BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1214


                                                                    Page  1


          Date of Hearing:   April 21, 2015
          Counsel:               David Billingsley



                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                   1214 (Achadjian) - As Introduced  February 27, 2015




          SUMMARY:  This bill would require a court to find good cause to  
          grant a defendant's request for continuance of their sentencing  
          hearing when the probation department fails to provide the  
          probation report by the statutory timeline.    

          EXISTING LAW:  

          1)Defines "probation" as the suspension of the imposition or  
            execution of a sentence and the order of conditional and  
            revocable release in the community under the supervision of a  
            probation officer. As used in this code, "conditional  
            sentence" means the suspension of the imposition or execution  
            of a sentence and the order of revocable release in the  
            community subject to conditions established by the court  
            without the supervision of a probation officer. It is the  
            intent of the Legislature that both conditional sentence and  
            probation are authorized whenever probation is authorized in  
            any code as a sentencing option for infractions or  
            misdemeanors. (Pen. Code, § 1203, subd. (a).)











                                                                    AB 1214


                                                                    Page  2


          2)States that except as specified, if a person is convicted of a  
            felony and is eligible for probation, before judgment is  
            pronounced, the court shall immediately refer the matter to a  
            probation officer to investigate and report to the court, at a  
            specified time, upon the circumstances surrounding the crime  
            and the prior history and record of the person, which may be  
            considered either in aggravation or mitigation of the  
            punishment. (Pen. Code, § 1203, subd. (b)(1).)



          3)Requires the probation officer to immediately investigate and  
            make a written report to the court of his or her findings and  
            recommendations, including his or her recommendations as to  
            the granting or denying of probation and the conditions of  
            probation, if granted. (Pen. Code, § 1203, subd. (b)(2)(A).




          4)Requires the probation officer to include in his or her report  
            any information gathered by a law enforcement agency relating  
            to the taking of the defendant into custody as a minor, which  
            shall be considered for purposes of determining whether  
            adjudications of commissions of crimes as a juvenile warrant a  
            finding that there are circumstances in aggravation, or to  
            deny probation. (Pen. Code, § 1203, subd. (b)(2)(B).




          5)States that if the person was convicted of an offense that  
            requires him or her to register as a sex offender or if the  
            probation report recommends that registration be ordered at  
            sentencing, the probation officer's report shall include the  
            results of the State-Authorized Risk Assessment Tool for Sex  
            Offenders (SARATSO). (Pen. Code, § 1203, subd. (b)(2)(C).




          6)Allows the probation officer to include in the report his or  








                                                                    AB 1214


                                                                    Page  3


            her recommendation of both of the following:




             a)   The amount the defendant should be required to pay as a  
               restitution fine. (Pen. Code, § 1203, subd. (b)(2)(D)(i).)



             b)   Whether the court shall require, as a condition of  
               probation, restitution to the victim or to the Restitution  
               Fund and the amount thereof. (Pen. Code, § 1203, subd.  
               (b)(2)(D)(ii).)



          7)Mandates that the report be made available to the court and  
            the prosecuting and defense attorneys at least five days, or  
            upon request of the defendant or prosecuting attorney nine  
            days, prior to the time fixed by the court for the hearing and  
            determination of the report, and shall be filed with the clerk  
            of the court as a record in the case at the time of the  
            hearing. The time within which the report shall be made  
            available and filed may be waived by written stipulation of  
            the prosecuting and defense attorneys that is filed with the  
            court or an oral stipulation in open court that is made and  
            entered upon the minutes of the court. (Pen. Code, § 1203,  
            subd. (b)(2)(E).



          8)Specifies that at a time fixed by the court, the court shall  
            hear and determine the application, if one has been made, or,  
            in any case, the suitability of probation in the particular  
            case. At the hearing, the court shall consider any report of  
            the probation officer, including the results of the SARATSO,  
            if applicable, and shall make a statement that it has  
            considered the report, which shall be filed with the clerk of  
            the court as a record in the case. If the court determines  
            that there are circumstances in mitigation of the punishment  
            prescribed by law or that the ends of justice would be served  








                                                                    AB 1214


                                                                    Page  4


            by granting probation to the person, it may place the person  
            on probation. If probation is denied, the clerk of the court  
            shall immediately send a copy of the report to the Department  
            of Corrections and Rehabilitation at the prison or other  
            institution to which the person is delivered. (Pen. Code, §  
            1203, subd. (b)(3).)



