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SB-299 Victim compensation: use of force by a law enforcement officer.(2021-2022)

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Date Published: 09/01/2021 09:00 PM
SB299:v93#DOCUMENT

Amended  IN  Assembly  September 01, 2021
Amended  IN  Assembly  August 30, 2021
Amended  IN  Assembly  July 05, 2021
Amended  IN  Senate  May 20, 2021
Amended  IN  Senate  March 25, 2021
Amended  IN  Senate  March 04, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 299


Introduced by Senator Leyva
(Coauthor: Senator (Coauthors: Senators Kamlager and Laird)
(Coauthors: Assembly Members Bryan, Chiu, Friedman, Cristina Garcia, Grayson, Lee, and Wicks)

February 03, 2021


An act to amend Sections 13951, 13954, 13956, 13960, and 13963 of the Government Code, relating to victim compensation, and making an appropriation therefor.


LEGISLATIVE COUNSEL'S DIGEST


SB 299, as amended, Leyva. Victim compensation: use of force by a law enforcement officer.
(1) 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 any public offense described above regardless of whether any person is arrested for, charged with, or convicted of the commission of the crime. The bill would also include in the definition of “crime” an incident occurring on or after January 1, 2022, in which an individual sustains serious bodily injury, as specified, 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 crime for which compensation can be paid from a continuously appropriated fund, the bill would make an appropriation.
(2) Existing law requires every law enforcement and social service agency in the state to provide to the board or to a contracted victim center reports involving the crime or incident giving rise to a claim, for the specific purpose of determining the eligibility of a claim, except as provided.
This bill would prohibit a determination made by the board as to the eligibility of a victim or applicant for compensation from being used as evidence that, among other things, any person committed a crime. 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, the bill would further prohibit the eligibility determination from being used as evidence in any action, disciplinary investigation, or proceeding relating to the employment or duties of the law enforcement officer, as provided.
(3) 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 a criminal 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 would, absent a police report, authorize the board to consider other evidence that a crime occurred, as specified. The bill, in the case of a claim based on a victim’s death as a result of a crime, would prohibit the board from denying an application based on the deceased victim’s involvement in the crime or the victim’s or derivative victim’s failure to cooperate, except as provided.
(4) Existing law authorizes the filing of a petition for a writ of mandate, as provided, in seeking judicial review of a final decision by the board.
This bill would prohibit a writ of mandate from being used as evidence that, among other things, any person committed a crime. 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, the bill would further prohibit the writ from being used as evidence in any action, disciplinary investigation, or proceeding relating to the employment or duties of the law enforcement officer, as provided.
(5) Existing law requires that the California Victim Compensation 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 a claim based on serious bodily injury or death that resulted from a law enforcement officer’s use of force, as specified.
(6) This bill would incorporate additional changes to Section 13956 of the Government Code proposed by AB 1171 to be operative only if this bill and AB 1171 are enacted and this bill is enacted last.
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, 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 an incident occurring on or after January 1, 2022, 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.
(c) “Derivative victim” means an individual who sustains pecuniary loss as a result of injury or death to a victim.
(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 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.
(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.
(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.
(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.
(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 either an agency or organization that has a documented record of providing services to victims, or a law enforcement or prosecution agency.

SEC. 2.

 Section 13954 of the Government Code is amended to read:

