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 2022,end delete 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. The bill would, until January 1, begin delete 2022,end delete 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.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
The Legislature finds and declares all of the
3(a) Intermediate sanctions, including, but not limited to, flash
4incarceration, balance holding offenders accountable for violations
5of their conditions of supervision while focusing on shorter and
6fewer disruptions from work, home, and programming.
7(b) Strategies that combine evidence-based practices, including
8structured decisionmaking matrices, provide tools needed to
9respond to violations with a proportionately matched response
10through graduated sanctions.
11(c) The use of structured sanction and reward policies based on
12evidence-based tools helps to maintain offender engagement in
13programs and assists in the process of positive behavior change.
14(d) The use of incentives can be a powerful tool in shaping client
15behavior and promoting positive behavior change.
16(e) Violations can be reduced when responses to noncompliant
17behavior are swift, certain, and proportional to the client’s behavior.
Section 1170 of the Penal Code, as amended by Section
191 of Chapter 378 of the Statutes of 2015, is amended to read:
(a) (1) The Legislature finds and declares that the
21purpose of imprisonment for crime is punishment. This purpose
22is best served by terms proportionate to the seriousness of the
23offense with provision for uniformity in the sentences of offenders
24committing the same offense under similar circumstances. The
25Legislature further finds and declares that the elimination of
26disparity and the provision of uniformity of sentences can best be
27achieved by determinate sentences fixed by statute in proportion
28to the seriousness of the offense as determined by the Legislature
29to be imposed by the court with specified discretion.
30(2) Notwithstanding paragraph (1), the Legislature further finds
31and declares that programs should be available for inmates,
32 including, but not limited to, educational programs, that are
33designed to prepare nonviolent felony offenders for successful
34reentry into the community. The Legislature encourages the
35development of policies and programs designed to educate and
P3 1rehabilitate nonviolent felony offenders. In implementing this
2section, the Department of Corrections and Rehabilitation is
3encouraged to give priority enrollment in programs to promote
4successful return to the community to an inmate with a short
5remaining term of commitment and a release date that would allow
6him or her adequate time to complete the program.
7(3) In any case in which the punishment prescribed by statute
8for a person convicted of a public offense is a term of imprisonment
9in the state prison or a term pursuant to subdivision (h) of any
10specification of three time periods, the court shall sentence the
11defendant to one of the terms of imprisonment specified unless
12the convicted person is given any other disposition provided by
13law, including a fine, jail, probation, or the suspension of
14imposition or execution of sentence or is sentenced pursuant to
15subdivision (b) of Section 1168 because he or she had committed
16his or her crime prior to July 1, 1977. In sentencing the convicted
17person, the court shall apply the sentencing rules of the Judicial
18Council. The court, unless it determines that there are
19circumstances in mitigation of the punishment prescribed, shall
20also impose any other term that it is required by law to impose as
21an additional term. Nothing in this article shall affect any provision
22of law that imposes the death penalty, that authorizes or restricts
23the granting of probation or suspending the execution or imposition
24of sentence, or expressly provides for imprisonment in the state
25prison for life, except as provided in paragraph (2) of subdivision
26(d). In any case in which the amount of preimprisonment credit
27under Section 2900.5 or any other law is equal to or exceeds any
28 sentence imposed pursuant to this chapter, except for the remaining
29portion of mandatory supervision pursuant to subparagraph (B) of
30paragraph (5) of subdivision (h), the entire sentence shall be
31deemed to have been served, except for the remaining period of
32mandatory supervision, and the defendant shall not be actually
33delivered to the custody of the secretary or to the custody of the
34county correctional administrator. The court shall advise the
35defendant that he or she shall serve an applicable period of parole,
36postrelease community supervision, or mandatory supervision,
37and order the defendant to report to the parole or probation office
38closest to the defendant’s last legal residence, unless the in-custody
39credits equal the total sentence, including both confinement time
40and the period of parole, postrelease community supervision, or
P4 1mandatory supervision. The sentence shall be deemed a separate
2prior prison term or a sentence of imprisonment in a county jail
3under subdivision (h) for purposes of Section 667.5, and a copy
4of the judgment and other necessary documentation shall be
5forwarded to the secretary.
6(b) When a judgment of imprisonment is to be imposed and the
7statute specifies three possible terms, the choice of the appropriate
8term shall rest within the sound discretion of the court. At least
9four days prior to the time set for imposition of judgment, either
10party or the victim, or the family of the victim if the victim is
11deceased, may submit a statement in aggravation or mitigation. In
12determining the appropriate term, the court may consider the record
13in the case, the probation officer’s report, other reports, including
14reports received pursuant to Section 1203.03, and statements in
15aggravation or mitigation submitted by the prosecution, the
16defendant, or the victim, or the family of the victim if the victim
17is deceased, and any further evidence introduced at the sentencing
18hearing. The court shall select the term which, in the court’s
19discretion, best serves the interests of justice. The court shall set
20forth on the record the reasons for imposing the term selected and
21the court may not impose an upper term by using the fact of any
22enhancement upon which sentence is imposed under any provision
23of law. A term of imprisonment shall not be specified if imposition
24of sentence is suspended.
