BILL ANALYSIS
AB 1306
Page 1
Date of Hearing: April 29, 2003
Chief Counsel: Bruce E. Chan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 1306 (Leno) - As Introduced: February 21, 2003
SUMMARY : Authorizes the court to transfer probation and
jurisdiction to the defendant's county of permanent residence if
he or she is receiving treatment pursuant to Proposition 36.
Specifically, this bill :
1)Provides that whenever any person is granted Proposition 36
probation, 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.
"Resides permanently" is defined as residing with the stated
intention to remain for the duration of probation.
2)Provides that in the event of a transfer of jurisdiction, the
court in the receiving county shall be given an opportunity to
determine in a hearing whether the person resides in the
county. 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 the county for the duration of
probation may the court in the receiving county refuse to
accept the transfer.
3)Requires that an order of transfer shall contain an order
requiring the probationer to report to the probation officer
of the receiving county and an order for reimbursement to the
receiving county for reasonable costs for processing the
transfer.
4)Requires the transmittal of orders, probation reports, and a
certified copy of the file as specified.
5)Provides that the receiving court shall have entire
jurisdiction over the case including, but not limited to,
probation supervision and treatment.
EXISTING LAW :
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1)Provides that whenever any person is released on probation,
the case may be transferred to any court in any other county
in which the person resides permanently. The court of the
receiving county shall first be given an opportunity to
determine whether the person resides in and has stated the
intention to remain in the county for the duration of
probation. The court may refuse to accept the transfer, as
specified. [Penal Code Section 1203.9 (a).]
2)Provides that if the court of the receiving county finds that
the person permanently resides in or has moved to the county,
it may in its discretion either accept the entire jurisdiction
over the case or assume supervision on a courtesy basis.
[Penal Code Section 1203.9 (b).]
3)Provides that the order of transfer shall be accompanied by an
order for reimbursement of reasonable costs for processing the
transfer, as specified. [Penal Code Section 1203.9 (c).]
4)Provides that effective July 1, 2001, except as specified, a
person convicted of a non-violent drug possession offense
(NOVIDPO) shall receive probation with completion of a drug
treatment program as a condition of probation. (Penal Code
Section 1210, 1210.1, added by Proposition 36, approved
November 7, 2000.)
5)Provides that, except as specified, a person's parole may not
be suspended or revoked for commission of a NOVIDPO or for
violating a drug-related condition of parole, but that an
additional condition of parole for those offenses or
violations shall be completion of a drug treatment program.
(Penal Code Section 3063.1.)
6)Provides that if a person on parole, or placed on probation
for a NOVIDPO, violates a drug-related condition of
supervision, a misdemeanor for simple possession or use of
drugs or drug paraphernalia, being present where drugs are
used, or failure to register as a drug offender, the court may
not revoke probation or parole for a first drug-related
violation unless the state proves that the person is a danger
to the safety of others. [Penal Code Sections 1210.1(e)(3)
and 3063.1(d)(3).]
7)Provides that for the second drug-related violation of
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probation or a misdemeanor for simple possession or use of
drugs or drug paraphernalia, being present where drugs are
used, or failure to register as a drug offender, the court may
revoke probation if the state proves either that the person
poses a danger to the safety of others or is unamenable to
drug treatment. In determining whether a defendant is
unamenable to treatment, the court may consider serious rule
violations at the treatment program, repeated rule violations
that inhibit the defendant's ability to function in the
program, or continually refusing to participate. If the court
does not revoke probation, it may intensify or alter the
treatment plan. [Penal Code Section 1210.1(e)(3)(B).]
8)Provides that for the third drug-related violation of
probation, the court may revoke probation if the state proves
either that the person was arrested for the commission of a
NOVIDPO or violated a drug-related condition of probation.
