Amended in Assembly June 2, 2016

Amended in Senate April 7, 2015

Senate Bill No. 266

Introduced by Senator Block

(Coauthor: Senator Anderson)

February 19, 2015

An act to begin insert amend Sections 1170 and 1203 of, to amend, repeal, and add Section 4019 of, and to end insert add and repeal Section 1203.35 begin delete of end delete begin insert of, end insert the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

SB 266, as amended, Block. Probation and mandatory supervision: flash incarceration.

Existing law authorizes probation and mandatory supervision, which in each case is a period of time when a defendant is released from incarceration and is subject to specified conditions and supervision by county probation authorities.

This bill would, until January 1, begin delete 2021, end delete begin insert 2022, end insert allow a court to authorize the use of flash incarceration, as defined, to detain the offender in county jail for not more than 10 days for a violation of his or her conditions of probation or mandatory supervision, as specified. These provisions would not apply to persons convicted of certain drug possession offenses. begin insert The bill would, until January 1, 2022, allow a person to receive credits earned for a period of flash incarceration pursuant to these provisions if his or her probation or mandatory supervision is revoked. end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert begin insert

The Legislature finds and declares all of the
following:

end insert begin insert

(a) Intermediate sanctions, including, but not limited to, flash
incarceration, balance holding offenders accountable for violations
of their conditions of supervision while focusing on shorter and
fewer disruptions from work, home, and programming.

end insert begin insert

(b) Strategies that combine evidence-based practices, including
structured decisionmaking matrices, provide tools needed to
respond to violations with a proportionately matched response
through graduated sanctions.

end insert begin insert

(c) The use of structured sanction and reward policies based
on evidence-based tools helps to maintain offender engagement
in programs and assists in the process of positive behavior change.

end insert begin insert

(d) The use of incentives can be a powerful tool in shaping client
behavior and promoting positive behavior change.

end insert begin insert

(e) Violations can be reduced when responses to noncompliant
behavior are swift, certain, and proportional to the client’s
behavior.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1170 of the end insert begin insert Penal Code end insert begin insert , as amended by Section
1 of Chapter 378 of the Statutes of 2015, is amended to read: end insert

1170.  

(a) (1) The Legislature finds and declares that the
purpose of imprisonment for crime is punishment. This purpose
is best served by terms proportionate to the seriousness of the
offense with provision for uniformity in the sentences of offenders
committing the same offense under similar circumstances. The
Legislature further finds and declares that the elimination of
disparity and the provision of uniformity of sentences can best be
achieved by determinate sentences fixed by statute in proportion
to the seriousness of the offense as determined by the Legislature
to be imposed by the court with specified discretion.

(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow
him or her adequate time to complete the program.

(3) In any case in which the punishment prescribed by statute
for a person convicted of a public offense is a term of imprisonment
in the state prison or a term pursuant to subdivision (h) of any
specification of three time periods, the court shall sentence the
defendant to one of the terms of imprisonment specified unless
the convicted person is given any other disposition provided by
law, including a fine, jail, probation, or the suspension of
imposition or execution of sentence or is sentenced pursuant to
subdivision (b) of Section 1168 because he or she had committed
his or her crime prior to July 1, 1977. In sentencing the convicted
person, the court shall apply the sentencing rules of the Judicial
Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall
also impose any other term that it is required by law to impose as
an additional term. Nothing in this article shall affect any provision
of law that imposes the death penalty, that authorizes or restricts
the granting of probation or suspending the execution or imposition
of sentence, or expressly provides for imprisonment in the state
prison for life, except as provided in paragraph (2) of subdivision
(d). In any case in which the amount of preimprisonment credit
under Section 2900.5 or any other law is equal to or exceeds any
sentence imposed pursuant to this chapter, except for the remaining
portion of mandatory supervision pursuant to subparagraph (B) of
paragraph (5) of subdivision (h), the entire sentence shall be
deemed to have been served, except for the remaining period of
mandatory supervision, and the defendant shall not be actually
delivered to the custody of the secretary or to the custody of the
county correctional administrator. The court shall advise the
defendant that he or she shall serve an applicable period of parole,
postrelease community supervision, or mandatory supervision,
and order the defendant to report to the parole or probation office
closest to the defendant’s last legal residence, unless the in-custody
credits equal the total sentence, including both confinement time
and the period of parole, postrelease community supervision, or
mandatory supervision. The sentence shall be deemed a separate
prior prison term or a sentence of imprisonment in a county jail
under subdivision (h) for purposes of Section 667.5, and a copy
of the judgment and other necessary documentation shall be
forwarded to the secretary.

