SB 366, as amended, Wright. Traffic fines: ability to pay.
(1) Existing law requires the court to hear and determine the suitability of probation in a particular case. At the hearing, the court is required to consider any report of the probation officer, and, if the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person, the court may place the person on probation.
This bill would provide, for purposes of these provisions, that circumstances in mitigation include, but are not limited to, the payment of all or part of a traffic fine or a civil assessment imposed for the failure to appear in court or to pay a fine in an infraction, misdemeanor, or felony case, and participation in court ordered community service to satisfy a traffic fine or that civil assessment.
(2) Existing law authorizes the court to sentence a person who has been convicted of an infraction, upon showing that payment of the total fine, as defined, would pose a hardship on the person or his or her family, to perform community service in lieu of the total fine that would otherwise be imposed. Existing law requires the hourly rate applicable to community service work by criminal defendants to be determined by dividing the total fine by the number of hours to be performed in lieu of the total fine.
This bill wouldbegin delete additionally authorize the court to sentence a person who has been convicted of a misdemeanor for a failure to appear or to pay bail pursuant to specified provisions, or upon whom a civil assessment has been imposed for the failure to appear in court or to pay a fine in an infraction, misdemeanor, or felony case, upon a showing that payment of part or all of the total fine
or civil assessment would pose a hardship on the person or his or her family, to perform community service in lieu of part or all of the total fine or civil assessment that would otherwise be imposed.end deletebegin insert eliminate the hourly rate applicable to community service in this instance and instead provide a new schedule for determining the hours of community service to be imposed based on the amount of the fine.end insert The bill would require the court to determine that payingbegin delete all or a modified amount ofend delete thebegin delete totalend delete fine is a hardship if the defendant receives any of certain categories of public benefits, as specified.begin delete The bill would authorize the court to delegate to the clerk of the court the authority to grant a defendant’s request for community service based on receipt of those benefits, as specified.end delete
The bill would require the community service to be performed in the county in this state chosen by the defendant.begin delete By increasing duties on local governments in connection with supervising defendants performing community service, this bill would impose a state-mandated local program.end delete
(3) Existing law authorizes the court, in addition to any other penalty in an infraction, misdemeanor, or felony case, to impose a civil assessment of up to $300 against any defendant who fails, after notice and without good cause, to appear in court for any proceeding authorized by law, or who fails to pay all or any portion of a fine ordered by the court or to pay an installment of bail, as specified. Existing law provides that the assessment shall not become effective until at least 10 calendar days after the court mails a warning notice to the defendant, and requires the court, if the defendant appears within the time specified in the notice and shows good cause for the failure to appear or for the failure to pay a fine or installment of bail, to vacate the assessment.
This bill would authorize the court, in its discretion, to waive or impose on a particular defendant, a civil assessment of not less than $10, and not more than $300, if that defendant fails, after notice and without good cause, to appear in court for any proceeding authorized by law, fails to pay all or any portion of a fine ordered by the court, or fails to pay an installment of bail, as specified. The bill would require the amount of the assessment to be based on the defendant’s ability to paybegin delete and set according to a schedule adopted by the Judicial Councilend deletebegin insert as determined by the courtend insert.
The bill would authorize the court to determine that a defendant does not have the ability to pay the assessment if the defendant demonstrates that he or she receives any of certain categories of public benefits, as specified. The bill would provide that the assessment shall not become effective until at least 30 calendar days after the court mails a warning notice to the defendant, and would require the court, if the defendant appears within the time specified in the notice, or beyond the time specified in the notice if there is evidence that the notice was not in fact received, and shows good cause for the failure to appear or for the failure to pay a fine or installment of bail, to vacate the assessment. The bill would require the court to vacate the assessment if thebegin delete defendant provides a sworn statement under penalty of perjuryend deletebegin insert court
determinesend insert that the notice was not received because the defendant is homeless or has no fixed address. The bill would provide that ability to post bail or to pay the fine or civil assessment is not a prerequisite to filing a request that the court vacate the assessment. The bill would require the court to provide a process for a defendant to appear to show good cause for failure to appear, and would require the court to waive a civil assessment if the defendant meets the good cause standard for vacating a civil assessment. The bill would require the court to grant a defendant’s request to vacate the civil assessment for good cause for the inability to pay if the defendant demonstrates that he or she receives any of certain categories of public benefits, as specified.
By expanding the scope of the crime of perjury, this bill would impose a state-mandated local program.
end delete(4) Existing law authorizes a court to give notice to the Department of Motor Vehicles if any person has willfully failed to pay a lawfully imposed fine, or bail in installments, within the time authorized by the court, except as specified. Existing law requires the court to mail a courtesy warning notice to the defendant at least 10 days before sending a notice to the department for specified violations of the Vehicle Code. If thereafter the fine is fully paid, the court is required to issue and file with the department a certificate showing that the fine has been paid.
This bill wouldbegin delete require the court, if the fine is fully paid, or an agreement is signed to pay the fine, fee, or bail in installments, or an agreement is signed to perform community service pursuant to the provisions described in (2) above, to issue and file with the department a certificate showing that the fine has
been paid or satisfied, or an agreement has been signed, and request that the license hold be lifted. The bill wouldend delete prohibit the court from requiring the payment of bail, the fine, or a civil assessment before a person may request the court to vacate a civil assessment. The bill also would require the court to mail the courtesy warning notice to the defendant at least 30 days before sending a notice to the department for specified violations of the Vehicle Code.begin delete The bill would authorize the court to give notice to the Department of Motor Vehicles if a person fails to pay an outstanding fine or fee in installments or to perform community service consistent with the terms of the signed agreement.end delete
(5) Existing law requires the court, in any case when a person appears before a traffic referee or judge for adjudication of a Vehicle Code violation, upon request of the defendant, to consider the defendant’s ability to pay. Among other things, the court is required to order the defendant to appear before a county officer to make an inquiry into the ability of the defendant to pay specified costs or the court may make this determination. Existing law defines the defendant’s ability to pay as the overall capability of the defendant to reimburse the costs, or a portion of the costs, of conducting the presentence investigation, preparing the presentence report, and probation. A defendant’s ability to pay includes, but is not limited to, the defendant’s present financial position, reasonably discernible future financial position, and any other factors that may bear upon the defendant’s financial capability to reimburse the county for costs.
