BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 492 (Quirk)
As Introduced February 20, 2013
Hearing date: May 14, 2013
Penal Code
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INTER-COUNTY TRANSFER OF PROBATION SUPERVISION
PROBATIONERS CONVICTED OF NON-VIOLENT DRUG POSSESSION
HISTORY
Source: Chief Probation Officers of California
Prior Legislation: SB 431 (Benoit) - Ch. 588, Stats. 2009
Support: California Probation, Parole and Correctional
Association; Judicial Council of California; Alameda
County Probation Department
Opposition:Unknown
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
WHERE A DEFENDANT IS PLACED ON PROBATION UNDER SACPA (THE SUBSTANCE
ABUSE AND CRIME PREVENTION ACT OF 2000) SHOULD THE COURT IN THE
COUNTY OF CONVICTION TRANSFER THE CASE TO THE PROBATIONER'S COUNTY
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OF RESIDENCE UNLESS TRANSFER WOULD BE INAPPROPRIATE?
PURPOSE
The purpose of this bill is to provide that where a defendant is
placed on probation under SACPA (the Substance Abuse and Crime
Prevention Act of 2000) the court in the county of conviction
shall transfer the case to the county of the probationer's
residence, unless the court in the county of conviction
determines and states on the record that the transfer would be
inappropriate.
Existing law provides that whenever a person is released upon
probation or mandatory supervision, the court in the county of
conviction shall, upon noticed motion, transfer the case to the
court in the county of the defendant's residence, unless the
transferring court finds on the record that the transfer is
inappropriate. The court in the receiving county may comment on
the record regarding the proposed transfer. (Pen. Code �
1203.9, subd. (a).)
Existing law provides that upon receipt of the motion for
transfer, the court in the receiving county, the county
determined by the transferring court to be the defendant's
county of residence, may comment on the record concerning the
proposed transfer. (Pen. Code � 1203.9, subd. (a).)
Existing law requires the court and the probation department to
expeditiously determine probation transfer matters. Hearings on
probation transfer motions have precedence over all actions,
except those with special precedence in the law. (Pen. Code �
1203.9, subd. (a).)
Existing law states that the receiving county shall accept the
entire jurisdiction over the case. The receiving court may
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thereafter request transfer of the case "whenever it seems
proper," as specified (Pen. Code � 1203.9, subds. (b) and (d).)
Existing law provides that when a person is granted probation
for non-violent drug possession<1>, the sentencing court shall
transfer jurisdiction of the entire case, upon a finding by the
receiving court of the person's permanent residency in the
receiving county, unless the there is a determination on the
record that the transfer would be inappropriate. (Pen. Code �
1203.9, subd. (c).)
Existing law requires that the transfer contain an order
committing the probationer or supervised person to the care and
custody of the probation officer of the receiving county, with
an order for reimbursement to the transferring court of
reasonable costs. The orders and any probation reports shall be
transmitted to the court and probation officer of the receiving
county within two weeks of the finding that the defendant
resides in the receiving county. (Pen. Code � 1203.9, subd.
(d).)
Existing law provides that the Judicial Council shall promulgate
rules of court for procedures by which the proposed receiving
county shall receive notice and the motion for transfer and by
which responsive comments may be transmitted to the court of the
transferring county. The Judicial Council shall adopt rules
providing factors for the court's consideration when determining
the appropriateness of a transfer, including but not limited to
the following:
permanency of residence of the offender;
local programs available for the offender; and,
restitution orders and victim issues. (Pen. Code �
1203.9, subd. (e).)
This bill provides that where a defendant is placed on probation
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<1> Penal Code Section 1203.9 specifically refers to probation
granted under the Substance Abuse and Crime Prevention Act of
2000 (SACPA - Prop. 36 of the Nov. 2000 Gen. Elec.)
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under SACPA (the Substance Abuse and Crime Prevention Act of
2000), the court in the county of conviction shall transfer the
case to the county of the probationer's residence, unless the
court in the county of conviction determines and states on the
record that the transfer would be inappropriate.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
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went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
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1. Need for This Bill
According to the author:
In 2009, the Legislature passed SB 431 (Benoit) to
modify the transfer procedure for probationers as
governed by Penal Code Section 1203.9 to create
uniformity and a process whereby both the transferring
and receiving court were involved in the transfer
decision and process. At the time, the Legislature
did not modify the transfer procedure for the
Substance Abuse and Crime Prevention Act of 2000
(SACPA - Proposition 36 of the November, 2000 Gen.
Elec.) probation cases under subdivision (c) of
section 1203.9 due to the focus of the bill on
removing "courtesy supervision." In other words, it
was decided to not also make changes to Prop 36
transfers in an effort to mitigate any confusion or
unintended impacts of a new process.
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Thus, in SACPA cases, unlike all other cases, the
receiving court-as opposed to the transferring
court-is still responsible for determining the
probationer's county of residence. As a result, court
must apply two distinct probation transfer procedures.
Now that the courts and probation have been operating
under the new 1203.9 transfer process for a number of
years, and because there is no ostensible reason to
treat SACPA transfers differently, it is practical to
align the Prop. 36 procedure to reduce confusion and
unnecessary burdens on staff.
AB 492 will bring SACPA probation transfers in line
with the existing process for other probation
transfers; thereby creating a single uniform process
by which all probation departments and courts operate
within.
2. There Are No Published Appellate Decisions Concerning
Transfer of SACPA Cases
It appears that the probation transfer rules for probationers
undergoing drug treatment under SACPA (Prop. 36 of the Nov, 2000
Gen. Elec.) have not been considered in a published appellate
opinion. Committee staff found only an unpublished opinion from
the First Appellate District (San Francisco) concerning the
transfer of a SACPA case from Trinity to Humboldt County. The
decision simply noted the transfer without further comment. The
issue in the case was whether the trial court had validly found
the probationer had violated the terms of probation.
However, the Senate Public Safety analysis of SB 431(Benoit) in
2009<2> noted that prior law only authorized "courtesy"
supervision by the probation department in the county of
residence where the defendant was convicted in another
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<2> SB 431(Benoit), Chapter 588, Statutes of 2009.
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county.<3> The analysis noted that the system of courtesy
supervision created confusion and inconsistent application of
the law. Arguably, the laws for probation transfers should be
clear and uniform to facilitate full and proper supervision of
defendants on probation. This bill makes the probation transfer
rules uniform for all probation cases, including cases arising
under SACPA.
3. Argument in Support by the California Judicial Council
The Judicial Council of California states:
Under the transfer procedures for individuals granted
probation pursuant to Penal Code section 1201.1 (The
Substance Abuse and Crime Prevention Act, Prop. 36 of
the November 2000 general election - SACPA), the
receiving court is responsible for determining a
probationer's county of residence. In all other
cases, the transferring court is responsible for
making that determination. AB 492 eliminates the
separate transfer requirement for SACPA probation
cases, which serve no ostensible purpose. AB 492
revises the statutory transfer process to improve
public safety by making probation supervision more
effective, and enhancing the efficiency of case
transfers by improving the process of identifying the
most appropriate jurisdiction for probation
supervision, and improving the actual process of
transferring jurisdiction.
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<3> As under existing law, the law prior to enactment of SB 431
in 2009 required transfer of SACPA cases. However, the
receiving court determined whether the transfer was appropriate
or not.