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AB-1551 Vehicular manslaughter while intoxicated.(2023-2024)

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Date Published: 04/13/2023 09:00 PM
AB1551:v98#DOCUMENT

Amended  IN  Assembly  April 13, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 1551

Introduced by Assembly Member Gipson

February 17, 2023

An act to add Section 191.6 to the Penal Code, amend Section 13957.5 of the Government Code, relating to vehicular manslaughter, and making an appropriation therefor.


LEGISLATIVE COUNSEL'S DIGEST


AB 1551, as amended, Gipson. Vehicular manslaughter while intoxicated.
Under existing law, a person who drives a motor vehicle when the person has 0.08% or more, by weight, of alcohol in their blood, is guilty of driving under the influence of alcohol. Existing law defines vehicular manslaughter as the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony or a lawful act that might produce death, in an unlawful manner, either with or without gross negligence. Under existing law, vehicular manslaughter that is committed while the person was driving under the influence of alcohol is punishable as vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated.
Existing law requires the driver of a vehicle involved in an accident resulting in injury to a person, other than that driver, or in the death of a person to immediately stop the vehicle at the scene of the accident and provide specified personal information to the injured person or the occupants of the other vehicle and to any traffic or police officer at the scene of the accident. Under existing law, if a vehicle accident results in permanent, serious injury or death, a person who violates the requirement to stop is subject to punishment by imprisonment in the state prison for 2, 3, or 4 years, or in a county jail for not less than 90 days nor more than one year, or by a specified fine, or both the imprisonment and fine.
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.

This bill would require a court to order a defendant to pay restitution in the form of child maintenance to each of the victim’s children until each child reaches 18 years of age if the defendant is convicted of vehicular manslaughter while intoxicated, gross vehicular manslaughter while intoxicated, or a hit-and-run while intoxicated causing death and the deceased victim of the offense was the parent of a minor child. The bill would require the court to determine an amount that is reasonable and necessary for the maintenance of the victim’s child after considering specified factors.

This bill would require the court to order that child maintenance payments be made to the clerk of the court as trustee for remittance to the child’s surviving parent or guardian. The bill would require the clerk to remit the payments to the surviving parent or guardian within 10 working days of receipt by the clerk. If a defendant who is ordered to pay child maintenance is incarcerated and unable to pay, the bill would give the defendant up to one year after their release from incarceration to begin the payments, including entering a payment plan to address any arrearage.

This bill would authorize the victim to collect from the Restitution Fund any portion of the child maintenance that remains unsatisfied. By expanding the authorizations for use of moneys in the continuously appropriated Restitution Fund, this bill would make an appropriation.

This bill would authorize the child of a victim of those crimes to collect compensation from the Restitution Fund for loss of support until the child reaches 18 years of age, in an amount not to exceed $100,000. By expanding the authorizations for use of moneys in the continuously appropriated Restitution Fund, this bill would make an appropriation.
Vote: MAJORITY2/3   Appropriation: YES   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 13957.5 of the Government Code, as amended by Section 6 of Chapter 771 of the Statutes of 2022, is amended to read:

