loss, unless the court finds compelling and extraordinary reasons for not doing so and states them on the record. Existing law requires the restitution order to be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendants criminal conduct, including, but not limited to, noneconomic losses for psychological harm stemming from felony incidents of lewd and lascivious acts with a minor, as defined.
Restitution fines are deposited in the Restitution Fund, which is continuously appropriated, to the extent that a victim has been compensated by that fund.
This bill would include in the required restitution order amount noneconomic losses for psychological harm stemming from felony incidents of repeated or recurring incidents of sexual abuse of a child under 14 years of age or from felony incidents of sexual contact with a child under 10 years of age. By sending additional money to a continuously appropriated fund, this bill makes an appropriation.
(a)(1)It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.
(2)Upon a person being convicted of a crime in the State of California, the court shall order the defendant to pay a fine in the form of a penalty assessment in accordance with Section 1464.
(3)The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay both of the following:
(A)A restitution fine in accordance with subdivision (b).
(B)Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment.
(b)In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.
(1)The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000). If the person is convicted of a misdemeanor, the fine shall not be less than one hundred fifty dollars ($150) and not more than one thousand dollars ($1,000).
(2)In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.
(c)The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendants inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b). The court may specify that funds confiscated at the time of the defendants arrest, except for funds confiscated pursuant to Chapter 8 (commencing with Section 11469) of Division 10 of the Health and Safety Code, be applied to the restitution fine if the funds are not exempt for spousal or child support or subject to any other legal exemption.
(d)In setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b), the court shall consider any relevant factors, including, but not limited to, the defendants inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendants inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.
(e)The restitution fine shall not be subject to penalty assessments authorized in Section 1464 or Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, or the state surcharge authorized in Section 1465.7, and shall be deposited in the Restitution Fund in the State Treasury.
(f)Except as provided in subdivisions (q) and (r), in every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution. The court may specify that funds confiscated at the time of the defendants arrest, except for funds confiscated pursuant to Chapter 8 (commencing with Section 11469) of Division 10 of the Health and Safety Code, be applied to the restitution order if the funds are not exempt for spousal or child support or subject to any other legal exemption.
(1)The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the proceeding held to decide the motion. A victim at a restitution hearing or modification hearing described in this paragraph may testify by live, two-way audio and video transmission, if testimony by live, two-way audio and video transmission is available at the court.
(2)Determination of the amount of restitution ordered pursuant to this subdivision shall not be affected by the indemnification or subrogation rights of a third party. Restitution ordered pursuant to this subdivision shall be ordered to be deposited in the Restitution Fund to the extent that the victim, as defined in subdivision (k), has received assistance from the California Victim Compensation and Government Claims Board pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code.
(3)To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendants criminal conduct, including, but not limited to, all of the following:
(A)Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.
(B)Medical expenses.
(C)Mental health counseling expenses.
(D)Wages or profits lost due to injury incurred by the victim, and if the victim is a minor, wages or profits lost by the minors parent, parents, guardian, or guardians, while caring for the injured minor. Lost wages shall include commission income as well as base wages. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown.
(E)Wages or profits lost by the victim, and if the victim is a minor, wages or profits lost by the minors parent, parents, guardian, or guardians, due to time spent as a witness or in assisting the police or prosecution. Lost wages shall include commission income as well as base wages. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown.
(F)Noneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288, 288.5, or 288.7.
(G)Interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court.
(H)Actual and reasonable attorneys fees and other costs of collection accrued by a private entity on behalf of the victim.
(I)Expenses incurred by an adult victim in relocating away from the defendant, including, but not limited to, deposits for utilities and telephone service, deposits for rental housing, temporary lodging and food expenses, clothing, and personal items. Expenses incurred pursuant to this section shall be verified 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.
(J)Expenses to install or increase residential security incurred related to a violent felony, as defined in subdivision (c) of Section 667.5, including, but not limited to, a home security device or system, or replacing or increasing the number of locks.
(K)Expenses to retrofit a residence or vehicle, or both, to make the residence accessible to or the vehicle operational by the victim, if the victim is permanently disabled, whether the disability is partial or total, as a direct result of the crime.
(L)Expenses for a period of time reasonably necessary to make the victim whole, for the costs to monitor the credit report of, and for the costs to repair the credit of, a victim of identity theft, as defined in Section 530.5.
(4)(A)If, as a result of the defendants conduct, the Restitution Fund has provided assistance to or on behalf of a victim or derivative victim pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code, the amount of assistance provided shall be presumed to be a direct result of the defendants criminal conduct and shall be included in the amount of the restitution ordered.
(B)The amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation and Government Claims Board reflecting the amount paid by the board and whether the services for which payment was made were for medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation. Certified copies of these bills provided by the board and redacted to protect the privacy and safety of the victim or any legal privilege, 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.
(C)If the defendant offers evidence to rebut the presumption established by this paragraph, the court may release additional information contained in the records of the board to the defendant only after reviewing that information in camera and finding that the information is necessary for the defendant to dispute the amount of the restitution order.
(5)Except as provided in paragraph (6), in any case in which an order may be entered pursuant to this subdivision, the defendant shall prepare and file a disclosure identifying all assets, income, and liabilities in which the defendant held or controlled a present or future interest as of the date of the defendants arrest for the crime for which restitution may be ordered. The financial disclosure statements shall be made available to the victim and the board pursuant to Section 1214. The disclosure shall be signed by the defendant upon a form approved or adopted by the Judicial Council for the purpose of facilitating the disclosure. A defendant who willfully states as true a material matter that he or she knows to be false on the disclosure required by this subdivision is guilty of a misdemeanor, unless this conduct is punishable as perjury or another provision of law provides for a greater penalty.
(6)A defendant who fails to file the financial disclosure required in paragraph (5), but who has filed a financial affidavit or financial information pursuant to subdivision (c) of Section 987, shall be deemed to have waived the confidentiality of that affidavit or financial information as to a victim in whose favor the order of restitution is entered pursuant to subdivision (f). The affidavit or information shall serve in lieu of the financial disclosure required in paragraph (5), and paragraphs (7) to (10), inclusive, shall not apply.
(7)Except as provided in paragraph (6), the defendant shall file the disclosure with the clerk of the court no later than the date set for the defendants sentencing, unless otherwise directed by the court. The disclosure may be inspected or copied as provided by subdivision (b), (c), or (d) of Section 1203.05.
(8)In its discretion, the court may relieve the defendant of the duty under paragraph (7) of filing with the clerk by requiring that the defendants disclosure be submitted as an attachment to, and be available to, those authorized to receive the following:
(A)A report submitted pursuant to subparagraph (D) of paragraph (2) of subdivision (b) of Section 1203 or subdivision (g) of Section 1203.
(B)A stipulation submitted pursuant to paragraph (4) of subdivision (b) of Section 1203.
(C)A report by the probation officer, or information submitted by the defendant applying for a conditional sentence pursuant to subdivision (d) of Section 1203.
(9)The court may consider a defendants unreasonable failure to make a complete disclosure pursuant to paragraph (5) as any of the following:
(A)A circumstance in aggravation of the crime in imposing a term under subdivision (b) of Section 1170.
(B)A factor indicating that the interests of justice would not be served by admitting the defendant to probation under Section 1203.
(C)A factor indicating that the interests of justice would not be served by conditionally sentencing the defendant under Section 1203.
(D)A factor indicating that the interests of justice would not be served by imposing less than the maximum fine and sentence fixed by law for the case.
(10)A defendants failure or refusal to make the required disclosure pursuant to paragraph (5) shall not delay entry of an order of restitution or pronouncement of sentence. In appropriate cases, the court may do any of the following:
(A)Require the defendant to be examined by the district attorney pursuant to subdivision (h).
(B)If sentencing the defendant under Section 1170, provide that the victim shall receive a copy of the portion of the probation report filed pursuant to Section 1203.10 concerning the defendants employment, occupation, finances, and liabilities.
(C)If sentencing the defendant under Section 1203, set a date and place for submission of the disclosure required by paragraph (5) as a condition of probation or suspended sentence.
(11)If a defendant has any remaining unpaid balance on a restitution order or fine 120 days prior to his or her scheduled release from probation or 120 days prior to his or her completion of a conditional sentence, the defendant shall prepare and file a new and updated financial disclosure identifying all assets, income, and liabilities in which the defendant holds or controls or has held or controlled a present or future interest during the defendants period of probation or conditional sentence. The financial disclosure shall be made available to the victim and the board pursuant to Section 1214. The disclosure shall be signed and prepared by the defendant on the same form as described in paragraph (5). A defendant who willfully states as true a material matter that he or she knows to be false on the disclosure required by this subdivision is guilty of a misdemeanor, unless this conduct is punishable as perjury or another provision of law provides for a greater penalty. The financial disclosure required by this paragraph shall be filed with the clerk of the court no later than 90 days prior to the defendants scheduled release from probation or completion of the defendants conditional sentence.
(12)In cases where an employer is convicted of a crime against an employee, a payment to the employee or the employees dependent that is made by the employers workers compensation insurance carrier shall not be used to offset the amount of the restitution order unless the court finds that the defendant substantially met the obligation to pay premiums for that insurance coverage.
(g)A defendants inability to pay shall not be a consideration in determining the amount of a restitution order.
(h)The district attorney may request an order of examination pursuant to the procedures specified in Article 2 (commencing with Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure, in order to determine the defendants financial assets for purposes of collecting on the restitution order.
(i)A restitution order imposed pursuant to subdivision (f) shall be enforceable as if the order were a civil judgment.
