BILL NUMBER: AB 1835 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Fletcher
FEBRUARY 22, 2012
An act to amend Section 1203.067 Sections
1203.067, 3000.08, and 3008 of the Penal
Code, relating to sex crimes.
LEGISLATIVE COUNSEL'S DIGEST
AB 1835, as amended, Fletcher. Sex offenders: probation
conditions.
Existing law, the Sex Offender Registration Act, requires persons
convicted of specified sex offenses to register with local
authorities for life while residing, located, attending school, or
working in California. Willful failure to register, as required, is a
misdemeanor, or a felony, depending on the underlying offense.
Under existing law, a person who has been convicted of specified
felonies related to sexual abuse, including rape and lewd or
lascivious acts with a child, is required to comply with specified
conditions while on formal probation or intensive and
specialized formal probation . These conditions include, but
are not limited to, participating in an approved sex offender
management program and waiving the privilege against
self-incrimination and participation in polygraph examinations.
This bill would require compulsory participation in polygraph
examinations as part of the sex offender management program, and
would require the participants to answer questions truthfully, but
would remove the requirement that the participant to waive his or her
privilege against self-incrimination.
Under existing law, a person released from state prison after
serving a sentence or whose sentence has been deemed served for
various crimes, including a serious felony, a violent felony, or a
crime where a person is classified as a High Risk Sex Offender, is
subject to the jurisdiction of, and parole supervision by, the
Department of Corrections and Rehabilitation.
This bill would also require a person who is released on
postrelease supervision and who is subsequently reclassified as a
High Risk Sex Offender, to be transferred to the jurisdiction of, and
parole supervision by, the Department of Corrections and
Rehabilitation.
This bill would make technical, nonsubstantive changes to these
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1203.067 of the
Penal Code is amended to read:
1203.067. (a) Notwithstanding any other law, before probation may
be granted to any a person convicted
of a felony specified in Section 261, 262, 264.1, 286, 288, 288a,
288.5, or 289, who is eligible for probation, the court shall do all
of the following:
(1) Order the defendant evaluated pursuant to Section 1203.03, or
similar evaluation by the county probation department.
(2) Conduct a hearing at the time of sentencing to determine if
probation of the defendant would pose a threat to the victim. The
victim shall be notified of the hearing by the prosecuting attorney
and given an opportunity to address the court.
(3) Order any a psychiatrist or
psychologist appointed pursuant to Section 288.1 to include a
consideration of the threat to the victim and the defendant's
potential for positive response to treatment in making his or her
report to the court. Nothing in this section shall be construed to
require the court to order an examination of the victim.
(b) On or after July 1, 2012, the terms of probation for persons
placed on formal probation for an offense that requires registration
pursuant to Sections 290 to 290.023, inclusive, shall include all of
the following:
(1) Persons placed on formal probation prior to July 1, 2012,
shall participate in an approved sex offender management program,
following the standards developed pursuant to Section 9003, for a
period of not less than one year or the remaining term of probation
if it is less than one year. The length of the period in the program
is to be determined by the certified sex offender management
professional in consultation with the probation officer and as
approved by the court.
(2) Persons placed on formal probation on or after July 1, 2012,
shall successfully complete a sex offender management program,
following the standards developed pursuant to Section 9003, as a
condition of release from probation. The length of the period in the
program shall be not less than one year, up to the entire period of
probation, as determined by the certified sex offender management
professional in consultation with the probation officer and as
approved by the court.
(3) Waiver of any privilege against self-incrimination
and Compelled participation in polygraph
examinations, in which the person shall answer questions
truthfully and which shall be part of the sex offender
management program.
(4) Waiver of any psychotherapist-patient
privilege to enable communication between the sex offender management
professional and supervising probation officer, pursuant to Section
290.09.
(c) Any A defendant ordered to be
placed in an approved sex offender management program pursuant to
subdivision (b) shall be responsible for paying the expense of his or
her participation in the program as determined by the court. The
court shall take into consideration the ability of the defendant to
pay, and no defendant shall be denied probation because of his or her
inability to pay.
