BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 673 Hearing Date: June 23, 2015
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|Author: |Santiago |
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|Version: |May 26, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JM |
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Subject: Probation and Mandatory Supervision: Jurisdiction
HISTORY
Source: Chief Probation Officers of California
Prior Legislation:AB 2645 (Dababneh)
AB 492 (Quirk) Ch. 13, Stats. 2013
SB 431 (Benoit), Ch. 588, Stats. 2009
AB 306 (Aguiar) Ch. 273, Stats. 1993
Support: California District Attorneys Association; California
Probation, Parole and Correctional Association;
Association of Deputy District Attorneys; AFSCME;
Judicial Council; Local 685; Los Angeles Probation
Officers' Union; Riverside Sheriffs' Association
Opposition: None known
Assembly Floor Vote: 79 - 0
PURPOSE
The purpose of this bill is to: 1) provide that where a
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defendant's case has been transferred from the county of
conviction to the superior court in another county for purposes
of probation or mandatory supervision, the receiving court shall
accept full jurisdiction over the case at the time the transfer
is ordered; 2) provide that the defendant shall continue to pay
outstanding restitution, fines, fees and other costs to the
collection program in the county from which the case was
transferred; and 3) authorize the receiving court, with the
approval of the court that transferred the case, to collect
payments from the defendant.
Existing law provides that whenever a person is released upon
probation or mandatory supervision the court, upon noticed
motion, shall transfer the case to the superior court in any
other the person resides permanently, meaning the stated
intention to remain for the duration of probation or mandatory
supervision, unless the transferring court determines that the
transfer is inappropriate and states its reasons on the record.
Upon notice of the motion for transfer, the court of the
proposed receiving county may provide comments for the record
regarding the proposed transfer following procedures set forth
in rules of court developed by the Judicial Council. The court
and the probation department shall give the matter of
investigating those
transfers precedence over all actions and proceedings therein,
except actions or proceedings to which special precedence is
given by law, to the end that all those transfers shall be
completed expeditiously. (Pen. Code, § 1203.9, subd. (a).)
Existing law requires the court of the receiving county to
accept the entire jurisdiction over the case. (Pen. Code, §
1203.9, subd. (b).)
Existing law mandates that the order of transfer contain an
order committing the probationer to the care and custody of the
probation officer of the receiving county and an order for
reimbursement of reasonable costs for processing the transfer to
be paid to the sending county as specified. A copy of the
orders and probation reports shall be transmitted to the court
and probation officer of the receiving county within two weeks
of the finding by that county that the person does permanently
reside in or has permanently moved to that county, and
thereafter the receiving court shall have entire jurisdiction
over the case, with the like power to again request transfer of
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the case whenever it seems proper. (Pen. Code, § 1203.9, subd.
(c).)
Existing law requires that the order of transfer contain an
order committing the probationer or supervised person to the
care and custody of the probation officer of the receiving
county and, if applicable, an order for reimbursement of
reasonable costs for processing the transfer to be paid to the
sending county as specified. A copy of the orders and any
probation reports shall be transmitted to the court and
probation officer of the receiving county within two weeks of
the finding by that county that the person does permanently
reside in or has permanently moved to that county, and
thereafter the receiving court shall have entire jurisdiction
over the case, with the like power to again request transfer of
the case whenever it seems proper. (Pen. Code, § 1203.9(d).)
Existing law requires the Judicial Council to adopt rules
providing factors for the court's consideration when determining
the appropriateness of a transfer, including but not limited to
the following:
Permanency of residence of the offender;
Local programs available for the offender; and,
Restitution orders and victim issues. (Pen. Code, § 1203.9,
subd. (d).)
Existing law states that the transferring court must consider at
least the following factors when determining whether transfer is
appropriate:
The permanency of the supervised person's residence;
The availability of appropriate programs for the supervised
person;
Restitution orders, including inability to determine
restitution amount and the victim's
ability to collect; and
Other victim issues, including residence and places frequented
by the victim and
enforcement of protective orders. (Cal. Rules of Court,
rule 4.530(f).)
Existing law states that, to the extent possible, the
transferring court must establish any amount of restitution owed
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by the supervised person before it orders the transfer. (Cal.
Rules of Court, rule 4.530(g)(2).)
This bill provides that when probation or mandatory supervision
is transferred to the superior court in another county, along
with jurisdiction over the entire case, the receiving court
shall accept jurisdiction as of the date that the transferring
court orders the transfer.
This bill provides that, notwithstanding the fact that
jurisdiction over the case transfers to the receiving court
effective the date that the transferring court orders the
transfer, if the transferring court has ordered the defendant to
pay fines, fees, or restitution, the transfer order shall
require that those and any other collections ordered by the
transferring court be paid by the defendant to the collection
program for the transferring court for proper distribution and
accounting.
This bill states that the receiving court and receiving county
probation department may amend financial orders and add
additional local fees as authorized, and shall notify the
responsible collection program of those changes.
This bill provides that any local fees imposed by the receiving
court shall be collected by the collection agency for the
transferring court, which shall remit the payments to the
receiving court for distribution.
This bill allows a receiving court, with the approval of the
transferring court, to collect "court-ordered payments" from a
defendant. The collection agency for the receiving court shall
transmit funds collected from the defendant to the collection
program for the transferring court for deposit and accounting.
A collection program for the receiving court shall not charge
administrative fees for collections completed for the
transferring without an agreement with the other agency.
This bill provides that a collection program for a receiving
court shall not report funds collected on behalf of the
transferring court as part of those collections required to be
annually reported to the Administrative Office of the courts.
