Amended in Senate April 1, 2013

Senate Bill No. 419

Introduced by Senator Block

February 21, 2013

An act to amend begin delete Section 3454 of end delete begin insert Sections 1203.2 of, and to add Section 1203.35 to, end insert the Penal Code, relating to begin delete postrelease community supervision. end delete begin insert supervised persons. end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 419, as amended, Block. begin delete Postrelease community supervision: flash incarceration. end delete begin insert Supervised persons: flash incarceration. end insert

begin insert

(1) Existing law authorizes a probation officer, parole officer, or peace officer, at any time during the period of supervision of a person released on probation, conditional sentence, summary probation, or mandatory supervision, or when that person is subject to revocation of postrelease community supervision or revocation of parole supervision, to, without warrant or other process and at any time until the final disposition of the case, rearrest the supervised person and bring him or her before the court or the court may, in its discretion, issue a warrant for that person’s rearrest. Existing law additionally authorizes, upon rearrest or upon the issuance of a warrant for rearrest, the court to revoke and terminate the supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe that the person has, among other things, violated any of the conditions of his or her supervision. Existing law specifies that nothing in those provisions affects the authority of the supervising agency to impose intermediate sanctions, including flash incarceration, to persons supervised on parole or postrelease community supervision, as specified.

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This bill would specify that nothing in the above provisions affects the authority of the supervising agency to impose intermediate sanctions, including flash incarceration, not only to persons supervised on parole or postrelease community supervision, as specified, but also to persons on probation or mandatory supervision.

end insert begin insert

(2) Existing law requires postrelease community supervision to include specified conditions, including, among other things, that the person obey all laws and waive any right to a court hearing prior to the imposition of a period of flash incarceration in a county jail of not more than 10 consecutive days for any violation of his or her postrelease supervision conditions. Existing law permits each county agency responsible for postrelease supervision to determine additional specified appropriate conditions of supervision consistent with public safety, including the use of continuous electronic monitoring, and flash incarceration in a county jail. Existing law encourages periods of flash incarceration as one method of punishment for violations of an offender’s condition of postrelease supervision.

end insert begin insert

This bill would require, prior to the imposition of a period of flash incarceration in a county jail of not more than 10 consecutive days for any violation of a person’s conditions of probation or mandatory supervision, that he or she waive any right to a court hearing. This bill would also permit each county agency responsible for probation or mandatory supervision to determine additional appropriate conditions of supervision consistent with public safety, including the use of continuous electronic monitoring, appropriate rehabilitation and treatment services, appropriate incentives, and appropriate responses to alleged violations, which may include, among other things, flash incarceration in a county jail. This bill would encourage periods of flash incarceration, as defined, as one method of punishment for violations of an offender’s condition of probation or mandatory supervision.

end insert begin delete

Under existing law, the Postrelease Community Supervision Act of 2011, certain felons, upon release from prison, are subject to community supervision. Existing law requires that each supervising county agency, as established by the county’s board of supervisors, establish a review process for assessing and refining a person’s program of postrelease supervision and imposes specified requirements that additional postrelease supervision conditions are required to meet. Additionally, existing law permits each county agency responsible for postrelease supervision to determine additional appropriate conditions of supervision, and also to determine and order appropriate responses to alleged violations, including, among other things, flash incarceration in a county jail.

end delete begin delete

This bill would make technical, nonsubstantive changes to the latter provision.

end delete

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 1203.2 of the end insert begin insert Penal Code end insert begin insert is amended to
read: end insert

1203.2.  