25(c) The court shall state the reasons for its sentence choice on
26the record at the time of sentencing. The court shall also inform
27the defendant that as part of the sentence after expiration of the
28term he or she may be on parole for a period as provided in Section
293000 or 3000.08 or postrelease community supervision for a period
30as provided in Section 3451.
31(d) (1) When a defendant subject to this section or subdivision
32(b) of Section 1168 has been sentenced to be imprisoned in the
33state prison or county jail pursuant to subdivision (h) and has been
34committed to the custody of the secretary or the county correctional
35administrator, the court may, within 120 days of the date of
36commitment on its own motion, or at any time upon the
37recommendation of the secretary or the Board of Parole Hearings
38in the case of state prison inmates, or the county correctional
39administrator in the case of county jail inmates, recall the sentence
40and commitment previously ordered and resentence the defendant
P5 1in the same manner as if he or she had not previously been
2sentenced, provided the new sentence, if any, is no greater than
3the initial sentence. The court resentencing under this subdivision
4shall apply the sentencing rules of the Judicial Council so as to
5eliminate disparity of sentences and to promote uniformity of
6sentencing. Credit shall be given for time served.
7(2) (A) (i) When a defendant who was under 18
years of age
8at the time of the commission of the offense for which the
9defendant was sentenced to imprisonment for life without the
10possibility of parole has served at least 15 years of that sentence,
11the defendant may submit to the sentencing court a petition for
12recall and resentencing.
13(ii) Notwithstanding clause (i), this paragraph shall not apply
14to defendants sentenced to life without parole for an offense where
15the defendant tortured, as described in Section 206, his or her
16victim or the victim was a public safety official, including any law
17enforcement personnel mentioned in Chapter 4.5 (commencing
18with Section 830) of Title 3, or any firefighter as described in
19Section 245.1, as well as any other officer in any segment of law
20enforcement who is employed by the federal government, the state,
21or any of its political subdivisions.
22(B) The defendant shall file the original
petition with the
23sentencing court. A copy of the petition shall be served on the
24agency that prosecuted the case. The petition shall include the
25defendant’s statement that he or she was under 18 years of age at
26the time of the crime and was sentenced to life in prison without
27the possibility of parole, the defendant’s statement describing his
28or her remorse and work towards rehabilitation, and the defendant’s
29statement that one of the following is true:
30(i) The defendant was convicted pursuant to felony murder or
31aiding and abetting murder provisions of law.
32(ii) The defendant does not have juvenile felony adjudications
33for assault or other felony crimes with a significant potential for
34personal harm to victims prior to the offense for which the sentence
35is being considered for recall.
36(iii) The defendant committed
the offense with at least one adult
38(iv) The defendant has performed acts that tend to indicate
39rehabilitation or the potential for rehabilitation, including, but not
40limited to, availing himself or herself of rehabilitative, educational,
P6 1or vocational programs, if those programs have been available at
2his or her classification level and facility, using self-study for
3self-improvement, or showing evidence of remorse.
4(C) If any of the information required in subparagraph (B) is
5missing from the petition, or if proof of service on the prosecuting
6agency is not provided, the court shall return the petition to the
7defendant and advise the defendant that the matter cannot be
8considered without the missing information.
9(D) A reply to the petition, if any, shall be filed with the court
10within 60 days of the date on which the prosecuting agency was
11served with the petition, unless a continuance is granted for good
13(E) If the court finds by a preponderance of the evidence that
14the statements in the petition are true, the court shall hold a hearing
15to consider whether to recall the sentence and commitment
16previously ordered and to resentence the defendant in the same
17manner as if the defendant had not previously been sentenced,
18provided that the new sentence, if any, is not greater than the initial
19sentence. Victims, or victim family members if the victim is
20deceased, shall retain the rights to participate in the hearing.
21(F) The factors that the court may consider when determining
22whether to recall and resentence include, but are not limited to,
24(i) The defendant was convicted pursuant to felony
25aiding and abetting murder provisions of law.
26(ii) The defendant does not have juvenile felony adjudications
27for assault or other felony crimes with a significant potential for
28personal harm to victims prior to the offense for which the sentence
29is being considered for recall.
30(iii) The defendant committed the offense with at least one adult
32(iv) Prior to the offense for which the sentence is being
33considered for recall, the defendant had insufficient adult support
34or supervision and had suffered from psychological or physical
35trauma, or significant stress.
36(v) The defendant suffers from cognitive limitations due to
37mental illness, developmental disabilities, or other factors that did
38not constitute a defense, but influenced the defendant’s
39involvement in the offense.
P7 1(vi) The defendant has performed acts that tend to indicate
2rehabilitation or the potential for rehabilitation, including, but not
3limited to, availing himself or herself of rehabilitative, educational,
4or vocational programs, if those programs have been available at
5his or her classification level and facility, using self-study for
6self-improvement, or showing evidence of remorse.
7(vii) The defendant has maintained family ties or connections
8with others through letter writing, calls, or visits, or has eliminated
9contact with individuals outside of prison who are currently
10involved with crime.
11(viii) The defendant has had no disciplinary actions for violent
12activities in the last five years in which the defendant was
13determined to be the aggressor.