(j)The making of a restitution order pursuant to subdivision (f) shall not affect the right of a victim to recovery from the Restitution Fund as otherwise provided by law, except to the extent that restitution is actually collected pursuant to the order. Restitution collected pursuant to this subdivision shall be credited to any other judgments for the same losses obtained against the defendant arising out of the crime for which the defendant was convicted.
(k)For purposes of this section, victim shall include all of the following:
(1)The immediate surviving family of the actual victim.
(2)A corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime.
(3)A person who has sustained economic loss as the result of a crime and who satisfies any of the following conditions:
(A)At the time of the crime was the parent, grandparent, sibling, spouse, child, or grandchild of the victim.
(B)At the time of the crime was living in the household of the victim.
(C)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 subparagraph (A).
(D)Is another family member of the victim, including, but not limited to, the victims fiance or fiancee, and who witnessed the crime.
(E)Is the primary caretaker of a minor victim.
(4)A person who is eligible to receive assistance from the Restitution Fund pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code.
(5)A governmental entity that is responsible for repairing, replacing, or restoring public or privately owned property that has been defaced with graffiti or other inscribed material, as defined in subdivision (e) of Section 594, and that has sustained an economic loss as the result of a violation of Section 594, 594.3, 594.4, 640.5, 640.6, or 640.7.
(l)At its discretion, the board of supervisors of a county may impose a fee to cover the actual administrative cost of collecting the restitution fine, not to exceed 10 percent of the amount ordered to be paid, to be added to the restitution fine and included in the order of the court, the proceeds of which shall be deposited in the general fund of the county.
(m)In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation. Any portion of a restitution order that remains unsatisfied after a defendant is no longer on probation shall continue to be enforceable by a victim pursuant to Section 1214 until the obligation is satisfied.
(n)If the court finds and states on the record compelling and extraordinary reasons why a restitution fine should not be required, the court shall order, as a condition of probation, that the defendant perform specified community service, unless it finds and states on the record compelling and extraordinary reasons not to require community service in addition to the finding that a restitution fine should not be required. Upon revocation of probation, the court shall impose the restitution fine pursuant to this section.
(o)The provisions of Section 13963 of the Government Code shall apply to restitution imposed pursuant to this section.
(p)The court clerk shall notify the California Victim Compensation and Government Claims Board within 90 days of an order of restitution being imposed if the defendant is ordered to pay restitution to the board due to the victim receiving compensation from the Restitution Fund. Notification shall be accomplished by mailing a copy of the court order to the board, which may be done periodically by bulk mail or email.
(q)Upon conviction for a violation of Section 236.1, the court shall, in addition to any other penalty or restitution, order the defendant to pay restitution to the victim in a case in which a victim has suffered economic loss as a result of the defendants conduct. The court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or another showing to the court. In determining restitution pursuant to this section, the court shall base its order upon the greater of the following: the gross value of the victims labor or services based upon the comparable value of similar services in the labor market in which the offense occurred, or the value of the victims labor as guaranteed under California law, or the actual income derived by the defendant from the victims labor or services or any other appropriate means to provide reparations to the victim.
(r)(1)In addition to any other penalty or fine, the court shall order a person who has been convicted of a violation of Section 350, 653h, 653s, 653u, 653w, or 653aa that involves a recording or audiovisual work to make restitution to an owner or lawful producer, or trade association acting on behalf of the owner or lawful producer, of a phonograph record, disc, wire, tape, film, or other device or article from which sounds or visual images are derived that suffered economic loss resulting from the violation. The order of restitution shall be based on the aggregate wholesale value of lawfully manufactured and authorized devices or articles from which sounds or visual images are devised corresponding to the number of nonconforming devices or articles involved in the offense, unless a higher value can be proved in the case of (A) an unreleased audio work, or (B) an audiovisual work that, at the time of unauthorized distribution, has not been made available in copies for sale to the general public in the United States on a digital versatile disc. For purposes of this subdivision, possession of nonconforming devices or articles intended for sale constitutes actual economic loss to an owner or lawful producer in the form of displaced legitimate wholesale purchases. The order of restitution shall also include reasonable costs incurred as a result of an investigation of the violation undertaken by the owner, lawful producer, or trade association acting on behalf of the owner or lawful producer. Aggregate wholesale value means the average wholesale value of lawfully manufactured and authorized sound or audiovisual recordings. Proof of the specific wholesale value of each nonconforming device or article is not required.
(2)As used in this subdivision, audiovisual work and recording shall have the same meaning as in Section 653w.
(a)(1)It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.
(2)Upon a person being convicted of a crime in the State of California, the court shall order the defendant to pay a fine in the form of a penalty assessment in accordance with Section 1464.
(3)The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay both of the following:
(A)A restitution fine in accordance with subdivision (b).
(B)Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment.
(b)In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.
(1)The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000). If the person is convicted of a misdemeanor, the fine shall not be less than one hundred fifty dollars ($150) and not more than one thousand dollars ($1,000).
(2)In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.
(c)The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendants inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b). The court may specify that funds confiscated at the time of the defendants arrest, except for funds confiscated pursuant to Chapter 8 (commencing with Section 11469) of Division 10 of the Health and Safety Code, be applied to the restitution fine if the funds are not exempt for spousal or child support or subject to any other legal exemption.
(d)In setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b), the court shall consider any relevant factors, including, but not limited to, the defendants inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendants inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.
(e)The restitution fine shall not be subject to penalty assessments authorized in Section 1464 or Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, or the state surcharge authorized in Section 1465.7, and shall be deposited in the Restitution Fund in the State Treasury.
(f)Except as provided in subdivisions (q) and (r), in every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution. The court may specify that funds confiscated at the time of the defendants arrest, except for funds confiscated pursuant to Chapter 8 (commencing with Section 11469) of Division 10 of the Health and Safety Code, be applied to the restitution order if the funds are not exempt for spousal or child support or subject to any other legal exemption.
(1)The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the proceeding held to decide the motion. A victim at a restitution hearing or modification hearing described in this paragraph may testify by live, two-way audio and video transmission, if testimony by live, two-way audio and video transmission is available at the court.
(2)Determination of the amount of restitution ordered pursuant to this subdivision shall not be affected by the indemnification or subrogation rights of a third party. Restitution ordered pursuant to this subdivision shall be ordered to be deposited in the Restitution Fund to the extent that the victim, as defined in subdivision (k), has received assistance from the California Victim Compensation and Government Claims Board pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code.
(3)To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendants criminal conduct, including, but not limited to, all of the following:
(A)Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.
(B)Medical expenses.
(C)Mental health counseling expenses.
(D)Wages or profits lost due to injury incurred by the victim, and if the victim is a minor, wages or profits lost by the minors parent, parents, guardian, or guardians, while caring for the injured minor. Lost wages shall include commission income as well as base wages. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown.
(E)Wages or profits lost by the victim, and if the victim is a minor, wages or profits lost by the minors parent, parents, guardian, or guardians, due to time spent as a witness or in assisting the police or prosecution. Lost wages shall include commission income as well as base wages. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown.
(F)Noneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288, 288.5, or 288.7.
(G)Interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court.
(H)Actual and reasonable attorneys fees and other costs of collection accrued by a private entity on behalf of the victim.
(I)Expenses incurred by an adult victim in relocating away from the defendant, including, but not limited to, deposits for utilities and telephone service, deposits for rental housing, temporary lodging and food expenses, clothing, and personal items. Expenses incurred pursuant to this section shall be verified 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.
(J)Expenses to install or increase residential security incurred related to a violent felony, as defined in subdivision (c) of Section 667.5, including, but not limited to, a home security device or system, or replacing or increasing the number of locks.
(K)Expenses to retrofit a residence or vehicle, or both, to make the residence accessible to or the vehicle operational by the victim, if the victim is permanently disabled, whether the disability is partial or total, as a direct result of the crime.
(L)Expenses for a period of time reasonably necessary to make the victim whole, for the costs to monitor the credit report of, and for the costs to repair the credit of, a victim of identity theft, as defined in Section 530.5.
(4)(A)If, as a result of the defendants conduct, the Restitution Fund has provided assistance to or on behalf of a victim or derivative victim pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code, the amount of assistance provided shall be presumed to be a direct result of the defendants criminal conduct and shall be included in the amount of the restitution ordered.
(B)The amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation and Government Claims Board reflecting the amount paid by the board and whether the services for which payment was made were for medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation. Certified copies of these bills provided by the board and redacted to protect the privacy and safety of the victim or any legal privilege, 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.
(C)If the defendant offers evidence to rebut the presumption established by this paragraph, the court may release additional information contained in the records of the board to the defendant only after reviewing that information in camera and finding that the information is necessary for the defendant to dispute the amount of the restitution order.
(5)Except as provided in paragraph (6), in any case in which an order may be entered pursuant to this subdivision, the defendant shall prepare and file a disclosure identifying all assets, income, and liabilities in which the defendant held or controlled a present or future interest as of the date of the defendants arrest for the crime for which restitution may be ordered. The financial disclosure statements shall be made available to the victim and the board pursuant to Section 1214. The disclosure shall be signed by the defendant upon a form approved or adopted by the Judicial Council for the purpose of facilitating the disclosure. A defendant who willfully states as true a material matter that he or she knows to be false on the disclosure required by this subdivision is guilty of a misdemeanor, unless this conduct is punishable as perjury or another provision of law provides for a greater penalty.
(6)A defendant who fails to file the financial disclosure required in paragraph (5), but who has filed a financial affidavit or financial information pursuant to subdivision (c) of Section 987, shall be deemed to have waived the confidentiality of that affidavit or financial information as to a victim in whose favor the order of restitution is entered pursuant to subdivision (f). The affidavit or information shall serve in lieu of the financial disclosure required in paragraph (5), and paragraphs (7) to (10), inclusive, shall not apply.
