AB 2094
Page 1
Date of Hearing: April 10, 2012
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
ABPCA Bill Id: AB 2094 (Author:Butler) – As Introduced: Ver: February 23, 2012
SUMMARY: Eliminates judicial discretion to waive or to reduce the domestic violence fund fee based on a defendant's ability to pay. Specifically, this bill:
1) Prohibits the court from reducing or waiving the $400-minimum domestic violence fund fee imposed on defendants granted probation for a crime involving a victim of domestic violence when the defendant does not have the ability to pay.
2) Makes technical, non-substantive changes.
EXISTING LAW:
1) Requires certain conditions be imposed when a person found guilty of a domestic violence-related offense is granted probation. [Penal Code Section 1203.097.]
2) Requires persons granted probation for a domestic violence-related offense to make a minimum payment of $400. If, after a hearing in court on the record, the court finds that the defendant does not have the ability to pay, the court may reduce or waive this fee. [Penal Code Section 1203.097(a)(5).]
3) Provides that two-thirds of the moneys collected from the domestic violence probation fee shall be retained by the counties and deposited in the Domestic Violence Programs Special Fund, and the remainder is transferred to the State Controller to be deposited in equal amounts in the Domestic Violence Restraining Order Reimbursement Fund and the Domestic Violence Training and Education Fund. [Penal Code Section 1203.097(a)(5).]
4) Specifies that the conditions of probation may include, in lieu of a fine, but not in lieu of the fund payment, one or more of the following requirements:
a) That the defendant make payments to a battered women's shelter, up to a maximum of $5,000.
b) That the defendant reimburse the victim for reasonable expenses that the court finds are the direct result of the defendant's offense. [Penal Code Section 1203.097(a)(11).]
5) Defines "domestic violence" as abuse perpetrated against any of the following persons:
a) A spouse or former spouse;
b) A cohabitant or former cohabitant, as defined in Family Code Section 6209;
c) A person with whom the respondent is having or has had a dating or engagement relationship;
d) A person with whom the respondent has had a child;
e) A child of a party; or
f) Any other person related by consanguinity or affinity within the second degree. [Family Code Section 6211.]
6) Provides that any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to $6,000, or by both that fine and imprisonment. [Penal Code Section 273.5(a).]
7) Provides for increased incarceration and a maximum fine of $10,000 for subsequent convictions of the crime of domestic violence which occur within seven years of a prior conviction for a domestic violence-related offense. [Penal Code Section 273.5(e).]
8) States that, in addition to any other penalty provided or imposed under the law, the court shall order the defendant to pay both a restitution fine and restitution to the victim or victims, if any. [Penal Code Section 1202.4(a)(3).]
9) Requires the court to assess an additional probation-revocation restitution fine in the same amount as that imposed for the restitution fine. This additional fine becomes effective upon the revocation of probation, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record. Probation-revocation restitution fines shall be deposited in the Restitution Fund. (Penal Code Section 1202.44.)
FISCAL EFFECT: Unknown
COMMENTS:
1) Author's Statement: According to the author, "Currently judges are allowed to determine whether or not to assess certain fees against defendants who commit the crime of domestic violence. One of these fees is used to fund domestic violence programs. This bill would continue court discretion on waiving certain fees against defendants, but would require the reasoning for the waiving of the fees to be put on the record."
2) Existing Penalty Assessments: There are penalty assessments and fees assessed on the base fine for a crime. Assuming a defendant was fined $6,000 as the maximum fine for corporal injury resulting in a traumatic condition of a spouse under Penal Code Section 273.5(a), the following penalty assessments would be imposed pursuant to the Penal Code and the California Government Code:
Base Fine: $ 6,000
Penal Code 1464 assessment: $ 6,000 ($10 for every $10)
Penal Code 1465.7 assessment: 1,200 (20% surcharge)
Penal Code 1465.8 assessment: 40 ($40 fee per criminal offense)
Government Code 70372 assessment: 3,000 ($5 for every $10)
Government Code 70373 assessment: 30 ($30 for felony or misdo.)
