BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 4 9 2 AB 492 (Quirk) As Introduced February 20, 2013 Hearing date: May 14, 2013 Penal Code JM:mc INTER-COUNTY TRANSFER OF PROBATION SUPERVISION PROBATIONERS CONVICTED OF NON-VIOLENT DRUG POSSESSION HISTORY Source: Chief Probation Officers of California Prior Legislation: SB 431 (Benoit) - Ch. 588, Stats. 2009 Support: California Probation, Parole and Correctional Association; Judicial Council of California; Alameda County Probation Department Opposition:Unknown Assembly Floor Vote: Ayes 76 - Noes 0 KEY ISSUE WHERE A DEFENDANT IS PLACED ON PROBATION UNDER SACPA (THE SUBSTANCE ABUSE AND CRIME PREVENTION ACT OF 2000) SHOULD THE COURT IN THE COUNTY OF CONVICTION TRANSFER THE CASE TO THE PROBATIONER'S COUNTY (More) AB 492 (Quirk) PageB OF RESIDENCE UNLESS TRANSFER WOULD BE INAPPROPRIATE? PURPOSE The purpose of this bill is to provide that where a defendant is placed on probation under SACPA (the Substance Abuse and Crime Prevention Act of 2000) the court in the county of conviction shall transfer the case to the county of the probationer's residence, unless the court in the county of conviction determines and states on the record that the transfer would be inappropriate. Existing law provides that whenever a person is released upon probation or mandatory supervision, the court in the county of conviction shall, upon noticed motion, transfer the case to the court in the county of the defendant's residence, unless the transferring court finds on the record that the transfer is inappropriate. The court in the receiving county may comment on the record regarding the proposed transfer. (Pen. Code § 1203.9, subd. (a).) Existing law provides that upon receipt of the motion for transfer, the court in the receiving county, the county determined by the transferring court to be the defendant's county of residence, may comment on the record concerning the proposed transfer. (Pen. Code § 1203.9, subd. (a).) Existing law requires the court and the probation department to expeditiously determine probation transfer matters. Hearings on probation transfer motions have precedence over all actions, except those with special precedence in the law. (Pen. Code § 1203.9, subd. (a).) Existing law states that the receiving county shall accept the entire jurisdiction over the case. The receiving court may (More) AB 492 (Quirk) PageC thereafter request transfer of the case "whenever it seems proper," as specified (Pen. Code § 1203.9, subds. (b) and (d).) Existing law provides that when a person is granted probation for non-violent drug possession<1>, the sentencing court shall transfer jurisdiction of the entire case, upon a finding by the receiving court of the person's permanent residency in the receiving county, unless the there is a determination on the record that the transfer would be inappropriate. (Pen. Code § 1203.9, subd. (c).) Existing law requires that the transfer contain an order committing the probationer or supervised person to the care and custody of the probation officer of the receiving county, with an order for reimbursement to the transferring court of reasonable costs. The orders and any probation reports shall be transmitted to the court and probation officer of the receiving county within two weeks of the finding that the defendant resides in the receiving county. (Pen. Code § 1203.9, subd. (d).) Existing law 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: permanency of residence of the offender; local programs available for the offender; and, restitution orders and victim issues. (Pen. Code § 1203.9, subd. (e).) This bill provides that where a defendant is placed on probation --------------------------- <1> Penal Code Section 1203.9 specifically refers to probation granted under the Substance Abuse and Crime Prevention Act of 2000 (SACPA - Prop. 36 of the Nov. 2000 Gen. Elec.) (More) AB 492 (Quirk) PageD under SACPA (the Substance Abuse and Crime Prevention Act of 2000), the court in the county of conviction shall transfer the case to the county of the probationer's residence, unless the court in the county of conviction determines and states on the record that the transfer would be inappropriate. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures which created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation which would increase the prison population. ROCA necessitated many hard and difficult decisions for the Committee. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order issued by the Three-Judge Court three years earlier to reduce the state's prison population to 137.5 percent of design capacity. The State submitted in part that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment (More) AB 492 (Quirk) PageE went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs, who opposed the state's motion, argue in part that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % prisoner population cap by December 31st of this year. In an order dated April 11, 2013, the Three-Judge Court denied the state's motions, and ordered the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. However, in light of the real gains in reducing the prison population that have been made, although even greater reductions are required by the court, the Committee will review each ROCA bill with more flexible consideration. The following questions will inform this consideration: whether a measure erodes realignment; whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; whether a bill corrects a constitutional infirmity or legislative drafting error; whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS (More) AB 492 (Quirk) PageF 1. Need for This Bill According to the author: In 2009, the Legislature passed SB 431 (Benoit) to modify the transfer procedure for probationers as governed by Penal Code Section 1203.9 to create uniformity and a process whereby both the transferring and receiving court were involved in the transfer decision and process. At the time, the Legislature did not modify the transfer procedure for the Substance Abuse and Crime Prevention Act of 2000 (SACPA - Proposition 36 of the November, 2000 Gen. Elec.) probation cases under subdivision (c) of section 1203.9 due to the focus of the bill on removing "courtesy supervision." In other words, it was decided to not also make changes to Prop 36 transfers in an effort to mitigate any confusion or unintended impacts of a new process. (More) Thus, in SACPA cases, unlike all other cases, the receiving court-as opposed to the transferring court-is still responsible for determining the probationer's county of residence. As a result, court must apply two distinct probation transfer procedures. Now that the courts and probation have been operating under the new 1203.9 transfer process for a number of years, and because there is no ostensible reason to treat SACPA transfers differently, it is practical to align the Prop. 36 procedure to reduce confusion and unnecessary burdens on staff. AB 492 will bring SACPA probation transfers in line with the existing process for other probation transfers; thereby creating a single uniform process by which all probation departments and courts operate within. 2. There Are No Published Appellate Decisions Concerning Transfer of SACPA Cases It appears that the probation transfer rules for probationers undergoing drug treatment under SACPA (Prop. 36 of the Nov, 2000 Gen. Elec.) have not been considered in a published appellate opinion. Committee staff found only an unpublished opinion from the First Appellate District (San Francisco) concerning the transfer of a SACPA case from Trinity to Humboldt County. The decision simply noted the transfer without further comment. The issue in the case was whether the trial court had validly found the probationer had violated the terms of probation. However, the Senate Public Safety analysis of SB 431(Benoit) in 2009<2> noted that prior law only authorized "courtesy" supervision by the probation department in the county of residence where the defendant was convicted in another --------------------------- <2> SB 431(Benoit), Chapter 588, Statutes of 2009. (More) AB 492 (Quirk) PageH county.<3> The analysis noted that the system of courtesy supervision created confusion and inconsistent application of the law. Arguably, the laws for probation transfers should be clear and uniform to facilitate full and proper supervision of defendants on probation. This bill makes the probation transfer rules uniform for all probation cases, including cases arising under SACPA. 3. Argument in Support by the California Judicial Council The Judicial Council of California states: Under the transfer procedures for individuals granted probation pursuant to Penal Code section 1201.1 (The Substance Abuse and Crime Prevention Act, Prop. 36 of the November 2000 general election - SACPA), the receiving court is responsible for determining a probationer's county of residence. In all other cases, the transferring court is responsible for making that determination. AB 492 eliminates the separate transfer requirement for SACPA probation cases, which serve no ostensible purpose. AB 492 revises the statutory transfer process to improve public safety by making probation supervision more effective, and enhancing the efficiency of case transfers by improving the process of identifying the most appropriate jurisdiction for probation supervision, and improving the actual process of transferring jurisdiction. *************** --------------------------- <3> As under existing law, the law prior to enactment of SB 431 in 2009 required transfer of SACPA cases. However, the receiving court determined whether the transfer was appropriate or not.