(7)Except as provided in paragraph (6), the defendant shall file the disclosure with the clerk of the court no later than the date set for the defendants sentencing, unless otherwise directed by the court. The disclosure may be inspected or copied as provided by subdivision (b), (c), or (d) of Section 1203.05.
(8)In its discretion, the court may relieve the defendant of the duty under paragraph (7) of filing with the clerk by requiring that the defendants disclosure be submitted as an attachment to, and be available to, those authorized to receive the following:
(A)A report submitted pursuant to subparagraph (D) of paragraph (2) of subdivision (b) of Section 1203 or subdivision (g) of Section 1203.
(B)A stipulation submitted pursuant to paragraph (4) of subdivision (b) of Section 1203.
(C)A report by the probation officer, or information submitted by the defendant applying for a conditional sentence pursuant to subdivision (d) of Section 1203.
(9)The court may consider a defendants unreasonable failure to make a complete disclosure pursuant to paragraph (5) as any of the following:
(A)A circumstance in aggravation of the crime in imposing a term under subdivision (b) of Section 1170.
(B)A factor indicating that the interests of justice would not be served by admitting the defendant to probation under Section 1203.
(C)A factor indicating that the interests of justice would not be served by conditionally sentencing the defendant under Section 1203.
(D)A factor indicating that the interests of justice would not be served by imposing less than the maximum fine and sentence fixed by law for the case.
(10)A defendants failure or refusal to make the required disclosure pursuant to paragraph (5) shall not delay entry of an order of restitution or pronouncement of sentence. In appropriate cases, the court may do any of the following:
(A)Require the defendant to be examined by the district attorney pursuant to subdivision (h).
(B)If sentencing the defendant under Section 1170, provide that the victim shall receive a copy of the portion of the probation report filed pursuant to Section 1203.10 concerning the defendants employment, occupation, finances, and liabilities.
(C)If sentencing the defendant under Section 1203, set a date and place for submission of the disclosure required by paragraph (5) as a condition of probation or suspended sentence.
(11)If a defendant has any remaining unpaid balance on a restitution order or fine 120 days prior to his or her scheduled release from probation or 120 days prior to his or her completion of a conditional sentence, the defendant shall prepare and file a new and updated financial disclosure identifying all assets, income, and liabilities in which the defendant holds or controls or has held or controlled a present or future interest during the defendants period of probation or conditional sentence. The financial disclosure shall be made available to the victim and the board pursuant to Section 1214. The disclosure shall be signed and prepared by the defendant on the same form as described in paragraph (5). A defendant who willfully states as true a material matter that he or she knows to be false on the disclosure required by this subdivision is guilty of a misdemeanor, unless this conduct is punishable as perjury or another provision of law provides for a greater penalty. The financial disclosure required by this paragraph shall be filed with the clerk of the court no later than 90 days prior to the defendants scheduled release from probation or completion of the defendants conditional sentence.
(12)In cases where an employer is convicted of a crime against an employee, a payment to the employee or the employees dependent that is made by the employers workers compensation insurance carrier shall not be used to offset the amount of the restitution order unless the court finds that the defendant substantially met the obligation to pay premiums for that insurance coverage.
(g)A defendants inability to pay shall not be a consideration in determining the amount of a restitution order.
(h)The district attorney may request an order of examination pursuant to the procedures specified in Article 2 (commencing with Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure, in order to determine the defendants financial assets for purposes of collecting on the restitution order.
(i)A restitution order imposed pursuant to subdivision (f) shall be enforceable as if the order were a civil judgment.
(j)The making of a restitution order pursuant to subdivision (f) shall not affect the right of a victim to recovery from the Restitution Fund as otherwise provided by law, except to the extent that restitution is actually collected pursuant to the order. Restitution collected pursuant to this subdivision shall be credited to any other judgments for the same losses obtained against the defendant arising out of the crime for which the defendant was convicted.
(k)For purposes of this section, victim shall include all of the following:
(1)The immediate surviving family of the actual victim.
(2)A corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime.
(3)A person who has sustained economic loss as the result of a crime and who satisfies any of the following conditions:
(A)At the time of the crime was the parent, grandparent, sibling, spouse, child, or grandchild of the victim.
(B)At the time of the crime was living in the household of the victim.
(C)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 subparagraph (A).
(D)Is another family member of the victim, including, but not limited to, the victims fiance or fiancee, and who witnessed the crime.
(E)Is the primary caretaker of a minor victim.
(4)A person who is eligible to receive assistance from the Restitution Fund pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code.
(5)A governmental entity that is responsible for repairing, replacing, or restoring public or privately owned property that has been defaced with graffiti or other inscribed material, as defined in subdivision (e) of Section 594, and that has sustained an economic loss as the result of a violation of Section 594, 594.3, 594.4, 640.5, 640.6, or 640.7.
(l)At its discretion, the board of supervisors of a county may impose a fee to cover the actual administrative cost of collecting the restitution fine, not to exceed 10 percent of the amount ordered to be paid, to be added to the restitution fine and included in the order of the court, the proceeds of which shall be deposited in the general fund of the county.
(m)In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation. Any portion of a restitution order that remains unsatisfied after a defendant is no longer on probation shall continue to be enforceable by a victim pursuant to Section 1214 until the obligation is satisfied.
(n)If the court finds and states on the record compelling and extraordinary reasons why a restitution fine should not be required, the court shall order, as a condition of probation, that the defendant perform specified community service, unless it finds and states on the record compelling and extraordinary reasons not to require community service in addition to the finding that a restitution fine should not be required. Upon revocation of probation, the court shall impose the restitution fine pursuant to this section.
(o)The provisions of Section 13963 of the Government Code shall apply to restitution imposed pursuant to this section.
(p)The court clerk shall notify the California Victim Compensation and Government Claims Board within 90 days of an order of restitution being imposed if the defendant is ordered to pay restitution to the board due to the victim receiving compensation from the Restitution Fund. Notification shall be accomplished by mailing a copy of the court order to the board, which may be done periodically by bulk mail or email.
(q)Upon conviction for a violation of Section 236.1, the court shall, in addition to any other penalty or restitution, order the defendant to pay restitution to the victim in a case in which a victim has suffered economic loss as a result of the defendants conduct. The court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or another showing to the court. In determining restitution pursuant to this section, the court shall base its order upon the greater of the following: the gross value of the victims labor or services based upon the comparable value of similar services in the labor market in which the offense occurred, or the value of the victims labor as guaranteed under California law, or the actual income derived by the defendant from the victims labor or services or any other appropriate means to provide reparations to the victim.
(r)(1)In addition to any other penalty or fine, the court shall order a person who has been convicted of a violation of Section 350, 653h, 653s, 653u, 653w, or 653aa that involves a recording or audiovisual work to make restitution to an owner or lawful producer, or trade association acting on behalf of the owner or lawful producer, of a phonograph record, disc, wire, tape, film, or other device or article from which sounds or visual images are derived that suffered economic loss resulting from the violation. The order of restitution shall be based on the aggregate wholesale value of lawfully manufactured and authorized devices or articles from which sounds or visual images are devised corresponding to the number of nonconforming devices or articles involved in the offense, unless a higher value can be proved in the case of (A) an unreleased audio work, or (B) an audiovisual work that, at the time of unauthorized distribution, has not been made available in copies for sale to the general public in the United States on a digital versatile disc. For purposes of this subdivision, possession of nonconforming devices or articles intended for sale constitutes actual economic loss to an owner or lawful producer in the form of displaced legitimate wholesale purchases. The order of restitution shall also include reasonable costs incurred as a result of an investigation of the violation undertaken by the owner, lawful producer, or trade association acting on behalf of the owner or lawful producer. Aggregate wholesale value means the average wholesale value of lawfully manufactured and authorized sound or audiovisual recordings. Proof of the specific wholesale value of each nonconforming device or article is not required.
(2)As used in this subdivision, audiovisual work and recording shall have the same meaning as in Section 653w.
(a)(1)It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.
(2)Upon a person being convicted of a crime in the State of California, the court shall order the defendant to pay a fine in the form of a penalty assessment in accordance with Section 1464.
(3)The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay both of the following:
(A)A restitution fine in accordance with subdivision (b).
(B)Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment.
(b)In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.
(1)The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000). If the person is convicted of a misdemeanor, the fine shall not be less than one hundred fifty dollars ($150) and not more than one thousand dollars ($1,000).
(2)In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.
(c)The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendants inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b). The court may specify that funds confiscated at the time of the defendants arrest, except for funds confiscated pursuant to Chapter 8 (commencing with Section 11469) of Division 10 of the Health and Safety Code, be applied to the restitution fine if the funds are not exempt for spousal or child support or subject to any other legal exemption.
(d)In setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b), the court shall consider any relevant factors, including, but not limited to, the defendants inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendants inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.
(e)The restitution fine shall not be subject to penalty assessments authorized in Section 1464 or Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, or the state surcharge authorized in Section 1465.7, and shall be deposited in the Restitution Fund in the State Treasury.
(f)Except as provided in subdivisions (q) and (r), in every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution. The court may specify that funds confiscated at the time of the defendants arrest, except for funds confiscated pursuant to Chapter 8 (commencing with Section 11469) of Division 10 of the Health and Safety Code, be applied to the restitution order if the funds are not exempt for spousal or child support or subject to any other legal exemption.