SEC. 2. Section 3000.08 of the
Penal Code , as amended by Section 17 of Chapter 12
of the First Extraordinary Session of the Statutes of 2011, is
amended to read:
3000.08. (a) Persons A person
released from state prison on or after October 1, 2011, after
serving a prison term or, whose sentence has been deemed served
pursuant to Section 2900.5, for any of the following crimes shall be
subject to the jurisdiction of and parole supervision by the
Department of Corrections and Rehabilitation:
(1) A serious felony as described in subdivision (c) of Section
1192.7.
(2) A violent felony as described in subdivision (c) of Section
667.5.
(3) A crime for which the person was sentenced pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12.
(4) Any A crime where the person
eligible for release from prison is classified as a High Risk Sex
Offender.
(5) Any A crime where the person is
required, as a condition of parole, to undergo treatment by the
Department of Mental Health pursuant to Section 2962.
(b) Notwithstanding any other provision of law, all other
offenders released from prison shall be placed on postrelease
supervision pursuant to Title 2.05 (commencing with Section 3450).
(c) Notwithstanding subdivision (a), any of the following persons
released from state prison shall be subject to the jurisdiction of,
and parole supervision by, the Department of Corrections and
Rehabilitation for a period of parole up to three years or the parole
term the person was subject to at the time of the commission of the
offense, whichever is greater:
(1) The person is required to register as a sex offender pursuant
to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1,
and was subject to a period of parole exceeding three years at the
time he or she committed a felony for which they were convicted and
subsequently sentenced to state prison.
(2) The person was subject to parole for life pursuant to Section
3000.1 at the time of the commission of the offense that resulted in
a conviction and state prison sentence.
(d) Except as described in subdivision (c), any
a person who is convicted of a felony that requires
community supervision and who still has a period of state parole to
serve shall discharge from state parole at the time of release to
community supervision.
(e) If, after release from prison, a person on postrelease
supervision pursuant to Title 2.05 (commencing with Section 3450) is
reclassified as a High Risk Sex Offender, the person shall be
transferred to the jurisdiction of, and parole supervision by, the
Department of Corrections and Rehabilitation. The person shall be
granted credit toward his or her period of parole supervision for any
time spent on the postrelease supervision prior to the
reclassification and transfer of supervision.
(e)
(f) This section shall operative only until July 1,
2013, and as of January 1, 2014, is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 3. Section 3000.08 of the
Penal Code , as amended by Section 18 of Chapter 12
of the First Extraordinary Session of the Statutes of 2011, is
amended to read:
3000.08. (a) Persons released from state prison prior to or on or
after July 1, 2013, after serving a prison term or, whose sentence
has been deemed served pursuant to Section 2900.5, for any of the
following crimes shall be subject to parole supervision by the
Department of Corrections and Rehabilitation and the jurisdiction of
the court in the county where the parolee is released or resides for
the purpose of hearing petitions to revoke parole and impose a term
of custody:
(1) A serious felony as described in subdivision (c) of Section
1192.7.
(2) A violent felony as described in subdivision (c) of Section
667.5.
(3) A crime for which the person was sentenced pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12.
(4) Any A crime where the person
eligible for release from prison is classified as a High Risk Sex
Offender.
(5) Any A crime where the person is
required, as a condition of parole, to undergo treatment by the
Department of Mental Health pursuant to Section 2962.
(b) Notwithstanding any other provision of law, all other
offenders released from prison shall be placed on postrelease
supervision pursuant to Title 2.05 (commencing with Section 3450).
(c) At any time during the period of parole of a person subject to
this section, if any a parole agent or
peace officer has probable cause to believe that the parolee is
violating any a term or condition of
his or her parole, the agent or officer may, without warrant or other
process and at any time until the final disposition of the case,
arrest the person and bring him or her before the parole authority,
or the parole authority may, in its discretion, issue a warrant for
that person's arrest.
(d) Upon review of the alleged violation and a finding of good
cause that the parolee has committed a violation of law or violated
his or her conditions of parole, the parole authority may impose
additional and appropriate conditions of supervision, including
rehabilitation and treatment services and appropriate incentives for
compliance, and impose immediate, structured, and intermediate
sanctions for parole violations, including flash incarceration in a
county jail. Periods of "flash incarceration," as defined in
subdivision (e) are encouraged as one method of punishment for
violations of a parolee's conditions of parole. Nothing in this
section is intended to preclude referrals to a reentry court pursuant
to Section 3015.
