BILL NUMBER: AB 760 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Nava
FEBRUARY 18, 2005
An act to amend Sections 851.5, 1170, 1170.3, and 1203.016 of, and
to add Sections 833.2 and 13517.7 to, the Penal Code, relating to
criminal procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 760, as introduced, Nava. Criminal procedure.
Existing law generally prescribes the authority and obligations of
law enforcement entities in regard to effecting an arrest.
This bill would state the intent of the Legislature to encourage
law enforcement and county child welfare agencies to develop
protocols in collaboration with local educational, judicial,
correctional, and community-based organizations, when appropriate,
regarding how to best cooperate in their response to the arrest of a
caretaker parent in a home in which a minor child resides, to ensure
the child's safety and well-being.
Existing law provides an arrested person with certain rights
regarding the opportunity to make telephone calls incident to the
person being booked or detained, as specified. The willful
deprivation of these rights by a public officer or employee is a
misdemeanor.
This bill would, in addition, provide that when, during booking,
an arrested person is determined to be a custodial parent of a minor
child or children, the person would be entitled to make 3 telephone
calls at no expense, as specified, for the purpose of arranging for
the care of the minor child or children.
By imposing additional duties on local government entities, this
bill would impose a state-mandated local program. By expanding the
scope of an existing crime, this bill would impose a state-mandated
local program.
Existing law generally regulates sentencing, including the
consideration of mitigating factors and other criteria for purposes
of sentencing.
This bill would include a defendant's custodial responsibilities
for minor children as an element for consideration for specified
purposes related to sentencing.
Existing law establishes the Commission on Peace Officer Standards
and Training and charges it with various duties in connection with
training law enforcement personnel.
This bill would require the commission to establish guidelines and
training for use by state and local law enforcement officers to
address issues of child safety at the time of a caretaker parent's or
guardians arrest.
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.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 833.2 is added to the Penal Code , to read:
833.2. It is the intent of the Legislature to encourage law
enforcement and county child welfare agencies to develop protocols in
collaboration with other local entities, which may include local
educational, judicial, correctional, and community-based
organizations, when appropriate, regarding how to best cooperate in
their response to the arrest of a caretaker parent in a home in which
a minor child resides, to ensure the child's safety and well-being.
SEC. 2. Section 851.5 of the Penal Code is amended to read:
851.5. (a) Immediately upon being booked, and, except where
physically impossible, no later than three hours after arrest, an
arrested person has the right to make at least three completed
telephone calls, as described in subdivision (b).The arrested person
shall be entitled to make at least three such
calls at no expense if the calls are completed to telephone numbers
within the local calling area.
(b) At any police facility or place where an arrestee is detained,
a sign containing the following information in bold block type shall
be posted in a conspicuous place:
That the arrestee has the right to free telephone calls within the
local dialing area, or at his or her own expense if
outside the local area, to three of the following:
(1) An attorney of his or her choice or, if he or
she has no funds, the public defender or other attorney
assigned by the court to assist indigents, whose telephone number
shall be posted. This phone telephone
call shall not be monitored, eavesdropped upon, or recorded.
(2) A bail bondsman.
(3) A relative or other person.
(c) If, upon questioning during the booking process, the
arrested person is identified as a custodial parent with
responsibility for a minor child, the arrested person shall be
entitled to make three additional calls at no expense if the calls
are completed to telephone numbers within the local calling area to a
relative or other person for the purpose of arranging for the care
of the minor child or children in the parent's absence.
(d) These telephone calls shall be given
immediately upon request, or as soon as practicable.
(d)
(e) This provision shall not abrogate a law
enforcement officer's duty to advise a suspect of his or her
right to counsel or of any other right.
(e)
(f) Any public officer or employee who
willfully deprives an arrested person of any right granted by this
section is guilty of a misdemeanor.
SEC. 3. Section 1170 of the Penal Code is amended to read:
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 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 particularly those
who are sole custodial parents of minor dependent children .
(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 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. In any case in which the amount of preimprisonment
credit under Section 2900.5 or any other provision of law is equal to
or exceeds any sentence imposed pursuant to this chapter, the entire
sentence shall be deemed to have been served and the defendant shall
not be actually delivered to the custody of the Director of
Corrections. The court shall advise the defendant that he or she
shall serve a period of parole and order the defendant to report to
the parole 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. The sentence shall be
deemed a separate prior prison term under Section 667.5, and a copy
of the judgment and other necessary documentation shall be forwarded
to the Director of Corrections.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall order
imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime. 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 to dispute facts in the record
or the probation officer's report, or to present additional facts.