(1)The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the proceeding held to decide the motion. A victim at a restitution hearing or modification hearing described in this paragraph may testify by live, two-way audio and video transmission, if testimony by live, two-way audio and video transmission is available at the court.
(2)Determination of the amount of restitution ordered pursuant to this subdivision shall not be affected by the indemnification or subrogation rights of a third party. Restitution ordered pursuant to this subdivision shall be ordered to be deposited in the Restitution Fund to the extent that the victim, as defined in subdivision (k), has received assistance from the California Victim Compensation and Government Claims Board pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code.
(3)To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendants criminal conduct, including, but not limited to, all of the following:
(A)Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.
(B)Medical expenses.
(C)Mental health counseling expenses.
(D)Wages or profits lost due to injury incurred by the victim, and if the victim is a minor, wages or profits lost by the minors parent, parents, guardian, or guardians, while caring for the injured minor. Lost wages shall include commission income as well as base wages. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown.
(E)Wages or profits lost by the victim, and if the victim is a minor, wages or profits lost by the minors parent, parents, guardian, or guardians, due to time spent as a witness or in assisting the police or prosecution. Lost wages shall include commission income as well as base wages. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown.
(F)Noneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288. 288, 288.5, or 288.7.
(G)Interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court.
(H)Actual and reasonable attorneys fees and other costs of collection accrued by a private entity on behalf of the victim.
(I)Expenses incurred by an adult victim in relocating away from the defendant, including, but not limited to, deposits for utilities and telephone service, deposits for rental housing, temporary lodging and food expenses, clothing, and personal items. Expenses incurred pursuant to this section shall be verified 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.
(J)Expenses to install or increase residential security incurred related to a violent felony, as defined in subdivision (c) of Section 667.5, including, but not limited to, a home security device or system, or replacing or increasing the number of locks.
(K)Expenses to retrofit a residence or vehicle, or both, to make the residence accessible to or the vehicle operational by the victim, if the victim is permanently disabled, whether the disability is partial or total, as a direct result of the crime.
(L)Expenses for a period of time reasonably necessary to make the victim whole, for the costs to monitor the credit report of, and for the costs to repair the credit of, a victim of identity theft, as defined in Section 530.5.
(4)(A)If, as a result of the defendants conduct, the Restitution Fund has provided assistance to or on behalf of a victim or derivative victim pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code, the amount of assistance provided shall be presumed to be a direct result of the defendants criminal conduct and shall be included in the amount of the restitution ordered.
(B)The amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation and Government Claims Board reflecting the amount paid by the board and whether the services for which payment was made were for medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation. Certified copies of these bills provided by the board and redacted to protect the privacy and safety of the victim or any legal privilege, 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.
(C)If the defendant offers evidence to rebut the presumption established by this paragraph, the court may release additional information contained in the records of the board to the defendant only after reviewing that information in camera and finding that the information is necessary for the defendant to dispute the amount of the restitution order.
(5)Except as provided in paragraph (6), in any case in which an order may be entered pursuant to this subdivision, the defendant shall prepare and file a disclosure identifying all assets, income, and liabilities in which the defendant held or controlled a present or future interest as of the date of the defendants arrest for the crime for which restitution may be ordered. The financial disclosure statements shall be made available to the victim and the board pursuant to Section 1214. The disclosure shall be signed by the defendant upon a form approved or adopted by the Judicial Council for the purpose of facilitating the disclosure. A defendant who willfully states as true a material matter that he or she knows to be false on the disclosure required by this subdivision is guilty of a misdemeanor, unless this conduct is punishable as perjury or another provision of law provides for a greater penalty.
(6)A defendant who fails to file the financial disclosure required in paragraph (5), but who has filed a financial affidavit or financial information pursuant to subdivision (c) of Section 987, shall be deemed to have waived the confidentiality of that affidavit or financial information as to a victim in whose favor the order of restitution is entered pursuant to subdivision (f). The affidavit or information shall serve in lieu of the financial disclosure required in paragraph (5), and paragraphs (7) to (10), inclusive, shall not apply.
(7)Except as provided in paragraph (6), the defendant shall file the disclosure with the clerk of the court no later than the date set for the defendants sentencing, unless otherwise directed by the court. The disclosure may be inspected or copied as provided by subdivision (b), (c), or (d) of Section 1203.05.
(8)In its discretion, the court may relieve the defendant of the duty under paragraph (7) of filing with the clerk by requiring that the defendants disclosure be submitted as an attachment to, and be available to, those authorized to receive the following:
(A)A report submitted pursuant to subparagraph (D) of paragraph (2) of subdivision (b) of Section 1203 or subdivision (g) of Section 1203.
(B)A stipulation submitted pursuant to paragraph (4) of subdivision (b) of Section 1203.
(C)A report by the probation officer, or information submitted by the defendant applying for a conditional sentence pursuant to subdivision (d) of Section 1203.
(9)The court may consider a defendants unreasonable failure to make a complete disclosure pursuant to paragraph (5) as any of the following:
(A)A circumstance in aggravation of the crime in imposing a term under subdivision (b) of Section 1170.
(B)A factor indicating that the interests of justice would not be served by admitting the defendant to probation under Section 1203.
(C)A factor indicating that the interests of justice would not be served by conditionally sentencing the defendant under Section 1203.
(D)A factor indicating that the interests of justice would not be served by imposing less than the maximum fine and sentence fixed by law for the case.
(10)A defendants failure or refusal to make the required disclosure pursuant to paragraph (5) shall not delay entry of an order of restitution or pronouncement of sentence. In appropriate cases, the court may do any of the following:
(A)Require the defendant to be examined by the district attorney pursuant to subdivision (h).
(B)If sentencing the defendant under Section 1170, provide that the victim shall receive a copy of the portion of the probation report filed pursuant to Section 1203.10 concerning the defendants employment, occupation, finances, and liabilities.
(C)If sentencing the defendant under Section 1203, set a date and place for submission of the disclosure required by paragraph (5) as a condition of probation or suspended sentence.
(11)If a defendant has any remaining unpaid balance on a restitution order or fine 120 days prior to his or her scheduled release from probation or 120 days prior to his or her completion of a conditional sentence, the defendant shall prepare and file a new and updated financial disclosure identifying all assets, income, and liabilities in which the defendant holds or controls or has held or controlled a present or future interest during the defendants period of probation or conditional sentence. The financial disclosure shall be made available to the victim and the board pursuant to Section 1214. The disclosure shall be signed and prepared by the defendant on the same form as described in paragraph (5). A defendant who willfully states as true a material matter that he or she knows to be false on the disclosure required by this subdivision is guilty of a misdemeanor, unless this conduct is punishable as perjury or another provision of law provides for a greater penalty. The financial disclosure required by this paragraph shall be filed with the clerk of the court no later than 90 days prior to the defendants scheduled release from probation or completion of the defendants conditional sentence.
(12)In cases where an employer is convicted of a crime against an employee, a payment to the employee or the employees dependent that is made by the employers workers compensation insurance carrier shall not be used to offset the amount of the restitution order unless the court finds that the defendant substantially met the obligation to pay premiums for that insurance coverage.
(g)A defendants inability to pay shall not be a consideration in determining the amount of a restitution order.
(h)The district attorney may request an order of examination pursuant to the procedures specified in Article 2 (commencing with Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure, in order to determine the defendants financial assets for purposes of collecting on the restitution order.
(i)A restitution order imposed pursuant to subdivision (f) shall be enforceable as if the order were a civil judgment.
(j)The making of a restitution order pursuant to subdivision (f) shall not affect the right of a victim to recovery from the Restitution Fund as otherwise provided by law, except to the extent that restitution is actually collected pursuant to the order. Restitution collected pursuant to this subdivision shall be credited to any other judgments for the same losses obtained against the defendant arising out of the crime for which the defendant was convicted.
(k)For purposes of this section, victim shall include all of the following:
(1)The immediate surviving family of the actual victim.
(2)A corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime.
(3)A person who has sustained economic loss as the result of a crime and who satisfies any of the following conditions:
(A)At the time of the crime was the parent, grandparent, sibling, spouse, child, or grandchild of the victim.
(B)At the time of the crime was living in the household of the victim.
(C)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 subparagraph (A).
(D)Is another family member of the victim, including, but not limited to, the victims fiance or fiancee, and who witnessed the crime.
(E)Is the primary caretaker of a minor victim.
(4)A person who is eligible to receive assistance from the Restitution Fund pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code.
(5)A governmental entity that is responsible for repairing, replacing, or restoring public or privately owned property that has been defaced with graffiti or other inscribed material, as defined in subdivision (e) of Section 594, and that has sustained an economic loss as the result of a violation of Section 594, 594.3, 594.4, 640.5, 640.6, or 640.7.
(l)At its discretion, the board of supervisors of a county may impose a fee to cover the actual administrative cost of collecting the restitution fine, not to exceed 10 percent of the amount ordered to be paid, to be added to the restitution fine and included in the order of the court, the proceeds of which shall be deposited in the general fund of the county.
(m)In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation. Any portion of a restitution order that remains unsatisfied after a defendant is no longer on probation shall continue to be enforceable by a victim pursuant to Section 1214 until the obligation is satisfied.
(n)If the court finds and states on the record compelling and extraordinary reasons why a restitution fine should not be required, the court shall order, as a condition of probation, that the defendant perform specified community service, unless it finds and states on the record compelling and extraordinary reasons not to require community service in addition to the finding that a restitution fine should not be required. Upon revocation of probation, the court shall impose the restitution fine pursuant to this section.
(o)The provisions of Section 13963 of the Government Code shall apply to restitution imposed pursuant to this section.
