BILL ANALYSIS Ó
AB 2205
Page 1
Date of Hearing: April 5, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2205 (Dodd) - As Amended March 30, 2016
SUMMARY: Overturns a Supreme Court case holding that a court
lacks jurisdiction to adjudicate violations of probation
occurring after the original term of probation ends.
Specifically, this bill:
1)Provides that the period of time during any revocation of
probation, mandatory supervision, or post-release community
supervision, summary or otherwise, shall not be credited
toward any period of supervision, except that such as stay
cannot extend beyond five years from the date of the summary
revocation unless the court finds that an even longer stay is
needed based on the seriousness of the current conviction or
on the defendant's past criminal record.
2)Prohibits the extended stay from lasting more than 10 years
from the date of the last summary revocation.
3)States that, as to mandatory supervision and post-release
community supervision, the person shall not remain in custody
for a period longer than the term of supervision authorized by
statute.
EXISTING LAW:
AB 2205
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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." (Pen. Code, § 1203, subd. (a).)
2)Gives the court discretion in felony cases to grant probation
for up to five years, or no longer than the prison term that
can be imposed when the prison term exceeds five years. (Pen.
Code, § 1203.1, subd. (a).)
3)Gives the court discretion in misdemeanor cases to generally
grant probation for up to three years, or no longer than the
consecutive sentence imposed if more than three years. (Pen.
Code, § 1203a.)
4)Allows a probation officer, parole officer, or peace officer
to arrest a person without warrant or other process during the
period that a person is released on probation, conditional
sentence or summary probation, mandatory supervision,
postrelease community supervision, or parole supervision, if
the officer has probable cause to believe that the supervised
person is violating the terms of his or her supervision.
(Pen. Code, § 1203.2, subd. (a).)
5)Authorizes a court to revoke and terminate the supervision of
the person if the interests of justice so require and the
court, in its judgment, has reason to believe from the report
of the probation or parole officer or otherwise that the
person has violated any of the conditions of his or her
supervision, has become abandoned to improper associates or a
vicious life, or has subsequently committed other offenses,
regardless whether he or she has been prosecuted for such
offenses. (Pen. Code, § 1203.2, subd. (a).)
6)Prohibits the revocation of supervision for the defendant's
failure to pay restitution imposed as a condition of
supervision unless the court determines that the defendant has
willfully failed to pay and has the ability to pay. (Pen.
Code, § 1203.2, subd. (a).)
7)States that the revocation, summary or otherwise, shall serve
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to toll the running of the period of supervision. (Pen. Code,
§ 1203.2, subd. (a).)
8)Provides that a court, upon its own motion or upon the
petition of the supervised person, the probation or parole
officer, or the district attorney, may modify, revoke, or
terminate supervision of the person pursuant to this
subdivision. (Pen. Code, § 1203.2, subd. (b)(1).)
9)States that, upon any revocation and termination of probation
the court may, if the sentence has been suspended, pronounce
judgment for any time within the longest period for which the
person might have been sentenced. On the other hand, if the
judgment has been pronounced and its execution suspended, the
court may revoke the suspension and order that the judgment be
in full force and effect. (Pen. Code, § 1203.2, subd. (c).)
10)Provides that the probationary period terminates
automatically on the last day. (Pen. Code, § 1203.3, subd.
(b)(3).)
11)States that if a probationer is committed to prison for
another offense, the court which placed him or her on
probation has the jurisdiction to impose sentence. (Pen.
Code, § 1203.2a.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "This bill
clarifies that, for all three types of supervision -
probation, mandatory and post-release community supervision --
time elapsed during the revocation period shall not be
credited toward any period of supervision. Thus, if a court
summarily revokes supervision, this bill preserves court
authority to determine the consequences of all alleged
supervision violations, both those that occurred during the
original supervision term and those that occurred after the
court revoked supervision.
"Under AB 2205, once a court has regained physical custody and
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determined that a person has violated supervision, a court may
require the person to comply with court-imposed terms and
conditions of supervision, whether or not the violation
occurred during the original term of supervision. As a result
this bill not only enhances public safety, but also supports
the goal of Criminal Justice Realignment to reduce recidivism
through rehabilitative supervision."
2)Expiration of Supervision: In the absence of an order revoking
probation, probation expires by operation of law on the last
day of the probationary period. (Pen. Code, § 1203.3, subd.
(b)(3).) After that, the court has no jurisdiction over the
person. (In re Griffin (1967) 67 Cal.2d 343, 346; Hilton v.
Superior Court (2014) 239 Cal.App.4th 766, 772-773.) However,
an agreement by defense counsel or the defendant to a
probationary period longer than the maximum statutory period
estops a claim that probation has expired. (People v. Ford
(2015) 61 Cal.4th 282, 286-288; People v. Jackson (2005) 134
Cal.App.4th 929, 933.)
