Bill Text: CA AB2295 | 2015-2016 | Regular Session | Chaptered
Bill Title: Restitution for crimes.
Spectrum: Strong Partisan Bill (Republican 10-1)
Status: (Passed) 2016-06-27 - Chaptered by Secretary of State - Chapter 37, Statutes of 2016. [AB2295 Detail]
Download: California-2015-AB2295-Chaptered.html
BILL NUMBER: AB 2295 CHAPTERED
BILL TEXT
CHAPTER 37
FILED WITH SECRETARY OF STATE JUNE 27, 2016
PASSED THE SENATE JUNE 6, 2016
PASSED THE ASSEMBLY JUNE 9, 2016
AMENDED IN SENATE MAY 24, 2016
AMENDED IN ASSEMBLY MARCH 15, 2016
INTRODUCED BY Assembly Member Baker
(Coauthors: Assembly Members Travis Allen, Brough, Chang, Chávez,
Gallagher, and Wilk)
(Coauthors: Senators Bates, Glazer, Nielsen, and Runner)
FEBRUARY 18, 2016
An act to amend Sections 186.11, 186.12, 1202.4, and 1202.46 of
the Penal Code, relating to restitution.
LEGISLATIVE COUNSEL'S DIGEST
AB 2295, Baker. Restitution for crimes.
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 specifically requires a defendant subject to the
aggravated white collar crime enhancement, and a person convicted of
a felony involving theft, embezzlement, forgery, or fraud, with
respect to the property or personal identifying information of an
elder or a dependent adult, to be ordered to make full restitution to
the victim or to make restitution to the victim based on his or her
ability to pay.
This bill would require the court to order full restitution and
would make technical, nonsubstantive changes. The bill would state
the finding of the Legislature that these changes are declaratory of
existing law.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 186.11 of the Penal Code is amended to read:
186.11. (a) (1) Any person who commits two or more related
felonies, a material element of which is fraud or embezzlement, which
involve a pattern of related felony conduct, and the pattern of
related felony conduct involves the taking of, or results in the loss
by another person or entity of, more than one hundred thousand
dollars ($100,000), shall be punished, upon conviction of two or more
felonies in a single criminal proceeding, in addition and
consecutive to the punishment prescribed for the felony offenses of
which he or she has been convicted, by an additional term of
imprisonment in the state prison as specified in paragraph (2) or
(3). This enhancement shall be known as the aggravated white collar
crime enhancement. The aggravated white collar crime enhancement
shall only be imposed once in a single criminal proceeding. For
purposes of this section, "pattern of related felony conduct" means
engaging in at least two felonies that have the same or similar
purpose, result, principals, victims, or methods of commission, or
are otherwise interrelated by distinguishing characteristics, and
that are not isolated events. For purposes of this section, "two or
more related felonies" means felonies committed against two or more
separate victims, or against the same victim on two or more separate
occasions.
(2) If the pattern of related felony conduct involves the taking
of, or results in the loss by another person or entity of, more than
five hundred thousand dollars ($500,000), the additional term of
punishment shall be two, three, or five years in the state prison.
(3) If the pattern of related felony conduct involves the taking
of, or results in the loss by another person or entity of, more than
one hundred thousand dollars ($100,000), but not more than five
hundred thousand dollars ($500,000), the additional term of
punishment shall be the term specified in paragraph (1) or (2) of
subdivision (a) of Section 12022.6.
(b) (1) The additional prison term and penalties provided for in
subdivisions (a), (c), and (d) shall not be imposed unless the facts
set forth in subdivision (a) are charged in the accusatory pleading
and admitted or found to be true by the trier of fact.
(2) The additional prison term provided in paragraph (2) of
subdivision (a) shall be in addition to any other punishment provided
by law, including Section 12022.6, and shall not be limited by any
other provision of law.
(c) Any person convicted of two or more felonies, as specified in
subdivision (a), shall also be liable for a fine not to exceed five
hundred thousand dollars ($500,000) or double the value of the
taking, whichever is greater, if the existence of facts that would
make the person subject to the aggravated white collar crime
enhancement have been admitted or found to be true by the trier of
fact. However, if the pattern of related felony conduct involves the
taking of more than one hundred thousand dollars ($100,000), but not
more than five hundred thousand dollars ($500,000), the fine shall
not exceed one hundred thousand dollars ($100,000) or double the
value of the taking, whichever is greater.
