California Legislature—2013–14 Regular Session

Assembly Bill No. 1715

Introduced by Assembly Member Patterson

February 13, 2014

An act to amend Sections 1203 and 1203.085 of the Penal Code, relating to probation.

LEGISLATIVE COUNSEL’S DIGEST

AB 1715, as introduced, Patterson. Probation: felons: disqualifying circumstances.

Existing law defines probation to mean 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 authorizes probation for some, but not all, felony convictions. Existing law prohibits granting probation for a felony conviction for, among other instances, a person who is convicted of a violent felony or a serious felony and who was on probation or parole for a felony offense at the time of the commission of the new felony offense.

This bill would similarly make that probation unavailable to a person who is convicted of a violent felony or a serious felony and who was on mandatory supervision or postrelease community supervision for a felony offense at the time of the commission of the new felony offense.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

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 may 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 any 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 a waiver shall not be allowed
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 State-Authorized Risk Assessment Tool for Sex Offenders
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, any 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) Any 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) Any person who willfully inflicted great bodily injury or
torture in the perpetration of the crime of which he or she has been
convicted.

(4) Any 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, any 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) Any 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) Any public official or peace officer of this state or any 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 any bribe, embezzled public money,
or was guilty of extortion.

(8) Any person who knowingly furnishes or gives away
phencyclidine.

(9) Any 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) Any 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) Any 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) Any person who is convicted of violating Section 8101 of
the Welfare and Institutions Code.

(13) Any person who is described in subdivision (b) or (c) of
Section 27590.

(f) When probation is granted in a case which 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) A probationer shall not 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 Section 1203.1b.

(j) In any 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.

Any 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, any 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.

begin insert

(l) Probation shall not be granted to, nor shall the execution
of, or imposition of sentence be suspended for, any 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 mandatory supervision for a felony offense
at the time of the commission of the new felony offense.

end insert

SEC. 2.  

Section 1203.085 of the Penal Code is amended to
read:

1203.085.  

(a) Any person convicted of an offense punishable
by imprisonment in the state prison but without an alternate
sentence to a county jail shall not be granted probation or have the
execution or imposition of sentence suspended, if the offense was
committed while the person was on parole from state prison
pursuant to Section 3000, following a term of imprisonment
imposed for 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.

(b) Any person 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, shall not be granted probation
or have the execution or imposition of sentence suspended, if the
offense was committed while the person was on parole from state
prison pursuant to Section 3000.

begin insert

(c) Any person 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, shall not be granted probation
or have the execution or imposition of sentence suspended, if the
offense was committed while the person was on postrelease
community supervision from state prison pursuant to Section
3000.08.

end insert begin delete

(c)

end delete

begin insert (d) end insert  The existence of any fact that would make a person ineligible
for probation under subdivision (a) begin delete or end delete begin insert , end insert (b) begin insert , or (c) end insert shall be alleged
in the information or indictment, and either admitted by the
defendant in open court, or found to be true by the jury trying the
issue of guilt or by the court where guilt is established by plea of
guilty or nolo contendere or by trial by the court sitting without a
jury.