The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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:
OPINION :
:
of : No. 87-105
:
JOHN K. VAN DE KAMP : JULY 28, 1987
Attorney General :
:
JACK R. WINKLER :
Assistant Attorney General :
:
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THE HONORABLE GRAY DAVIS, STATE CONTROLLER, has requested an
opinion on the following questions:
1. Does the first sentence of Government Code section 13967(a) require the
imposition of a pecuniary penalty in addition to the one required by Penal Code section 1464?
2. Does Government Code section 13967 require the sentencing court to order the
payment of "restitution in the form of a penalty assessment" upon conviction of any crime and
require an additional "restitution fine" when the conviction is for one or more felonies?
3. Did substitution of "restitution" for "restitution fine" in the first sentence of
Government Code section 13967(a) in 1984 alter the amount of the penalty to be imposed pursuant
to that section and Penal Code section 1464 or modify the method of allocating funds collected
under such court orders?
4. Should all moneys collected as "restitution in the form of a penalty assessment in
accordance with Penal Code section 1464 and as "restitution fines" be deposited in the Restitution
Fund in the State Treasury?
5. If a court fails to order the payment of "restitution in the form of a penalty
assessment," or a "restitution fine," or any other fine, forfeiture or penalty, where the law requires
such an order, is the county in which the court is located liable for any amounts which otherwise
would have accrued to the state?
CONCLUSIONS
1. The first sentence of Government Code section 13967(a) does not require the
imposition of a pecuniary penalty in addition to the one required by Penal Code section 1464.
2. Government Code section 13967 requires a sentencing court to order "restitution
in the form of a penalty assessment" on conviction of only those crimes for which penalty
assessments are required by Penal Code section 1464 and requires an additional "restitution fine"
when the conviction is for one or more felonies.
3. The substitution of "restitution" for "restitution fine" in the first sentence of
Government Code section 13967(a) in 1984 did not alter the amount of the penalty to be imposed
pursuant to that section and Penal Code section 1464 or modify the method of allocating funds
collected under such court orders.
4. Only part of the money collected as "restitution in the form of a penalty assessment
in accordance with Section 1464 of the Penal Code" as provided in Government Code section 13967
is to be deposited in the Restitution Fund. All moneys collected as "restitution fines" pursuant to
Government Code section 13967 is to be deposited in the Restitution Fund.
5. If a court fails to order the payment of "restitution in the form of a penalty
assessment" or a "restitution fine" or any other fine, forfeiture or penalty where the law requires such
an order, the county in which the court is located is not liable for any amounts which otherwise
would have accrued to the state.
ANALYSIS
The questions presented require an interpretation of Government Code section 13967
and Penal Code section 1464. Government Code section 13967(a) provides:
"Upon a person being convicted of any crime in the State of California, the
court shall, in addition to any other penalty provided or imposed under the law, order
the defendant to pay restitution in the form of a penalty assessment in accordance
with Section 1464 of the Penal Code. In addition, if the person is convicted of one
or more felony offenses, the court shall impose a separate and additional restitution
fine of not less than one hundred dollars ($100) and not more than ten thousand
dollars ($10,000). In setting the amount of the fine for felony convictions, the court
shall consider any relevant factors including, but not limited to, the seriousness and
gravity of the offense and the circumstances of its commission, any economic gain
derived by the defendant as a result of the crime, and the extent to which others
suffered losses as a result of the crime. Such losses may include pecuniary losses to
the victim or his or her dependents as well as intangible loses, such as psychological
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harm caused by the crime. Except as provided in Section 1202.4 of the Penal Code
and subdivision (c) of this section, under no circumstances shall the court fail to
impose the separate and additional restitution fine required by this section. This fine
shall not be subject to penalty assessments as provided in Section 1464 of the Penal
Code."
Penal Code section 1464(a) provides:
"Subject to the provisions of Section 1206.8, there shall be levied an
assessment in an amount equal to five dollars ($5) for every ten dollars ($10) or
fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the
courts for criminal offenses, including all offenses involving a violation of a section
of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code,
except offenses relating to parking or registration or offenses by pedestrians or
bicyclists, or where an order is made to pay a sum to the general fund of the county
pursuant to subparagraph (iii) of paragraph (3) of subdivision (a) of Section 258 of
the Welfare and Institutions Code. Any bail schedule adopted pursuant to Section
1269b may include the necessary amount to pay the assessments established by this
section and Section 1206.8 for all matters where a personal appearance is not
mandatory and the bail is posted primarily to guarantee payment of the fine."