Government Code 76000 assessment: 4,200 ($7 for every $10)
Government Code 76000.5 assessment: 1,200 ($2 for every $10)
Government Code 76104.6 assessment: 600 ($1 for every $10)
Government Code 76104.7 assessment 1,800 ($3 for every $10)
Total Fine with Assessments: $24,070
3) Fines and Fees for Domestic Violence Offenders Granted Probation: When a person is convicted of a domestic violence-related crime and granted probation, the court is required to impose specified conditions of probation. The defendant must pay the domestic violence fund fee of at least $400 at issue in this bill [Penal Code Section 1203.097(a)(5)], and may be ordered to pay a fee of up to $5,000 to a battered women's shelter [Penal Code Section 1203.097(a)(11)(A)]. The defendant must also complete a certified domestic violence-program, and pay for its cost. [Penal Code Section 1203.097(a)(6) and (a)(7).] The court may also order a defendant to enroll in a chemical dependency program, which is paid for by the defendant. [Penal Code Section 1203.097(a)(10)(C).]
In addition to these conditions of probation, the defendant is required to pay a probation-supervision fee and the costs of preparing the probation report. [Penal Code Section 1203.1b(a).] These costs are payable in installment, but the county board of supervisors may charge a fee of up to $75 for collecting installment payments. [PC 1203.1b(h).]
The probation-related costs are in addition to direct victim restitution and the restitution fine ranging from $240 to $10,000, both of which must be imposed in all cases. (Penal Code Section 1202.4) Finally, the court must impose but stay a probation-revocation fine in the same amount as the restitution fine. (Penal Code Section 1202.44.) The latter fine is only collected if probation is revoked.
4) Prioritization of Court-Ordered Debt: Penal Code Section 1203.1d prioritizes the order in which delinquent court-ordered debt received is to be satisfied. Payments are applied first to victim restitution, and then to the 20% state surcharge required by Penal Code Section 1465.7. Next, payments are applied to restitution fines pursuant to Penal Code Section 1202.4 and any other fines, penalty assessments, with payments made on a proportional basis to the total amount levied for all of these items. Once these debts are satisfied, payments are applied toward any reimbursable costs as required by law, such as the costs of probation , probation investigation, and attorney fees. [Penal Code Section 1203.1d(b).] Because of the prioritization of debt required by statute, it is unlikely that the domestic violence fund fee will be collected when a defendant is indigent, regardless of whether the court can consider his or her ability to pay at the time of its imposition.
5) Effectiveness of Fines, Fees and Penalty Assessments: In 2006, on behalf of this Committee, the California Research Bureau (CRB) completed a report, Who Pays For Penalty Assessment Programs in California. (<http://www.library.ca.gov/crb/06/03/06-003.pdf >.) At that time, California had more than 269 dedicated funding streams for court fines, fees, surcharges, and penalty assessments in 16 different statutory codes. (Id. at p. 28.) CRB determined that the majority of penalty assessment revenue, roughly 86 %, is generated by traffic-related offenses. (Id. at pp. 22-23.)
CRB found "the direct financial relationship between the offenses that generate penalty assessment revenue and the programs that benefit from those assessments is at times difficult to discern. While a particular statute may specify that a penalty assessment should be distributed to specific county and state funds, the system of payment records maintained by court and county clerks generally only identifies the amounts distributed to the specific funds but not the offenses that generated the dollars. In other words, the penalty assessments all go into a big pot and are re-allocated as directed by statute." (Id. at p. 14.)
Moreover, "[b]ecause counties use different methods to collect unpaid debt, offenders are treated differently. Currently state law allows collection practices to vary from county to county." (Id. at p. 26.) "Until a uniform county collection standard is developed for criminal offenses in all 58 counties, questions about equity will remain." (Ibid.)
