Bill Text: CA AB1140 | 2015-2016 | Regular Session | Chaptered
Bill Title: Crime victims.
Spectrum: Slight Partisan Bill (Democrat 2-1)
Status: (Passed) 2015-10-07 - Chaptered by Secretary of State - Chapter 569, Statutes of 2015. [AB1140 Detail]
Download: California-2015-AB1140-Chaptered.html
BILL NUMBER: AB 1140 CHAPTERED
BILL TEXT
CHAPTER 569
FILED WITH SECRETARY OF STATE OCTOBER 7, 2015
APPROVED BY GOVERNOR OCTOBER 7, 2015
PASSED THE SENATE SEPTEMBER 10, 2015
PASSED THE ASSEMBLY SEPTEMBER 11, 2015
AMENDED IN SENATE SEPTEMBER 4, 2015
AMENDED IN SENATE AUGUST 31, 2015
AMENDED IN SENATE AUGUST 18, 2015
AMENDED IN ASSEMBLY MAY 28, 2015
AMENDED IN ASSEMBLY MAY 4, 2015
AMENDED IN ASSEMBLY APRIL 22, 2015
INTRODUCED BY Assembly Member Bonta
(Principal coauthors: Senators Hancock and Nielsen)
FEBRUARY 27, 2015
An act to amend Sections 13952, 13954, 13955, 13956, 13957,
13957.5, 13957.7, 13957.9, 13959, 13963, 13965, 13971, 13972, and
13973 of the Government Code, and to amend Sections 1202.4 and 2085.5
of the Penal Code, relating to crime victims, and making an
appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 1140, Bonta. Crime victims.
(1) Existing law generally provides for the compensation of
victims and derivative victims of specified types of crimes by the
California Victim Compensation and Government Claims Board from the
Restitution Fund, a continuously appropriated fund, for specified
losses suffered as a result of those crimes. Existing law sets forth
eligibility requirements and limits on the amount of compensation the
board may award, and requires the application for compensation to be
verified under penalty of perjury. Existing law authorizes the board
to recognize an authorized representative of a victim or derivative
victim, including an attorney, the legal guardian, conservator,
immediate family member, parent, or relative caregiver, certified
victim assistance advocate, county social worker, or other persons,
as specified, to represent the victim or derivative victim pursuant
to rules adopted by the board.
This bill would expand the term "authorized representative" to
mean any person designated by law or any person who has written
authorization by the victim or derivative victim, excluding a medical
or mental health provider who has provided services to the victim or
derivative victim. The bill would require the initial application
materials sent by the board to an applicant to be written in English,
Spanish, Chinese, Vietnamese, Korean, East Armenian, Tagalog,
Russian, Arabic, Farsi, Hmong, Khmer, Punjabi, and Lao, and further
require, if the applicant selects one of these languages, the board
to send all subsequent communications in that language.
(2) Existing law requires the board to verify any information it
deems pertinent to an application for compensation, and requires the
victim and the applicant, if other than the victim, to cooperate with
the staff of the board or a victim and witness assistance center in
this task. Existing law authorizes the board to reject an application
solely on the basis that the victim or applicant failed to cooperate
as required.
This bill would instead require the applicant to cooperate in
verifying the application and would specify the circumstances under
which an applicant may be found to have failed to cooperate with the
board. The bill would prohibit the board from requiring an applicant
to submit documentation from the Internal Revenue Service, the
Franchise Tax Board, the State Board of Equalization, the Social
Security Administration, or the Employment Development Department to
determine eligibility for compensation, but would specifically
authorize the board to require and use documentation from these
entities to verify the amount of compensation for income or support
loss.
(3) Existing law requires every law enforcement and social service
agency in the state to provide to the board or to a contracted
victim center reports involving the crime, public offense, or
incident giving rise to a claim, for the specific purpose of the
submission of a claim or the determination of eligibility to submit a
claim.
This bill would instead require law enforcement and social service
agencies to provide a complete copy of the law enforcement report
and other supplemental reports and documents for the purpose of
determining the eligibility of a claim.
(4) Existing law requires a victim or derivative victim seeking
compensation to have sustained one or more specified physical or
emotional injuries, or pecuniary losses, as a direct result of the
crime. Existing law includes among those injuries emotional injury
that occurred due to a violation of provisions prohibiting child
abduction, as specified, if the deprivation of custody endured for 30
calendar days or more.
This bill would include among those injuries emotional injury that
occurred due to a violation of provisions prohibiting publishing or
disseminating via an electronic communication device personal
identifying information or a digital image of another person, without
consent of the other person, and for the purpose of causing that
other person injury or harassment, by a 3rd party. The bill would
also require, in the case of emotional injury caused by a child
abduction, only that criminal charges were filed.
The bill would also include among those injuries emotional injury
to a minor victim that incurred as a direct result of the
nonconsensual distribution of pictures or video of sexual conduct in
which the minor appears. The bill would limit compensation for this
type of injury to mental health counseling for the victim, and
prohibit compensation to a derivative victim in this regard.
(5) Existing law, until January 1, 2017, authorizes the board to
reimburse a crime victim or derivative victim for the amount of
outpatient violence peer counseling-related expenses incurred by the
victim or derivative victim from, among others, a service
organization for victims of violent crime, as specified, and defines
the term "violence peer counselor" as a provider of formal or
informal counseling services who is employed by a service
organization for victims of violent crime and meets specified
requirements, including, among others, that he or she possesses at
least 6 months of full-time equivalent experience in providing peer
support services.
This bill would specify that a service organization for victims of
violent crime is a nonprofit and charitable organization instead of
a nongovernmental organization. The bill would require that any peer
counseling services that fall under the scope of practice of certain
acts, including, among others, the Clinical Social Worker Practice
Act, be performed by a licensee or a registrant of the Board of
Behavioral Sciences or other appropriately licensed professional
unless in an exempt setting. The bill would change the definition of
"violence peer counselor" to a provider of supportive and
nonpsychotherapeutic peer counseling services.
(6) Existing law requires the board to deny an application if it
finds that the victim or derivative victim knowingly and willingly
participated in the commission of the crime that resulted in the
pecuniary loss for which compensation is being sought, except as
specified.
This bill would instead authorize an application for compensation
to be denied, in whole or in part, if the board finds that denial is
appropriate based upon consideration of specified factors in
determining the nature of the victim's or other applicant's
involvement in the events leading to the crime, or the involvement of
the person whose injury or death gives rise to the application, and
specified factors that may be considered to mitigate or overcome that
involvement.
(7) Existing law requires an application to be denied if the
victim failed to cooperate reasonably with law enforcement in
apprehending and convicting the person who committed the crime.
This bill would prohibit a victim of domestic violence from being
determined to have failed to cooperate based on his or her conduct
with law enforcement at the scene of the crime, and would prohibit
lack of cooperation from being found solely because a victim of
sexual assault, domestic violence, or human trafficking delayed
reporting the qualifying crime. The bill would also prohibit a claim
based on a sexual assault from being denied solely because a police
report was not made by the victim. The bill would require the board
to adopt guidelines that allow it to consider and approve
applications for assistance based on a sexual assault relying upon
evidence other than a police report to establish that a sexual
assault crime has occurred.
(8) Existing law prohibits any person who is convicted of a felony
from being granted compensation until he or she has been discharged
from probation or has been released from a correctional institution,
and has been discharged from parole, if any. Existing law prohibits
compensation from being granted to an applicant being held in a
correctional institution. Existing law prioritizes the applications
of victims who are not felons over those who are felons who have been
discharged from probation or have been released from a correctional
institution, and have been discharged from parole.
This bill would instead prohibit any person who is convicted of a
violent felony, as specified, from being granted compensation until
he or she is discharged from probation or released from a
correctional institution, and discharged from parole, or until he or
she is discharged from postrelease community supervision or mandatory
supervision. This bill would also prohibit compensation from being
granted to an applicant while he or she is required to be registered
as a sex offender. This bill would remove provisions prioritizing the
applications of victims who are not felons.
(9) Existing law authorizes derivative victims, including parents
and siblings, of a victim of a crime that directly led to the death
of the victim, to be reimbursed for the expense of their outpatient
mental health counseling.
This bill would include grandparents and grandchildren among those
derivative victims who are eligible to be reimbursed for their
mental health counseling. Because an application for reimbursement is
required to be submitted under penalty of perjury, this bill would
expand the definition of a crime and thus impose a state-mandated
local program.
(10) Existing law limits the reimbursement amount for outpatient
mental health counseling of a victim of a crime of unlawful
intercourse with a minor in which a person 21 years of age or older
engaged in an act of unlawful sexual intercourse with a minor who was
under 16 years of age to an amount not exceeding $5,000. Existing
law prohibits a derivative victim of that crime from being eligible
to receive reimbursement for mental health counseling expenses.
This bill would remove provisions limiting this reimbursement of a
victim of a crime of unlawful intercourse with a minor, as described
above, and remove provisions prohibiting a derivative victim of that
crime from being eligible to receive reimbursement for mental health
counseling expenses.
(11) Existing law authorizes the board to grant reimbursement for
pecuniary loss of the expense of nonmedical remedial care and
treatment rendered in accordance with a religious method of healing
recognized by state law if it determines it will best aid the person
seeking compensation.
This bill would remove this provision authorizing reimbursement
for this type of care or treatment.
(12) Existing law authorizes the board to grant for pecuniary loss
if it determines it will best aid the person seeking compensation
reimbursement for the expense of installing or increasing residential
security, if it receives verification by law enforcement that the
security measures are necessary for the personal safety of the
claimant or verification by a mental health treatment provider that
the security measures are necessary for the emotional well-being of
the claimant.
This bill would remove the provisions requiring the verification
by law enforcement or a mental health treatment provider described
above.
(13) Existing law also allows reimbursement for renovating or
retrofitting a victim's residence or vehicle for a victim permanently
disabled by the crime, as specified.
The bill would also allow reimbursement for the purchase of a
vehicle for a victim permanently disabled by the crime.