(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court. At least
four days prior to the time set for imposition of judgment, either
party or the victim, or the family of the victim if the victim is
deceased, may submit a statement in aggravation or mitigation. In
determining the appropriate term, the court may consider the record
in the case, the probation officer’s report, other reports, including
reports received pursuant to Section 1203.03, and statements in
aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim
is deceased, and any further evidence introduced at the sentencing
hearing. The court shall select the term which, in the court’s
discretion, best serves the interests of justice. The court shall set
forth on the record the reasons for imposing the term selected and
the court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any provision
of law. A term of imprisonment shall not be specified if imposition
of sentence is suspended.

(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform
the defendant that as part of the sentence after expiration of the
term he or she may be on parole for a period as provided in Section
3000 or 3000.08 or postrelease community supervision for a period
as provided in Section 3451.

(d) (1) When a defendant subject to this section or subdivision
(b) of Section 1168 has been sentenced to be imprisoned in the
state prison or county jail pursuant to subdivision (h) and has been
committed to the custody of the secretary or the county correctional
administrator, the court may, within 120 days of the date of
commitment on its own motion, or at any time upon the
recommendation of the secretary or the Board of Parole Hearings
in the case of state prison inmates, or the county correctional
administrator in the case of county jail inmates, recall the sentence
and commitment previously ordered and resentence the defendant
in the same manner as if he or she had not previously been
sentenced, provided the new sentence, if any, is no greater than
the initial sentence. The court resentencing under this subdivision
shall apply the sentencing rules of the Judicial Council so as to
eliminate disparity of sentences and to promote uniformity of
sentencing. Credit shall be given for time served.

(2) (A) (i) When a defendant who was under 18 years of age
at the time of the commission of the offense for which the
defendant was sentenced to imprisonment for life without the
possibility of parole has served at least 15 years of that sentence,
the defendant may submit to the sentencing court a petition for
recall and resentencing.

(ii) Notwithstanding clause (i), this paragraph shall not apply
to defendants sentenced to life without parole for an offense where
the defendant tortured, as described in Section 206, his or her
victim or the victim was a public safety official, including any law
enforcement personnel mentioned in Chapter 4.5 (commencing
with Section 830) of Title 3, or any firefighter as described in
Section 245.1, as well as any other officer in any segment of law
enforcement who is employed by the federal government, the state,
or any of its political subdivisions.

(B) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant’s statement that he or she was under 18 years of age at
the time of the crime and was sentenced to life in prison without
the possibility of parole, the defendant’s statement describing his
or her remorse and work towards rehabilitation, and the defendant’s
statement that one of the following is true:

(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.

(ii) The defendant does not have juvenile felony adjudications
for assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.

(iii) The defendant committed the offense with at least one adult
codefendant.

(iv) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but not
limited to, availing himself or herself of rehabilitative, educational,
or vocational programs, if those programs have been available at
his or her classification level and facility, using self-study for
self-improvement, or showing evidence of remorse.

(C) If any of the information required in subparagraph (B) is
missing from the petition, or if proof of service on the prosecuting
agency is not provided, the court shall return the petition to the
defendant and advise the defendant that the matter cannot be
considered without the missing information.

(D) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency was
served with the petition, unless a continuance is granted for good
cause.

