THIRD READING  

Bill No: AB 433

Author: Ramos (D)

Amended: 4/2/19 in Assembly

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/25/19

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Morrell, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 73-1, 5/9/19 - See last page for vote

SUBJECT: Probation: notice to victim

SOURCE: Crime Victims United

DIGEST:

This bill requires that the prosecutor be given two days written notice of a hearing for early termination of probation, and requires the prosecutor to notify the victim if the victim has asked to be notified about the case.

ANALYSIS:

Existing law:

1. Establishes the right of crime victims to receive restitution directly from the persons convicted of the crimes for losses they suffer. (Cal. Const., art I, § 28, subd. (b).)
2. Provides that 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. (Pen. Code, § 1202.4, subd. (a)(1).)
3. Requires the court, in every case where a person is convicted of a crime, to 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. (Pen. Code, § 1202.4, subd. (b)(1).)
4. Requires 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 in every case in which a victim has suffered economic loss as a result of the defendant’s conduct. Requires the restitution order to include a provision that the amount will be determined at the direction of the court if the amount of loss cannot be ascertained at the time of sentencing. Requires the court to order full restitution. (Pen. Code, § 1202.4, subd. (f).)
5. Prohibits a defendant’s inability to pay from being considered a compelling and extraordinary reason not to impose a restitution fine. Provides that inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine. (Pen. Code, § 1202.4, subd. (c).)
6. Provides that restitution to the victim or victims, if any, is enforceable as if the order were a civil judgment. (Pen. Code, § 1202.4, subd. (a)(3)(B).)
7. Requires a court which grants probation to make the payment of the victim restitution order a condition of probation. Requires any portion of a restitution order that remains unsatisfied after a defendant is no longer on probation to continue to be enforceable by a victim until the obligation is satisfied. (Pen. Code, § 1202.4, subd. (m).)
8. Requires the court, when the economic losses of a victim cannot be ascertained at the time of sentencing, to retain jurisdiction over a person subject to a restitution order for the purpose of imposing or modifying restitution until such time as the losses may be determined. Does not prohibit a victim, the district attorney, or a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order. (Pen. Code, § 1202.46.)
9. Defines probation as “the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.” (Pen. Code, § 1203, subd. (a).)
10. Gives the court discretion in felony cases to grant probation for up to five years, or no longer than the prison term that can be imposed when the prison term exceeds five years. (Pen. Code, § 1203.1, subd. (a).)
11. Gives the court discretion in misdemeanor cases to generally grant probation for up to three years, or no longer than the consecutive sentence imposed if more than three years. (Pen. Code, § 1203a.)
12. Authorizes the court to revoke, modify, extend, or terminate its order of probation. (Pen. Code, §§ 1203.2, 1203.3.)
13. Requires a hearing to be held in open court before the judge before any sentence or term or condition of probation or condition of mandatory supervision is modified. (Pen. Code, § 1203.3, subd. (b)(1).)
14. Authorizes the court to modify the dollar amount of restitution at any time during the term of probation. (Pen. Code, § 1203.3, subd. (b)(5).)
15. Prohibits the court from modifying the restitution obligations due to the defendant’s good conduct. (Pen. Code, § 1203.3, subd. (b)(4).)

This bill:

1. Requires a hearing to be held in open court before the judge before early termination of probation.
2. Requires the prosecuting attorney to be given a two-day written notice and an opportunity to be heard on the decision to terminate probation early.
3. Requires the prosecuting attorney to provide notice to the victim if the victim has requested to be notified about the progress of the case.
4. Requires the prosecuting attorney to request a continuance of the hearing if the victim advises the prosecuting attorney that there is an outstanding restitution.

Background

Jurisdiction to Modify Restitution

In Hilton v. Superior Court (2014) 239 Cal.App.4th 766, the Court of Appeal held that once probation expires, the judge cannot modify a restitution order. In Hilton, the defendant pled to driving under the influence and the court placed him on probation for three years. At a subsequent restitution hearing, the court ordered the defendant to pay $3,000 restitution to the victim, which he did. (Id. at pp. 769-770.) The victim then sued the defendant civilly and won $3.5 million. Probation then expired on the criminal case. One year and seven months after probation expired, the victim went back to court and requested that the court order $886,000 more in restitution in order to pay for the costs of the civil suit as well as additional lost wages. The defendant objected based on lack of jurisdiction. (Id. at p. 770.) The Court of Appeal reversed the order, holding that once probation expires, the court loses jurisdiction to modify a restitution order and that any extension of probation was an act in excess of jurisdiction and void. (Id. at p. 772.) The court noted that termination of probation occurs by operation of law at the end of the probationary period. (Id. at p. 773.) The court also held that the language of Penal Code section 1203.3 reflects legislative intent, consistent with pre-existing law on probation, that the trial court lacks jurisdiction to impose restitution once probation expires. (Id. at pp. 775-776.)

People v. Waters (2015) 241 Cal.App.4th 822, agreed with the holding in Hilton. In this case, the court sought to order restitution two years after the probationary period expired, even though the victim impact statement seeking $20,000 was filed before the entry of the plea. (Id. at p. 825.) The court noted that Penal Code section 1202.4, subdivision (f) requires the trial court to order victim restitution unless the trial court finds compelling and extraordinary reasons for not doing so. Regarding jurisdiction, a trial court’s authority to modify a sentence usually expires 120 days after judgment. (See Pen. Code, § 1170, subd. (d).) (Id. at p. 827.) But there is an exception where victim restitution cannot be ascertained at the time of sentencing and the trial court retains jurisdiction to order restitution. (Pen. Code, § 1202.46.) However, section 1202.46 must be harmonized with the preexisting statutory scheme concerning probation, which limits a trial court’s jurisdiction to modify probation to the term of probation (Pen. Code, § 1203.3, subds. (a), (b)(4).) (Id. at p. 830-831.) Therefore, the court concluded that the trial court lacked jurisdiction to order restitution after the expiration of the defendant's probationary period. (Id. at p. 831.)

Because a court lacks jurisdiction to order or modify restitution after the expiration of a defendant’s probationary period, this bill would give the prosecution two-days’ notice of a hearing for early termination of probation, as well as require the prosecutor to notify a victim in the event that there are outstanding restitution claims which need to be brought to the court’s attention. In the event the victim advises there is outstanding restitution, the prosecutor would then be required to request a continuance which would allow remaining restitution issues to be addressed before the court loses jurisdiction.

Constitutional Right to Victim Restitution

Proposition 8, approved by the voters in 1982, amended the state Constitution to establish the right of crime victims to receive restitution. The relevant text of the initiative provided:

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).)