In interpreting these statutes we apply the rules of statutory construction established
by the courts. The principal rules were summarized in Moyer v. Workmen's Comp. Appeals Bd.
(1973) 10 Cal. 3d 222, 230 as follows:
"We begin with the fundamental rule that a court should ascertain the intent
of the Legislature so as to effectuate the purpose of the law. In determining such
intent the court turns first to the words themselves for the answer. We are required
to give effect to statutes according to the usual, ordinary import of the language
employed in framing them. If possible, significance should be given to every word,
phrase, sentence and part of an act in pursuance of the legislative purpose; a
construction making some words surplusage is to be avoided. When used in a statute
words must be construed in context, keeping in mind the nature and obvious purpose
of the statute where they appear. Moreover, the various parts of a statutory
enactment must be harmoninzed by considering the particular clause or section in the
context of the statutory framework as a whole." (Citations and quotations omitted.)
The first question presented asks whether the first sentence of Government Code
section 13967(a) requires the imposition of a pecuniary penalty in addition to the one required by
Penal Code section 1464. The first sentence of Government Code section 13967(a) requires the
court to "order the defendant to pay restitution in the form of a penalty assessment in accordance
with Section 1464 of the Penal Code" in addition to any other penalty provided or imposed under
the law upon a person being convicted of any crime in California. Penal Code section 1464(a)
requires the court to levy "an assessment" of $5 for every $10 "upon every fine, penalty, or forfeiture
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imposed and collected by the courts for criminal offenses" with certain exceptions. Is the restitution
required by section 13967(a) part of the assessment required by Penal Code section 1464 or an
addition to it?
The restitution required is expressly required to be "in the form of a penalty
assessment in accordance with Section 1464 of the Penal Code". The last quoted words indicate a
legislative intent that the restitution required by section 13967(a) is to be collected as a penalty
assessment in accordance with Penal Code section 1464. All proceeds of the section 1464 penalty
assessments are to be deposited in the Assessment Fund and 22.12% thereof is then transferred to
the Restitution Fund which is used to pay claims made by victims of crime pursuant to Government
Code section 13967(b). Penal Code section 1464(e) and (f)(2). That part of the penalty assessment
which goes to the Restitution Fund would appropriately be characterized as "restitution" in the first
sentence of section 13967(a). We conclude from the language used in both sections that the exaction
required by the first sentence of Government Code section 13967(a) is part of the assessment
required to be imposed by Penal Code section 1464 and not an addition to it.
The legislative history of the two sections support our conclusion that the restitution
required by Government Code section 13967(a) is part of the penalty assessment collected pursuant
to Penal Code section 1464. The penalty assessment feature of Government Code section 13967 was
added in l982. Before that the section provided for an additional fine to be levied when a person was
convicted of a crime of violence resulting in injury or death to another which was paid into the
Indemnity Fund to pay claims made by crime victims. (See chapter 166, Statutes of 198l.) Assembly
Bill 1485 authored by Assemblyman Byron Sher, then Chairman of the Assembly Committee on
Criminal Law and Public Safety, was enacted as chapter 1092, Statutes of 1982 to implement the
restitution requirements of a constitutional amendment.1 It amended the first sentence of
Government Code section 13967 to read as it is quoted above except that chapter 1340, Statutes of
1984 substituted the word "restitution" for the words "a restitution fine". A bill analysis of AB 1485
as amended August 26, 1983 prepared for the Senate Democratic Caucus made these comments in
1
On June 8, l982 in the primary election the voters approved Proposition 8 known as "The
Victims' Bill of Rights" which among other things added section 28 to article I of the
Constitution, subdivision (b) of which reads:
"(b) Restitution. It is the unequivocal intention of the People of the State of
California that all persons who suffer losses as a result of criminal activity shall
have the right to restitution from the persons convicted of the crimes for losses
they suffer.