This bill would require the court to consider the defendant’s ability to pay when a defendant appears for adjudication of any infraction. The bill would authorize the court to
conclusively presume that a defendant does not have the ability to pay if the defendant demonstrates that he or she is receiving public benefits under specified programs, including, among others, the Supplemental Nutrition Assistance Program and Medi-Cal. This bill would also require the court to advise the defendant of the right to a determination of the ability to pay at the time of rendering judgment. The bill would authorize the court to conclusively presume that a defendant does not have the ability to pay the fine if the defendant demonstrates that he or she receives any of certain categories of public benefits, as specified.begin delete The bill would authorize the court to give notice to the Department of Motor Vehicles if a person fails to pay an outstanding fine or fee in installments or to perform community service consistent with the terms of the signed agreement.end delete
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
end deleteThis bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
end deleteWith regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
end deleteVote: majority.
Appropriation: no.
Fiscal committee: begin deleteyes end deletebegin insertnoend insert.
State-mandated local program: begin deleteyes end deletebegin insertnoend insert.
The people of the State of California do enact as follows:
Section 19.6 of the Penal Code is amended to
2read:
(a) An infraction is not punishable by imprisonment. A
4person charged with an infraction shall not be entitled to a trial by
5jury. A person charged with an infraction shall not be entitled to
6have the public defender or other counsel appointed at public
7expense to represent him or her unless he or she is arrested and
8not released on his or her written promise to appear, his or her own
9recognizance, or a deposit of bail.
10(b) In any case when a person appears before a traffic referee,
11judge, or commissioner of the superior court for adjudication of
12an infraction violation, the court, upon request of the defendant,
13shall consider the defendant’s ability to pay
a fine or assessment
14in accordance with subdivisions (c) and (d) of Section 42003 of
15the Vehicle Code.
Section 1203 of the Penal Code is amended to read:
(a) As used in this code, “probation” means the
18suspension of the imposition or execution of a sentence and the
19order of conditional and revocable release in the community under
20the supervision of a probation officer. As used in this code,
21“conditional sentence” means the suspension of the imposition or
22execution of a sentence and the order of revocable release in the
23community subject to conditions established by the court without
24the supervision of a probation officer. It is the intent of the
P6 1Legislature that both conditional sentence and probation are
2authorized whenever probation is authorized in any code as a
3sentencing option for infractions or misdemeanors.
4(b) (1) Except as provided in subdivision (j), if a person is
5convicted of a felony and is eligible for probation, before judgment
6 is pronounced, the court shall immediately refer the matter to a
7probation officer to investigate and report to the court, at a specified
8time, upon the circumstances surrounding the crime and the prior
9history and record of the person, which may be considered either
10in aggravation or mitigation of the punishment.
11(2) (A) The probation officer shall immediately investigate and
12make a written report to the court of his or her findings and
13recommendations, including his or her recommendations as to the
14granting or denying of probation and the conditions of probation,
15if granted.
16(B) Pursuant to Section 828 of the Welfare and
Institutions
17Code, the probation officer shall include in his or her report any
18information gathered by a law enforcement agency relating to the
19taking of the defendant into custody as a minor, which shall be
20considered for purposes of determining whether adjudications of
21commissions of crimes as a juvenile warrant a finding that there
22are circumstances in aggravation pursuant to Section 1170 or to
23deny probation.
24(C) If the person was convicted of an offense that requires him
25or her to register as a sex offender pursuant to Sections 290 to
26290.023, inclusive, or if the probation report recommends that
27registration be ordered at sentencing pursuant to Section 290.006,
28the probation officer’s report shall include the results of the
29State-Authorized Risk Assessment Tool for Sex Offenders
30(SARATSO) administered pursuant to Sections
290.04 to 290.06,
31inclusive, if applicable.
32(D) The probation officer shall also include in the report his or
33her recommendation of both of the following:
34(i) The amount the defendant should be required to pay as a
35restitution fine pursuant to subdivision (b) of Section 1202.4.
36(ii) Whether the court shall require, as a condition of probation,
37restitution to the victim or to the Restitution Fund and the amount
38thereof.
39(E) The report shall be made available to the court and the
40prosecuting
and defense attorneys at least five days, or upon request
P7 1of the defendant or prosecuting attorney nine days, prior to the
2time fixed by the court for the hearing and determination of the
3report, and shall be filed with the clerk of the court as a record in
4the case at the time of the hearing. The time within which the report
5shall be made available and filed may be waived by written
6stipulation of the prosecuting and defense attorneys that is filed
7with the court or an oral stipulation in open court that is made and
8entered upon the minutes of the court.
9(3) (A) At a time fixed by the court, the court shall hear and
10determine the application, if one has been made, or, in any case,
11the suitability of probation in the particular case. At the hearing,
12the court shall consider any report of the probation officer,
13including
the results of the SARATSO, if applicable, and shall
14make a statement that it has considered the report, which shall be
15filed with the clerk of the court as a record in the case. If the court
16determines that there are circumstances in mitigation of the
17punishment prescribed by law or that the ends of justice would be
18served by granting probation to the person, it may place the person
19on probation. If probation is denied, the clerk of the court shall
20immediately send a copy of the report to the Department of
21Corrections and Rehabilitation at the prison or other institution to
22which the person is delivered.
23(B) For purposes of subparagraph (A), circumstances in
24mitigation of the punishment prescribed by law include, but are
25not limited to, all of the following:
26(i) The payment of all or part of a traffic fine.
27(ii) The payment of all or part of a civil assessment imposed
28under Section 1214.1.
29(iii) Participation in court-ordered community service pursuant
30to Section 1209.5 to satisfy a traffic fine or civil assessment
31imposed under Section 1214.1.
32(4) The preparation of the report or the consideration of the
33report by the court may be waived only by a written stipulation of
34the prosecuting and defense attorneys that is filed with the court
35or an oral stipulation in open court that is made and entered upon
36the minutes of the court, except that there shall be no waiver unless
37the court consents thereto. However, if the defendant is ultimately
38sentenced and committed to the state prison, a probation
report
39shall be completed pursuant to Section 1203c.
P8 1(c) If a defendant is not represented by an attorney, the court
2shall order the probation officer who makes the probation report
3to discuss its contents with the defendant.