In determining whether there are circumstances that justify
imposition of the upper or lower 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 set forth on the record the facts and
reasons for imposing the upper or lower term. 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.
(d) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the Director of
Corrections, the court may, within 120 days of the date of commitment
on its own motion, or at any time upon the recommendation of the
Director of Corrections or the Board of Prison Terms, 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 resentence 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.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a) of Section 1170, if the Director of
Corrections or the Board of Prison Terms or both determine that a
prisoner satisfies the criteria set forth in paragraph (2), the
director 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 both of the following:
(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.
The Board of Prison Terms 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
director or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) The prisoner or his or her family member or designee may
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the Director of Corrections.
Upon receipt of the request, if the director determines that the
prisoner satisfies the criteria set forth in paragraph (2), the
director or board may recommend to the court that the prisoner's
sentence be recalled. The director 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 director may make a recommendation to the
Board of Prison Terms 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.
(5) Any recommendation for recall submitted to the court by the
Director of Corrections or the Board of Prison Terms shall include
one or more medical evaluations, a postrelease plan, and findings
pursuant to paragraph (2).
(6) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(f) Any sentence imposed under this article shall be subject to
the provisions of Sections 3000 and 3057 and any other applicable
provisions of law.
(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.
SEC. 4. Section 1170.3 of the Penal Code is amended to read:
1170.3. The Judicial Council shall seek to promote uniformity in
sentencing under Section 1170, by:(a) The adoption of rules providing
criteria for the consideration of the trial judge at the time of
sentencing regarding the court's decision to:
(1) Grant or deny probation.
(2) Impose the lower or upper prison term.
(3) Impose concurrent or consecutive sentences.
(4) Determine whether or not to impose an enhancement where that
determination is permitted by law.
(b) The adoption of rules standardizing the minimum content and
the sequential presentation of material in probation officer reports
submitted to the court , including a defendant's custodial r
esponsibilities for minor children .
SEC. 5. Section 1203.016 of the Penal Code is amended to read:
1203.016. (a) Notwithstanding any other provision of law, the
board of supervisors of any county may authorize the correctional
administrator, as defined in subdivision (h), to offer a program
under which minimum security inmates and low-risk offenders committed
to a county jail or other county correctional facility or granted
probation, or inmates participating in a work furlough program, may
voluntarily participate in a home detention program during their
sentence in lieu of confinement in the county jail or other county
correctional facility or program under the auspices of the probation
officer. Low-risk offenders who are the sole custodial parents
of minor children should especially be considered for the program, if
otherwise eligible. (b) The board of supervisors
may prescribe reasonable rules and regulations under which a home
detention program may operate. As a condition of participation in the
home detention program, the inmate shall give his or her consent in
writing to participate in the home detention program and shall in
writing agree to comply with the rules and regulations of the
program, including, but not limited to, the following rules:
(1) The participant shall remain within the interior premises of
his or her residence during the hours designated by the correctional
administrator.
(2) The participant shall admit any person or agent designated by
the correctional administrator into his or her residence at any time
for purposes of verifying the participant's compliance with the
conditions of his or her detention.
(3) The participant shall agree to the use of electronic
monitoring or supervising devices for the purpose of helping to
verify his or her compliance with the rules and regulations of the
home detention program. The devices shall not be used to eavesdrop or
record any conversation, except a conversation between the
participant and the person supervising the participant which is to be
used solely for the purposes of voice identification.
(4) The participant shall agree that the correctional
administrator in charge of the county correctional facility from
which the participant was released may, without further order of the
court, immediately retake the person into custody to serve the
balance of his or her sentence if the electronic monitoring or
supervising devices are unable for any reason to properly perform
their function at the designated place of home detention, if the
person fails to remain within the place of home detention as
stipulated in the agreement, if the person willfully fails to pay
fees to the provider of electronic home detention services, as
stipulated in the agreement, subsequent to the written notification
of the participant that the payment has not been received and that
return to custody may result, or if the person for any other reason
no longer meets the established criteria under this section. A copy
of the agreement shall be delivered to the participant and a copy
retained by the correctional administrator.