(d) (1) If a person is alleged to have committed two or more
felonies, as specified in subdivision (a), and the aggravated white
collar crime enhancement is also charged, or a person is charged in
an accusatory pleading with a felony, a material element of which is
fraud or embezzlement, that involves the taking or loss of more than
one hundred thousand dollars ($100,000), and an allegation as to the
existence of those facts, any asset or property that is in the
control of that person, and any asset or property that has been
transferred by that person to a third party, subsequent to the
commission of any criminal act alleged pursuant to subdivision (a),
other than in a bona fide purchase, whether found within or outside
the state, may be preserved by the superior court in order to pay
restitution and fines. Upon conviction of two or more felonies, as
specified in subdivision (a), or a felony, a material element of
which is fraud or embezzlement, that involves the taking or loss of
more than one hundred thousand dollars ($100,000), this property may
be levied upon by the superior court to pay restitution and fines if
the existence of facts that would make the person subject to the
aggravated white collar crime enhancement or that demonstrate the
taking or loss of more than one hundred thousand dollars ($100,000)
in the commission of a felony, a material element of which is fraud
or embezzlement, have been charged in the accusatory pleading and
admitted or found to be true by the trier of fact.
(2) To prevent dissipation or secreting of assets or property, the
prosecuting agency may, at the same time as or subsequent to the
filing of a complaint or indictment charging two or more felonies, as
specified in subdivision (a), and the enhancement specified in
subdivision (a), or a felony, a material element of which is fraud or
embezzlement, that involves the taking or loss of more than one
hundred thousand dollars ($100,000), and an allegation as to the
existence of those facts, file a petition with the criminal division
of the superior court of the county in which the accusatory pleading
was filed, seeking a temporary restraining order, preliminary
injunction, the appointment of a receiver, or any other protective
relief necessary to preserve the property or assets. This petition
shall commence a proceeding that shall be pendent to the criminal
proceeding and maintained solely to affect the criminal remedies
provided for in this section. The proceeding shall not be subject to
or governed by the provisions of the Civil Discovery Act as set forth
in Title 4 (commencing with Section 2016.010) of Part 4 of the Code
of Civil Procedure. The petition shall allege that the defendant has
been charged with two or more felonies, as specified in subdivision
(a), and is subject to the aggravated white collar crime enhancement
specified in subdivision (a) or that the defendant has been charged
with a felony, a material element of which is fraud or embezzlement,
that involves the taking or loss of more than one hundred thousand
dollars ($100,000), and an allegation as to the existence of those
facts. The petition shall identify that criminal proceeding and the
assets and property to be affected by an order issued pursuant to
this section.
(3) A notice regarding the petition shall be provided, by personal
service or registered mail, to every person who may have an interest
in the property specified in the petition. Additionally, the notice
shall be published for at least three successive weeks in a newspaper
of general circulation in the county where the property affected by
an order issued pursuant to this section is located. The notice shall
state that any interested person may file a verified claim with the
superior court stating the nature and amount of their claimed
interest. The notice shall set forth the time within which a claim of
interest in the protected property is required to be filed.
(4) If the property to be preserved is real property, the
prosecuting agency shall record, at the time of filing the petition,
a lis pendens in each county in which the real property is situated
which specifically identifies the property by legal description, the
name of the owner of record as shown on the latest equalized
assessment roll, and the assessor's parcel number.
(5) If the property to be preserved are assets under the control
of a banking or financial institution, the prosecuting agency, at the
time of the filing of the petition, may obtain an order from the
court directing the banking or financial institution to immediately
disclose the account numbers and value of the assets of the accused
held by the banking or financial institution. The prosecuting agency
shall file a supplemental petition, specifically identifying which
banking or financial institution accounts shall be subject to a
temporary restraining order, preliminary injunction, or other
protective remedy.
(6) Any person claiming an interest in the protected property may,
at any time within 30 days from the date of the first publication of
the notice of the petition, or within 30 days after receipt of
actual notice, file with the superior court of the county in which
the action is pending a verified claim stating the nature and amount
of his or her interest in the property or assets. A verified copy of
the claim shall be served by the claimant on the Attorney General or
district attorney, as appropriate.
(7) The imposition of fines and restitution pursuant to this
section shall be determined by the superior court in which the
underlying criminal offense is sentenced. Any judge who is assigned
to the criminal division of the superior court in the county where
the petition is filed may issue a temporary restraining order in
conjunction with, or subsequent to, the filing of an allegation
pursuant to this section. Any subsequent hearing on the petition
shall also be heard by a judge assigned to the criminal division of
the superior court in the county in which the petition is filed. At
the time of the filing of an information or indictment in the
underlying criminal case, any subsequent hearing on the petition
shall be heard by the superior court judge assigned to the underlying
criminal case.
(e) Concurrent with or subsequent to the filing of the petition,
the prosecuting agency may move the superior court for, and the
superior court may issue, the following pendente lite orders to
preserve the status quo of the property alleged in the petition:
(1) An injunction to restrain any person from transferring,
encumbering, hypothecating, or otherwise disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that the property
may be maintained and preserved. The court may order that a receiver
appointed pursuant to this section shall be compensated for all
reasonable expenditures made or incurred by him or her in connection
with the possession, care, management, and operation of any property
or assets that are subject to the provisions of this section.
