California Assembly Bill AB423 Introduced / Bill

 BILL NUMBER: AB 423INTRODUCED BILL TEXT INTRODUCED BY Assembly Member Torres FEBRUARY 15, 2013 An act to amend Section 2085.5 of the Penal Code, and to amend Sections 1752.81 and 1752.82 of the Welfare and Institutions Code, relating to restitution. LEGISLATIVE COUNSEL'S DIGEST AB 423, as introduced, Torres. Restitution: collection. Existing law authorizes the imposition of a restitution fine or order to be paid to the state or the victim of a crime, as specified. Existing law requires the Secretary of Corrections and Rehabilitation, to deduct a minimum of 20% of the balance owing on the fine or order amount, whichever is less, up to a maximum of 50%, from the wages and trust account of a prisoner to fulfill his or her restitution fine or order, unless prohibited by federal law. Existing law authorizes an agency designated by the board of supervisors in a county where a prisoner is incarcerated to deduct those amounts from specified prisoners. Under existing law, if an inmate is housed at an institution that requires food to be purchased from the institution canteen for unsupervised overnight visits, and if the money for the purchase of this food is received from funds other than the inmate's wages, that money is exempt from restitution deductions. Existing law requires the Director of the Division of Juvenile Justice, if an adult or minor is committed to, or housed in, a Division of Juvenile Facilities facility and he or she owes money for a restitution fine or order, to deduct the balance owing on the fine or order amount from the trust account deposits of a ward, up to a maximum of 50% of the total amount held in trust, unless prohibited by federal law. Existing law also authorizes the director to deduct a reasonable amount, not to exceed 50%, from the wages of a ward to satisfy a restitution fine or order. Existing law also authorizes the director to expend the portion of a ward's trust funds that exceed $500 pursuant to a lawful order of a court directing payment of the funds. This bill would require the Secretary of Corrections and Rehabilitation and the Director of the Division of Juvenile Justice, and would authorize the collecting agency of a county, to deduct either the balance owing on a restitution fine or order or 80% of the trust account or wages of a prisoner or ward, whichever is less, unless prohibited by federal law. The bill would expand these provisions to apply to a prisoner who is punished by imprisonment in any county correctional facility, and would delete the exemption for funds for the purchase of food from the institution canteen for unsupervised overnight visits. The bill would also authorizes the Director of Juvenile Justice to expend the portion of a ward's trust funds that exceed $100 pursuant to a lawful order of a court directing payment of the funds. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 2085.5 of the Penal Code is amended to read: 2085.5. (a) In any case in which a prisoner owes a restitution fine imposed pursuant to subdivision (a) of Section 13967 of the Government Code, as operative prior to September 28, 1994, subdivision (b) of Section 730.6 of the Welfare and Institutions Code, or subdivision (b) of Section 1202.4, the Secretary of the Department of Corrections and Rehabilitation shall deduct  a minimum of 20   80  percent or the balance owing on the fine amount, whichever is less,  up to a maximum of 50 percent  from the wages and trust account deposits of a prisoner, unless prohibited by federal law, and shall transfer that amount to the California Victim Compensation and Government Claims Board for deposit in the Restitution Fund in the State Treasury. Any amount so deducted shall be credited against the amount owing on the fine. The sentencing court shall be provided a record of the payments. (b) (1) When a prisoner is punished by imprisonment in a county  jail pursuant to subdivision (h) of Section 1170     correctional facility  , in any case in which a prisoner owes a restitution fine imposed pursuant to subdivision (a) of Section 13967 of the Government Code, as operative prior to September 28, 1994, subdivision (b) of Section 730.6 of the Welfare and Institutions Code, or subdivision (b) of Section 1202.4, the agency designated by the board of supervisors in the county where the prisoner is incarcerated is authorized to deduct  a minimum of 20   80  percent or the balance owing on the fine amount, whichever is less,  up to a maximum of 50 percent  from the county  jail   correctional   facility  equivalent of wages and trust account deposits of a prisoner, unless prohibited by federal law, and shall transfer that amount to the California Victim Compensation and Government Claims Board for deposit in the Restitution Fund in the State Treasury. Any amount so deducted shall be credited against the amount owing on the fine. The sentencing court shall be provided a record of the payments. (2) If the board of supervisors designates the county sheriff as the collecting agency, the board of supervisors shall first obtain the concurrence of the county sheriff. (c) In any case in which a prisoner owes a restitution order imposed pursuant to subdivision (c) of Section 13967 of the Government Code, as operative prior to September 28, 1994, subdivision (h) of Section 730.6 of the Welfare and Institutions Code, or subdivision (f) of Section 1202.4, the Secretary of the Department of Corrections and Rehabilitation shall deduct  a minimum of 20   80  percent or the balance owing on the order amount, whichever is less,  up to a maximum of 50 percent  from the wages and trust account deposits of a prisoner, unless prohibited