A trial court is required to order the defendant to pay full restitution to victims of a crime “unless it finds compelling and extraordinary reasons for not doing so and states them on the record.” (Pen. Code, § 1202.4, subd. (b).) If the amount of restitution cannot be ascertained at the time of sentencing, the restitution order is required to include a provision that the amount will be determined at the direction of the court. (Pen. Code, § 1202.4, subd. (f).) The trial court must incorporate the restitution order in the defendant’s conditions of probation. (Pen. Code, § 1202.4, subd. (m).)

It has been held that a sentence is invalid where a trial court fails to issue a restitution award to the victim. (People v. Rowland (1997) 51 Cal.App.4th 1745, 1750-1752.) Generally, a valid sentence may not be modified in a way that increases the sentence. The modification of a sentence to include restitution may constitute an increase in sentence. However, a sentence that is invalid due to the omission of a restitution order may be corrected upon request of a victim, the district attorney, or by a court on its own motion. (Ibid.; see also Pen. Code, § 1202.46.)

Restitution as a Condition of Probation

When the court grants probation, payment of restitution must be made a condition of probation. (Pen. Code, 1202.4, subd. (m).) When ordering restitution as a condition of probation, the court is not restricted to directing payment to only those victims as defined in the restitution statute. Additionally, the court can order restitution as a condition of probation even when the losses are not necessarily caused by the conduct underlying the defendant’s conviction. Rather than having a causal connection, the restitution condition must only be reasonably related to either the defendant’s crime or to the goal of deterring future criminality. (People v. Anderson (2010) 50 Cal.4th 19, 26-27; see also People v. Carbajal (1995) 10 Cal4th. 1114, 1121-1124.)

The court is expressly authorized to modify the dollar amount of restitution at any time during the term of the probation. (Pen. Code, § 1203.3, sub. (b)(5).) If part of a restitution order has not been paid after a defendant is no longer on probation, it remains enforceable by the victim as though it were a civil judgment. (Pen. Code, 1202.4, subd. (m).) Additionally, if the defendant is unable to pay full restitution within the initial term of probation, the court can modify and extend the period of probation to allow the defendant to pay off all restitution within the probation term. (Pen. Code, §1203.3, subd. (b)(4); People v. Cookson (1991) 54 Cal.3d 1091, 1097.) Generally, the probation term may be extended up to, but not beyond, the maximum probation period allowed for the offense. (People v Medeiros (1994) 25 Cal.App.4th 1260, 1267–1268.)

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 8/12/19)

Crime Victims United (source)

California District Attorneys Association

Los Angeles County District Attorney’s Office

Peace Officers’ Research Association of California

OPPOSITION: (Verified 8/12/19)

California Attorneys for Criminal Justice

ASSEMBLY FLOOR: 73-1, 5/9/19

AYES: Aguiar-Curry, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NOES: Kamlager-Dove

NO VOTE RECORDED: Arambula, Chen, Dahle, Gipson, Mullin, Ting

Prepared by: Stephanie Jordan / PUB. S. /

8/14/19 14:41:47

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: AB 433 Hearing Date: June 25, 2019

Subject: Probation: Notice to Victim

HISTORY

Source: Crime Victims United

Prior Legislation: AB 194 (Patterson), failed passage in Senate Public Safety in 2017

AB 2477 (Patterson), failed passage in Assembly Public Safety in 2016

Support: California District Attorneys Association; Peace Officers’ Research Association of California

Opposition: California Attorneys for Criminal Justice

Assembly Floor Vote: 73 - 1

PURPOSE

The purpose of this bill is to require that the prosecutor be given two days written notice of a hearing for early termination of probation, and to require the prosecutor to notify the victim if the victim has asked to be notified about the case.

Existing law establishes the right of crime victims to receive restitution directly from the persons convicted of the crimes for losses they suffer. (Cal. Const., art I, § 28, subd. (b).)

Existing law provides that 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. (Pen. Code, § 1202.4, subd. (a)(1).)

Existing law requires the court, in every case where a person is convicted of a crime, to 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. (Pen. Code, § 1202.4, subd. (b)(1).)

Existing law requires 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 in every case in which a victim has suffered economic loss as a result of the defendant’s conduct. Requires the restitution order to include a provision that the amount will be determined at the direction of the court if the amount of loss cannot be ascertained at the time of sentencing. Requires the court to order full restitution. (Pen. Code, § 1202.4, subd. (f).)

Existing law prohibits a defendant’s inability to pay from being considered a compelling and extraordinary reason not to impose a restitution fine. Provides that inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine. (Pen. Code, § 1202.4, subd. (c).)

Existing law provides that restitution to the victim or victims, if any, is enforceable as if the order were a civil judgment. (Pen. Code, § 1202.4, subd. (a)(3)(B).)

Existing law requires a court which grants probation to make the payment of the victim restitution order a condition of probation. Requires any portion of a restitution order that remains unsatisfied after a defendant is no longer on probation to continue to be enforceable by a victim until the obligation is satisfied (Pen. Code, § 1202.4, subd. (m).)

Existing law requires the court, when the economic losses of a victim cannot be ascertained at the time of sentencing, to retain jurisdiction over a person subject to a restitution order for the purpose of imposing or modifying restitution until such time as the losses may be determined. Does not prohibit a victim, the district attorney, or a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order. (Pen. Code, § 1202.46.)

Existing law defines probation as “the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.” (Pen. Code, § 1203, subd. (a).)

Existing law gives the court discretion in felony cases to grant probation for up to five years, or no longer than the prison term that can be imposed when the prison term exceeds five years. (Pen. Code, § 1203.1, subd. (a).)

Existing law gives the court discretion in misdemeanor cases to generally grant probation for up to three years, or no longer than the consecutive sentence imposed if more than three years. (Pen. Code, § 1203a.)

Existing law authorizes the court to revoke, modify, extend, or terminate its order of probation. (Pen. Code, §§ 1203.2, 1203.3.)

Existing law requires a hearing to be held in open court before the judge before any sentence or term or condition of probation or condition of mandatory supervision is modified. (Pen. Code, § 1203.3, subd. (b)(1).)

Existing law authorizes the court to modify the dollar amount of restitution at any time during the term of probation. (Pen. Code, § 1203.3, subd. (b)(5).)

Existing law prohibits the court from modifying the restitution obligations due to the defendant's good conduct. (Pen. Code, § 1203.3, subd. (b)(4).)

This bill requires a hearing to be held in open court before the judge before early termination of probation.

This bill requires the prosecuting attorney to be given a two-day written notice and an opportunity to be heard on the decision to terminate probation early.

This bill requires the prosecuting attorney to provide notice to the victim if the victim has requested to be notified about the progress of the case.