13954.
 (a) The board shall verify with hospitals, physicians, law enforcement officials, or other interested parties involved, the treatment of the victim or derivative victim, circumstances of the crime, amounts paid or received by or for the victim or derivative victim, and any other pertinent information deemed necessary by the board. Verification information shall be returned to the board within 10 business days after a request for verification has been made by the board. Verification information shall be provided at no cost to the applicant, the board, or victim centers. When requesting verification information, the board shall certify that a signed authorization by the applicant is retained in the applicant’s file and that this certification constitutes actual authorization for the release of information, notwithstanding any other provision of law. If requested by a physician or mental health provider, the board shall provide a copy of the signed authorization for the release of information.
(b) (1) The applicant shall cooperate with the staff of the board or the victim center in the verification of the information contained in the application. Failure to cooperate shall be reported to the board, which, in its discretion, may reject the application solely on this ground.
(2) An applicant may be found to have failed to cooperate with the board if any of the following occur:
(A) The applicant has information, or there is information that the applicant may reasonably obtain, that is needed to process the application or supplemental claim, and the applicant failed to provide the information after being requested to do so by the board. The board shall take the applicant’s economic, psychosocial, and postcrime traumatic circumstances into consideration, and shall not unreasonably reject an application solely for failure to provide information.
(B) The applicant provided, or caused another to provide, false information regarding the application or supplemental claim.
(C) The applicant refused to apply for other benefits potentially available to the applicant from other sources besides the board including, but not limited to, worker’s compensation, state disability insurance, social security benefits, and unemployment insurance.
(D) The applicant threatened violence or bodily harm to a member of the board or staff.
(c) The board may contract with victim centers to provide verification of applications processed by the centers pursuant to conditions stated in subdivision (a). The board and its staff shall cooperate with the Office of Criminal Justice Planning and victim centers in conducting training sessions for center personnel and shall cooperate in the development of standardized verification procedures to be used by the victim centers in the state. The board and its staff shall cooperate with victim centers in disseminating standardized board policies and findings as they relate to the centers.
(d) (1) Notwithstanding Section 827 of the Welfare and Institutions Code or any other provision of law, every law enforcement and social service agency in the state shall provide to the board or to victim centers that have contracts with the board pursuant to subdivision (c), upon request, a complete copy of the law enforcement report and any supplemental reports involving the crime or incident giving rise to a claim, a copy of a petition filed in a juvenile court proceeding, reports of the probation officer, and any other document made available to the probation officer or to the judge, referee, or other hearing officer, for the specific purpose of determining the eligibility of a claim filed pursuant to this chapter.
(2)  The board and victim centers receiving records pursuant to this subdivision may not disclose a document that personally identifies a minor to anyone other than the minor who is so identified, the minor’s custodial parent or guardian, the attorneys for those parties, and any other persons that may be designated by court order. Any information received pursuant to this section shall be received in confidence for the limited purpose for which it was provided and may not be further disseminated. A violation of this subdivision is a misdemeanor punishable by a fine not to exceed five hundred dollars ($500).
(3) The law enforcement agency supplying information pursuant to this section may withhold the names of witnesses or informants from the board, if the release of those names would be detrimental to the parties or to an investigation in progress.
(e) Notwithstanding any other provision of law, every state agency, upon receipt of a copy of a release signed in accordance with the Information Practices Act of 1977 (Chapter 1 (commencing with Section 1798) of Title 1.8 of Part 4 of Division 3 of the Civil Code) by the applicant or other authorized representative, shall provide to the board or victim center the information necessary to complete the verification of an application filed pursuant to this chapter.
(f) The Department of Justice shall furnish, upon application of the board, all information necessary to verify the eligibility of any applicant for benefits pursuant to subdivision (c) of Section 13956, to recover any restitution fine or order obligations that are owed to the Restitution Fund or to any victim of crime, or to evaluate the status of any criminal disposition.
(g) A privilege is not waived under Section 912 of the Evidence Code by an applicant consenting to disclosure of an otherwise privileged communication if that disclosure is deemed necessary by the board for verification of the application.
(h) Any verification conducted pursuant to this section shall be subject to the time limits specified in Section 13958.
(i) Any county social worker acting as the applicant for a child victim or elder abuse victim shall not be required to provide personal identification, including, but not limited to, the applicant’s date of birth or social security number. County social workers acting in this capacity shall not be required to sign a promise of repayment to the board.
(j) Notwithstanding any other provision of statute, administrative rule, local ordinance, or other law, a determination made by the board as to the eligibility of a victim or applicant for compensation shall be used for the limited purposes described in this chapter, or in a proceeding related to determining the amount of restitution a person who has been convicted of a crime owes, pursuant to Section 1202.4 of the Penal Code. A determination of eligibility made by the board shall not otherwise be admissible as evidence that any person committed a crime or is liable for a victim’s injury or death in any civil action or proceeding, in any criminal action or proceeding including pretrial motions and hearings and postconviction motions and hearings, in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, or in any court of law. This subdivision shall not be construed to limit or in any way affect the board’s subrogation and recovery rights under Section 13963 or 13966, and shall not be construed to limit or in any way affect the ability of a court to consider the amount of assistance provided by the Restitution Fund to a victim in a determination relating to a restitution order following a conviction, in accordance with Section 1202.4 of the Penal Code.
(k) Notwithstanding any other provision of statute, administrative rule, local ordinance, or other law, for claims 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, a determination made by the board as to the eligibility of a victim or applicant for compensation shall not be admissible as evidence in any action, disciplinary investigation, or proceeding relating to the employment or duties of the law enforcement officer, nor used as evidence to support any punitive action or denial of promotion of a law enforcement officer.

SEC. 3.

