BILL NUMBER: AB 1306	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Leno

                        FEBRUARY 21, 2003

   An act to amend Section 1203.1b of, and to add Section 1203.95 to,
the Penal Code, relating to probation.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1306, as introduced, Leno.  Probation: transfer of cases.
   Existing law sets forth procedures under which a person released
upon probation may be transferred to the care and custody of the
probation officer of another county.  Existing law also authorizes
the court to order a probationer, pursuant to specified procedures,
to pay all or a portion of the reasonable cost of processing a
transfer of probation to another county. Existing law, added by an
initiative measure that permits amendment only by roll call vote of
2/3 of the membership of both houses of the Legislature, provides for
special terms and conditions of probation in cases involving
possession of controlled substances and related charges.
   This bill would provide special probation transfer procedures,
including a specific limitation on a the ability of the court in a
county to refuse to accept a transfer of jurisdiction over a
probationer, for people on probation under the initiative provisions
relating to controlled substance possession and similar charges.
Once transferred, the probationer would be under the jurisdiction of
the court in the new county for all purposes, including probation
supervision and treatment.
   By providing a special probation transfer process applicable only
to these controlled substance offenders, this bill would amend an
initiative requiring a 2/3 vote of both houses of the Legislature.
By requiring a county to accept a transfer of probation in certain
circumstances, obligating that county to provide supervision and
treatment, and to address violations of probation with prosecution
and other resources, this bill would impose a state-mandated local
program.
  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
   Vote:  2/3.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 1203.1b of the Penal Code is amended to read:
   1203.1b.  (a) In any case in which a defendant is convicted of an
offense and is the subject of any preplea or presentence
investigation and report, whether or not probation supervision is
ordered by the court, and in any case in which a defendant is granted
probation or given a conditional sentence, the probation officer, or
his or her authorized representative, taking into account any amount
that the defendant is ordered to pay in fines, assessments, and
restitution, shall make a determination of the ability of the
defendant to pay all or a portion of the reasonable cost of any
probation supervision or a conditional sentence, of conducting any
preplea investigation and preparing any preplea report pursuant to
Section 1203.7, of conducting any presentence investigation and
preparing any presentence report made pursuant to Section 1203, and
of processing a jurisdictional transfer pursuant to Section 1203.9 or
of processing a request for interstate compact supervision pursuant
to Sections 11175 to 11179, inclusive, whichever applies.  The
reasonable cost of these services and of probation supervision or a
conditional sentence shall not exceed the amount determined to be the
actual average cost thereof.  A payment schedule for the
reimbursement of the costs of preplea or presentence investigations
based on income shall be developed by the probation department of
each county and approved by the presiding  judge of the superior
court.  The court shall order the defendant to appear before the
probation officer, or his or her authorized representative, to make
an inquiry into the ability of the defendant to pay all or a portion
of these costs.  The probation officer, or his or her authorized
representative, shall determine the amount of payment and the manner
in which the payments shall be made to the county, based upon the
defendant's ability to pay.  The probation officer shall inform the
defendant that the defendant is entitled to a hearing, that includes
the right to counsel, in which the court shall make a determination
of the defendant's ability to pay and the payment amount.  The
defendant must waive the right to a determination by the court of his
or her ability to pay and the payment amount by a knowing and
intelligent waiver.
   (b) When the defendant fails to waive the right provided in
subdivision (a) to a determination by the court of his or her ability
to pay and the payment amount, the probation officer shall refer the
matter to the court for the scheduling of a hearing to determine the
amount of payment and the manner in which the payments shall be
made.  The court shall order the defendant to pay the reasonable
costs if it determines that the defendant has the ability to pay
those costs based on the report of the probation officer, or his or
her authorized representative.  The following shall apply to a
hearing conducted pursuant to this subdivision:
   (1) At the hearing, the defendant shall be entitled to have, but
shall not be limited to, the opportunity to be heard in person, to
present witnesses and other documentary evidence, and to confront and
cross-examine adverse witnesses, and to disclosure of the evidence
against the defendant, and a written statement of the findings of the
court or the probation officer, or his or her authorized
representative.
   (2) At the hearing, if the court determines that the defendant has
the ability to pay all or part of the costs, the court shall set the
amount to be reimbursed and order the defendant to pay that sum to
the county in the manner in which the court believes reasonable and
compatible with the defendant's financial ability.
