BILL NUMBER: SB 366 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 14, 2013
AMENDED IN SENATE APRIL 1, 2013
INTRODUCED BY Senator Wright
FEBRUARY 20, 2013
An act to amend Sections 19.6, 1203, 1209.5, and 1214.1 of the
Penal Code, and to amend Sections 40509, 40509.5, and 42003 of the
Vehicle Code, relating to fines.
LEGISLATIVE COUNSEL'S DIGEST
SB 366, as amended, Wright. Traffic fines: ability to pay.
(1) Existing law requires the court to hear and determine the
suitability of probation in a particular case. At the hearing, the
court is required to consider any report of the probation officer,
and, if the court determines that there are circumstances in
mitigation of the punishment prescribed by law or that the ends of
justice would be served by granting probation to the person, the
court may place the person on probation.
This bill would provide, for purposes of these provisions, that
circumstances in mitigation include, but are not limited to, the
payment of all or part of a traffic fine or a civil assessment
imposed for the failure to appear in court or to pay a fine in an
infraction, misdemeanor, or felony case, and participation in court
ordered community service to satisfy a traffic fine or that civil
assessment.
(2) Existing law authorizes the court to sentence a person who has
been convicted of an infraction, upon showing that payment of the
total fine, as defined, would pose a hardship on the person or his or
her family, to perform community service in lieu of the total fine
that would otherwise be imposed. Existing law requires the hourly
rate applicable to community service work by criminal defendants to
be determined by dividing the total fine by the number of hours to be
performed in lieu of the total fine.
This bill would additionally authorize the court to sentence a
person who has been convicted of a misdemeanor for a failure to
appear or to pay bail pursuant to specified provisions, or upon whom
a civil assessment has been imposed for the failure to appear in
court or to pay a fine in an infraction, misdemeanor, or felony case,
upon a showing that payment of part or all of the total fine or
civil assessment would pose a hardship on the person or his or her
family, to perform community service in lieu of part or all of the
total fine or civil assessment that would otherwise be imposed.
The bill would require the court to determine that paying all or a
modified amount of the total fine is a hardship if the defendant
receives any of certain categories of public benefits, as specified.
The bill would authorize the court to delegate to the clerk of the
court the authority to grant a defendant's request for community
service based on receipt of those benefits, as specified. The
bill would require the community service to be performed in the
person's county of residence or another county in
this state chosen by the defendant. The bill would require
the hourly rate applicable to community service work to be determined
by dividing the base fine by the number of hours to be performed in
lieu of the total fine, and would require that the hourly rate be at
least 150% of the applicable minimum wage. By
increasing duties on local governments in connection with supervising
defendants performing community service, this bill would impose a
state-mandated local program.
(3) Existing law authorizes the court, in addition to any other
penalty in an infraction, misdemeanor, or felony case, to impose a
civil assessment of up to $300 against any defendant who fails, after
notice and without good cause, to appear in court for any proceeding
authorized by law, or who fails to pay all or any portion of a fine
ordered by the court or to pay an installment of bail, as specified.
Existing law provides that the assessment shall not become effective
until at least 10 calendar days after the court mails a warning
notice to the defendant, and requires the court, if the defendant
appears within the time specified in the notice and shows good cause
for the failure to appear or for the failure to pay a fine or
installment of bail, to vacate the assessment.
This bill would authorize the court, in its discretion, to waive
or impose on a particular defendant, a civil assessment of not less
than $10, and not more than $300, if that defendant fails, after
notice and without good cause, to appear in court for any proceeding
authorized by law, fails to pay all or any portion of a fine ordered
by the court, or fails to pay an installment of bail, as specified.
The bill would require the amount of the assessment to be based on
the defendant's ability to pay and set according to a schedule
adopted by the Judicial Council. The bill would authorize the
court to determine that a defendant does not have the ability to pay
the assessment if the defendant demonstrates that he or she
receives any of certain categories of public
benefits, as specified. The bill would provide that the
assessment shall not become effective until at least 30 calendar days
after the court mails a warning notice to the defendant, and would
require the court, if the defendant appears within the time specified
in the notice, or beyond the time specified in the notice if there
is evidence that the notice was not in fact received, and shows good
cause for the failure to appear or for the failure to pay a fine or
installment of bail, to vacate the assessment. The bill would
require the court to vacate the assessment if the defendant provides
a sworn statement under penalty of perjury that the notice was not
received because the defendant is homeless or has no fixed address.
The bill would provide that ability to post bail or to pay the
fine or civil assessment is not a prerequisite to filing a request
that the court vacate the assessment. The bill would require the
court to provide a process for a defendant to appear to show good
cause for failure to appear, and would require the court to waive a
civil assessment if the defendant meets the good cause standard for
vacating a civil assessment. The bill would require the court to
grant a defendant's request to vacate the civil assessment for good
cause for the inability to pay if the defendant demonstrates that he
or she receives any of certain categories of public benefits, as
specified.