by federal law. The secretary shall transfer that amount to the California Victim Compensation and Government Claims Board for direct payment to the victim, or payment shall be made to the Restitution Fund to the extent that the victim has received assistance pursuant to that program. The sentencing court shall be provided a record of the payments made to victims and of the payments deposited to the Restitution Fund pursuant to this subdivision. (d) When a prisoner is punished by imprisonment in a county  jail pursuant to subdivision (h) of Section 1170   correctional facility  , in any case in which a prisoner owes a restitution order imposed pursuant to subdivision (c) of Section 13967 of the Government Code, as operative prior to September 28, 1994, subdivision (h) of Section 730.6 of the Welfare and Institutions Code, or subdivision (b) of Section 1202.4, the agency designated by the board of supervisors in the county where the prisoner is incarcerated is authorized to deduct  a minimum of 20   80  percent or the balance owing on the order amount, whichever is less,  up to a maximum of 50 percent  from the county  jail     correctional   facility equivalent of wages and trust account deposits of a prisoner, unless prohibited by federal law. The agency shall transfer that amount to the California Victim Compensation and Government Claims Board for direct payment to the victim, or payment shall be made to the Restitution Fund to the extent that the victim has received assistance pursuant to that program, or may pay the victim directly. The sentencing court shall be provided a record of the payments made to the victims and of the payments deposited to the Restitution Fund pursuant to this subdivision. (e) The secretary shall deduct and retain from the wages and trust account deposits of a prisoner, unless prohibited by federal law, an administrative fee that totals 10 percent of any amount transferred to the California Victim Compensation and Government Claims Board pursuant to subdivision (a) or (c). The secretary shall deduct and retain from any prisoner settlement or trial award, an administrative fee that totals 5 percent of any amount paid from the settlement or award to satisfy an outstanding restitution order or fine pursuant to subdivision (n), unless prohibited by federal law. The secretary shall deposit the administrative fee moneys in a special deposit account for reimbursing administrative and support costs of the restitution program of the Department of Corrections and Rehabilitation. The secretary, at his or her discretion, may retain any excess funds in the special deposit account for future reimbursement of the department's administrative and support costs for the restitution program or may transfer all or part of the excess funds for deposit in the Restitution Fund. (f) When a prisoner is punished by imprisonment in a county  jail pursuant to subdivision (h) of Section 1170   correctional facility  , the agency designated by the board of supervisors in the county where the prisoner is incarcerated is authorized to deduct and retain from the county  jail     correctional   facility  equivalent of wages and trust account deposits of a prisoner, unless prohibited by federal law, and administrative fee that totals 10 percent of any amount transferred to the California Victim Compensation and Government Claims Board pursuant to subdivision (b) or (d). The agency is authorized to deduct and retain from any prisoner settlement or trial award, an administrative fee that totals 5 percent of any amount paid from the settlement or award to satisfy an outstanding restitution order or fine pursuant to subdivision (n), unless prohibited by federal law. The agency shall deposit the administrative fee moneys in a special deposit account for reimbursing administrative and support costs of the restitution program of the agency. The agency is authorized to retain any excess funds in the special deposit account for future reimbursement of the agency's administrative and support costs for the restitution program or may transfer all or part of the excess funds for deposit in the Restitution Fund. (g) In any case in which a parolee owes a restitution fine imposed pursuant to subdivision (a) of Section 13967 of the Government Code, as operative prior to September 28, 1994, subdivision (b) of Section 730.6 of the Welfare and Institutions Code, or subdivision (b) of Section 1202.4, the secretary, or, when a prisoner is punished by imprisonment in a county  jail pursuant to subdivision (h) of Section 1170   correctional facility  , the agency designated by the board of supervisors in the county where the prisoner is incarcerated, may collect from the parolee any moneys owing on the restitution fine amount, unless prohibited by federal law. The secretary or the agency shall transfer that amount to the California Victim Compensation and Government Claims Board for deposit in the Restitution Fund in the State Treasury. Any amount so deducted shall be credited against the amount owing on the fine. The sentencing court shall be provided a record of the payments. (h) In any case in which a parolee owes a direct order of restitution, imposed pursuant to subdivision (c) of Section 13967 of the Government Code, as operative prior to September 28, 1994, subdivision (h) of Section 730.6 of the Welfare and Institutions Code, or paragraph (3) of subdivision (a) of Section 1202.4, the secretary, or, when a prisoner is punished by imprisonment in a county  jail pursuant to subdivision (h) of Section 1170   correctional facility  , the agency designated by the board of supervisors in the county where the prisoner is incarcerated or a local