BILL NUMBER: AB 1369 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 13, 2009
INTRODUCED BY Assembly Member Davis
FEBRUARY 27, 2009
An act to amend Section 422.91 Sections
1203.017 and 4532 of the Penal Code, relating to hate
crimes home detention .
LEGISLATIVE COUNSEL'S DIGEST
AB 1369, as amended, Davis. Hate crimes.
Involuntary home detention.
Existing law provides that the county board of supervisors of any
county may, upon determination by the correctional administrator that
conditions in a jail facility warrant the necessity of releasing
sentenced misdemeanor inmates prior to them serving the full amount
of a given sentence due to lack of jail space, offer a program under
which specified inmates may be required to participate in an
involuntary home detention program.
This bill would remove the requirement that the inmates subject to
the involuntary home detention program be misdemeanor inmates.
Existing law provides specified punishments for the escape or
attempted escape from various confinements, including the place of
confinement pursuant to a voluntary home detention program.
This bill would include the escape or attempted escape from the
place of confinement pursuant to an involuntary home detention
program among the escapes or attempted escapes subject to these
provisions. By changing the definition and scope of an existing
crime, this bill would impose a state-mandated local program.
Existing law provides that except in unusual cases where the
interests of justice would best be served if a person is granted
probation, probation shall not be granted to any person who is
convicted of a felony offense in that he or she escaped or attempted
to escape from a secure main jail facility, from a court building, or
while being transported between the court building and the jail
facility.
This bill would include persons participating in a voluntary or
involuntary home detention program among those subject to this
provision.
Existing law provides that the willful failure of a prisoner,
including a prisoner participating in a voluntary home detention
program, whether convicted of a felony or a misdemeanor, to return to
his or her place of confinement no later than the expiration of the
period that he or she was authorized to be away from that place of
confinement, is an escape from that place of confinement.
This bill would include prisoners participating in an involuntary
home detention program among those prisoners subject to this
provision.
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 no reimbursement is required by this
act for a specified reason.
Existing law requires the Department of Corrections and
Rehabilitation to, subject to available funding, cooperate with fully
and participate actively with federal, state, and local law
enforcement agencies and community hate crime prevention and response
networks and other antihate groups concerning hate crimes and gangs,
and strive to provide inmates with safe environments in which they
are not pressured to join gangs or hate groups and do not feel a need
to join them in self-defense.
This bill would make a technical, nonsubstantive change to those
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1203.017 of the
Penal Code is amended to read:
1203.017. (a) Notwithstanding any other provision of law, upon
determination by the correctional administrator that conditions in a
jail facility warrant the necessity of releasing sentenced
misdemeanor inmates prior to them serving the full amount
of a given sentence due to lack of jail space, the board of
supervisors of any county may authorize the correctional
administrator to offer a program under which inmates committed to a
county jail or other county correctional facility or granted
probation, or inmates participating in a work furlough program, may
be required to participate in an involuntary home detention program,
which shall include electronic monitoring, 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.
Under this program, one day of participation shall be in lieu of one
day of incarceration. Participants in the program shall receive any
sentence reduction credits that they would have received had they
served their sentences in a county correctional facility.
(b) The board of supervisors may prescribe reasonable rules and
regulations under which an involuntary home detention program may
operate. The inmate shall be informed in writing that he or she shall
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 peace officer 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 use of electronic monitoring may include global
positioning system devices or other 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 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, or if the person for
any other reason no longer meets the established criteria under this
section.
(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) As used in this section, "correctional administrator" means
the sheriff, probation officer, or director of the county department
of corrections.
(h) (1) Notwithstanding any other law, the correctional
administrator shall provide the information specified in paragraph
(2) regarding persons on involuntary home detention to the
Corrections Standards Authority, and upon request, shall provide that
information to the law enforcement agency of a city or
unincorporated area where an office is located to which persons on
involuntary home detention report.
(2) The information required by paragraph (1) shall consist of the
following:
(A) The participant's name, address, and date of birth.
(B) The offense committed by the participant.
(C) The period of time the participant will be placed on home
detention.
(D) Whether the participant successfully completed the prescribed
period of home detention or was returned to a county correctional
facility, and if the person was returned to a county correctional
facility, the reason for that return.
(E) The gender and ethnicity of the participant.
(3) Any information received by a police department pursuant to
this subdivision shall be used only for the purpose of monitoring the
impact of home detention programs on the community.
(i) 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 Department of Corrections and Rehabilitation 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 Corrections
Standards Authority, 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.
(j) Inmates participating in this program shall not be charged
fees or costs for the program.
(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. 2. Section 4532 of the Penal Code
is amended to read:
4532. (a) (1) Every prisoner arrested and booked for, charged
with, or convicted of a misdemeanor, and every person committed under
the terms of Section 5654, 5656, or 5677 of the Welfare and
Institutions Code as an inebriate, who is confined in any county or
city jail, prison, industrial farm, or industrial road camp, is
engaged on any county road or other county work, is in the lawful
custody of any officer or person, is employed or continuing in his or
her regular educational program or authorized to secure employment
or education away from the place of confinement, pursuant to the
Cobey Work Furlough Law (Section 1208), is authorized for temporary
release for family emergencies or for purposes preparatory to his or
her return to the community pursuant to Section 4018.6, or is a
participant in a home detention program pursuant to Section 1203.016
or Section 1203.017 , and who thereafter escapes or
attempts to escape from the county or city jail, prison, industrial
farm, or industrial road camp or from the custody of the officer or
person in charge of him or her while engaged in or going to or
returning from the county work or from the custody of any officer or
person in whose lawful custody he or she is, or from the place of
confinement in a home detention program pursuant to Section 1203.016
or Section 1203.017 , is guilty of a felony and, if the
escape or attempt to escape was not by force or violence, is
punishable by imprisonment in the state prison for a determinate term
of one year and one day, or in a county jail not exceeding one year.