(E) If the court finds by a preponderance of the evidence that
the statements in the petition are true, the court shall hold a hearing
to consider whether to recall the sentence and commitment
previously ordered and to resentence the defendant in the same
manner as if the defendant had not previously been sentenced,
provided that the new sentence, if any, is not greater than the initial
sentence. Victims, or victim family members if the victim is
deceased, shall retain the rights to participate in the hearing.

(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to,
the following:

(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.

(ii) The defendant does not have juvenile felony adjudications
for assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.

(iii) The defendant committed the offense with at least one adult
codefendant.

(iv) Prior to the offense for which the sentence is being
considered for recall, the defendant had insufficient adult support
or supervision and had suffered from psychological or physical
trauma, or significant stress.

(v) The defendant suffers from cognitive limitations due to
mental illness, developmental disabilities, or other factors that did
not constitute a defense, but influenced the defendant’s
involvement in the offense.

(vi) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but not
limited to, availing himself or herself of rehabilitative, educational,
or vocational programs, if those programs have been available at
his or her classification level and facility, using self-study for
self-improvement, or showing evidence of remorse.

(vii) The defendant has maintained family ties or connections
with others through letter writing, calls, or visits, or has eliminated
contact with individuals outside of prison who are currently
involved with crime.

(viii) The defendant has had no disciplinary actions for violent
activities in the last five years in which the defendant was
determined to be the aggressor.

(G) The court shall have the discretion to recall the sentence
and commitment previously ordered and to resentence the
defendant in the same manner as if the defendant had not
previously been sentenced, provided that the new sentence, if any,
is not greater than the initial sentence. The discretion of the court
shall be exercised in consideration of the criteria in subparagraph
(B). Victims, or victim family members if the victim is deceased,
shall be notified of the resentencing hearing and shall retain their
rights to participate in the hearing.

(H) If the sentence is not recalled, the defendant may submit
another petition for recall and resentencing to the sentencing court
when the defendant has been committed to the custody of the
department for at least 20 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 24 years. The final petition may be submitted,
and the response to that petition shall be determined, during the
25th year of the defendant’s sentence.

(I) In addition to the criteria in subparagraph (F), the court may
consider any other criteria that the court deems relevant to its
decision, so long as the court identifies them on the record,
provides a statement of reasons for adopting them, and states why
the defendant does or does not satisfy the criteria.

(J) This subdivision shall have retroactive application.

(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner’s sentence be recalled.

(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:

(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within
six months, as determined by a physician employed by the
department.

(B) The conditions under which the prisoner would be released
or receive treatment do not pose a threat to public safety.

(C) The prisoner is permanently medically incapacitated with
a medical condition that renders him or her permanently unable
to perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.

The Board of Parole Hearings shall make findings pursuant to
this subdivision before making a recommendation for resentence
or recall to the court. This subdivision does not apply to a prisoner
sentenced to death or a term of life without the possibility of parole.

(3) Within 10 days of receipt of a positive recommendation by
the secretary or the board, the court shall hold a hearing to consider
whether the prisoner’s sentence should be recalled.

(4) Any physician employed by the department who determines
that a prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden.
Within 48 hours of receiving notification, the warden or the
warden’s representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified
as to the prisoner’s medical condition and prognosis, and as to the
recall and resentencing procedures. If the inmate is deemed
mentally unfit, the warden or the warden’s representative shall
contact the inmate’s emergency contact and provide the information
described in paragraph (2).

(5) The warden or the warden’s representative shall provide the
prisoner and his or her family member, agent, or emergency
contact, as described in paragraph (4), updated information
throughout the recall and resentencing process with regard to the
prisoner’s medical condition and the status of the prisoner’s recall
and resentencing proceedings.

(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may
independently request consideration for recall and resentencing
by contacting the chief medical officer at the prison or the
secretary. Upon receipt of the request, the chief medical officer
and the warden or the warden’s representative shall follow the
procedures described in paragraph (4). If the secretary determines
that the prisoner satisfies the criteria set forth in paragraph (2), the
secretary or board may recommend to the court that the prisoner’s
sentence be recalled. The secretary shall submit a recommendation
for release within 30 days in the case of inmates sentenced to
determinate terms and, in the case of inmates sentenced to
indeterminate terms, the secretary shall make a recommendation
to the Board of Parole Hearings with respect to the inmates who
have applied under this section. The board shall consider this
information and make an independent judgment pursuant to
paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.

