Bill Text: CA SB1054 | 2015-2016 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Restitution orders: collection.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2016-09-27 - Chaptered by Secretary of State. Chapter 718, Statutes of 2016. [SB1054 Detail]
Download: California-2015-SB1054-Introduced.html
Bill Title: Restitution orders: collection.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2016-09-27 - Chaptered by Secretary of State. Chapter 718, Statutes of 2016. [SB1054 Detail]
Download: California-2015-SB1054-Introduced.html
BILL NUMBER: SB 1054 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Pavley
FEBRUARY 16, 2016
An act to amend Section 2085.5 of the Penal Code, and to amend
Section 19280 of the Revenue and Taxation Code, relating to
restitution orders.
LEGISLATIVE COUNSEL'S DIGEST
SB 1054, as introduced, Pavley. Restitution orders: collection.
(1) Existing law, when a prisoner is punished in a county jail for
a felony, in any case in which the prisoner owes a restitution
order, permits the agency designated by the board of supervisors in
the county where the prisoner is incarcerated to deduct a minimum of
20% or the balance owing on the order amount, whichever is less, up
to a maximum of 50% from the county jail equivalent of wages and
trust account deposits of a prisoner for transfer to the California
Victim Compensation and Government Claims Board. Existing law allows
the agency to deduct and retain an administrative fee that totals 10%
of any amount transferred to the board pursuant to these provisions.
Existing law additionally allows the agency to charge a fee to cover
the actual administrative cost of collection, not to exceed 10% of
the total amount collected, upon release of the prisoner from
custody.
This bill would instead allow the designated agency to charge an
administrative fee to cover the actual administrative cost of
collection, not to exceed 10% of the total amount collected pursuant
to the above provisions. The bill would delete the authorization to
charge a fee for the actual administrative cost of collection upon
release of the prisoner from custody.
(2) Existing law, unless the victim of the crime notifies the
Department of Corrections and Rehabilitation or county to the
contrary, allows the department or county to refer a restitution
order to the Franchise Tax Board for collection.
This bill would prohibit the department or county from referring
the restitution order to the Franchise Tax Board if a county agency
has been designated by the county board of supervisors to collect
restitution from individuals who have been sentenced to a county jail
for a felony, who are on mandatory supervision, or who are on
postrelease community supervision, the designated county agency has
an existing collection system and objects to collection by the board,
and the designated county agency informs the department or county
that it will collect the restitution order. If the crime victim
entitled to restitution in the order notifies either the department
or the designated county agency with regard to his or her preference
of a collecting agency, the bill would require the collection to be
performed in accordance with that preference.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2085.5 of the Penal Code is amended to read:
2085.5. (a) In any case in which a prisoner owes a restitution
fine imposed pursuant to subdivision (a) of Section 13967 of the
Government Code, as operative prior to September 29, 1994,
subdivision (b) of Section 730.6 of the Welfare and Institutions
Code, or subdivision (b) of Section 1202.4, the Secretary of the
Department of Corrections and Rehabilitation shall deduct a minimum
of 20 percent or the balance owing on the fine amount, whichever is
less, up to a maximum of 50 percent from the wages and trust account
deposits of a prisoner, unless prohibited by federal law, and shall
transfer that amount to the California Victim Compensation and
Government Claims Board for deposit in the Restitution Fund in the
State Treasury. The amount deducted shall be credited against the
amount owing on the fine. The sentencing court shall be provided a
record of the payments.
(b) (1) When If a
prisoner is punished by imprisonment in a county jail pursuant to
subdivision (h) of Section 1170 , in any case in which a
prisoner and owes a restitution fine imposed
pursuant to subdivision (a) of Section 13967 of the Government Code,
as operative prior to September 29, 1994, subdivision (b) of Section
730.6 of the Welfare and Institutions Code, or subdivision (b) of
Section 1202.4, the agency designated by the board of supervisors in
the county where the prisoner is incarcerated is authorized to deduct
a minimum of 20 percent or the balance owing on the fine amount,
whichever is less, up to a maximum of 50 percent from the county jail
equivalent of wages and trust account deposits of a prisoner, unless
prohibited by federal law, and shall transfer that amount to the
California Victim Compensation and Government Claims Board for
deposit in the Restitution Fund in the State Treasury. The amount
deducted shall be credited against the amount owing on the fine. The
sentencing court shall be provided a record of the payments.