(14) Existing law authorizes the board to provide a cash payment
to a victim for expenses incurred in relocating, as specified, and
requires a victim of sexual assault or domestic violence, who
receives a relocation payment to, among other things, agree not to
allow the offender on the premises at any time. Existing law also
authorizes the board to provide reimbursement to any individual who
voluntarily, and without anticipation of personal gain, pays or
assumes the obligation to pay the reasonable costs to clean the scene
of the crime inside a residence in an amount not to exceed $1,000,
or a crime victim's funeral or burial expenses, up to $7,500, as
specified.
This bill would authorize the board to require a victim to repay
the relocation payment or reimbursement to the board if he or she
violates those terms. The bill would also require the board to be
named as the recipient of funds upon the expiration of a rental
agreement if a security deposit was required for a relocation.
This bill would also authorize the board to reimburse any
individual who voluntarily, and without anticipation of personal
gain, pays or assumes the obligation to pay the reasonable costs for
a trauma scene waste practitioner to clean the scene of the crime if
the crime occurred inside a vehicle. The bill would prohibit the
board from creating or complying with a regulation or policy that
mandates a lower maximum potential amount of an award for the
compensation of a crime victim's funeral or burial expenses than
prescribed by statute.
(15) Existing law authorizes the board to pay attorney's fees for
legal services rendered to an applicant, in an amount equal to 10% of
the amount of the award, or $500, whichever is less, for each victim
and each derivative victim.
This bill would authorize the board to request that an attorney
provide verification, and to contact an applicant to verify, that
legal services were provided.
(16) Existing law requires the board to grant a hearing to an
applicant who contests a staff recommendation to deny compensation.
Existing law requires the board to schedule the hearing in as
convenient a location as possible if the applicant's presence is
required. Existing law authorizes the board to grant no more than one
request for reconsideration with respect to any one decision on an
application for compensation.
This bill would also authorize the hearing to be conducted by
telephone. The bill would also prohibit evidence submitted after the
board has denied a request for reconsideration from being considered
unless the board chooses to reconsider its decision on its own
motion.
(17) Existing law provides that the board is entitled to a lien on
any judgment, award, or settlement in favor of or on behalf of the
recipient for losses suffered as a direct result of the crime that
was the basis for receipt of compensation in the amount of the
compensation granted by the board. If a claim is filed within one
year of the date of recovery, the board is required to pay 25% of the
amount of the recovery that is subject to a lien on the judgment,
award, or settlement, to the recipient responsible for recovery
thereof from the perpetrator of the crime, provided that the total
amount of the lien is recovered and the remaining 75% is deposited in
the Restitution Fund, a continuously appropriated fund.
This bill would instead require the board to pay 25% of the amount
of the recovery that is subject to a lien on the judgment, award, or
settlement, to the recipient responsible for recovery only if the
recipient notified the board of the action prior to receiving any
recovery with the remainder being deposited into the Restitution
Fund. By increasing deposits to be made to a continuously
appropriated fund, this bill would make an appropriation.
(18) Under existing law, a person who has been overpaid pursuant
to these provisions governing victim compensation is liable for that
amount, except as specified.
This bill would require that all actions to collect overpayments
be commenced within 7 years of the date of the overpayment, except as
specified. The bill would also authorize any recipient of an
overpayment to contest the related staff recommendation.
(19) Existing law authorizes a private citizen, his or her
surviving spouse, his or her surviving children, or a person
dependent upon the citizen for his or her principal support to file a
claim for indemnification, as specified, if the private citizen
incurred personal injury, death, or damage to his or her property in
preventing the commission of a crime, in apprehending a criminal, or
rescuing a person in immediate danger of injury or death as a result
of fire, drowning, or other catastrophe. Existing law defines
"private citizen" for this and related provisions as a natural person
except as specified.
This bill would also authorize any person who is legally liable
for the citizen's pecuniary losses to file a claim for
indemnification. This bill would revise the definition of "private
citizen" to mean a person, except as specified.
(20) Existing law provides that if a parolee or a prisoner owes a
specified order of restitution, any moneys owing are collected from
the parolee or prisoner, as specified, and transferred to the
California Victim Compensation and Government Claims Board for direct
payment to the victim. Existing law requires that the victim be paid
within 60 days from the date the restitution revenues are received,
however, the restitution payment need not be forwarded to that victim
unless it is $50 or more, or until 180 days from the date the first
payment is received, whichever occurs sooner.
This bill would provide instead that the payment need not be
forwarded to the victim until it is $25 or more, or the victim
requests payment of the lesser amount.
(21) Existing law requires board hearings to be informal and
authorizes these hearings to not be conducted according to the
technical rules relating to evidence and witnesses.
This bill would require the board to allow a service animal to
accompany and support a witness while testifying at a board hearing.
(22) Existing law requires the court to order a person who is
convicted of a crime to pay restitution to the victim or victims for
the full amount of economic loss, unless the court finds compelling
and extraordinary reasons for not doing so and states them on the
record. Existing law provides the defendant the right to a hearing
before a judge to dispute the determination of the amount of
restitution and authorizes the court to modify the amount of
restitution.
This bill would authorize a victim at a restitution or
modification hearing to testify by live, 2-way audio and video
transmission, if that type of transmission is available at the court.
(23) The bill would make other conforming and nonsubstantive
changes.
(24) By expanding the authorizations for use of moneys in the
Restitution Fund, a continuously appropriated fund, this bill would
make an appropriation.
(25) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 13952 of the Government Code is amended to
read:
13952. (a) An application for compensation shall be filed with
the board in the manner determined by the board.
(b) (1) The application for compensation shall be verified under
penalty of perjury by the individual who is seeking compensation, who
may be the victim or derivative victim, or an individual seeking
reimbursement for burial, funeral, or crime scene cleanup expenses
pursuant to subdivision (a) of Section 13957. If the individual
seeking compensation is a minor or is incompetent, the application
shall be verified under penalty of perjury or on information and
belief by the parent with legal custody, guardian, conservator, or
relative caregiver of the victim or derivative victim for whom the
application is made. However, if a minor seeks compensation only for
expenses for medical, medical-related, psychiatric, psychological, or
other mental health counseling-related services and the minor is
authorized by statute to consent to those services, the minor may
verify the application for compensation under penalty of perjury.
(2) For purposes of this subdivision, "relative caregiver" means a
relative as defined in paragraph (2) of subdivision (h) of Section
6550 of the Family Code, who assumed primary responsibility for the
child while the child was in the relative's care and control, and who
is not a biological or adoptive parent.
(c) (1) The board may require submission of additional information
supporting the application that is reasonably necessary to verify
the application and determine eligibility for compensation.
(2) The staff of the board shall determine whether an application
for compensation contains all of the information required by the
board. If the staff determines that an application does not contain
all of the required information, the staff shall communicate that
determination to the applicant with a brief statement of the
additional information required. The applicant, within 30 calendar
days of being notified that the application is incomplete, may either
supply the additional information or appeal the staff's
determination to the board, which shall review the application to
determine whether it is complete.
(3) The board shall not require an applicant to submit
documentation from the Internal Revenue Service, the Franchise Tax
Board, the State Board of Equalization, the Social Security
Administration, or the Employment Development Department to determine
eligibility for compensation. The board may require and use
documentation from these entities to verify the amount of
compensation for income or support loss.
(d) (1) The board may recognize an authorized representative of
the victim or derivative victim, who shall represent the victim or
derivative victim pursuant to rules adopted by the board.
(2) For purposes of this subdivision, "authorized representative"
means any of the following:
(A) Any person who has written authorization by the victim or
derivative victim. However, a medical or mental health provider, or
agent of the medical or mental health provider, who has provided
services to the victim or derivative victim shall not be allowed to
be an authorized representative.
(B) Any person designated by law including, but not limited to, a
legal guardian, conservator, or social worker.
(3) Except for attorney's fees awarded under this chapter, no
authorized representative described in paragraph (2) shall charge,
demand, receive, or collect any amount for services rendered under
this subdivision.
(4) The initial application materials sent by the board to an
applicant shall be written in English, Spanish, Chinese, Vietnamese,
Korean, East Armenian, Tagalog, Russian, Arabic, Farsi, Hmong, Khmer,
Punjabi, and Lao. If the applicant selects one of the languages
listed in this subdivision, the board shall send all subsequent
communications in that language.
SEC. 2. Section 13954 of the Government Code is amended to read:
13954. (a) The board shall verify with hospitals, physicians, law
enforcement officials, or other interested parties involved, the
treatment of the victim or derivative victim, circumstances of the
crime, amounts paid or received by or for the victim or derivative
victim, and any other pertinent information deemed necessary by the
board. Verification information shall be returned to the board within
10 business days after a request for verification has been made by
the board. Verification information shall be provided at no cost to
the applicant, the board, or victim centers. When requesting
verification information, the board shall certify that a signed
authorization by the applicant is retained in the applicant's file
and that this certification constitutes actual authorization for the
release of information, notwithstanding any other provision of law.
If requested by a physician or mental health provider, the board
shall provide a copy of the signed authorization for the release of
information.
(b) (1) The applicant shall cooperate with the staff of the board
or the victim center in the verification of the information contained
in the application. Failure to cooperate shall be reported to the
board, which, in its discretion, may reject the application solely on
this ground.
(2) An applicant may be found to have failed to cooperate with the
board if any of the following occur:
(A) The applicant has information, or there is information that he
or she may reasonably obtain, that is needed to process the
application or supplemental claim, and the applicant failed to
provide the information after being requested to do so by the board.
The board shall take the applicant's economic, psychosocial, and
postcrime traumatic circumstances into consideration, and shall not
unreasonably reject an application solely for failure to provide
information.
(B) The applicant provided, or caused another to provide, false
information regarding the application or supplemental claim.
(C) The applicant refused to apply for other benefits potentially
available to him or her from other sources besides the board
including, but not limited to, worker's compensation, state
disability insurance, social security benefits, and unemployment
insurance.
(D) The applicant threatened violence or bodily harm to a member
of the board or staff.
(c) The board may contract with victim centers to provide
verification of applications processed by the centers pursuant to
conditions stated in subdivision (a). The board and its staff shall
cooperate with the Office of Criminal Justice Planning and victim
centers in conducting training sessions for center personnel and
shall cooperate in the development of standardized verification
procedures to be used by the victim centers in the state. The board
and its staff shall cooperate with victim centers in disseminating
standardized board policies and findings as they relate to the
centers.