This bill requires the prosecuting attorney to request a continuance of the hearing if the victim advises the prosecuting attorney that there is an outstanding restitution.

COMMENTS

1. Need for This Bill

According to the author:

Under current law, while victims are required to be provided restitution to cover economic losses associated with their victimization, occasions arise where the victim’s losses may not be able to be determined at the time of sentencing. Current law allows for restitution to be revisited, but that must occur prior to the end of probation when the court loses jurisdiction associated with the defender.

Crime victims do not have any way of knowing that a defendant may be poised to have their probation terminated early, cutting off any opportunity for revisiting restitution to the victim and potentially limiting a victim’s safety in cases of possible re-offense.

AB 433 seeks to provide victims and prosecuting attorney’s notice prior to a hearing to terminate probation early. For victims, such notice would provide benefits of being made aware that probation and the associated terms that may include prohibition on contact may be void without further action to institute an ongoing protective order. Additionally, the notice would provide the opportunity, where the victim can demonstrate justification for additional restitution to be ordered, for the victim to request that the court to consider additional restitution to cover constitutionally mandated restitution at a level that makes a victim whole based on their losses.

1. Jurisdiction to Modify Restitution

In Hilton v. Superior Court (2014) 239 Cal.App.4th 766, the Court of Appeal held that once probation expires, the judge cannot modify a restitution order. In Hilton, the defendant pled to driving under the influence and the court placed him on probation for three years. At a subsequent restitution hearing, the court ordered the defendant to pay $3,000 restitution to the victim, which he did. (Id. at pp. 769-770.) The victim then sued the defendant civilly and won $3.5 million. Probation then expired on the criminal case. One year and seven months after probation expired, the victim went back to court and requested that the court order $886,000 more in restitution in order to pay for the costs of the civil suit as well as additional lost wages. The defendant objected based on lack of jurisdiction. (Id. at p. 770.) The Court of Appeal reversed the order, holding that once probation expires, the court loses jurisdiction to modify a restitution order and that any extension of probation was an act in excess of jurisdiction and void. (Id. at p. 772.) The court noted that termination of probation occurs by operation of law at the end of the probationary period. (Id. at p. 773.) The court also held that the language of Penal Code section 1203.3 reflects legislative intent, consistent with pre-existing law on probation, that the trial court lacks jurisdiction to impose restitution once probation expires. (Id. at pp. 775-776.)

People v. Waters (2015) 241 Cal.App.4th 822, agreed with the holding in Hilton. In this case, the court sought to order restitution two years after the probationary period expired, even though the victim impact statement seeking $20,000 was filed before the entry of the plea. (Id. at p. 825.) The court noted that Penal Code section 1202.4, subdivision (f) requires the trial court to order victim restitution unless the trial court finds compelling and extraordinary reasons for not doing so. Regarding jurisdiction, a trial court’s authority to modify a sentence usually expires 120 days after judgment. (See Pen. Code, § 1170, subd. (d).) (Id. at p. 827.) But there is an exception where victim restitution cannot be ascertained at the time of sentencing and the trial court retains jurisdiction to order restitution. (Pen. Code, § 1202.46.) However, section 1202.46 must be harmonized with the preexisting statutory scheme concerning probation, which limits a trial court’s jurisdiction to modify probation to the term of probation (Pen. Code, § 1203.3, subds. (a), (b)(4).) (Id. at p. 830-831.) Therefore, the court concluded that the trial court lacked jurisdiction to order restitution after the expiration of the defendant's probationary period. (Id. at p. 831.)

Because a court lacks jurisdiction to order or modify restitution after the expiration of a defendant’s probationary period, this bill would give the prosecution two-days’ notice of a hearing for early termination of probation, as well as require the prosecutor to notify a victim in the event that there are outstanding restitution claims which need to be brought to the court’s attention. In the event the victim advises there is outstanding restitution, the prosecutor would then be required to request a continuance which would allow remaining restitution issues to be addressed before the court loses jurisdiction.

1. Constitutional Right to Victim Restitution

Proposition 8, approved by the voters in 1982, amended the state Constitution to establish the right of crime victims to receive restitution. The relevant text of the initiative provided:

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).)

A trial court is required to order the defendant to pay full restitution to victims of a crime “unless it finds compelling and extraordinary reasons for not doing so and states them on the record.” (Pen. Code, § 1202.4, subd. (b).) If the amount of restitution cannot be ascertained at the time of sentencing, the restitution order is required to include a provision that the amount will be determined at the direction of the court. (Pen. Code, § 1202.4, subd. (f).) The trial court must incorporate the restitution order in the defendant’s conditions of probation. (Pen. Code, § 1202.4, subd. (m).)

It has been held that a sentence is invalid where a trial court fails to issue a restitution award to the victim. (People v. Rowland (1997) 51 Cal.App.4th 1745, 1750–1752.) Generally, a valid sentence may not be modified in a way that increases the sentence. The modification of a sentence to include restitution may constitute an increase in sentence. However, a sentence that is invalid due to the omission of a restitution order may be corrected upon request of a victim, the district attorney, or by a court on its own motion. (Ibid.; see also Pen. Code, § 1202.46.)

1. Restitution as a Condition of Probation

When the court grants probation, payment of restitution must be made a condition of probation. (Pen. Code, 1202.4, subd. (m).) When ordering restitution as a condition of probation, the court is not restricted to directing payment to only those victims as defined in the restitution statute. Additionally, the court can order restitution as a condition of probation even when the losses are not necessarily caused by the conduct underlying the defendant’s conviction. Rather than having a causal connection, the restitution condition must only be reasonably related to either the defendant’s crime or to the goal of deterring future criminality. (People v. Anderson (2010) 50 Cal.4th 19, 26-27; see also People v. Carbajal (1995) 10 Cal4th. 1114, 1121–1124.)

The court is expressly authorized to modify the dollar amount of restitution at any time during the term of the probation. (Pen. Code, § 1203.3, sub. (b)(5).) If part of a restitution order has not been paid after a defendant is no longer on probation, it remains enforceable by the victim as though it were a civil judgment. (Pen. Code, 1202.4, subd. (m).) Additionally, if the defendant is unable to pay full restitution within the initial term of probation, the court can modify and extend the period of probation to allow the defendant to pay off all restitution within the probation term. (Pen. Code, §1203.3, subd. (b)(4); People v. Cookson (1991) 54 Cal.3d 1091, 1097.) Generally, the probation term may be extended up to, but not beyond, the maximum probation period allowed for the offense. (People v Medeiros (1994) 25 Cal.App.4th 1260, 1267–1268.)

