Amended in Senate May 8, 2013

Amended in Senate April 1, 2013

Senate Bill No. 419

Introduced by Senator Block

February 21, 2013

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

LEGISLATIVE COUNSEL’S DIGEST

SB 419, as amended, Block. Supervised persons: flash incarceration.

(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.

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 begin insert court-ordered end insert probation or mandatory supervision.

(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.

This bill begin delete would require, end delete begin insert would, until January 1, 2018, require the court, in any case where the court grants probation or imposes a sentence that includes mandatory supervision, to authorize the agency responsible for that probation or mandatory supervision to use flash incarceration for any violation of the conditions of that probation or mandatory supervision if, at the time of granting probation or ordering mandatory supervision, the court obtains from the defendant a waiver to a court hearing end insert prior to the imposition of a period of flash begin delete 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 delete begin insert incarceration. The bill would exempt from the imposition of flash incarceration under these circumstances any defendant convicted of a nonviolent drug possession offense who receives probation. end insert

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

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

SECTION 1.  

Section 1203.2 of the Penal Code is amended to
read:

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 begin insert on a person end insert intermediate sanctions, including
flash incarceration, begin delete to persons supervised on parole pursuant to
Section 3008.08, probation, mandatory supervision, or postrelease
community supervision pursuant to Part 3 (commencing with
Section 3450) of Title 2.05. end delete begin insert if the person is subject to any of the
following: end insert

begin insert

(1) Parole supervision pursuant to Section 3000.08.

end insert begin insert

(2) Postrelease community supervision pursuant to Part 3
(commencing with Section 3450) of Title 2.05.

end insert begin insert

(3) Court-ordered probation.

end insert begin insert

(4) Mandatory supervision pursuant to paragraph (5) of
subdivision (h) of Section 1170.

end insert

SEC. 2.  

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

begin delete

1203.35.  

(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

end delete

begin insert

begin insert 1203.35. end insert   

end insert begin insert

(a) In any case where the court grants probation or
imposes a sentence that includes mandatory supervision pursuant
to paragraph (5) of subdivision (h) of Section 1170, the court shall
authorize the agency responsible for that probation or mandatory
supervision to use flash incarceration for any violation of the
conditions of probation or mandatory supervision if, at the time
of granting probation or ordering mandatory supervision, the
court obtains from the defendant a waiver to a court hearing prior
to the imposition of a period of flash incarceration.

end insert

begin insert (b) end insert begin insert   end insert begin insert For end insert 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.

begin insert

(c) This section shall not apply to any defendant sentenced
pursuant to Section 1210.1.

end insert begin insert

(d) This section shall remain in effect only until January 1, 2018,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2018, deletes or extends that date.

end insert