14(G) The court shall have the discretion to recall the sentence
15and commitment previously ordered and to resentence the
16defendant in the same manner as if the defendant had not
17previously been sentenced, provided that the new sentence, if any,
18is not greater than the initial sentence. The discretion of the court
19shall be exercised in consideration of the criteria in subparagraph
20(B). Victims, or victim family members if the victim is deceased,
21shall be notified of the resentencing hearing and shall retain their
22rights to participate in the hearing.
23(H) If the sentence is not recalled, the defendant may submit
24another petition for recall and resentencing to the sentencing court
25when the defendant has been committed to the custody of the
26department for at least 20 years. If recall and resentencing is not
27granted under that petition, the defendant may file another petition
28after having served 24 years. The final petition may be submitted,
29and the response to that petition shall be determined, during the
3025th year of the defendant’s sentence.
31(I) In addition to the criteria in subparagraph (F), the court may
32consider any other criteria that the court deems relevant to its
33decision, so long as the court identifies them on the record,
34provides a statement of reasons for adopting them, and states why
35the defendant does or does not satisfy the criteria.
36(J) This subdivision shall have retroactive application.
37(e) (1) Notwithstanding any other law and consistent with
38paragraph (1) of subdivision (a), if the secretary or the Board of
39Parole Hearings or both determine that a prisoner satisfies the
P8 1criteria set forth in paragraph (2), the secretary or the board may
2recommend to the court that the prisoner’s sentence be recalled.
3(2) The court shall have the discretion to resentence or recall if
4the court finds that the facts described in subparagraphs (A) and
5(B) or subparagraphs (B) and (C) exist:
6(A) The prisoner is terminally ill with an incurable condition
7caused by an illness or disease that would produce death within
8six months, as determined by a physician employed by the
10(B) The conditions under which the prisoner would be released
11or receive treatment do not pose a threat to public safety.
12(C) The prisoner is permanently medically incapacitated with
13a medical condition that renders him or her permanently unable
14to perform activities of basic daily living, and results in the prisoner
15requiring 24-hour total care, including, but not limited to, coma,
16persistent vegetative state, brain death, ventilator-dependency, loss
17of control of muscular or neurological function, and that
18incapacitation did not exist at the time of the original sentencing.
19The Board of Parole Hearings shall make findings pursuant to
20this subdivision before making a recommendation for resentence
21or recall to the court. This subdivision does not apply to a prisoner
22sentenced to death or a term of life without the possibility of parole.
23(3) Within 10 days of receipt of a positive recommendation by
24the secretary or the board, the court shall hold a hearing to consider
25whether the prisoner’s sentence should be recalled.
26(4) Any physician employed by the department who determines
27that a prisoner has six months or less to live shall notify the chief
28medical officer of the prognosis. If the chief medical officer
29concurs with the prognosis, he or she shall notify the warden.
30Within 48 hours of receiving notification, the warden or the
31warden’s representative shall notify the prisoner of the recall and
32resentencing procedures, and shall arrange for the prisoner to
33designate a family member or other outside agent to be notified
34as to the prisoner’s medical condition and prognosis, and as to the
35recall and resentencing procedures. If the inmate is deemed
36mentally unfit, the warden or the warden’s representative shall
37contact the inmate’s emergency contact and provide the information
38described in paragraph (2).
39(5) The warden or the warden’s representative shall provide the
40prisoner and his or her family member, agent, or emergency
P9 1contact, as described in paragraph (4), updated information
2throughout the recall and resentencing process with regard to the
3prisoner’s medical condition and the status of the prisoner’s recall
4and resentencing proceedings.
5(6) Notwithstanding any other provisions of this section, the
6prisoner or his or her family member or designee may
7independently request consideration for recall and resentencing
8by contacting the chief medical officer at the prison or the
9secretary. Upon receipt of the request, the chief medical officer
10and the warden or the warden’s representative shall follow the
11procedures described in paragraph (4). If the secretary determines
12that the prisoner satisfies the criteria set forth in paragraph (2), the
13secretary or board may recommend to the court that the prisoner’s
14sentence be recalled. The secretary shall submit a recommendation
15for release within 30 days in the case of inmates sentenced to
16determinate terms and, in the case of inmates sentenced to
17indeterminate terms, the secretary shall make a recommendation
18to the Board of Parole Hearings with respect to the inmates who
19have applied under this section. The board shall consider this
20information and make an independent judgment pursuant to
21paragraph (2) and make findings related thereto before rejecting
22the request or making a recommendation to the court. This action
23shall be taken at the next lawfully noticed board meeting.
24(7) Any recommendation for recall submitted to the court by
25the secretary or the Board of Parole Hearings shall include one or
26more medical evaluations, a postrelease plan, and findings pursuant
27to paragraph (2).
28(8) If possible, the matter shall be heard before the same judge
29of the court who sentenced the prisoner.
30(9) If the court grants the recall and resentencing application,
31the prisoner shall be released by the department within 48 hours
32of receipt of the court’s order, unless a longer time period is agreed
33to by the inmate. At the time of release, the warden or the warden’s
34representative shall ensure that the prisoner has each of the
35following in his or her possession: a discharge medical summary,
36full medical records, state identification, parole or postrelease
37community supervision medications, and all property belonging
38to the prisoner. After discharge, any additional records shall be
39sent to the prisoner’s forwarding address.