(d) (1) Notwithstanding Section 827 of the Welfare and
Institutions Code or any other provision of law, every law
enforcement and social service agency in the state shall provide to
the board or to victim centers that have contracts with the board
pursuant to subdivision (c), upon request, a complete copy of the law
enforcement report and any supplemental reports involving the crime
or incident giving rise to a claim, a copy of a petition filed in a
juvenile court proceeding, reports of the probation officer, and any
other document made available to the probation officer or to the
judge, referee, or other hearing officer, for the specific purpose of
determining the eligibility of a claim filed pursuant to this
chapter.
(2) The board and victim centers receiving records pursuant to
this subdivision may not disclose a document that personally
identifies a minor to anyone other than the minor who is so
identified, his or her custodial parent or guardian, the attorneys
for those parties, and any other persons that may be designated by
court order. Any information received pursuant to this section shall
be received in confidence for the limited purpose for which it was
provided and may not be further disseminated. A violation of this
subdivision is a misdemeanor punishable by a fine not to exceed five
hundred dollars ($500).
(3) The law enforcement agency supplying information pursuant to
this section may withhold the names of witnesses or informants from
the board, if the release of those names would be detrimental to the
parties or to an investigation in progress.
(e) Notwithstanding any other provision of law, every state
agency, upon receipt of a copy of a release signed in accordance with
the Information Practices Act of 1977 (Chapter 1 (commencing with
Section 1798) of Title 1.8 of Part 4 of Division 3 of the Civil Code)
by the applicant or other authorized representative, shall provide
to the board or victim center the information necessary to complete
the verification of an application filed pursuant to this chapter.
(f) The Department of Justice shall furnish, upon application of
the board, all information necessary to verify the eligibility of any
applicant for benefits pursuant to subdivision (c) of Section 13956,
to recover any restitution fine or order obligations that are owed
to the Restitution Fund or to any victim of crime, or to evaluate the
status of any criminal disposition.
(g) A privilege is not waived under Section 912 of the Evidence
Code by an applicant consenting to disclosure of an otherwise
privileged communication if that disclosure is deemed necessary by
the board for verification of the application.
(h) Any verification conducted pursuant to this section shall be
subject to the time limits specified in Section 13958.
(i) Any county social worker acting as the applicant for a child
victim or elder abuse victim shall not be required to provide
personal identification, including, but not limited to, the applicant'
s date of birth or social security number. County social workers
acting in this capacity shall not be required to sign a promise of
repayment to the board.
SEC. 3. Section 13955 of the Government Code is amended to read:
13955. Except as provided in Section 13956, a person shall be
eligible for compensation when all of the following requirements are
met:
(a) The person for whom compensation is being sought is any of the
following:
(1) A victim.
(2) A derivative victim.
(3) (A) A person who is entitled to reimbursement for funeral,
burial, or crime scene cleanup expenses pursuant to paragraph (9) or
(10) of subdivision (a) of Section 13957.
(B) This paragraph applies without respect to any felon status of
the victim.
(b) Either of the following conditions is met:
(1) The crime occurred in California. This paragraph shall apply
only during those time periods during which the board determines that
federal funds are available to the state for the compensation of
victims of crime.
(2) Whether or not the crime occurred in California, the victim
was any of the following:
(A) A resident of California.
(B) A member of the military stationed in California.
(C) A family member living with a member of the military stationed
in California.
(c) If compensation is being sought for a derivative victim, the
derivative victim is a resident of California, or any other state,
who is any of the following:
(1) At the time of the crime was the parent, grandparent, sibling,
spouse, child, or grandchild of the victim.
(2) At the time of the crime was living in the household of the
victim.
(3) At the time of the crime was a person who had previously lived
in the household of the victim for a period of not less than two
years in a relationship substantially similar to a relationship
listed in paragraph (1).
(4) Is another family member of the victim, including, but not
limited to, the victim's fiancé or fiancée, and who witnessed the
crime.
(5) Is the primary caretaker of a minor victim, but was not the
primary caretaker at the time of the crime.
(d) The application is timely pursuant to Section 13953.
(e) (1) Except as provided in paragraph (2), the injury or death
was a direct result of a crime.
(2) Notwithstanding paragraph (1), no act involving the operation
of a motor vehicle, aircraft, or water vehicle that results in injury
or death constitutes a crime for the purposes of this chapter,
except when the injury or death from such an act was any of the
following:
(A) Intentionally inflicted through the use of a motor vehicle,
aircraft, or water vehicle.
(B) Caused by a driver who fails to stop at the scene of an
accident in violation of Section 20001 of the Vehicle Code.
(C) Caused by a person who is under the influence of any alcoholic
beverage or drug.
(D) Caused by a driver of a motor vehicle in the immediate act of
fleeing the scene of a crime in which he or she knowingly and
willingly participated.
(E) Caused by a person who commits vehicular manslaughter in
violation of subdivision (b) of Section 191.5, subdivision (c) of
Section 192, or Section 192.5 of the Penal Code.
(F) Caused by any party where a peace officer is operating a motor
vehicle in an effort to apprehend a suspect, and the suspect is
evading, fleeing, or otherwise attempting to elude the peace officer.
(f) As a direct result of the crime, the victim or derivative
victim sustained one or more of the following:
(1) Physical injury. The board may presume a child who has been
the witness of a crime of domestic violence has sustained physical
injury. A child who resides in a home where a crime or crimes of
domestic violence have occurred may be presumed by the board to have
sustained physical injury, regardless of whether the child has
witnessed the crime.
(2) Emotional injury and a threat of physical injury.
(3) Emotional injury, where the crime was a violation of any of
the following provisions:
(A) Section 236.1, 261, 262, 271, 273a, 273d, 285, 286, 288, 288a,
288.5, 289, or 653.2, or subdivision (b) or (c) of Section 311.4, of
the Penal Code.
(B) Section 270 of the Penal Code, where the emotional injury was
a result of conduct other than a failure to pay child support, and
criminal charges were filed.
(C) Section 261.5 of the Penal Code, and criminal charges were
filed.
(D) Section 278 or 278.5 of the Penal Code, and criminal charges
were filed. For purposes of this paragraph, the child, and not the
nonoffending parent or other caretaker, shall be deemed the victim.
(4) Injury to, or the death of, a guide, signal, or service dog,
as defined in Section 54.1 of the Civil Code, as a result of a
violation of Section 600.2 or 600.5 of the Penal Code.
(5) Emotional injury to a victim who is a minor incurred as a
direct result of the nonconsensual distribution of pictures or video
of sexual conduct in which the minor appears.
(g) The injury or death has resulted or may result in pecuniary
loss within the scope of compensation pursuant to Sections 13957 to
13957.7, inclusive.
SEC. 4. Section 13956 of the Government Code is amended to read:
13956. Notwithstanding Section 13955, a person shall not be
eligible for compensation under the following conditions:
(a) An application may be denied, in whole or in part, if the
board finds that denial is appropriate because of the nature of the
victim's or other applicant's involvement in the events leading to
the crime, or the involvement of the person whose injury or death
gives rise to the application.
(1) Factors that may be considered in determining whether the
victim or derivative victim was involved in the events leading to the
qualifying crime include, but are not limited to:
(A) The victim or derivative victim initiated the qualifying
crime, or provoked or aggravated the suspect into initiating the
qualifying crime.
(B) The qualifying crime was a reasonably foreseeable consequence
of the conduct of the victim or derivative victim.
(C) The victim or derivative victim was committing a crime that
could be charged as a felony and reasonably lead to him or her being
victimized. However, committing a crime shall not be considered
involvement if the victim's injury or death occurred as a direct
result of a crime committed in violation of Section 261, 262, or
273.5 of, or for a crime of unlawful sexual intercourse with a minor
in violation of subdivision (d) of Section 261.5 of, the Penal Code.
(2) If the victim is determined to have been involved in the
events leading to the qualifying crime, factors that may be
considered to mitigate or overcome involvement include, but are not
limited to:
(A) The victim's injuries were significantly more serious than
reasonably could have been expected based on the victim's level of
involvement.
(B) A third party interfered in a manner not reasonably
foreseeable by the victim or derivative victim.
(C) The board shall consider the victim's age, physical condition,
and psychological state, as well as any compelling health and safety
concerns, in determining whether the application should be denied
pursuant to this section. The application of a derivative victim of
domestic violence under 18 years of age or derivative victim of
trafficking under 18 years of age shall not be denied on the basis of
the denial of the victim's application under this subdivision.
(b) (1) An application shall be denied if the board finds that the
victim or, if compensation is sought by, or on behalf of, a
derivative victim, either the victim or derivative victim failed to
cooperate reasonably with a law enforcement agency in the
apprehension and conviction of a criminal committing the crime. In
determining whether cooperation has been reasonable, the board shall
consider the victim's or derivative victim's age, physical condition,
and psychological state, cultural or linguistic barriers, any
compelling health and safety concerns, including, but not limited to,
a reasonable fear of retaliation or harm that would jeopardize the
well-being of the victim or the victim's family or the derivative
victim or the derivative victim's family, and giving due
consideration to the degree of cooperation of which the victim or
derivative victim is capable in light of the presence of any of these
factors. A victim of domestic violence shall not be determined to
have failed to cooperate based on his or her conduct with law
enforcement at the scene of the crime. Lack of cooperation shall also
not be found solely because a victim of sexual assault, domestic
violence, or human trafficking delayed reporting the qualifying
crime.
(2) An application for a claim based on domestic violence shall
not be denied solely because a police report was not made by the
victim. The board shall adopt guidelines that allow the board to
consider and approve applications for assistance based on domestic
violence relying upon evidence other than a police report to
establish that a domestic violence crime has occurred. Factors
evidencing that a domestic violence crime has occurred may include,
but are not limited to, medical records documenting injuries
consistent with allegations of domestic violence, mental health
records, or that the victim has obtained a permanent restraining
order.
(3) An application for a claim based on a sexual assault shall not
be denied solely because a police report was not made by the victim.
The board shall adopt guidelines that allow it to consider and
approve applications for assistance based on a sexual assault relying
upon evidence other than a police report to establish that a sexual
assault crime has occurred. Factors evidencing that a sexual assault
crime has occurred may include, but are not limited to, medical
records documenting injuries consistent with allegations of sexual
assault, mental health records, or that the victim received a sexual
assault examination.