collection program, may collect from the parolee or person previously imprisoned in  a  county  jail     correctional   facility  any moneys owing, unless prohibited by federal law. The secretary or the agency shall transfer that amount to the California Victim Compensation and Government Claims Board for direct payment to the victim, or payment shall be made to the Restitution Fund to the extent that the victim has received assistance pursuant to that program. The sentencing court shall be provided a record of the payments made by the offender pursuant to this subdivision. (i) The secretary, or, when a prisoner is punished by imprisonment in a county  jail pursuant to subdivision (h) of Section 1170   correctional facility  , the agency designated by the board of supervisors in the county where the prisoner is incarcerated, may deduct and retain from any moneys collected from parolees an administrative fee that totals 10 percent of any amount transferred to the California Victim Compensation and Government Claims Board pursuant to subdivision (g) or (h), unless prohibited by federal law. The secretary shall deduct and retain from any settlement or trial award of a parolee an administrative fee that totals 5 percent of any amount paid from the settlement or award to satisfy an outstanding restitution order or fine pursuant to subdivision (n), unless prohibited by federal law. The agency is authorized to deduct and retain from any settlement or trial award of a parolee an administrative fee that totals 5 percent of any amount paid from the settlement or award to satisfy an outstanding restitution order or fine pursuant to subdivision (n). The secretary or the agency shall deposit the administrative fee moneys in a special deposit account for reimbursing administrative and support costs of the restitution program of the Department of Corrections and Rehabilitation or the agency, as applicable. The secretary, at his or her discretion, or the agency may retain any excess funds in the special deposit account for future reimbursement of the department's or agency's administrative and support costs for the restitution program or may transfer all or part of the excess funds for deposit in the Restitution Fund. (j) When a prisoner has both a restitution fine and a restitution order from the sentencing court, the Department of Corrections and Rehabilitation shall collect the restitution order first pursuant to subdivision (c). (k) When a prisoner is punished by imprisonment in a county  jail pursuant to subdivision (h) of Section 1170   correctional facility  and that prisoner has both a restitution fine and a restitution order from the sentencing court, if the agency designated by the board of supervisors in the county where the prisoner is incarcerated collects the fine and order, the agency shall collect the restitution order first pursuant to subdivision (d). (l) When a parolee has both a restitution fine and a restitution order from the sentencing court, the Department of Corrections and Rehabilitation, or, when the prisoner is punished by imprisonment in a county  jail pursuant to subdivision (h) of Section 1170   correctional facility , the agency designated by the board of supervisors in the county where the prisoner is incarcerated, may collect the restitution order first, pursuant to subdivision (h).  (m) If an inmate is housed at an institution that requires food to be purchased from the institution canteen for unsupervised overnight visits, and if the money for the purchase of this food is received from funds other than the inmate's wages, that money shall be exempt from restitution deductions. This exemption shall apply to the actual amount spent on food for the visit up to a maximum of fifty dollars ($50) for visits that include the inmate and one visitor, seventy dollars ($70) for visits that include the inmate and two or three visitors, and eighty dollars ($80) for visits that include the inmate and four or more visitors.   (n)   (m)  Any compensatory or punitive damages awarded by trial or settlement to any inmate, parolee, person placed on postrelease community supervision pursuant to Section 3451, or defendant on mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170, in connection with a civil action brought against any federal, state, or local jail, prison, or correctional facility, or any official or agent thereof, shall be paid directly, after payment of reasonable attorney's fees and litigation costs approved by the court, to satisfy any outstanding restitution orders or restitution fines against that person. The balance of any award shall be forwarded to the payee after full payment of all outstanding restitution orders and restitution fines, subject to subdivisions (e) and (i). The Department of Corrections and Rehabilitation shall make all reasonable efforts to notify the victims of the crime for which that person was convicted concerning the pending payment of any compensatory or punitive damages. For any prisoner punished by imprisonment in a county jail pursuant to subdivision (h) of Section 1170, the agency is authorized to make all reasonable efforts to notify the victims of the crime for which that person was convicted concerning the pending payment of any compensatory or punitive damages.  (o)   (n)  (1) Amounts transferred to the California Victim Compensation and Government Claims Board for payment of direct orders of restitution shall be paid to the victim within 60 days from the date the restitution revenues are received by the California Victim Compensation and Government Claims Board. If the restitution payment to a victim is less than fifty dollars ($50), then payment need not be forwarded to that victim until the payment reaches fifty dollars ($50) or until 180 days from the date the first payment is received, whichever occurs sooner. (2) In any case in which a victim cannot be located, the restitution revenues received by the California Victim Compensation and Government Claims Board on behalf of the victim shall be held in trust in the Restitution Fund until the end of the state fiscal year subsequent to the state fiscal year in which the funds were deposited or until the time that the victim has provided current address information, whichever occurs sooner. Amounts remaining in trust at the end of the specified period of time shall revert to the Restitution Fund. (3) (A) Any victim failing to provide a current address within the period of time specified in paragraph (2) may provide documentation to the Department of Corrections and Rehabilitation which in turn shall verify that moneys were in fact collected on behalf of the victim. Upon receipt of that verified information from the Department of Corrections and Rehabilitation, the California Victim Compensation and Government Claims Board shall transmit the restitution revenues to the victim in accordance with the provisions of subdivision (c) or (h). (B) Any victim failing to provide a current address within the period of time specified in paragraph (2) may provide documentation to the agency designated by the board of supervisors in the county where the prisoner  punished by imprisonment in a county jail pursuant to subdivision (h) of Section 1170  is incarcerated, which in turn may verify that moneys were in fact collected on behalf of the victim. Upon receipt of that verified information from the agency, the California Victim Compensation and Government Claims Board shall transmit the restitution revenues to the victim in accordance with the provisions of subdivision (d) or (h). SEC. 2. Section 1752.81 of the Welfare and Institutions Code is amended to read: 1752.81. (a) Whenever the Director of the Division of Juvenile Justice has in his or her possession in trust funds of a ward committed to the division, the funds may be released for any purpose when authorized by the ward. When the sum held in trust for any ward by the director exceeds  five hundred dollars ($500)   one hundred dollars ($100)  , the amount in excess of  five hundred dollars ($500)   one hundred dollars ($100)  may be expended by the director pursuant to a lawful order of a court directing payment of the funds, without the authorization of the ward thereto. (b) Whenever an adult or minor is committed to or housed in a Division of Juvenile Facilities facility and he or she owes a restitution fine imposed pursuant to Section 13967 of the Government Code, as operative on or before September 28, 1994, or Section 1202.4 or 1203.04 of the Penal Code, as operative on or before August 2, 1995, or pursuant to Section 729.6, 730.6 or 731.1, as operative on or before August 2, 1995, the director shall deduct the balance owing on the fine amount from the trust account deposits of a ward,  up to a maximum of 50   or 80  percent of the total amount held in trust,  which   ever   is less,  unless prohibited by federal law. The director shall transfer that amount to the California Victim Compensation and Government Claims Board for deposit in the Restitution Fund in the State Treasury. Any amount so deducted shall be credited against the amount owing on the fine. The sentencing court shall be provided a record of the payments. (c) Whenever an adult or minor is committed to, or housed in, a Division of Juvenile Facilities facility and he or she owes restitution to a victim imposed pursuant to Section 13967 of the Government Code, as operative on or before September 28, 1994, or Section 1202.4 or 1203.04 of the Penal Code, as operative on or before August 2, 1995, or pursuant to Section 729.6, 730.6, or 731.1, as operative on or before August 2, 1995, the director shall deduct the balance owing on the order amount from the trust account deposits of a ward,  up to a maximum of 50   or 80  percent of the total amount held in trust, unless prohibited by federal law. The director shall transfer that amount directly to the victim. If the restitution is owed to a person who has filed an application with the Victims of Crime Program, the director shall transfer that amount to the California Victim Compensation and Government Claims Board for direct payment to the victim or payment shall be made to the Restitution Fund to the extent that the victim has received assistance pursuant to that program. The sentencing court shall be provided a record of the payments made to victims and of the payments deposited to the Restitution Fund pursuant to this subdivision. (d) Any compensatory or punitive damages awarded by trial or settlement to a minor or adult committed to the Division of Juvenile Facilities in connection with a civil action brought against any federal, state, or local jail or correctional facility, or any official or agent thereof, shall be paid directly, after payment of reasonable attorney's fees and litigation costs approved by the court, to satisfy any outstanding restitution orders or restitution fines against the minor or adult. The balance of any award shall be forwarded to the minor or adult committed to the Division of Juvenile Facilities after full payment of all outstanding restitution orders and restitution fines subject to subdivision (e). The Division of Juvenile Facilities shall make all reasonable efforts to notify the victims of the crime for which the minor or adult was committed concerning the pending payment of any compensatory or punitive damages. This subdivision shall apply