4(d) If a person is convicted of a misdemeanor, the court may
5either refer the matter to the probation officer for an investigation
6and a report or summarily pronounce a conditional sentence. If
7the person was convicted of an offense that requires him or her to
8register as a sex offender pursuant to Sections 290 to 290.023,
9inclusive, or if the probation officer recommends that the court,
10at sentencing, order the offender to register as a sex offender
11pursuant to Section 290.006, the court shall refer the matter to the
12probation officer for the purpose of
obtaining a report on the results
13of the State-Authorized Risk Assessment Tool for Sex Offenders
14administered pursuant to Sections 290.04 to 290.06, inclusive, if
15applicable, which the court shall consider. If the case is not referred
16to the probation officer, in sentencing the person, the court may
17consider any information concerning the person that could have
18been included in a probation report. The court shall inform the
19person of the information to be considered and permit him or her
20to answer or controvert the information. For this purpose, upon
21the request of the person, the court shall grant a continuance before
22the judgment is pronounced.
23(e) Except in unusual cases where the interests of justice would
24best be served if the person is granted probation, probation shall
25not be granted to any of the following persons:
26(1) Unless the person had a lawful right to carry a deadly
27weapon, other than a firearm, at the time of the perpetration of the
28crime or his or her arrest, any person who has been convicted of
29arson, robbery, carjacking, burglary, burglary with explosives,
30rape with force or violence, torture, aggravated mayhem, murder,
31attempt to commit murder, train wrecking, kidnapping, escape
32from the state prison, or a conspiracy to commit one or more of
33those crimes and who was armed with the weapon at either of those
34times.
35(2) Any person who used, or attempted to use, a deadly weapon
36upon a human being in connection with the perpetration of the
37crime of which he or she has been convicted.
38(3) Any person who willfully
inflicted great bodily injury or
39torture in the perpetration of the crime of which he or she has been
40convicted.
P9 1(4) Any person who has been previously convicted twice in this
2state of a felony or in any other place of a public offense which,
3if committed in this state, would have been punishable as a felony.
4(5) Unless the person has never been previously convicted once
5in this state of a felony or in any other place of a public offense
6which, if committed in this state, would have been punishable as
7a felony, any person who has been convicted of burglary with
8explosives, rape with force or violence, torture, aggravated
9mayhem, murder, attempt to commit murder, train wrecking,
10extortion, kidnapping, escape from the state prison, a violation of
11Section 286, 288, 288a, or 288.5, or
a conspiracy to commit one
12or more of those crimes.
13(6) Any person who has been previously convicted once in this
14state of a felony or in any other place of a public offense which,
15if committed in this state, would have been punishable as a felony,
16if he or she committed any of the following acts:
17(A) Unless the person had a lawful right to carry a deadly
18weapon at the time of the perpetration of the previous crime or his
19or her arrest for the previous crime, he or she was armed with a
20weapon at either of those times.
21(B) The person used, or attempted to use, a deadly weapon upon
22a human being in connection with the perpetration of the previous
23crime.
24(C) The person willfully inflicted great bodily injury or torture
25in the perpetration of the previous crime.
26(7) Any public official or peace officer of this state or any city,
27county, or other political subdivision who, in the discharge of the
28duties of his or her public office or employment, accepted or gave
29or offered to accept or give any bribe, embezzled public money,
30or was guilty of extortion.
31(8) Any person who knowingly furnishes or gives away
32phencyclidine.
33(9) Any person who intentionally inflicted great bodily injury
34in the commission of arson under subdivision (a) of Section 451
35or who intentionally set fire to, burned, or caused the burning of,
36an inhabited structure or inhabited property in
violation of
37subdivision (b) of Section 451.
38(10) Any person who, in the commission of a felony, inflicts
39great bodily injury or causes the death of a human being by the
P10 1discharge of a firearm from or at an occupied motor vehicle
2proceeding on a public street or highway.
3(11) Any person who possesses a short-barreled rifle or a
4short-barreled shotgun under Section 33215, a machinegun under
5Section 32625, or a silencer under Section 33410.
6(12) Any person who is convicted of violating Section 8101 of
7the Welfare and Institutions Code.
8(13) Any person who is described in subdivision (b) or (c) of
9Section 27590.
10(f) When probation is granted in a case which comes within
11subdivision (e), the court shall specify on the record and shall enter
12on the minutes the circumstances indicating that the interests of
13justice would best be served by that disposition.
14(g) If a person is not eligible for probation, the judge shall refer
15the matter to the probation officer for an investigation of the facts
16relevant to determination of the amount of a restitution fine
17
pursuant to subdivision (b) of Section 1202.4 in all cases where
18the determination is applicable. The judge, in his or her discretion,
19may direct the probation officer to investigate all facts relevant to
20the sentencing of the person. Upon that referral, the probation
21officer shall immediately investigate the circumstances surrounding
22the crime and the prior record and history of the person and make
23a written report to the court of his or her findings. The findings
24shall include a recommendation of the amount of the restitution
25fine as provided in subdivision (b) of Section 1202.4.
26(h) If a defendant is convicted of a felony and a probation report
27 is prepared pursuant to subdivision (b) or (g), the probation officer
28may obtain and include in the report a statement of the comments
29of the victim concerning the offense. The court may
direct the
30probation officer not to obtain a statement if the victim has in fact
31testified at any of the court proceedings concerning the offense.
32(i) A probationer shall not be released to enter another state
33unless his or her case has been referred to the Administrator of the
34Interstate Probation and Parole Compacts, pursuant to the Uniform
35Act for Out-of-State Probationer or Parolee Supervision (Article
363 (commencing with Section 11175) of Chapter 2 of Title 1 of Part
374) and the probationer has reimbursed the county that has
38jurisdiction over his or her probation case the reasonable costs of
39processing his or her request for interstate compact supervision.
P11 1The amount and method of reimbursement shall be in accordance
2with Section 1203.1b.
3(j) In any court where a county
financial evaluation officer is
4available, in addition to referring the matter to the probation officer,
5the court may order the defendant to appear before the county
6financial evaluation officer for a financial evaluation of the
7defendant’s ability to pay restitution, in which case the county
8financial evaluation officer shall report his or her findings regarding
9restitution and other court-related costs to the probation officer on
10the question of the defendant’s ability to pay those costs.