13957.5.
 (a) In authorizing compensation for loss of income and support pursuant to paragraph (3) of subdivision (a) of Section 13957, the board may take any of the following actions:
(1) Compensate the victim for loss of income directly resulting from the injury, except that loss of income may not be paid by the board for more than five years following the crime, unless the victim is disabled as defined in Section 416(i) of Title 42 of the United States Code, as a direct result of the injury.
(2) Compensate an adult derivative victim for loss of income, subject to all of the following:
(A) The derivative victim is the parent or legal guardian of a victim, who at the time of the crime was under 18 years of age and is hospitalized as a direct result of the crime.
(B) The minor victim’s treating physician certifies in writing that the presence of the victim’s parent or legal guardian at the hospital is necessary for the treatment of the victim.
(C) Reimbursement for loss of income under this paragraph may not exceed the total value of the income that would have been earned by the adult derivative victim during a 30-day period.
(3) Compensate an adult derivative victim for loss of income, subject to all of the following:
(A) The derivative victim is the parent or legal guardian of a victim who at the time of the crime was under 18 years of age.
(B) The victim died as a direct result of the crime.
(C) The board shall pay for loss of income under this paragraph for not more than 30 calendar days from the date of the victim’s death.
(4) Compensate a derivative victim who was legally dependent on the victim at the time of the crime for the loss of support incurred by that person as a direct result of the crime, subject to both all of the following:
(A) Loss of support shall be paid by the board for income lost by an adult for a period up to, but not more than, five years following the date of the crime.
(B) If the qualifying crime is a violation of gross vehicular manslaughter while intoxicated under subdivision (a) of Section 191.5 of the Penal Code, vehicular manslaughter while intoxicated under subdivision (b) of Section 191.5 of the Penal Code, or a hit and run while intoxicated causing death under Section 20001 of the Vehicle Code and the deceased victim of the offense was the parent or guardian of a minor child, loss of support shall be paid by the board until each child reaches 18 years of age. Notwithstanding subdivision (b), the total amount payable to minor child derivative victims pursuant to this subparagraph as the result of one crime shall not exceed one hundred thousand dollars ($100,000).

(B)

(C) Loss of support shall not be paid by the board on behalf of a minor for a period beyond the child’s attaining 18 years of age.
(5) (A) If the qualifying crime is a violation of Section 236.1 of the Penal Code, and the victim has not been and will not be compensated from any other source, compensate the victim for loss of income or support directly resulting from the deprivation of liberty during the crime based upon the value of the victim’s labor as guaranteed under California law at the time that the services were performed for the number of hours that the services were performed, for up to 40 hours per week.
(B) On or before July 1, 2020, the board shall adopt guidelines that allow it to rely on evidence other than official employment documentation in considering and approving an application for that compensation. The evidence may include any reliable corroborating information approved by the board, including, but not limited to, a statement under penalty of perjury from the applicant, a human trafficking caseworker as defined in Section 1038.2 of the Evidence Code, a licensed attorney, or a witness to the circumstances of the crime.
(C) Compensation for loss of income paid by the board pursuant to this paragraph shall not exceed ten thousand dollars ($10,000) per year that the services were performed, for a maximum of two years.
(D) If the victim is a minor at the time of application, the board shall distribute payment under this paragraph when the minor reaches 18 years of age.
(b) The total amount payable to all derivative victims pursuant to this section as the result of one crime shall not exceed seventy thousand dollars ($70,000).
(c) (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. 2.

 Section 13957.5 of the Government Code, as added by Section 7 of Chapter 771 of the Statutes of 2022, is amended to read:

13957.5.
 (a) In authorizing compensation for loss of income and support pursuant to paragraph (3) of subdivision (a) of Section 13957, the board may take any of the following actions:
(1) Subject to paragraph (7), and calculated as provided in paragraph (8), compensate the victim for loss of income directly resulting from the injury, except that loss of income shall not be paid by the board for more than five years following the crime, unless the victim is disabled as defined in Section 416(i) of Title 42 of the United States Code, as a direct result of the injury.
(2) Compensate an adult derivative victim for loss of income, subject to all of the following:
(A) The derivative victim is the parent, legal guardian, or spouse of the victim, or if no parent, legal guardian, or spouse of the victim is present at the hospital, is another derivative victim, who is present at the hospital during the period the victim is hospitalized as a direct result of the crime.
(B) The victim’s treating physician certifies in writing that the presence of the derivative victim at the hospital is reasonably necessary for the treatment of the victim, or is reasonably necessary for the victim’s psychological well-being.
(C) Reimbursement for loss of income under this paragraph shall not exceed the total value of the income that would have been earned, calculated as described in paragraph (8), by the adult derivative victim during a 30-day period.
(3) Compensate an adult derivative victim for loss of income, subject to all of the following:
(A) The victim died as a direct result of the crime.
(B) (i) If the derivative victim is the spouse of the victim, is the parent of the victim, was living in the household of the victim at the time of the crime, was the legal guardian of the victim at the time of the crime, or was the legal guardian of the victim when the victim was under 18 years of age, the board shall pay for loss of income under this paragraph, calculated as provided by paragraph (8), for not more than 30 calendar days occurring within 90 calendar days of the victim’s death.
(ii) For a derivative victim not included in clause (i), the board shall pay for loss of income under this paragraph, calculated as provided by paragraph (8), for not more than seven calendar days occurring within 90 calendar days of the victim’s death.
(4) Compensate a derivative victim who was legally dependent on the victim at the time of the crime for the loss of support incurred by that person as a direct result of the crime, calculated as provided in paragraph (8), subject to both all of the following:
(A) Loss of support shall be paid by the board for income lost by an adult for a period up to, but not more than, five years following the date of the crime.
(B) If the qualifying crime is a violation of gross vehicular manslaughter while intoxicated under subdivision (a) of Section 191.5 of the Penal Code, vehicular manslaughter while intoxicated under subdivision (b) of Section 191.5 of the Penal Code, or a hit and run while intoxicated causing death under Section 20001 of the Vehicle Code and the deceased victim of the offense was the parent or guardian of a minor child, loss of support shall be paid by the board until each child reaches 18 years of age. Notwithstanding paragraph (8) of subdivision (a) or subdivision (c), the total amount payable to minor child derivative victims pursuant to this subparagraph as the result of one crime shall not exceed one hundred thousand dollars ($100,000).