(p)The court clerk shall notify the California Victim Compensation and Government Claims Board within 90 days of an order of restitution being imposed if the defendant is ordered to pay restitution to the board due to the victim receiving compensation from the Restitution Fund. Notification shall be accomplished by mailing a copy of the court order to the board, which may be done periodically by bulk mail or email.
(q)Upon conviction for a violation of Section 236.1, the court shall, in addition to any other penalty or restitution, order the defendant to pay restitution to the victim in a case in which a victim has suffered economic loss as a result of the defendants conduct. The court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or another showing to the court. In determining restitution pursuant to this section, the court shall base its order upon the greater of the following: the gross value of the victims labor or services based upon the comparable value of similar services in the labor market in which the offense occurred, or the value of the victims labor as guaranteed under California law, or the actual income derived by the defendant from the victims labor or services or any other appropriate means to provide reparations to the victim.
(r)(1)In addition to any other penalty or fine, the court shall order a person who has been convicted of a violation of Section 350, 653h, 653s, 653u, 653w, or 653aa that involves a recording or audiovisual work to make restitution to an owner or lawful producer, or trade association acting on behalf of the owner or lawful producer, of a phonograph record, disc, wire, tape, film, or other device or article from which sounds or visual images are derived that suffered economic loss resulting from the violation. The order of restitution shall be based on the aggregate wholesale value of lawfully manufactured and authorized devices or articles from which sounds or visual images are devised corresponding to the number of nonconforming devices or articles involved in the offense, unless a higher value can be proved in the case of (A) an unreleased audio work, or (B) an audiovisual work that, at the time of unauthorized distribution, has not been made available in copies for sale to the general public in the United States on a digital versatile disc. For purposes of this subdivision, possession of nonconforming devices or articles intended for sale constitutes actual economic loss to an owner or lawful producer in the form of displaced legitimate wholesale purchases. The order of restitution shall also include reasonable costs incurred as a result of an investigation of the violation undertaken by the owner, lawful producer, or trade association acting on behalf of the owner or lawful producer. Aggregate wholesale value means the average wholesale value of lawfully manufactured and authorized sound or audiovisual recordings. Proof of the specific wholesale value of each nonconforming device or article is not required.
(2)As used in this subdivision, audiovisual work and recording shall have the same meaning as in Section 653w.
REVISIONS: HeadingLine 2.|
Date
|
Status
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|---|---|
| Jul 21, 2017 | Chaptered by Secretary of State. Chapter 101, Statutes of 2017. |
| Jul 21, 2017 | Approved by the Governor. |
| Jul 12, 2017 | Enrolled and presented to the Governor at 12 p.m. |
| Jul 6, 2017 | In Senate. Ordered to engrossing and enrolling. |
| Jul 6, 2017 | Read third time. Passed. Ordered to the Senate. |
| Jun 29, 2017 | Read second time. Ordered to consent calendar. |
| Jun 28, 2017 | Coauthors revised. |
| Jun 13, 2017 | Coauthors revised. |
| May 26, 2017 | Referred to Com. on PUB. S. |
| May 4, 2017 | In Assembly. Read first time. Held at Desk. |
| May 4, 2017 | Read third time. Passed. (Ayes 39. Noes 0. Page 955.) Ordered to the Assembly. |
| May 2, 2017 | Read second time. Ordered to third reading. |
| May 1, 2017 | From committee: Do pass. (Ayes 7. Noes 0. Page 913.) (May 1). |
| Apr 21, 2017 | Set for hearing May 1. |
| Apr 19, 2017 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 7. Noes 0. Page 749.) (April 18). Re-referred to Com. on APPR. |
| Mar 23, 2017 | Set for hearing April 18. |
| Mar 9, 2017 | Referred to Com. on PUB. S. |
| Feb 21, 2017 | From printer. May be acted upon on or after March 23. |
| Feb 17, 2017 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
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Date
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Description
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Location
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Votes
|
|
|---|---|---|---|---|
| Jul 6, 2017 | SB 756 Stern Consent Calendar Second Day Regular Session | Assembly Floor |
Passed |
|
| Jun 28, 2017 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jun 13, 2017 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Public Safety |
Passed |
|
| May 4, 2017 | Senate 3rd Reading SB756 Stern | Senate Floor |
Passed |
|
| May 1, 2017 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 18, 2017 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| 1. Need For This Bill | ** Against | Apr 17, 2017 |
| 2. Victim Restitution Generally | ** Against | Apr 17, 2017 |
| 3. Relevant Case Law And Legislative History | ** Against | Apr 17, 2017 |
| California District Attorneys Association | ** Support | Jun 12, 2017 |
| California Public Defenders Association | ** Against | Jun 12, 2017 |
| California State Sheriff's | * Support | Jun 13, 2017 |
| Crime Victims United | * Support | Jun 13, 2017 |
| Los Angeles County District Attorney'S Office | ** Support | Jun 12, 2017 |
| One private individual | ** Support | Jun 12, 2017 |
| PURPOSE | ** Against | Apr 17, 2017 |
| Riverside Sheriffs' Association | ** Support | Jun 12, 2017 |
| San Diego County District Attorney | ** Support | Jun 12, 2017 |
Date of Hearing: June 28, 2017
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
SBPCA Bill Id:SB 756
Author:(Stern) – As Introduced Ver:February 17, 2017
Policy Committee: | Public Safety | Vote: | 7 - 0 |
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill adds the crimes of continuous sexual abuse of a child and sexual acts with a child 10 years of age or younger to the statute authorizing non-economic restitution for lewd and lascivious acts against a child under the age of 14.
FISCAL EFFECT:
No fiscal impact on the courts.
COMMENTS:
- Background. Under current law, criminal defendants must make full restitution to the victims of their crimes, as determined by the court. With some exceptions, restitution is limited to economic losses incurred as the result of the defendant’s criminal conduct. The court is authorized to require restitution for noneconomic losses including, but not limited to psychological harm, for felony violations of lewd and lascivious acts against a child under 14 years of age.
- Purpose. Existing law does not specifically authorize restitution for the victim of a crime of continuous sexual abuse. According to the author, “SB 756 will help address the mental health needs of children who are victims of serious sex crimes... SB 756 closes the loophole in the law and requires restitution for the pain and suffering as a result of serious sex crimes committed against young children, such as sodomy and oral copulation, and continuous sexual abuse of a person under 14 years of age.”
- Support. According to the Los Angeles County District Attorney’s Office, the sponsor, “It makes little sense for a child a child under the age of 14 but older than 10 years of age to be awarded non-economic damages when they are the victim of child sexual assault, but not to award non-economic damages to a child aged 10 or younger who is the victim of the same conduct. Nor does it make sense to award non-economic damages to a child who is the victim of two sexual assaults but not if they are victimized three or more times."
- Opposition. The California Public Defenders Association (Association) believes current case law already provides the authority to require restitution for psychological harm for continuous child sexual abuse. The Association also states, “Restitution hearings in criminal cases are inefficient and a poor substitute for the due process protections afforded civil litigants. Usually, overworked public defenders and district attorneys are unable to adequately litigate restitution hearings. The victim’s account of their loss is usually accepted without challenge.”
- Prior Legislation. AB 2295 (Baker), Chapter 37, Statutes of 2016, conformed several restitution provisions to the constitutional requirement that a victim is entitled to full restitution.
Proposition 9, of the November 2008 general election, Marsy's Law, significantly expands the rights of crime victims in California by giving them specified constitutional rights, including the expanded right to restitution.
Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081
Date of Hearing: June 13, 2017
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SBPCA Bill Id:SB 756
Author:(Stern) – As Introduced Ver:February 17, 2017
SUMMARY: Authorizes non-economic restitution in cases where a person is convicted of continuous sexual child abuse or sexual acts with a child 10 years of age or younger. Specifically, this bill: Adds the crimes of continuous sexual abuse of a child and sexual acts with a child 10 years of age or younger to the statute authorizing non-economic restitution for lewd and lascivious acts against a child under the age of 14.
EXISTING LAW:
- States 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 restitution from the persons convicted of the crimes for losses they suffer. Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss. (Cal. Const., Art. I, § 28(b).)
- Requires criminal defendants to make full restitution to the victims of their crimes as determined by the court. (Pen. Code § 1202.4, subd. (f).)
- Limits restitution to economic losses incurred as the result of defendant’s criminal conduct, except as provided. (Pen. Code § 1202.4, subd. (f).)
- States that economic losses include, but are not limited to, the following: full or partial payment for the value of stolen or damaged property; medical expenses; mental health counseling expenses; wages or profits lost due to injury incurred by the victim, and if the victim is a minor, wages or profits lost by the minor's parent, parents, guardian, or guardians, while caring for the injured minor; wages or profits lost by the victim, and if the victim is a minor, wages or profits lost by the minor's parent, parents, guardian, or guardians, due to time spent as a witness or in assisting the police or prosecution. (Pen. Code, § 1202.4, subd. (f).)
- Permits courts to order restitution for noneconomic losses, including, but not limited to, psychological harm, for felony violations of lewd and lascivious acts against a child under 14 years of age. (Pen. Code § 1202.4, subd. (f)(3)(F).)
- Prohibits consideration of a defendant’s inability to pay in determining the amount of a restitution order. (Pen. Code § 1202.4, subd. (g).)
- Authorizes the victim to enforce the restitution order as a civil judgment. (Pen. Code, § 1202.4, subd. (i).)
- Provides that any person who willfully commits a lewd or lascivious act upon a child under age 14 for purposes of sexual gratification shall be punished by three, six, or eight years in state prison. (Pen. Code, § 288, subd. (a).)