By expanding the scope of the crime of perjury, this bill would
impose a state-mandated local program.
(4) Existing law authorizes a court to give notice to the
Department of Motor Vehicles if any person has willfully failed to
pay a lawfully imposed fine, or bail in installments, within the time
authorized by the court, except as specified. Existing law requires
the court to mail a courtesy warning notice to the defendant at least
10 days before sending a notice to the department for specified
violations of the Vehicle Code. If thereafter the fine is fully paid,
the court is required to issue and file with the department a
certificate showing that the fine has been paid.
This bill would require the court, if the fine is fully paid, or
an agreement is signed to pay the fine, fee, or bail in installments,
or an agreement is signed to perform community service pursuant to
the provisions described in (2) above, to issue and file with the
department a certificate showing that the fine has been paid or
satisfied, or an agreement has been signed, and request that the
license hold be lifted. The bill would prohibit the court from
requiring the payment of bail, the fine, or a civil assessment before
a person may request the court to vacate a civil assessment. The
bill also would require the court to mail the courtesy warning notice
to the defendant at least 30 days before sending a notice to the
department for specified violations of the Vehicle Code. The
bill would authorize the court to give notice to the Department of
Motor Vehicles i f a person fails to pay an outstanding
fine or fee in installments or to perform community service
consistent with the terms of the signed agreement .
(5) Existing law requires the court, in any case when a person
appears before a traffic referee or judge for adjudication of a
Vehicle Code violation, upon request of the defendant, to consider
the defendant's ability to pay. Among other things, the court is
required to order the defendant to appear before a county officer to
make an inquiry into the ability of the defendant to pay specified
costs or the court may make this determination. Existing law defines
the defendant's ability to pay as the overall capability of the
defendant to reimburse the costs, or a portion of the costs, of
conducting the presentence investigation, preparing the presentence
report, and probation. A defendant's ability to pay includes, but is
not limited to, the defendant's present financial position,
reasonably discernible future financial position, and any other
factors that may bear upon the defendant's financial capability to
reimburse the county for costs.
This bill would require the court to consider the defendant's
ability to pay when a defendant appears for adjudication of any
infraction. By increasing the duties of county officers,
this bill would impose a state-mandated local program. The
bill would authorize the court to conclusively presume that a
defendant does not have the ability to pay if the defendant
demonstrates that he or she is receiving public benefits under
specified programs, including, among others, the Supplemental
Nutrition Assistance Program and Medi-Cal. This bill would also
require the court to advise the defendant of the right to a
determination of the ability to pay at the time of rendering
judgment. The bill would authorize the court to conclusively
presume that a defendant does not have the ability to pay the fine if
the defendant demonstrates that he or she receives any of certain
categories of public benefits, as specified. The bill would authorize
the court to give notice to the Department of Motor
Vehicles if a person fails to pay an outstanding fine or fee in
installments or to perform community service consistent with the
terms of the signed agreement.
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.
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 with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 19.6 of the Penal Code is amended to read:
19.6. (a) An infraction is not punishable by imprisonment. A
person charged with an infraction shall not be entitled to a trial by
jury. A person charged with an infraction shall not be entitled to
have the public defender or other counsel appointed at public expense
to represent him or her unless he or she is arrested and not
released on his or her written promise to appear, his or her own
recognizance, or a deposit of bail.
(b) In any case when a person appears before a traffic referee
or , judge , or commissioner
of the superior court for adjudication of an infraction violation,
the court, upon request of the defendant, shall consider the
defendant's ability to pay a fine or assessment in
accordance with subdivision subdivisions
(c) and (d) of Section 42003 of the Vehicle Code.
SEC. 2. Section 1203 of the Penal Code is amended to read:
1203. (a) As used in this code, "probation" means the suspension
of the imposition or execution of a sentence and the order of
conditional and revocable release in the community under the
supervision of a probation officer. As used in this code,
"conditional sentence" means the suspension of the imposition or
execution of a sentence and the order of revocable release in the
community subject to conditions established by the court without the
supervision of a probation officer. It is the intent of the
Legislature that both conditional sentence and probation are
authorized whenever probation is authorized in any code as a
sentencing option for infractions or misdemeanors.
(b) (1) Except as provided in subdivision (j), if a person is
convicted of a felony and is eligible for probation, before judgment
is pronounced, the court shall immediately refer the matter to a
probation officer to investigate and report to the court, at a
specified time, upon the circumstances surrounding the crime and the
prior history and record of the person, which may be considered
either in aggravation or mitigation of the punishment.
(2) (A) The probation officer shall immediately investigate and
make a written report to the court of his or her findings and
recommendations, including his or her recommendations as to the
granting or denying of probation and the conditions of probation, if
granted.