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 433

Author:(Ramos)

As Amended Ver:April 2, 2019

Majority vote

SUMMARY:

Requires that the prosecutor be given two days written notice of a hearing for early termination of probation, and requires the prosecutor to notify the victim if the victim has asked to be notified about the case.

Major Provisions

1. Mandates a judge to hold a hearing in open court before early termination of probation.
2. Gives the prosecutor two days written notice of a hearing for early termination of probation and an opportunity to be heard on the decision to terminate probation early.
3. Requires the prosecutor notify the victim about the proceedings, if the victim has asked to be notified about the progress of the case.
4. States that if the victim advises there is outstanding restitution, the prosecutor shall request a continuance.

COMMENTS:

According to the Author:

"AB 433 will provide victims of crime information and notice of the termination of probation for those who victimized then. AB 433 would provide the prosecuting attorney be given 2 days' written notice prior to a hearing to terminate probation early.

"This bill will ensure that victims are made whole by ensuring their constitutional right to restitution is met. While victims are required to be provided restitution to cover economic losses associated with the victimization, occasions arise where the victim's losses may not be able to be determined at the time of sentencing. Current law allows for restitution to be revisited, but that must occur prior to the end of probation when the court loses jurisdiction associated with the defender. With this notification requirement, AB 433 closes this loophole and allows victims the opportunity to have access to this reassessment, guaranteeing this constitutional right is met."

Arguments in Support:

According to According to Crime Victims United of California, the sponsor of this bill, "[W]hile victims are required to be provided restitution to cover economic losses associated with their victimization, occasions arise where the victim's losses may not be able to be determined at the time of sentencing. Current law allows for restitution to be revisited, but that must occur prior to the end of probation when the court loses jurisdiction associated with the defender. The challenge is that victims do not have any way of knowing that a defendant may be poised to have their probation terminated early, cutting off any opportunity for revisiting restitution to the victim.

…

"AB 433 seeks to provide victims and prosecuting attorney's notice prior to a hearing to terminate probation early. For victims, such notice would provide benefits of being made aware that probation and the associated terms that may include prohibition on contact may be void without further action to institute an ongoing protective order. Additionally, the notice would provide the opportunity, where the victim can demonstrate justification for additional restitution to be ordered, for the victim to request that the court to consider additional restitution to cover constitutionally mandated restitution at a level that makes a victim whole based on their losses."

Arguments in Opposition:

According to the San Francisco Public Defender's Office, "Existing law, Penal Code section 1203.3, subdivision (b)(1) already provides that if any term or condition of probation is modified, a hearing must be held in open court before the judge; and the prosecuting attorney must be given a two-day notice and an opportunity to be heard (with a five day advance notice required in the case of certain domestic violence cases.)

"Existing law, California Constitution, article I, section 28, subdivision (b)(7), already provides that the victim is entitled to reasonable notice of all public proceedings, upon request, at which the defendant and the prosecutor are entitled to be present.

…

"AB 433's requirements can also be counterproductive. Often, when early termination of probation is contemplated, this is for pressing reasons such as an imminent job transfer, military reasons, or sudden illness of a distant family member. Additionally, the defendant may have exhibited good conduct and reform, where probation is no longer imperative as their debt to society has thus been repaid. The 30-day delay will, therefore, often defeat the interest of justice by imposing an unreasonable barrier to a rightfully earned order. Lastly, if the prosecutor is dilatory in giving the victim notice (we rarely want the defendant to contact the victim), further unnecessary delay ensues."

FISCAL COMMENTS

According to the Assembly Appropriations Committee, minor and absorbable costs (Trial Court Trust Fund/General Fund) to trial courts for increased case processing time pertaining to early termination of probation.

Please see the policy committee analysis for a full discussion of this bill.

VOTES:

ASM PUBLIC SAFETY: 7-1-0

YES: Jones-Sawyer, Lackey, Bauer-Kahan, Diep, Quirk, Santiago, Wicks

NO: Kamlager-Dove

ASM APPROPRIATIONS: 17-0-1

YES: Gonzalez, Bigelow, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, McCarty, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

ABS, ABST OR NV: Bloom

UPDATED:

VERSION: April 2, 2019

CONSULTANT: Sandy Uribe (Counsel) / PUB. S. / (916) 319-3744 FN: 0000195

Date of Hearing: April 10, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 433

Author:(Ramos) – As Amended Ver:April 2, 2019

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill requires a prosecutor be given two days written notice of a hearing for early termination of probation, and requires the prosecutor to notify the victim if the victim has asked to be notified about the case. This bill also requires a judge to hold a hearing in open court before any early termination of probation.

FISCAL EFFECT:

Minor and absorbable costs (Trial Court Trust Fund/GF) to trial courts for increased case processing time pertaining to early termination of probation.

COMMENTS:

1. Purpose and Background. According to the author:

AB 433 will ensure that victims are made whole, by ensuring their constitutional right to restitution is met. While victims are required to be provided restitution to cover economic losses associated with the victimization, occasions arise where the victim’s losses may not be able to be determined at the time of sentencing. Current law allows for restitution to be revisited, but that must occur prior to the end of probation when the court loses jurisdiction associated with the defender. AB 433 closes this loophole and allows victims the opportunity to have access to this reassessment, guaranteeing this constitutional right is met.

Since a court lacks jurisdiction to order or modify restitution after the expiration of a defendant's probation, this bill would give the prosecution two-days’ notice of a hearing for early termination of probation, as well as require the prosecutor to notify a victim in the event that there are outstanding restitution claims which need to be brought to the court’s attention. In the event the victim advises there is outstanding restitution, then the prosecutor would be required to request a continuance, thereby allowing remaining restitution issues to be addressed before the court loses jurisdiction.

1. Prior Legislation.
   1. AB 194 (Patterson), of the 2017-2018 Legislative Session, would have extended the court's jurisdiction for purposes of amending a restitution order for five years after sentencing or until the defendant is no longer on probation or mandatory supervision, whichever is longer. AB 194 failed passage in the Senate Committee on Public Safety.
      
   2. AB 2477 (Patterson), of the 2015-2016 Legislative Session, would have overturned case law holding that a court lacks jurisdiction to modify a restitution order after the defendant's probation expires, thereby extending jurisdiction for restitution indefinitely. AB 2477 failed passage in the Assembly Committee on Public Safety.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: March 26, 2019

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 433

Author:(Ramos) – As Introduced Ver:February 11, 2019

As Proposed to be Amended in Committee

SUMMARY:

Requires that the prosecutor be given two days written notice of a hearing for early termination of probation, and requires the prosecutor to notify the victim if the victim has asked to be notified about the case. Specifically, this bill:

1. Mandates a judge to hold a hearing in open court before early termination of probation.
   
2. Gives the prosecutor two days written notice of a hearing for early termination of probation and an opportunity to be heard on the decision to terminate probation early.
3. Requires the prosecutor notify the victim about the proceedings, if the victim has asked to be notified about the progress of the case.
   