Restitution shall be ordered from the convicted persons in every case,
regardless of the sentence or disposition imposed, in which a crime victim suffers
a loss, unless compelling and extraordinary reasons exist to the contrary. The
Legislature shall adopt provisions to implement this section during the calendar
year following adoption of this section."
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its summary of the bill:
"This bill would require that every person convicted of any crime pay a
restitution fine in addition to any other penalty imposed upon him and regardless of
his present ability to pay.
"The basic restitution fine would be in the form of a penalty assessment of
an additional dollar for every ten dollars, or fraction thereof, upon every fine,
penalty, or forfeiture imposed by the courts for any criminal offense except for
Vehicle Code offenses relating to parking, registration, pedestrians, or bicyclists.
"In addition, the court would impose a separate restitution fine of not less
than $100 and not more than $10,000 for one or more felony offenses. . . .
"The basic restitution fine would be collected in the form of a penalty
assessment for the administrative convenience of the county clerks.
"Under existing law 24.58 percent of the penalty assessments collected go
into the Indemnity Fund which is used to pay compensation to victims of violent
crimes and also to fund victim-witness assistance programs, rape crisis centers, and
local district attorney and public defender training programs.
"This bill would divide the present Indemnity Fund into a Restitution Fund
which would be used solely to compensate crime victims, a separate victim-witness
assistance fund for victim-witness and rape crisis center programs, and a separate
fund for DA and PD training.
"This bill would also adjust the percentages of the recipients of penalty
assessments, as calculated by the Board of Control, so that every present recipient
would receive as much as it does now and so that the additional $1 penalty
assessment imposed by this bill would go into the Restitution Fund. . . ."
AB 1485 also amended Penal Code section 1464 to increase the penalty assessment to be added to
fines, penalties and forfeitures from $4 to $5 for each $10 or fraction thereof.
The second question first asks whether Government Code section 13967 requires the
sentencing court to order the penalty assessment upon the conviction of any crime. Confusion arises
because section 13967 provides that "[u]pon a person being convicted of any crime in the State of
California, the court shall, . . . order the defendant to pay restitution in the form of a penalty
assessment in accordance with Section 1464 of the Penal Code." (emphasis added) However, when
Penal Code section 1464 is examined, it provides for imposition of the penalty assessment "upon
every fine, penalty or forfeiture imposed and collected by the courts for criminal offenses, including
all offenses involving a violation of a section of the Vehicle Code or any local ordinance adopted
pursuant to the Vehicle Code, except offenses relating to parking or registration or offenses by
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pedestrians or bicyclists".
The words "any crime" were inserted in the first sentence of section 13967(a) by the
enactment of AB 1485 as chapter 1092, Statutes of 1983. As the legislative history of AB 1485,
quoted above, indicates the penalty assessment is to be added to "every fine, penalty, or forfeiture
imposed by the courts for any criminal offense except for Vehicle Code offenses relating to parking,
registration, pedestrians, or bicyclists". Thus the penalty assessment was intended to be added only
in the cases of those convicted of crime where the court imposed a "fine, penalty or forfeiture" and
not then if the crime was a Vehicle Code offense relating to parking, registration, pedestrian or
bicyclists. The history of the statute, legislative debates and committee reports may be considered
in ascertaining the legislative intent when it is not clear from the wording of the statute. People v.
Knowles, (1950) 35 Cal 2d 175, 182. We conclude that the restitution in the form of a penalty
assessment required by Government Code section 13967 is to be imposed in only those criminal
cases in which a "fine, penalty or forfeiture" is imposed upon a conviction under Penal Code section
1464 and is not to be imposed when the conviction is for a Vehicle Code offense relating to parking
or registration or is committed by a pedestrian or bicyclist.
The second question also notes that Government Code section 13967 requires the
sentencing court to order the payment of "restitution in the form of a penalty assessment" upon
conviction of any crime and then asks if the section requires an additional "restitution fine" when
the conviction is for one or more felonies. To repeat, the first two sentences of section 13967(a)
read:
"(a) Upon a person being convicted of any crime in the State of California,
the court shall, in addition to any other penalty provided or imposed under the law,
order the defendant to pay restitution in the form of a penalty assessment in
accordance with Section 1464 of the Penal Code. In addition, if the person is
convicted of one or more felony offenses, the court shall impose a separate and
additional restitution fine of not less than one hundred dollars ($100) and not more
than ten thousand dollars ($10,000)." (emphasis added.)