11Any order made pursuant to this subdivision may be enforced
12as a violation of the terms and conditions of probation upon willful
13failure to pay and at the discretion of the court, may be enforced
14in the same manner as a judgment in a civil action, if any balance
15remains unpaid at the end of the defendant’s probationary period.
16(k) Probation shall not be granted to, nor shall the execution of,
17or imposition of sentence be suspended for, any person who is
18convicted of a violent felony, as defined in subdivision (c) of
19Section 667.5, or a serious felony, as defined in subdivision (c) of
20Section 1192.7, and who was on probation for a felony offense at
21the time of the commission of the new felony offense.
begin insertSection 1203 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert
(a) As used in this code, “probation” means the
24suspension of the imposition or execution of a sentence and the
25order of conditional and revocable release in the community under
26the supervision of a probation officer. As used in this code,
27“conditional sentence” means the suspension of the imposition or
28execution of a sentence and the order of revocable release in the
29community subject to conditions established by the court without
30the supervision of a probation officer. It is the intent of the
31Legislature that both conditional sentence and probation are
32authorized whenever probation is authorized in any code as a
33sentencing option for infractions or misdemeanors.
34(b) (1) Except as provided in subdivision (j), if a person is
35convicted of a
felony and is eligible for probation, before judgment
36is pronounced, the court shall immediately refer the matter to a
37probation officer to investigate and report to the court, at a specified
38time, upon the circumstances surrounding the crime and the prior
39history and record of the person, which may be considered either
40in aggravation or mitigation of the punishment.
P12 1(2) (A) The probation officer shall immediately investigate and
2make a written report to the court of his or her findings and
3recommendations, including his or her recommendations as to the
4granting or denying of probation and the conditions of probation,
5if granted.
6(B) Pursuant to Section 828 of the Welfare and Institutions
7Code, the probation officer shall include in his or her report any
8information gathered by a law enforcement agency relating to the
9taking of the defendant into custody as a
minor, which shall be
10considered for purposes of determining whether adjudications of
11commissions of crimes as a juvenile warrant a finding that there
12are circumstances in aggravation pursuant to Section 1170 or to
13deny probation.
14(C) If the person was convicted of an offense that requires him
15or her to register as a sex offender pursuant to Sections 290 to
16290.023, inclusive, or if the probation report recommends that
17registration be ordered at sentencing pursuant to Section 290.006,
18the probation officer’s report shall include the results of the
19State-Authorized Risk Assessment Tool for Sex Offenders
20(SARATSO) administered pursuant to Sections 290.04 to 290.06,
21inclusive, if applicable.
22(D) The probation officer may also include in the report his or
23her recommendation of both of the following:
24(i) The amount the
defendant should be required to pay as a
25restitution fine pursuant to subdivision (b) of Section 1202.4.
26(ii) Whether the court shall require, as a condition of probation,
27restitution to the victim or to the Restitution Fund and the amount
28thereof.
29(E) The report shall be made available to the court and the
30prosecuting and defense attorneys at least five days, or upon request
31of the defendant or prosecuting attorney nine days, prior to the
32time fixed by the court for the hearing and determination of the
33report, and shall be filed with the clerk of the court as a record in
34the case at the time of the hearing. The time within which the report
35shall be made available and filed may be waived by written
36stipulation of the prosecuting and defense attorneys that is filed
37with the court or an oral stipulation in open court that is made and
38entered upon the minutes of the court.
39(3) begin insert(A)end insertbegin insert end insert At a time fixed by the court, the court shall hear and
40determine the application, if one has been made, or, in any case,
P13 1the suitability of probation in the particular case. At the hearing,
2the court shall consider any report of the probation officer,
3including the results of the SARATSO, if applicable, and shall
4make a statement that it has considered the report, which shall be
5filed with the clerk of the court as a record in the case. If the court
6determines that there are circumstances in mitigation of the
7punishment prescribed by law or that the ends of justice would be
8served by granting probation to the person, it may place the person
9on probation. If probation is denied, the clerk of the court shall
10
immediately send a copy of the report to the Department of
11Corrections and Rehabilitation at the prison or other institution to
12which the person is delivered.
13(B) For purposes of subparagraph (A), circumstances in
14mitigation of the punishment prescribed by law include, but are
15not limited to, all of the following:
16(i) The payment of all or part of a traffic fine.
end insertbegin insert
17(ii) The payment of all or part of a civil assessment imposed
18under Section 1214.1.
19(iii) Participation in court-ordered community service pursuant
20to Section 1209.5 to satisfy a traffic fine or civil
assessment
21imposed under Section 1214.1.
22(4) The preparation of the report or the consideration of the
23report by the court may be waived only by a written stipulation of
24the prosecuting and defense attorneys that is filed with the court
25or an oral stipulation in open court that is made and entered upon
26the minutes of the court, except that a waiver shall not be allowed
27unless the court consents thereto. However, if the defendant is
28ultimately sentenced and committed to the state prison, a probation
29report shall be completed pursuant to Section 1203c.
30(c) If a defendant is not represented by an attorney, the court
31shall order the probation officer who makes the probation report
32to discuss its contents with the defendant.
33(d) If a person is convicted of a misdemeanor, the court may
34either refer
the matter to the probation officer for an investigation
35and a report or summarily pronounce a conditional sentence. If
36the person was convicted of an offense that requires him or her to
37register as a sex offender pursuant to Sections 290 to 290.023,
38inclusive, or if the probation officer recommends that the court,
39at sentencing, order the offender to register as a sex offender
40pursuant to Section 290.006, the court shall refer the matter to the
P14 1probation officer for the purpose of obtaining a report on the results
2of the State-Authorized Risk Assessment Tool for Sex Offenders
3administered pursuant to Sections 290.04 to 290.06, inclusive, if
4applicable, which the court shall consider. If the case is not referred
5to the probation officer, in sentencing the person, the court may
6consider any information concerning the person that could have
7been included in a probation report. The court shall inform the
8person of the information to be considered and permit him or her
9to answer or controvert the information.
For this purpose, upon
10the request of the person, the court shall grant a continuance before
11the judgment is pronounced.
