BILL ANALYSIS �
AB 1715
Page 1
Date of Hearing: March 25, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1715 (Patterson) - As Introduced: February 13, 2014
SUMMARY : Makes probation unavailable for a defendant convicted
of a violent or serious felony who was on mandatory supervision
or post-release community supervision (PRCS) at the time of the
commission of the new offense. Specifically, this bill :
1)Prohibits the grant of probation to a defendant who commits a
serious or violent felony while on mandatory supervision.
2)Prohibits the grant of probation to a defendant who commits a
serious or violent felony while on PRCS.
3)Requires the fact of probation ineligibility based on
commission of a serious or violent felony while on PRCS to be
alleged in the accusatory pleading, and either admitted by the
defendant, or found true by the jury or judge.
EXISTING LAW :
1)Defines "probation" as "the suspension of the imposition or
execution of a sentence and the order or conditional and
revocable release in the community under the supervision of a
probation officer." (Pen. Code, � 1203, subd. (a).)
2)Requires the court, in any case involving a felony for which
the defendant is eligible for probation, to refer the matter
to the probation officer to prepare a report "including his or
her recommendations as to the granting or denying of probation
and the conditions of probation, if granted." (Pen. Code, �
1203, subd. (b).)
3)Lists criteria affecting the decision to grant or deny
probation, include facts relating to the crime and facts
relating to the defendant, as specified. (Cal. Rules of Ct.,
rule 4.414.)
AB 1715
Page 2
4)Declares ineligible for probation any defendant who commits a
serious or violent felony while on probation. (Pen. Code, �
1203, subd. (k).)
5)Declares ineligible for probation any defendant who commits a
serious or violent felony while on parole. (Pen. Code, �
1203.085, subd. (b).)
6)Declares ineligible for probation any defendant who has a
prior violent or serious felony conviction. (Pen. Code, ��
667, subd. (c)(2), and 1170.12, subd. (a)(2).)
7)Declares ineligible for probation any defendant who commits
any of the following:
a) Certain sex crimes when committed with one or more
specified circumstances (Pen. Code, � 667.61, subd. (h));
b) Theft of over $50,000 in a single transaction when the
defendant has a prior felony conviction in which an
excessive taking enhancement was found (Pen. Code, �
1203.044, subd. (b));
c) Enumerated crimes against persons on public transit with
a prior conviction for the same violation (Pen. Code, �
1203.055, subd. (c));
d) Use of a firearm in the commission of enumerated violent
crimes (Pen. Code, � 1203.06, subd. (a));
e) Enumerated sex crimes (Pen. Code, �� 1203.065, subd.
(a), and 1203.066);
f) Certain controlled substance violations (Pen. Code, �
1203.07, subd. (a));
g) Intentional infliction of great bodily injury in the
commission or attempted commission of specified violent
crimes (Pen. Code, � 1203.075, subd. (a));
h) Has a prior conviction for designated felonies within a
10-year period (Pen. Code, � 1203.08, subd. (a)); and
i) Specified violent crimes committed against persons 60
years or older or the disabled (Pen. Code, � 1203.09, subd.
AB 1715
Page 3
(a)).
8)Sets forth specified circumstances and offenses in which the
defendant is presumptively ineligible for probation and in
which probation cannot be granted "except in unusual cases
where the interests of justice would best be served"
including:
a) Certain burglaries (Pen. Code, � 462);
b) Certain crimes involving use of weapons, infliction of
great bodily injury, or two or more prior convictions (Pen.
Code, � 1203, subd. (e));
c) Theft exceeding $100,000 (Pen. Code, � 1203.045, subd.
(a));
d) Inducing a minor to commit specified felonies (Pen.
Code, � 1203.046, subd. (a));
e) Computer crimes exceeding $100,000 (Pen. Code, �
1203.048, subd. (a));
f) Food stamp fraud exceeding $100,000 (Pen. Code, �
1203.049, subd. (a));
g) Enumerated sex offenses (Pen. Code, � 1203.065, subd.