to cases settled or awarded on or after April 26, 1996, pursuant to Sections 807 and 808 of Title VIII of the federal Prison Litigation Reform Act of 1995 (P.L. 104-134; 18 U.S.C. Sec. 3626 (Historical and Statutory Notes)). (e) The director shall deduct and retain from the trust account deposits of a ward, unless prohibited by federal law, an administrative fee that totals 10 percent of any amount transferred pursuant to subdivision (b) and (c), or 5 percent of any amount transferred pursuant to subdivision (d). The director shall deposit the administrative fee moneys in a special deposit account for reimbursing administrative and support costs of the restitution and victims program of the Division of Juvenile Facilities. The director, at his or her discretion, may retain any excess funds in the special deposit account for future reimbursement of the division's administrative and support costs for the restitution and victims program or may transfer all or part of the excess funds for deposit in the Restitution Fund. (f) When a ward has both a restitution fine and a restitution order from the sentencing court, the Division of Juvenile Facilities shall collect the restitution order first pursuant to subdivision (c). (g) Notwithstanding subdivisions (a), (b), and (c), whenever the director holds in trust a ward's funds in excess of five dollars ($5) and the ward cannot be located, after one year from the date of discharge, absconding from the Division of Juvenile Facilities supervision, or escape, the Division of Juvenile Facilities shall apply the trust account balance to any unsatisfied victim restitution order or fine owed by that ward. If the victim restitution order or fine has been satisfied, the remainder of the ward's trust account balance, if any, shall be transferred to the Benefit Fund to be expended pursuant to Section 1752.5. If the victim to whom a particular ward owes restitution cannot be located, the moneys shall be transferred to the Benefit Fund to be expended pursuant to Section 1752.5. SEC. 3. Section 1752.82 of the Welfare and Institutions Code is amended to read: 1752.82. (a) Whenever an adult or minor is committed to or housed in a  Youth Authority   Division of Juvenile Facilities  facility and he or she owes restitution to a victim or a restitution fine imposed pursuant to Section 13967, as operative on or before September 28, 1994, of the Government Code, or Section 1202.4 of the Penal Code, or Section 1203.04, as operative on or before August 2, 1994, of the Penal Code, or pursuant to Section 729.6, as operative on or before August 2, 1995, Section 730.6 or 731.1, as operative on or before August 2, 1995, the director  may   shall  deduct  a reasonable amount not to exceed 50   either the balance owing on the restitution fine or order or 80  percent from the wages of that adult or minor  and the   , whichever is less, unless prohibited by federal law. The  amount so deducted, exclusive of the costs of administering this section, which shall be retained by the director, shall be transferred to the California Victim Compensation and Government Claims Board for deposit in the Restitution Fund in the State Treasury in the case of a restitution fine, or, in the case of a restitution order, and upon the request of the victim, shall be paid directly to the victim. Any amount so deducted shall be credited against the amount owing on the fine or to the victim. The committing court shall be provided a record of any payments. (b) A victim who has requested that restitution payments be paid directly to him or her pursuant to subdivision (a) shall provide a current address to the  Youth Authority   division  to enable the  Youth Authority   division  to send restitution payments collected on the victim's behalf to the victim. (c) In the case of a restitution order, whenever the victim has died, cannot be located, or has not requested the restitution payment, the director  may   shall  deduct  a reasonable amount not to exceed 50   either the balance owing on the restitution order or 80  percent of the wages of that adult or minor  and the   , unless prohibited by federal law. The  amount so deducted, exclusive of the costs of administering this section, which shall be retained by the director, shall be transferred to the California Victim Compensation and Government Claims Board, pursuant to subdivision (d), after one year has elapsed from the time the ward is discharged by the  Youth Authority Board   Division of Juvenile Justice  . Any amount so deducted shall be credited against the amount owing to the victim. The funds so transferred shall be deposited in the Restitution Fund. (d) If the  Youth Authority   Division of Juvenile Facilities  has collected restitution payments on behalf of a victim, the victim shall request those payments no later than one year after the ward has been discharged by the  Youth Authority Board   Division of Juvenile Justice  . Any victim who fails to request those payments within that time period shall have relinquished all rights to the payments, unless he or she can show reasonable cause for failure to request those payments within that time period. (e) The director shall transfer to the California Victim Compensation and Government Claims Board all restitution payments collected prior to the effective date of this section on behalf of victims who have died, cannot be located, or have not requested restitution payments. The California Victim Compensation and Government Claims Board shall deposit these amounts in the Restitution Fund. (f) For purposes of this section, "victim" includes a victim's immediate surviving family member, on whose behalf restitution has been ordered.