P10 1(10) The secretary shall issue a directive to medical and
2correctional staff employed by the department that details the
3guidelines and procedures for initiating a recall and resentencing
4procedure. The directive shall clearly state that any prisoner who
5is given a prognosis of six months or less to live is eligible for
6recall and resentencing consideration, and that recall and
7resentencing procedures shall be initiated upon that prognosis.
8(11) The provisions of this
subdivision shall be available to an
9inmate who is sentenced to a county jail pursuant to subdivision
10(h). For purposes of those inmates, “secretary” or “warden” shall
11mean the county correctional administrator and “chief medical
12officer” shall mean a physician designated by the county
13correctional administrator for this purpose.
14(f) Notwithstanding any other provision of this section, for
15purposes of paragraph (3) of subdivision (h), any allegation that
16a defendant is eligible for state prison due to a prior or current
17conviction, sentence enhancement, or because he or she is required
18to register as a sex offender shall not be subject to dismissal
19pursuant to Section 1385.
20(g) A sentence to state prison for a determinate term for which
21only one term is specified, is a sentence to state prison under this
23(h) (1) Except as provided in paragraph (3), a felony punishable
24pursuant to this subdivision where the term is not specified in the
25underlying offense shall be punishable by a term of imprisonment
26in a county jail for 16 months, or two or three years.
27(2) Except as provided in paragraph (3), a felony punishable
28pursuant to this subdivision shall be punishable by imprisonment
29in a county jail for the term described in the underlying offense.
30(3) Notwithstanding paragraphs (1) and (2), where the defendant
31(A) has a prior or current felony conviction for a serious felony
32described in subdivision (c) of Section 1192.7 or a prior or current
33conviction for a violent felony described in subdivision (c) of
34Section 667.5, (B) has a prior felony conviction in another
35jurisdiction for an offense that has all the elements of a serious
36felony described in subdivision (c) of Section 1192.7 or a violent
37felony described in subdivision (c) of Section 667.5, (C) is required
38to register as a sex offender pursuant to Chapter 5.5 (commencing
39with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
40and as part of the sentence an enhancement pursuant to Section
P11 1186.11 is imposed, an executed sentence for a felony punishable
2pursuant to this subdivision shall be served in state prison.
3(4) Nothing in this subdivision shall be construed to prevent
4other dispositions authorized by law, including pretrial diversion,
5deferred entry of judgment, or an order granting probation pursuant
6to Section 1203.1.
7(5) (A) Unless the court finds that, in the interests of justice, it
8is not appropriate in a particular case, the court, when imposing a
9sentence pursuant to paragraph (1) or (2), shall suspend execution
10of a concluding portion of the term for a period selected at the
11court’s discretion. For any defendant whose term is suspended
12pursuant to this paragraph prior to January 1, 2022, if the court
13suspends execution of a concluding portion of the term, the court
14may take a waiver from the defendant permitting flash incarceration
15by the probation officer during that concluding portion, pursuant
16to Section 1203.35.
17(B) The portion of a defendant’s sentenced term that is
18suspended pursuant to this paragraph shall be known as mandatory
19supervision, and, unless otherwise ordered by the court, shall
20commence upon release from physical custody or an alternative
21custody program, whichever is later. During the period of
22mandatory supervision, the defendant shall be supervised by the
23county probation officer in accordance with the terms, conditions,
24and procedures generally applicable to persons placed on probation,
25for the remaining unserved portion of the sentence imposed by the
26court. The period of supervision shall be mandatory, and may not
27be earlier terminated except by court order. Any proceeding to
28revoke or modify mandatory supervision under this subparagraph
29shall be conducted pursuant to either subdivisions (a) and (b) of
30Section 1203.2 or Section 1203.3. During the period when the
31defendant is under that supervision, unless in actual custody related
32to the sentence imposed by the court, the defendant shall be entitled
33to only actual time credit against the term of imprisonment imposed
34by the court. Any time period which is suspended because a person
35has absconded shall not be credited toward the period of
37(6) The sentencing changes made by the act that added this
38subdivision shall be applied prospectively to any person sentenced
39on or after October 1, 2011.
P12 1(7) The sentencing changes made to paragraph (5) by the act
2that added this paragraph shall become effective and operative on
3January 1, 2015, and shall be applied prospectively to any person
4sentenced on or after January 1, 2015.
5(i) This section shall remain in effect only until January 1, 2017,
6and as of that date is repealed, unless a later enacted statute, that
7is enacted before that date, deletes or extends that date.
Section 1203 of the Penal Code is amended to
(a) As used in this code, “probation” means the
12suspension of the imposition or execution of a sentence and the
13order of conditional and revocable release in the community under
14the supervision of a probation officer. As used in this code,
15“conditional sentence” means the suspension of the imposition or
16execution of a sentence and the order of revocable release in the
17community subject to conditions established by the court without
18the supervision of a probation officer. It is the intent of the
19Legislature that both conditional sentence and probation are
20authorized whenever probation is authorized in any code as a
21sentencing option for infractions or misdemeanors.