[Penal Code Section 1210.1(e)(3)(B).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Courts are
reporting that they are unable to ensure effective supervision
of defendants on probation under Proposition 36, the Substance
Abuse and Crime Prevention Act of 2000 (SACPA). The problem
arises when jurisdiction remains in one county, while
probation supervision and treatment occur in another. This
bill remedies this by ensuring that the sentencing court has
the authority to transfer jurisdiction to the county of
residence."
2)Background: Transfer of Probation Supervision : When a court
seeks to transfer jurisdiction of a Proposition 36 case to the
county in which a defendant resides, current law (Penal Code
Section 1203.9) allows the receiving county, upon a finding
that the defendant permanently resides in that county, to
choose between two options. The receiving county may, in its
discretion, accept full jurisdiction over the case or accept
the case only for probation-supervision purposes on a courtesy
basis. This current statutory scheme is deficient in two
respects. First, in at least a few counties, Penal Code
Section 1203.9 is interpreted to permit the receiving court to
not accept the case at all. If a probationer is undergoing
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treatment in the county of residence, it is extraordinarily
difficult for the judge in the county of conviction to provide
meaningful supervision as contemplated by the terms of
Proposition 36. Second, even when cases are accepted, many
are accepted for "courtesy supervision" only and the court in
the accepting county does not assume jurisdiction of the case.
This is not satisfactory because the court is then unable to
provide judicial oversight.
This bill authorizes the sentencing judge to require, rather
than permit, the acceptance of a transfer of jurisdiction in a
Proposition 36 case, thereby ensuring that judicial oversight
occurs in the county where treatment and probation services
are being provided. This bill furthers the intent of
Proposition 36 in two ways. First, a defendant will not face
unnecessary logistical hurdles in receiving treatment in a
county other than the county of residence. Second, the court
will be able to more effectively meet its statutory obligation
to provide meaningful supervision of persons receiving
treatment services.
3)Statement in Support : The Judicial Council of California
states, "The Department of Alcohol and Drug Programs (DADP),
the entity responsible for implementing SACPA, has issued
policy guidelines encouraging that substance abuse treatment
and ancillary services be provided in the county in which the
defendant resides. SACPA funding allocations are made
directly to each county by DADP and are based on treatment
population and other factors. To enhance the likelihood of
treatment success, the trial judge should be in a position to
make modifications to the conditions of probation that relate
to treatment. The judge in the county in which treatment
takes place may in some circumstances be better able to
develop a suitable treatment plan because he or she is
familiar with local treatment continuum and supervision
alternatives. For these reasons, the Judicial Council is
sponsoring this bill to authorize the sentencing judge to
require acceptance of jurisdiction over SACPA cases when it is
determined that the defendant permanently resides in a county
other than where the conviction occurred. The transfer shall
be subject to a hearing before the receiving court in which
the defendant shall have the burden to establish the fact of
residence. In addition, this bill provides that the Judicial
Council may adopt rules and/or guidelines relating to the
transfer of jurisdiction and probation supervision in such
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cases, if deemed appropriate."
4)Statement in Opposition : The County of San Diego states,
"This bill imposes an unfunded mandate on receiving counties
because it would not transfer funds to offset the cost of the
drug treatment services, ancillary services or probation
supervision the receiving county would be required to provide.
"The County of San Diego is particularly concerned about this
requirement because the percentage of funds allocated for
substance abuse treatment is a significant component of the
allocation formula used to distribute Proposition 36 drug
treatment funds. Under the state's current allocation
formula, the county receives less than its caseload numbers
and must provide the mandated services without adequate
reimbursement.
"The County of San Diego recommends this bill be amended to
require the state to transfer funds to receiving counties to
offset the increased costs that this bill would generate.
This could be accomplished by establishing an account at the
state level to pay for transfers or adjusting periodic
payments to counties to reflect jurisdictional transfers."
REGISTERED SUPPORT / OPPOSITION :
Support
Judicial Council of California (Sponsor)
Opposition
County of San Diego
Analysis Prepared by : Bruce Chan / PUB. S. / (916) 319-3744