BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          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  




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                                                             AB 492 (Quirk)
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          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  




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          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.)



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          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  




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          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




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          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.  
























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               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  





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          <2> SB 431(Benoit), Chapter 588, Statutes of 2009.






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          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.


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          ---------------------------
          <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.