(B)

(C) Loss of support shall not be paid by the board on behalf of a minor for a period beyond the child’s attaining 18 years of age.
(5) (A)    If the qualifying crime is a violation of Section 236.1 of the Penal Code, and the victim has not been and will not be compensated from any other source, compensate the victim for loss of income or support directly resulting from the deprivation of liberty during the crime based upon the value of the victim’s labor as guaranteed under California law at the time that the services were performed for the number of hours that the services were performed, for up to 40 hours per week.
(B) On or before July 1, 2020, the board shall adopt guidelines that allow it to rely on evidence other than official employment documentation in considering and approving an application for that compensation. The evidence may include any reliable corroborating information approved by the board, including, but not limited to, a statement under penalty of perjury from the applicant, a human trafficking caseworker as defined in Section 1038.2 of the Evidence Code, a licensed attorney, or a witness to the circumstances of the crime.
(C) Compensation for loss of income paid by the board pursuant to this paragraph shall not exceed ten thousand dollars ($10,000) per year that the services were performed, for a maximum of two years.
(D) If the victim is a minor at the time of application, the board shall distribute payment under this paragraph when the minor reaches 18 years of age.
(6) If the victim is a minor at the time of the crime, the victim shall be eligible for future loss of income due to disability from future employment directly resulting from the injury at a rate an employee would earn if employed for 35 hours per week at the minimum wage required at the time of the crime by Section 1182.12 of the Labor Code for a maximum of one year.
(7) (A) A victim or derivative victim who is otherwise eligible for loss of income under paragraph (1), (2), or (3) shall be eligible for loss of income if they were employed or receiving earned income benefits at the time of the crime. If an otherwise eligible adult victim or derivative victim was not employed or receiving earned income benefits at the time of the crime, they shall be eligible for loss of income under paragraph (1), (2), or (3) if the victim or derivative victim was fully or partially employed or receiving income benefits for a total of at least two weeks in the 12 months preceding the qualifying crime, or had an offer of employment at the time of the crime and was unable to begin employment as a result of the crime.
(B) A derivative victim who is otherwise eligible for loss of support under paragraph (4) shall be eligible for loss of support if the victim was employed or receiving earned income benefits at the time of the crime. If the victim was not employed or receiving earned income benefits at the time of the crime, the derivative victim shall be eligible if the victim was fully or partially employed or receiving earned income benefits for a total of at least two weeks in the 12 months preceding the qualifying crime, or if the victim had an offer of employment at the time of the crime and was unable to begin employment as a result of the crime.
(8) (A) Except as provided by subparagraph (B), loss of income or support under paragraph (1), (2), (3), or (4) shall be based on the actual loss the victim or derivative victim, as applicable, sustains or the wages the victim or derivative victim, as applicable, would have earned if employed for 35 hours per week at the minimum wage required by Section 1182.12 of the Labor Code during the applicable period, whichever is greater.
(B) For victims who are under 18 years of age at the time of the crime, loss of income under paragraph (1) shall be based upon the actual loss the victim sustains.
(b) By July 1, 2025, the board shall adopt new guidelines for accepting evidence that may be available to the victim or derivative victim in considering and approving a claim for loss of income or support under this section, which shall require the board to accept any form of reliable corroborating information approved by the board regarding the victim or derivative victim’s income, including, but not limited to, all of the following:
(1) A statement from the employer.
(2) A pattern of deposits into a bank or credit union account of the victim or derivative victim.
(3) Pay stubs or copies of checks received as payment.
(4) A copy of a job offer letter from an employer.
(5) Income tax records.
(6) Verification through a vendor, if the employer contracts with a vendor for employment verification.
(7) Information related to eligibility or enrollment from any of the following:
(A) The CalFresh program pursuant to Chapter 10 (commencing with Section 18900) of Part 6 of Division 9 of the Welfare and Institution Code.
(B) The CalWORKs program.
(C) The state’s children’s health insurance program under Title XXI of the federal Social Security Act (42 U.S.C. Sec. 1397aa et seq.).
(D) The California Health Benefit Exchange established pursuant to Title 22 (commencing with Section 100500) of the Government Code.
(E) The electronic service established in accordance with Section 435.949 of Title 42 of the Code of Federal Regulations.
(F) Records from the Employment Development Department.
(c) The total amount payable to all derivative victims pursuant to this section as the result of one crime shall not exceed one hundred thousand dollars ($100,000).
(d) This section shall become operative 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.