(4) An application for a claim based on human trafficking as
defined in Section 236.1 of the Penal Code shall not be denied solely
because no police report was made by the victim. The board shall
adopt guidelines that allow the board to consider and approve
applications for assistance based on human trafficking relying upon
evidence other than a police report to establish that a human
trafficking crime as defined in Section 236.1 of the Penal Code has
occurred. That evidence may include any reliable corroborating
information approved by the board, including, but not limited to, the
following:
(A) A Law Enforcement Agency Endorsement issued pursuant to
Section 236.2 of the Penal Code.
(B) A human trafficking caseworker, as identified in Section
1038.2 of the Evidence Code, has attested by affidavit that the
individual was a victim of human trafficking.
(5) (A) An application for a claim by a military personnel victim
based on a sexual assault by another military personnel shall not be
denied solely because it was not reported to a superior officer or
law enforcement at the time of the crime.
(B) Factors that the board shall consider for purposes of
determining if a claim qualifies for compensation include, but are
not limited to, the evidence of the following:
(i) Restricted or unrestricted reports to a military victim
advocate, sexual assault response coordinator, chaplain, attorney, or
other military personnel.
(ii) Medical or physical evidence consistent with sexual assault.
(iii) A written or oral report from military law enforcement or a
civilian law enforcement agency concluding that a sexual assault
crime was committed against the victim.
(iv) A letter or other written statement from a sexual assault
counselor, as defined in Section 1035.2 of the Evidence Code,
licensed therapist, or mental health counselor, stating that the
victim is seeking services related to the allegation of sexual
assault.
(v) A credible witness to whom the victim disclosed the details
that a sexual assault crime occurred.
(vi) A restraining order from a military or civilian court against
the perpetrator of the sexual assault.
(vii) Other behavior by the victim consistent with sexual assault.
(C) For purposes of this subdivision, the sexual assault at issue
shall have occurred during military service, including deployment.
(D) For purposes of this subdivision, the sexual assault may have
been committed off base.
(E) For purposes of this subdivision, a "perpetrator" means an
individual who is any of the following at the time of the sexual
assault:
(i) An active duty military personnel from the United States Army,
Navy, Marine Corps, Air Force, or Coast Guard.
(ii) A civilian employee of any military branch specified in
clause (i), military base, or military deployment.
(iii) A contractor or agent of a private military or private
security company.
(iv) A member of the California National Guard.
(F) For purposes of this subdivision, "sexual assault" means an
offense included in Section 261, 262, 264.1, 286, 288a, or 289 of the
Penal Code, as of the date the act that added this paragraph was
enacted.
(c) (1) Notwithstanding Section 13955, no person who is convicted
of a violent felony listed in subdivision (c) of Section 667.5 of the
Penal Code may be granted compensation until that person has been
discharged from probation or has been released from a correctional
institution and has been discharged from parole, or has been
discharged from postrelease community supervision or mandatory
supervision, if any, for that violent crime. In no case shall
compensation be granted to an applicant pursuant to this chapter
during any period of time the applicant is held in a correctional
institution, or while an applicant is required to register as a sex
offender pursuant to Section 290 of the Penal Code.
(2) A person who has been convicted of a violent felony listed in
subdivision (c) of Section 667.5 of the Penal Code may apply for
compensation pursuant to this chapter at any time, but the award of
that compensation may not be considered until the applicant meets the
requirements for compensation set forth in paragraph (1).
SEC. 5. Section 13957 of the Government Code is amended to read:
13957. (a) The board may grant for pecuniary loss, when the board
determines it will best aid the person seeking compensation, as
follows:
(1) Subject to the limitations set forth in Section 13957.2,
reimburse the amount of medical or medical-related expenses incurred
by the victim for services that were provided by a licensed medical
provider, including, but not limited to, eyeglasses, hearing aids,
dentures, or any prosthetic device taken, lost, or destroyed during
the commission of the crime, or the use of which became necessary as
a direct result of the crime.
(2) Subject to the limitations set forth in Section 13957.2,
reimburse the amount of outpatient psychiatric, psychological, or
other mental health counseling-related expenses incurred by the
victim or derivative victim, including peer counseling services
provided by a rape crisis center as defined by Section 13837 of the
Penal Code, and including family psychiatric, psychological, or
mental health counseling for the successful treatment of the victim
provided to family members of the victim in the presence of the
victim, whether or not the family member relationship existed at the
time of the crime, that became necessary as a direct result of the
crime, subject to the following conditions:
(A) The following persons may be reimbursed for the expense of
their outpatient mental health counseling in an amount not to exceed
ten thousand dollars ($10,000):
(i) A victim.
(ii) A derivative victim who is the surviving parent, grandparent,
sibling, child, grandchild, spouse, fiancé, or fiancée of a victim
of a crime that directly resulted in the death of the victim.
(iii) A derivative victim, as described in paragraphs (1) to (4),
inclusive, of subdivision (c) of Section 13955, who is the primary
caretaker of a minor victim whose claim is not denied or reduced
pursuant to Section 13956 in a total amount not to exceed ten
thousand dollars ($10,000) for not more than two derivative victims.
(B) The following persons may be reimbursed for the expense of
their outpatient mental health counseling in an amount not to exceed
five thousand dollars ($5,000):
(i) A derivative victim not eligible for reimbursement pursuant to
subparagraph (A), provided that mental health counseling of a
derivative victim described in paragraph (5) of subdivision (c) of
Section 13955, shall be reimbursed only if that counseling is
necessary for the treatment of the victim.
(ii) A minor who suffers emotional injury as a direct result of
witnessing a violent crime and who is not eligible for reimbursement
of the costs of outpatient mental health counseling under any other
provision of this chapter. To be eligible for reimbursement under
this clause, the minor must have been in close proximity to the
victim when he or she witnessed the crime.
(C) The board may reimburse a victim or derivative victim for
outpatient mental health counseling in excess of that authorized by
subparagraph (A) or (B) or for inpatient psychiatric, psychological,
or other mental health counseling if the claim is based on dire or
exceptional circumstances that require more extensive treatment, as
approved by the board.
(D) Expenses for psychiatric, psychological, or other mental
health counseling-related services may be reimbursed only if the
services were provided by either of the following individuals:
(i) A person who would have been authorized to provide those
services pursuant to former Article 1 (commencing with Section 13959)
as it read on January 1, 2002.
(ii) A person who is licensed in California to provide those
services, or who is properly supervised by a person who is licensed
in California to provide those services, subject to the board's
approval and subject to the limitations and restrictions the board
may impose.
(3) Subject to the limitations set forth in Section 13957.5,
authorize compensation equal to the loss of income or loss of
support, or both, that a victim or derivative victim incurs as a
direct result of the victim's or derivative victim's injury or the
victim's death. If the victim or derivative victim requests that the
board give priority to reimbursement of loss of income or support,
the board may not pay medical expenses, or mental health counseling
expenses, except upon the request of the victim or derivative victim
or after determining that payment of these expenses will not decrease
the funds available for payment of loss of income or support.
(4) Authorize a cash payment to or on behalf of the victim for job
retraining or similar employment-oriented services.
(5) Reimburse the expense of installing or increasing residential
security, not to exceed one thousand dollars ($1,000). Installing or
increasing residential security may include, but need not be limited
to, both of the following:
(A) Home security device or system.
(B) Replacing or increasing the number of locks.
(6) Reimburse the expense of renovating or retrofitting a victim's
residence, or the expense of modifying or purchasing a vehicle, to
make the residence or the vehicle accessible or operational by a
victim upon verification that the expense is medically necessary for
a victim who is permanently disabled as a direct result of the crime,
whether the disability is partial or total.
(7) (A) Authorize a cash payment or reimbursement not to exceed
two thousand dollars ($2,000) to a victim for expenses incurred in
relocating, if the expenses are determined by law enforcement to be
necessary for the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional well-being of
the victim.
(B) The cash payment or reimbursement made under this paragraph
shall only be awarded to one claimant per crime giving rise to the
relocation. The board may authorize more than one relocation per
crime if necessary for the personal safety or emotional well-being of
the claimant. However, the total cash payment or reimbursement for
all relocations due to the same crime shall not exceed two thousand
dollars ($2,000). For purposes of this paragraph a claimant is the
crime victim, or, if the victim is deceased, a person who resided
with the deceased at the time of the crime.
(C) The board may, under compelling circumstances, award a second
cash payment or reimbursement to a victim for another crime if both
of the following conditions are met:
(i) The crime occurs more than three years from the date of the
crime giving rise to the initial relocation cash payment or
reimbursement.
(ii) The crime does not involve the same offender.
(D) When a relocation payment or reimbursement is provided to a
victim of sexual assault or domestic violence and the identity of the
offender is known to the victim, the victim shall agree not to
inform the offender of the location of the victim's new residence and
not to allow the offender on the premises at any time, or shall
agree to seek a restraining order against the offender. A victim may
be required to repay the relocation payment or reimbursement to the
board if he or she violates the terms set forth in this paragraph.
(E) Notwithstanding subparagraphs (A) and (B), the board may
increase the cash payment or reimbursement for expenses incurred in
relocating to an amount greater than two thousand dollars ($2,000),
if the board finds this amount is appropriate due to the unusual,
dire, or exceptional circumstances of a particular claim.
(F) If a security deposit is required for relocation, the board
shall be named as the recipient and receive the funds upon expiration
of the victim's rental agreement.
(8) When a victim dies as a result of a crime, the board may
reimburse any individual who voluntarily, and without anticipation of
personal gain, pays or assumes the obligation to pay any of the
following expenses:
(A) The medical expenses incurred as a direct result of the crime
in an amount not to exceed the rates or limitations established by
the board.
(B) The funeral and burial expenses incurred as a direct result of
the crime, not to exceed seven thousand five hundred dollars
($7,500). The board shall not create or comply with a regulation or
policy that mandates a lower maximum potential amount of an award
pursuant to this subparagraph for less than seven thousand five
hundred dollars ($7,500).