Most concerning, CRB found, "High penalty assessments may result in higher rates of default by the guilty parties. Some offenders may elect to spend time in jail, or plea for community service, rather than pay the fine and penalty assessment. The end result may be that a substantial amount of fines, fees, and penalties is not collected. If offenders choose jail time in lieu of paying the fines and penalties, additional public costs will be incurred." (Id. at p. 25.) Judges are allowed to convert assessed fines and penalties into jail time. [People v. McGarry (2002) 96 Cal.App.4th 644, 652.] Counties do not know if they are losing penalty assessment revenue due to defaults by offenders or if they are incurring additional costs due to jailing. (Id. at p. 26.)
6) Arguments in Support: According to the California Partnership to End Domestic Violence, the sponsor of this bill, "Data from the March 2004 'Domestic Violence Audit: Assessment, Collection, and Distribution of Domestic Violence Fines and Fees' produced by the Administrative Office of the Courts Internal Audit Services Division indicates that over time there has been a marked decrease in the fines assessed against defendants. Counties are not assessing the $400 fine on a consistent basis. In many instances, the fee is being reduced or waived entirely, without any documentation in the court file justifying the waiver.
Assembly Bill 2094 seeks to address this problem by requiring specific documentation in the court record for the waiver of the fees related to domestic violence (or in the alternative, by eliminating the court's discretion in waiving the fee)."
7) Arguments in Opposition: According to the California Judges Association, "Existing law permits the court to consider the financial condition of the offender when assessing the DV fund fee and the booking fee. This is the essential function of judges – to make individualized decisions that take into account the needs of victims and their dependents, the rehabilitation of offenders, and the safety of the public. Existing law requires courts to consider the offender’s ability to pay not only as it relates to the DV fund fee but also in a number of other contexts. For example, “The Court shall order the defendant to comply with all probation requirements, including the requirements to attend counseling, keep all program appointments, and pay program fees based upon the ability to pay.” (Penal Code § 1203.097(a)(7)(A)(i).) Existing law also requires batterers counseling programs to “develop and utilize a sliding fee scale that recognizes both the defendant’s ability to pay and the necessity of programs to meet overhead expenses” (Penal Code § 1203.097(c)(1)(P)). Lastly, if the court imposes an additional fine, payment to a battered women’s shelter, or restitution, “the court shall make a determination of the defendant’s ability to pay . . . In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support.” (Penal Code § 1203.097(a)(11)(B) [emphasis added].)
"Preserving judicial discretion allows the judge to account for the individual economic circumstances so the courts can fashion an appropriate sentence – something legislation simply cannot do with similar alacrity. Judges are in the best position to know how to judge and prioritize fees to be exacted from the defendant. In a medium-sized county, a typical DV Court judge will see hundreds of such cases per year. The judge in DV Court is the one most knowledgeable about the day to day issues involved with domestic violence.
"Indeed, were AB 2904 to pass, it seems inevitable that some offenders will be asked to pay a fee they cannot pay, which effectively means a) that they might be paying fees that, in the interest of justice, should not be prioritized over other payments (e.g., restitution payments), and b) California will lose money in efforts to collect what is not there."
8) Related Legislation:
a) SB 1379 (Rubio) increases the amount of the minimum payment by a defendant when he or she is granted probation for a crime of domestic violence to $500. SB 1379 is pending hearing by the Senate Public Safety Committee.
b) AB 1852 (Campos) authorizes the Santa Clara County Board of Supervisors and the City Council of San Jose to authorize an increase in the fees for marriage licenses and certified copies of certain vital records up to a maximum of $5 per license or record and requires the fees to be allocated by the county for purposes relating to domestic violence prevention, intervention, and prosecution. AB 1852 is pending hearing by the Assembly Judiciary Committee.
c) AB 2467 (Hueso) authorizes a court to place a defendant who is convicted of domestic violence or stalking, as defined above, where probation is granted or the execution or imposition of a sentence is suspended, to be placed on active global positioning system monitoring, as specified. AB 2467 is pending hearing by this Committee.
9) Prior Legislation:
a) AB 2011 (Arambula), Chapter 132, Statutes of 2010, increased the minimum fee paid by a person granted probation for a crime of domestic violence from $200 to $400, and changed the distribution formula of the monies collected.