4. States that if the victim advises there is outstanding restitution, the prosecutor shall request a continuance.

EXISTING LAW:

1. Establishes the right of crime victims to receive restitution directly from the persons convicted of the crimes for losses they suffer. (Cal. Const. art I, § 28, subd. (b).)
   
2. Requires victim restitution from adult criminal defendants who have been sentenced by the court in every case in which a victim has suffered an economic loss as a result of the defendant's conduct. (Pen. Code, § 1202.4, subd. (f).)
   
3. Defines probation as "the suspension of the imposition or execution of a sentence and the order of conditional release in the community under the supervision of a probation officer." (Pen. Code, § 1203, subd. (a).)
   
4. Gives the court discretion in felony cases to grant probation for up to five years, or no longer than the prison term that can be imposed when the prison term exceeds five years. (Pen. Code, § 1203.1, subd. (a).)
   
5. Gives the court discretion in misdemeanor cases to generally grant probation for up to three years, or no longer than the consecutive sentence imposed if more than three years. (Pen. Code, § 1203a.)
   
6. Authorizes the extension of probation for five years in certain misdemeanor cases, such as driving under the influence. (Veh. Code, § 23600, subd. (b)(1).)
   
7. Requires a court which grants probation to make the payment of the victim restitution order a condition of probation. (Pen. Code, § 1202.4, subd. (m).)
   
8. Authorizes the court to revoke, modify, extend, or terminate its order of probation. (Pen. Code, §§ 1203.2 & 1203.3.)
   
9. Authorizes the court to modify the dollar amount of restitution at any time during the term of probation. (Pen. Code, § 1203.3, subd. (b)(5).)
   
10. Prohibits the court from modifying the restitution obligations due to the defendant's good conduct. (Pen. Code, § 1203.3, subd. (b)(4).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “AB 433 will provide victims of crime information and notice of the termination of probation for those who victimized then. AB 433 would provide the prosecuting attorney and the victim be given 30 days’ written notice prior to a hearing to terminate probation early. The bill would require proof of service of notice on the victim to be filed with the court 5 court days to the hearing. This will ensure that victims are made aware of the conditions of this termination, and help provide victims further security and peace of mind.
   
   “Additionally, AB 433 will ensure that victims are made whole, by ensuring their constitutional right to restitution is met. While victims are required to be provided restitution to cover economic losses associated with the victimization, occasions arise where the victim’s losses may not be able to be determined at the time of sentencing. Current law allows for restitution to be revisited, but that must occur prior to the end of probation when the court loses jurisdiction associated with the defender. AB 433 closes this loophole and allows victims the opportunity to have access to this reassessment, guaranteeing this constitutional right is met.”
   
2. Jurisdiction to Modify Restitution Order: In Hilton v. Superior Court (2014) 239 Cal.App.4th 766, the Court of Appeal held that once probation expires, the judge cannot modify a restitution order. In Hilton, the defendant pled to driving under the influence and the court placed him on probation for three years. At a subsequent restitution hearing, the court ordered the defendant to pay $3,000 restitution to the victim, which he did. (Id. at pp. 769-770.) The victim then sued the defendant civilly and won $3.5 million. Probation then expired on the criminal case. One year and seven months after probation expired, the victim went back to court and requested that the court could order $886,000 more in restitution, to pay for the costs of the civil suit as well as additional lost wages. The defendant objected based on lack of jurisdiction. (Id. at 770.) The Court of Appeal reversed the order, holding that once probation expires, the court loses jurisdiction to modify a restitution order and that any extension of probation was an act in excess of jurisdiction and void. (Id. at p. 772.) The court noted that termination of probation occurs by operation of law at the end of the probationary period. (Id. at p. 773.) The court also held that the language of Penal Code section 1203.3 reflects legislative intent, consistent with pre-existing law on probation, that the trial court lacks jurisdiction to impose restitution once probation expires. (Id. at pp. 775-776.)
   
   People v. Waters (2015) 241 Cal.App.4th 822, agreed with the holding in Hilton. In this case, the court sought to order restitution two years after the probationary period expired, even though the victim impact statement seeking $20,000 was filed before the entry of the plea. (Id. at p. 825.) The court noted that Penal Code section 1202.4, subdivision (f) requires the trial court to order victim restitution unless the trial court finds compelling and extraordinary reasons for not doing so. Regarding jurisdiction, a trial court's power to modify a sentence usually expires 120 days after judgment. (See Pen. Code, § 1170, subd. (d).) (Id. at p. 827.) But there is an exception where victim restitution cannot be ascertained at the time of sentencing and the trial court retains jurisdiction to order restitution. (Pen. Code, § 1202.46.) However, section 1202.46 must be harmonized with the preexisting statutory scheme concerning probation, which limits a trial court's jurisdiction to modify probation to the term of probation (Pen. Code, § 1203.3, subds. (a), (b)(4).) (Id. at p. 830-831.) Therefore, the court concluded that the trial court lacked jurisdiction to order restitution after the expiration of the defendant's probationary period. (Id. at p. 831.)
   

In light of the fact that a court lacks jurisdiction to order or modify restitution after the expiration of a defendant's probationary period, this bill would give the prosecution two-days notice of a hearing for early termination of probation, as well as require the prosecutor to notify a victim in the event that there are outstanding restitution claims which need to be brought to the court’s attention. In the event the victim advises there is outstanding restitution, then the prosecutor would be required to request a continuance, thereby allowing remaining restitution issues to be addressed before the court loses jurisdiction.

1. Constitutionally Protected Right to Victim Restitution: The right of a victim to restitution from the person convicted of a crime from which the victim suffers a loss as result of the criminal activity became a constitutional right when adopted by vote of the people in June 1982 as part of Proposition 8. Proposition 8 added article I, section 28, subdivision (b), to the California Constitution, and provided:
   
   "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. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section."
   
   The Proposition was not self-executing, but rather directed the Legislature to adopt implementing legislation. (People v. Vega-Hernández (1986) 179 Cal.App.3d 1084.) In response, the Legislature enacted Penal Code sections 1202.4 and 1203.04 (repealed section related to restitution as condition of probation). (People v. Ortiz (1997) 53 Cal.App.4th 791, 795, fn. 3.)
   
