BILL ANALYSIS �
AB 2527
Page 1
Date of Hearing: May 8, 2012
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2527 (Swanson) - As Amended: May 3, 2012
SUMMARY : Provides specified criteria that a court may consider
when determining whether to grant a probationer's petition for
termination of probation. Specifically this bill:
1)Requires a court to terminate the period of probation and
discharge the probationer at any time when the ends of justice
will be subserved, and when the good conduct and reform of the
person so held on probation warrant it.
2)States that in determining whether to terminate the period of
probation for good conduct and reform by the probationer, the
court may consider the following:
a) Whether the probationer is pursuing or has obtained a
GED or high school diploma;
b) Whether the probationer is performing community service;
and
c) Whether the probationer is participating in an
internship with a government agency or with a nonprofit
entity.
EXISTING LAW :
1)Authorizes a court, at any time during the term of probation,
to revoke, modify, or change its order of suspension of
imposition or execution of sentence. �Penal Code Section
1203.3(a).]
2)Authorizes a court to terminate the period of probation and
discharge a person on probation when the ends of justice will
be subserved thereby, and when the good conduct and reform of
the person shall warrant it. �Penal Code Section 1203.3(a).]
AB 2527
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3)States that the court's authority to revoke, modify, terminate
or change a previous order is subject to the following:
a) Before any sentence or term or condition of probation is
modified, a hearing shall be held in open court before the
judge. The prosecuting attorney shall be given a two-day
written notice and an opportunity to be heard on the
matter, except that, as to modifying or terminating a
protective order in a case involving domestic violence, as
defined, the prosecuting attorney shall be given a five-day
written notice and opportunity to be heard.
b) If the sentence or term or condition of probation is
modified, the judge shall state the reasons for that
modification on the record.
c) As used in this section, modification of sentence shall
include reducing a felony to a misdemeanor.
d) No order shall be made without written notice first
given by the court or the clerk thereof to the proper
probation officer of the intention to revoke, modify, or
change its order.
e) In all cases, if the court has not seen fit to revoke
the order of probation and impose sentence or pronounce
judgment, the defendant shall at the end of the term of
probation or any extension thereof, be by the court
discharged subject to the provisions of these sections.
f) The court may modify the time and manner of the term of
probation for purposes of measuring the timely payment of
restitution obligations or the good conduct and reform of
the defendant while on probation. The court shall not
modify the dollar amount of the restitution obligations due
to the good conduct and reform of the defendant, absent
compelling and extraordinary reasons, nor shall the court
limit the ability of payees to enforce the obligations in
the manner of judgments in civil actions.
g) Nothing in this section shall be construed to prohibit
the court from modifying the dollar amount of a restitution
order at any time during the term of the probation. �Penal
Code Section 1203.3(b)(1) to (5).]
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4)Allows a court to limit or terminate a protective order that
is a condition of probation in a case involving domestic
violence, as defined. In determining whether to limit or
terminate the protective order, the court shall consider if
there has been any material change in circumstances since the
crime for which the order was issued, and any issue that
relates to whether there exists good cause for the change,
including, but not limited to, consideration of all of the
following:
a) Whether the probationer has accepted responsibility for
the abusive behavior perpetrated against the victim;
b) Whether the probationer is currently attending and
actively participating in counseling sessions;
c) Whether the probationer has completed parenting
counseling, or attended alcoholics or narcotics counseling;
d) Whether the probationer has moved from the state, or is
incarcerated;
e) Whether the probationer is still cohabiting, or intends
to cohabit, with any subject of the order;
f) Whether the defendant has performed well on probation,
including consideration of any progress reports;
g) Whether the victim desires the change, and if so, the
victim's reasons, whether the victim has consulted a victim
advocate, and whether the victim has prepared a safety plan
and has access to local resources;
h) Whether the change will impact any children involved,
including consideration of any child protective services
information; and
i) Whether the ends of justice would be served by limiting
or terminating the order. �Penal Code Section
1203.3(b)(6).]
5)Provides that if a court orders a probationer to serve time in
jail, and the probationer escapes while serving that time, the
probation is revoked as a matter of law on the day of the
escape. �Penal Code Section 1203.3(c).]