The words "In addition," underlined above were added by AB 2765 enacted as
chapter 1340, Statutes of 1984. AB 2765, authored by Assemblyman Sher, was described by a
consultant for the Assembly Committee on Criminal Law and Public Safety in an analysis of the bill
as follows:
"This bill is designed as a 'clean-up' to the ten bill Victim Restitution Program
of 1983. The bill would make some nonsubstantive, clarifying word changes, would
enact sections that were part of the restitution packaage but did not go into effect
because of chaptering conflicts, and would make other changes designed to make the
restitution provisions more workable."
Adding the words "In addition," served to clarify and emphasize the Legislature's intention that the
restitution fine imposed on felony convictions by the second sentence of the section was to be
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imposed in addition to and not as part of the penalty assessments referred to in the first sentence as
was already expressed by the words "separate and additional" in the second sentence of the section.
We think the express words of the statute, underlined above, provide an affirmative
response to the second question. The legislative history of AB 1485 quoted above supports our
conclusion that when the defendant is convicted of a felony Government Code section 13967
requires both a penalty assessment of $5 for each $10 of fine, penalty or forfeiture imposed and an
additional "restitution fine" of $100 to $10,000.
The third question presented asks whether the substitution of "restitution" for
"restitution fine" in the first sentence of Government Code section 13967(a) in 1984 altered the
amount of the penalty to be imposed under that section and Penal Code section 1464 or modify the
method of allocating funds collected under such court orders. We noted above that chapter 1340,
Statutes of 1984 made the change referred to. We have also noted that Chapter 1340 was the result
of the enactment of AB 2765 designed as clean-up legislation for the 1983 Victim Restitution
Program. The substitution of "restitution" for "a restitution fine" was the result of an amendment
to AB 2765 in the Senate on June 19, 1984. The Legislative Counsel's Digest was changed as
follows as a result of this and another change:
"(1) Existing law provides for the imposition of restitution fines upon persons
convicted of various crimes, including certain cases under the juvenile court law.
This bill would specify that these fines are not subject to penalty assessments
under other, specified provisions of law. It also would make a related clarifying
change with respect to the denomination of a certain penalty assessment." (Emphasis
in original to indicate words changed or added.)
Thus the purpose of the word substitution in question was to make a "clarifying change with respect
to the denomination of a certain penalty assessment" related to the imposition of restitution fines.
The "certain penalty assessment" referred to was the penalty assessment mentioned in the first
sentence of Government Code section 13967(a). The substitution clarified the words "pay a
restitution fine in the form of a penalty assessment" which had denominated the same exaction as
both a fine and a penalty assessment by making it clear that it was a penalty assessment and not a
fine and that it was to be used for the purpose of making restitution to crime victims.
We conclude that the substitution of "restitution" for "a restitution fine" in the first
sentence of Government Code section 13967(a) in 1984 did not alter the amount of the penalty to
be imposed pursuant to that section and Penal Code section 1464 or modify the method of allocating
funds collected under such court orders.
The fourth question asks whether all moneys collected in payment of orders for
"restitution in the form of a penalty assessment in accordance with Section 1464 of the Penal Code"
and as "restitution fines" as provided in Government Code section 13967(a) must be deposited in
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the Restitution Fund in the State Treasury. The first quoted language is somewhat confusing
because it suggests that the section 1464 penalty assessment provides only for restitution. Of course,
an examination of Penal Code section 1464 reveals that while it provides for but one penalty
assessment of $5 for each $10 of fine (but see footnote 2) the proceeds of that penalty assessment
are used to fund a number of programs, only one of which is to provide restitution for crime victims.
Penal Code section 1464(e) provides:
"(e) After a determination by the court of the amount due [on the penalty
assessment], the clerk of the court shall collect the same and transmit it to the county
treasury. The portion thereof attributable to Section 1206.8 2 shall be deposited in
the appropriate county fund and the balance shall then be transmitted to the State
Treasury to be deposited in the Assessment Fund, which is hereby created. The
transmission to the State Treasury shall be carried out in the same manner as fines
collected for the state by a county."
