Bill Text: CA AB767 | 2019-2020 | Regular Session | Amended

California Assembly Bill 767 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Victim compensation: use of excessive force by a peace officer.

Spectrum: Partisan Bill (Democrat 8-0)

Status: (Engrossed - Dead) 2020-08-20 - In committee: Held under submission. [AB767 Detail]

Download: California-2019-AB767-Amended.html

Amended IN Senate July 14, 2020

Amended IN Senate June 29, 2020

Amended IN Senate June 06, 2019

Amended IN Assembly May 16, 2019

Amended IN Assembly April 30, 2019

Amended IN Assembly April 09, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill

No. 767

Introduced by Assembly Members Grayson, Chiu, Cristina Garcia, Weber, and Wicks

February 19, 2019

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

LEGISLATIVE COUNSEL'S DIGEST

AB 767, as amended, Grayson. Victim compensation.

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 crimes and public offenses regardless of whether a person is arrested for, charged with, or convicted of committing the crime. The bill would also add to the definition of “crime” an incident in which an individual sustains injury or death as a result of an encounter with a peace officer, regardless of whether the peace officer is arrested for, charged with, or convicted of committing a crime. By expanding the crimes for which compensation may be paid from a continuously appropriated fund, the bill would make an appropriation.

Existing law makes a person ineligible for compensation under specified conditions, including, among others, whether 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, and specifies the factors that the board may consider to mitigate that involvement.

This bill would recast those provisions to, instead, authorize the board to deny an application if it finds that the victim or derivative victim was knowingly and willingly in the process of committing a crime that constitutes a felony that directly caused the qualifying crime which inflicted or posed a substantial and imminent threat of causing great bodily injury to, or the death of, another person, or that directly provoked or aggravated the suspect into committing the qualifying crime at the time that the qualifying injury or death occurred, except as specified. The bill would also prohibit the board from denying an application, in whole or in part, based upon a deceased victim’s involvement in the events leading to the qualifying crime if the victim’s death occurred as a result of the crime.

Existing law requires the board to deny an application if it 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.

This bill, instead, would authorize the board to deny an application, in whole or in part, under these circumstances. The bill would specify that if the victim or derivative victim obtained a temporary restraining order, emergency order, emergency protective order, or protective order, presented themself to a licensed medical or mental health care provider for treatment for injuries resulting from the crime, reported the crime to law enforcement, or sought services from a victim services provider, as defined, that conduct shall be deemed to satisfy the reasonable cooperation requirement and would prevent denial of the application pursuant to those provisions. The bill would prohibit the board from denying a claim, in whole or in part, because of the lack of cooperation by the victim or derivative victim if the victim’s injury or death resulted from ~~a law enforcement officer’s use of force.~~ an encounter with a peace officer, as specified.

This bill would prohibit a claim from being denied, in whole or in part, solely because the crime or qualifying circumstances are not verified by law enforcement or documented in a police report, or because the victim or derivative victim has not reported the qualifying crime to law enforcement, and would require the board to adopt guidelines for consideration and approval of applications for assistance relying upon available evidence to reasonably establish that a qualifying crime has occurred. The bill would require the board to adopt regulations relating to its consideration of applications for assistance based on sexual assault and human trafficking relying upon evidence other than a police report to establish the crime.

Existing law prohibits a person who has been convicted of specified violent felonies from being granted compensation until they have been discharged from probation or have been released from a correctional institution and discharged from parole, postrelease community supervision, or other mandatory supervision.

This bill would delete those provisions.

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.

(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 in which an individual sustains injury or death as a result of an encounter with a peace officer, regardless of whether the peace officer is arrested for, charged with, or convicted of committing a crime.

(d) “Law enforcement” means every district attorney, municipal police department, sheriff’s department, district attorney’s office, county probation department, and social services agency, the Department of Justice, the Department of Corrections, the Department of the Youth Authority, 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) “Peace officer” has the same meaning as in Section 830 of the Penal Code.
~~(e)~~

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

~~(f)~~

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

~~(g)~~

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

~~(h)~~

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

~~(i)~~

(j) “Victim services provider” means an individual, whether paid or serving as a volunteer, who provides services to victims under the auspices or 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 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) Except as provided in subdivisions (b) and ~~(d),~~ (c), 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 if the board finds both of the following:

~~(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.~~

(1) The victim or derivative victim was knowingly and willingly in the process of committing a crime ~~that constitutes a felony~~ that, absent consideration of any enhancement or prior conviction, would constitute a felony, and that directly caused the qualifying crime, or directly provoked or aggravated the suspect into committing the qualifying crime at the time that the qualifying injury or death occurred.

(2) The felony that the victim or the derivative victim committed ~~posed~~ inflicted, or posed, a substantial and imminent threat of causing great bodily injury to, or the death of, another person.