A term of mandatory supervision lasts for the remaining unserved
portion of the sentence imposed by the court. (Pen. Code, §
1170, subd. (h)(5)(B).)
A term of post-release community supervision lasts for three
years from the date of the initial entry onto post-release
community supervision, except where the supervision has been
tolled. (Pen. Code, § 3455, subd. (e).)
3)Summary Revocation: A trial court has the authority to
modify, revoke or terminate probation at any time during the
probationary period. (Pen. Code, §§ 1203.2, subd. (b)(1);
1203.3, subd. (a).) This power includes the power to extend
the probationary term. "A change in circumstances is required
before a court has jurisdiction to extend or otherwise modify
probation." (People v. Cookson (1991) 54 Cal.3d 1091, 1095.)
The revocation process is generally divided into two components:
the summary revocation and a subsequent formal revocation
hearing where a final decision is made whether to reinstate,
permanently revoke or terminate probation. The court may
summarily revoke a defendant's probation at any time during
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the period of probation if it believes the defendant has
violation probation. (Pen. Code, § 1203.2, subd. (a).) A
summary revocation serves to toll the running of the
probationary period. (Id.)
Revocation, modification, and tolling of post-release community
supervision functions similarly. (See Pen. Code, § 3455,
citing Pen. Code, § 1203.2.)
4)Tolling of Probation: Courts were divided regarding the
effect of the tolling provision in Penal Code § 1203.2,
subdivision (a). Specifically, the question courts had
disagreed on is whether the tolling provision permits a trial
court to find a violation of probation and then reinstate or
terminate probation based solely on conduct that occurred
after the original probationary period had expired. In People
v. Tapia (2001), 91 Cal.App.4th 738, the court held that "a
summary revocation of probation suspends the running of the
probationary period and permits extension of the term of
probation if, and only if, the probation is reinstated based
upon a violation that occurred during the unextended period of
probation. (Tapia, supra, 91 Cal.App.4th at p. 741.) In
People v. Salas (2012) 210 Cal.App.4th 974, the court
disagreed with the Tapia court and held that the summary
revocation suspended the running of defendant's probationary
term until a future date where the trial court either
reinstates probation, executes sentence or discharges the
defendant from probation. (Salas, supra, 210 Cal.App.4th at
pp. 979-980.)
In People v. Leiva (2013) 56 Cal.4th 498, the California Supreme
Court resolved the issue and held that the tolling provision
preserves the trial court's authority to adjudicate in a
subsequent formal probation violation hearing whether the
probationer violated probation during, but not after, the
court-imposed probationary period. (Id. at p. 502.).
5)People v. Leiva, supra, 56 Cal.4th 498: In Leiva, the
defendant was placed on probation for a period of three years
on April 11, 2000. (Leiva, supra, 56 Cal.4th at p. 502.)
Among the probation conditions imposed were orders that the
defendant report to the probation officer following his
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release from county jail and that he not reenter the county
illegally if he was deported. (Ibid.) On the day defendant
was released from jail, he was deported to El Salvador.
(Ibid.) In September 2001, the trial court summarily revoked
probation and issued a bench warrant after defendant failed to
report to the probation officer. (Ibid.) At the time,
neither the probation department nor the court knew that the
reason for the failure to report or to appear in court was the
deportation. (Ibid.)
In November 2008, defendant was brought to court on the
probation violation following his arrest on a traffic matter.
(Leiva, supra, 56 Cal. 4th at p. 503.) By the time of the
formal violation hearing on February 13, 2009, the court and
parties knew of defendant's involuntary deportation and the
prosecutor conceded that he could not show that the 2001
failure to report had been a willful probation violation.
(Ibid.) Defense counsel argued that probation must be
terminated since there was no evidence of any probation
violation during the original term of probation. (Ibid.)
However, the court found that defendant did violate probation
when he failed to report to probation following his return to
the United States. The court reinstated probation and ordered
it extended until June 6, 2011 and additionally ordered that,
if defendant voluntarily left the country again or was
deported, he must report to his probation officer within 24
hours of his return to the United States and present proof
that he was in the country legally. Defendant appealed.
(Ibid.)
Defendant was deported again in March of 2009, and in June of
2009 the court summarily revoked his probation based on
failure to report to the probation officer and issued a bench
warrant for his arrest. (Leiva, supra, 56 Cal. 4th at pp.
503-504.) Defendant later returned to California and was
arrested on the outstanding warrant. On October 9, 2009, the
trial court held a formal probation violation hearing and
found that defendant had violated his probation for
re-entering the country illegally in 2009. The court ordered
that probation remain revoked and sentenced defendant to two
years in state prison based on one of the counts to which
defendant had pleaded no contest in 2000. (Id. at p. 504.)
