BILL NUMBER: SB 514 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 23, 2013
INTRODUCED BY Committee on Public Safety (Senators Hancock (Chair),
Anderson, Block, De León, Knight, Liu, and Steinberg)
FEBRUARY 21, 2013
An act to amend Sections 289.6, 781, 1203.097, 1203.47, 1233.1,
and 1305.4 , 2900.5, 13 522, and
13523 of , and to add Sections 13507.1 and 13526.3 to,
the Penal Code, and to amend Section 726 of the Welfare and
Institutions Code, relating to crimes.
LEGISLATIVE COUNSEL'S DIGEST
SB 514, as amended, Committee on Public Safety. Crimes.
(1) Existing law provides that anyone who is convicted of a felony
violation of specified crimes who is employed by a department,
board, or authority within the Department of Corrections and
Rehabilitation shall be terminated in accordance with the State Civil
Service Act. Existing law also provides that anyone who has been
convicted of a felony violation of specified crimes shall not be
eligible to be hired or reinstated by a department, board, or
authority within the department.
This bill would make technical, nonsubstantive changes to this
provision.
(2) Except as specified, when a public offense is committed in
part in one jurisdictional territory and in part in another,
jurisdictional territory or the acts or effects thereof constituting
or requisite to the consummation of the offense occur in 2 or more
jurisdictional territories, the jurisdiction for the offense is in
any competent court within either jurisdictional territory.
This bill would make technical, nonsubstantive changes to that
provision.
(3) Existing law requires that if a person is granted probation
for a crime in which the victim is a specified person, the terms of
probation must include, but are not limited to, a minimum period of
probation of 36 months, which may include a period of summary
probation as appropriate, and successful completion of a batterer's
program, as defined, or if none is available, another appropriate
counseling program designated by the court, as specified. Existing
law requires the court or the probation department to refer
defendants only to batterer's program that follow specified
standards, which may include, but are not limited to, lectures,
classes, group discussions, and counseling. Existing law confers upon
the probation department sole authority to approve a batterer's
program for probation, and the program must obtain only one approval
but must renew that approval annually. Existing law makes an act or
omission relating to the approval of a batterer's treatment program a
discretionary act.
This bill would make a technical, nonsubstantive change to the
latter provision.
(4) Existing law permits a specified person, upon reaching 18
years of age and by reason of the commission of a specified offense,
to petition the court to have his or her record sealed, except that,
as pertaining to any records regarding the commission of a specified
offense, it is not a requirement in granting the petition for the
person to show that he or she has not been convicted of a felony or
of any misdemeanor involving moral turpitude, or that rehabilitation
has been attained to the satisfaction of the court. Existing law
requires that upon granting the petition, all records relating to
specified violations be sealed. Existing law makes this relief
inapplicable to a person convicted of specified offenses.
This bill would make technical, nonsubstantive changes to these
provisions.
(5) Existing law requires the Director of Finance to, in
consultation with the Department of Corrections and Rehabilitation,
the Joint Legislative Budget Committee, the Chief Probation Officers
of California, and the Administrative Office of the Courts, after the
conclusion of each calendar year following the enactment of this
section, make specified calculations for that calendar year. Under
existing law, these calculations include, but are not limited to, the
cost to the state to incarcerate in prison and supervise on parole a
probationer sent to prison, and the statewide probation to prison
rate, as specified.
This bill would make a technical, nonsubstantive change to the
latter provision.
(6) Existing law permits the surety insurer, the bail agent, the
surety, or the depositor to file a motion, based upon good cause, for
an order to extend the 180-day period following forfeiture of the
undertaking of bail or the money or property deposited as bail, as
specified. Existing law permits the court, upon a hearing and a
showing of good cause, to order the period extended to a time not
exceeding 180 days from its order. Existing law permits a motion to
be filed and calendared, as specified.
This bill would make a technical, nonsubstantive change to the
latter provision.
(7) Existing law requires that in all felony and misdemeanor
convictions, either by plea or by verdict, when the defendant has
been in custody, all specified days of custody of the defendant shall
be credited upon his or her term of imprisonment, or credited to any
fine on a proportional basis, including, but not limited to, base
fines and restitution fines, which may be imposed, at the rate of not
less than $30 per day, or more, in the discretion of the court
imposing the sentence. Existing law requires that in any case where
the court has imposed both a prison or jail term and a fine, any days
to be credited to the defendant shall first be applied to the term
of imprisonment imposed, and thereafter the remaining days, if any,
shall be applied to the fine, including, but not limited to, a base
fine and a restitution fine, on a proportional basis.
This bill would delete restitution fines from the preceding
provisions, thereby prohibiting a defendant from applying any credit
earned for spending specified days in custody, jail, or prison toward
restitution fines.
(8) Existing law requires any city, county, city and county, or
district that desires to receive specified state aid to make
application to the Commission on Peace Officer Standards and Training
for the aid. That aid is paid out of the Peace Officers' Training
Fund, a continuously appropriated fund. Under existing law, the
public agencies comprising a joint powers agency may jointly exercise
any power common to the public agencies.
This bill would specify that any joint powers agency that desires
to receive specified state aid also make application to the
commission for the aid. The bill would clarify that a joint powers
agency may be paid directly from the fund, and the bill would also
make conforming changes to those provisions.
(7)
(9) Existing law permits the court, in all cases in
which a minor is adjudged a ward or dependent child of the court, to
limit the control to be exercised over the ward or dependent child by
any parent or guardian. Existing law requires the court to, in its
order, clearly and specifically set forth all those limitations, but
prohibits a ward or dependent child from being taken from the
physical custody of a parent or guardian, unless upon the hearing the
court finds one of specified facts , including, that the minor
has been tried on probation while in custody but has failed to reform
. Existing law also requires that whenever the court
specifically limits the right of the parent or guardian to make
educational or developmental services decisions for the minor,
that the court must at the same time appoint
a responsible adult to make educational or developmental services
decisions for the child until one of specified events occurs,
including, but not limited to, if the minor reaches 18 years of age,
except as specified, or is deemed by the court to be incompetent.