(a) At any time during the period of supervision of a
person (1) released on probation under the care of a probation
officer pursuant to this chapter, (2) released on conditional sentence
or summary probation not under the care of a probation officer,
(3) placed on mandatory supervision pursuant to subparagraph (B)
of paragraph (5) of subdivision (h) of Section 1170, (4) subject to
revocation of postrelease community supervision pursuant to
Section 3455, or (5) subject to revocation of parole supervision
pursuant to Section 3000.08, if any probation officer, parole officer,
or peace officer has probable cause to believe that the supervised
person is violating any term or condition of his or her supervision,
the officer may, without warrant or other process and at any time
until the final disposition of the case, rearrest the supervised person
and bring him or her before the court or the court may, in its
discretion, issue a warrant for his or her rearrest. Upon such
rearrest, or upon the issuance of a warrant for rearrest the court
may revoke and terminate the supervision of the person if the
interests of justice so require and the court, in its judgment, has
reason to believe from the report of the probation or parole officer
or otherwise that the person has violated any of the conditions of
his or her supervision, 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 offenses. However, the court shall not terminate parole
pursuant to this section. Supervision shall not be revoked for failure
of a person to make restitution imposed as a condition of
supervision unless the court determines that the defendant has
willfully failed to pay and has the ability to pay. Restitution shall
be consistent with a person’s ability to pay. The revocation,
summary or otherwise, shall serve to toll the running of the period
of supervision.

(b) (1) Upon its own motion or upon the petition of the
supervised person, the probation or parole officer or the district
attorney of the county in which the person is supervised, the court
may modify, revoke, or terminate supervision of the person
pursuant to this subdivision, except that the court shall not
terminate parole pursuant to this section. A person supervised on
parole or postrelease community supervision pursuant to Section
3455 may not petition the court pursuant to this section for early
release from supervision, and a petition under this section shall
not be filed solely for the purpose of modifying parole. Nothing
in this section shall prohibit the court from modifying parole when
acting on its own motion or a petition to revoke parole. The court
shall give notice of its motion, and the probation or parole officer
or the district attorney shall give notice of his or her petition to the
supervised person, his or her attorney of record, and the district
attorney or the probation or parole officer, as the case may be. The
supervised person shall give notice of his or her petition to the
probation or parole officer and notice of any motion or petition
shall be given to the district attorney in all cases. The court shall
refer its motion or the petition to the probation or parole officer.
After the receipt of a written report from the probation or parole
officer, the court shall read and consider the report and either its
motion or the petition and may modify, revoke, or terminate the
supervision of the supervised person upon the grounds set forth in
subdivision (a) if the interests of justice so require.

(2) The notice required by this subdivision may be given to the
supervised person upon his or her first court appearance in the
proceeding. Upon the agreement by the supervised person in
writing to the specific terms of a modification or termination of a
specific term of supervision, any requirement that the supervised
person make a personal appearance in court for the purpose of a
modification or termination shall be waived. Prior to the
modification or termination and waiver of appearance, the
supervised person shall be informed of his or her right to consult
with counsel, and if indigent the right to secure court appointed
counsel. If the supervised person waives his or her right to counsel
a written waiver shall be required. If the supervised person consults
with counsel and thereafter agrees to a modification, revocation,
or termination of the term of supervision and waiver of personal
appearance, the agreement shall be signed by counsel showing
approval for the modification or termination and waiver.

(c) Upon any revocation and termination of probation the court
may, if the sentence has been suspended, pronounce judgment for
any time within the longest period for which the person might have
been sentenced. However, if the judgment has been pronounced
and the execution thereof has been suspended, the court may revoke
the suspension and order that the judgment shall be in full force
and effect. In either case, the person shall be delivered over to the
proper officer to serve his or her sentence, less any credits herein
provided for.

(d) In any case of revocation and termination of probation,
including, but not limited to, cases in which the judgment has been
pronounced and the execution thereof has been suspended, upon
the revocation and termination, the court may, in lieu of any other
sentence, commit the person to the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities if he or she is
otherwise eligible for such commitment.

(e) If probation has been revoked before the judgment has been
pronounced, the order revoking probation may be set aside for
good cause upon motion made before pronouncement of judgment.
If probation has been revoked after the judgment has been
pronounced, the judgment and the order which revoked the
probation may be set aside for good cause within 30 days after the
court has notice that the execution of the sentence has commenced.
If an order setting aside the judgment, the revocation of probation,
or both is made after the expiration of the probationary period, the
court may again place the person on probation for that period and
with those terms and conditions as it could have done immediately
following conviction.

(f) As used in this section, the following definitions shall apply:

(1) “Court” means a judge, magistrate, or revocation hearing
officer described in Section 71622.5 of the Government Code.

(2) “Probation officer” means a probation officer as described
in Section 1203 or an officer of the agency designated by the board
of supervisors of a county to implement postrelease community
supervision pursuant to Section 3451.

