2009 California Penal Code - Section 1001.90 :: Chapter 2.95. Diversion Restitution Fee

PENAL CODE
SECTION 1001.90

1001.90.  (a) For all persons charged with a felony or misdemeanor
whose case is diverted by the court pursuant to this title, the court
shall impose on the defendant a diversion restitution fee in
addition to any other administrative fee provided or imposed under
the law. This fee shall not be imposed upon persons whose case is
diverted by the court pursuant to Chapter 2.8 (commencing with
Section 1001.20).
   (b) The diversion restitution fee imposed pursuant to this section
shall be set at the discretion of the court and shall be
commensurate with the seriousness of the offense, but shall not be
less than one hundred dollars ($100), and not more than one thousand
dollars ($1,000).
   (c) The diversion restitution fee shall be ordered regardless of
the defendant's present ability to pay. However, if the court finds
that there are compelling and extraordinary reasons, the court may
waive imposition of the fee. When the waiver is granted, the court
shall state on the record all reasons supporting the waiver. Except
as provided in this subdivision, the court shall impose the separate
and additional diversion restitution fee required by this section.
   (d) In setting the amount of the diversion restitution fee in
excess of the one hundred dollar ($100) minimum, the court shall
consider any relevant factors, including, but not limited to, the
defendant's ability to pay, 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 any other person suffered any losses as a result of the crime.
Those losses may include pecuniary losses to the victim or his or her
dependents as well as intangible losses, such as psychological harm
caused by the crime. Consideration of a defendant's ability to pay
may include his or her future earning capacity. A defendant shall
bear the burden of demonstrating the lack of his or her ability to
pay. Express findings by the court as to the factors bearing on the
amount of the fee shall not be required. A separate hearing for the
diversion restitution fee shall not be required.
   (e) The court shall not limit the ability of the state to enforce
the fee imposed by this section in the manner of a judgment in a
civil action. The court shall not modify the amount of this fee
except to correct an error in the setting of the amount of the fee
imposed.
   (f) The fee imposed pursuant to this section shall be immediately
deposited in the Restitution Fund for use pursuant to Section 13967
of the Government Code.
   (g) The board of supervisors of any county may impose a fee at its
discretion to cover the actual administrative costs of collection of
the restitution fee, not to exceed 10 percent of the amount ordered
to be paid. Any fee imposed pursuant to this subdivision shall be
deposited in the general fund of the county.
   (h) The state shall pay the county agency responsible for
collecting the diversion restitution fee owed to the Restitution Fund
under this section, 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 this section. The
10 percent rebates shall not be used to supplant county funding.
   (i) As used in this section, "diversion" also means deferred entry
of judgment pursuant to Chapter 2.5 (commencing with Section 1000).


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