12(e) Except in unusual cases where the interests of justice would
13best be served if the person is granted probation, probation shall
14not be granted to any of the following persons:
15(1) Unless the person had a lawful right to carry a deadly
16weapon, other than a firearm, at the time of the perpetration of the
17crime or his or her arrest, any person who has been convicted of
18arson, robbery, carjacking, burglary, burglary with explosives,
19rape with force or violence, torture, aggravated mayhem, murder,
20attempt to commit murder,begin delete trainwreckingend deletebegin insert train wreckingend insert,
21kidnapping, escape
from the state prison, or a conspiracy to commit
22one or more of those crimes and who was armed with the weapon
23at either of those times.
24(2) Any person who used, or attempted to use, a deadly weapon
25upon a human being in connection with the perpetration of the
26crime of which he or she has been convicted.
27(3) Any person who willfully inflicted great bodily injury or
28torture in the perpetration of the crime of which he or she has been
29convicted.
30(4) Any person who has been previously convicted twice in this
31state of a felony or in any other place of a public offense which,
32if committed in this state, would have been punishable as a felony.
33(5) Unless the person has never been previously convicted once
34in this state of a felony or in any other place of a
public offense
35which, if committed in this state, would have been punishable as
36a felony, any person who has been convicted of burglary with
37explosives, rape with force or violence, torture, aggravated
38mayhem, murder, attempt to commit murder,begin delete trainwreckingend deletebegin insert train
39wreckingend insert, extortion, kidnapping, escape from the state prison, a
P15 1violation of Section 286, 288, 288a, or 288.5, or a conspiracy to
2commit one or more of those crimes.
3(6) Any person who has been previously convicted once in this
4state of a felony or in any other place of a public offense which,
5if committed in this state, would have been punishable as a felony,
6if he or she committed any of the following acts:
7(A) Unless the person
had a lawful right to carry a deadly
8weapon at the time of the perpetration of the previous crime or his
9or her arrest for the previous crime, he or she was armed with a
10weapon at either of those times.
11(B) The person used, or attempted to use, a deadly weapon upon
12a human being in connection with the perpetration of the previous
13crime.
14(C) The person willfully inflicted great bodily injury or torture
15in the perpetration of the previous crime.
16(7) Any public official or peace officer of this state or any city,
17county, or other political subdivision who, in the discharge of the
18duties of his or her public office or employment, accepted or gave
19or offered to accept or give any bribe, embezzled public money,
20or was guilty of extortion.
21(8) Any person who
knowingly furnishes or gives away
22phencyclidine.
23(9) Any person who intentionally inflicted great bodily injury
24in the commission of arson under subdivision (a) of Section 451
25or who intentionally set fire to, burned, or caused the burning of,
26an inhabited structure or inhabited property in violation of
27subdivision (b) of Section 451.
28(10) Any person who, in the commission of a felony, inflicts
29great bodily injury or causes the death of a human being by the
30discharge of a firearm from or at an occupied motor vehicle
31proceeding on a public street or highway.
32(11) Any person who possesses a short-barreled rifle or a
33short-barreled shotgun under Section 33215, a machinegun under
34Section 32625, or a silencer under Section 33410.
35(12) Any person who is
convicted of violating Section 8101 of
36the Welfare and Institutions Code.
37(13) Any person who is described in subdivision (b) or (c) of
38Section 27590.
39(f) When probation is granted in a case which comes within
40subdivision (e), the court shall specify on the record and shall enter
P16 1on the minutes the circumstances indicating that the interests of
2justice would best be served by that disposition.
3(g) If a person is not eligible for probation, the judge shall refer
4the matter to the probation officer for an investigation of the facts
5relevant to determination of the amount of a restitution fine
6pursuant to subdivision (b) of Section 1202.4 in all cases where
7the determination is applicable. The judge, in his or her discretion,
8may direct the probation officer to investigate all facts relevant to
9the sentencing of the
person. Upon that referral, the probation
10officer shall immediately investigate the circumstances surrounding
11the crime and the prior record and history of the person and make
12a written report to the court of his or her findings. The findings
13shall include a recommendation of the amount of the restitution
14fine as provided in subdivision (b) of Section 1202.4.
15(h) If a defendant is convicted of a felony and a probation report
16is prepared pursuant to subdivision (b) or (g), the probation officer
17may obtain and include in the report a statement of the comments
18of the victim concerning the offense. The court may direct the
19probation officer not to obtain a statement if the victim has in fact
20testified at any of the court proceedings concerning the offense.
21(i) A probationer shall not be released to enter another state
22unless his or her case has been referred to the Administrator of
the
23Interstate Probation and Parole Compacts, pursuant to the Uniform
24Act for Out-of-State Probationer or Parolee Supervision (Article
253 (commencing with Section 11175) of Chapter 2 of Title 1 of Part
264) and the probationer has reimbursed the county that has
27jurisdiction over his or her probation case the reasonable costs of
28processing his or her request for interstate compact supervision.
29The amount and method of reimbursement shall be in accordance
30with Section 1203.1b.
31(j) In any court where a county financial evaluation officer is
32available, in addition to referring the matter to the probation officer,
33the court may order the defendant to appear before the county
34financial evaluation officer for a financial evaluation of the
35defendant’s ability to pay restitution, in which case the county
36financial evaluation officer shall report his or her findings regarding
37restitution and other court-related costs to the probation officer on
38the question
of the defendant’s ability to pay those costs.
39Any order made pursuant to this subdivision may be enforced
40as a violation of the terms and conditions of probation upon willful
P17 1failure to pay and at the discretion of the court, may be enforced
2in the same manner as a judgment in a civil action, if any balance
3remains unpaid at the end of the defendant’s probationary period.
4(k) Probation shall not be granted to, nor shall the execution of,
5or imposition of sentence be suspended for, any person who is
6convicted of a violent felony, as defined in subdivision (c) of
7Section 667.5, or a serious felony, as defined in subdivision (c) of
8Section 1192.7, and who was on probation for a felony offense at
9the time of the commission of the new felony offense.
Section 1209.5 of the Penal Code is amended to read:
(a) Notwithstanding any other law, a personbegin delete described begin insert convicted of an
12in paragraph (1), (2), or (3) of subdivision (b)end delete
13infractionend insert may, upon a showing that payment of the totalbegin delete or fine amount would pose a hardship on the defendant or
14modifiedend delete
15his or her family, be sentenced to perform community service in
16lieu of the totalbegin delete or modifiedend delete fine amount that would otherwise be
17imposed. The
defendant shall perform community service
18according to the schedule set forth in subdivisionbegin delete (d)end deletebegin insert (c)end insert in the
19defendant’s county of choice.