   (3) At the hearing, in making a determination of whether a
defendant has the ability to pay, the court shall take into account
the amount of any fine imposed upon the defendant and any amount the
defendant has been ordered to pay in restitution.
   (4) When the court determines that the defendant's ability to pay
is different from the determination of the probation officer, the
court shall state on the record the reason for its order.
   (c) The court may hold additional hearings during the probationary
or conditional sentence period to review the defendant's financial
ability to pay the amount, and in the manner, as set by the probation
officer, or his or her authorized representative, or as set by the
court pursuant to this section.
   (d) If practicable, the court shall order or the probation officer
shall set payments pursuant to subdivisions (a) and (b) to be made
on a monthly basis.  Execution may be issued on the order issued
pursuant to this section in the same manner as a judgment in a civil
action.  The order to pay all or part of the costs shall not be
enforced by contempt.
   (e) The term "ability to pay" means the overall capability of the
defendant to reimburse the costs, or a portion of the costs, of
conducting the presentence investigation, preparing the preplea or
presentence report, processing a jurisdictional transfer pursuant to
Section 1203.9  or 1203.95  , processing requests for
interstate compact supervision pursuant to Sections 11175 to 11179,
inclusive, and probation supervision or conditional sentence, and
shall include, but shall not be limited to, the defendant's:
   (1) Present financial position.
   (2) Reasonably discernible future financial position.  In no event
shall the court consider a period of more than one year from the
date of the hearing for purposes of determining reasonably
discernible future financial position.
   (3) Likelihood that the defendant shall be able to obtain
employment within the one-year period from the date of the hearing.
   (4) Any other factor or factors that may bear upon the defendant's
financial capability to reimburse the county for the costs.
   (f) At any time during the pendency of the judgment rendered
according to the terms of this section, a defendant against whom a
judgment has been rendered may petition the probation officer for a
review of the defendant's financial ability to pay or the rendering
court to modify or vacate its previous judgment on the grounds of a
change of circumstances with regard to the defendant's ability to pay
the judgment.  The probation officer and the court shall advise the
defendant of this right at the time of rendering of the terms of
probation or the judgment.
   (g) All sums paid by a defendant pursuant to this section shall be
allocated for the operating expenses of the county probation
department.
   (h) The board of supervisors in any county, by resolution, may
establish a fee for the processing of payments made in installments
to the probation department pursuant to this section, not to exceed
the administrative and clerical costs of the collection of those
installment payments as determined by the board of supervisors,
except that the fee shall not exceed  fifty dollars ($50).
   (i) This section shall be operative in a county upon the adoption
of an ordinance to that effect by the board of supervisors.
  SEC. 2.  Section 1203.95 is added to the Penal Code, to read:
   1203.95.  (a) Notwithstanding the provisions of Section 1203.9,
whenever any person is granted probation under Section 1210.1,
jurisdiction over the case may be transferred at the discretion of
the sentencing court to the court in any other county in which the
person resides permanently, which shall mean residing with the stated
intention to remain for the duration of probation.
   (b) In the event of a transfer of jurisdiction over a case
pursuant to subdivision (a), the court in the receiving county shall
be given an opportunity to determine, by court hearing, whether the
person does reside in that county and has stated the intention to
remain for the duration of probation.  Only if the receiving court
finds that the person either does not reside in that county or does
not state an intention to remain in that county for the duration of
probation, may the court in the receiving county refuse to accept the
transfer.
   (c) An order of transfer made pursuant to subdivision (a) shall
contain an order requiring the probationer to report to the probation
officer of the receiving county and an order for reimbursement of
reasonable costs for processing the transfer to be paid by the
sending county in accordance with Section 1203.1b.  A copy of the
orders and probation reports shall be transmitted to the court and
probation officer of the receiving county within two weeks of the
finding by that county that the person does permanently reside in or
has permanently moved to that county, and thereafter, the receiving
court shall have entire jurisdiction over the case, including, but
not limited to, probation supervision and treatment.
   (d) In the event of a transfer of jurisdiction over a case
pursuant to subdivision (a), a certified copy of the file may be made
and forwarded to the county where the person resides and shall
include the name and address of the legal residence of the person.  A
certified copy shall be deemed to be the same as the original.  The
original court file may be kept in the files of the transferring
county.
  SEC. 3.  Notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
costs mandated by the state, reimbursement to local agencies and
school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.  If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.