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California Penal Code Section 1202.42

Legal Research Home > California Lawyer > Penal Code > California Penal Code Section 1202.42

Upon entry of a restitution order under subdivision (c) of
Section 13967 of the Government Code, as operative on or before
September 28, 1994, paragraph (3) of subdivision (a) of Section
1202.4 of this code, or Section 1203.04 as operative on or before
August 2, 1995, the following shall apply:
   (a) The court shall enter a separate order for income deduction
upon determination of the defendant's ability to pay, regardless of
the probation status, in accordance with Section 1203.  Determination
of a defendant's ability to pay may include his or her future
earning capacity.  A defendant shall bear the burden of demonstrating
lack of his or her ability to pay.  Express findings by the court as
to the factors bearing on the amount of the fine shall not be
required.
   (b) (1) In any case in which the court enters a separate order for
income deduction under this section, the order shall be stayed until
the agency in the county responsible for collection of restitution
determines that the defendant has failed to meet his or her
obligation under the restitution order and the defendant has not
provided the agency with good cause for the failure in accordance
with paragraph (2).
   (2) If the agency responsible for collection of restitution
receives information that the defendant has failed to meet his or her
obligation under the restitution order, the agency shall request the
defendant to provide evidence indicating that timely payments have
been made or provide information establishing good cause for the
failure.  If the defendant fails to either provide the agency with
the evidence or fails to establish good cause within five days of the
request, the agency shall immediately inform the defendant of that
fact, and shall inform the clerk of the court in order that an income
deduction order will be served pursuant to subdivision (f) following
a 15-day appeal period.  The defendant may apply for a hearing to
contest the lifting of the stay pursuant to subdivision (f).
   (c) The income deduction order shall direct a payer to deduct from
all income due and payable to the defendant the amount required by
the court to meet the defendant's obligation.
   (d) The income deduction order shall be effective so long as the
order for restitution upon which it is based is effective or until
further order of the court.
   (e) When the court orders the income deduction, the court shall
furnish to the defendant a statement of his or her rights, remedies,
and duties in regard to the income deduction order.  The statement
shall state all of the following:
   (1) All fees or interest that will be imposed.
   (2) The total amount of income to be deducted for each pay period.

   (3) That the income deduction order applies to current and
subsequent payers and periods of employment.
   (4) That a copy of the income deduction order will be served on
the defendant's payer or payers.
   (5) That enforcement of the income deduction order may only be
contested on the ground of mistake of fact regarding the amount of
restitution owed.
   (6) That the defendant is required to notify the clerk of the
court within seven days after changes in the defendant's address,
payers, and the addresses of his or her payers.
   (7) That the court order will be stayed in accordance with
subdivision (b) and that a hearing is available in accordance with
subdivision (f).
   (f) (1) Upon receiving the notice described in paragraph (2) of
subdivision (b), the clerk of the court or officer of the agency
responsible for collection of restitution shall serve an income
deduction order and the notice to payer on the defendant's payer
unless the defendant has applied for a hearing to contest the
enforcement of the income deduction order.
   (2) (A) Service by or upon any person who is a party to a
proceeding under this section shall be made in the manner prescribed
for service upon parties in a civil action.
   (B) Service upon the defendant's payer or successor payer under
this section shall be made by prepaid certified mail, return receipt
requested.
   (3) The defendant, within 15 days after being informed that the
order staying the income deduction order will be lifted, may apply
for a hearing to contest the enforcement of the income deduction
order on the ground of mistake of fact regarding the amount of
restitution owed or on the ground that the defendant has established
good cause for the nonpayment.  The timely request for a hearing
shall stay the service of an income deduction order on all payers of
the defendant until a hearing is held and a determination is made as
to whether the enforcement of the income deduction order is proper.
   (4) The notice to any payer required by this subdivision shall
contain only information necessary for the payer to comply with the
income deduction order.  The notice shall do all of the following:
   (A) Require the payer to deduct from the defendant's income the
amount specified in the income deduction order, and to pay that
amount to the clerk of the court.
   (B) Instruct the payer to implement the income deduction order no
later than the first payment date that occurs more than 14 days after
the date the income deduction order was served on the payer.
   (C) Instruct the payer to forward, within two days after each
payment date, to the clerk of the court the amount deducted from the
defendant's income and a statement as to whether the amount totally
or partially satisfies the periodic amount specified in the income
deduction order.
   (D) Specify that if a payer fails to deduct the proper amount from
the defendant's income, the payer is liable for the amount the payer
should have deducted, plus costs, interest, and reasonable attorney'
s fees.
   (E) Provide that the payer may collect up to five dollars ($5)
against the defendant's income to reimburse the payer for
administrative costs for the first income deduction and up to one
dollar ($1) for each deduction thereafter.
   (F) State that the income deduction order and the notice to payer
are binding on the payer until further notice by the court or until
the payer no longer provides income to the defendant.
   (G) Instruct the payer that, when he or she no longer provides
income to the defendant, he or she shall notify the clerk of the
court and shall also provide the defendant's last known address and
the name and address of the defendant's new payer, if known, and
that, if the payer violates this provision, the payer is subject to a
civil penalty not to exceed two hundred fifty dollars ($250) for the
first violation or five hundred dollars ($500) for any subsequent
violation.
   (H) State that the payer shall not discharge, refuse to employ, or
take disciplinary action against the defendant because of an income
deduction order and shall state that a violation of this provision
subjects the payer to a civil penalty not to exceed two hundred fifty
dollars ($250) for the first violation or five hundred dollars
($500) for any subsequent violation.
   (I) Inform the payer that when he or she receives income deduction
orders requiring that the income of two or more defendants be
deducted and sent to the same clerk of a court, he or she may combine
the amounts that are to be paid to the depository in a single
payment as long as he or she identifies that portion of the payment
attributable to each defendant.
   (J) Inform the payer that if the payer receives more than one
income deduction order against the same defendant, he or she shall
contact the court for further instructions.
   (5) The clerk of the court shall enforce income deduction orders
against the defendant's successor payer who is located in this state
in the same manner prescribed in this subdivision for the enforcement
of an income deduction order against a payer.
   (6) A person may not discharge, refuse to employ, or take
disciplinary action against an employee because of the enforcement of
an income deduction order.  An employer who violates this provision
is subject to a civil penalty not to exceed two hundred fifty dollars
($250) for the first violation or five hundred dollars ($500) for
any subsequent violation.
   (7) When a payer no longer provides income to a defendant, he or
she shall notify the clerk of the court and shall provide the
defendant's last known address and the name and address of the
defendant's new payer, if known.  A payer who violates this provision
is subject to a civil penalty not to exceed two hundred fifty
dollars ($250) for the first violation or five hundred dollars ($500)
for a subsequent violation.
   (g) As used in this section, "good cause" for failure to meet an
obligation or "good cause" for nonpayment means, but shall not be
limited to, any of the following:
   (1) That there has been a substantial change in the defendant's
economic circumstances, such as involuntary unemployment, involuntary
cost-of-living increases, or costs incurred as the result of medical
circumstances or a natural disaster.
   (2) That the defendant reasonably believes there has been an
administrative error with regard to his or her obligation for
payment.
   (3) Any other similar and justifiable reasons.

Last modified: January 12, 2009