          9)States that the preparation of the report or the consideration  
            of the report by the court may be waived only by a written  
            stipulation of the prosecuting and defense attorneys that is  
            filed with the court or an oral stipulation in open court that  
            is made and entered upon the minutes of the court, except that  
            a waiver shall not be allowed unless the court consents  
            thereto. However, if the defendant is ultimately sentenced and  
            committed to the state prison, a probation report shall be  
            completed pursuant to Section 1203c. (Pen. Code, § 1203, subd.  
            (b)(4).)




          10)Provides that if a defendant is not represented by an  
            attorney, the court shall order the probation officer who  
            makes the probation report to discuss its contents with the  
            defendant. (Pen. Code, § 1203, subd. (c).)




          11)Specifies that if a person is convicted of a misdemeanor, the  
            court may either refer the matter to the probation officer for  
            an investigation and a report or summarily pronounce a  
            conditional sentence. If the person was convicted of an  
            offense that requires him or her to register as a sex  
            offender, or if the probation officer recommends that the  
            court, at sentencing, order the offender to register as a sex  
            offender, the court shall refer the matter to the probation  
            officer for the purpose of obtaining a report on the results  
            of the State-Authorized Risk Assessment Tool for Sex  
            Offenders, which the court shall consider. If the case is not  








                                                                    AB 1214


                                                                    Page  5


            referred to the probation officer, in sentencing the person,  
            the court may consider any information concerning the person  
            that could have been included in a probation report. The court  
            shall inform the person of the information to be considered  
            and permit him or her to answer or controvert the information.  
            For this purpose, upon the request of the person, the court  
            shall grant a continuance before the judgment is pronounced.  
            (Pen. Code, § 1203, subd. (d).


          12) States that if a person is not eligible for probation, the  
            judge shall refer the matter to the probation officer for an  
            investigation of the facts relevant to determination of the  
            amount of a restitution fine in all cases where the  
            determination is applicable. The judge, in his or her  
            discretion, may direct the probation officer to investigate  
            all facts relevant to the sentencing of the person. Upon that  
            referral, the probation officer shall immediately investigate  
            the circumstances surrounding the crime and the prior record  
            and history of the person and make a written report to the  
            court of his or her findings. The findings shall include a  
            recommendation of the amount of the restitution fine. (Pen.  
            Code, § 1203, subd. (g).)




          13)Specifies that if a defendant is convicted of a felony and a  
            probation report is prepared, the probation officer may obtain  
            and include in the report a statement of the comments of the  
            victim concerning the offense. The court may direct the  
            probation officer not to obtain a statement if the victim has  
            in fact testified at any of the court proceedings concerning  
            the offense. (Pen. Code, § 1203, subd. (h).)



          14)States that to continue any hearing in a criminal proceeding,  
            including the trial, (1) a written notice shall be filed and  
            served on all parties to the proceeding at least two court  
            days before the hearing sought to be continued, together with  
            affidavits or declarations detailing specific facts showing  








                                                                    AB 1214


                                                                    Page  6


            that a continuance is necessary and (2) within two court days  
            of learning that he or she has a conflict in the scheduling of  
            any court hearing, including a trial, an attorney shall notify  
            the calendar clerk of each court involved, in writing,  
            indicating which hearing was set first. (Pen. Code, § 1050,  
            subd. (b).)




          15)States that a party shall not be deemed to have been served  
            within the meaning of this section until that party actually  
            has received a copy of the documents to be served, unless the  
            party, after receiving actual notice of the request for  
            continuance, waives the right to have the documents served in  
            a timely manner. Regardless of the proponent of the motion,  
            the prosecuting attorney shall notify the people's witnesses  
            and the defense attorney shall notify the defense's witnesses  
            of the notice of motion, the date of the hearing, and the  
            witnesses' right to be heard by the court. (Pen. Code, § 1050,  
            subd. (b).)



          16)Allows a party to make a motion for a continuance without  
            complying with the requirements of that subdivision. However,  
            unless the moving party shows good cause for the failure to  
            comply with those requirements, the court may impose sanctions  
            as provided in Section 1050.5. (Pen. Code, § 1050, subd. (c).)