(B) Pursuant to Section 828 of the Welfare and Institutions Code,
the probation officer shall include in his or her report any
information gathered by a law enforcement agency relating to the
taking of the defendant into custody as a minor, which shall be
considered for purposes of determining whether adjudications of
commissions of crimes as a juvenile warrant a finding that there are
circumstances in aggravation pursuant to Section 1170 or to deny
probation.
(C) If the person was convicted of an offense that requires him or
her to register as a sex offender pursuant to Sections 290 to
290.023, inclusive, or if the probation report recommends that
registration be ordered at sentencing pursuant to Section 290.006,
the probation officer's report shall include the results of the
State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO)
administered pursuant to Sections 290.04 to 290.06, inclusive, if
applicable.
(D) The probation officer shall also include in the report his or
her recommendation of both of the following:
(i) The amount the defendant should be required to pay as a
restitution fine pursuant to subdivision (b) of Section 1202.4.
(ii) Whether the court shall require, as a condition of probation,
restitution to the victim or to the Restitution Fund and the amount
thereof.
(E) The report shall be made available to the court and the
prosecuting and defense attorneys at least five days, or upon request
of the defendant or prosecuting attorney nine days, prior to the
time fixed by the court for the hearing and determination of the
report, and shall be filed with the clerk of the court as a record in
the case at the time of the hearing. The time within which the
report shall be made available and filed may be waived by written
stipulation of the prosecuting and defense attorneys that is filed
with the court or an oral stipulation in open court that is made and
entered upon the minutes of the court.
(3) (A) At a time fixed by the court, the court shall hear and
determine the application, if one has been made, or, in any case, the
suitability of probation in the particular case. At the hearing, the
court shall consider any report of the probation officer, including
the results of the SARATSO, if applicable, and shall make a statement
that it has considered the report, which shall be filed with the
clerk of the court as a record in the case. If the court determines
that there are circumstances in mitigation of the punishment
prescribed by law or that the ends of justice would be served by
granting probation to the person, it may place the person on
probation. If probation is denied, the clerk of the court shall
immediately send a copy of the report to the Department of
Corrections and Rehabilitation at the prison or other institution to
which the person is delivered.
(B) For purposes of subparagraph (A), circumstances in mitigation
of the punishment prescribed by law include, but are not limited to,
all of the following:
(i) The payment of all or part of a traffic fine.
(ii) The payment of all or part of a civil assessment imposed
under Section 1214.1.
(iii) Participation in court-ordered community service pursuant to
Section 1209.5 to satisfy a traffic fine or civil assessment imposed
under Section 1214.1.
(4) The preparation of the report or the consideration of the
report by the court may be waived only by a written stipulation of
the prosecuting and defense attorneys that is filed with the court or
an oral stipulation in open court that is made and entered upon the
minutes of the court, except that there shall be no waiver unless the
court consents thereto. However, if the defendant is ultimately
sentenced and committed to the state prison, a probation report shall
be completed pursuant to Section 1203c.
(c) If a defendant is not represented by an attorney, the court
shall order the probation officer who makes the probation report to
discuss its contents with the defendant.
(d) If a person is convicted of a misdemeanor, the court may
either refer the matter to the probation officer for an investigation
and a report or summarily pronounce a conditional sentence. If the
person was convicted of an offense that requires him or her to
register as a sex offender pursuant to Sections 290 to 290.023,
inclusive, or if the probation officer recommends that the court, at
sentencing, order the offender to register as a sex offender pursuant
to Section 290.006, the court shall refer the matter to the
probation officer for the purpose of obtaining a report on the
results of the State-Authorized Risk Assessment Tool for Sex
Offenders administered pursuant to Sections 290.04 to 290.06,
inclusive, if applicable, which the court shall consider. If the case
is not referred to the probation officer, in sentencing the person,
the court may consider any information concerning the person that
could have been included in a probation report. The court shall
inform the person of the information to be considered and permit him
or her to answer or controvert the information. For this purpose,
upon the request of the person, the court shall grant a continuance
before the judgment is pronounced.
(e) Except in unusual cases where the interests of justice would
best be served if the person is granted probation, probation shall
not be granted to any of the following persons:
(1) Unless the person had a lawful right to carry a deadly weapon,
other than a firearm, at the time of the perpetration of the crime
or his or her arrest, any person who has been convicted of arson,
robbery, carjacking, burglary, burglary with explosives, rape with
force or violence, torture, aggravated mayhem, murder, attempt to
commit murder, train wrecking, kidnapping, escape from the state
prison, or a conspiracy to commit one or more of those crimes and who
was armed with the weapon at either of those times.
(2) Any person who used, or attempted to use, a deadly weapon upon
a human being in connection with the perpetration of the crime of
which he or she has been convicted.
(3) Any person who willfully inflicted great bodily injury or
torture in the perpetration of the crime of which he or she has been
convicted.
(4) Any person who has been previously convicted twice in this
state of a felony or in any other place of a public offense which, if
committed in this state, would have been punishable as a felony.