(7) Any recommendation for recall submitted to the court by
the secretary or the Board of Parole Hearings shall include one or
more medical evaluations, a postrelease plan, and findings pursuant
to paragraph (2).

(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.

(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours
of receipt of the court’s order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden’s
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary,
full medical records, state identification, parole or postrelease
community supervision medications, and all property belonging
to the prisoner. After discharge, any additional records shall be
sent to the prisoner’s forwarding address.

(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who
is given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.

(11) The provisions of this subdivision shall be available to an
inmate who is sentenced to a county jail pursuant to subdivision
(h). For purposes of those inmates, “secretary” or “warden” shall
mean the county correctional administrator and “chief medical
officer” shall mean a physician designated by the county
correctional administrator for this purpose.

(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that
a defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required
to register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.

(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.

(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment
in a county jail for 16 months, or two or three years.

(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment
in a county jail for the term described in the underlying offense.

(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7 or a prior or current
conviction for a violent felony described in subdivision (c) of
Section 667.5, (B) has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a serious
felony described in subdivision (c) of Section 1192.7 or a violent
felony described in subdivision (c) of Section 667.5, (C) is required
to register as a sex offender pursuant to Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
and as part of the sentence an enhancement pursuant to Section
186.11 is imposed, an executed sentence for a felony punishable
pursuant to this subdivision shall be served in state prison.

(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.

(5) (A) Unless the court finds that, in the interests of justice, it
is not appropriate in a particular case, the court, when imposing a
sentence pursuant to paragraph (1) or (2), shall suspend execution
of a concluding portion of the term for a period selected at the
court’s discretion. begin insert For any defendant whose term is suspended
pursuant to this paragraph prior to January 1, 2022, if the court
suspends execution of a concluding portion of the term, the court
may take a waiver from the defendant permitting flash
incarceration by the probation officer during that concluding
portion, pursuant to Section 1203.35. end insert

(B) The portion of a defendant’s sentenced term that is
suspended pursuant to this paragraph shall be known as mandatory
supervision, and, unless otherwise ordered by the court, shall
commence upon release from physical custody or an alternative
custody program, whichever is later. During the period of
mandatory supervision, the defendant shall be supervised by the
county probation officer in accordance with the terms, conditions,
and procedures generally applicable to persons placed on probation,
for the remaining unserved portion of the sentence imposed by the
court. The period of supervision shall be mandatory, and may not
be earlier terminated except by court order. Any proceeding to
revoke or modify mandatory supervision under this subparagraph
shall be conducted pursuant to either subdivisions (a) and (b) of
Section 1203.2 or Section 1203.3. During the period when the
defendant is under that supervision, unless in actual custody related
to the sentence imposed by the court, the defendant shall be entitled
to only actual time credit against the term of imprisonment imposed
by the court. Any time period which is suspended because a person
has absconded shall not be credited toward the period of
supervision.

(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced
on or after October 1, 2011.

(7) The sentencing changes made to paragraph (5) by the act
that added this paragraph shall become effective and operative on
January 1, 2015, and shall be applied prospectively to any person
sentenced on or after January 1, 2015.

(i) This section shall remain in effect only until January 1, 2017,
and as of that date is repealed, unless a later enacted statute, that
is enacted before that date, deletes or extends that date.

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 1203 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1203.  

(a) As used in this code, “probation” means 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.

(b) (1) Except as provided in subdivision (j), 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.

(2) (A) The probation officer shall 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.

(B) Pursuant to Section 828 of the Welfare and Institutions
Code, the probation officer shall 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 pursuant to Section 1170 or to
deny probation.

