Bill Text: CA SB838 | 2023-2024 | Regular Session | Introduced

California Senate Bill 838

Introduced

Bill Title: Victim compensation: use of force by a law enforcement officer.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Failed) 2024-02-01 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB838 Detail]

Download: California-2023-SB838-Introduced.html

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 838

Introduced by Senator Menjivar
(Coauthor: Senator Wiener)
(Coauthors: Assembly Members Bryan, Friedman, and Jackson)

February 17, 2023

An act to amend Sections 13951, 13956, and 13963 of the Government Code, relating to victim compensation, and making an appropriation therefor.

LEGISLATIVE COUNSEL'S DIGEST

SB 838, as introduced, Menjivar. Victim compensation: use of force by a law enforcement officer.

Existing law provides for the compensation of victims and derivative victims of specified types of crimes by the California Victim Compensation Board from the Restitution Fund, a continuously appropriated fund, for specified losses suffered as a result of those crimes. Existing law defines various terms for purposes of these provisions, including “crime,” which includes any public offense wherever it may take place that would constitute a misdemeanor or felony.

This bill would revise the definition of “crime” to include, solely for the purposes of eligibility for compensation under this chapter, an incident occurring on or after January 1, 2024, in which an individual sustains serious bodily injury, as defined, or death as a result of a law enforcement officer’s use of force, regardless of whether the law enforcement officer is arrested for, charged with, or convicted of committing a crime. The bill would define “law enforcement officer” for these purposes. By expanding the types of incidents for which compensation can be paid from a continuously appropriated fund, the bill would make an appropriation.

Existing law requires that a person be ineligible for compensation under specified conditions, including, among other things, if the board determines that denial of the claim for compensation is appropriate because of the nature of the victim’s involvement in the events leading to the crime or the involvement of the person whose injury or death gives rise to the application. Existing law requires the board to deny an application if it finds that the victim failed to cooperate reasonably with a law enforcement agency in the apprehension and conviction of the person committing the crime.

This bill, in the case of a claim based on a victim’s serious bodily injury or death that resulted from a law enforcement officer’s use of force, as described above, would prohibit the board from denying an application based on certain circumstances, including the victim’s or other applicant’s involvement in the crime, except as specified, the victim’s failure to cooperate, or the contents of a police report, or the lack thereof. The bill, in the case of a claim based on a victim’s serious bodily injury or death as a result of a crime, would require the board to adopt guidelines that allow the board to rely on evidence other than a police report, as specified.

Existing law requires that the board be subrogated to the rights of the recipient to the extent of any compensation granted by the board.

This bill would specify that the above-described subrogation of the board applies to compensation by the board for any claim, including a claim based on serious bodily injury or death that resulted from a law enforcement officer’s use of force.

Vote: 2/3 Appropriation: YES Fiscal Committee: YES Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

Section 13951 of the Government Code is amended to read:

13951.

As used in this chapter, the following definitions shall apply:

(a) “Board” means the California Victim Compensation Board.

(b) (1) “Crime” means a crime or public offense, wherever it may take place, that would constitute a misdemeanor or a felony if the crime had been committed in California by a competent ~~adult.~~ adult regardless of whether any person is arrested for, charged with, or convicted of committing the crime or public offense.

(2) “Crime” includes an act of terrorism, as defined in Section 2331 of Title 18 of the United States Code, committed against a resident of the state, whether or not the act occurs within the state.

(3) “Crime” includes, solely for the purposes of eligibility for compensation under this chapter, an incident occurring on or after January 1, 2024, in which an individual sustains serious bodily injury, as defined in Section 243 of the Penal Code, or death as a result of a law enforcement officer’s use of force, regardless of whether the law enforcement officer is arrested for, charged with, or convicted of committing a crime.

(d) “Law enforcement” means every district attorney, municipal police department, sheriff’s department, district attorney’s office, county probation department, and social services agency, the Department of Justice, the Department of ~~Corrections, the Department of the Youth Authority,~~ Corrections and Rehabilitation, the Division of Juvenile Justice, the Department of the California Highway Patrol, the police department of any campus of the University of California, California State University, or community college, and every agency of the State of California expressly authorized by statute to investigate or prosecute law violators.