(5) Unless the person has never been previously convicted once in
this state of a felony or in any other place of a public offense
which, if committed in this state, would have been punishable as a
felony, any person who has been convicted of burglary with
explosives, rape with force or violence, torture, aggravated mayhem,
murder, attempt to commit murder, train wrecking, extortion,
kidnapping, escape from the state prison, a violation of Section 286,
288, 288a, or 288.5, or a conspiracy to commit one or more of those
crimes.
(6) Any person who has been previously convicted once in this
state of a felony or in any other place of a public offense which, if
committed in this state, would have been punishable as a felony, if
he or she committed any of the following acts:
(A) Unless the person had a lawful right to carry a deadly weapon
at the time of the perpetration of the previous crime or his or her
arrest for the previous crime, he or she was armed with a weapon at
either of those times.
(B) The person used, or attempted to use, a deadly weapon upon a
human being in connection with the perpetration of the previous
crime.
(C) The person willfully inflicted great bodily injury or torture
in the perpetration of the previous crime.
(7) Any public official or peace officer of this state or any
city, county, or other political subdivision who, in the discharge of
the duties of his or her public office or employment, accepted or
gave or offered to accept or give any bribe, embezzled public money,
or was guilty of extortion.
(8) Any person who knowingly furnishes or gives away
phencyclidine.
(9) Any person who intentionally inflicted great bodily injury in
the commission of arson under subdivision (a) of Section 451 or who
intentionally set fire to, burned, or caused the burning of, an
inhabited structure or inhabited property in violation of subdivision
(b) of Section 451.
(10) Any person who, in the commission of a felony, inflicts great
bodily injury or causes the death of a human being by the discharge
of a firearm from or at an occupied motor vehicle proceeding on a
public street or highway.
(11) Any person who possesses a short-barreled rifle or a
short-barreled shotgun under Section 33215, a machinegun under
Section 32625, or a silencer under Section 33410.
(12) Any person who is convicted of violating Section 8101 of the
Welfare and Institutions Code.
(13) Any person who is described in subdivision (b) or (c) of
Section 27590.
(f) When probation is granted in a case which comes within
subdivision (e), the court shall specify on the record and shall
enter on the minutes the circumstances indicating that the interests
of justice would best be served by that disposition.
(g) If a person is not eligible for probation, the judge shall
refer the matter to the probation officer for an investigation of the
facts relevant to determination of the amount of a restitution fine
pursuant to subdivision (b) of Section 1202.4 in all cases where the
determination is applicable. The judge, in his or her discretion, may
direct the probation officer to investigate all facts relevant to
the sentencing of the person. Upon that referral, the probation
officer shall immediately investigate the circumstances surrounding
the crime and the prior record and history of the person and make a
written report to the court of his or her findings. The findings
shall include a recommendation of the amount of the restitution fine
as provided in subdivision (b) of Section 1202.4.
(h) If a defendant is convicted of a felony and a probation report
is prepared pursuant to subdivision (b) or (g), the probation
officer may obtain and include in the report a statement of the
comments of the victim concerning the offense. The court may direct
the probation officer not to obtain a statement if the victim has in
fact testified at any of the court proceedings concerning the
offense.
(i) A probationer shall not be released to enter another state
unless his or her case has been referred to the Administrator of the
Interstate Probation and Parole Compacts, pursuant to the Uniform Act
for Out-of-State Probationer or Parolee Supervision (Article 3
(commencing with Section 11175) of Chapter 2 of Title 1 of Part 4)
and the probationer has reimbursed the county that has jurisdiction
over his or her probation case the reasonable costs of processing his
or her request for interstate compact supervision. The amount and
method of reimbursement shall be in accordance with Section 1203.1b.
(j) In any court where a county financial evaluation officer is
available, in addition to referring the matter to the probation
officer, the court may order the defendant to appear before the
county financial evaluation officer for a financial evaluation of the
defendant's ability to pay restitution, in which case the county
financial evaluation officer shall report his or her findings
regarding restitution and other court-related costs to the probation
officer on the question of the defendant's ability to pay those
costs.
Any order made pursuant to this subdivision may be enforced as a
violation of the terms and conditions of probation upon willful
failure to pay and at the discretion of the court, may be enforced in
the same manner as a judgment in a civil action, if any balance
remains unpaid at the end of the defendant's probationary period.
(k) Probation shall not be granted to, nor shall the execution of,
or imposition of sentence be suspended for, any person who is
convicted of a violent felony, as defined in subdivision (c) of
Section 667.5, or a serious felony, as defined in subdivision (c) of
Section 1192.7, and who was on probation for a felony offense at the
time of the commission of the new felony offense.