22(b) (1) Except as provided in subdivision (j), if a person is
23convicted of a felony and is eligible for probation, before judgment
24is pronounced, the court shall immediately refer the matter to a
25probation officer to investigate and report to the court, at a specified
26time, upon the circumstances surrounding the crime and the prior
27history and record of the person, which may be considered either
28in aggravation or mitigation of the punishment.
29(2) (A) The probation officer shall immediately investigate and
30make a written report to the court of his or her findings and
31recommendations, including his or her recommendations as to the
32granting or denying of probation and the conditions of probation,
34(B) Pursuant to Section 828 of the Welfare and
35Code, the probation officer shall include in his or her report any
36information gathered by a law enforcement agency relating to the
37taking of the defendant into custody as a minor, which shall be
38considered for purposes of determining whether adjudications of
39commissions of crimes as a juvenile warrant a finding that there
P13 1are circumstances in aggravation pursuant to Section 1170 or to
3(C) If the person was convicted of an offense that requires him
4or her to register as a sex offender pursuant to Sections 290 to
5290.023, inclusive, or if the probation report recommends that
6registration be ordered at sentencing pursuant to Section 290.006,
7the probation officer’s report shall include the results of the
8State-Authorized Risk Assessment Tool for Sex Offenders
9(SARATSO) administered pursuant to Sections 290.04 to 290.06,
10inclusive, if applicable.
11(D) The probation officer may also include in the report his or
12her recommendation of both of the following:
13(i) The amount the defendant should be required to pay as a
14restitution fine pursuant to subdivision (b) of Section 1202.4.
15(ii) Whether the court shall require, as a condition of probation,
16restitution to the victim or to the Restitution Fund and the amount
18(E) The report shall be made available to the court and the
19prosecuting and defense attorneys at least five days, or upon request
20of the defendant or prosecuting attorney nine days, prior to the
21time fixed by the court for the hearing and determination of the
22report, and shall be filed with the clerk of the court as a record in
23the case at the time of the hearing. The time within which the report
24shall be made available and filed may be waived by written
25stipulation of the prosecuting and defense attorneys that is filed
26with the court or an oral stipulation in open court that is made and
27entered upon the minutes of the court.
28(3) At a time fixed by the court, the court shall hear and
29determine the application, if one has been made, or, in any case,
30the suitability of probation in the particular case. At the hearing,
31the court shall consider any report of the probation officer,
32including the results of the SARATSO, if applicable, and shall
33make a statement that it has considered the report, which shall be
34filed with the clerk of the court as a record in the case. If the court
35determines that there are circumstances in mitigation of the
36punishment prescribed by law or that the ends of justice would be
37served by granting probation to the person, it may place the person
38on probation. If probation is denied, the clerk of the court shall
39immediately send a copy of the report to the Department of
P14 1Corrections and Rehabilitation at the prison or other institution to
2which the person is delivered.
3(4) The preparation of the report or the consideration of the
4report by the court may be waived only by a written stipulation of
5the prosecuting and defense attorneys that is filed with the court
6or an oral stipulation in open court that is made and entered upon
7the minutes of the court, except that a waiver shall not be allowed
8unless the court consents thereto. However, if the defendant is
9ultimately sentenced and committed to the state prison, a probation
10report shall be completed pursuant to Section 1203c.
11(c) If a defendant is not represented by an attorney, the court
12shall order the probation officer who makes the probation report
13to discuss its contents with the defendant.
14(d) If a person is convicted of a misdemeanor, the court may
15either refer the matter to the probation officer for an investigation
16and a report or summarily pronounce a conditional sentence. If
17the person was convicted of an offense that requires him or her to
18register as a sex offender pursuant to Sections 290 to 290.023,
19inclusive, or if the probation officer recommends that the court,
20at sentencing, order the offender to register as a sex offender
21pursuant to Section 290.006, the court shall refer the matter to the
22probation officer for the purpose of obtaining a report on the results
23of the State-Authorized Risk Assessment Tool for Sex Offenders
24administered pursuant to Sections 290.04 to 290.06, inclusive, if
25applicable, which the court shall consider. If the case is not referred
26to the probation officer, in sentencing the person, the court may
27consider any information concerning the person that could have
28been included in a probation report. The court shall inform the
29person of the information to be considered and permit him or her
30to answer or controvert the information. For this purpose, upon
31the request of the person, the court shall grant a continuance before
32the judgment is pronounced.
33(e) Except in unusual cases where the interests of justice would
34best be served if the person is granted probation, probation shall
35not be granted to any of the following persons:
36(1) Unless the person had a lawful right to carry a deadly
37weapon, other than a firearm, at the time of the perpetration of the
38crime or his or her arrest, any person who has been convicted of
39arson, robbery, carjacking, burglary, burglary with explosives,
40rape with force or violence, torture, aggravated mayhem, murder,
P15 1attempt to commit murder, trainwrecking, kidnapping, escape from
2the state prison, or a conspiracy to commit one or more of those
3crimes and who was armed with the weapon at either of those
5(2) Any person who used, or attempted to use, a deadly weapon
6upon a human being in connection with the perpetration of the
7crime of which he or she has been convicted.