   The constitutional provisions regarding restitution were amended by the voters again in 2008, when they approved Proposition 9, the Victims' Bill of Rights Act of 2008, also known as Marsy's Law. The amendments, among other things, make clear that a victim is entitled to restitution, expanded the definition of a victim to include a representative of a deceased victim, and gave that representative the ability to enforce a victim's right. (See People v. Runyan (2012) 54 Cal.4th 849, 858-859.)
   
2. Restitution as a Condition of Probation: When the court grants probation, payment of restitution must be made a condition of probation. (Pen. Code, § 1202.4, subd. (m).)
   
   The court has broader discretion to order restitution as a condition of probation than it does when a defendant is not granted probation. (People v. Anderson (2010) 50 Cal.4th 19, 26-27.) When ordering restitution as a condition of probation, the court is not restricted to directing payment to only those victims as defined in the restitution statute. Additionally, the court can order restitution as a condition of probation even when the losses are not necessarily caused by the conduct underlying the defendant's conviction. Rather than having a causal connection, the restitution condition must only be reasonably related to either the defendant's crime or to the goal of deterring future criminality. (Ibid; see also People v. Carbajal (1995) 10 Cal4th. 1114, 1121–1124.)
   
   If part of a restitution order has not been paid after a defendant is no longer on probation, it remains enforceable by the victim as though it were a civil judgment. (Pen. Code, § 1202.4, subd. (m).)
3. Argument in Support: According to According to Crime Victims United of California, the sponsor of this bill, “[W]hile victims are required to be provided restitution to cover economic losses associated with their victimization, occasions arise where the victim’s losses may not be able to be determined at the time of sentencing. Current law allows for restitution to be revisited, but that must occur prior to the end of probation when the court loses jurisdiction associated with the defender. The challenge is that victims do not have any way of knowing that a defendant may be poised to have their probation terminated early, cutting off any opportunity for revisiting restitution to the victim.
   
   “Under Marsy’s Law, Proposition 9, passed by the voters in 2008, the constitutional amendment and statutory measure provided victims the right to reasonable notice of all public proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings. Additionally, it provided victims with the right to be heard, upon request, at any proceeding involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.
   
   “Prior to Marsy’s Law’s passage, Proposition 8, passed by California voters in 1982, amended the California Constitution to establish the right of crime victims to receive restitution. Specifically, it provided:

“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, sec. 28, subd. (b).)

“Under current law, a trial court is required to order the defendant to pay full restitution to their victim ‘unless it finds compelling and extraordinary reasons for not doing so and states them on the record.’ (Pen. Code, § 1202.4, subd. (f).) Under Penal Code 1202.46, if the economic losses of the victim cannot be ascertained at the time of sentencing, then the court is to retain jurisdiction and modify restitution when the victim’s losses may be determined. Ultimately, the trial court must incorporate the restitution order in the defendant's conditions of probation. (Pen. Code, § 1202.4, subd. (m).)

“AB 433 seeks to provide victims and prosecuting attorney’s notice prior to a hearing to terminate probation early. For victims, such notice would provide benefits of being made aware that probation and the associated terms that may include prohibition on contact may be void without further action to institute an ongoing protective order. Additionally, the notice would provide the opportunity, where the victim can demonstrate justification for additional restitution to be ordered, for the victim to request that the court to consider additional restitution to cover constitutionally mandated restitution at a level that makes a victim whole based on their losses.”

1. Argument in Opposition: According to the San Francisco Public Defender’s Office, “Existing law, Penal Code section 1203.3, subdivision (b)(1) already provides that if any term or condition of probation is modified, a hearing must be held in open court before the judge; and the prosecuting attorney must be given a two-day notice and an opportunity to be heard (with a five day advance notice required in the case of certain domestic violence cases.)
   
   “Existing law, California Constitution, article I, section 28, subdivision (b)(7), already provides that the victim is entitled to reasonable notice of all public proceedings, upon request, at which the defendant and the prosecutor are entitled to be present.
   
   “AB 433’s additions requiring a hearing and 30-days’ written notice to both the prosecutor and the victim, as well as proof of notice on the victim filed five days in advance, before the court may even order early termination of probation are not necessary because the victim who requests it is already entitled to notice. If the court or the prosecutor determines it is necessary to give that notice, or desirable when the victim has not requested that notice, the hearing can be continued for that purpose. In most cases, however, the victim has not requested notice, and often notice to a victim who has not requested it, is also not desirable.
   
   “The burden that AB 433 demands is obvious: extra steps and delay, even when neither is necessary nor desirable.
   
   “AB 433’s requirements can also be counterproductive. Often, when early termination of probation is contemplated, this is for pressing reasons such as an imminent job transfer, military reasons, or sudden illness of a distant family member. Additionally, the defendant may have exhibited good conduct and reform, where probation is no longer imperative as their debt to society has thus been repaid. The 30-day delay will, therefore, often defeat the interest of justice by imposing an unreasonable barrier to a rightfully earned order. Lastly, if the prosecutor is dilatory in giving the victim notice (we rarely want the defendant to contact the victim), further unnecessary delay ensues.”
   
2. Related Legislation: AB 445 (Choi) authorizes the Victim Compensation Board to compensate a crime victim for attorney costs associated with exercising rights under Marcy’s Law. AB 445 failed passage in this Committee.
   
3. Prior Legislation:
   
   1. AB 194 (Patterson), of the 2017-2018 Legislative Session, would have extended the court's jurisdiction for purposes of amending a restitution order for five years after sentencing or until the defendant is no longer on probation or mandatory supervision, whichever is longer. AB 194 failed passage in the Senate Public Safety Committee.
      
   2. AB 2477 (Patterson), of the 2015-2016 Legislative Session, would have overturned case law holding that a court lacks jurisdiction to modify a restitution order after the defendant's probation expires, thereby extending jurisdiction for restitution indefinitely. AB 2477 failed passage in this Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Crime Victims United of California (Sponsor)

California District Attorneys Association

Opposition

American Civil Liberties Union of California

California Attorneys for Criminal Justice
San Francisco Public Defender

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744

Date of Hearing: March 19, 2019

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 433

Author:(Ramos) – As Introduced Ver:February 11, 2019

SUMMARY:

Requires that the prosecutor and the victim be given 30-days written notice of a hearing for early termination of probation. Specifically, this bill:

1. Mandates a judge to hold a hearing in open court before early termination of probation.
   
2. Requires that both the prosecutor and the victim be given 30-days written notice of a hearing for early termination of probation.
   
3. Provides that the victim may be served with notice of the hearing on early termination by mail.
   
4. Requires proof of service on the victim to be filed with the court five court days prior to the hearing.
   
5. Mandates that a victim be given an opportunity to be heard on the decision to terminate probation early.

EXISTING LAW:

1. Establishes the right of crime victims to receive restitution directly from the persons convicted of the crimes for losses they suffer. (Cal. Const. art I, § 28, subd. (b).)
   