SECTION 1.Section 191.6 is added to the Penal Code, to read:
191.6.

(a)Notwithstanding any other law, if a defendant is convicted of a violation of gross vehicular manslaughter while intoxicated under subdivision (a) of Section 191.5, vehicular manslaughter while intoxicated under subdivision (b) of Section 191.5, or a hit-and-run while intoxicated causing death under Section 20001 of the Vehicle Code, and the deceased victim of the offense was the parent of a minor child, then the court shall order the defendant to pay restitution in the form of child maintenance to each of the victim’s children until each child reaches 18 years of age.

(b)The court shall determine an amount that is reasonable and necessary for the maintenance of the victim’s minor child after considering all relevant factors, including all of the following:

(1)The financial needs and resources of the child.

(2)The financial resources and needs of the surviving parent or guardian of the child, including the state if the child is in the custody of the State Department of Social Services.

(3)The standard of living to which the child is accustomed.

(4)The physical and emotional condition of the child and the child’s educational needs.

(5)The child’s physical and legal custody arrangements.

(6)The reasonable work-related child care expenses of the surviving parent or guardian.

(c)(1)The court shall order that child maintenance payments be made to the clerk of the court as trustee for remittance to the child’s surviving parent or guardian. The clerk shall remit the payments to the surviving parent or guardian within 10 working days of receipt by the clerk. The clerk shall deposit all payments no later than the next working day after receipt.

(2)The minor child’s surviving parent or guardian shall have access to contact the clerk on behalf of the minor to inquire about the status of the minor child’s maintenance payments.

(d)If a defendant who is ordered to pay child maintenance under this section is incarcerated and unable to pay the required maintenance, the defendant shall have up to one year after the release from incarceration to begin payment, including entering a payment plan to address any arrearage. If a defendant’s child maintenance payments are set to terminate but the defendant’s obligation is not paid in full, the child maintenance payments shall continue until the entire arrearage is paid.

(e)Any portion of the child maintenance that remains unsatisfied shall be enforceable in the same manner as any other order of restitution to a victim under Article 5 (commencing with Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the Government Code.

(f)(1)If the surviving parent or guardian of the child brings a civil action against the defendant prior to the court ordering child maintenance payments as restitution and the surviving parent or guardian obtains a judgment in the civil suit, then no maintenance shall be ordered under this section.

(2)If the court orders the defendant to make child maintenance payments as restitution under this section and the surviving parent or guardian subsequently brings a civil action and obtains a judgment, the child maintenance order shall be offset by the amount of the judgment awarded in the civil action.