(2) If the board of supervisors designates the county sheriff as
the collecting agency, the board of supervisors shall first obtain
the concurrence of the county sheriff.
(c) In any case in which a prisoner owes a restitution order
imposed pursuant to subdivision (c) of Section 13967 of the
Government Code, as operative prior to September 29, 1994,
subdivision (h) of Section 730.6 of the Welfare and Institutions
Code, or subdivision (f) of Section 1202.4, the Secretary of the
Department of Corrections and Rehabilitation shall deduct a minimum
of 20 percent or the balance owing on the order amount, whichever is
less, up to a maximum of 50 percent from the wages and trust account
deposits of a prisoner, unless prohibited by federal law. The
secretary shall transfer that amount to the California Victim
Compensation and Government Claims Board for direct payment to the
victim, or payment shall be made to the Restitution Fund to the
extent that the victim has received assistance pursuant to that
program. The sentencing court shall be provided a record of the
payments made to victims and of the payments deposited to the
Restitution Fund pursuant to this subdivision.
(d) When If a prisoner is
punished by imprisonment in a county jail pursuant to subdivision
(h) of Section 1170 , in any case in which a prisoner
and owes a restitution order imposed pursuant to
subdivision (c) of Section 13967 of the Government Code, as
operative prior to September 29, 1994, subdivision (h) of Section
730.6 of the Welfare and Institutions Code, or subdivision (b) of
Section 1202.4, the agency designated by the board of supervisors in
the county where the prisoner is incarcerated is authorized to deduct
a minimum of 20 percent or the balance owing on the order amount,
whichever is less, up to a maximum of 50 percent from the county jail
equivalent of wages and trust account deposits of a prisoner, unless
prohibited by federal law. The agency shall transfer that amount to
the California Victim Compensation and Government Claims Board for
direct payment to the victim, or payment shall be made to the
Restitution Fund to the extent that the victim has received
assistance pursuant to that program, or may pay the victim directly.
The sentencing court shall be provided a record of the payments made
to the victims and of the payments deposited to the Restitution Fund
pursuant to this subdivision.
(e) The secretary shall deduct and retain from the wages and trust
account deposits of a prisoner, unless prohibited by federal law, an
administrative fee that totals 10 percent of any amount transferred
to the California Victim Compensation and Government Claims Board
pursuant to subdivision (a) or (c). The secretary shall deduct and
retain from any prisoner settlement or trial award, an administrative
fee that totals 5 percent of any amount paid from the settlement or
award to satisfy an outstanding restitution order or fine pursuant to
subdivision (n), unless prohibited by federal law. The secretary
shall deposit the administrative fee moneys in a special deposit
account for reimbursing administrative and support costs of the
restitution program of the Department of Corrections and
Rehabilitation. The secretary, at his or her discretion, may retain
any excess funds in the special deposit account for future
reimbursement of the department's administrative and support costs
for the restitution program or may transfer all or part of the excess
funds for deposit in the Restitution Fund.
(f) When If a prisoner is punished
by imprisonment in a county jail pursuant to subdivision (h) of
Section 1170, the agency designated by the board of supervisors in
the county where the prisoner is incarcerated is authorized to deduct
and retain from the county jail equivalent of wages and trust
account deposits of a prisoner, unless prohibited by federal law, an
administrative fee that totals 10 percent of any amount
transferred to the California Victim Compensation and Government
Claims Board to cover the actual administrative cost
of collection, not to exceed 10 percent of the total amount collected
pursuant to subdivision (b) or (d). The agency is authorized
to deduct and retain from a prisoner settlement or trial award an
administrative fee that totals 5 percent of any amount paid from the
settlement or award to satisfy an outstanding restitution order or
fine pursuant to subdivision (n), unless prohibited by federal law.
Upon release from custody pursuant to subdivision (h) of
Section 1170, the agency is authorized to charge a fee to cover the
actual administrative cost of collection, not to exceed 10 percent of
the total amount collected. The agency shall deposit the
administrative fee moneys in a special deposit account for
reimbursing administrative and support costs of the restitution
program of the agency. The agency is authorized to retain any excess
funds in the special deposit account for future reimbursement of the
agency's administrative and support costs for the restitution program
or may transfer all or part of the excess funds for deposit in the
Restitution Fund.