This bill would make technical, nonsubstantive changes to the
latter provision.
(8)
(10) This bill would provide that any section of any act
enacted by the Legislature during the 2013 calendar year that takes
effect on or before January 1, 2014, and affects any section of this
act, would prevail over this act, whether that act is enacted prior
to, or subsequent to, the enactment of this act.
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 289.6 of the Penal Code is amended to read:
289.6. (a) (1) An employee or officer of a public entity health
facility, or an employee, officer, or agent of a private person or
entity that provides a health facility or staff for a health facility
under contract with a public entity, who engages in sexual activity
with a consenting adult who is confined in a health facility is
guilty of a public offense. As used in this paragraph, "health
facility" means a health facility as defined in subdivisions (b),
(e), (g), (h), and (j) of, and subparagraph (C) of paragraph (2) of
subdivision (i) of, Section 1250 of the Health and Safety Code, in
which the victim has been confined involuntarily.
(2) An employee or officer of a public entity detention facility,
or an employee, officer, agent of a private person or entity that
provides a detention facility or staff for a detention facility, a
person or agent of a public or private entity under contract with a
detention facility, a volunteer of a private or public entity
detention facility, or a peace officer who engages in sexual activity
with a consenting adult who is confined in a detention facility is
guilty of a public offense.
(3) An employee with a department, board, or authority under the
Department of Corrections and Rehabilitation or a facility under
contract with a department, board, or authority under the Department
of Corrections and Rehabilitation, who, during the course of his or
her employment directly provides treatment, care, control, or
supervision of inmates, wards, or parolees, and who engages in sexual
activity with a consenting adult who is an inmate, ward, or parolee,
is guilty of a public offense.
(b) As used in this section, the term "public entity" means the
state, federal government, a city, a county, a city and county, a
joint county jail district, or any entity created as a result of a
joint powers agreement between two or more public entities.
(c) As used in this section, the term "detention facility" means:
(1) A prison, jail, camp, or other correctional facility used for
the confinement of adults or both adults and minors.
(2) A building or facility used for the confinement of adults or
adults and minors pursuant to a contract with a public entity.
(3) A room that is used for holding persons for interviews,
interrogations, or investigations and that is separate from a jail or
located in the administrative area of a law enforcement facility.
(4) A vehicle used to transport confined persons during their
period of confinement, including transporting a person after he or
she has been arrested but has not been booked.
(5) A court holding facility located within or adjacent to a court
building that is used for the confinement of persons for the purpose
of court appearances.
(d) As used in this section, "sexual activity" means:
(1) Sexual intercourse.
(2) Sodomy, as defined in subdivision (a) of Section 286.
(3) Oral copulation, as defined in subdivision (a) of Section
288a.
(4) Sexual penetration, as defined in subdivision (k) of Section
289.
(5) The rubbing or touching of the breasts or sexual organs of
another, or of oneself in the presence of and with knowledge of
another, with the intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of oneself or another.
(e) Consent by a confined person or parolee to sexual activity
proscribed by this section is not a defense to a criminal prosecution
for violation of this section.
(f) This section does not apply to sexual activity between
consenting adults that occurs during an overnight conjugal visit that
takes place pursuant to a court order or with the written approval
of an authorized representative of the public entity that operates or
contracts for the operation of the detention facility where the
conjugal visit takes place, to physical contact or penetration made
pursuant to a lawful search, or bona fide medical examinations or
treatments, including clinical treatments.
(g) Any violation of paragraph (1) of subdivision (a), or a
violation of paragraph (2) or (3) of subdivision (a) as described in
paragraph (5) of subdivision (d), is a misdemeanor.
(h) Any violation of paragraph (2) or (3) of subdivision (a), as
described in paragraph (1), (2), (3), or (4) of subdivision (d),
shall be punished by imprisonment in a county jail not exceeding one
year, or in the state prison, or by a fine of not more than ten
thousand dollars ($10,000) or by both that fine and imprisonment.
(i) Any person previously convicted of a violation of this section
shall, upon a subsequent violation, be guilty of a felony.
(j) Anyone who is convicted of a felony violation of this section
who is employed by a department, board, or authority within the
Department of Corrections and Rehabilitation shall be terminated in
accordance with the State Civil Service Act (Part 2 (commencing with
Section 18500) of Division 5 of Title 2 of the Government Code).
Anyone who has been convicted of a felony violation of this section
shall not be eligible to be hired or reinstated by a department,
board, or authority within the Youth and Adult Correctional Agency.
SEC. 2. Section 781 of the Penal Code is amended to read:
781. Except as provided in Section 923, when a public offense is
committed in part in one jurisdictional territory and in part in
another jurisdictional territory, or the acts or effects thereof
constituting or requisite to the consummation of the offense occur in
two or more jurisdictional territories, the jurisdiction for the
offense is in any competent court within either jurisdictional
territory.
SEC. 3. Section 1203.097 of the Penal Code is amended to read:
1203.097. (a) If a person is granted probation for a crime in
which the victim is a person defined in Section 6211 of the Family
Code, the terms of probation shall include all of the following:
(1) A minimum period of probation of 36 months, which may include
a period of summary probation as appropriate.
(2) A criminal court protective order protecting the victim from
further acts of violence, threats, stalking, sexual abuse, and
harassment, and, if appropriate, containing residence exclusion or
stay-away conditions.