SEC. 3. Section 1209.5 of the Penal Code is amended to read:
1209.5. (a) Notwithstanding any other law, a person described in
paragraph (1), (2), or (3) of subdivision (b) may, upon a showing
that payment of part or all of the total or
modified fine or civil assessment
amount would pose a hardship on the defendant or his or her
family, be sentenced to perform community service in lieu of
part or all of the total or modified fine
or civil assessment amount that would
otherwise be imposed. The defendant shall perform community service
according to the schedule set forth in subdivision (d) in
the defendant's county of residence, or another county in
this state chosen by the defendant, at the hourly rate applicable to
community service work performed by criminal defendants
choice .
(b) Subdivision (a) shall apply to a person described by any of
the following:
(1) Convicted of an infraction.
(2) Convicted of a misdemeanor for a failure to appear or to pay
bail pursuant to subdivision (a) or (b) of Section 40508 of the
Vehicle Code or Section 853.7 of this code.
(3) Upon whom a civil assessment has been imposed for a failure to
appear in court or to pay a fine pursuant to Section 1214.1.
(c) For the purposes of this section, both of
the following shall apply:
(1) "Total fine" means the base fine and all assessments,
including civil assessments, penalties, and additional moneys
to be paid by the defendant.
(2) The hourly rate applicable to community service work by
criminal defendants shall be determined by dividing the base fine by
the number of hours of community service ordered by the court to be
performed in lieu of the total fine. The hourly rate shall be at
least 150 percent of the state minimum wage or any other applicable
city or county minimum wage.
(3)
(2) If the court orders the defendant to perform
community service pursuant to this section in lieu of part or all of
the total fine or civil assessment that would
otherwise be imposed, the performance of that community service work
is in lieu of the total fine, or that percentage of the total fine
specified by the court. The court shall not order the defendant to
perform community service in lieu of the base fine and still require
the defendant to pay any assessments, penalties, or additional
moneys.
(d) A defendant sentenced to perform community service pursuant to
this section shall perform the number of hours specified as follows:
(1) For a total fine amount up to one thousand dollars ($1,000),
four hours of community service.
(2) For a total fine amount of one thousand one dollars ($1,001)
to five thousand dollars ($5,000), eight hours of community service.
(3) For a total fine amount of five thousand one dollars ($5,001)
or more, 15 hours of community service.
(e) For purposes of this section, the court shall determine that
paying the total or a modified fine is a hardship if the defendant
falls within any of the categories described in subdivision (a) of
Section 68632 of the Government Code.
(f) The court may delegate to the clerk the authority to grant a
defendant's request for community service under subdivision (d) if
the defendant meets the eligibility and application requirements for
a fee waiver under Section 68632 of the Government Code. The court
shall not delegate to the clerk the authority to deny an application
for community service. If the court delegates its authority, the
court shall follow the processing and determination procedures for
fee waivers set forth in Sections 68633 and 68634 of the Government
Code in determining the defendant's eligibility for community
service.
SEC. 4. Section 1214.1 of the Penal Code is amended to read:
1214.1. (a) (1) In addition to any other
penalty in an infraction, misdemeanor, or felony case, the court
may, in its discretion, may waive or
impose upon a particular defendant a civil assessment of no less than
ten dollars ($10), but no greater than three hundred dollars ($300),
if that defendant (1) fails, after notice and
without good cause, to appear in court for any proceeding authorized
by law, (2) fails to pay all or any portion of a
fine ordered by the court, or (3) fails to pay an
installment of bail as agreed to under Section 40510.5 of the Vehicle
Code. The amount of the assessment shall be based on that defendant'
s ability to pay and set according to a schedule adopted by the
Judicial Council. This assessment shall be deposited in the Trial
Court Trust Fund, as provided in Section 68085.1 of the Government
Code. A civil assessment shall not be imposed for an infraction
violation of the Vehicle Code in which the
defendant was not the driver of the vehicle.
(2) The court may determine that a defendant does not have the
ability to pay the assessment if the defendant demonstrates that he
or she falls within one of the categories described in subdivision
(a) of Section 68632 of the Government Code.
(b) The assessment imposed under subdivision (a) shall not become
effective until at least 30 calendar days after the court mails a
warning notice to the defendant by first-class mail to the address
shown on the notice to appear or to the defendant's last known
address. The court shall vacate the assessment if the defendant
appears within the time specified in the notice and shows good cause
for the failure to appear or for the failure to pay a fine or
installment of bail. The court also shall vacate the assessment if
the defendant appears beyond the time specified in the notice and
there is evidence provides a sworn statement
under penalty of perjury that the notice was not in fact
received , including evidence that because
the defendant is homeless or does not have a fixed address.
Ability to post bail or to pay the fine or civil assessment is not a
prerequisite to filing a request that the court vacate the
assessment. Imposition of a civil assessment shall not preclude a
defendant from scheduling a court hearing on the underlying charge
if the defendant is otherwise entitled to the hearing
.