(3) A bond or other undertaking, in lieu of other orders, of a
value sufficient to ensure the satisfaction of restitution and fines
imposed pursuant to this section.
(f) (1) No preliminary injunction may be granted or receiver
appointed by the court without notice that meets the requirements of
paragraph (3) of subdivision (d) to all known and reasonably
ascertainable interested parties and upon a hearing to determine that
an order is necessary to preserve the property pending the outcome
of the criminal proceedings. A temporary restraining order may be
issued by the court, ex parte, pending that hearing in conjunction
with or subsequent to the filing of the petition upon the application
of the prosecuting attorney. The temporary restraining order may be
based upon the sworn declaration of a peace officer with personal
knowledge of the criminal investigation that establishes probable
cause to believe that aggravated white collar crime or a felony, a
material element of which is fraud or embezzlement, that involves the
taking or loss of more than one hundred thousand dollars ($100,000)
has taken place and that the amount of restitution and fines exceeds
or equals the worth of the assets subject to the temporary
restraining order. The declaration may include the hearsay statements
of witnesses to establish the necessary facts. The temporary
restraining order may be issued without notice upon a showing of good
cause to the court.
(2) The defendant, or a person who has filed a verified claim as
provided in paragraph (6) of subdivision (d), shall have the right to
have the court conduct an order to show cause hearing within 10 days
of the service of the request for hearing upon the prosecuting
agency, in order to determine whether the temporary restraining order
should remain in effect, whether relief should be granted from any
lis pendens recorded pursuant to paragraph (4) of subdivision (d), or
whether any existing order should be modified in the interests of
justice. Upon a showing of good cause, the hearing shall be held
within two days of the service of the request for hearing upon the
prosecuting agency.
(3) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the filing of an
allegation pursuant to this section, the court has the discretion to
consider any matter that it deems reliable and appropriate, including
hearsay statements, in order to reach a just and equitable decision.
The court shall weigh the relative degree of certainty of the
outcome on the merits and the consequences to each of the parties of
granting the interim relief. If the prosecution is likely to prevail
on the merits and the risk of the dissipation of assets outweighs the
potential harm to the defendants and the interested parties, the
court shall grant injunctive relief. The court shall give significant
weight to the following factors:
(A) The public interest in preserving the property or assets
pendente lite.
(B) The difficulty of preserving the property or assets pendente
lite where the underlying alleged crimes involve issues of fraud and
moral turpitude.
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of white collar crimes.
(D) The likelihood that substantial public harm has occurred where
aggravated white collar crime is alleged to have been committed.
(E) The significant public interest involved in compensating the
victims of white collar crime and paying court-imposed restitution
and fines.
(4) The court, in making its orders, may consider a defendant's
request for the release of a portion of the property affected by this
section in order to pay reasonable legal fees in connection with the
criminal proceeding, any necessary and appropriate living expenses
pending trial and sentencing, and for the purpose of posting bail.
The court shall weigh the needs of the public to retain the property
against the needs of the defendant to a portion of the property. The
court shall consider the factors listed in paragraph (3) prior to
making any order releasing property for these purposes.
(5) The court, in making its orders, shall seek to protect the
interests of any innocent third persons, including an innocent
spouse, who were not involved in the commission of any criminal
activity.
(6) Any petition filed pursuant to this section is part of the
criminal proceedings for purposes of appointment of counsel and shall
be assigned to the criminal division of the superior court of the
county in which the accusatory pleading was filed.
(7) Based upon a noticed motion brought by the receiver appointed
pursuant to paragraph (2) of subdivision (e), the court may order an
interlocutory sale of property named in the petition when the
property is liable to perish, to waste, or to be significantly
reduced in value, or when the expenses of maintaining the property
are disproportionate to the value thereof. The proceeds of the
interlocutory sale shall be deposited with the court or as directed
by the court pending determination of the proceeding pursuant to this
section.
(8) The court may make any orders that are necessary to preserve
the continuing viability of any lawful business enterprise that is
affected by the issuance of a temporary restraining order or
preliminary injunction issued pursuant to this action.
(9) In making its orders, the court shall seek to prevent any
asset subject to a temporary restraining order or preliminary
injunction from perishing, spoiling, going to waste, or otherwise
being significantly reduced in value. Where the potential for
diminution in value exists, the court shall appoint a receiver to
dispose of or otherwise protect the value of the property or asset.
(10) A preservation order shall not be issued against any assets
of a business that are not likely to be dissipated and that may be
subject to levy or attachment to meet the purposes of this section.
(g) If the allegation that the defendant is subject to the
aggravated white collar crime enhancement or has committed a felony,
a material element of which is fraud or embezzlement, that involves
the taking or loss of more than one hundred thousand dollars
($100,000) is dismissed or found by the trier of fact to be untrue,
any preliminary injunction or temporary restraining order issued
pursuant to this section shall be dissolved. If a jury is the trier
of fact, and the jury is unable to reach a unanimous verdict, the
court shall have the discretion to continue or dissolve all or a
portion of the preliminary injunction or temporary restraining order
based upon the interests of justice. However, if the prosecuting
agency elects not to retry the case, any preliminary injunction or
temporary restraining order issued pursuant to this section shall be
dissolved.
