BILL ANALYSIS
SB 431
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Date of Hearing: June 16, 2008
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 431 (Benoit) - As Amended: June 4, 2009
SUMMARY : Requires the county of a probationer's residence to
accept transfer of jurisdiction over the case from the county in
which the probationer is convicted, with specified exceptions.
Specifically, this bill :
1)Requires that when a person is released on probation, the
sentencing court shall transfer the entire jurisdiction of the
case to the superior court in the county in which that person
permanently resides, unless the transferring court determines
that the transfer would be inappropriate.
a) Specifies that the court must state its reasons on the
record.
b) Provides that upon notice of the motion for transfer,
the court of the proposed receiving county may provide
comments for the record regarding the proposed transfer
following procedures set forth in rules of court developed
by the Judicial Council.
2)States that the same provisions shall be applied to cases
where the person is placed on probation for the purpose of
drug treatment, pursuant to Proposition 36, the Substance
Abuse and Crime Prevention Act of 2000.
3)Provides that the Judicial Council shall promulgate rules of
court for procedures by which the proposed receiving county
shall receive notice and the motion for transfer and by which
responsive comments may be transmitted to the court of the
transferring county. The Judicial Council shall adopt rules
providing factors for the court's consideration when
determining the appropriateness of a transfer, including but
not limited to the following:
a) Permanency of residence of the offender;
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b) Local programs available for the offender; and,
c) Restitution orders and victim issues.
EXISTING LAW :
1)Provides, 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. [Penal Code Section 1203.9(a).]
2)States that except as specified, 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. [Penal
Code Section 1203.9(b).]
3)Specifies that whenever a person is granted probation as
specified, the sentencing court may, in its discretion,
transfer jurisdiction of the entire case, upon a finding by
the receiving court of the person's permanent residency in the
receiving county. [Penal Code Section 1203.9(c).]
4)Mandates that 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 as specified. 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
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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 Section
1203.9(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "There are
currently an undetermined number of adult probationers who
reside in a county other than the county responsible for their
supervision. Some of these adult probationers are
concurrently under the wasteful, duplicative probation
supervision of multiple probation departments; others are
entirely unsupervised by either the sentencing county or the
county in which they reside. Based on a snapshot of several
medium size counties, up to 40% of adult probationers reside
in a county other than the sentencing county, therefore posing
a significant public safety risk due to inadequate supervision
in the county of residence."
2)Background : According to the background submitted by the
author, "[u]nder 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 monitoring and
supportive services for probationers.
"However, there are currently an undetermined number of adult
probationers who reside in a county other than the county
responsible for their supervision. Some of these adult
probationers are concurrently under the wasteful, duplicative
probation supervision of multiple probation departments;
others are entirely unsupervised by either the sentencing
county or the county in which they reside. Based on a
snapshot of several medium size counties, up to 40% of adult
probationers reside in a county other than the sentencing
county, therefore posing a significant public safety risk due
to inadequate supervision in the county of residence."
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3)Elimination Courtesy Supervision : Under current law, when a
defendant is granted probation he or she is placed on
probation in the county where the conviction occurred. In
most cases, this rule makes perfect sense. However, when the
offense occurs in a county in which the defendant does not
intend to permanently reside, a number of problems occur. As
a general rule, defendants placed on probation are expected to
participate in programs, treatment, community service and
generally work when appropriate. If the defendant permanently
resides in a county other than the county in which he or she
was convicted, requiring him or her to participate in
probation in the county of conviction is counter-productive.
Currently, the county in which the defendant was convicted
maintains jurisdiction over the probationer during the period
of probation. However, the attorney for the defendant or the
county probation department may request a "courtesy
supervision" of the defendant's county of permanent residence
while he or she is on probation. Under this loosely defined
"courtesy supervision" system, the county where the defendant
was convicted maintains jurisdiction over the defendant, but
he or she is allowed to return to the county of permanent
residency and is, in fact, monitored by the probation
department in the county of residence.
There are no uniform rules for the accepting or granting of
"courtesy supervision" by the county of permanent residence.
The county of residence has sole authority to accept or deny
the transfer for any reason.
This bill eliminates the need for courtesy supervision by
requiring that the county of permanent residence accept the
transfer of jurisdiction upon that counties permanent
residence for the period of probation.
4)Uniformity and Consistency : This bill creates uniformity in
the location of a defendant for the period of his or her
probation. In most cases, defendants reside in the counties
in which they are convicted of offenses requiring supervised
probation. However, this bill remedies the minority of cases
in which the defendant is convicted of an offense in a county
in which he or she does not permanently reside. Subject to
limited exceptions, this bill creates a uniform rule that will
require a county to accept jurisdiction over a probationer who
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permanently resides in that county, whether or not the
defendant was convicted in the county of permanent residence.