This bill provides that the Judicial Council shall consider
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adopting rules of court to implement the statutory provisions
concerning collection of restitution, fines, fees and other
costs when supervision of a probationer or person on mandatory
supervision is transferred to a court other than the court of
conviction.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
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Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
Penal Code 1203.9 was enacted to establish a process
whereby persons on probation could have their
supervision and case transferred from the sentencing
county to their county of residence. Currently, this
section calls for the transfer of the "entire case" to
the new jurisdiction. However, PC 1203.9 is silent on
court ordered debt as it relates to the transfer and
the process for collection and distribution once
transferred. Therefore, there are varying degrees of
how the collection and distribution of these funds are
handled.
AB 673 streamlines existing probation and court
processes relative to the transfer of fines and fees
that a probationer is responsible for by creating a
single, uniform process statewide. The bill would
keep the responsibility for collection of fines and
fees with the sentencing county and the sentencing
county would then disburse the payments received
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accordingly. This construct is particularly useful in
cases where a probationer transfers residences
multiple times since they would always make payments
to their sentencing county which handled the case.
This also serves a great benefit to victims seeking
restitution as it would create a singular contact for
the victim that would always know where the case is
currently being supervised in the event the victim
needs to get in touch with the supervising agency.
2.Recent History of Probation and Mandatory Supervision Transfer
Bills
This is the most recent in a series of bills that are intended
to streamline and improve the process of transferring cases
involving supervised inmates who reside in the county of
transfer. AB 1306<1> (Leno) in 2004 required the receiving
court to accept the transfer of jurisdiction over the entire
case in which the defendant residing in the receiving county was
a participant in a SACPA<2> drug treatment program. In other
circumstances, the receiving court could continue to provide
only courtesy supervision. SB 431<3> (Benoit) in 2009 required
the court in the receiving county to accept the case unless the
transferring court found in a noticed hearing that the transfer
was inappropriate after considering comments from the proposed
county of transfer. SB 431 did not change the rule that the
court in the county of conviction shall transfer a SACPA case
without the requirement of a noticed hearing. AB 492<4> (Quirk)
in 2013 eliminated the distinction between transfers of SACPA
probation and other forms of supervision. AB 2645 (Dababneh) in
2014 directed transferring courts to determine restitution
issues prior to transfer
It appears that the constitutionally-compelled requirement of
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<1> AB 1306 (Leno) - Ch. 30, Stats.2004
<2> The Substance Abuse and Crime Prevention Act - Proposition
36 of the 2000 General Election
<3> SB 431 (Benoit) Ch. 588, Stats. 2009
<4> AB 492 (Quirk) Ch. 13, Stats. 2013
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full victim restitution, and the expansion of specialized
probation programs, including SACPA and collaborative courts,
has created a need for consistent programs and procedures in
supervision cases. The explanation by the Judicial Council of AB
2645 in 2014 is a good example of the circumstances that have
driven amendments to the probation transfer laws over the past
10 years. As edited to reflect current law, the Judicial
Council explained:
To improve victim access to restitution and promote
efficiencies in determining restitution amounts, AB
2645 [amended] section 1203.9 to (1) prohibit
transfers until restitution amounts have been
determined unless a transferring court finds that a
determination of restitution cannot be made within a
reasonable amount of time from the date of the motion
to transfer; (2) require courts that transfer cases
without first determining restitution to retain
jurisdiction to determine the amount as soon as
practicable; and (3) clarify that, in all other
respects, the receiving court receives full
jurisdiction over the matter
3.Defendants Supervised in One County but Paying Fines, Fees and
Costs to Another; Clarifying Amendment
This bill provides that where a probation or mandatory
supervision case is transferred to a county other than the
county of conviction, the defendant shall continue to pay any
outstanding restitution, fines and fees to the collection
program in the county of transfer/conviction. The bill also
authorizes the county receiving the probation matter to impose
local fees and fine. The defendant also pays the local fees and
costs imposed by the receiving county to the transferring
county.
However, the bill also provides that the receiving court, with
the approval of the transferring court, may "elect to collect
court-ordered payments from the defendant and remit those to the
transferring court "for deposit, accounting and distribution."
It appears that this would be interpreted to mean that where the
receiving court elects to collect payments from the defendant,
the receiving court collect all restitution, fines, fees and
costs imposed on the defendant, including orders made by the
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transferring court and local fees and costs imposed by the
receiving court or the probation department. That is, a
receiving court would not likely elect to collect some, but not
all, of the restitution, fines fees and costs imposed on the
defendant by both, or all counties. This is particularly true
as to costs and fees imposed by the receiving court, as the bill
directs the receiving court to send money collected from the
defendant to the transferring court for accounting and
remittance back to the receiving court. However, that is not
explicitly stated. Perhaps the bill should specify that the
receiving court, with the approval of the transferring court,
may "elect to collect all of the court ordered payments
attributable to the case under which the defendant is being
supervised."
In discussions with committee staff, the sponsor of the bill -
Chief Probation Officers of California (CPOC) - has expressed
agreement with the suggested amendment. CPOC also requests a
technical amendment to clarify that a transferring court shall
remit fees collected on behalf of the receiving county for
proper accounting and distribution.
SHOULD THE BILL BE AMENDED TO SPECIFY THAT WHERE THE RECEIVING
COURT ELECTS TO COLLECT COURT-ORDERED PAYMENTS FROM A DEFENDANT
ON PROBATION OR MANDATORY SUPERVISION, THE RECEIVING COURT SHALL
COLLECT ALL OF THE COURT ORDERED PAYMENTS ATTRIBUTABLE TO THE
CASE UNDER WHICH THE DEFENDANT IS BEING SUPERVISED?
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