8(3) Any person who
willfully inflicted great bodily injury or
9torture in the perpetration of the crime of which he or she has been
11(4) Any person who has been previously convicted twice in this
12state of a felony or in any other place of a public offense which,
13if committed in this state, would have been punishable as a felony.
14(5) Unless the person has never been previously convicted once
15in this state of a felony or in any other place of a public offense
16which, if committed in this state, would have been punishable as
17a felony, any person who has been convicted of burglary with
18explosives, rape with force or violence, torture, aggravated
19mayhem, murder, attempt to commit murder, trainwrecking,
20extortion, kidnapping, escape from the state prison, a violation of
21Section 286, 288, 288a, or 288.5, or a conspiracy to commit one
22or more of those crimes.
23(6) Any person who has been previously convicted once in this
24state of a felony or in any other place of a public offense which,
25if committed in this state, would have been punishable as a felony,
26if he or she committed any of the following acts:
27(A) Unless the person had a lawful right to carry a deadly
28weapon at the time of the perpetration of the previous crime or his
29or her arrest for the previous crime, he or she was armed with a
30weapon at either of those times.
31(B) The person used, or attempted to use, a deadly weapon upon
32a human being in connection with the perpetration of the previous
34(C) The person willfully inflicted great bodily injury or torture
35in the perpetration of the previous crime.
36(7) Any public official or peace officer of this state or any city,
37county, or other political subdivision who, in the discharge of the
38duties of his or her public office or employment, accepted or gave
39or offered to accept or give any bribe, embezzled public money,
40or was guilty of extortion.
P16 1(8) Any person who knowingly furnishes or gives away
3(9) Any person who intentionally inflicted great bodily injury
4in the commission of arson under subdivision (a) of Section 451
5or who intentionally set fire to, burned, or caused the burning of,
6an inhabited structure or inhabited property in violation of
7subdivision (b) of Section 451.
8(10) Any person who, in the commission of a felony, inflicts
9great bodily injury or causes the death of a human being by the
10discharge of a firearm from or at an occupied motor vehicle
11proceeding on a public street or highway.
12(11) Any person who possesses a short-barreled rifle or a
13short-barreled shotgun under Section 33215, a machinegun under
14Section 32625, or a silencer under Section 33410.
15(12) Any person who is convicted of violating Section 8101 of
16the Welfare and Institutions Code.
17(13) Any person who is described in subdivision (b) or (c) of
19(f) When probation is granted in a case which comes within
20subdivision (e), the court shall specify on the record and shall enter
21on the minutes the circumstances indicating that the interests of
22justice would best be served by that disposition.
23(g) If a person is not eligible for probation, the judge shall refer
24the matter to the probation officer for an investigation of the facts
25relevant to determination of the amount of a restitution fine
26pursuant to subdivision (b) of Section 1202.4 in all cases where
27the determination is applicable. The judge, in his or her discretion,
28may direct the probation officer to investigate all facts relevant to
29the sentencing of the person. Upon that referral, the probation
30officer shall immediately investigate the circumstances surrounding
31the crime and the prior record and history of the person and make
32 a written report to the court of his or her findings. The findings
33shall include a recommendation of the amount of the restitution
34fine as provided in subdivision (b) of Section 1202.4.
35(h) If a defendant is convicted of a felony and a probation report
36is prepared pursuant to subdivision (b) or (g), the probation officer
37may obtain and include in the report a statement of the comments
38of the victim concerning the offense. The court may direct the
39probation officer not to obtain a statement if the victim has in fact
40testified at any of the court proceedings concerning the offense.
P17 1(i) A probationer shall not be released to enter another state
2unless his or her case has been referred to the Administrator of the
3Interstate Probation and Parole Compacts, pursuant to the Uniform
4Act for Out-of-State Probationer or Parolee Supervision (Article
53 (commencing with Section 11175) of Chapter 2 of Title 1 of Part
64) and the probationer has reimbursed the county that has
7jurisdiction over his or her probation case the reasonable costs of
8processing his or her request for interstate compact supervision.
9The amount and method of reimbursement shall be in accordance
10with Section 1203.1b.
11(j) In any court where a county financial evaluation officer is
12available, in addition to referring the matter to the probation officer,
13the court may order the defendant to appear before the county
14financial evaluation officer for a financial evaluation of the
15defendant’s ability to pay restitution, in which case the county
16financial evaluation officer shall report his or her findings regarding
17restitution and other court-related costs to the probation officer on
18the question of the defendant’s ability to pay those costs.
19Any order made pursuant to this subdivision may be enforced
20as a violation of the terms and conditions of probation upon willful
21failure to pay and at the discretion of the court, may be enforced
22in the same manner as a judgment in a civil action, if any balance
23remains unpaid at the end of the defendant’s probationary period.
24(k) Probation shall not be granted to, nor shall the execution of,
25or imposition of sentence be suspended for, any person who is
26convicted of a violent felony, as defined in subdivision (c) of
27Section 667.5, or a serious felony, as defined in subdivision (c) of
28Section 1192.7, and who was on probation for a felony offense at
29the time of the commission of the new felony offense.