(h) (1) (A) If the defendant is convicted of two or more felonies,
as specified in subdivision (a), and the existence of facts that
would make the person subject to the aggravated white collar crime
enhancement have been admitted or found to be true by the trier of
fact, or the defendant is convicted of a felony, a material element
of which is fraud or embezzlement, that involves the taking or loss
of more than one hundred thousand dollars ($100,000), and an
allegation as to the existence of those facts has been admitted or
found to be true by the trier of fact, the trial judge shall continue
the preliminary injunction or temporary restraining order until the
date of the criminal sentencing and shall make a finding at that time
as to what portion, if any, of the property or assets subject to the
preliminary injunction or temporary restraining order shall be
levied upon to pay fines and restitution to victims of the crime. The
order imposing fines and restitution may exceed the total worth of
the property or assets subjected to the preliminary injunction or
temporary restraining order. The court may order the immediate
transfer of the property or assets to satisfy any judgment and
sentence made pursuant to this section. Additionally, upon motion of
the prosecution, the court may enter an order as part of the judgment
and sentence making the order imposing fines and restitution
pursuant to this section enforceable pursuant to Title 9 (commencing
with Section 680.010) of Part 2 of the Code of Civil Procedure.
(B) Additionally, the court shall order the defendant to make full
restitution to the victim. The payment of the restitution ordered by
the court pursuant to this section shall be made a condition of any
probation granted by the court if the existence of facts that would
make the defendant subject to the aggravated white collar crime
enhancement or of facts demonstrating the person committed a felony,
a material element of which is fraud or embezzlement, that involves
the taking or loss of more than one hundred thousand dollars
($100,000) have been admitted or found to be true by the trier of
fact. Notwithstanding any other provision of law, the court may order
that the period of probation continue for up to 10 years or until
full restitution is made to the victim, whichever is earlier.
(C) The sentencing court shall retain jurisdiction to enforce the
order to pay additional fines and restitution and, in appropriate
cases, may initiate probation violation proceedings or contempt of
court proceedings against a defendant who is found to have willfully
failed to comply with any lawful order of the court.
(D) If the execution of judgment is stayed pending an appeal of an
order of the superior court pursuant to this section, the
preliminary injunction or temporary restraining order shall be
maintained in full force and effect during the pendency of the
appellate period.
(2) The order imposing fines and restitution shall not affect the
interest in real property of any third party that was acquired prior
to the recording of the lis pendens, unless the property was obtained
from the defendant other than as a bona fide purchaser for value. If
any assets or property affected by this section are subject to a
valid lien, mortgage, security interest, or interest under a
conditional sales contract and the amount due to the holder of the
lien, mortgage, interest, or contract is less than the appraised
value of the property, that person may pay to the state or the local
government that initiated the proceeding the amount of the difference
between the appraised value of the property and the amount of the
lien, mortgage, security interest, or interest under a conditional
sales contract. Upon that payment, the state or local entity shall
relinquish all claims to the property. If the holder of the interest
elects not to make that payment to the state or local governmental
entity, the interest in the property shall be deemed transferred to
the state or local governmental entity and any indicia of ownership
of the property shall be confirmed in the state or local governmental
entity. The appraised value shall be determined as of the date
judgment is entered either by agreement between the holder of the
lien, mortgage, security interest, or interest under a conditional
sales contract and the governmental entity involved, or, if they
cannot agree, then by a court-appointed appraiser for the county in
which the action is brought. A person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract
shall be paid the appraised value of his or her interest.
(3) In making its final order, the court shall seek to protect the
legitimately acquired interests of any innocent third persons,
including an innocent spouse, who were not involved in the commission
of any criminal activity.
(i) In all cases where property is to be levied upon pursuant to
this section, a receiver appointed by the court shall be empowered to
liquidate all property or assets which shall be distributed in the
following order of priority:
(1) To the receiver, or court-appointed appraiser, for all
reasonable expenditures made or incurred by him or her in connection
with the sale of the property or liquidation of assets, including all
reasonable expenditures for any necessary repairs, storage, or
transportation of any property levied upon under this section.
(2) To any holder of a valid lien, mortgage, or security interest
up to the amount of his or her interest in the property or proceeds.
(3) To any victim as restitution for any fraudulent or unlawful
acts alleged in the accusatory pleading that were proven by the
prosecuting agency as part of the pattern of fraudulent or unlawful
acts.