- Provides that a person who resides in the same home as a minor or has recurring access to the child, who over a period of time which is not less than three months, engages in three or more acts of substantial sexual conduct with a child under the age of 14 is guilty of continuous sexual abuse of a child and shall be punished by 6, 12, or 16 years in prison. (Pen. Code, § 288.5, subd. (a).)
- Makes it a felony punishable by 25 years to life in state prison for a person over 18 years of age to engage in sexual intercourse or sodomy with a child who is 10 years of age or younger. (Pen. Code, § 288.7, subd. (a).)
- Makes it a felony punishable by 15 years to life in state prison for a person over 18 years of age to engage in oral copulation or sexual penetration with a child who is 10 years of age or younger. (Pen. Code, § 288.7, subd. (a).)
FISCAL EFFECT: Unknown
COMMENTS:
- Author's Statement: According to the author, “SB 756 will help address the mental health needs of children who are victims of serious sex crimes. While California law currently requires criminal offenders to pay non-economic restitution for specified sex crimes, it has not been updated to cover serious sex crimes committed against young children, such as sodomy and oral copulation, and continuous sexual abuse of a person under 14 years of age. SB 756 closes the loophole in the law and requires restitution for the pain and suffering incurred by these victims. The trauma that young children experience from egregious sex crimes takes an enormous psychological toll, leaving them anxious, depressed, withdrawn and even suicidal. To cope, many need the help of a mental health counselor to help understand that they can recover from the abuse, trust adults and lead a normal life. According to a 2003 National Institute of Justice report, 3 out of 4 adolescents who have been sexually assaulted were victimized by someone they knew well. Offenders who have caused this psychological damage need to be held accountable and help pay for the victim’s psychological recovery.”
- Victim Restitution: Under the California Constitution (Art. 1, § 28), as implemented by Penal Code section 1202.4, the judge in a criminal case must order the defendant to pay full restitution to the victim for all his or her losses.
"[A]n award of restitution is committed to the sound discretion of the trial court." (People v. Giordano (2007) 42 Cal.4th 644, 665.) The trial court is given almost unlimited discretion as to the kind of information it can consider and the sources where it comes from. (People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) Likewise, the trial court is entitled to use any rational method of fixing the amount of restitution. (People v. Goulart (1990) 224 Cal.App.3d 71, 83.)
While statutory provisions for victim restitution have been broadly and liberally construed, the amount of restitution must be limited to losses actually incurred as a result of the defendant’s criminal conduct. (People v. Lyon (1996) 49 Cal.App.4th 1521, 1526.) Although full restitution in the amount of the losses resulting from appellant's criminal conduct is required (Pen. Code, § 1202.4, subd. (f)(3)), the victim is not entitled to overcompensation. "A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall." (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172; In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017-1018; People v. Fortune (2005) 129 Cal.App.4th 790, 795; People v. Thygesen (1999) 69 Cal.App.4th 988, 995.) "A direct restitution award in excess of the victim's loss is unauthorized." (People v. Nguyen (1994) 23 Cal.App.4th 32, 45; People v. Williams (1989) 207 Cal.App.3d 1520, 1524.)
With one exception, restitution orders are limited to economic damages. The exception is for noneconomic losses, including but not limited to psychological harm, for felony violations of Penal Code section 288, lewd or lascivious acts performed on minors. (People v. Fulton (2003) 109 Cal.App.4th 876, 884, fn. 5.) Otherwise, noneconomic losses are recoverable through a civil judgment. (Vigilant Ins. Co. v. Chiu (2009) 175 Cal.App.4th 438, 445.) - Recent Case Law: Under current law, a defendant may be ordered to pay restitution for non-economic losses for psychological harm caused, for violations of lewd acts upon a child under the age of 14, Penal Code section 288. (See Pen. Code, § 1202.4, subd. (f)(3)(F).)
Since the restitution statute specifically lists only Penal Code section 288 in reference to noneconomic losses, there is a split of authority as to whether the victim of a crime of continuous sexual abuse of a child, section 288.5, is also entitled to restitution for non-economic losses.
In People v. McCarthy (2016) 244 Cal.App.4th 1096, 1099, the Court of Appeal held that the current version of the statute “permits trial courts to order restitution for a victim’s noneconomic losses where a defendant is convicted of continuous sexual abuse of a child under section 288.5 and the conduct underlying that conviction also constitutes a violation of section 288.” The appellate court found that the plain language of the statute is ambiguous because the statute specifies “violations of section 288” rather than “convictions of section 288,” which could be interpreted to mean that the statute authorizes an award for noneconomic restitution for convictions for conduct violating section 288, even if the conviction is not for section 288 itself. (Id. at 1105-1106.) The court supported its determination by pointing to the Legislature’s use of the terms “conviction” in some provisions of section 1202.4, and its use of the term “violations” in this particular paragraph authorizing noneconomic restitution. Because the language was not clear, the court looked at legislative history and found that when the provision for noneconomic restitution was first added to section 1202.4, it expressly applied to a “conviction” for a felony violation of section 288. The provision was later amended to drop the word conviction which, according to the court, presumably shows the Legislature’s intent to remove the requirement that defendants actually be convicted of a charge under section 288 in order for noneconomic restitution to be awarded. (Id. at 1107.)
The McCarthy court next considered whether a construction permitting noneconomic restitution for convictions under section 288 but not for convictions under section 288.5 would lead to an absurd result. The court found that it would lead to an absurd result and refused to adopt a construction of the statutory language that would grant noneconomic restitution to victims of lewd and lascivious acts but not to victims of what are much more serious violations of the Penal Code. (People v. McCarthy, supra, 244 Cal.App.4th at pp. 1108-1109.)
People v. Lehman (2016) 247 Cal.App.4th 795 (First Appellate District, Division one), and People v. Martinez (2017) 8 Cal.App.5th 298 (Fourth Appellate District, Division one) reached the same conclusion.
In contrast, in People v. Valenti (2016) 243 Cal.App.4th 1140, the Court of Appeal for the Second Appellate District, Division three, held that noneconomic restitution to each victim of defendant's continuous sexual abuse (Pen. Code, § 288.5) and lewd acts (Pen. Code, § 288) was error. The People conceded, and the court agreed, that section 1202.4, subdivision (f)(3)(F) does not authorize noneconomic damage awards to section 288.5 victims based on the plain language of the statute. (Id. at p. 1180.) Although section 1202.4, subdivision (f)(3)(F) authorizes a restitution award for noneconomic damages for felony violations of section 288, it does not include section 288.5 and the two statutes are not interchangeable. (Id. at p. 1181.)
This bill amends the restitution provision pertaining to crimes eligible for noneconomic losses to specifically include violations of Penal Code section 288.5 and 288.7. - Argument in Support: According to the Los Angeles County District Attorney’s Office, the sponsor of this bill, “Penal Code section 1202.4(f)(3)(F) permits a court to award noneconomic losses, including, but not limited to, psychological harm, for felony violations of Penal Code section 288. Penal Code section 288 makes it a crime to willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1 (sexual intercourse, sodomy, oral copulation or sexual penetration), upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.
“However, Penal Code section 1202.4(f)(3)(F) fails to include Penal Code sections 288.5 and 288.7 which are just as serious (if not more serious) charges than Penal Code section 288. Penal Code section 288.5 makes it a crime to continuously engage in substantial sexual conduct with a child under the age of 14. Penal Code section 288.7 makes it a crime for a person 18 years of age or older to engage in sexual intercourse, sodomy, oral copulation or sexual penetration of a child who is 10 years of age or younger.
“It makes little sense for a child a child under the age of 14 but older than 10 years of age to be awarded non-economic damages when they are the victim of child sexual assault, but not to award non-economic damages to a child aged 10 or younger who is the victim of the same conduct. Nor does it make sense to award non-economic damages to a child who is the victim of two sexual assaults but not if they are victimized three or more times….
“SB 756 resolves these absurdities by amending Penal Code section Penal Code section 1202.4(f)(3)(F) to include Penal Code sections 288.5 and 288.7 as enumerated offenses that would make victims of sexual abuse 10-years-old and younger and victims of continuous sexual abuse eligible for noneconomic damages.” - Argument in Opposition: According to the California Public Defenders Association, “SB 756 is redundant and, therefore, not needed. SB 756 extends restitution for psychological harm for continuous child sexual abuse. Existing Penal Code section 1202.4 (f)(3)(F) states that restitution can be ordered for ‘[N]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288.’ Case law has already extended psychological harm restitution to continuous child abuse, Penal Code section 288.5. In People v. Smith (2011), the trial court ordered $750,000 in restitution for years of child sexual abuse. People v. Martinez (2017) reached the same result. The only published case that appears to have reached a different conclusion is People v. Valenti (2016). In Valenti, the Attorney General conceded that 288.5 was not included in the ambit of 1202.4(f)(3)(F), even though courts all over the state had reached a different conclusion.
“Restitution hearings in criminal cases are inefficient and a poor substitute for the due process protections afforded civil litigants. Usually, overworked public defenders and district attorneys are unable to adequately litigate restitution hearings. The victim’s account of their loss is usually accepted without challenge.” - Prior Legislation:
- AB 2295 (Baker), Chapter 37, Statutes of 2016, conformed several restitution provisions to the constitutional requirement that a victim is entitled to full restitution.
- Proposition 9, of the November 2008 general election, Marsy's Law, significantly expands the rights of crime victims in California by giving them specified constitutional rights, including expanded right to restitution.
- AB 2295 (Baker), Chapter 37, Statutes of 2016, conformed several restitution provisions to the constitutional requirement that a victim is entitled to full restitution.