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On appeal, defendant argued that the trial court erred by
finding a violation of probation based on conduct that
occurred after his original three-year probationary period
expired. (Ibid.) The Court of Appeal rendered a split
decision with the majority upholding the trial court's
decisions. The California Supreme Court reversed the
judgments of the Court of Appeal. (Ibid.)
In construing the tolling provision in Penal Code Section
1203.2, subdivision (a), the California Supreme Court held
that the statute "preserves the trial court's authority to
adjudicate, in a subsequent formal probation violation
hearing, whether the probationer violated probation during,
but not after, the court-imposed probationary period." (Leiva,
supra, 56 Cal. 4th at p. 502.) The Court rejected a reading
of the tolling provision "as allowing a trial court, through
summary revocation, to extend indefinitely the conditions and
terms of probation until a formal revocation proceeding can be
held." (Id. at p. 509.) The Court stated that such
interpretation "raises serious due process concerns because .
. . [it] would extend a defendant's probationary term
indefinitely without notice or a hearing as to the propriety
of such an increase." (Ibid.)
The Court also relied on legislative history to determine that
the tolling language was added to Penal Code Section 1203.2,
subdivision (a) to address jurisdictional problems that can
arise when a formal revocation hearing cannot be held during
the court-imposed period of probation. (Leiva, supra, 56 Cal.
4th at p. 511.) The Court referenced "the Assembly Committee
on Criminal Justice's comments to Senate Bill 426 to support
the conclusion that the Legislature in 1977 was focused on
preserving the jurisdiction of the trial court to hold formal
probation violation hearings that met . . . [due process]
requirements after the period of probation had expired. . . .
[The Legislature] expressed concern that former section 1203.2
did not address the situation in which a trial court summarily
revoked probation and the defendant did not appear in court on
the violation. Senate Bill 426 was considered a 'cleanup
measure' (citation omitted), designed to preserve a trial
court's authority to hold a full hearing on an alleged
probation violation that occurred during the court-imposed
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probationary period." (Id. at pp. 512-513.)
The ruling in Leiva is supported by long-standing case law. As
early as 1918, a Court of Appeal held that the trial court
loses jurisdiction or power to make an order revoking or
modifying the order after the probationary period has expired.
(People v. O'Donnell (1918) 37 Cal.App. 192, 196-197.) Once a
revocation order is in effect, the trial court retains
jurisdiction in the case only to pronounce judgment by
imposing the sentence if imposition of sentence had been
suspended, or by ordering execution of the previously ordered
but suspended sentence. (People v.Williams (1944) 24 Cal.2d
848, 851-854.) The court must find that the probationer
violated probation during the original period of probation,
even if the term of probation was tolled, in order for the
trial court to retain jurisdiction to revoke probation after
the expiration of the probation term. (People v. Burton
(2009) 177 Cal.App. 4th 194, 200; People v. Tapia, supra, 91
Cal.App.4th at p. 741.)
The Leiva decision does not prevent a court from holding
absconders accountable. If a probationer absconds at any time
during the period of probation and the court summarily revokes
probation, the probationer is not relieved of the duty to
comply with the probation terms and conditions. There is "no
'window' during the probationary term which allows the
probationer to be free from the terms and conditions
originally imposed or later modified." (People v. Lewis
(1992) 7 Cal.App.4th 1949, 1954.) Therefore, all terms and
conditions of probation including restitution orders, search
and seizure, and the requirement to obey all laws would still
be in effect during the court-imposed term of probation after
a summary revocation. Once the absconder is found and brought
back to court, the court has the jurisdiction to find that the
person violated probation for all conduct that occurred during
the original probation term.
Overturning Leiva would mean that the terms and conditions of
probation could remain in effect for years after the original
term of probation has expired. As stated in the Leiva case,
this "would result in absurd consequences and present
constitutional concerns. . ." (Leiva, supra, 56 Cal. 4th at
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p.509.) Even if a probation violation within the original
term of probation is not proven, the person would still be
subject to all of the terms and conditions during the entire
time that the probation term is tolled.
This bill would overturn People v. Leiva, supra, 56 Cal.4th
498. The bill extends the period of supervision after a
summary revocation by requiring all terms and conditions of
supervision to remain in effect during the tolling time
period, regardless of whether the originally imposed period of
supervision has expired. But rather than extending the
supervisory period indefinitely, as was the concern in Leiva,
the bill provides that the supervisory period can be extended
for up to 5 years, unless the court decides that based on the
defendant's record, the supervisory period should last for up
to 10 years.
That the supervisory period will last 5 or 10 years, rather
than indefinitely, does not alleviate the due process
concerns. Notably, this potential stay will be double, or
triple (or more) the original term of supervision. The court
can impose additional sanctions perhaps a decade after the
supervision should have ended. And this decade-long extension
will have occurred without notice or a hearing as to the
propriety of such an increase. (People v. Leiva, supra, 56
Cal.4th at p. 509.)