(e) “Law enforcement officer” means a peace officer, as defined in Section 830 of the Penal Code.
~~(e)~~

(f) “Pecuniary loss” means an economic loss or expense resulting from an injury or death to a victim of crime that has not been and will not be reimbursed from any other source.

~~(f)~~

(g) “Peer counseling” means counseling offered by a provider of mental health counseling services who has completed a specialized course in rape crisis counseling skills development, participates in continuing education in rape crisis counseling skills development, and provides rape crisis counseling within the State of California.

~~(g)~~

(h) “Victim” means an individual who sustains injury or death as a direct result of a crime as specified in subdivision (e) of Section 13955.

~~(h)~~

(i) “Victim center” means a victim and witness assistance center that receives funds pursuant to Section 13835.2 of the Penal Code.

(j) “Victim services provider” means an individual, whether paid or serving as a volunteer, who provides services to victims under the supervision of an agency or organization that has a documented record of providing services to victims or a law enforcement or prosecution agency.

SEC. 2.

Section 13956 of the Government Code, as amended by Section 2 of Chapter 771 of the Statutes of 2022, is amended to read:

13956.

Notwithstanding Section 13955, a person shall not be eligible for compensation under the following conditions:

(a) An Except as otherwise provided by this subdivision, an application may be denied, in whole or in part, if the board finds that denial is appropriate because of the nature of the victim’s or other applicant’s involvement in the events leading to the crime, or the involvement of the person whose injury or death gives rise to the application.

(1) Factors that may be considered in determining whether the victim or derivative victim was involved in the events leading to the qualifying crime include, but are not limited to:

(A) The victim or derivative victim initiated the qualifying crime, or provoked or aggravated the suspect into initiating the qualifying crime.

(B) The qualifying crime was a reasonably foreseeable consequence of the conduct of the victim or derivative victim.

(C) The victim or derivative victim was committing a crime that could be charged as a felony and reasonably lead to the victim being victimized. However, committing a crime shall not be considered involvement if the victim’s injury or death occurred as a direct result of a crime committed in violation of Section 261, 273.5, or former Section 262 of, or for a crime of unlawful sexual intercourse with a minor in violation of subdivision (d) of Section 261.5 of, the Penal Code.

(2) If the victim is determined to have been involved in the events leading to the qualifying crime, factors that may be considered to mitigate or overcome involvement include, but are not limited to:

(A) The victim’s injuries were significantly more serious than reasonably could have been expected based on the victim’s level of involvement.

(B) A third party interfered in a manner not reasonably foreseeable by the victim or derivative victim.

(C) The board shall consider the victim’s age, physical condition, and psychological state, as well as any compelling health and safety concerns, in determining whether the application should be denied pursuant to this section. The application of a derivative victim of domestic violence under 18 years of age or derivative victim of trafficking under 18 years of age shall not be denied on the basis of the denial of the victim’s application under this subdivision.

(3) Notwithstanding paragraphs (1) and (2), and except as provided in paragraphs (4) and (5), for a claim based on a victim’s serious bodily injury or death resulting from a law enforcement officer’s use of force, as provided in Section 13951, the board shall not deny the application based on the victim’s or other applicant’s involvement in the qualifying crime that gave rise to the claim.
(4) (A) Notwithstanding paragraph (3), for a claim based on a victim’s serious bodily injury that resulted from a law enforcement officer’s use of force, as provided in Section 13951, the board may deny the application based on the victim’s involvement in the qualifying crime that gave rise to the claim if both of the following conditions are met:
(i) The victim is convicted of a violent felony, as defined in Section 667.5 of the Penal Code, or a crime that resulted in death or serious bodily injury, as defined in Section 243 of the Penal Code.
(ii) The crime described in clause (i) occurred at the time and location of the incident on which the claim is based.
(B) (i) The board shall not consider a claim under this paragraph while charges are pending alleging that the victim committed a crime described in clauses (i) and (ii) of subparagraph (A).
(ii) Charges shall not be considered pending pursuant to clause (i) if the victim is deceased.
(C) A claimant subject to this paragraph may apply for compensation pursuant to this chapter at any time for any expense, but the award of that compensation shall not be considered until the charges are no longer pending against the victim as described in subparagraph (B).
(5) Notwithstanding paragraph (3), for a claim based on a victim’s death that resulted from a law enforcement officer’s use of force, as provided in Section 13951, the board may deny an application based on the victim’s involvement in the qualifying crime that gave rise to the claim if there is clear and convincing evidence that the deceased victim committed a crime during which the deceased victim personally inflicted serious bodily injury, as defined in Section 243 of the Penal Code, or personally killed another person at the time and location of the incident on which the claim is based.