(9) When the crime occurs in a residence or inside a vehicle, the
board may reimburse any individual who voluntarily, and without
anticipation of personal gain, pays or assumes the obligation to pay
the reasonable costs to clean the scene of the crime in an amount not
to exceed one thousand dollars ($1,000). Services reimbursed
pursuant to this subdivision shall be performed by persons registered
with the State Department of Public Health as trauma scene waste
practitioners in accordance with Chapter 9.5 (commencing with Section
118321) of Part 14 of Division 104 of the Health and Safety Code.
(10) When the crime is a violation of Section 600.2 or 600.5 of
the Penal Code, the board may reimburse the expense of veterinary
services, replacement costs, or other reasonable expenses, as ordered
by the court pursuant to Section 600.2 or 600.5 of the Penal Code,
in an amount not to exceed ten thousand dollars ($10,000).
(11) An award of compensation pursuant to paragraph (5) of
subdivision (f) of Section 13955 shall be limited to compensation to
provide mental health counseling and shall not limit the eligibility
of a victim for an award that he or she may be otherwise entitled to
receive under this part. A derivative victim shall not be eligible
for compensation under this provision.
(b) The total award to or on behalf of each victim or derivative
victim may not exceed thirty-five thousand dollars ($35,000), except
that this award may be increased to an amount not exceeding seventy
thousand dollars ($70,000) if federal funds for that increase are
available.
SEC. 6. Section 13957.5 of the Government Code is amended to read:
13957.5. (a) In authorizing compensation for loss of income and
support pursuant to paragraph (3) of subdivision (a) of Section
13957, the board may take any of the following actions:
(1) Compensate the victim for loss of income directly resulting
from the injury, except that loss of income may not be paid by the
board for more than five years following the crime, unless the victim
is disabled as defined in Section 416(i) of Title 42 of the United
States Code, as a direct result of the injury.
(2) Compensate an adult derivative victim for loss of income,
subject to all of the following:
(A) The derivative victim is the parent or legal guardian of a
victim, who at the time of the crime was under the age of 18 years
and is hospitalized as a direct result of the crime.
(B) The minor victim's treating physician certifies in writing
that the presence of the victim's parent or legal guardian at the
hospital is necessary for the treatment of the victim.
(C) Reimbursement for loss of income under this paragraph may not
exceed the total value of the income that would have been earned by
the adult derivative victim during a 30-day period.
(3) Compensate an adult derivative victim for loss of income,
subject to all of the following:
(A) The derivative victim is the parent or legal guardian of a
victim who at the time of the crime was under the age of 18 years.
(B) The victim died as a direct result of the crime.
(C) The board shall pay for loss of income under this paragraph
for not more than 30 calendar days from the date of the victim's
death.
(4) Compensate a derivative victim who was legally dependent on
the victim at the time of the crime for the loss of support incurred
by that person as a direct result of the crime, subject to both of
the following:
(A) Loss of support shall be paid by the board for income lost by
an adult for a period up to, but not more than, five years following
the date of the crime.
(B) Loss of support shall not be paid by the board on behalf of a
minor for a period beyond the child's attaining the age of 18 years.
(b) The total amount payable to all derivative victims pursuant to
this section as the result of one crime may not exceed seventy
thousand dollars ($70,000).
SEC. 7. Section 13957.7 of the Government Code is amended to read:
13957.7. (a) No reimbursement may be made for any expense that is
submitted more than three years after it is incurred by the victim
or derivative victim. However, reimbursement may be made for an
expense submitted more than three years after the date it is incurred
if the victim or derivative victim has affirmed the debt and is
liable for the debt at the time the expense is submitted for
reimbursement, or has paid the expense as a direct result of a crime
for which a timely application has been filed or has paid the expense
as a direct result of a crime for which an application has been
filed and approved.
(b) Compensation made pursuant to this chapter may be on a
one-time or periodic basis. If periodic, the board may increase,
reduce, or terminate the amount of compensation according to the
applicant's need, subject to the maximum limits provided in this
chapter.
(c) (1) The board may authorize direct payment to a provider of
services that are reimbursable pursuant to this chapter and may make
those payments prior to verification. However, the board may not,
without good cause, authorize a direct payment to a provider over the
objection of the victim or derivative victim.
(2) Reimbursement on the initial claim for any psychological,
psychiatric, or mental health counseling services shall, if the
application has been approved, be paid by the board within 90 days of
the date of receipt of the claim for payment, with subsequent
payments to be made to the provider within one month of the receipt
of a claim for payment.
(d) Payments for peer counseling services provided by a rape
crisis center may not exceed fifteen dollars ($15) for each hour of
services provided. Those services shall be limited to in-person
counseling for a period not to exceed 10 weeks plus one series of
facilitated support group counseling sessions.
(e) The board shall develop procedures to ensure that a victim is
using compensation for job retraining or relocation only for its
intended purposes. The procedures may include, but need not be
limited to, requiring copies of receipts, agreements, or other
documents as requested, or developing a method for direct payment.
(f) Compensation granted pursuant to this chapter shall not
disqualify an otherwise eligible applicant from participation in any
other public assistance program.
(g) The board shall pay attorney's fees representing the
reasonable value of legal services rendered to the applicant, in an
amount equal to 10 percent of the amount of the award, or five
hundred dollars ($500), whichever is less, for each victim and each
derivative victim. The board may request that an attorney provide
verification of legal services provided to an applicant and the board
may contact an applicant to verify that legal services were
provided. An attorney receiving fees from another source may waive
the right to receive fees under this subdivision. Payments under this
subdivision shall be in addition to any amount authorized or ordered
under subdivision (b) of Section 13960. An attorney may not charge,
demand, receive, or collect any amount for services rendered in
connection with any proceedings under this chapter except as awarded
under this chapter.
(h) A private nonprofit agency shall be reimbursed for its
services at the level of the normal and customary fee charged by the
private nonprofit agency to clients with adequate means of payment
for its services, except that this reimbursement may not exceed the
maximum reimbursement rates set by the board and may be made only to
the extent that the victim otherwise qualifies for compensation under
this chapter and that other reimbursement or direct subsidies are
not available to serve the victim.
SEC. 8. Section 13957.9 of the Government Code is amended to read:
13957.9. (a) In addition to the authorization provided in
Section 13957 and subject to the limitations set forth in Section
13957.2, the board may grant for pecuniary loss, when the board
determines it will best aid the person seeking compensation,
reimbursement of the amount of outpatient psychiatric, psychological,
or other mental health counseling-related expenses incurred by the
victim or derivative victim, including peer counseling services
provided by violence peer counseling services provided by a service
organization for victims of violent crime, and including family
psychiatric, psychological, or mental health counseling for the
successful treatment of the victim provided to family members of the
victim in the presence of the victim, whether or not the family
member relationship existed at the time of the crime, that became
necessary as a direct result of the crime, subject to the following
conditions:
(1) The following persons may be reimbursed for the expense of
their outpatient mental health counseling in an amount not to exceed
ten thousand dollars ($10,000):
(A) A victim.
(B) A derivative victim who is the surviving parent, sibling,
child, spouse, fiancé, or fiancée of a victim of a crime that
directly resulted in the death of the victim.
(C) A derivative victim, as described in paragraphs (1) to (4),
inclusive, of subdivision (c) of Section 13955, who is the primary
caretaker of a minor victim whose claim is not denied or reduced
pursuant to Section 13956 in a total amount not to exceed ten
thousand dollars ($10,000) for not more than two derivative victims.
(2) The following persons may be reimbursed for the expense of
their outpatient mental health counseling in an amount not to exceed
five thousand dollars ($5,000):
(A) A derivative victim not eligible for reimbursement pursuant to
paragraph (1), provided that mental health counseling of a
derivative victim described in paragraph (5) of subdivision (c) of
Section 13955, shall be reimbursed only if that counseling is
necessary for the treatment of the victim.
(B) A victim of a crime of unlawful sexual intercourse with a
minor committed in violation of subdivision (d) of Section 261.5 of
the Penal Code. A derivative victim of a crime committed in violation
of subdivision (d) of Section 261.5 of the Penal Code shall not be
eligible for reimbursement of mental health counseling expenses.
(C) A minor who suffers emotional injury as a direct result of
witnessing a violent crime and who is not eligible for reimbursement
of the costs of outpatient mental health counseling under any other
provision of this chapter. To be eligible for reimbursement under
this clause, the minor must have been in close proximity to the
victim when he or she witnessed the crime.
(3) The board may reimburse a victim or derivative victim for
outpatient mental health counseling in excess of that authorized by
paragraph (1) or (2) or for inpatient psychiatric, psychological, or
other mental health counseling if the claim is based on dire or
exceptional circumstances that require more extensive treatment, as
approved by the board.
(4) Expenses for psychiatric, psychological, or other mental
health counseling-related services may be reimbursed only if the
services were provided by either of the following individuals:
(A) A person who would have been authorized to provide those
services pursuant to former Article 1 (commencing with Section 13959)
as it read on January 1, 2002.
(B) A person who is licensed by the state to provide those
services, or who is properly supervised by a person who is so
licensed, subject to the board's approval and subject to the
limitations and restrictions the board may impose.
(b) The total award to or on behalf of each victim or derivative
victim may not exceed thirty-five thousand dollars ($35,000), except
that this amount may be increased to seventy thousand dollars
($70,000) if federal funds for that increase are available.
(c) For the purposes of this section, the following definitions
shall apply:
(1) "Service organization for victims of violent crime" means a
nonprofit and charitable organization that meets both of the
following criteria:
(A) Its primary mission is to provide services to victims of
violent crime.
(B) It provides programs or services to victims of violent crime
and their families, and other programs, whether or not a similar
program exists in an agency that provides additional services.
(2) "Violence peer counseling services" means counseling by a
violence peer counselor for the purpose of rendering advice or
assistance for victims of violent crime and their families. Any
violence peer counseling services that fall under the scope of
practice of the Licensed Marriage and Family Therapist Act (Chapter
13 (commencing with Section 4980) of Division 2 of the Business and
Professions Code), the Educational Psychologist Practice Act (Chapter
13.5 (commencing with Section 4989.10) of Division 2 of the Business
and Professions Code), the Clinical Social Worker Practice Act
(Chapter 14 (commencing with Section 4991) of Division 2 of the
Business and Professions Code), and the Licensed Professional
Clinical Counselor Act (Chapter 16 (commencing with Section 4999.10)
of Division 2 of the Business and Professions Code), which are not
performed in an exempt setting as defined in Sections 4980.01,
4996.14, and 4999.22 of the Business and Professions Code, shall only
be performed by a licensee or a registrant of the Board of
Behavioral Sciences or other appropriately licensed professional,
such as a licensed psychologist or board certified psychiatrist.
