BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair A
2003-2004 Regular Session B
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AB 1306 (Leno) 6
As Introduced February 21, 2003
Hearing date: June 10, 2003
Penal Code
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DRUG TREATMENT UNDER PROPOSITION 36 (NOVEMBER 2000) -
TRANSFER OF CASE TO DEFENDANT'S COUNTY OF RESIDENCE
HISTORY
Source: Judicial Council
Prior Legislation: SB 223 (Burton) - Ch. 721, Stats. 2001
Support: California Judges Association; Chief Probation Officers
of California; California District Attorneys
Association
Opposition:None known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
IN A PROPOSITION 36 (SUBSTANCE ABUSE AND CRIME PREVENTION ACT)
PROBATION MATTER, SHOULD THE COURT IN THE COUNTY OF CONVICTION BE
AUTHORIZED TO REQUIRE THE COURT IN THE COUNTY OF THE DEFENDANT'S
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RESIDENCE TO ACCEPT TRANSFER OF THE CASE UNLESS THE COURT TO WHICH
THE CASE WOULD BE TRANSFERRED DETERMINES THAT THE DEFENDANT DOES NOT
INTEND TO RESIDE IN THE COUNTY?
PURPOSE
The purpose of this bill is to provide that where close judicial
supervision of a probationer in a Proposition 36 case is
necessary, the court in the county of conviction can require
transfer of jurisdiction of the case to the county of the
probationer's residence.
Existing law - Proposition 36 (Substance Abuse and Crime
Prevention Act - SACPA - of the Nov. 2000 General Election) -
includes these major provisions:
? Ineligible defendants and parolees are those who:
Possessed drugs other than for personal use.
Committed other offense along with a drug possession
offense.
Used a firearm while in possession or under the
influence of heroin, cocaine or PCP.
Previously have been convicted of a serious felony,
and have not been free of custody or commission of
felonies or dangerous misdemeanors within 5 years.
(Parolees may not have ever been convicted of a serious
felony.)
Participated in two prior Proposition 36 treatment
programs.
Refused treatment under the Initiative.
(Pen. Code 1210.1, subd. (b)(4), 3063.1, subd. (b)(3).)
? Placement of persons in treatment programs by the court and
the Board of Prison Terms (BPT)
Courts and the BPT are effectively directed to place a
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person in treatment to which the person is amenable.
If the treatment provider reports that the person is
unamenable to a particular program, but may be amenable
to another, the program should be modified.
If the person is unamenable to all treatment, he or
she may be excluded from Proposition 36 treatment.
(Pen. Code 1210.1, subd. (c), and 3063.1, subd. (c).)
Proposition 36 Provisions as to Violations of Probation or
Parole Conditions
? Non-drug related Violation of Probation: The court has
discretion to modify or revoke probation as with any standard
probation program.
? Drug related Violations of Conditions of Probation and
"Arrests" for Drug Offenses:
First Violation:
Dangerous persons must have probation revoked.
Non dangerous person may be subject to more
intensive programs.
Second Violation:
If dangerous or unamenable to treatment, probation
must be revoked.
Others may face more intensive treatment or
conditions.
Third Violation: Violators excluded from treatment
under Proposition 36.
? Non-drug related Violations of Parole: The Board of Prison
Terms has discretion to modify or revoke probation as with any
standard probation program.
? Drug Related Violations of Parole:
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First Violation:
Dangerous persons must have parole revoked.
Non dangerous person may be subject to more
intensive programs.
Second Violation: Parole must be revoked.
(Pen. Code 1210.1, subd. (e), and 3630, subd. (d).)
Existing law 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.
(Pen. Code 203.9, subd. (a).)
Existing law 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. (Pen. Code 1203.9, subd. (b).)
Existing law provides that the order of transfer shall be
accompanied by an order for reimbursement of reasonable costs
for processing the transfer, as specified. (Pen. Code 1203.9,
subd. (c).)
This bill 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.
This bill 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
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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.
This bill 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.
This bill requires the transmittal of orders, probation reports,
and a certified copy of the file as specified.
This bill provides that the receiving court shall have entire
jurisdiction over the case including, but not limited to,
probation supervision and treatment.
COMMENTS
1. Need for This Bill
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 in General and
under Proposition 36
When a court seeks to transfer jurisdiction of a Proposition 36
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case (or any other probation matter) to the county in which a
defendant resides, current law (Pen. Code 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 either accept full jurisdiction over the
case or accept the case only for probation-supervision purposes
on a courtesy basis.<1>
Concerns have been raised that if a probationer is undergoing
treatment in the county of residence, it may be difficult for
the judge in the county of conviction to provide meaningful
supervision as contemplated by the terms of Proposition 36.
Where a defendant needs special services or intense supervision,
courtesy supervision of probation may be insufficient.
This bill authorizes the sentencing judge to require, rather
than permit, the court in the defendant's county of residence to
accept transfer of jurisdiction in a Proposition 36 case,
thereby ensuring that adequate judicial oversight occurs in the
county where treatment and probation services are being
provided.
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<1> The general probation and jurisdiction transfer section
appears to contain an ambiguity flowing from the use of the
permissive term "may" in describing the extent of a court's
discretion to accept supervision of a case from another county.
Section 1203.9, subdivision (b), states that a court "may, in
its discretion, either accept the entire jurisdiction over a
case, or assume supervision of the probationer on a courtesy
basis." This language could be interpreted to mean that a court
has the power to accept neither jurisdiction nor courtesy
supervision of the case. Committee staff has been informed that
all 58 superior courts and chief probation officers agree that
the language in 1203.9 should be interpreted to mean that a
court shall either accept jurisdiction of the case or courtesy
supervision. It cannot refuse both. This ambiguity can be
corrected by replacing the "may" with "shall" to direct the
court to exercise its discretion by choosing one of the two
options.
3. DADP Guidelines for Handling Convictions under SACPA Outside
County of Residence - Treatment in County of Residence, with
Jurisdiction usually Held in County of Conviction
The Department of Alcohol and Drug Programs (DADP) has the lead
state role in SACPA implementation. The Department has issued
letter guidelines for handling cases where the probationer in a
SACPA is convicted in a county other than his or her county of
residence. (ACLA Letter No. 01-12.) DADP has noted that
counties generally have been quite cooperative in implementing
SACPA, including in cases where non-residents have been
convicted of SACPA eligible crimes. DADP noted that some
probationers "cannot be easily treated in the county of
adjudication." DADP regulations do not specifically address the
issue. However, DADP has noted that the Statewide Advisory
Group has made recommendations for such cases.
The recommendation of the advisory group is as follows:
Pursuant to an agreement between the counties, an
individual who is sentenced under Proposition 36 in
one county could be returned to the county of
residence for treatment. The county of residence
should provide assessment and treatment, while the
county of adjudication should retain judicial
responsibility for the client. The county of
residence should be responsible for treatment costs.
Case management would be by agreement of the two
counties involved.
DADP further stated in its letter:
DADP encourages the development of cooperative
interagency working agreements. County entities
newly allied through SACPA are advised to develop and
rely upon memoranda of understanding and other
predetermined protocols or procedures in the
management of cross-jurisdictional cases.
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When there is a cross-jurisdictional issue, courts
sometimes find it difficult to efficiently move
non-resident SACPA offenders from sentencing to
assessment and then to treatment. Delays in
treatment in such cases can be minimized with a
published list of assessment contact persons for each
county. As a result, DADP is in the process of
identifying local assessment contact persons.
4. Argument in Support
The Judicial Council of California argues in support:
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
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burden to establish the fact of residence.
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