REGISTERED SUPPORT / OPPOSITION:
Support
Los Angeles County District Attorney’s Office (Sponsor)
California District Attorneys Association
California State Sheriffs’ Association
Crime Victims United of California
Riverside Sheriffs’ Association
San Diego County District Attorney
One private individual
Opposition
California Public Defenders Association
Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
THIRD READING
Bill No: SB 756
:
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/18/17
AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/1/17
AYES: Lara, Bates, Beall, Bradford, Hill, Nielsen, Wiener
SOURCE: Los Angeles County District Attorney’s Office
DIGEST: This bill authorizes noneconomic restitution in cases where a person is convicted of continuous sexual child abuse or sexual acts with a child 10 years of age or younger.
Existing law:
- Requires criminal defendants to make full restitution to the victims of their crimes as determined by the court. (Pen. Code § 1202.4, subd. (f).)
- Limits restitution to economic losses incurred as the result of defendant’s criminal conduct, except as provided. (Pen. Code § 1202.4, subd. (f).)
- Permits courts to order restitution for noneconomic losses, including, but not limited to, psychological harm, for felony violations of lewd and lascivious acts against a child under 14 years of age. (Pen. Code § 1202.4, subd. (f)(3)(F).)
This bill adds the crimes of continuous sexual abuse of a child and sexual acts with a child 10 years of age or younger to the statute authorizing noneconomic restitution for lewd and lascivious acts against a child under the age of 14.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee, minor and absorbable costs (Restitution Fund) to the Victim Compensation Board to facilitate restitution payments to victims and to recover costs for reimbursements made to victims.
Los Angeles County District Attorney’s Office (source)
California District Attorneys Association
California State Sheriffs’ Association
Crime Victims United of California
San Diego County District Attorney’s Office
California Public Defenders Association
ARGUMENTS IN SUPPORT: According to the Los Angeles County District Attorney’s Office, “Penal Code section 1202.4(f)(3)(F) permits a court to award noneconomic losses, including, but not limited to, psychological harm, for felony violations of Penal Code section 288. Penal Code section 288 makes it a crime to willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1 (sexual intercourse, sodomy, oral copulation or sexual penetration), upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.
“However, Penal Code section 1202.4(f)(3)(F) fails to include Penal Code sections 288.5 and 288.7 which are just as serious (if not more serious) charges than Penal Code section 288. Penal Code section 288.5 makes it a crime to continuously engage in substantial sexual conduct with a child under the age of 14. Penal Code section 288.7 makes it a crime for a person 18 years of age or older to engage in sexual intercourse, sodomy, oral copulation or sexual penetration of a child who is 10 years of age or younger.”
ARGUMENTS IN OPPOSITION: According to the California Public Defenders Association, “SB 756 is redundant and, therefore, not needed. SB 756 extends restitution for psychological harm for continuous sexual abuse. Existing Penal Code section 1202.4(f)(3)(F) states that restitution can be ordered for [N]oneconomic losses, including but not limited to, psychological harm, for felony violations of section 288.” Case law has already extended psychological harm restitution to continuous child abuse, Penal Code section 288.5. In People v. Smith (2011), the trial court ordered $750,000 in restitution for years of child sexual abuse. People v. Martinez (2017) reached the same result. The only published case that appears to have reached a different conclusion is People v. Valenti (2016). In Valenti, the Attorney General conceded that 288.5 was not included in the ambit of 1202.4(f)(3)(F), even though courts all over the state had reached a different conclusion.”
Prepared by: Stella Choe / PUB. S. /
5/3/17 14:47:09
**** END ****
SENATE COMMITTEE ON
Senator Ricardo Lara, Chair
2017 - 2018 Regular Session
SB 756 (Stern) - Restitution: noneconomic losses: child sexual abuse
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
This bill does not meet the criteria for referral to the Suspense File.
Bill Summary:
SB 756 would authorize the court to order restitution for noneconomic losses for victims of continuous sexual child abuse or sexual acts with a child under 11 years of age.
Fiscal Impact:
Minor and absorbable costs (special fund*) to the Victim Compensation Board (CalVCB) to facilitate restitution payments to victims and to recover costs for reimbursements made to victims.
*Restitution Fund
Background:
Existing law requires the court to order a person who is convicted of a crime to pay restitution to the victim or victims for the full amount of economic loss, unless the court finds compelling and extraordinary reasons for not doing so and states them on the record. Additionally, existing law requires the restitution order to be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct. When the crime that was committed was a felony incident of lewd and lascivious acts with a minor, as defined, the court is authorized to include in the restitution order noneconomic losses, including, but not limited to, for psychological harm. Courts are required to order direct restitution to be deposited in the Restitution Fund, which is continuously appropriated, to the extent that the victim has received assistance from CalVCB as a result of the defendant’s conduct.
Proposed Law:
This bill would authorize the court to order restitution for noneconomic losses for victims of continuous sexual child abuse or sexual acts with a child under 11 years of age.
Staff Comments:
Under the California Constitution (Article 1, § 28), as implemented by Penal Code section 1202.4, a sentencing judge in a criminal case must order a defendant to pay full restitution to the victim for all his or her economic losses. As interpreted by the courts, the term "economic losses" in the restitution statute consistently has referred to actual economic losses.
"In a criminal case an award of restitution is committed to the sound discretion of the trial court." (People v. Giordano (2007) 42 Cal.4th 644, 665.) The trial court is given almost unlimited discretion as to the kind of information it can consider and the sources where it comes from. (People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) Likewise, the trial court is entitled to use any rational method of fixing the amount of restitution. (People v. Goulart (1990) 224 Cal.App.3d 71, 83.)
While statutory provisions for victim restitution have been broadly and liberally construed, the amount of restitution must be limited to losses actually incurred as a result of the defendant’s criminal conduct. (People v. Lyon (1996) 49 Cal.App.4th 1521, 1526.) Although full restitution in the amount of the losses resulting from a defendant’s criminal conduct is required, the victim is not entitled to overcompensation. "A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall." (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172; In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017-1018; People v. Fortune (2005) 129 Cal.App.4th 790, 795; People v. Thygesen (1999) 69 Cal.App.4th 988, 995.) "A direct restitution award in excess of the victim's loss is unauthorized." (People v. Nguyen (1994) 23 Cal.App.4th 32, 45; People v. Williams (1989) 207 Cal. App. 3d 1520, 1524.)
Statute specifies that a defendant may be ordered to pay noneconomic restitution for psychological harm for felony violations of Penal Code section 288. The meaning of the term “felony violations of Penal Code section 288” is a question of statutory interpretation that various courts of appeal have applied differently. Some have allowed for the inclusion of noneconomic losses in the restitution order for victims of continuous sexual child abuse (see People v. McCarthy (2016) 244 Cal.App.4th 1096), while others have not (see People v. Valenti (2016) 243 Cal.App.4th 1140). This bill would explicitly allow in statute for the inclusion of noneconomic losses in the restitution order for victims of continuous sexual child abuse or sexual acts with a child under 11 years of age.
In some instances, direct victim restitution by the defendant is deposited into the Restitution Fund and paid to the victim or victims by CalVCB (e.g., when the defendant is incarcerated in state prison and making partial restitution). In other situations, the victim or victims have received assistance from CalVCB, in which case, some or all of the direct restitution is deposited into the Restitution Fund. To the extent restitution money is deposited into the Restitution Fund, it is subject to continuous appropriation.
-- END --
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Nancy Skinner, Chair
2017 - 2018 Regular
Bill No: SB 756 Hearing Date: April 18, 2017
Author: | Stern | ||
Version: | February 17, 2017 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | SC | ||
Subject: Restitution: Noneconomic Losses: Child Sexual Abuse
HISTORY
Source: Los Angeles District Attorney’s Office
Prior Legislation: SB 1768 (Kopp) Chapter 587, Stats. 1998
SB 736 (Davis) Chapter 657, Stats. 1991
Support: California District Attorneys Association; California State Sheriffs’ Association; Crime Victims United; San Diego County District Attorney
Opposition: California Public Defenders Association
PURPOSE
The purpose of this bill is to authorize noneconomic restitution where a person is convicted of continuous sexual child abuse or sexual acts with a child 10 years of age or younger.
Existing law states 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 restitution from the persons convicted of the crimes for losses they suffer. Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. (Cal. Const., art. I, § 28, subd. (b).)
Existing law requires criminal defendants to make full restitution to the victims of their crimes as determined by the court. (Pen. Code § 1202.4, subd. (f).)
Existing law generally limits restitution to economic losses incurred as the result of defendant’s criminal conduct. (Pen. Code § 1202.4, subd. (f).)
Existing law creates an exception to this general limitation and permits courts to order restitution for noneconomic losses, including, but not limited to, psychological harm, for felony violations of lewd and lascivious acts against a child under 14 years of age. (Pen. Code § 1202.4, subd. (f)(3)(F).)
Existing law states that any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes against persons or property, against a child under the age of 14 with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony punishable by imprisonment in the state prison for 3, 6 or 8 years. (Pen. Code § 288.)
Existing law provides that any person who either resides in the same home as a minor child or has recurring access to the child, who over the period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct, as defined, with a child under the age of 14, or three or more acts of lewd and lascivious conduct, as defined in Penal Code section 288, is guilty of the offense of continuous sexual abuse of a child and is punishable by imprisonment in the state prison for a term of 6, 12, or 16 years. (Pen. Code § 288.5.)