(c) If a civil assessment is imposed under this section, a bench
warrant or warrant of arrest shall not be issued with respect to the
failure to appear at the proceeding for which the assessment is
imposed or the failure to pay the fine or installment of bail. An
outstanding, unserved bench warrant or warrant of arrest for a
failure to appear or for a failure to pay a fine or installment of
bail shall be recalled prior to the subsequent imposition of a civil
assessment.
(d) The assessment imposed under subdivision (a) shall be subject
to the due process requirements governing defense and collection of
civil money judgments generally. The court shall provide a
process for a defendant to appear before a judge to show good cause
for failure to appear and shall not limit the grounds for
good cause for failure to appear. The court shall waive the civil
assessment when the defendant meets the good cause standard for
vacating a civil assessment.
(e) The court shall grant a defendant's request to vacate the
civil assessment for good cause for the inability to pay if the
defendant meets the eligibility and application requirements for a
fee waiver under subdivision (a) of Section 68632 of the Government
Code as determined under Sections 68633 and 68634 of the Government
Code.
(e)
(f) Each court and county shall maintain the collection
program that was in effect on July 1, 2005, unless otherwise agreed
to by the court and county. If a court and a county do not agree on a
plan for the collection of civil assessments imposed pursuant to
this section, or any other collections under Section 1463.010, after
the implementation of Sections 68085.6 and 68085.7 of the Government
Code, the court or the county may request arbitration by a third
party mutually agreed upon by the Administrative Director of the
Courts and the California State Association of Counties.
SEC. 5. Section 40509 of the Vehicle Code is amended to read:
40509. (a) Except as required under subdivision (c) of Section
40509.5, if any person has violated a written promise to appear or a
lawfully granted continuance of his or her promise to appear in court
or before the person authorized to receive a deposit of bail, or
violated an order to appear in court, including, but not limited to,
a written notice to appear issued in accordance with Section 40518,
the magistrate or clerk of the court may give notice of the failure
to appear to the department for any violation of this code, or any
violation that can be heard by a juvenile traffic hearing referee
pursuant to Section 256 of the Welfare and Institutions Code, or any
violation of any other statute relating to the safe operation of a
vehicle, except violations not required to be reported pursuant to
paragraphs (1), (2), (3), (6), and (7) of subdivision (b) of Section
1803. If thereafter the case in which the promise was given is
adjudicated or the person who has violated the court order appears in
court or otherwise satisfies the order of the court, the magistrate
or clerk of the court hearing the case shall sign and file with the
department a certificate to that effect.
(b) (1) If any person has willfully failed
to pay a lawfully imposed fine within the time authorized by the
court or to pay a fine pursuant to subdivision (a) of Section 42003,
the magistrate or clerk of the court may give notice of the fact to
the department for any violation, except violations not required to
be reported pursuant to paragraphs (1), (2), (3), (6), and (7) of
subdivision (b) of Section 1803. If thereafter (1)
the fine is fully paid, (2) an agreement is
signed to pay the fine or fee in installments, or (3)
an agreement is signed to perform community service
pursuant to Section 1209.5 of the Penal Code, the magistrate or clerk
of the court shall issue and file with the department a certificate
showing that the fine has been paid or satisfied pursuant to Section
1209.5 of the Penal Code, or an agreement has been signed, and
request that the license hold be lifted. The court shall not require
the payment of bail, the fine, or a civil assessment before the
person may request that the court to
vacate a civil assessment imposed under Section 1214.1.
(2) If a person fails to pay an outstanding fine or fee in
installments or to perform community service consistent with the
terms of the signed agreement, the court may give notice of the fact
to the department.
(c) (1) Notwithstanding subdivisions (a) and (b), the court may
notify the department of the total amount of bail, fines,
assessments, and fees authorized or required by this code, including
Section 40508.5, which are unpaid by any person.
(2) Once a court has established the amount of bail, fines,
assessments, and fees, and notified the department, the court shall
not further enhance or modify that amount.
(3) This subdivision applies only to violations of this code that
do not require a mandatory court appearance, are not contested by the
defendant, and do not require proof of correction certified by the
court.
(d) With respect to a violation of this code, this section is
applicable to any court which has not elected to be subject to the
notice requirements of subdivision (b) of Section 40509.5.
(e) Any violation subject to Section 40001, which is the
responsibility of the owner of the vehicle, shall not be reported
under this section.
SEC. 6. Section 40509.5 of the Vehicle Code is amended to read:
40509.5. (a) Except as required under subdivision (c), if,
with respect to an offense described in subdivision (e), a person has
violated his or her written promise to appear or a lawfully granted
continuance of his or her promise to appear in court or before the
person authorized to receive a deposit of bail, or violated an order
to appear in court, including, but not limited to, a written notice
to appear issued in accordance with Section 40518, the magistrate or
clerk of the court may give notice of the failure to appear to the
department for a violation of this code, a violation that can be
heard by a juvenile traffic hearing referee pursuant to Section 256
of the Welfare and Institutions Code, or a violation of any other
statute relating to the safe operation of a vehicle, except
violations not required to be reported pursuant to paragraphs (1),
(2), (3), (6), and (7) of subdivision (b) of Section 1803. If
thereafter the case in which the promise was given is adjudicated or
the person who has violated the court order appears in court and
satisfies the order of the court, the magistrate or clerk of the
court hearing the case shall sign and file with the department a
certificate to that effect.