(4) For payment of any fine imposed pursuant to this section. The
proceeds obtained in payment of a fine shall be paid to the treasurer
of the county in which the judgment was entered, or if the action
was undertaken by the Attorney General, to the Treasurer. If the
payment of any fine imposed pursuant to this section involved losses
resulting from violation of Section 550 of this code or Section
1871.4 of the Insurance Code, one-half of the fine collected shall be
paid to the treasurer of the county in which the judgment was
entered, and one-half of the fine collected shall be paid to the
Department of Insurance for deposit in the appropriate account in the
Insurance Fund. The proceeds from the fine first shall be used by a
county to reimburse local prosecutors and enforcement agencies for
the reasonable costs of investigation and prosecution of cases
brought pursuant to this section.
(5) To the Restitution Fund, or in cases involving convictions
relating to insurance fraud, to the Insurance Fund as restitution for
crimes not specifically pleaded and proven in the accusatory
pleading.
(j) If, after distribution pursuant to paragraphs (1) and (2) of
subdivision (i), the value of the property to be levied upon pursuant
to this section is insufficient to pay for restitution and fines,
the court shall order an equitable sharing of the proceeds of the
liquidation of the property, and any other recoveries, which shall
specify the percentage of recoveries to be devoted to each purpose.
At least 70 percent of the proceeds remaining after distribution
pursuant to paragraphs (1) and (2) of subdivision (i) shall be
devoted to restitution.
(k) Unless otherwise expressly provided, the remedies or penalties
provided by this section are cumulative to each other and to the
remedies or penalties available under all other laws of this state,
except that two separate actions against the same defendant and
pertaining to the same fraudulent or unlawful acts may not be brought
by a district attorney or the Attorney General pursuant to this
section and Chapter 5 (commencing with Section 17200) of Part 2 of
Division 7 of the Business and Professions Code. If a fine is imposed
under this section, it shall be in lieu of all other fines that may
be imposed pursuant to any other provision of law for the crimes for
which the defendant has been convicted in the action.
SEC. 2. Section 186.12 of the Penal Code is amended to read:
186.12. (a) (1) A felony for purposes of this section means a
felony violation of subdivision (d) or (e) of Section 368, or a
felony violation of subdivision (c) of Section 15656 of the Welfare
and Institutions Code, that involves the taking or loss of more than
one hundred thousand dollars ($100,000).
(2) If a person is charged with a felony as described in paragraph
(1) and an allegation as to the existence of those facts has been
made, any property that is in the control of that person, and any
property that has been transferred by that person to a third party,
subsequent to the commission of any criminal act alleged pursuant to
this subdivision, other than in a bona fide purchase, whether found
within or outside the state, may be preserved by the superior court
in order to pay restitution imposed pursuant to this section. Upon
conviction of the felony, this property may be levied upon by the
superior court to pay restitution imposed pursuant to this section.
(b) (1) To prevent dissipation or secreting of property, the
prosecuting agency may, at the same time as or subsequent to the
filing of a complaint or indictment charging a felony subject to this
section, file a petition with the criminal division of the superior
court of the county in which the accusatory pleading was filed,
seeking a temporary restraining order, preliminary
injunction, the appointment of a
receiver, or any other protective relief necessary to preserve the
property. The filing of the petition shall commence a proceeding that
shall be pendent to the criminal proceeding and maintained solely to
affect the criminal remedies provided for in this section. The
proceeding shall not be subject to or governed by the provisions of
the Civil Discovery Act as set forth in Title 4 (commencing with
Section 2016.010) of Part 4 of the Code of Civil Procedure. The
petition shall allege that the defendant has been charged with a
felony as described in paragraph (1) of subdivision (a) and shall
identify that criminal proceeding and the property to be affected by
an order issued pursuant to this section.
(2) A notice regarding the petition shall be provided, by personal
service or registered mail, to every person who may have an interest
in the property specified in the petition. Additionally, the notice
shall be published for at least three successive weeks in a newspaper
of general circulation in the county where the property affected by
an order issued pursuant to this section is located. The notice shall
state that any interested person may file a verified claim with the
superior court stating the nature and amount of their claimed
interest. The notice shall set forth the time within which a claim of
interest in the protected property is required to be filed.
(3) If the property to be preserved is real property, the
prosecuting agency shall record, at the time of filing the petition,
a lis pendens in each county in which the real property is situated
which specifically identifies the property by legal description, the
name of the owner of record as shown on the latest equalized
assessment roll, and the assessor's parcel number.
(4) If the property to be preserved are assets under the control
of a banking or financial institution, the prosecuting agency, at the
time of the filing of the petition, may obtain an order from the
court directing the banking or financial institution to immediately
disclose the account numbers and value of the assets of the accused
held by the banking or financial institution. The prosecuting agency
shall file a supplemental petition, specifically identifying which
banking or financial institution accounts shall be subject to a
temporary restraining order, preliminary injunction, or other
protective remedy.
