California Legislature—2013–14 Regular Session

Assembly Bill No. 139

Introduced by Assembly Member Holden

January 17, 2013

An act to amend Section 1203.097 of the Penal Code, relating to domestic violence.

LEGISLATIVE COUNSEL’S DIGEST

AB 139, as introduced, Holden. Domestic violence: fees.

Existing law imposes a fee of $500 on every person who is granted probation for a crime of domestic violence. Two-thirds of the fee is deposited in the county’s domestic violence programs special fund to be expended in support of domestic violence shelter programs, as specified. Existing law authorizes fines to be reduced, as specified, for time served.

This bill would clarify that the $500 payment is a fee, not a fine, and that the fee is not subject to reduction for time served. The bill would also authorize 8% of the moneys deposited in the county domestic violence programs special fund to be used for administrative costs and would authorize the collection of the fee by the collecting agency or the agency’s designee after the termination of the period of probation, whether probation is terminated by revocation or by completion of the term.

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

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

SECTION 1.  

Section 1203.097 of the Penal Code, as amended
by Section 1.5 of Chapter 628 of the Statutes of 2012, is amended
to read:

1203.097.  

(a) If a person is granted probation for a crime in
which the victim is a person defined in Section 6211 of the Family
Code, the terms of probation shall include all of the following:

(1) A minimum period of probation of 36 months, which may
include a period of summary probation as appropriate.

(2) A criminal court protective order protecting the victim from
further acts of violence, threats, stalking, sexual abuse, and
harassment, and, if appropriate, containing residence exclusion or
stay-away conditions.

(3) Notice to the victim of the disposition of the case.

(4) Booking the defendant within one week of sentencing if the
defendant has not already been booked.

(5) (A)  begin delete A minimum payment end delete begin insert Payment end insert by the defendant of begin insert a end insert
begin insert fee of end insert five hundred dollars ($500) to be disbursed as specified in
this paragraph. If, after a hearing in open court, the court finds that
the defendant does not have the ability to pay, the court may reduce
or waive this fee. If the court exercises its discretion to reduce or
waive the fee, it shall state the reason on the record.

(B) Two-thirds of the moneys deposited with the county
treasurer pursuant to this section shall be retained by counties and
deposited in the domestic violence programs special fund created
pursuant to Section 18305 of the Welfare and Institutions Code,
to be expended for the purposes of Chapter 5 (commencing with
Section 18290) of Part 6 of Division 9 of the Welfare and
Institutions Code. begin delete The remainder shall end delete begin insert Of the moneys deposited end insert
begin insert in the domestic violence programs special fund, no more than 8 end insert
begin insert percent may be used for administrative costs, as specified in end insert
begin insert Section 18305 of the Welfare and Institutions Code. end insert

begin insert (C) end insert begin insert   end insert begin insert The remaining one-third of the moneys shall end insert be transferred,
once a month, to the Controller for deposit in equal amounts in
the Domestic Violence Restraining Order Reimbursement Fund
and in the Domestic Violence Training and Education Fund, which
are hereby created, in an amount equal to one-third of funds
collected during the preceding month. Moneys deposited into these
funds pursuant to this section shall be available upon appropriation
by the Legislature and shall be distributed each fiscal year as
follows:

(i) Funds from the Domestic Violence Restraining Order
Reimbursement Fund shall be distributed to local law enforcement
or other criminal justice agencies for state-mandated local costs
resulting from the notification requirements set forth in subdivision
(b) of Section 6380 of the Family Code, based on the annual
notification from the Department of Justice of the number of
restraining orders issued and registered in the state domestic
violence restraining order registry maintained by the Department
of Justice, for the development and maintenance of the domestic
violence restraining order databank system.