This will aid a defendant in the successful completion of
probation and re-integration into the community in which he or
she intends to permanently reside. A probationer
participating in the rehabilitation program will do so in his
or her own home county. An offender required to work while on
probation will be employing himself or herself in the county
in which he or she intends to permanently reside. A
probationer will not have to relocate to the county in which
he or she committed the offense and then relocate again at the
conclusion of probation to return to his or her county of
permanent residence.
5)Exceptions : This bill requires the Judicial Council to
develop guidelines for judges to follow when deciding whether
or not the transfer of probation is inappropriate. These
guidelines have several clear considerations for the Judicial
Council to consider when outlining the rules for judges to
follow. Specifically, courts should consider the following:
a) Whether or not the probationer is in fact a permanent
resident of the county;
b) Whether local programs are available in the respective
counties for the probationer and his or her specific needs;
and
c) Issues related to victims and victim restitution
compensation.
6)Separation of Powers and Nondelegation : This bill requires
the Judicial Council to "adopt rules providing factors for the
court's consideration when determining the appropriateness of
the transfer." The Council is expected to consider three
factors, but they are not limited to those factors.
Generally, the three branches of government are not allowed to
delegate their duties to one of the other three branches of
government. This principle is known as the "non-delegation
doctrine." In this case, one could argue that the California
Legislature is delegating legislative powers (to determine the
exceptions and rules related to the inappropriateness of a
transfer of probation) to the Judicial Council.
However, the non-delegation doctrine has been narrowly defined
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in modern jurisprudence. In Mistretta v. United States, 488
U.S 361 (1989), the United States Supreme Court unanimously
rejected a non-delegation challenge to the Sentencing Reform
Act of 1984. This Act charged the United States Sentencing
Commission (a predominantly judicial body) with developing
sentencing guidelines to assure greater predictability and
uniformity in the sentencing received for violations of
federal criminal laws. The Supreme Court found that Congress
had set forth its goals on the face of the statute and,
therefore, the Act did not violate the non-delegation
doctrine. Further, the Commission was given limits on its
authority within the legislation.
In the present case, this bill outlines three basic principles
for the Judicial Council consider, but they are not limited to
those considerations.
7)Argument in Support : According to the Chief Probation
Officers of California (the sponsor of this bill), "We are
pleased to sponsor AB 431, which would require the transfer of
jurisdiction for adult probationers to the county of
residence.
"Under current law, 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 thereby facilitation the
provision of probation supervision and supportive services to
promote public safety.
"However, there are an undetermined number of adult
probationers who reside in a different county than the
probation department responsible for their supervision. Some
of these adult probationers are under the wasteful duplicative
probation supervision of multiple departments while others are
entirely unsupervised by either the sentencing county or the
county in which they reside. Based on a snapshot of several
medium sized counties, approximately 10% to 40% of adult
probationers reside in a county other than the sentencing
county, therefore posing a significant public safety risk due
to inadequate supervision in the county of residence.
"Current law, under Penal Code Section 1203.9, allows for a
jurisdictional transfer of adult probationers between counties
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to facilitate supervision on the county of residence.
However, the process and discretion allowed by Penal Code
Section 1203.9 does not provide for the orderly transfer of
cases to their county of residence as current law allows for
courtesy supervision and authorizes discretion to both the
sending and receiving counties for transfer.
"SB 431 would require the transfer of jurisdiction to the
county of residence unless a determination is made on the
record by the sentencing court. Additionally, it allows for
the courts to develop and promulgate rules of court to create
guidelines for transfer and identify circumstances in which a
sentencing court may retain jurisdiction. This bill affords
an appropriate and more clearly defined level of discretion to
the courts, while enabling probation departments to identify
probationers under their jurisdiction and more suitably use
limited resourced for supervision."
8)Prior Legislation :
a) AB 306 (Aguiar), Statutes of 1993, Chapter 273, provides
for reasonable reimbursement to the sending county by the
receiving county for processing a probationer's transfer.
b) AB 1306 (Leno) Statutes of 2004, Chapter 30, specifies
that any person who is sentenced to probation under
Proposition 36, the Substance Abuse and Crime Prevention
Act of 2000, is eligible for transfer to his or her county
of residence
REGISTERED SUPPORT / OPPOSITION :
Support
California Probation, Parole and Correctional Association
Chief Probation Officers of California
Judicial Council of California
Taxpayers for Improving Public Safety
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
SB 431
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319-3744