30(l) For any person granted probation prior to January 1,
begin delete 2022,end delete
31 at the time the court imposes probation, the court may take
32a waiver from the defendant permitting flash incarceration by the
33probation officer, pursuant to Section 1203.35.
Section 1203.35 is added to the Penal Code, to read:
(a) (1) In any case where the court grants probation
37or imposes a sentence that includes mandatory supervision, the
38county probation department is authorized to use flash incarceration
39for any violation of the conditions of probation or mandatory
40supervision if, at the time of granting probation or ordering
P18 1mandatory supervision, the court obtains from the defendant a
2waiver to a court hearing prior to the imposition of a period of
begin delete The waiver shall authorize the probation officer,
4if the person on probation or mandatory supervision does not agree
5to accept a recommended period of flash incarceration upon a
6finding of a violation, to address the alleged violation by filing a
7declaration or revocation request with the court. The probation
8department shall notify the court, public defender, district attorney,
9and sheriff of each imposition of flash incarceration.end delete
11(2) Each county probation department shall develop a response
12matrix that establishes protocols for the imposition of graduated
13sanctions for violations of the conditions of probation to determine
14appropriate interventions to include the use of flash incarceration.
15(3) A supervisor shall approve the term of flash incarceration
16prior to the imposition of flash incarceration.
begin deleteProbation shall not be denied for refusal to sign the waiver. end delete
27(b) For purposes of this section, “flash incarceration” is a period
28of detention in a county jail due to a violation of an offender’s
29conditions of probation or mandatory supervision. The length of
30the detention period may range between one and 10 consecutive
31days. Shorter, but if necessary more frequent, periods of detention
32for violations of an offender’s conditions of probation or mandatory
33supervision shall appropriately punish an offender while preventing
34the disruption in a work or home establishment that typically arises
35from longer periods of detention. In cases where there are multiple
36violations in a single incident, only one flash incarceration booking
37is authorized and may range between one and 10 consecutive days.
38(c) This section shall not apply to any defendant sentenced
39pursuant to Section 1210.1.
P19 1(d) This section shall remain in effect only until January 1,
begin delete 2022,end delete
2 and as of that date is repealed, unless a later enacted statute,
3that is enacted before January 1,
begin delete 2022,end delete deletes or extends
Section 4019 of the Penal Code is amended to read:
(a) The provisions of this section shall apply in all of
8the following cases:
9(1) When a prisoner is confined in or committed to a county
10jail, industrial farm, or road camp or any city jail, industrial farm,
11or road camp, including all days of custody from the date of arrest
12to the date on which the serving of the sentence commences, under
13a judgment of imprisonment or of a fine and imprisonment until
14the fine is paid in a criminal action or proceeding.
15(2) When a prisoner is confined in or committed to the county
16jail, industrial farm, or road camp or any city jail, industrial farm,
17or road camp as a condition of probation after suspension of
18imposition of a sentence or suspension of execution of sentence
19in a criminal action or proceeding.
20(3) When a prisoner is confined in or committed to the county
21jail, industrial farm, or road camp or any city jail, industrial farm,
22or road camp for a definite period of time for contempt pursuant
23to a proceeding other than a criminal action or proceeding.
24(4) When a prisoner is confined in a county jail, industrial farm,
25or road camp or a city jail, industrial farm, or road camp following
26arrest and prior to the imposition of sentence for a felony
28(5) When a prisoner is confined in a county jail, industrial farm,
29or road camp or a city jail, industrial farm, or road camp as part
30 of custodial sanction imposed following a violation of postrelease
31community supervision or parole.
32(6) When a prisoner is confined in a county jail, industrial farm,
33or road camp or a city jail, industrial farm, or road camp as a result
34of a sentence imposed pursuant to subdivision (h) of Section 1170.
35(7) When a prisoner participates in a program pursuant to
36Section 1203.016 or Section 4024.2. Except for prisoners who
37have already been deemed eligible to receive credits for
38participation in a program pursuant to Section 1203.016 prior to
39January 1, 2015, this paragraph shall apply prospectively.
P20 1(b) Subject to the provisions of subdivision (d), for each four-day
2period in which a prisoner is confined in or committed to a facility
3as specified in this section, one day shall be deducted from his or
4her period of confinement unless it appears by the record that the
5prisoner has refused to satisfactorily perform labor as assigned by
6the sheriff, chief of police, or superintendent of an industrial farm
7or road camp.
8(c) For each four-day period in which a prisoner is confined in
9or committed to a facility as specified in this section, one day shall
10be deducted from his or her period of confinement unless it appears
11by the record that the prisoner has not satisfactorily complied with
12the reasonable rules and regulations established by the sheriff,
13chief of police, or superintendent of an industrial farm or road
15(d) This section does not require the sheriff, chief of police, or
16superintendent of an industrial farm or road camp to assign labor
17to a prisoner if it appears from the record that the prisoner has
18refused to satisfactorily perform labor as assigned or that the
19prisoner has not satisfactorily complied with the reasonable rules
20and regulations of the sheriff, chief of police, or superintendent of
21any industrial farm or road camp.