          17) Requires the court to hold a hearing, if a party makes a  
            motion for a continuance without complying with the  
            requirements, on whether there is good cause for the failure  
            to comply with those requirements.  At the conclusion of the  
            hearing, the court shall make a finding whether good cause has  
            been shown and, if it finds that there is good cause, shall  
            state on the record the facts proved that justify its finding.  
            A statement of the finding and a statement of facts proved  
            shall be entered in the minutes. If the moving party is unable  








                                                                    AB 1214


                                                                    Page  7


            to show good cause for the failure to give notice, the motion  
            for continuance shall not be granted. (Pen. Code, § 1050,  
            subd. (d).)




          18)Requires that continuances be granted only upon a showing of  
            good cause. Neither the convenience of the parties nor a  
            stipulation of the parties is in and of itself good cause.  
            (Pen. Code, § 1050, subd. (e).)




          19)Requires that at the conclusion of the motion for  
            continuance, the court make a finding whether good cause has  
            been shown and, if it finds that there is good cause, shall  
            state on the record the facts proved that justify its finding.  
            A statement of facts proved shall be entered in the minutes.  
            (Pen. Code, § 1050, subd. (f).)




          20) States that when deciding whether or not good cause for a  
            continuance has been shown, the court shall consider the  
            general convenience and prior commitments of all witnesses,  
            including peace officers. Both the general convenience and  
            prior commitments of each witness also shall be considered in  
            selecting a continuance date if the motion is granted. The  
            facts as to inconvenience or prior commitments may be offered  
            by the witness or by a party to the case. (Pen. Code, § 1050,  
            subd. (g)(1).)



          21)States that a continuance shall be granted only for that  
            period of time necessary by  the evidence considered at the  
            hearing on the motion.  Whenever any continuance is granted,  
            the court shall state on the record the facts proved that  
            justify the length of the continuance, and those facts shall  








                                                                    AB 1214


                                                                    Page  8


            be entered in the minutes. (Pen. Code, § 1050, subd. (i).)
          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "AB 1214 ensures  
            courts have the discretion to determine on a case by case  
            basis whether a continuance due to noncompliance with the  
            probation report deadline is justified.  As a result, AB 1214  
            brings efficiencies to the courts by eliminating extraneous  
            sentencing proceedings as well as easing the administrative  
            burdens associated with unnecessary remands for sentencing at  
            the same time; AB 1214 protects the defendant's right to have  
            sufficient opportunity to evaluate the probation report by  
            preserving the right to request a continuance for good cause."

          2)Defendant's Right to Have the Probation Report Prior to  
            Sentencing.  California requires that that the probation  
            report be provided to a defendant's attorney five days prior  
            to sentencing, or nine days upon defense request. (Pen. Code,  
            § 1203, subd. (b)(1)(E).) Penal Code section 1203 was amended  
            in 1969 to provide that the report of the probation officer  
            had to be made available to the court and attorneys at least  
            two days "or, upon the request of the defendant, five days"  
            prior to the time fixed for hearing and determination of such  
            report. It was amended again in 1977 to  provide the present  
            nine-day time limit. When the Legislature amended this section  
            in 1969 it made the following statement: "The Legislature, by  
            this act, does not intend that the preparation or submission  
            of probation reports be accelerated in relation to present law  
            and practice. It is the intention of the Legislature that the  
            courts exercise their discretion in fixing dates for  
            pronouncing judgments five or more days after all the  
            interested parties have received copies of probation reports  
            so that such parties have adequate time to evaluate such  
            reports." (Stats. 1969, ch. 522).  
            
            Courts have held that a failure to provide the probation  
            report within the statutory guidelines, is grounds for a  
            continuance of a sentencing hearing, without requiring any  
            showing of good cause.  In People v. Leffel, (1987) 196  
            Cal.App.3d 1310, the defendant did not receive the probation  








                                                                    AB 1214


                                                                    Page  9


            report within the time frame required by law.  The defendant  
            made a proper objection to this error, indicated that they  
            were not prepared to proceed, and requested a continuance. The  
            court refused the request for a continuance and moved forward  
            to sentence the defendant.  The appellate court in Leffel,  
            found that the failure to grant a continuance rendered the  
            sentencing hearing fundamentally unfair. Id. at 1319.    The  
            court found that ". . . the possibilities for prejudice are  
            clear and the actual prejudice suffered is a matter of  
            conjecture.  What the defendant might have been able to object  
            to or to add further to the report cannot be determined  
            because he was not afforded the proper opportunity to  
            comprehend, analyze, investigate and evaluate the report. It  
            is clear that the Legislature intended that he be given this  
            opportunity." Id. at 1318.