(ii) Funds from the Domestic Violence Training and Education
Fund shall support a statewide training and education program to
increase public awareness of domestic violence and to improve
the scope and quality of services provided to the victims of
domestic violence. Grants to support this program shall be awarded
on a competitive basis and be administered by the State Department
of Public Health, in consultation with the statewide domestic
violence coalition, which is eligible to receive funding under this
section.

begin insert

(D) The fee imposed by this paragraph shall be treated as a fee,
not as a fine, and shall not be subject to reduction for time served
as provided pursuant to Section 1205 or 2900.5.

end insert begin insert

(E) The fee imposed by this paragraph may be collected by the
collecting agency, or the agency’s designee, after the termination
of the period of probation, whether probation is terminated by
revocation or by completion of the term.

end insert

(6) Successful completion of a batterer’s program, as defined
in subdivision (c), or if none is available, another appropriate
counseling program designated by the court, for a period not less
than one year with periodic progress reports by the program to the
court every three months or less and weekly sessions of a minimum
of two hours class time duration. The defendant shall attend
consecutive weekly sessions, unless granted an excused absence
for good cause by the program for no more than three individual
sessions during the entire program, and shall complete the program
within 18 months, unless, after a hearing, the court finds good
cause to modify the requirements of consecutive attendance or
completion within 18 months.

(7) (A) (i) The court shall order the defendant to comply with
all probation requirements, including the requirements to attend
counseling, keep all program appointments, and pay program fees
based upon the ability to pay.

(ii) The terms of probation for offenders shall not be lifted until
all reasonable fees due to the counseling program have been paid
in full, but in no case shall probation be extended beyond the term
provided in subdivision (a) of Section 1203.1. If the court finds
that the defendant does not have the ability to pay the fees based
on the defendant’s changed circumstances, the court may reduce
or waive the fees.

(B) Upon request by the batterer’s program, the court shall
provide the defendant’s arrest report, prior incidents of violence,
and treatment history to the program.

(8) The court also shall order the defendant to perform a
specified amount of appropriate community service, as designated
by the court. The defendant shall present the court with proof of
completion of community service and the court shall determine if
the community service has been satisfactorily completed. If
sufficient staff and resources are available, the community service
shall be performed under the jurisdiction of the local agency
overseeing a community service program.

(9) If the program finds that the defendant is unsuitable, the
program shall immediately contact the probation department or
the court. The probation department or court shall either recalendar
the case for hearing or refer the defendant to an appropriate
alternative batterer’s program.

(10) (A) Upon recommendation of the program, a court shall
require a defendant to participate in additional sessions throughout
the probationary period, unless it finds that it is not in the interests
of justice to do so, states its reasons on the record, and enters them
into the minutes. In deciding whether the defendant would benefit
from more sessions, the court shall consider whether any of the
following conditions exists:

(i) The defendant has been violence free for a minimum of six
months.

(ii) The defendant has cooperated and participated in the
batterer’s program.

(iii) The defendant demonstrates an understanding of and
practices positive conflict resolution skills.

(iv) The defendant blames, degrades, or has committed acts that
dehumanize the victim or puts at risk the victim’s safety, including,
but not limited to, molesting, stalking, striking, attacking,
threatening, sexually assaulting, or battering the victim.

(v) The defendant demonstrates an understanding that the use
of coercion or violent behavior to maintain dominance is
unacceptable in an intimate relationship.

(vi) The defendant has made threats to harm anyone in any
manner.

(vii) The defendant has complied with applicable requirements
under paragraph (6) of subdivision (c) or subparagraph (C) to
receive alcohol counseling, drug counseling, or both.

(viii) The defendant demonstrates acceptance of responsibility
for the abusive behavior perpetrated against the victim.

(B) The program shall immediately report any violation of the
terms of the protective order, including any new acts of violence
or failure to comply with the program requirements, to the court,
the prosecutor, and, if formal probation has been ordered, to the
probation department. The probationer shall file proof of
enrollment in a batterer’s program with the court within 30 days
of conviction.

(C) Concurrent with other requirements under this section, in
addition to, and not in lieu of, the batterer’s program, and unless
prohibited by the referring court, the probation department or the
court may make provisions for a defendant to use his or her
resources to enroll in a chemical dependency program or to enter
voluntarily a licensed chemical dependency recovery hospital or
residential treatment program that has a valid license issued by the
state to provide alcohol or drug services to receive program
participation credit, as determined by the court. The probation
department shall document evidence of this hospital or residential
treatment participation in the defendant’s program file.