(C) If the person was convicted of an offense that requires him
or her to register as a sex offender pursuant to Sections 290 to
290.023, inclusive, or if the probation report recommends that
registration be ordered at sentencing pursuant to Section 290.006,
the probation officer’s report shall include the results of the
State-Authorized Risk Assessment Tool for Sex Offenders
(SARATSO) administered pursuant to Sections 290.04 to 290.06,
inclusive, if applicable.

(D) The probation officer may also include in the report his or
her recommendation of both of the following:

(i) The amount the defendant should be required to pay as a
restitution fine pursuant to subdivision (b) of Section 1202.4.

(ii) Whether the court shall require, as a condition of probation,
restitution to the victim or to the Restitution Fund and the amount
thereof.

(E) The report shall 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.

(3) 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 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.

(4) 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.

(c) 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.

(d) 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 pursuant to Sections 290 to 290.023,
inclusive, or if the probation officer recommends that the court,
at sentencing, order the offender to register as a sex offender
pursuant to Section 290.006, 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
administered pursuant to Sections 290.04 to 290.06, inclusive, if
applicable, which the court shall consider. If the case is not 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.

(e) Except in unusual cases where the interests of justice would
best be served if the person is granted probation, probation shall
not be granted to any of the following persons:

(1) Unless the person had a lawful right to carry a deadly
weapon, other than a firearm, at the time of the perpetration of the
crime or his or her arrest, any person who has been convicted of
arson, robbery, carjacking, burglary, burglary with explosives,
rape with force or violence, torture, aggravated mayhem, murder,
attempt to commit murder, trainwrecking, kidnapping, escape from
the state prison, or a conspiracy to commit one or more of those
crimes and who was armed with the weapon at either of those
times.

(2) Any person who used, or attempted to use, a deadly weapon
upon a human being in connection with the perpetration of the
crime of which he or she has been convicted.

(3) Any person who willfully inflicted great bodily injury or
torture in the perpetration of the crime of which he or she has been
convicted.

(4) Any person who has been previously convicted twice in this
state of a felony or in any other place of a public offense which,
if committed in this state, would have been punishable as a felony.

(5) Unless the person has never been previously convicted once
in this state of a felony or in any other place of a public offense
which, if committed in this state, would have been punishable as
a felony, any person who has been convicted of burglary with
explosives, rape with force or violence, torture, aggravated
mayhem, murder, attempt to commit murder, trainwrecking,
extortion, kidnapping, escape from the state prison, a violation of
Section 286, 288, 288a, or 288.5, or a conspiracy to commit one
or more of those crimes.

(6) Any person who has been previously convicted once in this
state of a felony or in any other place of a public offense which,
if committed in this state, would have been punishable as a felony,
if he or she committed any of the following acts:

(A) Unless the person had a lawful right to carry a deadly
weapon at the time of the perpetration of the previous crime or his
or her arrest for the previous crime, he or she was armed with a
weapon at either of those times.

(B) The person used, or attempted to use, a deadly weapon upon
a human being in connection with the perpetration of the previous
crime.

(C) The person willfully inflicted great bodily injury or torture
in the perpetration of the previous crime.

(7) Any public official or peace officer of this state or any city,
county, or other political subdivision who, in the discharge of the
duties of his or her public office or employment, accepted or gave
or offered to accept or give any bribe, embezzled public money,
or was guilty of extortion.

(8) Any person who knowingly furnishes or gives away
phencyclidine.

(9) Any person who intentionally inflicted great bodily injury
in the commission of arson under subdivision (a) of Section 451
or who intentionally set fire to, burned, or caused the burning of,
an inhabited structure or inhabited property in violation of
subdivision (b) of Section 451.

(10) Any person who, in the commission of a felony, inflicts
great bodily injury or causes the death of a human being by the
discharge of a firearm from or at an occupied motor vehicle
proceeding on a public street or highway.

(11) Any person who possesses a short-barreled rifle or a
short-barreled shotgun under Section 33215, a machinegun under
Section 32625, or a silencer under Section 33410.

(12) Any person who is convicted of violating Section 8101 of
the Welfare and Institutions Code.