            The defense attorney is the party in the criminal proceeding  
            responsible for knowing how much time he or she needs within  
            the statutory framework to adequately address the issues that  
            will be raised in a probation report.  The law has a default  
            requiring the probation report five days prior to the  
            sentencing.  However, if the defense attorney in evaluating  
            the issues that are likely to be raised in the probation  
            report, needs more time, they can request that the report be  
            provided nine days in advance of the sentencing hearing.  On  
            the other hand, if the defense attorney in evaluating their  
            case does not need the statutory time to review the probation  
            report, the defense attorney can waive the right to have the  
            sentencing report provided by the statutory deadline.  (Pen.  
            Code, § 1203, subd. (b)(1)(E).)

          3)Argument in Support:  According to The Judicial Council of  
            California, "Under current law, probation sentencing reports  
            must be provided to the parties at least five days before the  
            sentencing hearing unless the deadline is waived by the  
            parties either in writing or by oral stipulation in open  
            court. (Pen. Code, § 1203(b)(2)(E).)  The purpose of the  
            deadline is to afford defendants a "proper opportunity to  
            comprehend, analyze, investigate and evaluate the report."  
            (People v. Bohannon (2000) 82 Cal.App.4th 798, 808-809; People  
            v. Leffell (1987) 196 Cal.App.3d 1310, 1318.)  If the  
            probation department does not provide the report by the  








                                                                    AB 1214


                                                                    Page  10


            deadline and the defendant objects and request a continuance,  
            failure by the court to grant the continuance entitles the  
            defendant to a remand for sentencing. (People v. Bohannon,  
            supra, 82 Cal.App.4th at pp.808-809.)  Defendants are not  
            required to show actual prejudice as a result of the late  
            probation report when requesting a continuance. (Id. at 809.)   
            As a result, court routinely grant automatic continuances  
            whenever the statutory deadline for probation reports is  
            missed, regardless of whether the missed deadline had any  
            impact on the defendant's ability to review and investigate  
            the probation report.

            "AB 1214 vests courts with discretion to decide on a case by  
            case basis whether the circumstances of a particular case  
            warrant a continuance, rather than requiring courts to grant  
            automatic continuances without regard to actual prejudice.   
            For example, even if the deadline is missed, a defendant may  
            still have adequate time to review the report and raise  
            concerns about the report's contents, in which case AB 1214  
            would give the court authority to deny a request for  
            continuance.  In contrast, if the lateness of a report impacts  
            the ability of the defendant to report and raise concerns  
            about the report, AB 1214 would give the court discretion to  
            continue the sentencing hearing.

            "AB 1214 brings efficiencies to the courts by eliminating  
            unnecessary continuances of sentencing proceedings and easing  
            the administrative burdens associated with unnecessary remands  
            for sentencing, without compromising the defendant's right to  
            have sufficient opportunity to evaluate a probation report by  
            preserving the right to request a continuance for good cause.

          4)Argument in Opposition:  According to The California Public  
            Defenders Association, "Penal Code section 1203 provides that,  
            prior to sentencing on a felony, the probation officer must  
            prepare a report to be provided to the court and to the  
            parties at least 5 days, or 9 days upon request of the  
            defendant or prosecuting attorney, before the sentencing  
            hearing.

            "This bill would authorize a court to grant the defendant's  
            request for continuance when the probation department fails to  








                                                                    AB 1214


                                                                    Page  11


            provide the report by the 5-day or 9-day deadline, only if the  
            court finds good cause to grant the continuance.

            "This bill is not needed. Penal Code section 1050, subdivision  
            (d) already provides that the court cannot continue a criminal  
            hearing unless it finds good cause.

            "There is no need to separately state that again in Penal Code  
            section 1203.  Our Penal Code is already way too long and  
            prolix.  It does not need repetitive verbiage."

          5)Prior Legislation:  SB 794 (Evans), of the 2013-2014  
            Legislative Session, would have proposed to limit the  
            defendant is to five preemptory challenges in any criminal  
            case where the offense was punishable with a maximum term of  
            imprisonment of one year or less. SB 794 was never heard in  
            the Assembly Public Safety Committee.  

          REGISTERED SUPPORT / OPPOSITION:

          Support

          Judicial Council of California 
          California District Attorneys Association


          Opposition


          California Attorneys for Criminal Justice
          California Public Defenders Association



          Analysis Prepared  
          by:              David Billingsley / PUB. S. / (916) 319-3744














                                                                    AB 1214


                                                                    Page  12