BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 431 (Benoit)
As Amended April 22, 2009
Hearing date: April 28, 2009
Penal Code
SM:mc
ADULT PROBATION: TRANSFERS
HISTORY
Source: Chief Probation Officers of California
Prior Legislation: None directly on point
Support: California Probation, Parole and Correctional
Association
Opposition:None known
KEY ISSUE
SHOULD THE COUNTY OF A PROBATIONER'S RESIDENCE BE REQUIRED TO ACCEPT
TRANSFER OF JURISDICTION OVER THE CASE FROM THE COUNTY IN WHICH THE
PROBATIONER IS CONVICTED, EXCEPT AS PROVIDED?
PURPOSE
The purpose of this bill is to require that (1) when a person is
released on probation, the sentencing court shall transfer the
entire jurisdiction of the case to the county in which that
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person permanently resides, unless the court determines on the
record that the transfer would not be appropriate; (2) the
county of the probationer's residence accept the entire
jurisdiction over the case, unless that county determines the
probationer does not intend to reside within the county
throughout the period of probation; (3) these same provisions be
applied to cases where the person is placed on probation for the
purpose of drug treatment, pursuant to Proposition 36; and (4)
the Judicial Council adopt rules providing factors for the
court's consideration when determining the appropriateness of
transfer.
Existing law provides for transfer of probation as follows:
Whenever any person is released upon probation, the case
may be transferred to any court of the same rank in any
other county in which the person resides permanently,
meaning the stated intention to remain for the duration of
probation, provided that the court of the receiving county
shall first be given an opportunity to determine whether
the person does reside in and has stated the intention to
remain in that county for the duration of probation. If
the court finds that the person does not reside in or has
not stated an intention to remain in that county for the
duration of probation, it may refuse to accept the
transfer. The court and the probation department shall
give the matter of investigating those transfers precedence
over all actions or proceedings therein, except actions or
proceedings to which special precedence is given by law, to
the end that all those transfers shall be completed
expeditiously.
Except where the person is granted probation for drug
treatment pursuant to Proposition 36, if the court of the
receiving county finds that the person does permanently
reside in or has permanently moved to the county, it may,
in its discretion, either accept the entire jurisdiction
over the case, or assume supervision of the probationer on
a courtesy basis.
Whenever a person is granted probation under Section
1210.1 (Proposition 36), the sentencing court may, in its
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discretion, transfer jurisdiction of the entire case, upon
a finding by the receiving court of the person's permanent
residency in the receiving county.
The order of transfer shall contain an order committing
the probationer to the care and custody of the probation
officer of the receiving county and an order for
reimbursement of reasonable costs for processing the
transfer to be paid to the sending county in accordance
with Section 1203.1b. A copy of the orders and probation
reports shall be transmitted to the court and probation
officer of the receiving county within two weeks of the
finding by that county that the person does permanently
reside in or has permanently moved to that county, and
thereafter the receiving court shall have entire
jurisdiction over the case, with the like power to again
request transfer of the case whenever it seems proper.
(Penal Code 1203.9.)
This bill provides that, when a person is released on probation,
the sentencing court shall transfer the entire jurisdiction of
the case to the county in which that person permanently resides,
unless the court determines on the record that the transfer
would not be appropriate. The receiving county must accept the
entire jurisdiction over the case, unless it determines that the
probationer does not intend to reside permanently in that
county.
This bill would also apply these provisions to transfers of
persons granted probation under Proposition 36 for drug
treatment.
This bill requires the Judicial Council to adopt rules providing
factors for the court's consideration when determining the
appropriateness of transfer, including but not limited to:
permanency of residency of the offender;
local programs available for the offender; and
restitution orders and victim issues.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Current law results in a significant risk to public
safety with thousands of adult probationers being
supervised ineffectively by Probation Departments
outside of their County of residence.