(13) Any person who is described in subdivision (b) or (c) of
Section 27590.

(f) When probation is granted in a case which comes within
subdivision (e), the court shall specify on the record and shall enter
on the minutes the circumstances indicating that the interests of
justice would best be served by that disposition.

(g) 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
pursuant to subdivision (b) of Section 1202.4 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 as provided in subdivision (b) of Section 1202.4.

(h) If a defendant is convicted of a felony and a probation report
is prepared pursuant to subdivision (b) or (g), 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.

(i) A probationer shall not be released to enter another state
unless his or her case has been referred to the Administrator of the
Interstate Probation and Parole Compacts, pursuant to the Uniform
Act for Out-of-State Probationer or Parolee Supervision (Article
3 (commencing with Section 11175) of Chapter 2 of Title 1 of Part
4) and the probationer has reimbursed the county that has
jurisdiction over his or her probation case the reasonable costs of
processing his or her request for interstate compact supervision.
The amount and method of reimbursement shall be in accordance
with Section 1203.1b.

(j) In any court where a county financial evaluation officer is
available, in addition to referring the matter to the probation officer,
the court may order the defendant to appear before the county
financial evaluation officer for a financial evaluation of the
defendant’s ability to pay restitution, in which case the county
financial evaluation officer shall report his or her findings regarding
restitution and other court-related costs to the probation officer on
the question of the defendant’s ability to pay those costs.

Any order made pursuant to this subdivision may be enforced
as a violation of the terms and conditions of probation upon willful
failure to pay and at the discretion of the court, may be enforced
in the same manner as a judgment in a civil action, if any balance
remains unpaid at the end of the defendant’s probationary period.

(k) Probation shall not be granted to, nor shall the execution of,
or imposition of sentence be suspended for, any person who is
convicted of a violent felony, as defined in subdivision (c) of
Section 667.5, or a serious felony, as defined in subdivision (c) of
Section 1192.7, and who was on probation for a felony offense at
the time of the commission of the new felony offense.

begin insert

(l) For any person granted probation prior to January 1, 2022,
at the time the court imposes probation, the court may take a
waiver from the defendant permitting flash incarceration by the
probation officer, pursuant to Section 1203.35.

end insert

begin delete SECTION 1. end delete

begin insert SEC. 4. end insert   

Section 1203.35 is added to the Penal Code, to read:

1203.35.  

(a)  begin insert (1) end insert begin insert   end insert In any case where the court grants probation
or imposes a sentence that includes mandatory supervision, the
begin delete court may authorize the end delete county probation begin delete officer end delete begin insert department is
authorized end insert to use flash incarceration for any violation of the
conditions of probation or mandatory begin delete supervision, end delete begin insert supervision end insert if,
at the time of granting probation or ordering mandatory
supervision, the court obtains from the defendant a waiver to a
court hearing prior to the imposition of a period of flash
incarceration. The waiver shall authorize the probation officer, if
the person on probation or mandatory supervision does not agree
to accept a recommended period of flash incarceration upon a
finding of a violation, to address the alleged violation by filing a
declaration or revocation request with the court. begin insert The probation
department shall notify the court, public defender, district attorney,
and sheriff of each imposition of flash incarceration. end insert

begin insert

(2) Each county probation department shall develop a response
matrix that establishes protocols for the imposition of graduated
sanctions for violations of the conditions of probation to determine
appropriate interventions to include the use of flash incarceration.

end insert begin insert

(3) A supervisor shall approve the term of flash incarceration
prior to the imposition of flash incarceration.

end insert begin insert

(4) Probation shall not be denied for refusal to sign the waiver.

end insert

(b) For purposes of this section, “flash incarceration” is a period
of detention in a county jail due to a violation of an offender’s
conditions of probation or mandatory supervision. The length of
the detention period may range between one and 10 consecutive
days. Shorter, but if necessary more frequent, periods of detention
for violations of an offender’s conditions of probation or mandatory
supervision shall appropriately punish an offender while preventing
the disruption in a work or home establishment that typically arises
from longer periods of detention. begin insert In cases where there are multiple
violations in a single incident, only one flash incarceration booking
is authorized and may range between one and 10 consecutive days. end insert

(c) This section shall not apply to any defendant sentenced
pursuant to Section 1210.1.