(e) "Flash incarceration" is a period of detention in county jail
due to a violation of a parolee's conditions of parole. The length of
the detention period can range between one and 10 consecutive days.
Shorter, but if necessary more frequent, periods of detention for
violations of a parolee's conditions of parole shall appropriately
punish a parolee while preventing the disruption in a work or home
establishment that typically arises from longer periods of detention.
(f) If the supervising parole agency has determined, following
application of its assessment processes, that intermediate sanctions
up to and including flash incarceration are not appropriate, the
supervising agency shall petition the revocation hearing officer
appointed pursuant to Section 71622.5 of the Government Code in the
county in which the parolee is being supervised to revoke parole. At
any point during the process initiated pursuant to this section, a
parolee may waive, in writing, his or her right to counsel, admit the
parole violation, waive a court hearing, and accept the proposed
parole modification. The petition shall include a written report that
contains additional information regarding the petition, including
the relevant terms and conditions of parole, the circumstances of the
alleged underlying violation, the history and background of the
parolee, and any recommendations. The Judicial Council shall adopt
forms and rules of court to establish uniform statewide procedures to
implement this subdivision, including the minimum contents of
supervision agency reports. Upon a finding that the person has
violated the conditions of parole, the revocation hearing officer
shall have authority to do any of the following:
(1) Return the person to parole supervision with modifications of
conditions, if appropriate, including a period of incarceration in
county jail.
(2) Revoke parole and order the person to confinement in the
county jail.
(3) Refer the person to a reentry court pursuant to Section 3015
or other evidence-based program in the court's discretion.
(g) Confinement pursuant to paragraphs (1) and (2) of subdivision
(f) shall not exceed a period of 180 days in the county jail.
(h) Notwithstanding any other provision of law, in any case where
Section 3000.1 applies to a person who is on parole and there is good
cause to believe that the person has committed a violation of law or
violated his or her conditions of parole, and there is imposed a
period of imprisonment of longer than 30 days, that person shall be
remanded to the custody of the Department of Corrections and
Rehabilitation and the jurisdiction of the Board of Parole Hearings
for the purpose of future parole consideration.
(i) Notwithstanding subdivision (a), any of the following persons
released from state prison shall be subject to the jurisdiction of,
and parole supervision by, the Department of Corrections and
Rehabilitation for a period of parole up to three years or the parole
term the person was subject to at the time of the commission of the
offense, whichever is greater:
(1) The person is required to register as a sex offender pursuant
to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1,
and was subject to a period of parole exceeding three years at the
time he or she committed a felony for which they were convicted and
subsequently sentenced to state prison.
(2) The person was subject to parole for life pursuant to Section
3000.1 at the time of the commission of the offense that resulted in
a conviction and state prison sentence.
(j) Parolees subject to this section who are being held for a
parole violation in a county jail on July 1, 2013, shall be subject
to the jurisdiction of the Board of Parole Hearings.
(k) Except as described in subdivision (c), any
a person who is convicted of a felony that requires
community supervision and who still has a period of state parole to
serve shall discharge from state parole at the time of release to
community supervision.
(l) If, after release from prison, a person on postrelease
supervision pursuant to Title 2.05 (commencing with Section 3450) is
reclassified as a High Risk Sex Offender, the person shall be
transferred to the jurisdiction of, and parole supervision by, the
Department of Corrections and Rehabilitation. The person shall be
granted credit toward his or her period of parole supervision for any
time spent on the postrelease supervision prior to the
reclassification and transfer of supervision.
(l)
(m) This section shall become operative on July 1,
2013.
SEC. 4. Section 3008 of the Penal Code
is amended to read:
3008. (a) The Department of Corrections and Rehabilitation shall
ensure that all parolees under active supervision who are deemed to
pose a high risk to the public of committing sex crimes, as
determined by the State-Authorized Risk Assessment Tool for Sex
Offenders (SARATSO), as set forth in Sections 290.04 to 290.06,
inclusive, are placed on intensive and specialized parole supervision
and are required to report frequently to designated parole officers.
The department may place any other parolee convicted of an offense
that requires him or her to register as a sex offender pursuant to
Section 290 who is on active supervision on intensive and specialized
supervision and require him or her to report frequently to
designated parole officers.