(3) Notice to the victim of the disposition of the case.
(4) Booking the defendant within one week of sentencing if the
defendant has not already been booked.
(5) (A) A minimum payment by the defendant of five hundred dollars
($500) to be disbursed as specified in this paragraph. If, after a
hearing in open court, the court finds that the defendant does not
have the ability to pay, the court may reduce or waive this fee. If
the court exercises its discretion to reduce or waive the fee, it
shall state the reason on the record.
(B) Two-thirds of the moneys deposited with the county treasurer
pursuant to this section shall be retained by counties and deposited
in the domestic violence programs special fund created pursuant to
Section 18305 of the Welfare and Institutions Code, to be expended
for the purposes of Chapter 5 (commencing with Section 18290) of Part
6 of Division 9 of the Welfare and Institutions Code. The remainder
shall be transferred, once a month, to the Controller for deposit in
equal amounts in the Domestic Violence Restraining Order
Reimbursement Fund and in the Domestic Violence Training and
Education Fund, which are hereby created, in an amount equal to
one-third of funds collected during the preceding month. Moneys
deposited into these funds pursuant to this section shall be
available upon appropriation by the Legislature and shall be
distributed each fiscal year as follows:
(i) Funds from the Domestic Violence Restraining Order
Reimbursement Fund shall be distributed to local law enforcement or
other criminal justice agencies for state-mandated local costs
resulting from the notification requirements set forth in subdivision
(b) of Section 6380 of the Family Code, based on the annual
notification from the Department of Justice of the number of
restraining orders issued and registered in the state domestic
violence restraining order registry maintained by the Department of
Justice, for the development and maintenance of the domestic violence
restraining order databank system.
(ii) Funds from the Domestic Violence Training and Education Fund
shall support a statewide training and education program to increase
public awareness of domestic violence and to improve the scope and
quality of services provided to the victims of domestic violence.
Grants to support this program shall be awarded on a competitive
basis and be administered by the State Department of Public Health,
in consultation with the statewide domestic violence coalition, which
is eligible to receive funding under this section.
(6) Successful completion of a batterer's program, as defined in
subdivision (c), or if none is available, another appropriate
counseling program designated by the court, for a period not less
than one year with periodic progress reports by the program to the
court every three months or less and weekly sessions of a minimum of
two hours class time duration. The defendant shall attend consecutive
weekly sessions, unless granted an excused absence for good cause by
the program for no more than three individual sessions during the
entire program, and shall complete the program within 18 months,
unless, after a hearing, the court finds good cause to modify the
requirements of consecutive attendance or completion within 18
months.
(7) (A) (i) The court shall order the defendant to comply with all
probation requirements, including the requirements to attend
counseling, keep all program appointments, and pay program fees based
upon the ability to pay.
(ii) The terms of probation for offenders shall not be lifted
until all reasonable fees due to the counseling program have been
paid in full, but in no case shall probation be extended beyond the
term provided in subdivision (a) of Section 1203.1. If the court
finds that the defendant does not have the ability to pay the fees
based on the defendant's changed circumstances, the court may reduce
or waive the fees.
(B) Upon request by the batterer's program, the court shall
provide the defendant's arrest report, prior incidents of violence,
and treatment history to the program.
(8) The court also shall order the defendant to perform a
specified amount of appropriate community service, as designated by
the court. The defendant shall present the court with proof of
completion of community service and the court shall determine if the
community service has been satisfactorily completed. If sufficient
staff and resources are available, the community service shall be
performed under the jurisdiction of the local agency overseeing a
community service program.
(9) If the program finds that the defendant is unsuitable, the
program shall immediately contact the probation department or the
court. The probation department or court shall either recalendar the
case for hearing or refer the defendant to an appropriate alternative
batterer's program.
(10) (A) Upon recommendation of the program, a court shall require
a defendant to participate in additional sessions throughout the
probationary period, unless it finds that it is not in the interests
of justice to do so, states its reasons on the record, and enters
them into the minutes. In deciding whether the defendant would
benefit from more sessions, the court shall consider whether any of
the following conditions exists:
(i) The defendant has been violence free for a minimum of six
months.
(ii) The defendant has cooperated and participated in the batterer'
s program.
(iii) The defendant demonstrates an understanding of and practices
positive conflict resolution skills.
(iv) The defendant blames, degrades, or has committed acts that
dehumanize the victim or puts at risk the victim's safety, including,
but not limited to, molesting, stalking, striking, attacking,
threatening, sexually assaulting, or battering the victim.
(v) The defendant demonstrates an understanding that the use of
coercion or violent behavior to maintain dominance is unacceptable in
an intimate relationship.
(vi) The defendant has made threats to harm anyone in any manner.
(vii) The defendant has complied with applicable requirements
under paragraph (6) of subdivision (c) or subparagraph (C) to receive
alcohol counseling, drug counseling, or both.
(viii) The defendant demonstrates acceptance of responsibility for
the abusive behavior perpetrated against the victim.
(B) The program shall immediately report any violation of the
terms of the protective order, including any new acts of violence or
failure to comply with the program requirements, to the court, the
prosecutor, and, if formal probation has been ordered, to the
probation department. The probationer shall file proof of enrollment
in a batterer's program with the court within 30 days of conviction.
(C) Concurrent with other requirements under this section, in
addition to, and not in lieu of, the batterer's program, and unless
prohibited by the referring court, the probation department or the
court may make provisions for a defendant to use his or her resources
to enroll in a chemical dependency program or to enter voluntarily a
licensed chemical dependency recovery hospital or residential
treatment program that has a valid license issued by the state to
provide alcohol or drug services to receive program participation
credit, as determined by the court. The probation department shall
document evidence of this hospital or residential treatment
participation in the defendant's program file.