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6)States that if probation is revoked pursuant to an escape,
upon taking the probationer into custody, the probationer
shall be accorded a hearing or hearings consistent with the
holding in the case of People v. Vickers (1972) 8 Cal.3d 451.
The purpose of that hearing or hearings is not to revoke
probation, as the revocation has occurred as a matter of law,
but rather to afford the defendant an opportunity to require
the prosecution to establish that the alleged violation did in
fact occur and to justify the revocation. �Penal Code Section
1203.3(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "With seventy
percent of the people that are released from prison returning
to prison within a few years, the needs of California's most
vulnerable populations must be met in a fiscally responsible
way by allowing individuals to make a successful transition
from prison back to our communities.
"A number of studies show that people are less likely to offend
or recidivate if they are gainfully employed. By providing
individuals with incentives, education and job training in the
community, the state can continue to reduce recidivism and
improve public safety.
"AB 2527 would instruct the courts to consider educational
attainment, community services, and internships in determining
whether to terminate the period of probation for good conduct
and reform. This provides incentives for individuals to
complete their probation while obtaining tools to help them
achieve employment.
"AB 2527 is a part of a larger package from the Assembly Select
Committee on the Status of Boys and Men of Color for
progressive criminal justice reform."
2)Necessity for this Bill ? Under existing law, a court may, at
any time when the ends of justice will be served and when the
good conduct and reform of the person so held on probation
shall warrant it, terminate the period of probation and
discharge the person so held. This bill changes the word
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"may" and replaces it with "shall." While the language of
this bill requires that a judge grant termination of
probation, it is still within the judge's discretion to
determine whether the ends of justice will be served and when
the good conduct and reform of the person should warrant
termination of probation. If a judge does not want to grant
termination of probation, under both existing law and the
change that would be made pursuant to this bill, it is within
the judge's discretion to find that terminating probation
would not be in the interest of justice or that the
probationer has not been reformed or has not demonstrated good
conduct.
Additionally, this bill provides specified conditions that a
judge may consider when determining whether the good conduct
and reform of a person should warrant termination of
probation. Current law does not limit what information the
judge may consider when making this determination. By listing
these considerations with such specificity, this bill seems to
narrow the application of this statute rather than expanding
it. While participating in volunteer work and pursuing a
diploma or educational credentials are ways to measure a
person's good conduct and reform, stating the type of
internship or the type of education is unnecessary and creates
bias in favor of those types of organizations and education
specifically listed.
3)Argument in Support : According to Drug Policy Alliance , "By
requiring courts to terminate periods of probation when the
interests of justice will be served and the probationer has
demonstrated reform and appropriate social conduct, this bill
will eliminate costly and unnecessary supervision of
individuals who, by the determination of the court, do not
pose a continued risk to public safety. Requiring courts to
act upon this determination with a termination of probation
will assist counties in managing their probation caseload in
adapting to public safety realignment."
4)Related Legislation :
a) AB 2263 (Bradford) clarifies that the court, in its
discretion and in the interests of justice, may grant
expungement relief for a petitioner convicted of a county
jail-eligible felony. AB 2263 will be heard by this
Committee today.
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b) AB 1384 (Bradford), Chapter 284, Statutes of 2011,
allows a court, in its discretion and in the interest of
justice, to determine that a defendant, who has been
convicted of a misdemeanor and not granted probation or an
infraction, should be granted expungement relief after the
lapse of one year from the date of pronouncement of the
judgment; and establishes that these expungement provisions
shall not apply to a person who is convicted of a
misdemeanor lewd and lascivious act on a child 14 or 15
years old when the perpetrator was 10 or more years older
than the victim.
5)Prior Legislation : AB 2068 (Hill), of the 2009-10 Legislative
Session, would have authorized the court, in its discretion
and in the interest of justice, to afford a defendant
expungement from a former misdemeanor conviction in cases
where probation was not granted. AB 2068 was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorneys for Criminal Justice
California Public Defenders Association
Drug Policy Alliance
Opposition
None
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744