(c) Whenever the peace officer supervising a participant has
reasonable cause to believe that the participant is not complying
with the rules or conditions of the program, or that the electronic
monitoring devices are unable to function properly in the designated
place of confinement, the peace officer may, under general or
specific authorization of the correctional administrator, and without
a warrant of arrest, retake the person into custody to complete the
remainder of the original sentence.
(d) Nothing in this section shall be construed to require the
correctional administrator to allow a person to participate in this
program if it appears from the record that the person has not
satisfactorily complied with reasonable rules and regulations while
in custody. A person shall be eligible for participation in a home
detention program only if the correctional administrator concludes
that the person meets the criteria for release established under this
section and that the person's participation is consistent with any
reasonable rules and regulations prescribed by the board of
supervisors or the administrative policy of the correctional
administrator.
(1) The rules and regulations and administrative policy of the
program shall be written and reviewed on an annual basis by the
county board of supervisors and the correctional administrator. The
rules and regulations shall be given to or made available to any
participant upon request.
(2) The correctional administrator, or his or her designee, shall
have the sole discretionary authority to permit program participation
as an alternative to physical custody. All persons referred or
recommended by the court to participate in the home detention program
pursuant to subdivision (e) who are denied participation or all
persons removed from program participation shall be notified in
writing of the specific reasons for the denial or removal. The notice
of denial or removal shall include the participant's appeal rights,
as established by program administrative policy.
(e) The court may recommend or refer a person to the correctional
administrator for consideration for placement in the home detention
program. The recommendation or referral of the court shall be given
great weight in the determination of acceptance or denial. At the
time of sentencing or at any time that the court deems it necessary,
the court may restrict or deny the defendant's participation in a
home detention program.
(f) The correctional administrator may permit home detention
program participants to seek and retain employment in the community,
attend psychological counseling sessions or educational or vocational
training classes, or seek medical and dental assistance. Willful
failure of the program participant to return to the place of home
detention not later than the expiration of any period of time during
which he or she is authorized to be away from the place of home
detention pursuant to this section and unauthorized departures from
the place of home detention are punishable as provided in Section
4532.
(g) The board of supervisors may prescribe a program
administrative fee to be paid by each home detention participant that
shall be determined according to his or her ability to pay.
Inability to pay all or a portion of the program fees shall not
preclude participation in the program, and eligibility shall not be
enhanced by reason of ability to pay. All program administration and
supervision fees shall be administered in compliance with Section
1208.2.
(h) As used in this section, the following words have the
following meanings:
(1) "Correctional administrator" means the sheriff, probation
officer, or director of the county department of corrections.
(2) "Minimum security inmate" means an inmate who, by established
local classification criteria, would be eligible for placement in a
Type IV local detention facility, as described in Title 15 of the
California Code of Regulations, or for placement into the community
for work or school activities, or who is determined to be a minimum
security risk under a classification plan developed pursuant to
Section 1050 of Title 15 of the California Code of Regulations.
(3) "Low-risk offender" means a probationer, as defined by the
National Institute of Corrections model probation system.
(i) Notwithstanding any other law, the police department of a city
where an office is located to which persons on an electronic
monitoring program report may require the county correctional
administrator to provide information concerning those persons. This
information shall be limited to the name, address, date of birth, and
offense committed by the home detainee. Any information received by
a police department pursuant to this paragraph shall be used only for
the purpose of monitoring the impact of home detention programs on
the community.
(j) It is the intent of the Legislature that home detention
programs established under this section maintain the highest public
confidence, credibility, and public safety. In the furtherance of
these standards, the following shall apply:
(1) The correctional administrator, with the approval of the board
of supervisors, may administer a home detention program pursuant to
written contracts with appropriate public or private agencies or
entities to provide specified program services. No public or private
agency or entity may operate a home detention program in any county
without a written contract with that county's correctional
administrator. However, this does not apply to the use of electronic
monitoring by the California Department of Corrections or the
Department of the Youth Authority as established in Section 3004. No
public or private agency or entity entering into a contract may
itself employ any person who is in the home detention program.
(2) Program acceptance shall not circumvent the normal booking
process for sentenced offenders. All home detention program
participants shall be supervised.