(11) The conditions of probation may include, in lieu of a fine,
but not in lieu of the fund payment required under paragraph (5), one
or more of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of five thousand dollars ($5,000).
(B) That the defendant reimburse the victim for reasonable
expenses that the court finds are the direct result of the defendant'
s offense.
For any order to pay a fine, to make payments to a battered women'
s shelter, or to pay restitution as a condition of probation under
this subdivision, the court shall make a determination of the
defendant's ability to pay. Determination of a defendant's ability to
pay may include his or her future earning capacity. A defendant
shall bear the burden of demonstrating lack of his or her ability to
pay. Express findings by the court as to the factors bearing on the
amount of the fine shall not be required. In no event shall any order
to make payments to a battered women's shelter be made if it would
impair the ability of the defendant to pay direct restitution to the
victim or court-ordered child support. When the injury to a married
person is caused, in whole or in part, by the criminal acts of his or
her spouse in violation of this section, the community property
shall not be used to discharge the liability of the offending spouse
for restitution to the injured spouse, as required by Section
1203.04, as operative on or before August 2, 1995, or Section 1202.4,
or to a shelter for costs with regard to the injured spouse, until
all separate property of the offending spouse is exhausted.
(12) If it appears to the prosecuting attorney, the court, or the
probation department that the defendant is performing
unsatisfactorily in the assigned program, is not benefiting from
counseling, or has engaged in criminal conduct, upon request of the
probation officer, the prosecuting attorney, or on its own motion,
the court, as a priority calendar item, shall hold a hearing to
determine whether further sentencing should proceed. The court may
consider factors, including, but not limited to, any violence by the
defendant against the former or a new victim while on probation and
noncompliance with any other specific condition of probation. If the
court finds that the defendant is not performing satisfactorily in
the assigned program, is not benefiting from the program, has not
complied with a condition of probation, or has engaged in criminal
conduct, the court shall terminate the defendant's participation in
the program and shall proceed with further sentencing.
(b) If a person is granted formal probation for a crime in which
the victim is a person defined in Section 6211 of the Family Code, in
addition to the terms specified in subdivision (a), all of the
following shall apply:
(1) The probation department shall make an investigation and take
into consideration the defendant's age, medical history, employment
and service records, educational background, community and family
ties, prior incidents of violence, police report, treatment history,
if any, demonstrable motivation, and other mitigating factors in
determining which batterer's program would be appropriate for the
defendant. This information shall be provided to the batterer's
program if it is requested. The probation department shall also
determine which community programs the defendant would benefit from
and which of those programs would accept the defendant. The probation
department shall report its findings and recommendations to the
court.
(2) The court shall advise the defendant that the failure to
report to the probation department for the initial investigation, as
directed by the court, or the failure to enroll in a specified
program, as directed by the court or the probation department, shall
result in possible further incarceration. The court, in the interests
of justice, may relieve the defendant from the prohibition set forth
in this subdivision based upon the defendant's mistake or excusable
neglect. Application for this relief shall be filed within 20 court
days of the missed deadline. This time limitation may not be
extended. A copy of any application for relief shall be served on the
office of the prosecuting attorney.
(3) After the court orders the defendant to a batterer's program,
the probation department shall conduct an initial assessment of the
defendant, including, but not limited to, all of the following:
(A) Social, economic, and family background.
(B) Education.
(C) Vocational achievements.
(D) Criminal history.
(E) Medical history.
(F) Substance abuse history.
(G) Consultation with the probation officer.
(H) Verbal consultation with the victim, only if the victim
desires to participate.
(I) Assessment of the future probability of the defendant
committing murder.
(4) The probation department shall attempt to notify the victim
regarding the requirements for the defendant's participation in the
batterer's program, as well as regarding available victim resources.
The victim also shall be informed that attendance in any program does
not guarantee that an abuser will not be violent.
(c) The court or the probation department shall refer defendants
only to batterer's programs that follow standards outlined in
paragraph (1), which may include, but are not limited to, lectures,
classes, group discussions, and counseling. The probation department
shall design and implement an approval and renewal process for
batterer's programs and shall solicit input from criminal justice
agencies and domestic violence victim advocacy programs.
(1) The goal of a batterer's program under this section shall be
to stop domestic violence. A batterer's program shall consist of the
following components:
(A) Strategies to hold the defendant accountable for the violence
in a relationship, including, but not limited to, providing the
defendant with a written statement that the defendant shall be held
accountable for acts or threats of domestic violence.
(B) A requirement that the defendant participate in ongoing
same-gender group sessions.
(C) An initial intake that provides written definitions to the
defendant of physical, emotional, sexual, economic, and verbal abuse,
and the techniques for stopping these types of abuse.
(D) Procedures to inform the victim regarding the requirements for
the defendant's participation in the intervention program as well as
regarding available victim resources. The victim also shall be
informed that attendance in any program does not guarantee that an
abuser will not be violent.
(E) A requirement that the defendant attend group sessions free of
chemical influence.
(F) Educational programming that examines, at a minimum, gender
roles, socialization, the nature of violence, the dynamics of power
and control, and the effects of abuse on children and others.
(G) A requirement that excludes any couple counseling or family
counseling, or both.
(H) Procedures that give the program the right to assess whether
or not the defendant would benefit from the program and to refuse to
enroll the defendant if it is determined that the defendant would not
benefit from the program, so long as the refusal is not because of
the defendant's inability to pay. If possible, the program shall
suggest an appropriate alternative program.
(I) Program staff who, to the extent possible, have specific
knowledge regarding, but not limited to, spousal abuse, child abuse,
sexual abuse, substance abuse, the dynamics of violence and abuse,
the law, and procedures of the legal system.