Under current law, California County Probation
Departments are responsible for the supervision of
adult offenders placed on probation by the Superior
Court. Most of those placed on probation reside in the
County where the crime, prosecution, and grant of
probation occurred. This means that the Probation
Department supervises the Probationer residing in the
Probation Department's geographical jurisdiction
(County), which facilitates probation monitoring and
supportive services that promote public safety.
However, thousands of adult probationers reside in a
different County than the probation department
responsible for their supervision. Some of these
adult probationers are concurrently under the
wasteful, duplicative probation supervision of
multiple probation departments. Probation departments
do not have the capacity to provide for effective
supervision of adult probationers living in other
counties .
SB 431 would establish the Probation Department of the
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adult probationer's County of residence as the
Probation Department responsible for probation
supervision.
2. Probation Transfers
Currently, when a person is found guilty of a criminal offense
and the court places the defendant on probation, the court in
the county where the conviction takes place retains jurisdiction
over the matter. Additionally, the probation department in that
county is responsible for the supervision of that person on
probation and for seeing that the terms and conditions of
probation, imposed by the court, are enforced.
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This bill addresses the issue of which county will have
jurisdiction over the case if the probationer lives in a county
other than the county where he or she was convicted and placed
on probation. Under current law there is a system of transfer
whereby the sentencing court may request that the probationer's
county of residence accept a transfer of jurisdiction of the
case but there is no requirement that the county of residence
accept the complete transfer of jurisdiction. Alternatively,
the county of residence may accept supervision of the
probationer on a "courtesy" basis whereby it agrees to supervise
the probationer, but jurisdiction of the case does not transfer.
In cases where the person is granted probation for drug
treatment pursuant to Proposition 36, the county of residence
must accept jurisdiction of the case, unless it determines the
probationer does not intend to live in that county for the
duration of probation.
According to the sponsors, the Chief Probation Officers of
California, the current system has resulted in very few
transfers but many probationers living in a different county
than the probation department with jurisdiction over them. The
sponsors state that this has resulted in wasteful duplication of
effort and a potential threat to public safety.
To remedy this situation, this bill would require that the
sentencing court transfer jurisdiction over any person it places
on probation to the county where that person resides unless the
sentencing court makes findings on the record that the transfer
would be inappropriate. The county of residence would be
required to accept jurisdiction unless it determines the
probationer does not live there permanently. In essence, this
bill would eliminate the option for the receiving county of
accepting the probationer on "courtesy supervision" without
accepting full jurisdiction over the case.
One aspect of current law that has apparently resulted in
inconsistent practices in different counties is the fact that
"courtesy supervision" is not defined. This leaves some
ambiguity over which county may issue a warrant for the
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probationer's arrest if he or she is found to be in violation of
the terms and conditions of probation.
The sponsors acknowledge that there is not unanimity of opinion
among counties over how to resolve this issue. Some counties do
not want to accept cases involving their residents who are
convicted of crimes in other counties. Other counties do not
want to relinquish authority over persons convicted and
sentenced in their courts to the probationer's county of
residence. As to the latter concern, the bill allows the
sentencing court to retain jurisdiction if it makes findings on
the record that transfer would be inappropriate.
The bill requires the Judicial Council to adopt rules providing
factors to guide the sentencing court's discretion in
determining the appropriateness of transferring the case to the
county of residence. Those factors are to include, but are not
limited to:
permanency of residency of the offender;
local programs available for the offender; and
restitution orders and victim issues.
DOES THE ABILITY OF THE PROBATIONER'S COUNTY OF RESIDENCE TO
ACCEPT TRANSFER OF THE CASE ONLY FOR "COURTESY SUPERVISION"
CREATE CONFUSION AND INCONSISTENT PRACTICES AMONG COUNTIES?
SHOULD THE ABILITY OF THE PROBATIONER'S COUNTY OF RESIDENCE TO
ACCEPT TRANSFER OF LESS THAN COMPLETE JURISDICTION OVER THE CASE
BE CURTAILED?
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