22(e) A deduction shall not be made under this section unless the
23 person is committed for a period of four days or longer.
24(f) It is the intent of the Legislature that if all days are earned
25under this section, a term of four days will be deemed to have been
26served for every two days spent in actual custody.
27(g) The changes in this section as enacted by the act that added
28this subdivision shall apply to prisoners who are confined to a
29county jail, city jail, industrial farm, or road camp for a crime
30committed on or after the effective date of that act.
31(h) The changes to this section enacted by the act that added
32this subdivision shall apply prospectively and shall apply to
33prisoners who are confined to a county jail, city jail, industrial
34farm, or road camp for a crime committed on or after October 1,
352011. Any days earned by a prisoner prior to October 1, 2011,
36shall be calculated at the rate required by the prior law.
37(i) (1) This section shall not apply, and no credits may be
38earned, for periods of flash incarceration imposed pursuant to
39Section 3000.08 or 3454.
P21 1(2) Credits earned pursuant to this section for a period of flash
2incarceration pursuant to Section 1203.35 shall, if the person’s
3probation or mandatory supervision is revoked, count towards the
4term to be served.
5(j) This section shall remain in effect only until January 1,
begin delete 2022,end delete
6 and as of that date is repealed, unless a later enacted statute,
7that is enacted before January 1,
begin delete 2022,end delete deletes or extends
Section 4019 is added to the Penal Code, to read:
(a) The provisions of this section shall apply in all of
12the following cases:
13(1) When a prisoner is confined in or committed to a county
14jail, industrial farm, or road camp or any city jail, industrial farm,
15or road camp, including all days of custody from the date of arrest
16to the date on which the serving of the sentence commences, under
17a judgment of imprisonment or of a fine and imprisonment until
18the fine is paid in a criminal action or proceeding.
19(2) When a prisoner is confined in or committed to the county
20jail, industrial farm, or road camp or any city jail, industrial farm,
21or road camp as a condition of probation after suspension of
22imposition of a sentence or suspension of execution of sentence
23in a criminal action or proceeding.
24(3) When a prisoner is confined in or committed to the county
25jail, industrial farm, or road camp or any city jail, industrial farm,
26or road camp for a definite period of time for contempt pursuant
27to a proceeding other than a criminal action or proceeding.
28(4) When a prisoner is confined in a county jail, industrial farm,
29or road camp or a city jail, industrial farm, or road camp following
30arrest and prior to the imposition of sentence for a felony
32(5) When a prisoner is confined in a county jail, industrial farm,
33or road camp or a city jail, industrial farm, or road camp as part
34of custodial sanction imposed following a violation of postrelease
35community supervision or parole.
36(6) When a prisoner is confined in a county jail, industrial farm,
37or road camp or a city jail, industrial farm, or road camp as a result
38of a sentence imposed pursuant to subdivision (h) of Section 1170.
39(7) When a prisoner participates in a program pursuant to
40Section 1203.016 or Section 4024.2. Except for prisoners who
P22 1have already been deemed eligible to receive credits for
2participation in a program pursuant to Section 1203.016 prior to
3January 1, 2015, this paragraph shall apply prospectively.
4(b) Subject to the provisions of subdivision (d), for each four-day
5period in which a prisoner is confined in or committed to a facility
6as specified in this section, one day shall be deducted from his or
7her period of confinement unless it appears by the record that the
8prisoner has refused to satisfactorily perform labor as assigned by
9the sheriff, chief of police, or superintendent of an industrial farm
10or road camp.
11(c) For each four-day period in which a prisoner is confined in
12or committed to a facility as specified in this section, one day shall
13be deducted from his or her period of confinement unless it appears
14by the record that the prisoner has not satisfactorily complied with
15the reasonable rules and regulations established by the sheriff,
16chief of police, or superintendent of an industrial farm or road
18(d) This section does not require the sheriff, chief of police, or
19superintendent of an industrial farm or road camp to assign labor
20to a prisoner if it appears from the record that the prisoner has
21refused to satisfactorily perform labor as assigned or that the
22prisoner has not satisfactorily complied with the reasonable rules
23and regulations of the sheriff, chief of police, or superintendent of
24any industrial farm or road camp.
25(e) A deduction shall not be made under this section unless the
26person is committed for a period of four days or longer.
27(f) It is the intent of the Legislature that if all days are earned
28under this section, a term of four days will be deemed to have been
29served for every two days spent in actual custody.
30(g) The changes in this section as enacted by the act that added
31this subdivision shall apply to prisoners who are confined to a
32county jail, city jail, industrial farm, or road camp for a crime
33committed on or after the effective date of that act.
34(h) The changes to this section enacted by the act that added
35this subdivision shall apply prospectively and shall apply to
36prisoners who are confined to a county jail, city jail, industrial
37farm, or road camp for a crime committed on or after October 1,
382011. Any days earned by a prisoner prior to October 1, 2011,
39shall be calculated at the rate required by the prior law.
P23 1(i) This section shall not apply, and no credits may be earned,
2for periods of flash incarceration imposed pursuant to Section
33000.08 or 3454.
4(j) This section shall become
operative on January 1,
begin delete 2022.end delete