(3) “Supervised person” means a person who satisfies any of
the following:

(A) He or she is released on probation subject to the supervision
of a probation officer.

(B) He or she is released on conditional sentence or summary
probation not under the care of a probation officer.

(C) He or she is subject to mandatory supervision pursuant to
subparagraph (B) of paragraph (5) of subdivision (h) of Section
1170.

(D) He or she is subject to revocation of postrelease community
supervision pursuant to Section 3455.

(E) He or she is subject to revocation of parole pursuant to
Section 3000.08.

(g) Nothing in this section affects the authority of the supervising
agency to impose intermediate sanctions, including flash
incarceration, to persons supervised on parole pursuant to Section
begin delete 3000.8 end delete begin insert 3008.08, probation, mandatory supervision, end insert or postrelease
community supervision pursuant to Part 3 (commencing with
Section 3450) of Title 2.05.

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begin insert SEC. 2. end insert   

end insert

begin insert Section 1203.35 is added to the end insert begin insert Penal Code end insert begin insert ,
immediately following Section 1203.3, to read: end insert

begin insert

begin insert 1203.35. end insert   

(a) A person subject to probation or mandatory
supervision shall waive any right to a court hearing prior to the
imposition of a period of flash incarceration in a county jail of not
more than 10 consecutive days for any violation of his or her
conditions of probation or mandatory supervision.

(b) Each county agency responsible for probation or mandatory
supervision may determine and order additional appropriate
conditions of supervision consistent with public safety, including
the use of continuous electronic monitoring as defined in Section
1210.7, appropriate rehabilitation and treatment services,
appropriate incentives, and appropriate responses to alleged
violations, including, but not limited to, immediate, structured,
and intermediate sanctions up to and including referral to a reentry
court pursuant to Section 3015, or flash incarceration in a county
jail. Periods of flash incarceration are encouraged as one method
of punishment for violations of an offender’s condition of probation
or mandatory supervision.

(c) For purposes of this chapter, “flash incarceration” is a
period of detention in the county jail due to a violation of an
offender’s conditions of probation or mandatory supervision. The
length of the detention period may range between one and 10
consecutive days. Flash incarceration is a tool that may be used
by each county agency responsible for probation or mandatory
supervision. Shorter, but if necessary more frequent, periods of
detention for violations of an offender’s probation or mandatory
supervision shall appropriately punish an offender while preventing
the disruption in a work or home establishment that typically arises
from longer term revocations.

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begin delete

SECTION 1.  

Section 3454 of the Penal Code is amended to
read:

3454.  

(a) Each supervising county agency, as established by
the county board of supervisors pursuant to subdivision (a) of
Section 3451, shall establish a review process for assessing and
refining a person’s program of postrelease supervision. Any
additional postrelease supervision conditions shall be reasonably
related to the underlying offense for which the offender spent time
in prison, or to the offender’s risk of recidivism, and the offender’s
criminal history, and be otherwise consistent with law.

(b) Each county agency responsible for postrelease supervision,
as established by the county board of supervisors pursuant to
subdivision (a) of Section 3451, may determine additional
appropriate conditions of supervision listed in Section 3453
consistent with public safety, including the use of continuous
electronic monitoring as defined in Section 1210.7, order the
provision of appropriate rehabilitation and treatment services,
determine appropriate incentives, and determine and order
appropriate responses to alleged violations that may include, but
shall not be limited to, immediate, structured, and intermediate
sanctions up to and including referral to a reentry court pursuant
to Section 3015, or flash incarceration in a county jail. Periods of
flash incarceration are encouraged as one method of punishment
for violations of an offender’s condition of postrelease supervision.

(c) “Flash incarceration” is a period of detention in county jail
due to a violation of an offender’s conditions of postrelease
supervision. The length of the detention period can range between
one and 10 consecutive days. Flash incarceration is a tool that may
be used by each county agency responsible for postrelease
supervision. Shorter, but if necessary more frequent, periods of
detention for violations of an offender’s postrelease supervision
conditions shall appropriately punish an offender while preventing
the disruption in a work or home establishment that typically arises
from longer term revocations.

end delete