BILL ANALYSIS Ó
AB 2199
Page 1
Date of Hearing: April 1, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2199 (Muratsuchi) - As Introduced: February 20, 2014
SUMMARY : Authorizes the probation department to charge a
defendant for all, or a portion of, the reasonable cost of
mandatory supervision, subject to the defendant's ability to
pay.
EXISTING LAW :
1)Requires the probation officer, when a defendant is granted
probation or a conditional sentence, to determine a
defendant's ability to pay all or a portion of the reasonable
cost of probation supervision and probation report
preparation. (Pen. Code, § 1203.1b, subd. (a).)
2)Entitles the defendant to a hearing to have the court
determine his or her ability to pay, as well as determine the
payment amount, unless he or she waives it. (Pen. Code, §
1203.1b, subd. (a).)
3)Entitles the defendant the right to assistance of counsel at
that hearing. (Pen. Code, § 1203.1b, subd. (a).)
4)Requires the court to set the amount of the payment and order
the defendant to pay that amount to the county in a manner
that is reasonable and compatible with the defendant's
financial ability. (Pen. Code, § 1203.1b, subd. (b).)
5)Defines "ability to pay" as the overall capacity of the
defendant to reimburse the costs, or a portion of the costs,
of conducting the presentence investigation, preparing the
probation reports, processing jurisdictional transfers, and
the costs of supervision. (Pen. Code, § 1203.1b, subd. (e).)
6)Sets forth criteria for the court to consider in determining
the defendant's ability to pay, including:
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a) Present financial position;
b) Reasonably discernible future financial position for the
next year;
c) The likelihood that the defendant shall be able to
obtain employment within the one-year period from the date
of the hearing; and
d) Any other factor or factors that may bear upon the
defendant's financial capability to reimburse the county
for the costs. (Pen. Code, § 1203.1b, subd. (e).)
7)Provides for additional hearings during the period of
probation to review the defendant's ability to pay the
probation costs. (Pen. Code, § 1203.1, subd. (c).)
8)Authorizes the court, when imposing a sentence for a county
jail-eligible felony, to commit the defendant to county jail
as follows:
a) For a full term in custody as determined in accordance
with applicable sentencing law; or
b) For a term as determined in accordance with the
applicable sentencing law, but suspend execution of a
concluding portion or the term selected in the court's
discretion, during which time defendant will be placed on
mandatory supervision for the remaining unserved portion of
the sentence imposed by the court. The period of
supervision shall be mandatory and may not be earlier
terminated except by court order. During the period when
the defendant is under mandatory supervision, unless in
actual custody, the defendant shall be entitled to only
actual time credit against the term of imprisonment imposed
by the court. (Pen. Code, § 1170, subd. (h)(5).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill will
authorize a supervision fee for the Mandatory Supervision
population created under AB 109, the Public Safety Realignment
Act of 2011. Under existing law, a trial court is authorized
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to order a defendant to pay the reasonable cost of supervision
when probation is granted or a conditional sentence is
imposed. Existing law takes into account a defendant's ability
to pay using a mechanism to determine the appropriate amount
that a defendant should be charged. Existing law has not been
updated to account for Mandatory Supervision offenders who are
now under the supervision of local probation departments.
Supervision fees can help to cover a portion of the actual
costs of providing critical adult field services supervision
and programs. This bill would authorize a supervision fee for
Mandatory Supervision, thereby bringing parity with other
supervised populations."
2)Necessity for this Bill : Recently, two appellate courts have
concluded that supervision fee authorized in Penal Code
section 1203.1b is inapplicable to mandatory supervision.
(See People v. Fandinola (2013) 221 Cal.App.4th 1415; and
People v. Ghebretensea (2013) 222 Cal.App.4th741.) Both
courts noted that the plain language of the Penal Code section
1203.1b applies only to a grant of probation or a conditional
sentence, and that mandatory supervision is neither a grant of
probation nor a conditional sentence. (Fandinola, supra, 221
Cal.App.4th at pp. 1421-1422; Ghebretensea, supra, 222
Cal.App.4th at p. 764.) Both courts also noted that after the
enactment of realignment the Legislature has amended two other
Penal Code sections to expressly provide that particular fines
and costs are applicable to mandatory supervision cases.
Given the Legislature did not similarly amend section 1203.1b
to apply to mandatory supervision, this indicates it did not
intend such application. (Fandinola, supra, 221 Cal.App.4th
at pp. 1422-1423; Ghebretensea, supra, 222 Cal.App.4th at pp.
765-766 [both referencing Pen. Code, §§ 1202.45 and 1203.9].)
Therefore, under current law, the court lacks authority to
impose the supervision fee on a defendant who is given a split
sentence and subject to mandatory supervision. This bill
would expand the application of Penal Code section 1203.1b to
allow probation departments to recoup the costs of mandatory
supervision, if the defendant has the ability to pay.
3)Comparing Probation and Mandatory Supervision : As noted above,
under realignment, a court has the authority to sentence a
defendant convicted of a felony punishable by incarceration in
the county jail to either a full term in custody (Pen. Code,
§1170, subd. (h)(5)(A)), or split the sentence between time in
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custody and mandatory supervision in the community in any
proportion the court deems appropriate (Pen. Code, § 1170,
subd. (h)(5)(B)).
Mandatory supervision is similar to probation in that the
defendant is supervised by a probation officer and the
defendant's release is subject to the terms and conditions
imposed by the judge or the probation department. Like
probation, the failure to comply with terms and conditions can
result in the person being sent back to custody.
