California Legislature—2013–14 Regular Session

Assembly Bill No. 63

Introduced by Assembly Member Patterson

(Coauthors: Assembly Members Bigelow, Conway, Beth Gaines, Harkey, Maienschein, and Melendez)

January 7, 2013

An act to amend Section 3000.08, 3000.09, 3455, and 3458 of, and to add Section 3010.10 to, the Penal Code, relating to electronic monitoring.

LEGISLATIVE COUNSEL’S DIGEST

AB 63, as introduced, Patterson. Electronic monitoring: removing or disabling.

Existing law permits, and with respect to certain sex offenders requires, the use of electronic monitoring by county probation departments and the Department of Corrections and Rehabilitation to electronically monitor the whereabouts of persons on postrelease community supervision and parole, respectively. Under existing law, a person on postrelease community supervision or parole who fails to comply with the rules or conditions for the use of electronic monitoring as a supervision tool may be found to have violated the terms of his or her postrelease community supervision or parole, respectively, and may be required to serve a term of imprisonment in the county jail.

This bill would provide that a person subject to parole or postrelease community supervision who removes or disables, or who willfully permits another to remove or disable, an electronic, global positioning system (GPS), or other monitoring device affixed as a condition of postrelease community supervision or parole is an offense punishable by imprisonment in the county jail for not more than one year, or in the state prison for 16 months, 2 years, or 3 years. This bill would also provide that a person on postrelease community supervision or parole who is ordered pursuant to a revocation hearing to serve a term of imprisonment, incarceration, or confinement for violating the conditions of release, when the violation was based on the removal or disabling of an electronic, GPS, or other monitoring device affixed as a condition of release, and the person has not been prosecuted for that conduct, shall serve that term in the state prison.

By creating a new crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 3000.08 of the Penal Code, as amended
by Section 35 of Chapter 43 of the Statutes of 2012, 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 crime where the person eligible for release from prison
is classified as a High Risk Sex Offender.

(5) Any 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 parole agent or peace officer has probable
cause to believe that the parolee is violating any 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 court, or the court
may, in its discretion, issue a warrant for that person’s arrest
pursuant to Section 1203.2.

(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 supervising parole agency 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 parole agency shall, pursuant to Section 1203.2,
petition the court 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 or revocation.
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 court 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.

begin insert

(4) When a violation is found based on the conduct described
in Section 3010.10, revoke parole and order the person to
confinement in the state prison.

end insert

(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 or paragraph (4) of subdivision (b) of Section
3000 applies to a person who is on parole and the court determines
that the person has committed a violation of law or violated his or
her conditions of parole, the person on parole 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 have a pending
adjudication for a parole violation on July 1, 2013, shall be subject
to the jurisdiction of the Board of Parole Hearings. Parole
revocation proceedings conducted by the Board of Parole Hearings
prior to July 1, 2013, if reopened on or after July 1, 2013, shall be
subject to the jurisdiction of the Board of Parole Hearings.

(k) Except as described in subdivision (c), any 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) This section shall become operative on July 1, 2013.

SEC. 2.  

Section 3000.09 of the Penal Code is amended to read:

3000.09.  

(a) Notwithstanding any other law, any parolee who
was paroled from state prison prior to October 1, 2011, shall be
subject to this section.

(b) Parolees subject to this section shall remain under
supervision by the Department of Corrections and Rehabilitation
until one of the following occurs:

(1) Jurisdiction over the person is terminated by operation of
law.

(2) The supervising agent recommends to the Board of Parole
Hearings that the offender be discharged and the parole authority
approves the discharge.

(3) The offender is subject to a period of parole of up to three
years pursuant to paragraph (1) of subdivision (b) of Section 3000
and was not imprisoned for committing a violent felony, as defined
in subdivision (c) of Section 667.5, a serious felony, as defined by
subdivision (c) of Section 1192.7, or is required to register as a
sex offender pursuant to Section 290, and completes six
consecutive months of parole without violating their conditions,
at which time the supervising agent shall review and make a
recommendation on whether to discharge the offender to the Board
of Parole Hearings and the Board of Parole Hearings approves the
discharge.

(c) Parolees subject to this section who are being held for a
parole violation in state prison on October 1, 2011, upon
completion of a revocation term on or after November 1, 2011,
shall either remain under parole supervision of the department
pursuant to Section 3000.08 or shall be placed on postrelease
community supervision pursuant to Title 2.05 (commencing with
Section 3450). Any person placed on postrelease community
supervision pursuant to Title 2.05 (commencing with Section 3450)
after serving a term for a parole revocation pursuant to this
subdivision shall serve a period of postrelease supervision that is
no longer than the time period for which the person would have
served if the person remained on parole. Notwithstanding Section
3000.08, any parolee who is in a county jail serving a term of
parole revocation or being held pursuant to Section 3056 on
October 1, 2011, and is released directly from county jail without
returning to a state facility on or after October 1, 2011, shall remain
under the parole supervision of the department. Any parolee that
is pending final adjudication of a parole revocation charge prior
to October 1, whether located in county jail or state prison, may
be returned to state prison and shall be confined pursuant to
subdivisions (a) to (d), inclusive, of Section 3057. Any subsequent
parole revocations of a parolee on postrelease community
supervision shall be served in county jail pursuant to Section begin delete 3056. end delete
begin insert 3056, unless the revocation is based on the conduct described in end insert
begin insert Section 3010.10, in which case the subsequent parole revocation end insert
begin insert shall be served in state prison. end insert