(3) "Violence peer counselor" means a provider of supportive and
nonpsychotherapeutic peer counseling services who is employed by a
service organization for victims of violent crime, whether
financially compensated or not, and who meets all of the following
requirements:
(A) Possesses at least six months of full-time equivalent
experience in providing peer support services acquired through
employment, volunteer work, or as part of an internship experience.
(B) Completed a training program aimed at preparing an individual
who was once a mental health services consumer to use his or her life
experience with mental health treatment, combined with other
strengths and skills, to promote the mental health recovery of other
mental health services consumers who are in need of peer-based
services relating to recovery as a victim of a violent crime.
(C) Possesses 40 hours of training on all of the following:
(i) The profound neurological, biological, psychological, and
social effects of trauma and violence.
(ii) Peace-building and violence prevention strategies, including,
but not limited to, conflict mediation and retaliation prevention
related to gangs and gang-related violence.
(iii) Post-traumatic stress disorder and vicarious trauma,
especially as related to gangs and gang-related violence.
(iv) Case management practices, including, but not limited to,
ethics and victim compensation advocacy.
(D) When providing violence peer counseling services, is
supervised by a marriage and family therapist licensed pursuant to
Chapter 13 (commencing with Section 4980) of Division 2 of the
Business and Professions Code, a licensed educational psychologist
licensed pursuant to Chapter 13.5 (commencing with Section 4989.10)
of Division 2 of the Business and Professions Code, a clinical social
worker licensed pursuant to Chapter 14 (commencing with Section
4991) of Division 2 of the Business and Professions Code, or a
licensed professional clinical counselor licensed pursuant to Chapter
16 (commencing with Section 4999.10) of Division 2 of the Business
and Professions Code. For the purposes of this subparagraph, a
licensed marriage and family therapist, licensed educational
psychologist, licensed clinical social worker, or licensed
professional clinical counselor shall be employed by the same service
organization as the violence peer counselor.
(d) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2017, deletes or extends
that date.
SEC. 9. Section 13959 of the Government Code is amended to read:
13959. (a) The board shall grant a hearing to an applicant who
contests a staff recommendation to deny compensation in whole or in
part.
(b) The board shall notify the applicant not less than 10 days
prior to the date of the hearing. Notwithstanding Section 11123, if
the application that the board is considering involves either a crime
against a minor, a crime of sexual assault, or a crime of domestic
violence, the board may exclude from the hearing all persons other
than board members and members of its staff, the applicant for
benefits, a minor applicant's parents or guardians, the applicant's
representative, witnesses, and other persons of the applicant's
choice to provide assistance to the applicant during the hearing.
However, the board shall not exclude persons from the hearing if the
applicant or applicant's representative requests that the hearing be
open to the public.
(c) At the hearing, the person seeking compensation shall have the
burden of establishing, by a preponderance of the evidence, the
elements for eligibility under Section 13955.
(d) Except as otherwise provided by law, in making determinations
of eligibility for compensation and in deciding upon the amount of
compensation, the board shall apply the law in effect as of the date
an application was submitted.
(e) (1) The hearing shall be informal and need not be conducted
according to the technical rules relating to evidence and witnesses.
The board may rely on any relevant evidence if it is the sort of
evidence on which responsible persons are accustomed to rely in the
conduct of serious affairs, regardless of the existence of a common
law or statutory rule that might make improper the admission of the
evidence over objection in a civil action. The board may rely on
written reports prepared for the board, or other information
received, from public agencies responsible for investigating the
crime. If the applicant or the applicant's representative chooses not
to appear at the hearing, the board may act solely upon the
application for compensation, the staff's report, and other evidence
that appears in the record.
(2) The board shall allow a service animal to accompany and
support a witness while testifying at a hearing.
(f) Hearings shall be held in various locations with the frequency
necessary to provide for the speedy adjudication of the
applications. If the applicant's presence is required at the hearing,
the board shall schedule the applicant's hearing in as convenient a
location as possible or conduct the hearing by telephone.
(g) The board may delegate the hearing of applications to hearing
officers.
(h) The decisions of the board shall be in writing. Copies of the
decisions shall be delivered to the applicant or to his or her
representative personally or sent to him or her by mail.
(i) The board may order a reconsideration of all or part of a
decision on written request of the applicant. The board shall not
grant more than one request for reconsideration with respect to any
one decision on an application for compensation. The board shall not
consider any request for reconsideration filed with the board more
than 30 calendar days after the personal delivery or 60 calendar days
after the mailing of the original decision.
(j) The board may order a reconsideration of all or part of a
decision on its own motion, at its discretion, at any time.
(k) Evidence submitted after the board has denied a request for
reconsideration shall not be considered unless the board chooses to
reconsider its decision on its own motion.
SEC. 10. Section 13963 of the Government Code is amended to read:
13963. (a) The board shall be subrogated to the rights of the
recipient to the extent of any compensation granted by the board. The
subrogation rights shall be against the perpetrator of the crime or
any person liable for the losses suffered as a direct result of the
crime which was the basis for receipt of compensation, including an
insurer held liable in accordance with the provision of a policy of
insurance issued pursuant to Section 11580.2 of the Insurance Code.
(b) The board shall also be entitled to a lien on any judgment,
award, or settlement in favor of or on behalf of the recipient for
losses suffered as a direct result of the crime that was the basis
for receipt of compensation in the amount of the compensation granted
by the board. The board may recover this amount in a separate
action, or may intervene in an action brought by or on behalf of the
recipient. If a claim is filed within one year of the date of
recovery, the board shall pay 25 percent of the amount of the
recovery that is subject to a lien on the judgment, award, or
settlement, to the recipient responsible for recovery if the
recipient notified the board
of the action prior to receiving any recovery. The remaining
amount, and any amount not claimed within one year pursuant to this
section, shall be deposited in the Restitution Fund.
(c) The board may compromise or settle and release any lien
pursuant to this chapter if it is found that the action is in the
best interest of the state or the collection would cause undue
hardship upon the recipient. Repayment obligations to the Restitution
Fund shall be enforceable as a summary judgment.
(d) No judgment, award, or settlement in any action or claim by a
recipient, where the board has an interest, shall be satisfied
without first giving the board notice and a reasonable opportunity to
perfect and satisfy the lien. The notice shall be given to the board
in Sacramento except in cases where the board specifies that the
notice shall be given otherwise. The notice shall include the
complete terms of the award, settlement, or judgment, and the name
and address of any insurer directly or indirectly providing for the
satisfaction.
(e) (1) If the recipient brings an action or asserts a claim for
damages against the person or persons liable for the injury or death
giving rise to an award by the board under this chapter, notice of
the institution of legal proceedings, notice of all hearings,
conferences, and proceedings, and notice of settlement shall be given
to the board in Sacramento except in cases where the board specifies
that notice shall be given to the Attorney General. Notice of the
institution of legal proceedings shall be given to the board within
30 days of filing the action. All notices shall be given by the
attorney employed to bring the action for damages or by the recipient
if no attorney is employed.
(2) Notice shall include all of the following:
(A) Names of all parties to the claim or action.
(B) The address of all parties to the claim or action except for
those persons represented by attorneys and in that case the name of
the party and the name and address of the attorney.
(C) The nature of the claim asserted or action brought.
(D) In the case of actions before courts or administrative
agencies, the full title of the case including the identity of the
court or agency, the names of the parties, and the case or docket
number.
(3) When the recipient or his or her attorney has reason to
believe that a person from whom damages are sought is receiving a
defense provided in whole or in part by an insurer, or is insured for
the injury caused to the recipient, notice shall include a statement
of that fact and the name and address of the insurer. Upon request
of the board, a person obligated to provide notice shall provide the
board with a copy of the current written claim or complaint.
(f) The board shall pay the county probation department or other
county agency responsible for collection of funds owed to the
Restitution Fund under Section 13967, as operative on or before
September 28, 1994, Section 1202.4 of the Penal Code, Section 1203.04
of the Penal Code, as operative on or before August 2, 1995, or
Section 730.6 of the Welfare and Institutions Code, 10 percent of the
funds so owed and collected by the county agency and deposited in
the Restitution Fund. This payment shall be made only when the funds
are deposited in the Restitution Fund within 45 days of the end of
the month in which the funds are collected. Receiving 10 percent of
the moneys collected as being owed to the Restitution Fund shall be
considered an incentive for collection efforts and shall be used for
furthering these collection efforts. The 10-percent rebates shall be
used to augment the budgets for the county agencies responsible for
collection of funds owed to the Restitution Fund, as provided in
Section 13967, as operative on or before September 28, 1994, Section
1202.4 of the Penal Code, Section 1203.04 of the Penal Code,
operative on or before August 2, 1995, or Section 730.6 of the
Welfare and Institutions Code. The 10-percent rebates shall not be
used to supplant county funding.
(g) In the event of judgment or award in a suit or claim against a
third party or insurer, if the action or claim is prosecuted by the
recipient alone, the court or agency shall first order paid from any
judgment or award the reasonable litigation expenses incurred in
preparation and prosecution of the action or claim, together with
reasonable attorney's fees when an attorney has been retained. After
payment of the expenses and attorney's fees, the court or agency
shall, on the application of the board, allow as a lien against the
amount of the judgment or award, the amount of the compensation
granted by the board to the recipient for losses sustained as a
result of the same incident upon which the settlement, award, or
judgment is based.
(h) For purposes of this section, "recipient" means any person who
has received compensation or will be provided compensation pursuant
to this chapter, including the victim's guardian, conservator or
other personal representative, estate, and survivors.
(i) In accordance with subparagraph (B) of paragraph (4) of
subdivision (f) of Section 1202.4 of the Penal Code, a representative
of the board may provide the probation department, district
attorney, and court with information relevant to the board's losses
prior to the imposition of a sentence.