Penal Code section 1464(f) provides in part:
"(f) The moneys so deposited shall be distributed as follows: . . .
"(2) Once a month there shall be transferred into the Restitution Fund an
amount equal to 22.12 percent of the funds deposited in the Assessment Fund during
the preceding month. . . ."
We interpret the words "restitution in the form of a penalty assessment in accordance
with Section 1464 of the Penal Code" in the first sentence of Government Code section 13967(a)
to mean that portion of the penalty assessment collected pursuant to Penal Code section 1464 which
is to be deposited in the Restitution Fund pursuant to Penal Code section 1464(e)(2). As so
interpreted all of such restitution must be deposited in the Restitution Fund. Of course other
portions of the penalty assessment are to be deposited elsewhere as provided in Penal Code section
1464(e)and (f).
The first sentence of Government Code section 13967(b) provides:
2
Penal Code section 1206.8 provided for additional penalty assessments in certain counties to
fund the construction of justice facilities. Section 1206.8 was repealed in 1984 (See chapter
726, §7 and chapter 1339 §7, Statutes of 1984) and has been replaced by Government Code
section 76000 et seq.
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"(b) Except as provided in subdivision (c),3 the fine imposed pursuant to this
section shall be deposited in the Restitution Fund in the State Treasury. . . ."
The only "fine" referred to in Government Code section 13967 is the "restitution fine" imposed for
felony convictions pursuant to the second sentence of subdivision (a).
We conclude that "restitution in the form of a penalty assessment in accordance with
Section 1464 of the Penal Code" in Government Code section 13967(a) means only that portion of
the penalty assessment which is to be distributed to the Restitution Fund under Penal Code section
1464. All of such restitution and the "restitution fines" collected in payment of orders made
pursuant to Government Code section 13967(a) must be deposited in the Restitution Fund.
The last question presented asks whether the county in which the judicial district is
located is liable to the state for the amounts of restitution and restitution fine a court is required to
collect pursuant to Government Code section 13967(a) when the court fails to collect such funds.
The liability contemplated by this question is for money or damages due to the state for a trial
judge's failure to collect the restitution and restitution fine required by Government Code section
13967(a). Thus we do not consider other remedies which may be available to the state to enforce
compliance with the requirements of Government Code section 13967(a) such as a petition for writ
of mandate pursuant to Code of Civil Procedure section 1084 et seq. We are aware of no statute or
other law which creates a cause of action in the state for money or damages against a county for the
failure of a trial judge to collect money for the state in a manner required by a state statute. Any
such cause of action would appear to be subject to the provisions of Division 3.6 of Title 1 of the
Government Code (commencing with section 810) entitled "Claims and Actions Against Public
Entities and Public Employees" sometimes referred to as "the Tort Claims Act". Government Code
section 814 excludes from said act any "liability based on contract or the right to obtain relief other
than money or damages against a public entity or public emmployee".
Government Code section 815 provides in part:
"Except as otherwise provided by statute:
"(a) A public entity is not liable for an injury, whether such injury arises out
of an act or omission of the public entity or a public employee or any other person.
. . ."
The legislative history of Government Code section 815 indicates that the Legislature intended that
public entities were not to be liable except by contract for money or damages in the absence of a
3
Government Code section 13967 was amended by chapter 1438, Statutes of 1986 by adding
subdivision (c) and references thereto in subdivisions (a) and (b) to provide an alternative to the
restitution fine required therein, namely an order that restitution be paid directly to the victim of
the crime.
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statute or constitutional provision imposing such liability.4
Terms used in Government Code section 815 are defined in the following sections
of the Government Code:
§ 811.2 "'Public entity' includes the State, the Regents of the University of
California, a county, city, district, public authority, public agency, and any other
political subdivision or public corporation in the State."
§ 811.4 "'Public employee' means an employee of a public entity.
§ 810.2 "'Employee' includes an officer, judicial officer as defined in Section
28 of the Elections Code, employee, or servant, whether or not compensated, but
does not include an independent contractor."
§ 810.8 "'Injury' means death, injury to a person, damage to or loss of
property, or any other injury that a person may suffer to his person, reputation,
character, feelings or estate, of such nature that it would be actionable if inflicted by
a private person."
