BILL NUMBER: AB 1835 AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 12, 2012 AMENDED IN ASSEMBLY MARCH 29, 2012 INTRODUCED BY Assembly Member Fletcher FEBRUARY 22, 2012 An act to amend Sections 290.07, 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. Existing law authorizes access to all relevant records pertaining to a registered sex offender for, among others, a probation officer authorized and trained to administer the State Authorized Risk Assessment Tool for Sex Offenders (SARATSO). This bill would additionally authorize release of relevant records pertaining to a registered sex offender to a sex offender management professional certified by the California Sex Offender Management Board, who is authorized to administer the SARATSO but who was trained pursuant to a different provision of law. 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. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 290.07 of the Penal Code is amended to read: 290.07. Notwithstanding any other provision of law,anya person authorized by statute to administer the State Authorized Risk Assessment Tool for Sex Offenders (SARATSO) and trained pursuant to Section 290.06 or 290.09 , andanya person acting under authority from the SARATSO Review Committee as an expert to train, monitor, or review scoring by persons who administer the SARATSO pursuant to Section 290.05 or 1203 of this code or Section 706 of the Welfare and Institutions Code, shall be granted access to all relevant records pertaining to a registered sex offender, including, but not limited to, criminal histories, sex offender registration records, police reports, probation and presentencing reports, judicial records and case files, juvenile records, psychological evaluations and psychiatric hospital reports, sexually violent predator treatment program reports, and records that have been sealed by the courts or the Department of Justice. Records and information obtained under this section shall not be subject to the California Public Records Act, Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code.SECTION 1.SEC. 2. 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 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) 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 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.SEC. 2.SEC. 3. 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) 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) A crime where the person eligible for release from prison is classified as a High Risk Sex Offender. (5) 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), 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. (f) This section shall be 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.SEC. 4. 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) A crime where the person eligible for release from prison is classified as a High Risk Sex Offender. (5) 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 a parole agent or peace officer has probable cause to believe that the parolee is violating 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), 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. (m) This section shall become operative on July 1, 2013.SEC. 4.SEC. 5. 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) 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) 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 psychotherapist-patient privilege to enable communication between the sex offender management professional and supervising parole officer, pursuant to Section 290.09. (e) 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.