BILL NUMBER: AB 2385 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Members Harkey and Hall
FEBRUARY 24, 2012
An act to amend Section 1203 1203.016
of the Penal Code, relating to probation.
LEGISLATIVE COUNSEL'S DIGEST
AB 2385, as amended, Harkey. Probation.
Existing law authorizes the board of supervisors of any county to
authorize the correctional administrator, as defined, 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 in
lieu of confinement in the county jail or other county correctional
facility under the auspices of the probation officer.
This bill would authorize the correctional administrator to offer
the home detention program to defendants committed to a county jail
or other county correctional facility before trial or inmates
committed to these facilities before sentencing.
Exiting law defines probation as the suspension of the imposition
or execution of a sentence and the order of conditional and revocable
release in the community under the supervision of a probation
officer. Existing law prescribes who is eligible for probation and
the process by which probation is granted.
This bill would make technical, nonsubstantive changes to these
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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 a county
may authorize the correctional administrator, as defined in
subdivision (h), to offer a program under which inmates or
defendants committed to a county jail or other county
correctional facility or , including, but not
limited to, defendants committed before trial or inmates
committed before sentencing, inmates who are granted probation,
or inmates participating in a work furlough program, may voluntarily
participate or involuntarily be placed 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.
(b) The board of supervisors, in consultation with the
correctional administrator, 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
or defendant shall give his or her consent , in
writing , to participate in the home detention program
and shall , in writing , agree to comply or,
for involuntary participation, the inmate or defendant
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 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, which 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
that 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 either
serve the balance of his or her sentence or remain in
custody until his or her trial or sentencing, 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 or to remain in custody until
his or her trial or sentencing .
(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
A person referred or recommended by the court to
participate in the home detention program pursuant to subdivision
(e) who are is denied participation or
all persons a person 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
person's participation in a home detention program.
(f) The correctional administrator may permit a home
detention program participants participant
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
a 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, "Correctional administrator" means
the sheriff, probation officer, or director of the county department
of corrections.
(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 request 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
Information received by a police department
pursuant to this paragraph subdivision
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
a 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. No public or private agency or entity entering into
a contract may itself employ any a
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 Board of
State and Community 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.
SECTION 1. Section 1203 of the Penal Code is
amended to read:
1203. (a) As used in this code, "probation" means the suspension
of the imposition or execution of a sentence and the order of
conditional and revocable release in the community under the
supervision of a probation officer. As used in this code,
"conditional sentence" means the suspension of the imposition or
execution of a sentence and the order of revocable release in the
community subject to conditions established by the court without the
supervision of a probation officer. It is the intent of the
Legislature that both conditional sentence and probation are
authorized whenever probation is authorized in any code as a
sentencing option for infractions or misdemeanors.
(b) (1) Except as provided in subdivision (j), if a person is
convicted of a felony and is eligible for probation, before judgment
is pronounced, the court shall immediately refer the matter to a
probation officer to investigate and report to the court, at a
specified time, upon the circumstances surrounding the crime and the
prior history and record of the person, which may be considered
either in aggravation or mitigation of the punishment.
(2) (A) The probation officer shall immediately investigate and
make a written report to the court of his or her findings and
recommendations, including his or her recommendations as to the
granting or denying of probation and the conditions of probation, if
granted.
(B) Pursuant to Section 828 of the Welfare and Institutions Code,
the probation officer shall include in his or her report any
information gathered by a law enforcement agency relating to the
taking of the defendant into custody as a minor, which shall be
considered for purposes of determining whether adjudications of
commissions of crimes as a juvenile warrant a finding that there are
circumstances in aggravation pursuant to Section 1170 or to deny
probation.
(C) If the person was convicted of an offense that requires him or
her to register as a sex offender pursuant to Sections 290 to
290.023, inclusive, or if the probation report recommends that
registration be ordered at sentencing pursuant to Section 290.006,
the probation officer's report shall include the results of the
State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO)
administered pursuant to Sections 290.04 to 290.06, inclusive, if
applicable.
(D) The probation officer shall also include in the report his or
her recommendation of both of the following:
(i) The amount the defendant should be required to pay as a
restitution fine pursuant to subdivision (b) of Section 1202.4.