§811.8 "'Statute' means an act adopted by the Legislature of this State or by
the Congress of the United States, or a statewide initiative act."
4
The Legislative Committee Comment set forth in the annotation to Government Code
Section 815, West's Annotated California Codes, states in part:
"This section abolishes all common law or judicially declared forms of liability for public
entities, except for such liability as may be required by the state or federal constitution, e. g.,
inverse condemnation. In the absence of a constitutional requirement, public entities may be
held liable only if a statute (not including a charter provision, ordinance or regulation) is found
declaring them to be liable. Because of the limitations contained in Section 814, which declares
that this part does not affect liability arising out of contract or the right to obtain specific relief
against public entities and employees, the practical effect of this section is to eliminate any
common law governmental liability for damages arising out of torts. The use of the word "tort"
has been avoided, however, to prevent the imposition of liability by the courts by reclassifying
the act causing the injury. . . .
"In the following portions of this division, there are many sections providing for the liability
of government entities under specified conditions. In other codes there are a few provisions
providing for the liability of governmental entities, e. g., Vehicle Code Section 17001 et seq. and
Penal Code Section 4900. But there is no liability in the absence of a statute declaring such
liability. . . ."
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Elections Code section 28 provides:
"'Judicial officer' means any Justice of the Supreme Court, justice of a court
of appeal, judge of the superior court, judge of a municipal court, or judge of a
justice court."
Applying these definitions to the facts related in the last question Government Code
section 815 provides that a county, is not liable for a loss of property which arises out of an omission
of a judge of a trial court in California except as provided by statute. We assume, for purposes of
this opinion only, that a loss of money for the Restitution Fund which would occur if judge of a trial
court failed to collect the restitution and restitution fine required by Government Code section
13967(a) would be a "loss of property of such nature that it would be actionable if inflicted by a
private person" (even though a private person has no authority to order restitution or impose a fine).
Thus we assume there is an "injury" to the state within the meaning of Government Code sections
810.8 and 8l5 to ascertain whether there is any basis for county liability under the Tort Claims Act.
Our research has disclosed no statute which would make a county liable for the loss
to the state if a judge failed to impose or collect any restitution or restitution fine required by
Government Code section 13967(a). Government Code section 68101 requires a judge who receives
fines or money to which the state is entitled to deposit it with the county treasurer and Government
Code section 68103 provides that the official bond of the judge is liable for the failure to transmit
such fines . Of course neither of these sections apply when no fine is imposed or received by the
judge.
Government Code section 815.2 provides:
"(a) A public entity is liable for injury proximately caused by an act or omission of
an employee of the public entity within the scope of his employment if the act or omission would,
apart from this section, have given rise to a cause of action against that employee or his personal
representative.
"(b) Except as otherwise provided by statute, a public entity is not liable for an injury
resulting from an act or omission of an employee of the public entity where the employee is immune
from liability."
Thus under said subdivision (b) a county would not be liable for a state trial judge's omission to
collect the restitution and restitution fine required by Government Code section 13967(a) if the judge
is immune from liability for such omission. In that regard Government Code section 821 provides:
"A public employee is not liable for an injury caused by his adoption of or
failure to adopt an enactment or by his failure to enforce an enactment." (Cf.
Government Code section 820.4.)
Furthermore, Government Code section 818.2 provides directly:
11
"A public entity is not liable for an injury caused by adopting or failing to
adopt an enactment or by failing to enforce any law."
Trial court judges are considered state officers for some purposes and county officers
for other purposes. (See 68 Ops.Cal.Atty.Gen. 127, 131 (1985)) We see no need to determine
whether a trial judge is a state or county officer for purposes of the last question because in either
case the judge is a public employee for whose omissions no public entity is liable under Government
Code Section 815. That section bars liability if the state were to sue the county on the theory that
the judge was a county officer and failed to collect money due the state just as it bars liability if the
county were to sue the state on the theory that the judge was a state officer and failed to collect that
part of the penalty assessment which is due the county under Government Code section 76000 et
seq. Under Government Code section 815 a public entity is not liable for the acts or ommissions of
its employees in the absence of some statute imposing such liability.
We conclude that a county is not liable to the state for the restitution or restitution
fine required to be collected by Government Code section 13967(a) when the court fails to impose
the same.
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