(b));
h) Certain controlled substance violations (Pen. Code, ��
1203.073, subd. (b) & 1203.074);
i) Specified crimes committed against persons 60 years or
older (Pen. Code, � 1203.09, subd. (f)); and
j) Escape from jail or court (Pen. Code, � 4532, subd.
(d)(1)).
9)Lists factors that may indicate the existence of unusual
circumstances warranting probation eligibility for offenses
deemed presumptively ineligible. (Rules of Court, rule
4.413.)
10)Permits a court to revoke probation "if the interests of
justice so require and the court, in its judgment, has reason
to believe . . . that the person has violated any of the
AB 1715
Page 4
conditions of his or her probation, has become abandoned to
improper associates or a vicious life, or has subsequently
committed other offenses, regardless whether he or she has
been prosecuted for such offense." (Pen. Code, � 1203.2,
subd. (a).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1715 would
amend Penal Code Sections 1203 and 1203.085 to clarify that
anyone who commits a serious or violent felony while on
mandatory supervision or post release community supervision is
ineligible for probation.
"AB 1715 is necessary to include mandatory supervision and PRCS
as periods of supervision during which a person is ineligible
for probation if they commit a serious or violent felony.
"Failure to include these new types of supervision would result
in a situation where two people commit serious or violent
felonies, yet one receives a new jail term while the other
receives probation, simply because of what their term of
supervision is called."
2)Limitations on Probation : Penal Code Section 1203 permits the
trial court to grant probation to a convicted defendant by
suspending the imposition or execution of sentence and
ordering a "conditional and revocable release in the community
under the supervision of a probation officer." (Pen. Code, �
1203, subd. (a).) The primary purpose of probation is the
defendant's rehabilitation. (People v. Carbajal (1995) 10
Cal.4th 1114, 1120.) Probation is an act of clemency, granted
only in the discretion of the trial court, and subject to any
reasonable conditions which it may impose. (See 3 Witkin,
Calif. Crim. Law, (2d ed. 1989) � 1653.)
As noted above, the commission of certain crimes makes a
defendant absolutely ineligible for probation. For each of
these offenses, with three exceptions, the existence of the
fact making the defendant ineligible for probation must be
alleged in the accusatory pleading, and either admitted by the
defendant in open court, or found to be true by the jury or
judge. "The denial of opportunity for probation ? is
AB 1715
Page 5
equivalent to an increase in penalty." (See People v. Lo
Cicero (1969) 71 Cal.2d 1186, 1192- 1193.) That being said,
Penal Code sections 667.61, subdivision (h); 1203, subdivision
(k); and 1203.065, subdivision (a) do not have this
requirement.
There is a separate group of offenses for which probation may
be granted only "in unusual circumstances where the interests
of justice would best be served if the person is granted
probation." The Rules of Court list factors that may indicate
the existence of unusual circumstances warranting probation
eligibility for such offense. (Cal. Rules of Court, rule
4.413.) However, even if unusual circumstances are found and
a defendant is deemed eligible for probation, he or she may
still be found to be an unsuitable candidate for probation
based on the relevant criteria. (See Cal. Rules of Court,
rule 4.414.) Some of the statutes making a defendant
presumptively ineligible for probation contain a requirement
that the fact of presumptively ineligibility be alleged in the
accusatory pleading and either admitted by the defendant or
found true by the trier of fact. However, several courts have
concluded that the fact of presumptive probation ineligibility
is not a penalty increase since it does not eliminate a
penalty option for the trial judge. Therefore it need not be
alleged in the accusatory pleading or found true by a jury.
(See e.g., People v. Lewis (2004) 120 Cal.App.4th 837, 854;
People v. Dorsch (1992) 3 Cal.App.4th 1346, 1349-1351.)