2. Requires victim restitution from adult criminal defendants who have been sentenced by the court in every case in which a victim has suffered an economic loss as a result of the defendant's conduct. (Pen. Code, § 1202.4, subd. (f).)
   
3. Defines probation as "the suspension of the imposition or execution of a sentence and the order of conditional release in the community under the supervision of a probation officer." (Pen. Code, § 1203, subd. (a).)
   
4. Gives the court discretion in felony cases to grant probation for up to five years, or no longer than the prison term that can be imposed when the prison term exceeds five years. (Pen. Code, § 1203.1, subd. (a).)
   
5. Gives the court discretion in misdemeanor cases to generally grant probation for up to three years, or no longer than the consecutive sentence imposed if more than three years. (Pen. Code, § 1203a.)
   
6. Authorizes the extension of probation for five years in certain misdemeanor cases, such as driving under the influence. (Veh. Code, § 23600, subd. (b)(1).)
   
7. Requires a court which grants probation to make the payment of the victim restitution order a condition of probation. (Pen. Code, § 1202.4, subd. (m).)
   
8. Authorizes the court to revoke, modify, extend, or terminate its order of probation. (Pen. Code, §§ 1203.2 & 1203.3.)
   
9. Authorizes the court to modify the dollar amount of restitution at any time during the term of probation. (Pen. Code, § 1203.3, subd. (b)(5).)
   
10. Prohibits the court from modifying the restitution obligations due to the defendant's good conduct. (Pen. Code, § 1203.3, subd. (b)(4).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “AB 433 will provide victims of crime information and notice of the termination of probation for those who victimized then. AB 433 would provide the prosecuting attorney and the victim be given 30 days’ written notice prior to a hearing to terminate probation early. The bill would require proof of service of notice on the victim to be filed with the court 5 court days to the hearing. This will ensure that victims are made aware of the conditions of this termination, and help provide victims further security and peace of mind.
   
   “Additionally, AB 433 will ensure that victims are made whole, by ensuring their constitutional right to restitution is met. While victims are required to be provided restitution to cover economic losses associated with the victimization, occasions arise where the victim’s losses may not be able to be determined at the time of sentencing. Current law allows for restitution to be revisited, but that must occur prior to the end of probation when the court loses jurisdiction associated with the defender. AB 433 closes this loophole and allows victims the opportunity to have access to this reassessment, guaranteeing this constitutional right is met.”
   
2. Jurisdiction to Modify Restitution Order: In Hilton v. Superior Court (2014) 239 Cal.App.4th 766, the Court of Appeal held that once probation expires, the judge cannot modify a restitution order. In Hilton, the defendant pled to driving under the influence and the court placed him on probation for three years. At a subsequent restitution hearing, the court ordered the defendant to pay $3,000 restitution to the victim, which he did. (Id. at pp. 769-770.) The victim then sued the defendant civilly and won $3.5 million. Probation then expired on the criminal case. One year and seven months after probation expired, the victim went back to court and requested that the court could order $886,000 more in restitution, to pay for the costs of the civil suit as well as additional lost wages. The defendant objected based on lack of jurisdiction. (Id. at 770.) The Court of Appeal reversed the order, holding that once probation expires, the court loses jurisdiction to modify a restitution order and that any extension of probation was an act in excess of jurisdiction and void. (Id. at p. 772.) The court noted that termination of probation occurs by operation of law at the end of the probationary period. (Id. at p. 773.) The court also held that the language of Penal Code section 1203.3, reflects legislative intent, consistent with pre-existing law on probation, that the trial court lacks jurisdiction to impose restitution once probation expires. (Id. at pp. 775-776.)
   
   People v. Waters (2015) 241 Cal.App.4th 822, agreed with the holding in Hilton. In this case, the court sought to order restitution two years after the probationary period expired, even though the victim impact statement seeking $20,000 was filed before the entry of the plea. (Id. at p. 825.) The court noted that Penal Code section 1202.4, subdivision (f) requires the trial court to order victim restitution unless the trial court finds compelling and extraordinary reasons for not doing so. Regarding jurisdiction, a trial court's power to modify a sentence usually expires 120 days after judgment. (See Pen. Code, § 1170, subd. (d).) (Id. at p. 827.) But there is an exception where victim restitution cannot be ascertained at the time of sentencing and the trial court retains jurisdiction to order restitution. (Pen. Code, § 1202.46.) However, section 1202.46 must be harmonized with the preexisting statutory scheme concerning probation, which limits a trial court's jurisdiction to modify probation to the term of probation (Pen. Code, § 1203.3, subds. (a), (b)(4).) (Id. at p. 830-831.) Therefore, the court concluded that the trial court lacked jurisdiction to order restitution after the expiration of the defendant's probationary period. (Id. at p. 831.)
   

In light of the fact that a court lacks jurisdiction to order or modify restitution after the expiration of a defendant's probationary period, this bill would require 30-days written notice to the prosecutor and to a victim before early termination of probation. However, this approach uses a machete when a scalpel will do. Notably, this bill would delay early termination of probation by 30 days even for victimless crimes.

This approach also fails to consider that some victims would prefer to put the crime behind them. In this respect, some of the rights enumerated in the Victims’ Bill of Rights are not self-executing, but rather, they are exercised upon request of the victim. For example, a victim has the right “To be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, postconviction release decision, or any proceeding in which a right of the victim is at issue.” (Cal. Const. art. 1. § 28, subd. (b)(8).) Likewise, a victim has the right “To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody.” (Cal. Const. art. 1. § 28, subd. (b)(12).) From a practical standpoint, unless a victim has asked to be kept informed about the case and provided contact information, it may be impossible to notify him or her because the victim may have moved. As such, it makes more sense to provide notice of a hearing for early termination of probation only in the instances where a victim has so requested.

Additionally 30-days written notice is not necessary to preserve a victim’s right to additional restitution in the cases where restitution could not be determined at sentencing or has not already been modified. Significantly, the victim’s presence at the hearing on early termination is not necessary. The prosecutor can request that early termination be denied on based on the need to address additional restitution claims and that the matter be continued. Arguably what is needed to address the situation in which there may be outstanding restitution claims, is notice to the prosecutor and time for the prosecutor confer with the victim.

Under current law, the prosecutor generally is given two days written notice and an opportunity to be heard before any condition of probation is modified. (See Pen. Code, § 1203.3, subd. (b)(1).) It is unclear why this process would not suffice in the situation this bill seeks to address.

