BILL NUMBER: AB 2563 CHAPTERED 06/21/02 CHAPTER 66 FILED WITH SECRETARY OF STATE JUNE 21, 2002 APPROVED BY GOVERNOR JUNE 20, 2002 PASSED THE SENATE JUNE 10, 2002 PASSED THE ASSEMBLY MAY 6, 2002 AMENDED IN ASSEMBLY MAY 1, 2002 INTRODUCED BY Assembly Member Vargas FEBRUARY 21, 2002 An act to amend Section 1203.3 of the Penal Code, relating to domestic violence. LEGISLATIVE COUNSEL'S DIGEST AB 2563, Vargas. Domestic violence. Existing law gives the court authority, as specified, to revoke or terminate probation, or to modify conditions of probation. Under existing law, a court cannot modify, revoke, or change court orders of probation without written notice to the proper probation officer, and cannot modify a probation order without providing a 2-day written notice to the prosecutor, and an opportunity to be heard on the matter. This bill would provide that a protective order that is a term or condition of probation in a domestic violence case may not be modified without a 5-day written notice being provided to the prosecuting attorney. This bill would require a court limiting or terminating a protective order as a condition of probation in a domestic violence case to consider if there has been any material change in circumstances since the crime for which the order was issued, and to consider any issue that relates to whether good cause exists for the change, including specified considerations. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1203.3 of the Penal Code is amended to read: 1203.3. (a) The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held. (b) The exercise of the court's authority in subdivision (a) to revoke, modify, change, or terminate probation is subject to the following: (1) Before any sentence or term or condition of probation is modified, a hearing shall be held in open court before the judge. The prosecuting attorney shall be given a two-day written notice and an opportunity to be heard on the matter, except that, as to modifying or terminating a protective order in a case involving domestic violence, as defined in Section 6211 of the Family Code, the prosecuting attorney shall be given a five-day written notice and an opportunity to be heard. (A) If the sentence or term or condition of probation is modified pursuant to this section, the judge shall state the reasons for that modification on the record. (B) As used in this section, modification of sentence shall include reducing a felony to a misdemeanor. (2) No order shall be made without written notice first given by the court or the clerk thereof to the proper probation officer of the intention to revoke, modify, or change its order. (3) In all cases, if the court has not seen fit to revoke the order of probation and impose sentence or pronounce judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these sections. (4) The court may modify the time and manner of the term of probation for purposes of measuring the timely payment of restitution obligations or the good conduct and reform of the defendant while on probation. The court shall not modify the dollar amount of the restitution obligations due to the good conduct and reform of the defendant, absent compelling and extraordinary reasons, nor shall the court limit the ability of payees to enforce the obligations in the manner of judgments in civil actions. (5) Nothing in this section shall be construed to prohibit the court from modifying the dollar amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term of the probation. (6) The court may limit or terminate a protective order that is a condition of probation in a case involving domestic violence, as defined in Section 6211 of the Family Code. In determining whether to limit or terminate the protective order, the court shall consider if there has been any material change in circumstances since the crime for which the order was issued, and any issue that relates to whether there exists good cause for the change, including, but not limited to consideration of all of the following: (A) Whether the probationer has accepted responsibility for the abusive behavior perpetrated against the victim. (B) Whether the probationer is currently attending and actively participating in counseling sessions. (C) Whether the probationer has completed parenting counseling, or attended alcoholics or narcotics counseling. (D) Whether the probationer has moved from the state, or is incarcerated. (E) Whether the probationer is still cohabitating, or intends to cohabitate, with any subject of the order. (F) Whether the defendant has performed well on probation, including consideration of any progress reports. (G) Whether the victim desires the change, and is so, the victim's reasons, whether the victim has consulted a victim advocate, and whether the victim has prepared a safety plan and has access to local resources. (H) Whether the change will impact any children involved, including consideration of any Child Protective Services information. (I) Whether the ends of justice would be served by limiting or terminating the order. (c) If a probationer is ordered to serve time in jail, and the probationer escapes while serving that time, the probation is revoked as a matter of law on the day of the escape. (d) If probation is revoked pursuant to subdivision (c), upon taking the probationer into custody, the probationer shall be accorded a hearing or hearings consistent with the holding in the case of People v. Vickers (1972) 8 Cal.3d 451. The purpose of that hearing or hearings is not to revoke probation, as the revocation has occurred as a matter of law in accordance with subdivision (c), but rather to afford the defendant an opportunity to require the prosecution to establish that the alleged violation did in fact occur and to justify the revocation. (e) This section does not apply to cases covered by Section 1203.2.