(b) (1) An application shall be denied if the board finds that the victim or, if compensation is sought by, or on behalf of, a derivative victim, either the victim or derivative victim failed to cooperate reasonably with a law enforcement agency in the apprehension and conviction of a criminal committing the crime. In determining whether cooperation has been reasonable, the board shall consider the victim’s or derivative victim’s age, physical condition, and psychological state, cultural or linguistic barriers, any compelling health and safety concerns, including, but not limited to, a reasonable fear of retaliation or harm that would jeopardize the well-being of the victim or the victim’s family or the derivative victim or the derivative victim’s family, and giving due consideration to the degree of cooperation of which the victim or derivative victim is capable in light of the presence of any of these factors. A victim of domestic violence shall not be determined to have failed to cooperate based on the victim’s conduct with law enforcement at the scene of the crime. Lack of cooperation shall also not be found solely because a victim of sexual assault, domestic violence, or human trafficking delayed reporting the qualifying crime.

(2) Notwithstanding paragraph (1), an application for a claim based on a victim’s serious bodily injury or death that resulted from a law enforcement officer’s use of force, as provided in Section 13951, shall not be denied based on a victim or derivative victim’s failure to cooperate reasonably with a law enforcement agency.
~~(2)~~

(3) An application for a claim based on domestic violence shall not be denied solely because a police report was not made by the victim. The board shall adopt guidelines that allow the board to consider and approve applications for assistance based on domestic violence relying upon evidence other than a police report to establish that a domestic violence crime has occurred. Factors evidencing that a domestic violence crime has occurred may include, but are not limited to, medical records documenting injuries consistent with allegations of domestic violence, mental health records, or that the victim has obtained a permanent restraining order.

~~(3)~~

(4) An application for a claim based on a sexual assault shall not be denied solely because a police report was not made by the victim. The board shall adopt guidelines that allow it to consider and approve applications for assistance based on a sexual assault relying upon evidence other than a police report to establish that a sexual assault crime has occurred. Factors evidencing that a sexual assault crime has occurred may include, but are not limited to, medical records documenting injuries consistent with allegations of sexual assault, mental health records, or that the victim received a sexual assault examination.

~~(4)~~

(5) An application for a claim based on human trafficking as defined in Section 236.1 of the Penal Code shall not be denied solely because a police report was not made by the victim. The board shall adopt guidelines that allow the board to consider and approve applications for assistance based on human trafficking relying upon evidence other than a police report to establish that a human trafficking crime has occurred. That evidence may include any reliable corroborating information approved by the board, including, but not limited to, the following:

(A) A Law Enforcement Agency Endorsement issued pursuant to Section 236.5 of the Penal Code.

(B) A human trafficking caseworker, as identified in Section 1038.2 of the Evidence Code, has attested by affidavit that the individual was a victim of human trafficking.

~~(5)~~

(6) (A) An application for a claim by a military personnel victim based on a sexual assault by another military personnel shall not be denied solely because it was not reported to a superior officer or law enforcement at the time of the crime.

(B) Factors that the board shall consider for purposes of determining if a claim qualifies for compensation include, but are not limited to, the evidence of the following:

(i) Restricted or unrestricted reports to a military victim advocate, sexual assault response coordinator, chaplain, attorney, or other military personnel.