(11) The conditions of probation may include, in lieu of a fine,
but not in lieu of the fund payment required under paragraph (5),
one or more of the following requirements:

(A) That the defendant make payments to a battered women’s
shelter, up to a maximum of five thousand dollars ($5,000).

(B) That the defendant reimburse the victim for reasonable
expenses that the court finds are the direct result of the defendant’s
offense.

For any order to pay a fine, to make payments to a battered
women’s shelter, or to pay restitution as a condition of probation
under this subdivision, the court shall make a determination of the
defendant’s ability to pay. Determination of a defendant’s ability
to pay may include his or her future earning capacity. A defendant
shall bear the burden of demonstrating lack of his or her ability to
pay. Express findings by the court as to the factors bearing on the
amount of the fine shall not be required. In no event shall any order
to make payments to a battered women’s shelter be made if it
would impair the ability of the defendant to pay direct restitution
to the victim or court-ordered child support. When the injury to a
married person is caused, in whole or in part, by the criminal acts
of his or her spouse in violation of this section, the community
property shall not be used to discharge the liability of the offending
spouse for restitution to the injured spouse, as required by Section
1203.04, as operative on or before August 2, 1995, or Section
1202.4, or to a shelter for costs with regard to the injured spouse,
until all separate property of the offending spouse is exhausted.

(12) If it appears to the prosecuting attorney, the court, or the
probation department that the defendant is performing
unsatisfactorily in the assigned program, is not benefiting from
counseling, or has engaged in criminal conduct, upon request of
the probation officer, the prosecuting attorney, or on its own
motion, the court, as a priority calendar item, shall hold a hearing
to determine whether further sentencing should proceed. The court
may consider factors, including, but not limited to, any violence
by the defendant against the former or a new victim while on
probation and noncompliance with any other specific condition of
probation. If the court finds that the defendant is not performing
satisfactorily in the assigned program, is not benefiting from the
program, has not complied with a condition of probation, or has
engaged in criminal conduct, the court shall terminate the
defendant’s participation in the program and shall proceed with
further sentencing.

(b) If a person is granted formal probation for a crime in which
the victim is a person defined in Section 6211 of the Family Code,
in addition to the terms specified in subdivision (a), all of the
following shall apply:

(1) The probation department shall make an investigation and
take into consideration the defendant’s age, medical history,
employment and service records, educational background,
community and family ties, prior incidents of violence, police
report, treatment history, if any, demonstrable motivation, and
other mitigating factors in determining which batterer’s program
would be appropriate for the defendant. This information shall be
provided to the batterer’s program if it is requested. The probation
department shall also determine which community programs the
defendant would benefit from and which of those programs would
accept the defendant. The probation department shall report its
findings and recommendations to the court.

(2) The court shall advise the defendant that the failure to report
to the probation department for the initial investigation, as directed
by the court, or the failure to enroll in a specified program, as
directed by the court or the probation department, shall result in
possible further incarceration. The court, in the interests of justice,
may relieve the defendant from the prohibition set forth in this
subdivision based upon the defendant’s mistake or excusable
neglect. Application for this relief shall be filed within 20 court
days of the missed deadline. This time limitation may not be
extended. A copy of any application for relief shall be served on
the office of the prosecuting attorney.

(3) After the court orders the defendant to a batterer’s program,
the probation department shall conduct an initial assessment of
the defendant, including, but not limited to, all of the following:

(A) Social, economic, and family background.

(B) Education.

(C) Vocational achievements.

(D) Criminal history.

(E) Medical history.

(F) Substance abuse history.

(G) Consultation with the probation officer.

(H) Verbal consultation with the victim, only if the victim
desires to participate.

(I) Assessment of the future probability of the defendant
committing murder.

(4) The probation department shall attempt to notify the victim
regarding the requirements for the defendant’s participation in the
batterer’s program, as well as regarding available victim resources.
The victim also shall be informed that attendance in any program
does not guarantee that an abuser will not be violent.

