BILL ANALYSIS Ó
AB 1214
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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).)
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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