(ii) Whether the court shall require, as a condition of probation,
restitution to the victim or to the Restitution Fund and the amount
thereof.
(E) The report shall be made available to the court and the
prosecuting and defense attorneys at least five days, or upon request
of the defendant or prosecuting attorney nine days, prior to the
time fixed by the court for the hearing and determination of the
report, and shall be filed with the clerk of the court as a record in
the case at the time of the hearing. The time within which the
report shall be made available and filed may be waived by written
stipulation of the prosecuting and defense attorneys that is filed
with the court or an oral stipulation in open court that is made and
entered upon the minutes of the court.
(3) At a time fixed by the court, the court shall hear and
determine the application, if one has been made, or, in any case, the
suitability of probation in the particular case. At the hearing, the
court shall consider a report of the probation officer, including
the results of the SARATSO, if applicable, and shall make a statement
that it has considered the report, which shall be filed with the
clerk of the court as a record in the case. If the court determines
that there are circumstances in mitigation of the punishment
prescribed by law or that the ends of justice would be served by
granting probation to the person, it may place the person on
probation. If probation is denied, the clerk of the court shall
immediately send a copy of the report to the Department of
Corrections and Rehabilitation at the prison or other institution to
which the person is delivered.
(4) The preparation of the report or the consideration of the
report by the court may be waived only by a written stipulation of
the prosecuting and defense attorneys that is filed with the court or
an oral stipulation in open court that is made and entered upon the
minutes of the court, except that there shall be no waiver unless the
court consents thereto. However, if the defendant is ultimately
sentenced and committed to the state prison, a probation report shall
be completed pursuant to Section 1203c.
(c) If a defendant is not represented by an attorney, the court
shall order the probation officer who makes the probation report to
discuss its contents with the defendant.
(d) If a person is convicted of a misdemeanor, the court may
either refer the matter to the probation officer for an investigation
and a report or summarily pronounce a conditional sentence. If the
person was convicted of an offense that requires him or her to
register as a sex offender pursuant to Sections 290 to 290.023,
inclusive, or if the probation officer recommends that the court, at
sentencing, order the offender to register as a sex offender pursuant
to Section 290.006, the court shall refer the matter to the
probation officer for the purpose of obtaining a report on the
results of the SARATSO administered pursuant to Sections 290.04 to
290.06, inclusive, if applicable, which the court shall consider. If
the case is not referred to the probation officer, in sentencing the
person, the court may consider any information concerning the person
that could have been included in a probation report. The court shall
inform the person of the information to be considered and permit him
or her to answer or controvert the information. For this purpose,
upon the request of the person, the court shall grant a continuance
before the judgment is pronounced.
(e) 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 of the following persons:
(1) Unless the person had a lawful right to carry a deadly weapon,
other than a firearm, at the time of the perpetration of the crime
or his or her arrest, a person who has been convicted of arson,
robbery, carjacking, burglary, burglary with explosives, rape with
force or violence, torture, aggravated mayhem, murder, attempt to
commit murder, trainwrecking, kidnapping, escape from the state
prison, or a conspiracy to commit one or more of those crimes and who
was armed with the weapon at either of those times.
(2) A person who used, or attempted to use, a deadly weapon upon a
human being in connection with the perpetration of the crime of
which he or she has been convicted.
(3) A person who willfully inflicted great bodily injury or
torture in the perpetration of the crime of which he or she has been
convicted.
(4) A person who has been previously convicted twice in this state
of a felony or in any other place of a public offense which, if
committed in this state, would have been punishable as a felony.
(5) Unless the person has never been previously convicted once in
this state of a felony or in any other place of a public offense
which, if committed in this state, would have been punishable as a
felony, a person who has been convicted of burglary with explosives,
rape with force or violence, torture, aggravated mayhem, murder,
attempt to commit murder, trainwrecking, extortion, kidnapping,
escape from the state prison, a violation of Section 286, 288, 288a,
or 288.5, or a conspiracy to commit one or more of those crimes.