(g) In any case in which a parolee owes a restitution fine imposed
pursuant to subdivision (a) of Section 13967 of the Government Code,
as operative prior to September 29, 1994, subdivision (b) of Section
730.6 of the Welfare and Institutions Code, or subdivision (b) of
Section 1202.4, the secretary, or, when a prisoner is punished by
imprisonment in a county jail pursuant to subdivision (h) of Section
1170, the agency designated by the board of supervisors in the county
where the prisoner is incarcerated, may collect from the parolee or,
pursuant to Section 2085.6, from a person previously imprisoned in
county jail any moneys owing on the restitution fine amount, unless
prohibited by federal law. The secretary or the agency shall transfer
that amount to the California Victim Compensation and Government
Claims Board for deposit in the Restitution Fund in the State
Treasury. The amount deducted shall be credited against the amount
owing on the fine. The sentencing court shall be provided a record of
the payments.
(h) In any case in which a parolee owes a direct order of
restitution, imposed pursuant to subdivision (c) of Section 13967 of
the Government Code, as operative prior to September 29, 1994,
subdivision (h) of Section 730.6 of the Welfare and Institutions
Code, or paragraph (3) of subdivision (a) of Section 1202.4, the
secretary, or, when a prisoner is punished by imprisonment in a
county jail pursuant to subdivision (h) of Section 1170, the agency
designated by the board of supervisors in the county where the
prisoner is incarcerated or a local collection program, may collect
from the parolee or, pursuant to Section 2085.6, from a person
previously imprisoned in county jail any moneys owing, unless
prohibited by federal law. The secretary or the agency shall transfer
that amount to the California Victim Compensation and Government
Claims Board for direct payment to the victim, or payment shall be
made to the Restitution Fund to the extent that the victim has
received assistance pursuant to that program, or the agency may pay
the victim directly. The sentencing court shall be provided a record
of the payments made by the offender pursuant to this subdivision.
(i) The secretary, or, when if a
prisoner is punished by imprisonment in a county jail pursuant to
subdivision (h) of Section 1170, the agency designated by the board
of supervisors in the county where the prisoner is incarcerated, may
deduct and retain from moneys collected from parolees or persons
previously imprisoned in county jail an administrative fee that
totals 10 percent of any amount transferred to the California Victim
Compensation and Government Claims Board pursuant to subdivision (g)
or (h), unless prohibited by federal law. The secretary shall deduct
and retain from any settlement or trial award of a parolee an
administrative fee that totals 5 percent of an amount paid from the
settlement or award to satisfy an outstanding restitution order or
fine pursuant to subdivision (n), unless prohibited by federal law.
The agency is authorized to deduct and retain from any settlement or
trial award of a person previously imprisoned in county jail an
administrative fee that totals 5 percent of any amount paid from the
settlement or award to satisfy an outstanding restitution order or
fine pursuant to subdivision (n). The secretary or the agency shall
deposit the administrative fee moneys in a special deposit account
for reimbursing administrative and support costs of the restitution
program of the Department of Corrections and Rehabilitation or the
agency, as applicable. The secretary, at his or her discretion, or
the agency may retain any excess funds in the special deposit account
for future reimbursement of the department's or agency's
administrative and support costs for the restitution program or may
transfer all or part of the excess funds for deposit in the
Restitution Fund.
(j) When If a prisoner has both a
restitution fine and a restitution order from the sentencing court,
the Department of Corrections and Rehabilitation shall collect the
restitution order first pursuant to subdivision (c).
(k) When If a prisoner is punished
by imprisonment in a county jail pursuant to subdivision (h) of
Section 1170 and that prisoner has both a restitution fine and a
restitution order from the sentencing court, if the agency designated
by the board of supervisors in the county where the prisoner is
incarcerated collects the fine and order, the agency shall collect
the restitution order first pursuant to subdivision (d).
(l) When If a parolee has
both a restitution fine and a restitution order from the sentencing
court, the Department of Corrections and Rehabilitation, or,
when or if the prisoner is punished by
imprisonment in a county jail pursuant to subdivision (h) of Section
1170, the agency designated by the board of supervisors in the county
where the prisoner is incarcerated, may collect the restitution
order first, pursuant to subdivision (h).