20(b) Subdivision (a) shall apply to a person described by any of
21the following:
22(1) Convicted of an infraction.
end delete
23(2) Convicted of a misdemeanor for a failure to appear or to
24pay bail pursuant to subdivision (a) or (b) of Section 40508 of the
25Vehicle Code or Section 853.7 of this code.
26(3) Upon whom a civil assessment has been imposed for a failure
27to appear in court or to pay a fine pursuant to Section 1214.1.
28(c)
end delete29begin insert(b)end insert For the purposes of this section, the following shall apply:
30(1) “Total fine” means the base fine and all assessments,
31including civil assessments, penalties, and additional moneys to
32be paid by the defendant.
33(2) If the court orders the defendant to perform community
34service pursuant to this section in lieu of part or all of the total fine
35that would otherwise be imposed, the performance of that
36community service work is in lieu of the total fine, or that
37percentage of the total fine specified by the court. The court shall
38not order the defendant to perform community service in lieu of
39the base fine and still require the
defendant to pay any assessments,
40penalties, or additional moneys.
P18 1(d)
end delete
2begin insert(c)end insert A defendant sentenced to perform community service
3
pursuant to this section shall perform the number of hours specified
4as follows:
5(1) For a total fine amount up to one thousand dollars ($1,000),
6four hours of community service.
7(2) For a total fine amount of one thousand one dollars ($1,001)
8to five thousand dollars ($5,000), eight hours of community service.
9(3) For a total fine amount of five thousand one dollars ($5,001)
10or more, 15 hours of community service.
11(e)
end delete
12begin insert(d)end insert For purposes of this section, the court shall determine that
13paying the totalbegin delete or a modifiedend delete fine is a hardship if the defendant
14falls within any of the categories described in subdivision (a) of
15Section 68632 of the Government Code.
16(f) The court may delegate to the clerk the authority to grant a
17defendant’s request for community service under subdivision (d)
18if the defendant meets the eligibility and application requirements
19for a fee waiver under Section 68632 of the Government Code.
20The court shall not delegate to the clerk the authority to deny an
21application for community service. If the court delegates its
22authority, the court shall follow the processing and determination
23procedures for fee waivers set forth in Sections 68633 and 68634
24of the Government Code in determining the defendant’s eligibility
25for community service.
Section 1214.1 of the Penal Code is amended to read:
(a) (1) In addition to any other penalty in an infraction,
28misdemeanor, or felony case, the court may waive or impose upon
29a particular defendant a civil assessment of no less than ten dollars
30($10), but no greater than three hundred dollars ($300), if that
31defendant fails, after notice and without good cause, to appear in
32court for any proceeding authorized by law, fails to pay all or any
33portion of a finebegin insert within the timeend insert ordered by the court, or fails to
34pay an installment of bail as agreed to under Section 40510.5 of
35the Vehicle Code. The amount of the assessment shall be based
36on that
defendant’s ability to paybegin delete and set according to a schedule begin insert
as determined by the courtend insert. This
37adopted by the Judicial Councilend delete
38assessment shall be deposited in the Trial Court Trust Fund, as
39provided in Section 68085.1 of the Government Code. A civil
P19 1assessment shall not be imposed for an infraction violation in which
2the defendant was not the driver of the vehicle.
3(2) The court may determine that a defendant does not have the
4ability to pay the assessment if the defendant demonstrates that he
5or she falls within one of the categories described in subdivision
6(a) of Section 68632 of the Government Code.
7(b) The assessment imposed under subdivision (a) shall not
8become effective until at least 30 calendar days after the court
9mails a warning notice to the defendant by first-class mail to the
10address shown on the notice to appear or to
the defendant’s last
11known address. The court shall vacate the assessment if the
12defendant appears within the time specified in the notice and shows
13good cause for the failure to appear or for the failure to pay a fine
14or installment of bail. The court also shall vacate the assessment
15if the defendant appears beyond the time specified in the notice
16andbegin delete provides a sworn statement under penalty of perjuryend deletebegin insert the court
17determinesend insert that the notice was not in fact received because the
18defendant is homeless or does not have a fixed address. Ability to
19post bail or to pay the fine or civil assessment is not a prerequisite
20to filing a request that the court vacate the assessment. Imposition
21begin insert
or collectionend insert of a civil assessment shall not preclude a defendant
22from scheduling a court hearing on the underlying charge.
23(c) If a civil assessment is imposed under this section, a bench
24warrant or warrant of arrest shall not be issued with respect to the
25failure to appear at the proceeding for which the assessment is
26imposed or the failure to pay the fine or installment of bail. An
27outstanding, unserved bench warrant or warrant of arrest for a
28failure to appear or for a failure to pay a fine or installment of bail
29shall be recalled prior to the subsequent imposition of a civil
30assessment.
31(d) The assessment imposed under subdivision (a) shall be
32subject to the due process requirements governing defense and
33collection of civil
money judgments generally.begin delete The court shall not
34limit the grounds for good cause for failure to appear. The court
35shall waive the civil assessment when the defendant meets the
36good cause standard for vacating a civil assessment.end delete
37(e) The court shall grant a defendant’s request to vacate the civil
38assessment for good cause for the inability to pay if the defendant
39meets the eligibility and application requirements for a fee waiver
40under subdivision (a) of Section 68632 of the Government Code
P20 1as determined under Sections 68633 and 68634 of the Government
2Code.
3(f)
end delete
4begin insert(end insertbegin inserte)end insert Each court and county shall maintain the collection program
5that was in effect on July 1, 2005, unless otherwise agreed to by
6the court and county. If a court and a county do not agree on a plan
7for the collection of civil assessments imposed pursuant to this
8section, or any other collections under Section 1463.010, after the
9implementation of Sections 68085.6 and 68085.7 of the
10Government Code, the court or the county may request arbitration
11by a third party mutually agreed upon by the Administrative
12Director of the Courts and the California State Association of
13Counties.