(b) (1) If, with respect to an offense
described in subdivision (e), a person has willfully failed to pay a
lawfully imposed fine, or bail in installments as agreed to under
Section 40510.5, within the time authorized by the court or to pay a
fine pursuant to subdivision (a) of Section 42003, the magistrate or
clerk of the court may give notice of the fact to the department for
a violation, except violations not required to be reported pursuant
to paragraphs (1), (2), (3), (6), and (7) of subdivision (b) of
Section 1803. If thereafter, (1) the fine or bail is fully paid, (2)
an agreement is signed to pay the fine, fee, or bail in installments,
or (3) an agreement is signed to perform community service pursuant
to Section 1209.5 of the Penal Code, the magistrate or clerk of the
court shall issue and file with the department a certificate showing
that the fine or bail has been paid, or that it has been or will be
satisfied by the performance of community service pursuant to Section
1209.5 of the Penal Code, and request that the license hold be
lifted. The court shall not require the payment of bail, or the
payment of the fine or civil assessment amount, before a person may
request the court to vacate a civil assessment imposed under Section
1214.1.
(2) If a person fails to pay an outstanding fine or fee in
installments or to perform community service consistent with the
terms of the signed agreement, the court may give notice of the fact
to the department.
(c) If a person charged with a violation of Section 23152 or
23153, or Section 191.5 of the Penal Code, or subdivision (a) of
Section 192.5 of the Penal Code has violated a lawfully granted
continuance of his or her promise to appear in court or is released
from custody on his or her own recognizance and fails to appear in
court or before the person authorized to receive a deposit of bail,
or violated an order to appear in court, the magistrate or clerk of
the court shall give notice to the department of the failure to
appear. If thereafter the case in which the notice was given is
adjudicated or the person who has violated the court order appears in
court or otherwise satisfies the order of the court, the magistrate
or clerk of the court hearing the case shall prepare and forward to
the department a certificate to that effect.
(d) Except as required under subdivision (c), the court shall mail
a courtesy warning notice to the defendant by
first-class mail at the address shown on the notice to appear, at
least 30 days before sending a notice to the department under this
section.
(e) If the court notifies the department of a failure to appear
, or pay a fine or bail , or perform community
service pursuant to subdivision (a) or (b), no arrest warrant
shall be issued for an alleged violation of subdivision (a) or (b) of
Section 40508, unless one of the following criteria is met:
(1) The alleged underlying offense is a misdemeanor or felony.
(2) The alleged underlying offense is a violation of any provision
of Division 12 (commencing with Section 24000), Division 13
(commencing with Section 29000), or Division 15 (commencing with
Section 35000), required to be reported pursuant to Section 1803.
(3) The driver's record does not show that the defendant has a
valid California driver's license.
(4) The driver's record shows an unresolved charge that the
defendant is in violation of his or her written promise to appear for
one or more other alleged violations of the law.
(f) Except as required under subdivision (c), in addition to the
proceedings described in this section, the court may elect to notify
the department pursuant to subdivision (c) of Section 40509.
(g) This section is applicable to courts that have elected to
provide notice pursuant to subdivision (b). The method of commencing
or terminating an election to proceed under this section shall be
prescribed by the department.
(h) A violation subject to Section 40001, that is the
responsibility of the owner of the vehicle, shall not be reported
under this section.
SEC. 7. Section 42003 of the Vehicle Code is amended to read:
42003. (a) A judgment that a person convicted of an infraction be
punished by a fine may also provide for the payment to be made
within a specified time or in specified installments. A judgment
granting a defendant time to pay the fine shall order that if the
defendant fails to pay the fine or any installment thereof on the
date that it is due, he or she shall appear in court on that date for
further proceedings. Willful violation of the order is punishable as
contempt.
(b) A judgment that a person convicted of any other violation of
this code be punished by a fine may also order, adjudge, and decree
that the person be imprisoned until the fine is satisfied. In all of
these cases, the judgment shall specify the extent of the
imprisonment which shall not exceed one day for every thirty dollars
($30) of the fine, nor extend in this case beyond the term for which
the defendant might be sentenced to imprisonment for the offense of
which he or she was convicted.
(c) (1) In any case when a person appears before a traffic referee
, commissioner, or judge of the superior court for
adjudication of a violation of this code or any other infraction
violation, the court, upon request of the defendant, shall consider
the defendant's ability to pay the fine . Consideration of
a defendant's ability to pay the fine may include his or
her future earning capacity. A defendant shall bear the burden of
demonstrating lack of his or her ability to pay the fine .