(m) If an inmate is housed at an institution that requires food to
be purchased from the institution canteen for unsupervised overnight
visits, and if the money for the purchase of this food is received
from funds other than the inmate's wages, that money shall be exempt
from restitution deductions. This exemption shall apply to the actual
amount spent on food for the visit up to a maximum of fifty dollars
($50) for visits that include the inmate and one visitor, seventy
dollars ($70) for visits that include the inmate and two or three
visitors, and eighty dollars ($80) for visits that include the inmate
and four or more visitors.
(n) Compensatory or punitive damages awarded by trial or
settlement to any inmate, parolee, person placed on postrelease
community supervision pursuant to Section 3451, or defendant on
mandatory supervision imposed pursuant to subparagraph (B) of
paragraph (5) of subdivision (h) of Section 1170, in connection with
a civil action brought against a federal, state, or local jail,
prison, or correctional facility, or any official or agent thereof,
shall be paid directly, after payment of reasonable attorney's fees
and litigation costs approved by the court, to satisfy any
outstanding restitution orders or restitution fines against that
person. The balance of the award shall be forwarded to the payee
after full payment of all outstanding restitution orders and
restitution fines, subject to subdivisions (e) and (i). The
Department of Corrections and Rehabilitation shall make all
reasonable efforts to notify the victims of the crime for which that
person was convicted concerning the pending payment of any
compensatory or punitive damages. For any prisoner punished by
imprisonment in a county jail pursuant to subdivision (h) of Section
1170, the agency is authorized to make all reasonable efforts to
notify the victims of the crime for which that person was convicted
concerning the pending payment of any compensatory or punitive
damages.
(o) (1) Amounts transferred to the California Victim Compensation
and Government Claims Board for payment of direct orders of
restitution shall be paid to the victim within 60 days from the date
the restitution revenues are received by the California Victim
Compensation and Government Claims Board. If the restitution payment
to a victim is less than twenty-five dollars ($25), then payment need
not be forwarded to that victim until the payment reaches
twenty-five dollars ($25) or when the victim requests payment of the
lesser amount.
(2) If a victim cannot be located, the restitution revenues
received by the California Victim Compensation and Government Claims
Board on behalf of the victim shall be held in trust in the
Restitution Fund until the end of the state fiscal year subsequent to
the state fiscal year in which the funds were deposited or until the
time that the victim has provided current address information,
whichever occurs sooner. Amounts remaining in trust at the end of the
specified period of time shall revert to the Restitution Fund.
(3) (A) A victim failing to provide a current address within the
period of time specified in paragraph (2) may provide documentation
to the Department of Corrections and Rehabilitation, which shall
verify that moneys were collected on behalf of the victim. Upon
receipt of that verified information from the Department of
Corrections and Rehabilitation, the California Victim Compensation
and Government Claims Board shall transmit the restitution revenues
to the victim in accordance with the provisions of subdivision (c) or
(h).
(B) A victim failing to provide a current address within the
period of time specified in paragraph (2) may provide documentation
to the agency designated by the board of supervisors in the county
where the prisoner punished by imprisonment in a county jail pursuant
to subdivision (h) of Section 1170 is incarcerated, which may verify
that moneys were collected on behalf of the victim. Upon receipt of
that verified information from the agency, the California Victim
Compensation and Government Claims Board shall transmit the
restitution revenues to the victim in accordance with the provisions
of subdivision (d) or (h).
SEC. 2. Section 19280 of the Revenue and Taxation Code is amended
to read:
19280. (a) (1) (A) Fines, state or local
penalties, bail, forfeitures, restitution fines, restitution orders,
or any other amounts imposed by a juvenile or superior court of the
State of California upon a person or any other entity that are due
and payable in an amount totaling no less than one hundred dollars
($100), in the aggregate, for criminal offenses, including all
offenses involving a violation of the Vehicle Code, and any amounts
due pursuant to Section 903.1 of the Welfare and Institutions Code
may, no sooner than 90 days after payment of that amount becomes
delinquent, be referred by the juvenile or superior court, the
county, or the state to the Franchise Tax Board for collection under
guidelines prescribed by the Franchise Tax Board. Unless the
victim of the crime notifies the Department of Corrections and
Rehabilitation or county to the contrary, Except as
specified in subparagraph (B), the Department of Corrections
and Rehabilitation or county may refer a restitution order to the
Franchise Tax Board, in accordance with subparagraph (B) of paragraph
(2), for any person subject to the restitution order who is or has
been under the jurisdiction of the Department of Corrections and
Rehabilitation or county.