(b) ~~(1)~~The board shall not deny an application or claim pursuant to subdivision ~~(a)~~ (a), in whole or in part, if any of the following apply:

~~(A)~~

(1) The victim’s injury occurred as a direct result of a crime committed against the victim in violation of subdivision (b) or (c) of Section 236.1, Section 261, 262, 273.5, 286, 287, 289, or former Section 288a of the Penal Code or of a crime ~~committed against the victim~~ of unlawful sexual intercourse with a minor in violation of Section 261.5 of the Penal Code.

~~(B)The victim’s involvement in the crime consisted of being the victim of unlawful sexual intercourse with a minor in violation of subdivision (d) of Section 261.5 of the Penal Code.~~
~~(C)The victim’s involvement in the crime occurred in a case involving the victim’s injuries resulting from police use of force.~~
~~(D)The victim’s involvement in the crime occurred in a case in which the victim was killed as a result of police aggression or use of force.~~
(2) The victim’s injuries or death resulted from an encounter with a peace officer pursuant to paragraph (3) of subdivision (b) of Section 13951.
~~(E)~~

(3) The claim is for expenses incurred pursuant to paragraph (2) of subdivision (a) of Section 13957, or for funeral and burial expenses pursuant to paragraph (8) of subdivision (a) of Section 13957.

(2)Notwithstanding paragraph (1), the board shall deny an application if the victim is deceased as a result of the qualifying crime and the award would unjustly enrich the living person who is directly criminally responsible for the victim’s death.
(4) Notwithstanding subdivision (a), the board shall not deny an application, in whole or in part, based upon a deceased victim’s involvement in the events leading to the underlying crime if the victim’s death occurred as a result of the crime.

(c) 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)~~

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

~~(B)~~

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

~~(C)~~

(3) 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.

(d) (1) An application may be denied, in whole or in part, 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. If the victim or derivative victim has obtained a temporary restraining order, emergency order, emergency protective order, or protective order, has presented themself to a licensed medical or mental health care provider for treatment for injuries resulting from the crime, has reported the crime to law enforcement, or has sought services from a victim services provider, that conduct shall be deemed to satisfy the requirement for reasonable cooperation with a law enforcement agency and the application shall not be denied, in whole or in part, pursuant to this paragraph. A victim or a derivative victim ~~of domestic violence~~ shall not be determined to have failed to cooperate based on their conduct with law enforcement at the scene of the ~~crime.~~ crime or in a hospital following the crime. Lack of cooperation shall also not be found solely because a victim delayed reporting the qualifying crime. A claim shall not be denied, in whole or in part, pursuant to this paragraph because of the lack of cooperation of the victim, or of the derivative victim, if the victim’s injury or death resulted from ~~a law enforcement officer’s use of force.~~ an encounter with a peace officer pursuant to paragraph (3) of subdivision (b) of Section 13951.

(2) A claim shall not be denied pursuant to this subdivision, in whole or in part, solely because the crime or qualifying circumstances are not verified by law enforcement or documented in a police report, or because the victim or derivative victim has not reported the qualifying crime to law enforcement. The board shall adopt guidelines for consideration and approval of applications for assistance relying upon available evidence to reasonably establish that a qualifying crime has occurred. Evidence that the board may use to verify that a qualifying crime has occurred may include, but shall not be limited to, ~~all~~ any of the following:

(A) Medical physical or mental health records that document injuries consistent with the allegations of the qualifying crime.

(B) A written or oral report from a law enforcement agency ~~concluding~~ stating that a crime was committed against the victim.

(C) A statement from a person licensed to provide psychiatric, psychological, or mental health counseling-related services, stating that the victim is receiving services related to the qualifying crime.

(D) A written statement provided by a victim services provider who has provided services to the victim or derivative victim in response to the impact of the qualifying crime.

(E) A statement provided by a credible witness to the qualifying crime.

(F) A permanent restraining order or protective order issued by a court to protect or separate the victim or derivative victim from the person responsible for the qualifying crime.

(G) A statement from a licensed medical provider, physician’s assistant, nurse practitioner, or other person licensed to provide medical or mental healthcare documenting that the victim experienced physical, mental, or emotional injury as a result of the qualifying crime.

(H) Any other reliable corroborating evidence that the board finds sufficient to reasonably establish that a qualifying crime occurred.

(3) The board shall adopt additional 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, evidence described in paragraph (1), or that the victim received a sexual assault examination.

(4) The board shall adopt additional 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, evidence described in paragraph (1), or 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.

(5) (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 evidencing that a claim qualifies for compensation include, but are not limited to, evidence described in paragraphs (1) and (2), or 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, former Section 288a, or Section 289 of the Penal Code, as of the date the act that added this paragraph was enacted.