Section 40509 of the Vehicle Code is amended to read:
(a) Except as required under subdivision (c) of Section
1640509.5, if any person has violated a written promise to appear or
17a lawfully granted continuance of his or her promise to appear in
18court or before the person authorized to receive a deposit of bail,
19or violated an order to appear in court, including, but not limited
20to, a written notice to appear issued in accordance with Section
2140518, the magistrate or clerk of the court may give notice of the
22failure to appear to the department for any violation of this code,
23or any violation that can be heard by a juvenile traffic hearing
24referee pursuant to Section 256 of the Welfare and Institutions
25Code, or any violation of any other statute relating to the safe
26operation
of a vehicle, except violations not required to be reported
27pursuant to paragraphs (1), (2), (3), (6), and (7) of subdivision (b)
28of Section 1803. If thereafter the case in which the promise was
29given is adjudicated or the person who has violated the court order
30appears in court or otherwise satisfies the order of the court, the
31magistrate or clerk of the court hearing the case shall sign and file
32with the department a certificate to that effect.
33(b) begin delete(1)end deletebegin delete end deleteIf any person has willfully failed to pay a lawfully
34imposed fine within the time authorized by the court or to pay a
35fine pursuant to subdivision (a) of Section 42003, the magistrate
36or clerk of the court may give notice of the fact to
the department
37for any violation, except violations not required to be reported
38pursuant to paragraphs (1), (2), (3), (6), and (7) of subdivision (b)
39of Section 1803. If thereafter the fine is fully paid,begin delete an agreement the magistrate or clerk of the court shall issue
40is signed to pay the fine or fee in installments, or an agreement is
P21 1signed to perform community service pursuant to Section 1209.5
2of the Penal Code,end delete
3and file with the department a certificate showing that the fine has
4beenbegin delete paid or satisfied pursuant to Section 1209.5 of the Penal Code, begin insert paid.end insert
The court shall not require the payment of bail, the
5or an agreement has been signed, and request that the license hold
6be lifted.end delete
7fine, or a civil assessment before the person may request that the
8court vacate a civil assessment imposed under Section 1214.1.
9(2) If a person fails to pay an outstanding fine or fee in
10installments or to perform community service consistent with the
11terms of the signed agreement, the court may give notice of the
12fact to the department.
13(c) (1) Notwithstanding subdivisions (a) and (b), the court may
14notify the department of the total amount of bail, fines,
15assessments, and fees authorized or required by this code, including
16Section
40508.5, which are unpaid by any person.
17(2) Once a court has established the amount of bail, fines,
18assessments, and fees, and notified the departmentbegin insert of the amountend insert,
19the court shall not further enhance or modify that amount.
20(3) This subdivision applies only to violations of this code that
21do not require a mandatory court appearance, are not contested by
22the defendant, and do not require proof of correction certified by
23the court.
24(d) With respect to a violation of this code, this section is
25applicable to any court which has not elected to be subject to the
26notice requirements of subdivision (b) of Section 40509.5.
27(e) Any violation subject to Section 40001, which is the
28responsibility of the owner of the vehicle, shall not be reported
29under this section.
Section 40509.5 of the Vehicle Code is amended to
31read:
(a) Except as required under subdivision (c), if, with
33respect to an offense described in subdivision (e), a person has
34violated his or her written promise to appear or a lawfully granted
35continuance of his or her promise to appear in court or before the
36person authorized to receive a deposit of bail, or violated an order
37to appear in court, including, but not limited to, a written notice
38to appear issued in accordance with Section 40518, the magistrate
39or clerk of the court may give notice of the failure to appear to the
40department for a violation of this code, a violation that can be
P22 1heard by a juvenile traffic hearing referee pursuant to Section 256
2of the Welfare and Institutions Code, or a violation of any
other
3statute relating to the safe operation of a vehicle, except violations
4
not required to be reported pursuant to paragraphs (1), (2), (3), (6),
5and (7) of subdivision (b) of Section 1803. If thereafter the case
6in which the promise was given is adjudicated or the person who
7has violated the court order appears in court and satisfies the order
8of the court, the magistrate or clerk of the court hearing the case
9shall sign and file with the department a certificate to that effect.
10(b) begin delete(1)end deletebegin delete end deleteIf, with respect to an offense described in subdivision
11(e), a person has willfully failed to pay a lawfully imposed fine,
12or bail in installments as agreed to under Section 40510.5, within
13the time authorized by the court or to pay a fine pursuant to
14subdivision
(a) of Section 42003, the magistrate or clerk of the
15court may give notice of the fact to the department for a violation,
16except violations not required to be reported pursuant to paragraphs
17(1), (2), (3), (6), and (7) of subdivision (b) of Section 1803. If
18thereafter,begin delete (1)end delete the fine or bail is fully paid,begin delete (2) an agreement is the magistrate or clerk of the
19signed to pay the fine, fee, or bail in installments, or (3) an
20agreement is signed to perform community service pursuant to
21Section 1209.5 of the Penal Code,end delete
22court shall issue and file with the department a certificate showing
23that the fine or bail has beenbegin delete paid, or that it has been or will be
24satisfied by
the performance of community service pursuant to
25Section 1209.5 of the Penal Code, and request that the license hold
26be lifted.end delete
27the payment of the fine or civil assessment amount, before a person
28may request the court to vacate a civil assessment imposed under
29Section 1214.1.
30(2) If a person fails to pay an outstanding fine or fee in
31installments or to perform community service consistent with the
32terms of the signed agreement, the court may give notice of the
33fact to the department.
34(c) If a person charged with a violation of Section 23152 or
3523153, or Section 191.5 of the Penal Code, or subdivision (a) of
36Section 192.5 of the Penal Code has violated a lawfully granted
37continuance of his or her promise to appear in court or is released
38from custody on his or her own recognizance and fails to appear
39in court or before the person authorized to receive a deposit of
40bail, or violated an order to appear in court, the magistrate or clerk
P23 1of the court shall give notice to the department of the failure to
2appear. If thereafter the case in which the notice was given is
3adjudicated or the person who has violated the court order appears
4in court or otherwise satisfies the order of the court, the magistrate
5or clerk of the court hearing the case shall prepare and forward to
6the department a certificate to that effect.
7(d) Except as required under subdivision (c), the court shall mail
8a notice to the defendant by first-class mail at the address shown
9on the notice to appear, at least 30 days before sending a notice to
10the department under this section.