(ii) Medical or physical evidence consistent with sexual assault.

(iii) A written or oral report from military law enforcement or a civilian law enforcement agency concluding that a sexual assault crime was committed against the victim.

(iv) A letter or other written statement from a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, licensed therapist, or mental health counselor, stating that the victim is seeking services related to the allegation of sexual assault.

(v) A credible witness to whom the victim disclosed the details that a sexual assault crime occurred.

(vi) A restraining order from a military or civilian court against the perpetrator of the sexual assault.

(vii) Other behavior by the victim consistent with sexual assault.

(C) For purposes of this subdivision, the sexual assault at issue shall have occurred during military service, including deployment.

(D) For purposes of this subdivision, the sexual assault may have been committed off base.

(E) For purposes of this subdivision, a “perpetrator” means an individual who is any of the following at the time of the sexual assault:

(i) An active duty military personnel from the United States Army, Navy, Marine Corps, Air Force, or Coast Guard.

(ii) A civilian employee of any military branch specified in clause (i), military base, or military deployment.

(iii) A contractor or agent of a private military or private security company.

(iv) A member of the California National Guard.

(F) For purposes of this subdivision, “sexual assault” means an offense included in Section 261, 264.1, 286, 287, formerly 288a, or Section 289 of the Penal Code, as of January 1, 2015.

(7) (A) Notwithstanding any other law, for an application for a claim based on an individual’s serious bodily injury or death that resulted from a law enforcement officer’s use of force, as provided in Section 13951, the board shall not deny an application, in whole or in part, based solely on any of the following:
(i) The contents of a police report.
(ii) Whether a police report was made.
(iii) Whether a suspect was arrested or charged with the qualifying crime that gave rise to the claim.
(B) For an application for a claim based on an individual’s serious bodily injury or death that resulted from a law enforcement officer’s use of force, as provided in Section 13951, if the only evidence the board receives that the qualifying crime occurred is a police report and the police report does not establish that the qualifying crime occurred, the board shall notify the applicant of the deficiency in the application and solicit additional information to verify the claim pursuant to the procedures set forth in Section 13952.
(C) The board shall adopt guidelines that allow the board to rely on evidence other than a police report to establish that a qualifying crime occurred when considering applications for assistance based on an individual’s serious bodily injury or death that resulted from a law enforcement officer’s use of force, as provided in Section 13951, including, but not limited to, any of the following:
(i) Medical records documenting injuries consistent with the allegation that the victim suffered serious bodily injury or death as a result of a law enforcement officer’s use of force.
(ii) A written statement from a victim services provider stating that the victim is seeking services related to suffering serious bodily injury as a result of a law enforcement officer’s use of force.
(iii) A statement from a licensed medical provider, physician’s assistant, nurse practitioner, or other person licensed to provide medical or mental health care documenting that the victim suffered serious bodily injury or death as a result of a law enforcement officer’s use of force.
(iv) A written or oral report from a law enforcement agency documenting that the victim suffered serious bodily injury or death as a result of a law enforcement officer’s use of force.
(v) Evidence that the qualifying crime was reported under Section 12525.2 to the Department of Justice as an incident in which the use of force by a law enforcement officer against a civilian resulted in serious bodily injury or death.
(vi) A death certificate documenting a cause of death consistent with the allegation that the victim died as a result of a law enforcement officer’s use of force.

(c) (1) Notwithstanding Section 13955, a person who is convicted of a violent felony listed in subdivision (c) of Section 667.5 of the Penal Code shall not be granted compensation until that person has been discharged from probation or has been released from a correctional institution and has been discharged from parole, or has been discharged from postrelease community supervision or mandatory supervision, if any, for that violent crime. Compensation shall not be granted to an applicant pursuant to this chapter during any period of time the applicant is held in a correctional institution or while an applicant is required to register as a sex offender pursuant to Section 290 of the Penal Code.