(J) Program staff who are encouraged to utilize the expertise,
training, and assistance of local domestic violence centers.
(K) A requirement that the defendant enter into a written
agreement with the program, which shall include an outline of the
contents of the program, the attendance requirements, the requirement
to attend group sessions free of chemical influence, and a statement
that the defendant may be removed from the program if it is
determined that the defendant is not benefiting from the program or
is disruptive to the program.
(L) A requirement that the defendant sign a confidentiality
statement prohibiting disclosure of any information obtained through
participating in the program or during group sessions regarding other
participants in the program.
(M) Program content that provides cultural and ethnic sensitivity.
(N) A requirement of a written referral from the court or
probation department prior to permitting the defendant to enroll in
the program. The written referral shall state the number of minimum
sessions required by the court.
(O) Procedures for submitting to the probation department all of
the following uniform written responses:
(i) Proof of enrollment, to be submitted to the court and the
probation department and to include the fee determined to be charged
to the defendant, based upon the ability to pay, for each session.
(ii) Periodic progress reports that include attendance, fee
payment history, and program compliance.
(iii) Final evaluation that includes the program's evaluation of
the defendant's progress, using the criteria set forth in
subparagraph (A) of paragraph (10) of subdivision (a) and
recommendation for either successful or unsuccessful termination or
continuation in the program.
(P) A sliding fee schedule based on the defendant's ability to
pay. The batterer's program shall develop and utilize a sliding fee
scale that recognizes both the defendant's ability to pay and the
necessity of programs to meet overhead expenses. An indigent
defendant may negotiate a deferred payment schedule, but shall pay a
nominal fee, if the defendant has the ability to pay the nominal fee.
Upon a hearing and a finding by the court that the defendant does
not have the financial ability to pay the nominal fee, the court
shall waive this fee. The payment of the fee shall be made a
condition of probation if the court determines the defendant has the
present ability to pay the fee. The fee shall be paid during the term
of probation unless the program sets other conditions. The
acceptance policies shall be in accordance with the scaled fee
system.
(2) The court shall refer persons only to batterer's programs that
have been approved by the probation department pursuant to paragraph
(5). The probation department shall do both of the following:
(A) Provide for the issuance of a provisional approval, provided
that the applicant is in substantial compliance with applicable laws
and regulations and an urgent need for approval exists. A provisional
approval shall be considered an authorization to provide services
and shall not be considered a vested right.
(B) If the probation department determines that a program is not
in compliance with standards set by the department, the department
shall provide written notice of the noncompliant areas to the
program. The program shall submit a written plan of corrections
within 14 days from the date of the written notice on noncompliance.
A plan of correction shall include, but not be limited to, a
description of each corrective action and timeframe for
implementation. The department shall review and approve all or any
part of the plan of correction and notify the program of approval or
disapproval in writing. If the program fails to submit a plan of
correction or fails to implement the approved plan of correction, the
department shall consider whether to revoke or suspend approval and,
upon revoking or suspending approval, shall have the option to cease
referrals of defendants under this section.
(3) No program, regardless of its source of funding, shall be
approved unless it meets all of the following standards:
(A) The establishment of guidelines and criteria for education
services, including standards of services that may include lectures,
classes, and group discussions.
(B) Supervision of the defendant for the purpose of evaluating the
person's progress in the program.
(C) Adequate reporting requirements to ensure that all persons
who, after being ordered to attend and complete a program, may be
identified for either failure to enroll in, or failure to
successfully complete, the program or for the successful completion
of the program as ordered. The program shall notify the court and the
probation department, in writing, within the period of time and in
the manner specified by the court of any person who fails to complete
the program. Notification shall be given if the program determines
that the defendant is performing unsatisfactorily or if the defendant
is not benefiting from the education, treatment, or counseling.
(D) No victim shall be compelled to participate in a program or
counseling, and no program may condition a defendant's enrollment on
participation by the victim.
(4) In making referrals of indigent defendants to approved
batterer's programs, the probation department shall apportion these
referrals evenly among
the approved programs.
(5) The probation department shall have the sole authority to
approve a batterer's program for probation. The program shall be
required to obtain only one approval but shall renew that approval
annually.
(A) The procedure for the approval of a new or existing program
shall include all of the following:
(i) The completion of a written application containing necessary
and pertinent information describing the applicant program.
(ii) The demonstration by the program that it possesses adequate
administrative and operational capability to operate a batterer's
treatment program. The program shall provide documentation to prove
that the program has conducted batterer's programs for at least one
year prior to application. This requirement may be waived under
subparagraph (A) of paragraph (2) if there is no existing batterer's
program in the city, county, or city and county.
(iii) The onsite review of the program, including monitoring of a
session to determine that the program adheres to applicable statutes
and regulations.
(iv) The payment of the approval fee.
(B) The probation department shall fix a fee for approval not to
exceed two hundred fifty dollars ($250) and for approval renewal not
to exceed two hundred fifty dollars ($250) every year in an amount
sufficient to cover its costs in administering the approval process
under this section. No fee shall be charged for the approval of local
governmental entities.
(C) The probation department has the sole authority to approve the
issuance, denial, suspension, or revocation of approval and to cease
new enrollments or referrals to a batterer's program under this
section. The probation department shall review information relative
to a program's performance or failure to adhere to standards, or
both. The probation department may suspend or revoke an approval
issued under this subdivision or deny an application to renew an
approval or to modify the terms and conditions of approval, based on
grounds established by probation, including, but not limited to,
either of the following:
(i) Violation of this section by any person holding approval or by
a program employee in a program under this section.
(ii) Misrepresentation of any material fact in obtaining the
approval.