(5) Any person claiming an interest in the protected property may,
at any time within 30 days from the date of the first publication of
the notice of the petition, or within 30 days after receipt of
actual notice, file with the superior court of the county in which
the action is pending a verified claim stating the nature and amount
of his or her interest in the property. A verified copy of the claim
shall be served by the claimant on the Attorney General or district
attorney, as appropriate.
(6) The imposition of restitution pursuant to this section shall
be determined by the superior court in which the underlying criminal
offense is sentenced. Any judge who is assigned to the criminal
division of the superior court in the county where the petition is
filed may issue a temporary restraining order in conjunction with, or
subsequent to, the filing of an allegation pursuant to this section.
Any subsequent hearing on the petition shall also be heard by a
judge assigned to the criminal division of the superior court in the
county in which the petition is filed. At the time of the filing of
an information or indictment in the underlying criminal case, any
subsequent hearing on the petition shall be heard by the superior
court judge assigned to the underlying criminal case.
(c) Concurrent with or subsequent to the filing of the petition
pursuant to this section, the prosecuting agency may move the
superior court for, and the superior court may issue, the following
pendente lite orders to preserve the status quo of the property
identified in the petition:
(1) An injunction to restrain any person from transferring,
encumbering, hypothecating, or otherwise disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the properties so that the property may be
maintained and preserved. The court may order that a receiver
appointed pursuant to this section shall be compensated for all
reasonable expenditures made or incurred by him or her in connection
with the possession, care, management, and operation of any property
that is subject to this section.
(3) A bond or other undertaking, in lieu of other orders, of a
value sufficient to ensure the satisfaction of restitution imposed
pursuant to this section.
(d) (1) No preliminary injunction may be granted or receiver
appointed by the court without notice that meets the requirements of
paragraph (2) of subdivision (b) to all known and reasonably
ascertainable interested parties and upon a hearing to determine that
an order is necessary to preserve the property pending the outcome
of the criminal proceedings. A temporary restraining order may be
issued by the court, ex parte, pending that hearing in conjunction
with or subsequent to the filing of the petition upon the application
of the prosecuting attorney. The temporary restraining order may be
based upon the sworn declaration of a peace officer with personal
knowledge of the criminal investigation that establishes probable
cause to believe that a felony has taken place and that the amount of
restitution established by this section exceeds or equals the worth
of the property subject to the temporary restraining order. The
declaration may include the hearsay statements of witnesses to
establish the necessary facts. The temporary restraining order may be
issued without notice upon a showing of good cause to the court.
(2) The defendant, or a person who has filed a verified claim as
provided in paragraph (5) of subdivision (b), shall have the right to
have the court conduct an order to show cause hearing within 10 days
of the service of the request for hearing upon the prosecuting
agency, in order to determine whether the temporary restraining order
should remain in effect, whether relief should be granted from any
lis pendens recorded pursuant to paragraph (3) of subdivision (b), or
whether any existing order should be modified in the interests of
justice. Upon a showing of good cause, the hearing shall be held
within two days of the service of the request for hearing upon the
prosecuting agency.
(3) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the filing of an
allegation pursuant to this section, the court has the discretion to
consider any matter that it deems reliable and appropriate, including
hearsay statements, in order to reach a just and equitable decision.
The court shall weigh the relative degree of certainty of the
outcome on the merits and the consequences to each of the parties of
granting the interim relief. If the prosecution is likely to prevail
on the merits and the risk of dissipation of the property outweighs
the potential harm to the defendants and the interested parties, the
court shall grant injunctive relief. The court shall give significant
weight to the following factors:
(A) The public interest in preserving the property pendente lite.
(B) The difficulty of preserving the property pendente lite where
the underlying alleged crimes involve issues of fraud and moral
turpitude.
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of elder or dependent adult
financial abuse.
(D) The likelihood that substantial public harm has occurred where
a felony is alleged to have been committed.
(E) The significant public interest involved in compensating the
elder or dependent adult victim of financial abuse and paying
court-imposed restitution.
(4) The court, in making its orders, may consider a defendant's
request for the release of a portion of the property affected by this
section in order to pay reasonable legal fees in connection with the
criminal proceeding, any necessary and appropriate living expenses
pending trial and sentencing, and for the purpose of posting bail.
The court shall weigh the needs of the public to retain the property
against the needs of the defendant to a portion of the property. The
court shall consider the factors listed in paragraph (3) prior to
making any order releasing property for these purposes.
(5) The court, in making its orders, shall seek to protect the
interests of any innocent third persons, including an innocent
spouse, who were not involved in the commission of any criminal
activity.
(6) Any petition filed pursuant to this section shall be part of
the criminal proceedings for purposes of appointment of counsel and
shall be assigned to the criminal division of the superior court of
the county in which the accusatory pleading was filed.