1. Constitutionally Protected Right to Victim Restitution: The right of a victim to restitution from the person convicted of a crime from which the victim suffers a loss as result of the criminal activity became a constitutional right when adopted by vote of the people in June 1982 as part of Proposition 8. Proposition 8 added article I, section 28, subdivision (b), to the California Constitution, and provided:
   
   "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. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section."
   
   The Proposition was not self-executing, but rather directed the Legislature to adopt implementing legislation. (People v. Vega-Hernández (1986) 179 Cal.App.3d 1084.) In response, the Legislature enacted Penal Code sections 1202.4 and 1203.04 (repealed section related to restitution as condition of probation). (People v. Ortiz (1997) 53 Cal.App.4th 791, 795, fn. 3.)
   
   The constitutional provisions regarding restitution were amended by the voters again in 2008, when they approved Proposition 9, the Victims' Bill of Rights Act of 2008, also known as Marsy's Law. The amendments, among other things, make clear that a victim is entitled to restitution, expanded the definition of a victim to include a representative of a deceased victim, and gave that representative the ability to enforce a victim's right. (See People v. Runyan (2012) 54 Cal.4th 849, 858-859.)
   
2. Restitution as a Condition of Probation: When the court grants probation, payment of restitution must be made a condition of probation. (Pen. Code, 1202.4, subd. (m).)
   
   The court has broader discretion to order restitution as a condition of probation than it does when a defendant is not granted probation. (People v. Anderson (2010) 50 Cal.4th 19, 26-27.) When ordering restitution as a condition of probation, the court is not restricted to directing payment to only those victims as defined in the restitution statute. Additionally, the court can order restitution as a condition of probation even when the losses are not necessarily caused by the conduct underlying the defendant's conviction. Rather than having a causal connection, the restitution condition must only be reasonably related to either the defendant's crime or to the goal of deterring future criminality. (Ibid; see also People v. Carbajal (1995) 10 Cal4th. 1114, 1121–1124.)
   
   If part of a restitution order has not been paid after a defendant is no longer on probation, it remains enforceable by the victim as though it were a civil judgment. (Pen. Code, 1202.4, subd. (m).)
3. Argument in Support: According to According to Crime Victims United of California, the sponsor of this bill, “[W]hile victims are required to be provided restitution to cover economic losses associated with their victimization, occasions arise where the victim’s losses may not be able to be determined at the time of sentencing. Current law allows for restitution to be revisited, but that must occur prior to the end of probation when the court loses jurisdiction associated with the defender. The challenge is that victims do not have any way of knowing that a defendant may be poised to have their probation terminated early, cutting off any opportunity for revisiting restitution to the victim.
   
   “Under Marsy’s Law, Proposition 9, passed by the voters in 2008, the constitutional amendment and statutory measure provided victims the right to reasonable notice of all public proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings. Additionally, it provided victims with the right to be heard, upon request, at any proceeding involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.
   
   “Prior to Marsy’s Law’s passage, Proposition 8, passed by California voters in 1982, amended the California Constitution to establish the right of crime victims to receive restitution. Specifically, it provided:

“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, sec. 28, subd. (b).)

“Under current law, a trial court is required to order the defendant to pay full restitution to their victim ‘unless it finds compelling and extraordinary reasons for not doing so and states them on the record.’ (Pen. Code, § 1202.4, subd. (f).) Under Penal Code 1202.46, if the economic losses of the victim cannot be ascertained at the time of sentencing, then the court is to retain jurisdiction and modify restitution when the victim’s losses may be determined. Ultimately, the trial court must incorporate the restitution order in the defendant's conditions of probation. (Pen. Code, § 1202.4, subd. (m).)

“AB 433 seeks to provide victims and prosecuting attorney’s notice prior to a hearing to terminate probation early. For victims, such notice would provide benefits of being made aware that probation and the associated terms that may include prohibition on contact may be void without further action to institute an ongoing protective order. Additionally, the notice would provide the opportunity, where the victim can demonstrate justification for additional restitution to be ordered, for the victim to request that the court to consider additional restitution to cover constitutionally mandated restitution at a level that makes a victim whole based on their losses.”

1. Argument in Opposition: According to the San Francisco Public Defender’s Office, “Existing law, Penal Code section 1203.3, subdivision (b)(1) already provides that if any term or condition of probation is modified, a hearing must be held in open court before the judge; and the prosecuting attorney must be given a two-day notice and an opportunity to be heard (with a five day advance notice required in the case of certain domestic violence cases.)
   
   “Existing law, California Constitution, article I, section 28, subdivision (b)(7), already provides that the victim is entitled to reasonable notice of all public proceedings, upon request, at which the defendant and the prosecutor are entitled to be present.
   
   “AB 433’s additions requiring a hearing and 30-days’ written notice to both the prosecutor and the victim, as well as proof of notice on the victim filed five days in advance, before the court may even order early termination of probation are not necessary because the victim who requests it is already entitled to notice. If the court or the prosecutor determines it is necessary to give that notice, or desirable when the victim has not requested that notice, the hearing can be continued for that purpose. In most cases, however, the victim has not requested notice, and often notice to a victim who has not requested it, is also not desirable.
   
   “The burden that AB 433 demands is obvious: extra steps and delay, even when neither is necessary nor desirable.
   
   “AB 433’s requirements can also be counterproductive. Often, when early termination of probation is contemplated, this is for pressing reasons such as an imminent job transfer, military reasons, or sudden illness of a distant family member. Additionally, the defendant may have exhibited good conduct and reform, where probation is no longer imperative as their debt to society has thus been repaid. The 30-day delay will, therefore, often defeat the interest of justice by imposing an unreasonable barrier to a rightfully earned order. Lastly, if the prosecutor is dilatory in giving the victim notice (we rarely want the defendant to contact the victim), further unnecessary delay ensues.”
   
2. Related Legislation: AB 445 (Choi) authorizes the Victim Compensation Board to compensate a crime victim for attorney costs associated with exercising rights under Marcy’s Law. AB 445 will be heard by this Committee today.
   
3. Prior Legislation:
   
   1. AB 194 (Patterson), of the 2017-2018 Legislative Session, would have extended the court's jurisdiction for purposes of amending a restitution order for five years after sentencing or until the defendant is no longer on probation or mandatory supervision, whichever is longer. AB 194 failed passage in the Senate Public Safety Committee.
      
   2. AB 2477 (Patterson), of the 2015-2016 Legislative Session, would have overturned case law holding that a court lacks jurisdiction to modify a restitution order after the defendant's probation expires, thereby extending jurisdiction for restitution indefinitely. AB 2477 failed passage in this Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Crime Victims United of California (Sponsor)
California District Attorneys Association

Oppose

American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association (CPDA)
San Francisco Public Defender's Office

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744