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AB-1449 California Victim Compensation Board: victim restitution: eligibility for compensation.(2019-2020)

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Date Published: 04/22/2019 09:00 PM
AB1449:v98#DOCUMENT

Amended  IN  Assembly  April 22, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill No. 1449


Introduced by Assembly Member Cristina Garcia

February 22, 2019


An act to amend Section 13956 of the Government Code, relating to victim’s restitution, and making an appropriation therefor.


LEGISLATIVE COUNSEL'S DIGEST


AB 1449, as amended, Cristina Garcia. California Victim Compensation Board: victim restitution: eligibility for compensation.
Existing law authorizes, under certain conditions, 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 being a victim of those crimes. Existing law sets forth eligibility requirements and limits on the amount of compensation the board may award, and requires the application for compensation to be verified under penalty of perjury.

Existing law authorizes the board to deny an application for a claim, 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, except as specified.

This bill would instead authorize the board to deny an application for a claim, in whole or in part, if the board finds that the victim or derivative victim engaged in criminally injurious conduct immediately preceding the initiation of the qualifying crime that directly provoked or aggravated the suspect into initiating the qualifying crime, except as specified.

Existing law requires an application to be denied if the board finds that 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, as specified.

This bill would instead authorize the application to be reduced or denied if the board finds that the victim or derivative victim actively and intentionally interfered with a law enforcement agency in the apprehension and conviction of a criminal committing the crime, as specified.

This bill would prohibit an application for a claim from being denied solely because a police report was not made by the victim or derivative victim, nor because the victim or derivative victim has not notified law enforcement of the crime. The bill would require the board to adopt guidelines that allow the board to consider and approve applications for assistance relying upon evidence other than a police report to establish that a qualifying crime has occurred, as specified.
By expanding the number of people who may be eligible for compensation from the Restitution Fund, this bill would make an appropriation.
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 13956 of the Government Code is amended to read:

13956.
 Notwithstanding Section 13955, an application a person shall not be eligible for compensation may be reduced or denied under the following conditions:
(a) (1)(A)An application may be denied, in whole or in part, if the board finds the victim or derivative victim engaged in criminally injurious conduct, immediately preceding initiation of the qualifying crime, that directly provoked or aggravated the suspect into initiating the qualifying crime. 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.

(B)An application shall not be denied, in whole or in part, under this subdivision due to the victim’s involvement if either of the following apply:

(i)The victim’s injury or death occurred as a direct result of a crime committed in violation of Section 261, 262, or 273.5 of the Penal Code, or for a crime of unlawful sexual intercourse with a minor in violation of subdivision (d) of Section 261.5 of the Penal Code.

(ii)The victim is deceased and the victim’s death occurred as a direct result of the qualifying crime.

(C)(i)For the purposes of this subdivision, “criminally injurious conduct” means any conduct that occurs or is attempted in this state that poses a substantial threat of personal injury or death and that is punishable by fine, imprisonment, or death, or would be so punishable but for the fact that the person engaging in the conduct lacked capacity to commit the crime under the laws of this state.

(ii)“Criminally injurious conduct” does not include conduct arising out of the ownership, maintenance, or use of a motor vehicle, except when any of the following applies:

(I)The person engaging in the conduct intended to cause personal injury or death.

(II)The person engaging in the conduct was under the influence of any alcoholic beverage or drug.

(III)The conduct constitutes vehicular manslaughter in violation of subdivision (b) of Section 191.5, subdivision (c) of Section 192, or Section 192.5 of the Penal Code.

(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, 262, or 273.5 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.
(b) (1) (A)An application may shall be reduced or 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 actively and intentionally interfered failed to cooperate reasonably with a law enforcement agency in the apprehension and conviction of a criminal committing the crime. In determining whether interference was active and intentional, 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 or derivative victim of domestic violence shall not be determined to have interfered failed to cooperate based on the victim or derivative victim’s conduct with law enforcement at the scene of the crime. Interference Lack of cooperation shall also not be found solely because a victim or derivative victim of sexual assault, domestic violence, or human trafficking delayed or failed to report reporting the qualifying crime or declined to testify in court proceedings relating to the prosecution. crime.

(B)An application shall not be denied, in whole or in part, pursuant to this subdivision due to the victim or derivative victim’s interference if either of the following apply:

(i)The victim’s injury or death occurred as a direct result of a crime committed in violation of Section 261, 262, or 273.5 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.

(ii)The victim is deceased and the victim’s death occurred as a result of the crime.

(2) An application for a claim shall not be denied solely because a police report was not made by the victim or derivative victim, nor because the victim or derivative victim has not notified law enforcement of the crime. The board shall adopt guidelines that allow the board to consider and approve applications for assistance relying upon evidence other than a police report to establish that a qualifying crime has occurred. That evidence may include any reliable corroborating information approved by the board, including, but not limited to, the following:
(A) Restricted or unrestricted reports to a victim advocate, sexual assault response coordinator, chaplain, attorney, or other caseworker or service provider responding to the victimization.
(B) Medical or physical evidence documenting injuries consistent with allegations of the qualifying crime.
(C) A written or oral report from a law enforcement agency concluding that a crime was committed against the victim.
(D) 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 the crime.
(E) Information provided by a credible witness to whom the victim disclosed the details that the qualifying crime occurred.
(F) A restraining order that the victim or derivative victim has obtained against the perpetrator of the crime.
(G) Mental health records documenting that the victim experienced mental health issues relating to the qualifying crime.
(H) An affidavit from a human trafficking caseworker, as identified in Section 1038.2 of the Evidence Code, attesting that the individual was a victim of human trafficking, if the application is for a claim based on human trafficking as defined in Section 236.1 of the Penal Code.
(I) Other behavior by the victim or derivative victim consistent with the victimization.
(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.
(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.
(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 no police report was 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 as defined in Section 236.1 of the Penal Code 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 236.2 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.
(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, 262, 264.1, 286, 287, formerly 288a, or Section 289 of the Penal Code, as of the date the act that added this paragraph was enacted.
(c) (1) Notwithstanding Section 13955, no person who is convicted of a violent felony listed in subdivision (c) of Section 667.5 of the Penal Code may 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. In no case shall compensation 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 not be considered until the applicant meets the requirements for compensation set forth in paragraph (1).