(6) For defendants who are chronic users or serious abusers of
drugs or alcohol, standard components in the program shall include
concurrent counseling for substance abuse and violent behavior, and
in appropriate cases, detoxification and abstinence from the abused
substance.
(7) The program shall conduct an exit conference that assesses the
defendant's progress during his or her participation in the batterer'
s program.
(d) An act or omission relating to the approval of a batterer's
treatment program under paragraph (5) of subdivision (c) is a
discretionary act pursuant to Section 820.2 of the Government Code.
SEC. 4. Section 1203.47 of the Penal Code is amended to read:
1203.47. (a) A person who was found to be a person described in
Section 602 of the Welfare and Institutions Code by reason of the
commission of an offense described in subdivision (b) of Section 647
or in Section 653.22 may, upon reaching 18 years of age, petition the
court to have his or her record sealed, as provided in Section 781
of the Welfare and Institutions Code, except that, as pertaining to
any records regarding the commission of an offense described in
subdivision (b) of Section 647 or in Section 653.22, it shall not be
a requirement in granting the petition for the person to show that he
or she has not been convicted of a felony or of any misdemeanor
involving moral turpitude, or that rehabilitation has been attained
to the satisfaction of the court. Upon granting the petition, all
records relating to the violation or violations of subdivision (b) of
Section 647 or of Section 653.22, or both, shall be sealed pursuant
to Section 781 of the Welfare and Institutions Code.
(b) The relief provided by this section does not apply to a person
adjudicated pursuant to subdivision (b) of Section 647 or of Section
653.22 who paid money or any other valuable thing, or attempted to
pay money or any other valuable thing, to any person for the purpose
of prostitution as defined in subdivision (b) of Section 647.
(c) This section applies to adjudications that occurred before, as
well as those that occur after, the effective date of this section.
(d) A petition granted pursuant to this section does not authorize
the sealing of any part of a person's record that is unrelated to a
violation of subdivision (b) of Section 647, Section 653.22, or both.
SEC. 5. Section 1233.1 of the Penal Code is amended to read:
1233.1. After the conclusion of each calendar year following the
enactment of this section, the Director of Finance, in consultation
with the Department of Corrections and Rehabilitation, the Joint
Legislative Budget Committee, the Chief Probation Officers of
California, and the Administrative Office of the Courts, shall
calculate the following for that calendar year:
(a) The cost to the state to incarcerate in prison and supervise
on parole a probationer sent to prison. This calculation shall take
into consideration factors, including, but not limited to, the
average length of stay in prison and on parole for probationers, as
well as the associated parole revocation rates, and revocation costs.
(b) The statewide probation failure to prison rate. The statewide
probation failure to prison rate shall be calculated as the total
number of adult felony probationers statewide sent to prison in the
previous year as a percentage of the average statewide adult felony
probation population for that year.
(c) A probation failure to prison rate for each county. Each
county's probation failure to prison rate shall be calculated as the
number of adult felony probationers sent to prison from that county
in the previous year as a percentage of the county's average adult
felony probation population for that year.
(d) An estimate of the number of adult felony probationers each
county successfully prevented from being sent to prison. For each
county, this estimate shall be calculated based on the reduction in
the county's probation failure to prison rate as calculated annually
pursuant to subdivision (c) of this section and the county's baseline
probation failure rate as calculated pursuant to Section 1233. In
making this estimate, the Director of Finance, in consultation with
the Department of Corrections and Rehabilitation, the Joint
Legislative Budget Committee, the Chief Probation Officers of
California, and the Administrative Office of the Courts, shall adjust
the calculations to account for changes in each county's adult
felony probation caseload in the most recent completed calendar year
as compared to the county's adult felony probation population during
the period 2006 to 2008, inclusive.
(e) In calculating probation failure to prison rates for the state
and individual counties, the number of adult felony probationers
sent to prison shall include those adult felony probationers sent to
state prison for a revocation of probation, as well as adult felony
probationers sent to state prison for a conviction of a new felony
offense. The calculation shall also include adult felony probationers
who are sent to prison for conviction of a new crime and who
simultaneously have their probation terms terminated.
SEC. 6. Section 1305.4 of the Penal Code is amended to read:
1305.4. Notwithstanding Section 1305, the surety insurer, the
bail agent, the surety, or the depositor may file a motion, based
upon good cause, for an order extending the 180-day period provided
in that section. The motion shall include a declaration or affidavit
that states the reasons showing good cause to extend that period. The
court, upon a hearing and a showing of good cause, may order the
period extended to a time not exceeding 180 days from its order. A
motion may be filed and calendared as provided in subdivision (j) of
Section 1305. In addition to any other notice required by law, the
moving party shall give the prosecuting agency a written notice at
least 10 court days before a hearing held pursuant to this section as
a condition precedent to granting the motion.
SEC. 7. Section 2900.5 of the Penal
Code is amended to read:
2900.5. (a) In all felony and misdemeanor convictions, either by
plea or by verdict, when the defendant has been in custody,
including, but not limited to, any time spent in a jail, camp, work
furlough facility, halfway house, rehabilitation facility, hospital,
prison, juvenile detention facility, or similar residential
institution, all days of custody of the defendant, including days
served as a condition of probation in compliance with a court order,
credited to the period of confinement pursuant to Section 4019, and
days served in home detention pursuant to Section 1203.018, shall be
credited upon his or her term of imprisonment, or credited to any
fine on a proportional basis , including, but not
limited to, base fines and restitution fines,
which on a proportional basis, that may
be imposed, at the rate of not less than thirty dollars ($30) per
day, or more, in the discretion of the court imposing the sentence.