It bears repeating that the court can still hold a defendant
accountable for any violations committed during the mandated
supervisory period. And if a person commits a new violation
of law after that period of supervision, the prosecutor is
authorized to file new charges.
6)Argument in Support: According to the Judicial Council of
California, the sponsor of this bill, "AB 2205 clarifies that,
for all three types of supervision-probation, mandatory and
post-release community supervision-time elapsed during the
revocation period shall not be credited toward any period of
supervision. Thus, if a court summarily revokes supervision,
AB 2205 preserves court authority to determine the
consequences of all alleged supervision vioaltions, both those
that occurred during the original supervision term and those
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that occurred after the court revoked supervision.
"Under AB 2205, once a court has regained physical custody and
determined that a person has violated supervision, a court may
require the person to comply with court-imposed terms and
conditions of supervision, whether or not the violation
occurred during the original term of the supervision. As a
result, this bill not only enhances public safety, but also
supports the goal of Criminal Justice Realignment to reduce
recidivism through rehabilitative supervision.
"Finally, AB 2205 enhances judicial discretion by preserving
court jurisdiction to adjudicate revocations of probation,
mandatory supervision, and postrelease community supervision."
7)Argument in Opposition: According to the American Civil
Liberties Union of California, "For all forms of supervised
release, the court may summarily revoke the supervised release
based on an allegation that the defendant violated the terms
and conditions of release. If the defendant is not present in
court when the supervised release is summarily revoked, the
court issues a bench warrant for the person's arrest. The
court must eventually hold a hearing to determine if there is
a factual basis for the alleged violation of the conditions of
release. (See People v. Leiva (2013) 56 Cal.4th 498, 504-505.)
"The question raised by the bill is what happens when the
hearing on the summary revocation is held after the original
period of supervised release has ended. AB 2205 seeks to
overturn a recent ruling of the California Supreme Court which
held that, in the case of probation specifically, if there is
no evidence that the defendant violated the terms of probation
during the original period of probation, the court may not
place the defendant back on probation after the original term
has lapsed. (People v. Leiva, 56 Cal.4th at pp. 502.) On the
other hand, the Leiva court made clear that the judge may
reinstate and extend probation if there is evidence that the
defendant violated the terms and conditions of probation
during the period of supervised release, even if the violation
is not adjudicated until years later. (Ibid.) AB 2205 seeks to
undo that ruling and allow a court to place a person back on
probation, based on evidence that he or she did not comply
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with the conditions of probation after the probationary period
had lapsed, and seeks to extend that new rule to the other
forms of court supervised release: mandatory supervision and
postrelease community supervision.
"We believe that the rule announced by the California Supreme
Court in Leiva is fair and should not be changed. The Leiva
decision made clear that if a person violates the terms of
probation during the probationary period, the court may
reinstate and extend probation, even if the defendant is not
brought before the court for the hearing on the summary
revocation until years later. We agree with the California
Supreme Court that is it unfair to allow the court to place
someone back on probation based on conduct that did not occur
during the original probationary term. This rule provides the
court with the ability to respond to proven, willful
violations of probation that occur during the probationary
period, even if the defendant evades the jurisdiction of the
court for some time. At the same time, the rule prevents the
unfairness of placing people back on probation years later,
when there is no actual evidence that they violated the
conditions of supervised release during the period originally
imposed by the court. (Id. at pp. 516-517.) ?
"The sponsor of AB 2205, the Judicial Council, appears to think
that the Leiva ruling prevents the court from placing a
defendant back on supervised release after the original term
has ended if the defendant 'absconded.' If by 'absconded,'
the Council means the person intentionally absented himself or
herself from the courts' jurisdiction, then we disagree with
this interpretation. If a person intentionally avoids the
jurisdiction of the supervising court, that is a violation of
the terms and conditions of supervised release and, under
Leiva, a sound basis for reinstating and extending the period
of supervised release."
8)Related Legislation: AB 2477 (Patterson) would overturn case
law holding that a court lacks jurisdiction to modify a
restitution order after the defendant's probation expires,
thereby extending jurisdiction for restitution indefinitely
AB 2477 failed passage and reconsideration was granted in this
committee.
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9)Prior Legislation: AB 2339 (Quirk), of the 2013-2014
Legislative Session, would have required that all the terms
and conditions of probation supervision remain in effect
during the time period that the running of probation
supervision is tolled as a result of a summary revocation by
the court. AB 2339 was pulled by the author.
REGISTERED SUPPORT / OPPOSITION:
Support
Judicial Council (Sponsor)
California District Attorneys Association
California Judges Association
California State Sheriffs' Association
Chief Probation Officers of California
Opposition
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744