(c) The court or the probation department shall refer defendants
only to batterer’s programs that follow standards outlined in
paragraph (1), which may include, but are not limited to, lectures,
classes, group discussions, and counseling. The probation
department shall design and implement an approval and renewal
process for batterer’s programs and shall solicit input from criminal
justice agencies and domestic violence victim advocacy programs.

(1) The goal of a batterer’s program under this section shall be
to stop domestic violence. A batterer’s program shall consist of
the following components:

(A) Strategies to hold the defendant accountable for the violence
in a relationship, including, but not limited to, providing the
defendant with a written statement that the defendant shall be held
accountable for acts or threats of domestic violence.

(B) A requirement that the defendant participate in ongoing
same-gender group sessions.

(C) An initial intake that provides written definitions to the
defendant of physical, emotional, sexual, economic, and verbal
abuse, and the techniques for stopping these types of abuse.

(D) Procedures to inform the victim regarding the requirements
for the defendant’s participation in the intervention program as
well as regarding available victim resources. The victim also shall
be informed that attendance in any program does not guarantee
that an abuser will not be violent.

(E) A requirement that the defendant attend group sessions free
of chemical influence.

(F) Educational programming that examines, at a minimum,
gender roles, socialization, the nature of violence, the dynamics
of power and control, and the effects of abuse on children and
others.

(G) A requirement that excludes any couple counseling or family
counseling, or both.

(H) Procedures that give the program the right to assess whether
or not the defendant would benefit from the program and to refuse
to enroll the defendant if it is determined that the defendant would
not benefit from the program, so long as the refusal is not because
of the defendant’s inability to pay. If possible, the program shall
suggest an appropriate alternative program.

(I) Program staff who, to the extent possible, have specific
knowledge regarding, but not limited to, spousal abuse, child abuse,
sexual abuse, substance abuse, the dynamics of violence and abuse,
the law, and procedures of the legal system.

(J) Program staff who are encouraged to utilize the expertise,
training, and assistance of local domestic violence centers.

(K) A requirement that the defendant enter into a written
agreement with the program, which shall include an outline of the
contents of the program, the attendance requirements, the
requirement to attend group sessions free of chemical influence,
and a statement that the defendant may be removed from the
program if it is determined that the defendant is not benefiting
from the program or is disruptive to the program.

(L) A requirement that the defendant sign a confidentiality
statement prohibiting disclosure of any information obtained
through participating in the program or during group sessions
regarding other participants in the program.

(M) Program content that provides cultural and ethnic
sensitivity.

(N) A requirement of a written referral from the court or
probation department prior to permitting the defendant to enroll
in the program. The written referral shall state the number of
minimum sessions required by the court.

(O) Procedures for submitting to the probation department all
of the following uniform written responses:

(i) Proof of enrollment, to be submitted to the court and the
probation department and to include the fee determined to be
charged to the defendant, based upon the ability to pay, for each
session.

(ii) Periodic progress reports that include attendance, fee
payment history, and program compliance.

(iii) Final evaluation that includes the program’s evaluation of
the defendant’s progress, using the criteria set forth in subparagraph
(A) of paragraph (10) of subdivision (a) and recommendation for
either successful or unsuccessful termination or continuation in
the program.

(P) A sliding fee schedule based on the defendant’s ability to
pay. The batterer’s program shall develop and utilize a sliding fee
scale that recognizes both the defendant’s ability to pay and the
necessity of programs to meet overhead expenses. An indigent
defendant may negotiate a deferred payment schedule, but shall
pay a nominal fee, if the defendant has the ability to pay the
nominal fee. Upon a hearing and a finding by the court that the
defendant does not have the financial ability to pay the nominal
fee, the court shall waive this fee. The payment of the fee shall be
made a condition of probation if the court determines the defendant
has the present ability to pay the fee. The fee shall be paid during
the term of probation unless the program sets other conditions.
The acceptance policies shall be in accordance with the scaled fee
system.