(7) Based upon a noticed motion brought by the receiver appointed
pursuant to paragraph (2) of subdivision (c), the court may order an
interlocutory sale of property identified in the petition when the
property is liable to perish, to waste, or to be significantly
reduced in value, or when the expenses of maintaining the property
are disproportionate to the value thereof. The proceeds of the
interlocutory sale shall be deposited with the court or as directed
by the court pending determination of the proceeding pursuant to this
section.
(8) The court may make any orders that are necessary to preserve
the continuing viability of any lawful business enterprise that is
affected by the issuance of a temporary restraining order or
preliminary injunction issued pursuant to this action.
(9) In making its orders, the court shall seek to prevent any
property subject to a temporary restraining order or preliminary
injunction from perishing, spoiling, going to waste, or otherwise
being significantly reduced in value. Where the potential for
diminution in value exists, the court shall appoint a receiver to
dispose of or otherwise protect the value of the property.
(10) A preservation order shall not be issued against any assets
of a business that are not likely to be dissipated and that may be
subject to levy or attachment to meet the purposes of this section.
(e) If the allegation that the defendant committed a felony
subject to this section is dismissed or found by the trier of fact to
be untrue, any preliminary injunction or temporary restraining order
issued pursuant to this section shall be dissolved. If a jury is the
trier of fact, and the jury is unable to reach a unanimous verdict,
the court shall have the discretion to continue or dissolve all or a
portion of the preliminary injunction or temporary restraining order
based upon the interests of justice. However, if the prosecuting
agency elects not to retry the case, any preliminary injunction or
temporary restraining order issued pursuant to this section shall be
dissolved.
(f) (1) (A) If the defendant is convicted of a felony subject to
this section, the trial judge shall continue the preliminary
injunction or temporary restraining order until the date of the
criminal sentencing and shall make a finding at that time as to what
portion, if any, of the property subject to the preliminary
injunction or temporary restraining order shall be levied upon to pay
restitution to victims of the crime. The order imposing restitution
may exceed the total worth of the property subjected to the
preliminary injunction or temporary restraining order. The court may
order the immediate transfer of the property to satisfy any judgment
and sentence made pursuant to this section. Additionally, upon motion
of the prosecution, the court may enter an order as part of the
judgment and sentence making the order imposing restitution pursuant
to this section enforceable pursuant to Title 9 (commencing with
Section 680.010) of Part 2 of the Code of Civil Procedure.
(B) Additionally, the court shall order the defendant to make full
restitution to the victim. The payment of the restitution ordered by
the court pursuant to this section shall be made a condition of any
probation granted by the court. Notwithstanding any other provision
of law, the court may order that the period of probation continue for
up to 10 years or until full restitution is made to the victim,
whichever is earlier.
(C) The sentencing court shall retain jurisdiction to enforce the
order to pay additional restitution and, in appropriate cases, may
initiate probation violation proceedings or contempt of court
proceedings against a defendant who is found to have willfully failed
to comply with any lawful order of the court.
(D) If the execution of judgment is stayed pending an appeal of an
order of the superior court pursuant to this section, the
preliminary injunction or temporary restraining order shall be
maintained in full force and effect during the pendency of the
appellate period.
(2) The order imposing restitution shall not affect the interest
in real property of any third party that was acquired prior to the
recording of the lis pendens, unless the property was obtained from
the defendant other than as a bona fide purchaser for value. If any
assets or property affected by this section are subject to a valid
lien, mortgage, security interest, or interest under a conditional
sales contract and the amount due to the holder of the lien,
mortgage, interest, or contract is less than the appraised value of
the property, that person may pay to the state or the local
government that initiated the proceeding the amount of the difference
between the appraised value of the property and the amount of the
lien, mortgage, security interest, or interest under a conditional
sales contract. Upon that payment, the state or local entity shall
relinquish all claims to the property. If the holder of the interest
elects not to make that payment to the state or local governmental
entity, the interest in the property shall be deemed transferred to
the state or local governmental entity and any indicia of ownership
of the property shall be confirmed in the state or local governmental
entity. The appraised value shall be determined as of the date
judgment is entered either by agreement between the holder of the
lien, mortgage, security interest, or interest under a conditional
sales contract and the governmental entity involved, or if they
cannot agree, then by a court-appointed appraiser for the county in
which the action is brought. A person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract
shall be paid the appraised value of his or her interest.
(3) In making its final order, the court shall seek to protect the
legitimately acquired interests of any innocent third persons,
including an innocent spouse, who were not involved in the commission
of any criminal activity.
(g) In all cases where property is to be levied upon pursuant to
this section, a receiver appointed by the court shall be empowered to
liquidate all property, the proceeds of which shall be distributed
in the following order of priority:
(1) To the receiver, or court-appointed appraiser, for all
reasonable expenditures made or incurred by him or her in connection
with the sale or liquidation of the property, including all
reasonable expenditures for any necessary repairs, storage, or
transportation of any property levied upon under this section.