3)Practical Considerations : Current law already prohibits the
granting of probation to a defendant who commits a serious or
violent felony while on probation or parole. Proponents of
this bill argue that after the enactment of realignment, which
created two new forms of supervision (mandatory supervision
and PRCS), the provisions of this bill would provide
consistent treatment under the law.
However, these prohibitions were enacted decades ago, and at a
time when our state was not faced with a federal mandate to
reduce the state's prison population to 137.5% of design
capacity. Admittedly, the likelihood that a defendant will be
granted probation after the commission of a serious or violent
felony while already on a form of supervision is small.
However, there may be an unusual case where probation is
warranted. If probation is unavailable, the only sentencing
option for a defendant who commits a serious or violent felony
AB 1715
Page 6
is prison. (See Pen. Code, � 1170, subd. (h)(3).) In light
of on-going concerns for prison overcrowding, is it prudent to
eliminate a sentencing option for the trial judge in the
unusual case which might warrant a grant of probation?
4)Argument in Support : According to the California District
Attorneys Association , the sponsor of this bill, "For decades,
California law has prohibited the granting of probation for
serious or violent felonies while the offender was already on
probation (PC 1203(k)) or parole (PC 1203.085(b)). This is to
ensure that the penalty for committing a serious or violent
while under some forms of supervision is not simply an
additional term of supervision.
"In the wake of realignment, two new classes of supervision were
created - mandatory supervision and post-release community
supervision. While they apply to different populations, they
are similar to traditional probation and parole. It follows,
then, that existing probation eligibility restrictions that
apply to probationers and parolees should also apply to
persons on mandatory supervision and PRCS.
"Failure to include these new types of supervision would create
a nonsensical situation wherein two people could commit the
same serious or violent offense, yet one receives a new jail
term while the other receives probation, simply because of
what their term of supervision is called."
5)Argument in Opposition : According to the California Public
Defenders Association (CPDA) , "This bill would result in more
prison overcrowding at a time when California is struggling to
comply with federal court orders to ease that problem. This
bill would also run counter to the trend of trying local
alternatives to state prison.
"CPDA recognizes, of course, the attraction of this bill:
probation is already unavailable for person who is convicted
of a violent felony or a serious felony and who was on the
other two types of supervision for a felony offense at the
time of the commission of the new felony offense, namely
probation or parole; this bill would provide similar treatment
in these other supervision categories, mandatory supervision,
postrelease community supervision.
"CPDA believes, however, that the better way to provide equal
AB 1715
Page 7
treatment across all four types of supervision would not be to
eliminate the possibility of supervision rather than prison
for those on mandatory supervision or postrelease community
supervision; rather it would be to permit possible probation
for those on probation or parole.
"That would be best done, therefore, not by enacting new
required prison terms, but by repealing the prohibition on
probation now embodied in Penal Code sections 1203,
subdivision (k) and 1203.085, subdivision (c)."
6)Current Legislation :
a) SB 991 (Jackson) creates the crime of second degree
rape, and makes a defendant ineligible for probation on a
second or subsequent conviction. SB 991 is pending hearing
in the Senate Public Safety Committee.
b) SB 1085 (Walters) disqualifies a defendant convicted of
human trafficking from probation eligibility. SB 1085 is
pending hearing in the Senate Public Safety Committee.
7)Prior Legislation :
a) Proposition 83 (Jessica's Law), approved Nov. 7, 2006,
prohibited probation for some sex offenses, including
spousal rape and lewd or lascivious acts.
b) SB 1128 (Alquist), Chapter 337, Statutes of 2006, added
continuous sexual abuse of a child, aggravated sexual
assault of a child, sodomy, oral copulation, and forcible
sexual penetration to the list of offenses which make a
person upon conviction ineligible for probation.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (Sponsor)
California Police Chiefs Association, Inc.
California State Sheriffs' Association
San Diego County District Attorney
Opposition
AB 1715
Page 8
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Tax Payers for Improving Public Safety
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744