(2) A person who has been convicted of a violent felony listed in subdivision (c) of Section 667.5 of the Penal Code may apply for compensation pursuant to this chapter at any time, but the award of that compensation ~~may~~ shall not be considered until the applicant meets the requirements for compensation set forth in paragraph (1).

(d) (1) This section shall become inoperative on July 1, 2024, only if General Fund moneys over the multiyear forecasts beginning in the 2024–25 fiscal year are available to support ongoing augmentations and actions, and if an appropriation is made to backfill the Restitution Fund to support the actions in this section. If those conditions are met, this section is repealed January 1, 2025.

(2) The amendments made by the act adding this subdivision shall become operative on January 1, 2023.

SEC. 3.

Section 13956 of the Government Code, as added by Section 3 of Chapter 771 of the Statutes of 2022, is amended to read:

13956.

Notwithstanding Section 13955, a person shall not be eligible for compensation under the following conditions:

(1) Factors that may be considered in determining whether the victim or derivative victim was involved in the events leading to the qualifying crime include, but are not limited to:

(A) The victim or derivative victim initiated the qualifying crime, or provoked or aggravated the suspect into initiating the qualifying crime.

(B) The qualifying crime was a reasonably foreseeable consequence of the conduct of the victim or derivative victim.

(A) The victim’s injuries were significantly more serious than reasonably could have been expected based on the victim’s level of involvement.

(B) A third party interfered in a manner not reasonably foreseeable by the victim or derivative victim.

(3) Notwithstanding paragraphs (1) and (2), and except as provided in paragraphs (4) and (5), for a claim based on a victim’s serious bodily injury or death resulting from a law enforcement officer’s use of force, as provided in Section 13951, the board shall not deny the application based on the victim’s or other applicant’s involvement in the qualifying crime that gave rise to the claim.
(4) (A) Notwithstanding paragraph (3), for a claim based on a victim’s serious bodily injury that resulted from a law enforcement officer’s use of force, as provided in Section 13951, the board may deny the application based on the victim’s involvement in the qualifying crime that gave rise to the claim if both of the following conditions are met:
(i) The victim is convicted of a violent felony, as defined in Section 667.5 of the Penal Code, or a crime that resulted in death or serious bodily injury, as defined in Section 243 of the Penal Code.
(ii) The crime described in clause (i) occurred at the time and location of the incident on which the claim is based.
(B) (i) The board shall not consider a claim under this paragraph while charges are pending alleging that the victim committed a crime described in clauses (i) and (ii) of subparagraph (A).
(ii) Charges shall not be considered pending pursuant to clause (i) if the victim is deceased.
(C) A claimant subject to this paragraph may apply for compensation pursuant to this chapter at any time for any expense, but the award of that compensation shall not be considered until the charges are no longer pending against the victim as described in subparagraph (B).
(5) Notwithstanding paragraph (3), for a claim based on a victim’s death that resulted from a law enforcement officer’s use of force, as provided in Section 13951, the board may deny an application based on the victim’s involvement in the qualifying crime that gave rise to the claim if there is clear and convincing evidence that the deceased victim committed a crime during which the deceased victim personally inflicted serious bodily injury, as defined in Section 243 of the Penal Code, or personally killed another person at the time and location of the incident on which the claim is based.

(b) (1) An application shall be denied if the board finds that the victim or, if compensation is sought by, or on behalf of, a derivative victim, either the victim or derivative victim failed to cooperate reasonably with a law enforcement agency in the apprehension and conviction of a criminal committing the crime. In determining whether cooperation has been reasonable, the board shall consider the victim’s or derivative victim’s age, physical condition, and psychological state, cultural or linguistic barriers, any compelling health and safety concerns, including, but not limited to, a reasonable fear of retaliation or harm that would jeopardize the well-being of the victim or the victim’s family or the derivative victim or the derivative victim’s family, and giving due consideration to the degree of cooperation of which the victim or derivative victim is capable in light of the presence of any of these factors. A victim shall not be determined to have failed to cooperate based on the victim’s conduct with law enforcement at the scene of the crime. Lack of cooperation shall also not be found solely because a victim delayed reporting the qualifying crime.