(B) The Department of Corrections and Rehabilitation or county
shall not refer a restitution order to the Franchise Tax Board if a
county agency has been designated by the county board of supervisors
to collect restitution from individuals who (i) have been sentenced
to a county jail pursuant to subdivision (h) of Section 1170 of the
Penal Code, (ii) are on mandatory supervision pursuant to paragraph
(5) of subdivision (h) of Section 1170 of the Penal Code, or (iii)
are on postrelease community supervision pursuant to Title 2.05
(commencing with Section 3450) of Part 3 of the Penal Code, the
designated county agency has an existing collection system and
objects to collection by the Franchise Tax Board, and the designated
county agency informs the Department of Corrections and
Rehabilitation or county that it will collect the restitution order.
If the crime victim entitled to restitution in the order notifies
either the Department of Correction and Rehabilitation or the
designated county agency with regard to his or her preference of a
collecting agency, that preference shall be honored and the
collection shall be performed in accordance with the preference of
the victim.
(2) For purposes of this subdivision:
(A) The amounts referred by the juvenile or superior court, the
county, or the state under this section may include an administrative
fee and any amounts that a government entity may add to the
court-imposed obligation as a result of the underlying offense,
trial, or conviction. For purposes of this article, those amounts
shall be deemed to be imposed by the court.
(B) Restitution orders may be referred to the Franchise Tax Board
only by a government entity, as agreed upon by the Franchise Tax
Board, provided that all of the following apply:
(i) The government entity has the authority to collect on behalf
of the state or the victim.
(ii) The government entity shall be responsible for distributing
the restitution order collections, as appropriate.
(iii) The government entity shall ensure, in making the referrals
and distributions, that it coordinates with any other related
collection activities that may occur by superior courts, counties, or
other state agencies.
(iv) The government entity shall ensure compliance with laws
relating to the reimbursement of the State Restitution Fund.
(C) The Franchise Tax Board shall establish criteria for referral
that shall include setting forth a minimum dollar amount subject to
referral and collection.
(b) The Franchise Tax Board, in conjunction with the Judicial
Council, shall seek whatever additional resources are needed to
accept referrals from all 58 counties or superior courts.
(c) Upon written notice to the debtor from the Franchise Tax
Board, any amount referred to the Franchise Tax Board under
subdivision (a) and any interest thereon, including any interest on
the amount referred under subdivision (a) that accrued prior to the
date of referral, shall be treated as final and due and payable to
the State of California, and shall be collected from the debtor by
the Franchise Tax Board in any manner authorized under the law for
collection of a delinquent personal income tax liability, including,
but not limited to, issuance of an order and levy under Article 4
(commencing with Section 706.070) of Chapter 5 of Division 2 of Title
9 of Part 2 of the Code of Civil Procedure in the manner provided
for earnings withholding orders for taxes.
(d) (1) Part 10 (commencing with Section 17001), this part, Part
10.7 (commencing with Section 21001), and Part 11 (commencing with
Section 23001) shall apply to amounts referred under this article in
the same manner and with the same force and effect and to the full
extent as if the language of those laws had been incorporated in full
into this article, except to the extent that any provision is either
inconsistent with this article or is not relevant to this article.
(2) Any information, information sources, or enforcement remedies
and capabilities available to the court or the state referring to the
amount due described in subdivision (a) shall be available to the
Franchise Tax Board to be used in conjunction with, or independent
of, the information, information sources, or remedies and
capabilities available to the Franchise Tax Board for purposes of
administering Part 10 (commencing with Section 17001), this part,
Part 10.7 (commencing with Section 21001), or Part 11 (commencing
with Section 23001).
(e) The activities required to implement and administer this part
shall not interfere with the primary mission of the Franchise Tax
Board to administer Part 10 (commencing with Section 17001) and Part
11 (commencing with Section 23001).
(f) For amounts referred for collection under subdivision (a),
interest shall accrue at the greater of the rate applicable to the
amount due being collected or the rate provided under Section 19521.
When notice of the amount due includes interest and is mailed to the
debtor and the amount is paid within 15 days after the date of
notice, interest shall not be imposed for the period after the date
of notice.
(g) A collection under this article is not a payment of income
taxes imposed under Part 10 (commencing with Section 17001) or Part
11 (commencing with Section 23001).