If the total number of days in custody exceeds the number of days of
the term of imprisonment to be imposed, the entire term of
imprisonment shall be deemed to have been served. In any case where
the court has imposed both a prison or jail term of imprisonment and
a fine, any days to be credited to the defendant shall first be
applied to the term of imprisonment imposed, and thereafter the
remaining days, if any, shall be applied to the fine on a
proportional basis , including, but not limited to, base
fines and restitution fines , on a
proportional basis .
(b) For the purposes of this section, credit shall be given only
where the custody to be credited is attributable to proceedings
related to the same conduct for which the defendant has been
convicted. Credit shall be given only once for a single period of
custody attributable to multiple offenses for which a consecutive
sentence is imposed.
(c) For the purposes of this section, "term of imprisonment"
includes any period of imprisonment imposed as a condition of
probation or otherwise ordered by a court in imposing or suspending
the imposition of any sentence, and also includes any term of
imprisonment, including any period of imprisonment prior to release
on parole and any period of imprisonment and parole, prior to
discharge, whether established or fixed by statute, by any court, or
by any duly authorized administrative agency.
(d) It shall be the duty of the court imposing the sentence to
determine the date or dates of any admission to, and release from,
custody prior to sentencing and the total number of days to be
credited pursuant to this section. The total number of days to be
credited shall be contained in the abstract of judgment provided for
in Section 1213.
(e) It shall be the duty of any agency to which a person is
committed to apply the credit provided for in this section for the
period between the date of sentencing and the date the person is
delivered to the agency.
(f) If a defendant serves time in a camp, work furlough facility,
halfway house, rehabilitation facility, hospital, juvenile detention
facility, similar residential facility, or home detention program
pursuant to Section 1203.016, 1203.017, or 1203.018, in lieu of
imprisonment in a county jail, and the statute under which the
defendant is sentenced requires a mandatory minimum period of time in
jail, the time spent in these facilities or programs shall qualify
as mandatory time in jail.
(g) Notwithstanding any other provision of this code as it
pertains to the sentencing of convicted offenders, nothing in this
section is to be construed as authorizing the sentencing of convicted
offenders to any of the facilities or programs mentioned herein.
SEC. 8. Section 13507.1 is added to the
Penal Code , to read:
13507.1. As used in this chapter, "joint powers agency" means any
agency, entity, or authority formed pursuant to Article 1
(commencing with Section 6500) of Chapter 5 of Division 7 of Title 1
of the Government Code.
SEC. 9. Section 13522 of the Penal Code
is amended to read:
13522. Any city, county, city and county, or
district which , or joint powers agency, that
desires to receive state aid pursuant to this chapter shall
make application to the commission for the aid. The initial
application shall be accompanied by a certified copy of an ordinance,
or in the case of the University of California, the California State
University, and agencies not authorized to act by ordinance, by a
resolution, adopted by its governing body providing that while
receiving any state aid pursuant to this chapter, the city, county,
city and county, or district , or joint
powers agency will adhere to the standards for recruitment and
training established by the commission. The application shall contain
any information the commission may request.
SEC. 10. Section 13523 of the Penal
Code is amended to read:
13523. (a) The commission shall annually
allocate and the State Treasurer shall periodically pay from the
Peace Officers' Training Fund, at intervals specified by the
commission, to each city, county, and district
which , or joint powers agency, that
has applied and qualified for aid pursuant to this chapter an amount
determined by the commission pursuant to standards set forth in its
regulations. The commission shall grant aid only on a basis that is
equally proportionate among cities, counties, and districts.
districts, and joint powers agencies. State aid
shall only be provided for training expenses of full-time regularly
paid employees, as defined by the commission, of eligible agencies
from cities, counties, or districts.
districts, or joint powers agencies.
In
(b) In no event shall any
allocation be made to any city, county, or
district which , or joint power agency that
is not adhering to the standards established by the commission
as applicable to such that city,
county, or district. district, or joint
powers agency.
SEC. 11. Section 13526.3 is added to the
Penal Code , to read:
13526.3. Notwithstanding Section 13526, for the purposes of this
chapter, joint powers agencies formed pursuant to Article 1
(commencing with Section 6500) of Chapter 5 of Division 7 of Title 1
of the Government Code shall be entitled to receive funding from the
Peace Officers' Training Fund. This section is declaratory of
existing law.
SEC. 7. SEC. 12. Section 726 of the
Welfare and Institutions Code is amended to read:
726. (a) In all cases in which a minor is adjudged a ward or
dependent child of the court, the court may limit the control to be
exercised over the ward or dependent child by any parent or guardian
and shall in its order, clearly and specifically set forth all those
limitations, but no ward or dependent child shall be taken from the
physical custody of a parent or guardian, unless upon the hearing the
court finds one of the following facts:
(1) That the parent or guardian is incapable of providing or has
failed or neglected to provide proper maintenance, training, and
education for the minor.
(2) That the minor has been tried on probation while in custody
and has failed to reform.
(3) That the welfare of the minor requires that custody be taken
from the minor's parent or guardian.
(b) Whenever the court specifically limits the right of the parent
or guardian to make educational or developmental services decisions
for the minor, the court shall at the same time appoint a responsible
adult to make educational or developmental services decisions for
the child until one of the following occurs:
(1) The minor reaches 18 years of age, unless the child chooses
not to make educational or developmental services decisions for
himself or herself, or is deemed by the court to be incompetent.
(2) Another responsible adult is appointed to make educational or
developmental services decisions for the minor pursuant to this
section.
(3) The right of the parent or guardian to make educational or
developmental services decisions for the minor is fully restored.
(4) A successor guardian or conservator is appointed.