(d) This section shall remain in effect only until January 1, begin delete 2021, end delete
begin insert 2022, end insert and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, begin delete 2021, end delete begin insert 2022, end insert deletes or extends
that date.

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 4019 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

4019.  

(a) The provisions of this section shall apply in all of
the following cases:

(1) When a prisoner is confined in or committed to a county
jail, industrial farm, or road begin delete camp, end delete begin insert camp end insert or any city jail, industrial
farm, or road camp, including all days of custody from the date of
arrest to the date on which the serving of the sentence commences,
under a judgment of begin delete imprisonment, or end delete begin insert imprisonment or of end insert a fine
and imprisonment until the fine is paid in a criminal action or
proceeding.

(2) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial farm,
or road camp as a condition of probation after suspension of
imposition of a sentence or suspension of execution of begin delete sentence, end delete
begin insert sentence end insert in a criminal action or proceeding.

(3) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial farm,
or road camp for a definite period of time for contempt pursuant
to a begin delete proceeding, end delete begin insert proceeding end insert other than a criminal action or
proceeding.

(4) When a prisoner is confined in a county jail, industrial farm,
or road begin delete camp, end delete begin insert camp end insert or a city jail, industrial farm, or road camp
following arrest and prior to the imposition of sentence for a felony
conviction.

(5) When a prisoner is confined in a county jail, industrial farm,
or road begin delete camp, end delete begin insert camp end insert or a city jail, industrial farm, or road camp as
part of custodial sanction imposed following a violation of
postrelease community supervision or parole.

(6) When a prisoner is confined in a county jail, industrial farm,
or road begin delete camp, end delete begin insert camp end insert or a city jail, industrial farm, or road camp as
a result of a sentence imposed pursuant to subdivision (h) of
Section 1170.

(7) When a prisoner participates in a program pursuant to
Section 1203.016 or Section 4024.2. Except for prisoners who
have already been deemed eligible to receive credits for
participation in a program pursuant to Section 1203.016 prior to
January 1, 2015, this paragraph shall apply prospectively.

(b) Subject to the provisions of subdivision (d), for each four-day
period in which a prisoner is confined in or committed to a facility
as specified in this section, one day shall be deducted from his or
her period of confinement unless it appears by the record that the
prisoner has refused to satisfactorily perform labor as assigned by
the sheriff, chief of police, or superintendent of an industrial farm
or road camp.

(c) For each four-day period in which a prisoner is confined in
or committed to a facility as specified in this section, one day shall
be deducted from his or her period of confinement unless it appears
by the record that the prisoner has not satisfactorily complied with
the reasonable rules and regulations established by the sheriff,
chief of police, or superintendent of an industrial farm or road
camp.

(d) This section does not require the sheriff, chief of police, or
superintendent of an industrial farm or road camp to assign labor
to a prisoner if it appears from the record that the prisoner has
refused to satisfactorily perform labor as assigned or that the
prisoner has not satisfactorily complied with the reasonable rules
and regulations of the sheriff, chief of police, or superintendent of
any industrial farm or road camp.

(e) A deduction shall not be made under this section unless the
person is committed for a period of four days or longer.

(f) It is the intent of the Legislature that if all days are earned
under this section, a term of four days will be deemed to have been
served for every two days spent in actual custody.

(g) The changes in this section as enacted by the act that added
this subdivision shall apply to prisoners who are confined to a
county jail, city jail, industrial farm, or road camp for a crime
committed on or after the effective date of that act.

(h) The changes to this section enacted by the act that added
this subdivision shall apply prospectively and shall apply to
prisoners who are confined to a county jail, city jail, industrial
farm, or road camp for a crime committed on or after October 1,
2011. Any days earned by a prisoner prior to October 1, 2011,
shall be calculated at the rate required by the prior law.