(d) Any parolee who was paroled prior to October 1, 2011, who
commits a violation of parole shall, until July 1, 2013, be subject
to parole revocation procedures in accordance with the rules and
regulations of the department consistent with Division 2 of Title
15 of the California Code of Regulations. On and after July 1,
2013, any parolee who was paroled prior to October 1, 2011, shall
be subject to the procedures established under Section 3000.08.

SEC. 3.  

Section 3010.10 is added to the Penal Code, to read:

3010.10.  

(a) A person subject to parole or postrelease
community supervision who willfully removes or disables, or
willfully permits another to remove or disable, an electronic, global
positioning system (GPS), or other monitoring device affixed to
his or her person, and the device was affixed as a condition of
parole or postrelease community supervision, is guilty of a public
offense, punishable by imprisonment in the county jail not
exceeding one year, or in the state prison for 16 months, two years,
or three years.

(b) Notwithstanding any other law, any imprisonment,
incarceration, or confinement ordered pursuant to a revocation
hearing described in Section 3000.08 or 3455 as a result of a person
violating the conditions of parole or postrelease community
supervision by engaging in the conduct described in subdivision
(a), when that individual has not been prosecuted under subdivision
(a), shall be served in state prison.

SEC. 4.  

Section 3455 of the Penal Code is amended to read:

3455.  

(a) If the supervising county agency has determined,
following application of its assessment processes, that intermediate
sanctions as authorized in subdivision (b) of Section 3454 are not
appropriate, the supervising county agency shall petition the court
pursuant to Section 1203.2 to revoke, modify, or terminate
postrelease community supervision. At any point during the process
initiated pursuant to this section, a person may waive, in writing,
his or her right to counsel, admit the violation of his or her
postrelease community supervision, waive a court hearing, and
accept the proposed modification of his or her postrelease
community supervision. The petition shall include a written report
that contains additional information regarding the petition,
including the relevant terms and conditions of postrelease
community supervision, the circumstances of the alleged
underlying violation, the history and background of the violator,
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 postrelease community supervision, the
revocation hearing officer shall have authority to do all of the
following:

(1) Return the person to postrelease community supervision
with modifications of conditions, if appropriate, including a period
of incarceration in county jail.

(2) Revoke and terminate postrelease community supervision
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.

begin insert

(4) When a violation is found based on the conduct described
in Section 3010.10, revoke and terminate postrelease community
supervision and order the person to confinement in the state prison.

end insert

(b) (1) At any time during the period of postrelease community
supervision, if any peace officer has probable cause to believe a
person subject to postrelease community supervision is violating
any term or condition of his or her release, the officer may, without
a warrant or other process, arrest the person and bring him or her
before the supervising county agency established by the county
board of supervisors pursuant to subdivision (a) of Section 3451.
Additionally, an officer employed by the supervising county agency
may seek a warrant and a court or its designated hearing officer
appointed pursuant to Section 71622.5 of the Government Code
shall have the authority to issue a warrant for that person’s arrest.

(2) The court or its designated hearing officer shall have the
authority to issue a warrant for any person who is the subject of a
petition filed under this section who has failed to appear for a
hearing on the petition or for any reason in the interests of justice,
or to remand to custody a person who does appear at a hearing on
the petition for any reason in the interests of justice.

(c) The revocation hearing shall be held within a reasonable
time after the filing of the revocation petition. Based upon a
showing of a preponderance of the evidence that a person under
supervision poses an unreasonable risk to public safety, or the
person may not appear if released from custody, or for any reason
in the interests of justice, the supervising county agency shall have
the authority to make a determination whether the person should
remain in custody pending the first court appearance on a petition
to revoke postrelease community supervision, and upon that
determination, may order the person confined pending his or her
first court appearance.

(d) Confinement pursuant to paragraphs (1) and (2) of
subdivision (a) shall not exceed a period of 180 days in the county
jail for each custodial sanction.

(e) A person shall not remain under supervision or in custody
pursuant to this title on or after three years from the date of the
person’s initial entry onto postrelease community supervision,
except when his or her supervision is tolled pursuant to Section
1203.2 or subdivision (b) of Section 3456.

SEC. 5.  

Section 3458 of the Penal Code is amended to read:

3458.  

begin delete No end delete begin insert Except as described in Section 3010.10, no end insert begin insert end insert person
subject to this title shall be returned to prison for a violation of
any condition of the person’s postrelease supervision agreement.

SEC. 6.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.