(5) The child is placed into a planned permanent living
arrangement pursuant to paragraph (5) or (6) of subdivision (b) of
Section 727.3, at which time, for educational decisionmaking, the
foster parent, relative caretaker, or nonrelative extended family
member as defined in Section 362.7 has the right to represent the
child in educational matters pursuant to Section 56055 of the
Education Code, and for decisions relating to developmental services,
unless the court specifies otherwise, the foster parent, relative
caregiver, or nonrelative extended family member of the planned
permanent living arrangement has the right to represent the child in
matters related to developmental services.
(c) An individual who would have a conflict of interest in
representing the child, as specified under federal regulations, may
not be appointed to make educational decisions. The limitations
applicable to conflicts of interest for educational rights holders
shall also apply to authorized representatives for developmental
services decisions pursuant to subdivision (b) of Section 4701.6. For
purposes of this section, "an individual who would have a conflict
of interest," means a person having any interests that might restrict
or bias his or her ability to make educational or developmental
services decisions, including, but not limited to, those conflicts of
interest prohibited by Section 1126 of the Government Code, and the
receipt of compensation or attorneys' fees for the provision of
services pursuant to this section. A foster parent may not be deemed
to have a conflict of interest solely because he or she receives
compensation for the provision of services pursuant to this section.
(1) If the court limits the parent's educational rights pursuant
to subdivision (a), the court shall determine whether there is a
responsible adult who is a relative, nonrelative extended family
member, or other adult known to the child and who is available and
willing to serve as the child's educational representative before
appointing an educational representative or surrogate who is not
known to the child.
If the court cannot identify a responsible adult who is known to
the child and available to make educational decisions for the child
and paragraphs (1) to (5), inclusive, of subdivision (b) do not
apply, and the child has either been referred to the local
educational agency for special education and related services, or has
a valid individualized education program, the court shall refer the
child to the local educational agency for appointment of a surrogate
parent pursuant to Section 7579.5 of the Government Code.
(2) All educational and school placement decisions shall seek to
ensure that the child is in the least restrictive educational
programs and has access to the academic resources, services, and
extracurricular and enrichment activities that are available to all
pupils. In all instances, educational and school placement decisions
shall be based on the best interests of the child. If an educational
representative or surrogate is appointed for the child, the
representative or surrogate shall meet with the child, shall
investigate the child's educational needs and whether those needs are
being met, and shall, prior to each review hearing held under
Article 10 (commencing with Section 360), provide information and
recommendations concerning the child's educational needs to the child'
s social worker, make written recommendations to the court, or attend
the hearing and participate in those portions of the hearing that
concern the child's education.
(3) Nothing in this section in any way removes the obligation to
appoint surrogate parents for students with disabilities who are
without parental representation in special education procedures as
required by state and federal law, including Section 1415(b)(2) of
Title 20 of the United States Code, Section 56050 of the Education
Code, Section 7579.5 of the Government Code, and Rule 5.650 of the
California Rules of Court.
If the court appoints a developmental services decisionmaker
pursuant to this section, he or she shall have the authority to
access the child's information and records pursuant to subdivision
(u) of Section 4514 and subdivision (y) of Section 5328, and to act
on the child's behalf for the purposes of the individual program plan
process pursuant to Sections 4646, 4646.5, and 4648 and the fair
hearing process pursuant to Chapter 7 (commencing with Section 4700)
of Division 4.5, and as set forth in the court order.
(d) If the minor is removed from the physical custody of his or
her parent or guardian as the result of an order of wardship made
pursuant to Section 602, the order shall specify that the minor may
not be held in physical confinement for a period in excess of the
maximum term of imprisonment which could be imposed upon an adult
convicted of the offense or offenses which brought or continued the
minor under the jurisdiction of the juvenile court.
As used in this section and in Section 731, "maximum term of
imprisonment" means the longest of the three time periods set forth
in paragraph (2) of subdivision (a) of Section 1170 of the Penal
Code, but without the need to follow the provisions of subdivision
(b) of Section 1170 of the Penal Code or to consider time for good
behavior or participation pursuant to Sections 2930, 2931, and 2932
of the Penal Code, plus enhancements which must be proven if pled.
If the court elects to aggregate the period of physical
confinement on multiple counts or multiple petitions, including
previously sustained petitions adjudging the minor a ward within
Section 602, the "maximum term of imprisonment" shall be the
aggregate term of imprisonment specified in subdivision (a) of
Section 1170.1 of the Penal Code, which includes any additional term
imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the
Penal Code, and Section 11370.2 of the Health and Safety Code.
If the charged offense is a misdemeanor or a felony not included
within the scope of Section 1170 of the Penal Code, the "maximum term
of imprisonment" is the longest term of imprisonment prescribed by
law.
"Physical confinement" means placement in a juvenile hall, ranch,
camp, forestry camp or secure juvenile home pursuant to Section 730,
or in any institution operated by the Youth Authority.
This section does not limit the power of the court to retain
jurisdiction over a minor and to make appropriate orders pursuant to
Section 727 for the period permitted by Section 607.
SEC. 8. SEC. 13. Any section of any
act enacted by the Legislature during the 2013 calendar year that
takes effect on or before January 1, 2014, and that amends, amends
and renumbers, adds, repeals and adds, or repeals a section that is
amended, amended and renumbered, added, repealed and added, or
repealed by this act, shall prevail over this act, whether that act
is enacted prior to, or subsequent to, the enactment of this act. The
repeal, or repeal and addition, of any article, chapter, part,
title, or division of any code by this act shall not become operative
if any section of any other act that is enacted by the Legislature
during the 2013 calendar year and takes effect on or before January
1, 2014, amends, amends and renumbers, adds, repeals and adds, or
repeals any section contained in that article, chapter, part, title,
or division.