(i) begin insert   end insert begin insert (1) end insert  This section shall not apply, and no credits may be
earned, for periods of flash incarceration imposed pursuant to
Section 3000.08 or 3454.

begin insert

(2) Credits earned pursuant to this section for a period of flash
incarceration pursuant to Section 1203.35 shall, if the person’s
probation or mandatory supervision is revoked, count towards the
term to be served.

end insert begin insert

(j) This section shall remain in effect only until January 1, 2022,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2022, deletes or extends that date.

end insert

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 4019 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 4019. end insert   

(a) The provisions of this section shall apply in all of
the following cases:

(1) When a prisoner is confined in or committed to a county
jail, industrial farm, or road camp or any city jail, industrial farm,
or road camp, including all days of custody from the date of arrest
to the date on which the serving of the sentence commences, under
a judgment of imprisonment or of a fine and imprisonment until
the fine is paid in a criminal action or proceeding.

(2) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial farm,
or road camp as a condition of probation after suspension of
imposition of a sentence or suspension of execution of sentence in
a criminal action or proceeding.

(3) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial farm,
or road camp for a definite period of time for contempt pursuant
to a proceeding other than a criminal action or proceeding.

(4) When a prisoner is confined in a county jail, industrial farm,
or road camp or a city jail, industrial farm, or road camp following
arrest and prior to the imposition of sentence for a felony
conviction.

(5) When a prisoner is confined in a county jail, industrial farm,
or road camp or a city jail, industrial farm, or road camp as part
of custodial sanction imposed following a violation of postrelease
community supervision or parole.

(6) When a prisoner is confined in a county jail, industrial farm,
or road camp or a city jail, industrial farm, or road camp as a
result of a sentence imposed pursuant to subdivision (h) of Section
1170.

(7) When a prisoner participates in a program pursuant to
Section 1203.016 or Section 4024.2. Except for prisoners who
have already been deemed eligible to receive credits for
participation in a program pursuant to Section 1203.016 prior to
January 1, 2015, this paragraph shall apply prospectively.

(b) Subject to the provisions of subdivision (d), for each four-day
period in which a prisoner is confined in or committed to a facility
as specified in this section, one day shall be deducted from his or
her period of confinement unless it appears by the record that the
prisoner has refused to satisfactorily perform labor as assigned
by the sheriff, chief of police, or superintendent of an industrial
farm or road camp.

(c) For each four-day period in which a prisoner is confined in
or committed to a facility as specified in this section, one day shall
be deducted from his or her period of confinement unless it appears
by the record that the prisoner has not satisfactorily complied with
the reasonable rules and regulations established by the sheriff,
chief of police, or superintendent of an industrial farm or road
camp.

(d) This section does not require the sheriff, chief of police, or
superintendent of an industrial farm or road camp to assign labor
to a prisoner if it appears from the record that the prisoner has
refused to satisfactorily perform labor as assigned or that the
prisoner has not satisfactorily complied with the reasonable rules
and regulations of the sheriff, chief of police, or superintendent
of any industrial farm or road camp.

(e) A deduction shall not be made under this section unless the
person is committed for a period of four days or longer.

(f) It is the intent of the Legislature that if all days are earned
under this section, a term of four days will be deemed to have been
served for every two days spent in actual custody.

(g) The changes in this section as enacted by the act that added
this subdivision shall apply to prisoners who are confined to a
county jail, city jail, industrial farm, or road camp for a crime
committed on or after the effective date of that act.

(h) The changes to this section enacted by the act that added
this subdivision shall apply prospectively and shall apply to
prisoners who are confined to a county jail, city jail, industrial
farm, or road camp for a crime committed on or after October 1,
2011. Any days earned by a prisoner prior to October 1, 2011,
shall be calculated at the rate required by the prior law.

(i) This section shall not apply, and no credits may be earned,
for periods of flash incarceration imposed pursuant to Section
3000.08 or 3454.

(j) This section shall become operative on January 1, 2022.

end insert