 Section 13956 of the Government Code is amended to read:

13956.
 Notwithstanding Section 13955, a person shall not be eligible for compensation under the following conditions:
(a) 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 them 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.
(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 that resulted 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) 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 if the victim is convicted of a violent crime as defined in Section 667.5 of the Penal Code, or of a crime that resulted in serious bodily injury, as defined in Section 243 of the Penal Code, to or death of another person, and the crime occurred at the time and location of the incident on which the claim is based. The board shall not consider a claim for compensation while charges are pending alleging that a victim subject to this paragraph committed such a crime. A victim or applicant 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 granted until the charges are no longer pending against the victim. If the victim is deceased, charges shall not be considered pending against the victim for the purposes of this paragraph.
(5) Notwithstanding paragraphs (3) and (6), 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, on another person or personally killed another person at the time and location of the incident on which the claim is based.
(6) Notwithstanding paragraphs (1) and (2), and except as provided in paragraph (5), for a claim based on a victim’s death as a result of a crime, the board shall not deny the application, in whole or in part, based on the deceased victim’s involvement in the crime that gave rise to the claim.
(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. Victims of domestic violence shall not be determined to have failed to cooperate based on their 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), 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, the board shall not deny the application based on the victim’s failure to cooperate.
(3) Notwithstanding paragraph (1), for a claim based on a victim’s death as a result of a crime, the board shall not deny the application based on a victim’s or derivative victim’s failure to cooperate.
(4) 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.
(5) 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.
(6) 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 236.5 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.
(7) (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) Notwithstanding any provision of this section, for applications 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, the board shall not deny an application, in whole or in part, based solely upon the contents of a police report, or because a police report was not made, or based on whether any suspect was arrested or charged with the crime that gave rise to the claim. The board shall consider other evidence to establish that a qualifying crime occurred. Factors evidencing that a qualifying crime occurred may include, but are not limited to, all of the following:
(1) Medical records documenting injuries consistent with the allegation of the qualifying crime.
(2) A written statement from a victim services provider stating that the victim is seeking services related to the qualifying crime.
(3) A permanent restraining order or protective order issued by a court to protect or separate the victim or derivative victim from the person who is responsible for the qualifying crime.
(4) 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 experienced physical, mental, or emotional injury as a result of the qualifying crime.
(5) A written or oral report from a law enforcement agency stating that a qualifying crime was committed against the victim.
(6) 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.
(d) A person making a statement or report regarding a qualifying crime under paragraph (2), (4), or (5) of subdivision (c) may consider any information or evidence they deem relevant.
(e) (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).

SEC. 3.5.

 Section 13956 of the Government Code is amended to read:

13956.
 Notwithstanding Section 13955, a person shall not be eligible for compensation under the following conditions:
(a) 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 him or her 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 273.5 273.5, 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 that resulted 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) 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 if the victim is convicted of a violent crime as defined in Section 667.5 of the Penal Code, or of a crime that resulted in serious bodily injury, as defined in Section 243 of the Penal Code, to or death of another person, and the crime occurred at the time and location of the incident on which the claim is based. The board shall not consider a claim for compensation while charges are pending alleging that a victim subject to this paragraph committed such a crime. A victim or applicant 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 granted until the charges are no longer pending against the victim. If the victim is deceased, charges shall not be considered pending against the victim for the purposes of this paragraph.
(5) Notwithstanding paragraphs (3) and (6), 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, on another person or personally killed another person at the time and location of the incident on which the claim is based.
(6) Notwithstanding paragraphs (1) and (2), and except as provided in paragraph (5), for a claim based on a victim’s death as a result of a crime, the board shall not deny the application, in whole or in part, based on the deceased victim’s involvement in the crime that gave rise to the claim.
(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 Victims of domestic violence shall not be determined to have failed to cooperate based on his or her 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), 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, the board shall not deny the application based on the victim’s failure to cooperate.
(3) Notwithstanding paragraph (1), for a claim based on a victim’s death as a result of a crime, the board shall not deny the application based on a victim’s or derivative victim’s failure to cooperate.

(2)

(4) 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)

(5) 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)

(6) 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 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 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 law enforcement agency endorsement issued pursuant to Section 236.2 236.5 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)

(7) (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. January 1, 2015.
(c) Notwithstanding any provision of this section, for applications 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, the board shall not deny an application, in whole or in part, based solely upon the contents of a police report, or because a police report was not made, or based on whether any suspect was arrested or charged with the crime that gave rise to the claim. The board shall consider other evidence to establish that a qualifying crime occurred. Factors evidencing that a qualifying crime occurred may include, but are not limited to, all of the following:
(1) Medical records documenting injuries consistent with the allegation of the qualifying crime.
(2) A written statement from a victim services provider stating that the victim is seeking services related to the qualifying crime.
(3) A permanent restraining order or protective order issued by a court to protect or separate the victim or derivative victim from the person who is responsible for the qualifying crime.
(4) 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 experienced physical, mental, or emotional injury as a result of the qualifying crime.
(5) A written or oral report from a law enforcement agency stating that a qualifying crime was committed against the victim.
(6) 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.
(d) A person making a statement or report regarding a qualifying crime under paragraph (2), (4), or (5) of subdivision (c) may consider any information or evidence they deem relevant.