SEC. 11. Section 13965 of the Government Code is amended to read:
13965. (a) Any recipient of an overpayment pursuant to this
chapter is liable to repay the board that amount unless both of the
following facts exist:
(1) The overpayment was not due to fraud, misrepresentation, or
willful nondisclosure on the part of the recipient.
(2) The overpayment was received without fault on the part of the
recipient, and its recovery would be against equity and good
conscience.
(b) All actions to collect overpayments shall commence within
seven years from the date of the overpayment. However, an action to
collect an overpayment due to fraud, misrepresentation, or willful
nondisclosure by the recipient may be commenced at any time.
(c) Any recipient of an overpayment is authorized to contest the
staff recommendation of an overpayment pursuant to the hearing
procedures in Section 13959. If a final determination is made by the
board that an overpayment exists, the board may collect the
overpayment in any manner prescribed by law.
(d) All overpayments exceeding two thousand dollars ($2,000) shall
be reported to the Legislature pursuant to Section 13928 and the
relief from liability described in subdivision (a) shall be subject
to legislative approval.
SEC. 12. Section 13971 of the Government Code is amended to read:
13971. As used in this article, "private citizen" means any
person other than a peace officer, fireman, lifeguard, or person
whose employment includes the duty to protect the public safety
acting within the course and scope of such employment.
SEC. 13. Section 13972 of the Government Code is amended to read:
13972. (a) If a private citizen incurs personal injury or death
or damage to his or her property in preventing the commission of a
crime against the person or property of another, in apprehending a
criminal, or in materially assisting a peace officer in prevention of
a crime or apprehension of a criminal, or rescuing a person in
immediate danger of injury or death as a result of fire, drowning, or
other catastrophe, the private citizen, his or her surviving spouse,
his or her surviving children, a person dependent upon the citizen
for his or her principal support, any person legally liable for the
citizen's pecuniary losses, or a public safety or law enforcement
agency acting on behalf of any of the above may file a claim with the
California Victim Compensation and Government Claims Board for
indemnification to the extent that the claimant is not compensated
from any other source for the injury, death, or damage. The claim
shall generally show all of the following:
(1) The date, place, and other circumstances of the occurrence or
events that gave rise to the claim.
(2) A general description of the activities of the private citizen
in prevention of a crime, apprehension of a criminal, or rescuing a
person in immediate danger of injury or death as a result of fire,
drowning, or other catastrophe.
(3) The amount or estimated amount of the injury, death, or damage
sustained for which the claimant is not compensated from any other
source, insofar as it may be known at the time of the presentation of
the claim.
(4) Any other information that the California Victim Compensation
and Government Claims Board may require.
(b) A claim filed under subdivision (a) shall be accompanied by a
corroborating statement and recommendation from the appropriate state
or local public safety or law enforcement agency.
SEC. 14. Section 13973 of the Government Code is amended to read:
13973. (a) Upon presentation of a claim pursuant to this chapter,
the California Victim Compensation and Government Claims Board shall
fix a time and place for the hearing of the claim, and shall mail
notices of the hearing to interested persons or agencies. The board
shall receive recommendations from public safety or law enforcement
agencies, and evidence showing all of the following:
(1) The nature of the crime committed by the apprehended criminal
or prevented by the action of the private citizen, or the nature of
the action of the private citizen in rescuing a person in immediate
danger of injury or death as a result of fire, drowning, or other
catastrophe, and the circumstances involved.
(2) That the actions of the private citizen substantially and
materially contributed to the apprehension of a criminal, the
prevention of a crime, or the rescuing of a person in immediate
danger of injury or death as a result of fire, drowning, or other
catastrophe.
(3) That, as a direct consequence, the private citizen incurred
personal injury or damage to property or died.
(4) The extent of the injury or damage for which the claimant is
not compensated from any other source.
(5) Any other evidence that the board may require.
(b) If the board determines, on the basis of a preponderance of
the evidence, that the state should indemnify the claimant for the
injury, death, or damage sustained, it shall approve the claim for
payment. In no event shall a claim be approved by the board under
this article in excess of ten thousand dollars ($10,000).
(c) In addition to any award made under this chapter, the board
may award, as attorney's fees, an amount representing the reasonable
value of legal services rendered a claimant, but in no event to
exceed 10 percent of the amount of the award. No attorney shall
charge, demand, receive, or collect for services rendered in
connection with any proceedings under this chapter any amount other
than that awarded as attorney's fees under this section. Claims
approved under this chapter shall be paid from a separate
appropriation made to the California Victim Compensation and
Government Claims Board in the Budget Act and as the claims are
approved by the board.
SEC. 15. Section 1202.4 of the Penal Code is amended to read:
1202.4. (a) (1) It is the intent of the Legislature that a victim
of crime who incurs an economic loss as a result of the commission
of a crime shall receive restitution directly from a defendant
convicted of that crime.
(2) Upon a person being convicted of a crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so and
states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense. If the
person is convicted of a felony, the fine shall not be less than two
hundred forty dollars ($240) starting on January 1, 2012, two hundred
eighty dollars ($280) starting on January 1, 2013, and three hundred
dollars ($300) starting on January 1, 2014, and not more than ten
thousand dollars ($10,000). If the person is convicted of a
misdemeanor, the fine shall not be less than one hundred twenty
dollars ($120) starting on January 1, 2012, one hundred forty dollars
($140) starting on January 1, 2013, and one hundred fifty dollars
($150) starting on January 1, 2014, and not more than one thousand
dollars ($1,000).
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of the minimum fine pursuant to
paragraph (1) multiplied by the number of years of imprisonment the
defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record. A defendant's inability to pay shall not
be considered a compelling and extraordinary reason not to impose a
restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the
minimum fine pursuant to paragraph (1) of subdivision (b). The court
may specify that funds confiscated at the time of the defendant's
arrest, except for funds confiscated pursuant to Section 11469 of the
Health and Safety Code, be applied to the restitution fine if the
funds are not exempt for spousal or child support or subject to any
other legal exemption.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the minimum fine pursuant to paragraph (1) of
subdivision (b), the court shall consider any relevant factors,
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered losses as a
result of the crime, and the number of victims involved in the
crime. Those losses may include pecuniary losses to the victim or his
or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a defendant'
s inability to pay may include his or her future earning capacity. A
defendant shall bear the burden of demonstrating his or her inability
to pay. Express findings by the court as to the factors bearing on
the amount of the fine shall not be required. A separate hearing for
the fine shall not be required.
(e) The restitution fine shall not be subject to penalty
assessments authorized in Section 1464 or Chapter 12 (commencing with
Section 76000) of Title 8 of the Government Code, or the state
surcharge authorized in Section 1465.7, and shall be deposited in the
Restitution Fund in the State Treasury.
(f) Except as provided in subdivisions (q) and (r), in every case
in which a victim has suffered economic loss as a result of the
defendant's conduct, the court shall require that the defendant make
restitution to the victim or victims in an amount established by
court order, based on the amount of loss claimed by the victim or
victims or any other showing to the court. If the amount of loss
cannot be ascertained at the time of sentencing, the restitution
order shall include a provision that the amount shall be determined
at the direction of the court. The court shall order full restitution
unless it finds compelling and extraordinary reasons for not doing
so and states them on the record. The court may specify that funds
confiscated at the time of the defendant's arrest, except for funds
confiscated pursuant to Section 11469 of the Health and Safety Code,
be applied to the restitution order if the funds are not exempt for
spousal or child support or subject to any other legal exemption.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court may
modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion. A victim at a restitution
hearing or modification hearing described in this paragraph may
testify by live, two-way audio and video transmission, if testimony
by live, two-way audio and video transmission is available at the
court.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of a third party. Restitution ordered pursuant to
this subdivision shall be ordered to be deposited to the Restitution
Fund to the extent that the victim, as defined in subdivision (k),
has received assistance from the California Victim Compensation and
Government Claims Board pursuant to Chapter 5 (commencing with
Section 13950) of Part 4 of Division 3 of Title 2 of the Government
Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Mental health counseling expenses.
(D) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor. Lost wages shall include commission income as well as base
wages. Commission income shall be established by evidence of
commission income during the 12-month period prior to the date of the
crime for which restitution is being ordered, unless good cause for
a shorter time period is shown.
(E) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution. Lost wages shall include
commission income as well as base wages. Commission income shall be
established by evidence of commission income during the 12-month
period prior to the date of the crime for which restitution is being
ordered, unless good cause for a shorter time period is shown.
(F) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(G) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(H) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(I) Expenses incurred by an adult victim in relocating away from
the defendant, including, but not limited to, deposits for utilities
and telephone service, deposits for rental housing, temporary lodging
and food expenses, clothing, and personal items. Expenses incurred
pursuant to this section shall be verified by law enforcement to be
necessary for the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional well-being of
the victim.
(J) Expenses to install or increase residential security incurred
related to a violent felony, as defined in subdivision (c) of Section
667.5, including, but not limited to, a home security device or
system, or replacing or increasing the number of locks.
(K) Expenses to retrofit a residence or vehicle, or both, to make
the residence accessible to or the vehicle operational by the victim,
if the victim is permanently disabled, whether the disability is
partial or total, as a direct result of the crime.
(L) Expenses for a period of time reasonably necessary to make the
victim whole, for the costs to monitor the credit report of, and for
the costs to repair the credit of, a victim of identity theft, as
defined in Section 530.5.
(4) (A) If, as a result of the defendant's conduct, the
Restitution Fund has provided assistance to or on behalf of a victim
or derivative victim pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code, the
amount of assistance provided shall be presumed to be a direct
result of the defendant's criminal conduct and shall be included in
the amount of the restitution ordered.
(B) The amount of assistance provided by the Restitution Fund
shall be established by copies of bills submitted to the California
Victim Compensation and Government Claims Board reflecting the amount
paid by the board and whether the services for which payment was
made were for medical or dental expenses, funeral or burial expenses,
mental health counseling, wage or support losses, or rehabilitation.
Certified copies of these bills provided by the board and redacted
to protect the privacy and safety of the victim or any legal
privilege, together with a statement made under penalty of perjury by
the custodian of records that those bills were submitted to and were
paid by the board, shall be sufficient to meet this requirement.
(C) If the defendant offers evidence to rebut the presumption
established by this paragraph, the court may release additional
information contained in the records of the board to the defendant
only after reviewing that information in camera and finding that the
information is necessary for the defendant to dispute the amount of
the restitution order.