Existing law provides that it is a felony punishable by imprisonment in the state prison for a term of 25 years to life for any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger; and it is a felony punishable by imprisonment in the state prison for a term of 15 years to life for any person 18 years of age or older who engages in oral copulation or penetration with a foreign object with a child who is 10 years of age or younger. (Pen. Code § 288.7.)
This bill adds the crimes of continuous sexual abuse of a child and sexual acts with a child 10 years of age or younger to the statute authorizing noneconomic restitution for lewd and lascivious acts against a child under the age of 14.
COMMENTS
1. Need for This Bill
According to the author:
SB 756 will help address the mental health needs of children who are victims of serious sex crimes. While California law currently requires criminal offenders to pay non-economic restitution for specified sex crimes, it has not been updated to cover serious sex crimes committed against young children, such as sodomy and oral copulation, and continuous sexual abuse of a person under 14 years of age. SB 756 closes the loop hole in the law and requires restitution for the pain and suffering incurred by these victims. The trauma that young children experience from egregious sex crimes takes an enormous psychological toll, leaving them anxious, depressed, withdrawn and even suicidal. To cope, many need the help of a mental health counselor to help understand that they can recover from the abuse, trust adults and lead a normal life. According to a 2003 National Institute of Justice report, 3 out of 4 adolescents who have been sexually assaulted were victimized by someone they knew well. Offenders who have caused this psychological damage need to be held accountable and help pay for the victim’s psychological recovery.
2. Victim Restitution Generally
Under the California Constitution (Article 1, § 28), as implemented by Penal Code section 1202.4, a sentencing judge in a criminal case must order a defendant to pay full restitution to the victim for all his or her economic losses. As interpreted by the courts, the term "economic losses" in the restitution statute consistently has referred to actual economic losses.
"In a criminal case an award of restitution is committed to the sound discretion of the trial court." (People v. Giordano (2007) 42 Cal.4th 644, 665.) The trial court is given almost unlimited discretion as to the kind of information it can consider and the sources where it comes from. (People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) Likewise, the trial court is entitled to use any rational method of fixing the amount of restitution. (People v. Goulart (1990) 224 Cal.App.3d 71, 83.)
While statutory provisions for victim restitution have been broadly and liberally construed, the amount of restitution must be limited to losses actually incurred as a result of the defendant’s criminal conduct. (People v. Lyon (1996) 49 Cal.App.4th 1521, 1526.) Although full restitution in the amount of the losses resulting from appellant's criminal conduct is required [Penal Code Section 1202.4(f)(3)], the victim is not entitled to overcompensation. "A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall." (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172; In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017-1018; People v. Fortune (2005) 129 Cal.App.4th 790, 795; People v. Thygesen (1999) 69 Cal.App.4th 988, 995.) "A direct restitution award in excess of the victim's loss is unauthorized." (People v. Nguyen (1994) 23 Cal.App.4th 32, 45; People v. Williams (1989) 207 Cal. App. 3d 1520, 1524.)
Under existing law, there is an exception to this general limitation that permits courts to order restitution for noneconomic losses, including, but not limited to, psychological harm for felony violations of lewd and lascivious acts against a child under 14 years of age. (Pen. Code § 1202.4, subd. (f)(3)(F).) This bill would additionally authorize a victim to receive noneconomic restitution for the crimes of continuous sexual abuse of a child (Pen. Code § 288.5) and sexual acts with a child 10 years of age or younger. (Pen. Code § 288.7.)
3. Relevant Case Law and Legislative History
Existing law specifies that a defendant may be ordered to pay noneconomic restitution for psychological harm for felony violations of Penal Code section 288. (Pen. Code § 1202.4, subd. (f)(3)(F).) The meaning of the term “felony violations of Penal Code section 288” is a question of statutory interpretation.
When determining statutory construction, it is the court’s duty "to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute." (People v. Trevino (2001) 26 Cal.4th 237, 240.) The court starts its analysis by “examining the statutory language because it generally is the most reliable indicator of legislative intent.” (Id. at 241.) The court must give the language its usual and ordinary meaning, and "[i]f there is no ambiguity, then [the court must] presume the lawmakers meant what they said, and the plain meaning of the language governs." (Day v. City of Fontana (2001) 25 Cal. 4th 268, 272.) If, however, the statutory language is ambiguous, the court “may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history." (Ibid.) The court must ultimately choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute. (Ibid.) Any interpretation that would lead to absurd consequences is to be avoided. (Ibid.)
In People v. Valenti (2016) 243 Cal.App.4th 1140, the Second District Court of Appeal looked at the plain language of section 1202.4(f)(3)(F) and found that the provision clearly limits noneconomic restitution awards to felony convictions of section 288. It does not include section 288.5, and sections 288 and 288.5 are not interchangeable. The court went on to further state that it is not the court’s “job to insert language in a statute which is not there. Had the Legislature wanted to include section 288.5 in the restitution statute, it was capable of doing so. It did not.” (Id. at 1181-1182.) Because the court found the language of the statute to be unambiguous, the court did not make any further determinations on legislative history or other intrinsic sources.
Subsequently, the First District Court of Appeal in People v. McCarthy (2016) 244 Cal.App.4th 1096 disagreed with Valenti and found that the plain language of section 1202.4(f)(3)(F) is ambiguous because the statute specifies “violations of section 288” rather than “convictions of section 288,” which could be interpreted to mean that the statute authorizes an award for noneconomic restitution for convictions for conduct violating section 288, even if the conviction is not for section 288 itself. (Id. at 1105-1106.) The court supported its determination by pointing to the Legislature’s use of the terms “conviction” in some provisions of section 1202.4, and its use of the term “violations” in this particular paragraph authorizing noneconomic restitution. Because the language was not clear, the court looked at legislative history and found that when the provision for noneconomic restitution was first added to section 1202.4, it expressly applied to a “conviction” for a felony violation of section 288. The provision was later amended to drop the word conviction which, according to the court, presumably shows the Legislature’s intent to remove the requirement that defendants actually be convicted of a charge under section 288 in order for noneconomic restitution to be awarded. (Id. at 1107.)
The McCarthy court next considered whether a construction permitting noneconomic restitution for convictions under section 288 but not for convictions under section 288.5 would lead to an absurd result. The court found that it would lead to an absurd result and refused to adopt a construction of the statutory language that would grant noneconomic restitution to victims of lewd and lascivious acts but not to victims of what are much more serious violations of the Penal Code. (Id. at 1108-1109.)
After Valenti and McCarthy, the same issue was considered by the Fourth District Court of Appeal. (People v. Martinez (2017) 8 Cal.App.5th 298.) The defendant was convicted of continuous sexual abuse of a child under the age of 14 pursuant to Penal Code section 288.5. The trial court ordered defendant to pay the victim $150,000 in noneconomic restitution and the defendant appealed. The court, after considering the holding in Valenti and McCarthy, agreed with McCarthy and held that Penal Code section 1202.4 (f)(3)(F) does not limit the authority to award noneconomic restitution to cases where a person is convicted of section 288. Specifically, the court concluded that the provision authorizes noneconomic restitution in child molestation cases if the conduct underlying the conviction also constitutes a violation of Penal Code section 288. (Martinez, supra, 8 Cal.App.5th at 306.)
Because there is a split of authority in the appellate courts, there is some support for the conclusion that the existing provision authorizing noneconomic restitution is ambiguous and should be clarified in order to avoid further litigation.
This bill amends Penal Code section 1202.4(f)(3)(F) to specifically include felony violations of Penal code section 288.5 and 288.7.
4. Argument in Support
The Los Angeles District Attorney’s Office is the sponsor of this bill and writes in support:
Penal Code section 1202.4(f)(3)(F) permits a court to award noneconomic losses, including, but not limited to, psychological harm, for felony violations of Penal Code section 288. Penal Code section 288 makes it a crime to willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1 (sexual intercourse, sodomy, oral copulation or sexual penetration), upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.
However, Penal Code section 1202.4(f)(3)(F) fails to include Penal Code sections 288.5 and 288.7 which are just as serious (if not more serious) charges than Penal Code section 288. Penal Code section 288.5 makes it a crime to continuously engage in substantial sexual conduct with a child under the age of 14. Penal Code section 288.7 makes it a crime for a person 18 years of age or older to engage in sexual intercourse, sodomy, oral copulation or sexual penetration of a child who is 10 years of age or younger.
It makes little sense for a child under the age of 14 but older than 10 years of age to be awarded non-economic damages when they are the victim of child sexual assault, but not to award non-economic damages to a child aged 10 or younger who is the victim of the same conduct. Nor does it make sense to award non-economic damages to a child who is the victim of two sexual assaults but not if they are victimized three or more times.
5. Argument in Opposition
According to the California Public Defenders Association:
SB 756 is redundant and, therefore, not needed. SB 756 extends restitution for psychological harm for continuous sexual abuse. Existing Penal Code section 1202.4(f)(3)(F) states that restitution can be ordered for [N]oneconomic losses, including but not limited to, psychological harm, for felony violations of section 288.” Case law has already extended psychological harm restitution to continuous child abuse, Penal Code section 288.5. In People v. Smith (2011), the trial court ordered $750,000 in restitution for years of child sexual abuse. People v. Martinez (2017) reached the same result. The only published case that appears to have reached a different conclusion is People v. Valenti (2016). In Valenti, the Attorney General conceded that 288.5 was not included in the ambit of 1202.4(f)(3)(F), even though courts all over the state had reached a different.
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Discussed in Hearing
2MIN
Assembly Standing Committee on Public Safety
2MIN
Senate Floor
6MIN
Senate Standing Committee on Appropriations
6MIN
Senate Standing Committee on Public Safety
Bill Author