(c)

(e) (1) Notwithstanding Section 13955, no a person who is convicted of a violent felony listed in subdivision (c) of Section 667.5 of the Penal Code may 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. In no case shall compensation 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, 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).

SEC. 4.

 Section 13960 of the Government Code is amended to read:

13960.
 (a) Judicial review of a final decision made pursuant to this chapter may be had by filing a petition for a writ of mandate in accordance with Section 1094.5 of the Code of Civil Procedure. The right to petition shall not be affected by the failure to seek reconsideration before the board. The petition shall be filed as follows:
(1) Where no request for reconsideration is made, within 30 calendar days of personal delivery or within 60 calendar days of the mailing of the board’s decision on the application for compensation.
(2) Where a timely request for reconsideration is filed and rejected by the board, within 30 calendar days of personal delivery or within 60 calendar days of the mailing of the notice of rejection.
(3) Where a timely request for reconsideration is filed and granted by the board, or reconsideration is ordered by the board, within 30 calendar days of personal delivery or within 60 calendar days of the mailing of the final decision on the reconsidered application.
(b) (1) In an action resulting in the issuance of a writ of mandate pursuant to this section the court may order the board to pay to the applicant’s attorney reasonable attorney’s fees or one thousand dollars ($1,000), whichever is less. If action is taken by the board in favor of the applicant in response to the filing of the petition, but prior to a judicial determination, the board shall pay the applicant’s costs of filing the petition.
(2) In case of appeal by the board of a decision on the petition for writ of mandate that results in a decision in favor of the applicant, the court may order the board to pay to the applicant’s attorney reasonable attorney fees.
(3) Nothing in this section shall be construed to prohibit or limit an award of attorney’s fees pursuant to Section 1021.5 of the Code of Civil Procedure.
(c) (1) Notwithstanding any other provision of statute, administrative rule, local ordinance, or other law, a writ of mandate issued pursuant to this section shall apply for the limited purposes of compelling the board to award compensation pursuant to this chapter, or in a proceeding related to determining the amount of restitution a person who has been convicted of the crime owes, pursuant to Section 1202.4 of the Penal Code. A writ of mandate issued pursuant to this section shall not otherwise be admissible as evidence that any person committed a crime or is liable for a victim’s injury or death in any civil action or proceeding, in any criminal action or proceeding including pretrial motions and hearings and postconviction motions and hearings in criminal proceedings, in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, or in any court of law. This subdivision shall not be construed to limit or in any way affect the board’s subrogation and recovery rights under Section 13963 or 13966, and shall not be construed to limit or in any way affect the ability of a court to consider the amount of assistance provided by the Restitution Fund to a victim in a determination relating to a restitution order following a conviction, in accordance with Section 1202.4 of the Penal Code.
(2) Notwithstanding any other provision of statute, administrative rule, local ordinance, or other law, 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, a writ of mandate issued pursuant to this section shall not be admissible as evidence in any action, disciplinary investigation, or proceeding relating to the employment or duties of the law enforcement officer, nor used as evidence to support any punitive action or denial of promotion of a law enforcement officer.

SEC. 5.

 Section 13963 of the Government Code is amended to read:

13963.
 (a) (1) The board shall be subrogated to the rights of the recipient to the extent of any compensation granted by the board. The subrogation rights shall be against the perpetrator of the crime or any person liable for the losses suffered as a direct result of the crime which was the basis for receipt of compensation, including an insurer held liable in accordance with the provision of a policy of insurance issued pursuant to Section 11580.2 of the Insurance Code.
(2) This section applies to compensation by the board for a claim based on serious bodily injury or death that resulted from a law enforcement officer’s use of force, as provided in paragraph (3) of subdivision (a) of Section 13951.
(b) The board shall also be entitled to a lien on any judgment, award, or settlement in favor of or on behalf of the recipient for losses suffered as a direct result of the crime that was the basis for receipt of compensation in the amount of the compensation granted by the board. The board may recover this amount in a separate action, or may intervene in an action brought by or on behalf of the recipient. If a claim is filed within one year of the date of recovery, the board shall pay 25 percent of the amount of the recovery that is subject to a lien on the judgment, award, or settlement, to the recipient responsible for recovery if the recipient notified the board of the action prior to receiving any recovery. The remaining amount, and any amount not claimed within one year pursuant to this section, shall be deposited in the Restitution Fund.
(c) The board may compromise or settle and release any lien pursuant to this chapter if it is found that the action is in the best interest of the state or the collection would cause undue hardship upon the recipient. Repayment obligations to the Restitution Fund shall be enforceable as a summary judgment.
(d) No judgment, award, or settlement in any action or claim by a recipient, where the board has an interest, shall be satisfied without first giving the board notice and a reasonable opportunity to perfect and satisfy the lien. The notice shall be given to the board in Sacramento except in cases where the board specifies that the notice shall be given otherwise. The notice shall include the complete terms of the award, settlement, or judgment, and the name and address of any insurer directly or indirectly providing for the satisfaction.
(e) (1) If the recipient brings an action or asserts a claim for damages against the person or persons liable for the injury or death giving rise to an award by the board under this chapter, notice of the institution of legal proceedings, notice of all hearings, conferences, and proceedings, and notice of settlement shall be given to the board in Sacramento except in cases where the board specifies that notice shall be given to the Attorney General. Notice of the institution of legal proceedings shall be given to the board within 30 days of filing the action. All notices shall be given by the attorney employed to bring the action for damages or by the recipient if no attorney is employed.
(2) Notice shall include all of the following:
(A) Names of all parties to the claim or action.
(B) The address of all parties to the claim or action except for those persons represented by attorneys and in that case the name of the party and the name and address of the attorney.
(C) The nature of the claim asserted or action brought.
(D) In the case of actions before courts or administrative agencies, the full title of the case including the identity of the court or agency, the names of the parties, and the case or docket number.
(3) When the recipient or their attorney has reason to believe that a person from whom damages are sought is receiving a defense provided in whole or in part by an insurer, or is insured for the injury caused to the recipient, notice shall include a statement of that fact and the name and address of the insurer. Upon request of the board, a person obligated to provide notice shall provide the board with a copy of the current written claim or complaint.
(f) The board shall pay the county probation department or other county agency responsible for collection of funds owed to the Restitution Fund under Section 13967, as operative on or before September 28, 1994, Section 1202.4 of the Penal Code, Section 1203.04 of the Penal Code, as operative on or before August 2, 1995, or Section 730.6 of the Welfare and Institutions Code, 10 percent of the funds so owed and collected by the county agency and deposited in the Restitution Fund. This payment shall be made only when the funds are deposited in the Restitution Fund within 45 days of the end of the month in which the funds are collected. Receiving 10 percent of the moneys collected as being owed to the Restitution Fund shall be considered an incentive for collection efforts and shall be used for furthering these collection efforts. The 10-percent rebates shall be used to augment the budgets for the county agencies responsible for collection of funds owed to the Restitution Fund, as provided in Section 13967, as operative on or before September 28, 1994, Section 1202.4 of the Penal Code, Section 1203.04 of the Penal Code, operative on or before August 2, 1995, or Section 730.6 of the Welfare and Institutions Code. The 10-percent rebates shall not be used to supplant county funding.
(g) In the event of judgment or award in a suit or claim against a third party or insurer, if the action or claim is prosecuted by the recipient alone, the court or agency shall first order paid from any judgment or award the reasonable litigation expenses incurred in preparation and prosecution of the action or claim, together with reasonable attorney’s fees when an attorney has been retained. After payment of the expenses and attorney’s fees, the court or agency shall, on the application of the board, allow as a lien against the amount of the judgment or award, the amount of the compensation granted by the board to the recipient for losses sustained as a result of the same incident upon which the settlement, award, or judgment is based.
(h) For purposes of this section, “recipient” means any person who has received compensation or will be provided compensation pursuant to this chapter, including the victim’s guardian, conservator or other personal representative, estate, and survivors.
(i) In accordance with subparagraph (B) of paragraph (4) of subdivision (f) of Section 1202.4 of the Penal Code, a representative of the board may provide the probation department, district attorney, and court with information relevant to the board’s losses prior to the imposition of a sentence.

SEC. 6.

 Section 3.5 of this bill incorporates amendments to Section 13956 of the Government Code proposed by both this bill and Assembly Bill 1171. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2022, (2) each bill amends Section 13956 of the Government Code, and (3) this bill is enacted after Assembly Bill 1171, in which case Section 3 of this bill shall not become operative.