Express findings by the court as to the factors bearing on the
amount of the fine shall not be required. The reasonable cost of
these services and of probation shall not exceed the amount
determined to be the actual average cost thereof. The court shall
order the defendant to appear before a county officer designated by
the court to make an inquiry into the ability of the defendant to pay
all or a portion of those costs or the court or
, traffic referee , or commissioner
may make this determination at a hearing. At that hearing, the
defendant shall be entitled to have, but shall not be limited to, the
opportunity to be heard in person, to present witnesses and other
documentary evidence, to confront and cross-examine adverse
witnesses, to disclosure of the evidence against him or her, and to a
written statement of the findings of the court or the county
officer. If the court determines that the defendant has the ability
to pay all or part of the costs, the court shall set the amount to be
reimbursed and order the defendant to pay that sum to the county in
the manner in which the court believes reasonable and compatible with
the defendant's financial ability; or, with the consent of a
defendant who is placed on probation, the court shall order the
probation officer to set the amount of payment, which shall not
exceed the maximum amount set by the court, and the manner in which
the payment shall be made to the county. In making a determination of
whether a defendant has the ability to pay, the court shall take
into account the amount of any fine imposed upon the defendant and
any amount the defendant has been ordered to pay in restitution.
(2) The court may hold additional hearings during the probationary
period. If practicable, the court or the probation officer shall
order payments to be made on a monthly basis. Execution may be issued
on the order in the same manner as a judgment in a civil action. The
order to pay all or part of the costs shall not be enforced by
contempt.
(3) A payment schedule for reimbursement of the costs of
presentence investigation based on income shall be developed by the
probation department of each county and approved by the presiding
judge of the superior court.
(d) The court may conclusively presume that any defendant who
demonstrates that he or she is receiving public benefits under one or
more of the following programs does not have the ability to pay:
(1) Supplemental Security Income (SSI) and State Supplementary
Payment (SSP) (Article 5 (commencing with Section 12200) of Chapter 3
of Part 3 of Division 9 of the Welfare and Institutions Code).
(2) California Work Opportunity and Responsibility to Kids Act
(CalWORKs) (Chapter 2 (commencing with Section 11200) of Part 3 of
Division 9 of the Welfare and Institutions Code) or a federal Tribal
Temporary Assistance for Needy Families (Tribal TANF) grant program
(Section 10553.25 of the Welfare and Institutions Code).
(3) Supplemental Nutrition Assistance Program (Chapter 51
(commencing with Section 2011) of Title 7 of the United States Code)
or the California Food Assistance Program (Chapter 10.1 (commencing
with Section 18930) of Part 6 of Division 9 of the Welfare and
Institutions Code).
(4) County Relief, General Relief (GR), or General Assistance (GA)
(Part 5 (commencing with Section 17000) of Division 9 of the Welfare
and Institutions Code).
(5) Cash Assistance Program for Aged, Blind, and Disabled Legal
Immigrants (CAPI) (Chapter 10.3 (commencing with Section 18937) of
Part 6 of Division 9 of the Welfare and Institutions Code).
(6) In-Home Supportive Services (IHSS) (Article 7 (commencing with
Section 12300) of Chapter 3 of Part 3 of Division 9 of the Welfare
and Institutions Code).
(7) Medi-Cal (Chapter 7 (commencing with Section 14000) of Part 3
of Division 9 of the Welfare and Institutions Code).
(d) Notwithstanding paragraph (1) of subdivision (c), the court
may conclusively presume that a defendant does not have the ability
to pay the fine if the defendant demonstrates that he or she falls
within a category described in subdivision (a) of Section 68632 of
the Government Code.
(e) The court shall advise the defendant of the right to a
determination of the ability to pay pursuant to subdivision (c) or
(d) at the time of rendering judgment.
(f) The term "ability to pay" means the overall capability of the
defendant to reimburse the costs, or a portion of the costs, of
conducting the presentence investigation, preparing the presentence
report, and probation, and includes, but is not limited to, all of
the following regarding the defendant:
(1) Present financial position.
(2) Reasonably discernible future financial position. In no event
shall the court consider a period of more than six months from the
date of the hearing for purposes of determining reasonably
discernible future financial position.
(3) Likelihood that the defendant will be able to obtain
employment within the six-month period from the date of the hearing.
(4) Any other factors that may bear upon the defendant's financial
capability to reimburse the county for the costs.
(g) At any time during the pendency of the judgment rendered
according to the terms of this section, a defendant against whom a
judgment has been rendered may petition the rendering court to modify
or vacate its previous judgment on the grounds of a change of
circumstances with regard to the defendant's ability to pay the
judgment. The court shall advise the defendant of this right at the
time of rendering of the judgment.
SEC. 8. 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.
SEC. 8. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local agency
or school district because, in that regard, 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.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.