(3) (A) All privately operated home detention programs shall be
under the jurisdiction of, and subject to the terms and conditions of
the contract entered into with, the correctional administrator.
(B) Each contract shall include, but not be limited to, all of the
following:
(i) A provision whereby the private agency or entity agrees to
operate in compliance with any available standards promulgated by
state correctional agencies and bodies, including the Board of
Corrections, and all statutory provisions and mandates, state and
county, as appropriate and applicable to the operation of home
detention programs and the supervision of sentenced offenders in a
home detention program.
(ii) A provision that clearly defines areas of respective
responsibility and liability of the county and the private agency or
entity.
(iii) A provision that requires the private agency or entity to
demonstrate evidence of financial responsibility, submitted and
approved by the board of supervisors, in amounts and under conditions
sufficient to fully indemnify the county for reasonably foreseeable
public liability, including legal defense costs, that may arise from,
or be proximately caused by, acts or omissions of the contractor.
The contract shall provide for annual review by the correctional
administrator to ensure compliance with requirements set by the board
of supervisors and for adjustment of the financial responsibility
requirements if warranted by caseload changes or other factors.
(iv) A provision that requires the private agency or entity to
provide evidence of financial responsibility, such as certificates of
insurance or copies of insurance policies, prior to commencing any
operations pursuant to the contract or at any time requested by the
board of supervisors or correctional administrator.
(v) A provision that permits the correctional administrator to
immediately terminate the contract with a private agency or entity at
any time that the contractor fails to demonstrate evidence of
financial responsibility.
(C) All privately operated home detention programs shall comply
with all appropriate, applicable ordinances and regulations specified
in subdivision (a) of Section 1208.
(D) The board of supervisors, the correctional administrator, and
the designee of the correctional administrator shall comply with
Section 1090 of the Government Code in the consideration, making, and
execution of contracts pursuant to this section.
(E) The failure of the private agency or entity to comply with
statutory provisions and requirements or with the standards
established by the contract and with the correctional administrator
may be sufficient cause to terminate the contract.
(F) Upon the discovery that a private agency or entity with whom
there is a contract is not in compliance pursuant to this paragraph,
the correctional administrator shall give 60 days' notice to the
director of the private agency or entity that the contract may be
canceled if the specified deficiencies are not corrected.
(G) Shorter notice may be given or the contract may be canceled
without notice whenever a serious threat to public safety is present
because the private agency or entity has failed to comply with this
section.
(k) For purposes of this section, "evidence of financial
responsibility" may include, but is not limited to, certified copies
of any of the following:
(1) A current liability insurance policy.
(2) A current errors and omissions insurance policy.
(3) A surety bond.
SEC. 6. Section 13517.7 is added to the Penal Code , to read:
13517.7. (a) The commission shall develop guidelines and training
for use by state and local law enforcement officers to address
issues related to child safety when a caretaker parent or guardian is
arrested.
(b) The guidelines and training shall, at a minimum, address the
following subjects:
(1) Procedures to ensure that officers and custodial employees
inquire whether an arrestee has minor dependent children without
appropriate supervision.
(2) Authorizing additional telephone calls by arrestees so that
they may arrange for the care of minor dependent children.
(3) Use of county child welfare services, as appropriate, and
other similar service providers to assist in the placement of
dependent children when the parent or guardian is unable or unwilling
to arrange suitable care for the child or children.
(4) Identification of local governmental or nongovernmental
agencies able to provide appropriate custodial services.
(5) Temporary supervision of minor children to ensure their safety
and well-being.
(6) Sample procedures to assist state and local law enforcement
agencies to develop ways to ensure the safety and well-being of
children when the parent or guardian has been arrested.
(c) The commission shall use appropriate subject matter experts,
including representatives of law enforcement and county child welfare
agencies, in developing the guidelines and training required by this
section.
SEC. 7.
No reimbursement is required by this act pursuant to Section 6 of
Article XIII B of the California Constitution for certain costs that
may be incurred by a local agency or school district because, in that
regard, this act creates a new crime or infraction, eliminates a
crime or infraction, or changes the penalty for a crime or
infraction, within the meaning of Section 17556
of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution. However, if the Commission on
State Mandates determines that this act contains other 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.