(2) To any holder of a valid lien, mortgage, or security interest
up to the amount of his or her interest in the property or proceeds.
(3) To any victim as restitution for any fraudulent or unlawful
acts alleged in the accusatory pleading that were proven by the
prosecuting agency as part of the pattern of fraudulent or unlawful
acts.
(h) Unless otherwise expressly provided, the remedies or penalties
provided by this section are cumulative to each other and to the
remedies or penalties available under all other laws of this state,
except that two separate actions against the same defendant and
pertaining to the same fraudulent or unlawful acts may not be brought
by a district attorney or the Attorney General pursuant to this
section and Chapter 5 (commencing with Section 17200) of Part 2 of
Division 7 of the Business and Professions Code.
SEC. 3. 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
three hundred dollars ($300) and not more than ten thousand dollars
($10,000). If the person is convicted of a misdemeanor, the fine
shall not be less than one hundred fifty dollars ($150) and not more
than one thousand dollars ($1,000).
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of the minimum fine pursuant to
paragraph (1) multiplied by the number of years of imprisonment the
defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record. A 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 Chapter 8
(commencing with Section 11469) of Division 10 of the Health and
Safety Code, be applied to the restitution fine if the funds are not
exempt for spousal or child support or subject to any other legal
exemption.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the minimum fine pursuant to paragraph (1) of
subdivision (b), the court shall consider any relevant factors,
including, but not limited to, the 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. The court may specify that funds confiscated at the time
of the defendant's arrest, except for funds confiscated pursuant to
Chapter 8 (commencing with Section 11469) of Division 10 of the
Health and Safety Code, be applied to the restitution order if the
funds are not exempt for spousal or child support or subject to any
other legal exemption.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court may
modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion. A victim at a restitution
hearing or modification hearing described in this paragraph may
testify by live, two-way audio and video transmission, if testimony
by live, two-way audio and video transmission is available at the
court.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of a third party. Restitution ordered pursuant to
this subdivision shall be ordered to be deposited in the Restitution
Fund to the extent that the victim, as defined in subdivision (k),
has received assistance from the California Victim Compensation and
Government Claims Board pursuant to Chapter 5 (commencing with
Section 13950) of Part 4 of Division 3 of Title 2 of the Government
Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the 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 (D) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
(B) A stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
(C) A report by the probation officer, or information submitted by
the defendant applying for a conditional sentence pursuant to
subdivision (d) of Section 1203.
(9) The court may consider a 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) A defendant's inability to pay shall not be a consideration in
determining the amount of a restitution order.
(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing with
Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, in order to determine the 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 should not be required,
the court shall order, as a condition of probation, that the
defendant perform specified community service, unless it finds and
states on the record compelling and extraordinary reasons not to
require community service in addition to the finding that a
restitution fine should not be required. Upon revocation of
probation, the court shall impose the restitution fine pursuant to
this section.
(o) The provisions of Section 13963 of the Government Code shall
apply to restitution imposed pursuant to this section.
(p) The court clerk shall notify the California Victim
Compensation and Government Claims Board within 90 days of an order
of restitution being imposed if the defendant is ordered to pay
restitution to the board due to the victim receiving compensation
from the Restitution Fund. Notification shall be accomplished by
mailing a copy of the court order to the board, which may be done
periodically by bulk mail or email.
(q) Upon conviction for a violation of Section 236.1, the court
shall, in addition to any other penalty or restitution, order the
defendant to pay restitution to the victim in a case in which a
victim has suffered economic loss as a result of the 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. 4. Section 1202.46 of the Penal Code is amended to read:
1202.46. Notwithstanding Section 1170, when the economic losses
of a victim cannot be ascertained at the time of sentencing pursuant
to subdivision (f) of Section 1202.4, the court shall retain
jurisdiction over a person subject to a restitution order for
purposes of imposing or modifying restitution until such time as the
losses may be determined. This section does not prohibit a victim,
the district attorney, or a court on its own motion from requesting
correction, at any time, of a sentence when the sentence is invalid
due to the omission of a restitution order or fine pursuant to
Section 1202.4.
SEC. 5. The Legislature finds and declares that this measure is
declaratory of existing law, as described in footnote 2 of People v.
Pierce (2015) 234 Cal.App.4th 1334 (hereafter Pierce). As noted in
that case, subdivision (b) of Section 28 of Article I of the
California Constitution, as amended by Proposition 9 (Marsy's Law) at
the November 4, 2008, general election, requires that "restitution
shall be ordered from the convicted wrongdoer in every case,
regardless of the sentence or disposition imposed, in which a crime
victim suffers a loss." By providing that a court has authority to
order less than full restitution in situations where a victim suffers
a loss, subdivision (f) of Section 1202.4 of the Penal Code is
inconsistent with the constitutional requirement. The court in Pierce
encouraged the Legislature to conform this requirement to the
Constitution. This measure would do so.