11(e) If the court notifies the department of a failure to appear, or
12pay a fine or bailbegin delete, or perform community serviceend delete pursuant to
13subdivision (a) or (b), no arrest warrant shall be issued for an
14alleged violation of subdivision (a) or (b) of Section 40508, unless
15one of the following criteria is met:
16(1) The alleged underlying offense is a misdemeanor or felony.
17(2) The alleged underlying offense is a violation of any provision
18of Division 12 (commencing with Section 24000), Division 13
19(commencing with Section 29000), or Division 15 (commencing
20with Section 35000), required to be reported pursuant to Section
211803.
22(3) The driver’s record does not show that the defendant has a
23valid California driver’s license.
24(4) The driver’s record shows an unresolved charge that the
25defendant is in violation of his or her written promise to appear
26for one or more other alleged violations of the law.
27(f) Except as required under subdivision (c), in addition to the
28proceedings described in this section, the court may elect to notify
29the department pursuant to subdivision (c) of
Section 40509.
30(g) This section is applicable to courts that have elected to
31provide notice pursuant to subdivision (b). The method of
32commencing or terminating an election to proceed under this
33section shall be prescribed by the department.
34(h) A violation subject to Section 40001, that is the
35responsibility of the owner of the vehicle, shall not be reported
36under this section.
Section 42003 of the Vehicle Code is amended to read:
(a) A judgment that a person convicted of an infraction
39be punished by a fine may also provide for the payment to be made
40within a specified time or in specified installments. A judgment
P24 1granting a defendant time to pay the fine shall order that if the
2defendant fails to pay the fine or any installment thereof on the
3date that it is due, he or she shall appear in court on that date for
4further proceedings. Willful violation of the order is punishable
5as contempt.
6(b) A judgment that a person convicted of any other violation
7of this code be punished by a fine may also order, adjudge, and
8decree that the person be imprisoned until the fine is
satisfied. In
9all of these cases, the judgment shall specify the extent of the
10
imprisonment which shall not exceed one day for every thirty
11dollars ($30) of the fine, nor extend in this case beyond the term
12for which the defendant might be sentenced to imprisonment for
13the offense of which he or she was convicted.
14(c) (1) In any case when a person appears before a traffic
15referee, commissioner, or judge of the superior court for
16adjudication of a violation of this code or any other infraction
17violation, the court, upon request of the defendant, shall consider
18the defendant’s ability to pay the fine. Consideration of a
19defendant’s ability to pay the fine may include his or her future
20earning capacity. A defendant shall bear the burden of
21demonstrating lack of his or her ability to pay the fine. Express
22findings by the court as to the factors bearing on the amount of
23the fine shall not
be required. The reasonable cost of these services
24and of probation shall not exceed the amount determined to be the
25actual average cost thereof. The court shall order the defendant to
26appear before a county officer designated by the court to make an
27inquiry into the ability of the defendant to pay all or a portion of
28those costs or the court, traffic referee, or commissioner may make
29this determination at a hearing. At that hearing, the defendant shall
30be entitled to have, but shall not be limited to, the opportunity to
31be heard in person, to present witnesses and other documentary
32evidence, to confront and cross-examine adverse witnesses, to
33disclosure of the evidence against him or her, and to a written
34statement of the findings of the court or the county officer. If the
35court determines that the defendant has the ability to pay all or
36part of the costs, the court shall set the amount to be reimbursed
37and
order the defendant to pay that sum to the county in the manner
38in which the court believes reasonable and compatible with the
39defendant’s financial ability; or, with the consent of a defendant
40who is placed on probation, the court shall order the probation
P25 1officer to set the amount of payment, which shall not exceed the
2
maximum amount set by the court, and the manner in which the
3payment shall be made to the county. In making a determination
4of whether a defendant has the ability to pay, the court shall take
5into account the amount of any fine imposed upon the defendant
6and any amount the defendant has been ordered to pay in
7restitution.
8(2) The court may hold additional hearings during the
9probationary period. If practicable, the court or the probation officer
10shall order payments to be made on a monthly basis. Execution
11may be issued on the order in the same manner as a judgment in
12a civil action. The order to pay all or part of the costs shall not be
13enforced by contempt.
14(3) A payment schedule for reimbursement of the costs of
15presentence investigation based on income shall
be developed by
16the probation department of each county and approved by the
17presiding judge of the superior court.
18(d) Notwithstanding paragraph (1) of subdivision (c), the court
19may conclusively presume that a defendant does not have the
20ability to pay the fine if the defendant demonstrates that he or she
21falls within a category described in subdivision (a) of Section
2268632 of the Government Code.
23(e) The court shall advise the defendant of the right to a
24determination of the ability to pay pursuant to subdivision (c) or
25(d) at the time of rendering judgment.
26(f) The term “ability to pay” means the overall capability of the
27defendant to reimburse the costs, or a portion of the costs, of
28conducting the
presentence investigation, preparing the presentence
29report, and probation, and includes, but is not limited to, all of the
30following regarding the defendant:
31(1) Present financial position.
32(2) Reasonably discernible future financial position. In no event
33shall the court consider a period of more than six months from the
34date of the hearing for purposes of determining reasonably
35discernible future financial position.
36(3) Likelihood that the defendant will be able to obtain
37employment within the six-month period from the date of the
38hearing.
39(4) Any other factors that may bear upon the defendant’s
40financial capability to reimburse the county for the
costs.
P26 1(g) At any time during the pendency of the judgment rendered
2according to the terms of this section, a defendant against whom
3a judgment has been rendered may petition the rendering court to
4
modify or vacate its previous judgment on the grounds of a change
5of circumstances with regard to the defendant’s ability to pay the
6judgment. The court shall advise the defendant of this right at the
7time of rendering of the judgment.
No reimbursement is required by this act pursuant to
9Section 6 of Article XIII B of the California Constitution for certain
10costs that may be incurred by a local agency or school district
11because, in that regard, this act creates a new crime or infraction,
12eliminates a crime or infraction, or changes the penalty for a crime
13or infraction, within the meaning of Section 17556 of the
14Government Code, or changes the definition of a crime within the
15meaning of Section 6 of Article XIII B of the California
16Constitution.
17However, if the Commission on State Mandates determines that
18this act contains other costs
mandated by the state, reimbursement
19to local agencies and school districts for those costs shall be made
20pursuant to Part 7 (commencing with Section 17500) of Division
214 of Title 2 of the Government Code.
O
96