(5) Except as provided in paragraph (6), in any case in which an
order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant's arrest for the
crime for which restitution may be ordered. The financial disclosure
statements shall be made available to the victim and the board
pursuant to Section 1214. The disclosure shall be signed by the
defendant upon a form approved or adopted by the Judicial Council for
the purpose of facilitating the disclosure. A defendant who
willfully states as true a material matter that he or she knows to be
false on the disclosure required by this subdivision is guilty of a
misdemeanor, unless this conduct is punishable as perjury or another
provision of law provides for a greater penalty.
(6) A defendant who fails to file the financial disclosure
required in paragraph (5), but who has filed a financial affidavit or
financial information pursuant to subdivision (c) of Section 987,
shall be deemed to have waived the confidentiality of that affidavit
or financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f). The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (5), and paragraphs (7) to (10), inclusive, shall not
apply.
(7) Except as provided in paragraph (6), the defendant shall file
the disclosure with the clerk of the court no later than the date set
for the defendant's sentencing, unless otherwise directed by the
court. The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.
(8) In its discretion, the court may relieve the defendant of the
duty under paragraph (7) of filing with the clerk by requiring that
the defendant's disclosure be submitted as an attachment to, and be
available to, those authorized to receive the following:
(A) A report submitted pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
(B) A stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
(C) A report by the probation officer, or information submitted by
the defendant applying for a conditional sentence pursuant to
subdivision (d) of Section 1203.
(9) The court may consider a defendant's unreasonable failure to
make a complete disclosure pursuant to paragraph (5) as any of the
following:
(A) A circumstance in aggravation of the crime in imposing a term
under subdivision (b) of Section 1170.
(B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.
(C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section 1203.
(D) A factor indicating that the interests of justice would not be
served by imposing less than the maximum fine and sentence fixed by
law for the case.
(10) A defendant's failure or refusal to make the required
disclosure pursuant to paragraph (5) shall not delay entry of an
order of restitution or pronouncement of sentence. In appropriate
cases, the court may do any of the following:
(A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).
(B) If sentencing the defendant under Section 1170, provide that
the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant's
employment, occupation, finances, and liabilities.
(C) If sentencing the defendant under Section 1203, set a date and
place for submission of the disclosure required by paragraph (5) as
a condition of probation or suspended sentence.
(11) If a defendant has any remaining unpaid balance on a
restitution order or fine 120 days prior to his or her scheduled
release from probation or 120 days prior to his or her completion of
a conditional sentence, the defendant shall prepare and file a new
and updated financial disclosure identifying all assets, income, and
liabilities in which the defendant holds or controls or has held or
controlled a present or future interest during the defendant's period
of probation or conditional
sentence. The financial disclosure shall be made available to
the victim and the board pursuant to Section 1214. The disclosure
shall be signed and prepared by the defendant on the same form as
described in paragraph (5). A defendant who willfully states as true
a material matter that he or she knows to be false on the disclosure
required by this subdivision is guilty of a misdemeanor, unless this
conduct is punishable as perjury or another provision of law provides
for a greater penalty. The financial disclosure required by this
paragraph shall be filed with the clerk of the court no later than 90
days prior to the defendant's scheduled release from probation or
completion of the defendant's conditional sentence.
(12) In cases where an employer is convicted of a crime against an
employee, a payment to the employee or the employee's dependent that
is made by the employer's workers' compensation insurance carrier
shall not be used to offset the amount of the restitution order
unless the court finds that the defendant substantially met the
obligation to pay premiums for that insurance coverage.
(g) The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record. A defendant's inability to pay shall not
be considered a compelling and extraordinary reason not to impose a
restitution order, nor shall inability to pay be a consideration in
determining the amount of a restitution order.
(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing with
Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, in order to determine the defendant's
financial assets for purposes of collecting on the restitution order.
(i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment.
(j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the
Restitution Fund as otherwise provided by law, except to the extent
that restitution is actually collected pursuant to the order.
Restitution collected pursuant to this subdivision shall be credited
to any other judgments for the same losses obtained against the
defendant arising out of the crime for which the defendant was
convicted.
(k) For purposes of this section, "victim" shall include all of
the following:
(1) The immediate surviving family of the actual victim.
(2) A corporation, business trust, estate, trust, partnership,
association, joint venture, government, governmental subdivision,
agency, or instrumentality, or any other legal or commercial entity
when that entity is a direct victim of a crime.
(3) A person who has sustained economic loss as the result of a
crime and who satisfies any of the following conditions:
(A) At the time of the crime was the parent, grandparent, sibling,
spouse, child, or grandchild of the victim.
(B) At the time of the crime was living in the household of the
victim.
(C) At the time of the crime was a person who had previously lived
in the household of the victim for a period of not less than two
years in a relationship substantially similar to a relationship
listed in subparagraph (A).
(D) Is another family member of the victim, including, but not
limited to, the victim's fiancé or fiancée, and who witnessed the
crime.
(E) Is the primary caretaker of a minor victim.
(4) A person who is eligible to receive assistance from the
Restitution Fund pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code.
(5) A governmental entity that is responsible for repairing,
replacing, or restoring public or privately owned property that has
been defaced with graffiti or other inscribed material, as defined in
subdivision (e) of Section 594, and that has sustained an economic
loss as the result of a violation of Section 594, 594.3, 594.4,
640.5, 640.6, or 640.7.
( l ) At its discretion, the board of supervisors of a
county may impose a fee to cover the actual administrative cost of
collecting the restitution fine, not to exceed 10 percent of the
amount ordered to be paid, to be added to the restitution fine and
included in the order of the court, the proceeds of which shall be
deposited in the general fund of the county.
(m) In every case in which the defendant is granted probation, the
court shall make the payment of restitution fines and orders imposed
pursuant to this section a condition of probation. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation shall continue to be enforceable by a victim
pursuant to Section 1214 until the obligation is satisfied.
(n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine or full restitution
order should not be required, the court shall order, as a condition
of probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition to
the finding that restitution should not be required. Upon revocation
of probation, the court shall impose restitution pursuant to this
section.
(o) The provisions of Section 13963 of the Government Code shall
apply to restitution imposed pursuant to this section.
(p) The court clerk shall notify the California Victim
Compensation and Government Claims Board within 90 days of an order
of restitution being imposed if the defendant is ordered to pay
restitution to the board due to the victim receiving compensation
from the Restitution Fund. Notification shall be accomplished by
mailing a copy of the court order to the board, which may be done
periodically by bulk mail or email.
(q) Upon conviction for a violation of Section 236.1, the court
shall, in addition to any other penalty or restitution, order the
defendant to pay restitution to the victim in a case in which a
victim has suffered economic loss as a result of the defendant's
conduct. The court shall require that the defendant make restitution
to the victim or victims in an amount established by court order,
based on the amount of loss claimed by the victim or victims or
another showing to the court. In determining restitution pursuant to
this section, the court shall base its order upon the greater of the
following: the gross value of the victim's labor or services based
upon the comparable value of similar services in the labor market in
which the offense occurred, or the value of the victim's labor as
guaranteed under California law, or the actual income derived by the
defendant from the victim's labor or services or any other
appropriate means to provide reparations to the victim.
(r) (1) In addition to any other penalty or fine, the court shall
order a person who has been convicted of a violation of Section 350,
653h, 653s, 653u, 653w, or 653aa that involves a recording or
audiovisual work to make restitution to an owner or lawful producer,
or trade association acting on behalf of the owner or lawful
producer, of a phonograph record, disc, wire, tape, film, or other
device or article from which sounds or visual images are derived that
suffered economic loss resulting from the violation. The order of
restitution shall be based on the aggregate wholesale value of
lawfully manufactured and authorized devices or articles from which
sounds or visual images are devised corresponding to the number of
nonconforming devices or articles involved in the offense, unless a
higher value can be proved in the case of (A) an unreleased audio
work, or (B) an audiovisual work that, at the time of unauthorized
distribution, has not been made available in copies for sale to the
general public in the United States on a digital versatile disc. For
purposes of this subdivision, possession of nonconforming devices or
articles intended for sale constitutes actual economic loss to an
owner or lawful producer in the form of displaced legitimate
wholesale purchases. The order of restitution shall also include
reasonable costs incurred as a result of an investigation of the
violation undertaken by the owner, lawful producer, or trade
association acting on behalf of the owner or lawful producer.
"Aggregate wholesale value" means the average wholesale value of
lawfully manufactured and authorized sound or audiovisual recordings.
Proof of the specific wholesale value of each nonconforming device
or article is not required.
(2) As used in this subdivision, "audiovisual work" and "recording"
shall have the same meaning as in Section 653w.
SEC. 16. 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 29, 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 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. The amount 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, 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 29, 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 percent or the balance owing on the fine amount, whichever is
less, up to a maximum of 50 percent from the county jail 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. The amount 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 29, 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 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, 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 29, 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
percent or the balance owing on the order amount, whichever is less,
up to a maximum of 50 percent from the county jail 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, 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
equivalent of 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 (b)
or (d). The agency is authorized to deduct and retain from a 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. Upon release from custody pursuant
to subdivision (h) of Section 1170, the agency is authorized to
charge a fee to cover the actual administrative cost of collection,
not to exceed 10 percent of the total amount collected. 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 29, 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, the agency designated by the board of supervisors in the county
where the prisoner is incarcerated, may collect from the parolee or,
pursuant to Section 2085.6, from a person previously imprisoned in
county jail 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. The amount 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 29, 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, 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, pursuant to Section 2085.6, from a person
previously imprisoned in county jail 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, or the agency may pay
the victim directly. 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, the
agency designated by the board of supervisors in the county where the
prisoner is incarcerated, may deduct and retain from moneys
collected from parolees or persons previously imprisoned in county
jail 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 an 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 person previously imprisoned in county jail 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 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, 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) 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 a 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 the 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) (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 twenty-five dollars ($25), then payment need
not be forwarded to that victim until the payment reaches
twenty-five dollars ($25) or when the victim requests payment of the
lesser amount.
(2) If 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) A 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 shall
verify that moneys were 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) A 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 may verify
that moneys were 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. 17. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