(2) If the escape or attempt to escape described in paragraph (1)
is committed by force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for two, four, or six
years to be served consecutively, or in a county jail not exceeding
one year. When the second term of imprisonment is to be served in a
county jail, it shall commence from the time the prisoner otherwise
would have been discharged from jail.
(3) A conviction of a violation of this subdivision, or a
violation of subdivision (b) involving a participant of a home
detention program pursuant to Section 1203.016 or Section
1203.017 , that is not committed by force or violence, shall
not be charged as a prior felony conviction in any subsequent
prosecution for a public offense.
(b) (1) Every prisoner arrested and booked for, charged with, or
convicted of a felony, and every person committed by order of the
juvenile court, who is confined in any county or city jail, prison,
industrial farm, or industrial road camp, is engaged on any county
road or other county work, is in the lawful custody of any officer or
person, or is confined pursuant to Section 4011.9, is a participant
in a home detention program pursuant to Section 1203.016 or
Section 1203.017 , who escapes or attempts to escape from a
county or city jail, prison, industrial farm, or industrial road camp
or from the custody of the officer or person in charge of him or her
while engaged in or going to or returning from the county work or
from the custody of any officer or person in whose lawful custody he
or she is, or from confinement pursuant to Section 4011.9, or from
the place of confinement in a home detention program pursuant to
Section 1203.016 or Section 1203.017 , is guilty of a
felony and, if the escape or attempt to escape was not by force or
violence, is punishable by imprisonment in the state prison for 16
months, two years, or three years, to be served consecutively, or in
a county jail not exceeding one year.
(2) If the escape or attempt to escape described in paragraph (1)
is committed by force or violence, the person is guilty of a felony,
punishable by imprisonment in the state prison for a full term of
two, four, or six years to be served consecutively to any other term
of imprisonment, commencing from the time the person otherwise would
have been released from imprisonment and the term shall not be
subject to reduction pursuant to subdivision (a) of Section 1170.1,
or in a county jail for a consecutive term not to exceed one year,
that term to commence from the time the prisoner otherwise would have
been discharged from jail.
(c) (1) Except in unusual cases where the interests of justice
would best be served if the person is granted probation, probation
shall not be granted to any person who is convicted of a felony
offense under this section in that he or she escaped or attempted to
escape from a secure main jail facility, from a court building, or
while being transported between the court building and the jail
facility or is a participant in a home detention program
pursuant to Section 1203.016 or Section 1203.017 .
(2) In any case in which a person is convicted of a violation of
this section designated as a misdemeanor, he or she shall be confined
in a county jail for not less than 90 days nor more than one year
except in unusual cases where the interests of justice would best be
served by the granting of probation.
(3) For the purposes of this subdivision, "main jail facility"
means the facility used for the detention of persons pending
arraignment, after arraignment, during trial, and upon sentence or
commitment. The facility shall not include an industrial farm,
industrial road camp, work furlough facility, or any other nonsecure
facility used primarily for sentenced prisoners. As used in this
subdivision, "secure" means that the facility contains an outer
perimeter characterized by the use of physically restricting
construction, hardware, and procedures designed to eliminate ingress
and egress from the facility except through a closely supervised gate
or doorway.
(4) If the court grants probation under this subdivision, it shall
specify the reason or reasons for that order on the court record.
(5) Any sentence imposed under this subdivision shall be served
consecutive to any other sentence in effect or pending.
(d) The willful failure of a prisoner, whether convicted of a
felony or a misdemeanor, to return to his or her place of confinement
no later than the expiration of the period that he or she was
authorized to be away from that place of confinement, is an escape
from that place of confinement. This subdivision applies to a
prisoner who is employed or continuing in his or her regular
educational program, authorized to secure employment or education
pursuant to the Cobey Work Furlough Law (Section 1208), authorized
for temporary release for family emergencies or for purposes
preparatory to his or her return to the community pursuant to Section
4018.6, or permitted to participate in a home detention program
pursuant to Section 1203.016 or Section 1203.017 . A
prisoner convicted of a misdemeanor who willfully fails to return to
his or her place of confinement under this subdivision shall be
punished as provided in paragraph (1) of subdivision (a). A prisoner
convicted of a felony who willfully fails to return to his or her
place of confinement shall be punished as provided in paragraph (1)
of subdivision (b).
SEC. 3. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because 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.
SECTION 1. Section 422.91 of the Penal Code is
amended to read:
422.91. The Department of Corrections and Rehabilitation,
including the Division of Juvenile Facilities, subject to available
funding, shall do each of the following:
(a) Cooperate fully and participate actively with federal, state,
and local law enforcement agencies and community hate crime
prevention and response networks and other anti-hate groups
concerning hate crimes and gangs.
(b) Strive to provide inmates with safe environments in which they
are not pressured to join gangs or hate groups and do not feel a
need to join them in self-defense.