(6) A person who has been previously convicted once in this state
of a felony or in any other place of a public offense which, if
committed in this state, would have been punishable as a felony, if
he or she committed any of the following acts:
(A) Unless the person had a lawful right to carry a deadly weapon
at the time of the perpetration of the previous crime or his or her
arrest for the previous crime, he or she was armed with a weapon at
either of those times.
(B) The person used, or attempted to use, a deadly weapon upon a
human being in connection with the perpetration of the previous
crime.
(C) The person willfully inflicted great bodily injury or torture
in the perpetration of the previous crime.
(7) A public official or peace officer of this state or a city,
county, or other political subdivision who, in the discharge of the
duties of his or her public office or employment, accepted or gave or
offered to accept or give a bribe, embezzled public money, or was
guilty of extortion.
(8) A person who knowingly furnishes or gives away phencyclidine.
(9) A person who intentionally inflicted great bodily injury in
the commission of arson under subdivision (a) of Section 451 or who
intentionally set fire to, burned, or caused the burning of, an
inhabited structure or inhabited property in violation of subdivision
(b) of Section 451.
(10) A person who, in the commission of a felony, inflicts great
bodily injury or causes the death of a human being by the discharge
of a firearm from or at an occupied motor vehicle proceeding on a
public street or highway.
(11) A person who possesses a short-barreled rifle or a
short-barreled shotgun under Section 33215, a machinegun under
Section 32625, or a silencer under Section 33410.
(12) A person who is convicted of violating Section 8101 of the
Welfare and Institutions Code.
(13) A person who is described in subdivision (b) or (c) of
Section 27590.
(f) When probation is granted in a case that comes within
subdivision (e), the court shall specify on the record and shall
enter on the minutes the circumstances indicating that the interests
of justice would best be served by that disposition.
(g) If a person is not eligible for probation, the judge shall
refer the matter to the probation officer for an investigation of the
facts relevant to determination of the amount of a restitution fine
pursuant to subdivision (b) of Section 1202.4 in all cases where the
determination is applicable. The judge, in his or her discretion, may
direct the probation officer to investigate all facts relevant to
the sentencing of the person. Upon that referral, the probation
officer shall immediately investigate the circumstances surrounding
the crime and the prior record and history of the person and make a
written report to the court of his or her findings. The findings
shall include a recommendation of the amount of the restitution fine
as provided in subdivision (b) of Section 1202.4.
(h) If a defendant is convicted of a felony and a probation report
is prepared pursuant to subdivision (b) or (g), the probation
officer may obtain and include in the report a statement of the
comments of the victim concerning the offense. The court may direct
the probation officer not to obtain a statement if the victim has in
fact testified at any of the court proceedings concerning the
offense.
(i) No probationer shall be released to enter another state unless
his or her case has been referred to the Administrator of the
Interstate Probation and Parole Compacts, pursuant to the Uniform Act
for Out-of-State Probationer or Parolee Supervision (Article 3
(commencing with Section 11175) of Chapter 2 of Title 1 of Part 4)
and the probationer has reimbursed the county that has jurisdiction
over his or her probation case the reasonable costs of processing his
or her request for interstate compact supervision. The amount and
method of reimbursement shall be in accordance with subdivision (b)
of Section 1203.1.
(j) (1) In a court where a county financial evaluation officer is
available, in addition to referring the matter to the probation
officer, the court may order the defendant to appear before the
county financial evaluation officer for a financial evaluation of the
defendant's
ability to pay restitution, in which case the county financial
evaluation officer shall report his or her findings regarding
restitution and other court-related costs to the probation officer on
the question of the defendant's ability to pay those costs.
(2) An order made pursuant to this subdivision may be enforced as
a violation of the terms and conditions of probation upon willful
failure to pay and at the discretion of the court, may be enforced in
the same manner as a judgment in a civil action, if any balance
remains unpaid at the end of the defendant's probationary period.
(k) Probation shall not be granted to, nor shall the execution of,
or imposition of sentence be suspended for, a person who is
convicted of a violent felony, as defined in subdivision (c) of
Section 667.5, or a serious felony, as defined in subdivision (c) of
Section 1192.7, and who was on probation for a felony offense at the
time of the commission of the new felony offense.