There is one significant difference between probation and
mandatory supervision. A defendant can refuse probation and
instead choose to serve the sentence. (People v. Beal (1997)
60 Cal.App.4th 84, 87.) In contrast, a defendant does not
have the right to refuse a split sentence requiring mandatory
supervision. "Since the commitment under section 1170(h)
generally is the equivalent of a prison sentence, the
defendant need not agree to the terms and conditions of
supervision in the same manner as a sentence involving a grant
of probation." (See Felony Sentencing After Realignment, by
Judge Couzens (Ret.) & Justice Bigelow, June 2013, at p. 13
[discussing split sentences],
.)
4)Ability to Pay Provisions : When determining whether the
defendant has the ability to pay the costs of supervision, the
trial court must consider: (1) the defendant's present
financial position; (2) the defendant's reasonably discernable
future financial position; (3) the likelihood that the
defendant will be able to obtain a job within one year; and
(4) any other factors that may bear on the defendant's
financial ability to reimburse the county. However, in no
event can the court consider a period of more than one year
from the date of the hearing for purposes of the defendant's
future financial position or future job prospects. (Pen.
Code, § 1203.1, subd. (e).)
The one-year limitations on considering future job prospects and
future financial position when determining ability to pay
probation supervision costs are due to the fact that jail time
as a condition of probation is limited to one year. (See Pen.
Code, § 19.2.)
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However, the same one-year limit on incarceration does not apply
to a defendant serving a split sentence. The judge can split
the sentence between jail custody and mandatory supervision in
the community in any proportion he or she wants. (See Pen.
Code, § 1170, subd. (h)(5)(B).) Many defendants will serve
over one year before their period of mandatory supervision
begins. In these cases, the factors the court is to consider
when making a determination of a defendant's ability to pay
will weigh in favor of a finding that the defendant does not
have the ability to pay the costs of mandatory supervision.
5)Use of Split Sentences : A January 2014 report by the Stanford
Criminal Justice Center states, "Recently released data from
the Chief Probation Officers of California (CPOC) indicate
that most 1170(h) offenders sentenced to some jail time are
given straight jail sentences, rather than split sentences.
However, the percentage of split sentences imposed has
steadily increased since Realignment's enactment in October
2011. ? The use of split sentences was low when AB 109 first
went into effect -- only 17% of all sentences imposed in
October 2011 were split sentences. By October 2012, the
percentage of 1170(h) offenders given split sentences
increased to 30%. This percentage has remained steady through
March 2013." (Assessing Judicial Sentencing Preferences After
Public Safety Realignment: A Survey of California Judges, pp.
22-23,
http://www.law.stanford.edu/sites/default/files/child-page/4434
44/doc/slspublic/Judges%20Report%20Feb%2028%202014%20Final.pdf.
)
6)Background on Probation Supervision Fee : The court may order
that a defendant who is granted probation or conditional
release pay the costs of supervision and preparation of
probation reports, if he or she is financially able to do so.
(People v. Hall (2002) 103 Cal.App.4th 889, 892-893.)
Before supervision costs may be imposed, however, probationers
must be informed of their right to a hearing and to a judicial
determination of ability to pay. Any waiver of these
procedures by the probationer must be knowing and intelligent.
(Pen. Code § 1203.1b; People v. O'Connell (2003) 107
Cal.App.4th 1062, 1067-1068.)
When a probationer is ordered to pay probation costs, payment
of these costs cannot be made a condition of probation.
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Therefore, the failure to pay probation costs cannot be
considered a violation of probation conditions. (People v.
Hall, supra, 103 Cal.App.4th at p. 892; People v. O'Connell,
supra, 107 Cal.App.4th at p. 1068.)
7)Argument in Support : The Chief Probation Officers of
California , the sponsor of this bill, write, "While the
mandatory supervision population deadline is a similarly
situated population to those on probation or who receive a
conditional sentence, in December 2013, People v. Fandinola
found that the probation supervision fee may not be applied to
the mandatory supervision portion of a split sentence because
Penal Code 1203.1b did not expressly note Mandatory
Supervision. This ruling has the potential to disincentivize
split sentences, which may result in more straight jail
sentences granted by courts due to the cost of supervision.
"AB 2199 would bring needed parity to these populations of
similarly situated offenders by allowing defendants to be
charged for the reasonable costs of mandatory supervision.
Ability to pay provisions would similarly apply and probation
(sic) would not be revoked for someone's inability to pay.
These supervision fees help cover a portion of the actual cost
to provide critical adult field service supervision and
programs."
8)Current Legislation :
a) AB 579 (Melendez) specifies that mandatory supervision
begins upon release from custody. AB 579 is pending in the
Senate Public Safety Committee.
b) AB 1715 (Patterson) makes probation unavailable for a
defendant convicted of a violent or serious felony who was
on mandatory supervision at the time of the commission of
the new offense. AB 1715 failed passage in this Committee
and reconsideration was granted.
9)Prior Legislation :
a) AB 560 (Ammiano), of the 2013-14 Legislative Session,
would have required all individuals who are sentenced to
county jail for specified felonies to serve at least the
final six months of their sentence under mandatory
supervision. AB 560 was failed passage in the Assembly
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Appropriations Committee.
b) AB 109 (Committee on Budget), Chapter 15, Statutes of
2011, realigned responsibilities for certain parolees and
newly convicted offenders who are deemed to be non-violent,
non-serious and non-sex offenders from state to local
jurisdictions.
REGISTERED SUPPORT / OPPOSITION :
Support
Chief Probation Officers of California (Sponsor)
California Probation, Parole, and Correctional Association
California State Sheriffs' Association
Opposition
None
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744