(b) The department shall develop and, at the discretion of the
secretary, and subject to an appropriation of the necessary funds,
may implement a plan for the implementation of relapse prevention
treatment programs, and the provision of other services deemed
necessary by the department, in conjunction with intensive and
specialized parole supervision, to reduce the recidivism of sex
offenders.
(c) The department shall develop control and containment
programming for sex offenders who have been deemed to pose a high
risk to the public of committing a sex crime, as determined by the
SARATSO, and shall require participation in appropriate programming
as a condition of parole.
(d) On or after July 1, 2012, the parole conditions of a person
released on parole for an offense that requires registration pursuant
to Sections 290 to 290.023, inclusive, shall include all of the
following:
(1) Persons A person placed on
parole prior to July 1, 2012, shall participate in an approved sex
offender management program, following the standards developed
pursuant to Section 9003, for a period of not less than one year or
the remaining term of parole if it is less than one year. The length
of the period in the program is to be determined by the certified sex
offender management professional in consultation with the parole
officer and as approved by the court.
(2) Persons placed on parole on or after July 1, 2012, shall
successfully complete a sex offender management program, following
the standards developed pursuant to Section 9003, as a condition of
parole. The length of the period in the program shall be not less
than one year, up to the entire period of parole, as determined by
the certified sex offender management professional in consultation
with the parole officer and as approved by the court.
(3) Waiver of any privilege against self-incrimination
and Compelled participation in polygraph
examinations, in which the person shall answer
questions truthfully and which shall be part of the sex
offender management program.
(4) Waiver of any psychotherapist-patient
privilege to enable communication between the sex offender management
professional and supervising parole officer, pursuant to Section
290.09.
(e) Any A defendant ordered to be
placed in an approved sex offender management treatment program
pursuant to subdivision (d) shall be responsible for paying the
expense of his or her participation in the program. The department
shall take into consideration the ability of the defendant to pay,
and no defendant shall be denied discharge onto parole because of his
or her inability to pay.
SECTION 1. Section 1203.067 of the Penal Code
is amended to read:
1203.067. (a) Notwithstanding any other law, before probation may
be granted to a person convicted of a felony specified in Section
261, 262, 264.1, 286, 288, 288a, 288.5, or 289, who is eligible for
probation, the court shall do all of the following:
(1) Order the defendant evaluated pursuant to Section 1203.03, or
similar evaluation by the county probation department.
(2) Conduct a hearing at the time of sentencing to determine if
probation of the defendant would pose a threat to the victim. The
victim shall be notified of the hearing by the prosecuting attorney
and given an opportunity to address the court.
(3) Order a psychiatrist or psychologist appointed pursuant to
Section 288.1 to include a consideration of the threat to the victim
and the defendant's potential for positive response to treatment in
making his or her report to the court. Nothing in this section shall
be construed to require the court to order an examination of the
victim.
(b) On or after July 1, 2012, the terms of probation for a person
placed on formal probation for an offense that requires registration
pursuant to Sections 290 to 290.023, inclusive, shall include all of
the following:
(1) A person placed on formal probation prior to July 1, 2012,
shall participate in an approved sex offender management program,
following the standards developed pursuant to Section 9003, for a
period of not less than one year or the remaining term of probation
if it is less than one year. The length of the period in the program
is to be determined by the certified sex offender management
professional in consultation with the probation officer and as
approved by the court.
(2) A person placed on formal probation on or after July 1, 2012,
shall successfully complete a sex offender management program,
following the standards developed pursuant to Section 9003, as a
condition of release from probation. The length of the period in the
program shall be not less than one year, up to the entire period of
probation, as determined by the certified sex offender management
professional in consultation with the probation officer and as
approved by the court.
(3) Waiver of the privilege against self-incrimination and
participation in polygraph examinations, which shall be part of the
sex offender management program.
(4) Waiver of psychotherapist-patient privilege to enable
communication between the sex offender management professional and
supervising probation officer, pursuant to Section 290.09.
(c) A defendant ordered to be placed in an approved sex offender
management program pursuant to subdivision (b) shall be responsible
for paying the expense of his or her participation in the program as
determined by the court. The court shall take into consideration the
ability of the defendant to pay, and no defendant shall be denied
probation because of his or her inability to pay.