(2) The court shall refer persons only to batterer’s programs
that have been approved by the probation department pursuant to
paragraph (5). The probation department shall do both of the
following:

(A) Provide for the issuance of a provisional approval, provided
that the applicant is in substantial compliance with applicable laws
and regulations and an urgent need for approval exists. A
provisional approval shall be considered an authorization to provide
services and shall not be considered a vested right.

(B) If the probation department determines that a program is
not in compliance with standards set by the department, the
department shall provide written notice of the noncompliant areas
to the program. The program shall submit a written plan of
corrections within 14 days from the date of the written notice on
noncompliance. A plan of correction shall include, but not be
limited to, a description of each corrective action and timeframe
for implementation. The department shall review and approve all
or any part of the plan of correction and notify the program of
approval or disapproval in writing. If the program fails to submit
a plan of correction or fails to implement the approved plan of
correction, the department shall consider whether to revoke or
suspend approval and, upon revoking or suspending approval, shall
have the option to cease referrals of defendants under this section.

(3) No program, regardless of its source of funding, shall be
approved unless it meets all of the following standards:

(A) The establishment of guidelines and criteria for education
services, including standards of services that may include lectures,
classes, and group discussions.

(B) Supervision of the defendant for the purpose of evaluating
the person’s progress in the program.

(C) Adequate reporting requirements to ensure that all persons
who, after being ordered to attend and complete a program, may
be identified for either failure to enroll in, or failure to successfully
complete, the program or for the successful completion of the
program as ordered. The program shall notify the court and the
probation department, in writing, within the period of time and in
the manner specified by the court of any person who fails to
complete the program. Notification shall be given if the program
determines that the defendant is performing unsatisfactorily or if
the defendant is not benefiting from the education, treatment, or
counseling.

(D) No victim shall be compelled to participate in a program
or counseling, and no program may condition a defendant’s
enrollment on participation by the victim.

(4) In making referrals of indigent defendants to approved
batterer’s programs, the probation department shall apportion these
referrals evenly among the approved programs.

(5) The probation department shall have the sole authority to
approve a batterer’s program for probation. The program shall be
required to obtain only one approval but shall renew that approval
annually.

(A) The procedure for the approval of a new or existing program
shall include all of the following:

(i) The completion of a written application containing necessary
and pertinent information describing the applicant program.

(ii) The demonstration by the program that it possesses adequate
administrative and operational capability to operate a batterer’s
treatment program. The program shall provide documentation to
prove that the program has conducted batterer’s programs for at
least one year prior to application. This requirement may be waived
under subparagraph (A) of paragraph (2) if there is no existing
batterer’s program in the city, county, or city and county.

(iii) The onsite review of the program, including monitoring of
a session to determine that the program adheres to applicable
statutes and regulations.

(iv) The payment of the approval fee.

(B) The probation department shall fix a fee for approval not
to exceed two hundred fifty dollars ($250) and for approval renewal
not to exceed two hundred fifty dollars ($250) every year in an
amount sufficient to cover its costs in administering the approval
process under this section. No fee shall be charged for the approval
of local governmental entities.

(C) The probation department has the sole authority to approve
the issuance, denial, suspension, or revocation of approval and to
cease new enrollments or referrals to a batterer’s program under
this section. The probation department shall review information
relative to a program’s performance or failure to adhere to
standards, or both. The probation department may suspend or
revoke an approval issued under this subdivision or deny an
application to renew an approval or to modify the terms and
conditions of approval, based on grounds established by probation,
including, but not limited to, either of the following:

(i) Violation of this section by any person holding approval or
by a program employee in a program under this section.

(ii) Misrepresentation of any material fact in obtaining the
approval.

(6) For defendants who are chronic users or serious abusers of
drugs or alcohol, standard components in the program shall include
concurrent counseling for substance abuse and violent behavior,
and in appropriate cases, detoxification and abstinence from the
abused substance.

(7) The program shall conduct an exit conference that assesses
the defendant’s progress during his or her participation in the
batterer’s program.

(d) An act or omission relating to the approval of a batterer’s
treatment programs under paragraph (5) of subdivision (c) is a
discretionary act pursuant to Section 820.2 of the Government
Code.