BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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9
AB 2199 (Muratsuchi) 9
As Introduced February 20, 2014
Hearing date: May 13, 2014
Penal Code
AL/AA: mc
SUPERVISION FEES FOR MANDATORY SUPERVISION
HISTORY
Source: Chief Probation Officers of California
Prior Legislation: AB 579 (Melendez) - Ch. 12, Stats. 2014
AB 1715 (Patterson) - failed passage in Assembly
Public Safety, 2014
AB 560 (Ammiano) - failed passage in Assembly
Appropriations, 2013
AB 109 (Committee on Budget) - Ch. 15, Stats. 2011
Support: California Probation, Parole, and Correctional
Association; California State Sheriffs' Association;
AFSCME, AFL-CIO; California Police Chiefs Association;
California State Association of Counties; Los Angeles
County Probation Officers Union, AFSCME, Local 685;
Riverside Sheriffs' Association
Opposition:Taxpayers for Improving Public Safety
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD PROBATION DEPARTMENTS BE AUTHORIZED TO CHARGE A SUPERVISION
FEE FOR MANDATORY SUPERVISION, AS SPECIFIED?
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PURPOSE
The purpose of this bill is to extend the application of
probation supervision fees to mandatory supervision sentences.
Existing law authorizes the court, when imposing a sentence for
a county jail-eligible felony, to commit the defendant to county
jail as follows:
a) For a full term in custody as determined in accordance
with applicable sentencing law; or
b) For a term as determined in accordance with the
applicable sentencing law, but suspend execution of a
concluding portion or the term selected in the court's
discretion, during which time defendant will be placed on
mandatory supervision for the remaining unserved portion of
the sentence imposed by the court. The period of
supervision shall be mandatory and may not be earlier
terminated except by court order. During the period when
the defendant is under mandatory supervision, unless in
actual custody, the defendant shall be entitled to only
actual time credit against the term of imprisonment imposed
by the court. (Pen. Code, � 1170, subd. (h)(5).)
Existing law requires the probation officer, when a defendant is
granted probation or a conditional sentence, to determine a
defendant's ability to pay all or a portion of the reasonable
cost of probation supervision and probation report preparation.
(Pen. Code, � 1203.1b, subd. (a).)
This bill would revise this provision to require additionally
that the probation officer, when a defendant receives a term of
mandatory supervision pursuant to Penal Code section 1170. subd.
(h)(5), determine a defendant's ability to pay all or a portion
of the reasonable cost of mandatory supervision, which is not to
exceed the actual average cost thereof.
Existing law entitles the defendant to a hearing to have the
court determine his or her ability to pay, as well as determine
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the payment amount, unless he or she waives it. (Pen. Code, �
1203.1b, subd. (a).)
Existing law entitles the defendant the right to assistance of
counsel at that hearing. (Pen. Code, � 1203.1b, subd. (a).)
Existing law requires the court to set the amount of the payment
and order the defendant to pay that a.mount to the county in a
manner that is reasonable and compatible with the defendant's
financial ability. (Pen. Code, � 1203.1b, subd. (b).)
Existing law defines "ability to pay" as the overall capacity of
the defendant to reimburse the costs, or a portion of the costs,
of conducting the presentence investigation, preparing the
probation reports, processing jurisdictional transfers, and the
costs of supervision. (Pen. Code, � 1203.1b, subd. (e).)
This bill would amend this section to expressly include the cost
of mandatory supervision.
Existing law sets forth criteria for the court to consider in
determining the defendant's ability to pay, including:
a) Present financial position;
b) Reasonably discernible future financial position for the
next year;
c) The likelihood that the defendant shall be able to
obtain employment within the one-year period from the date
of the hearing; and
d) Any other factor or factors that may bear upon the
defendant's financial capability to reimburse the county
for the costs. (Pen. Code, � 1203.1b, subd. (e).)
Existing law provides for additional hearings during the period
of probation to review the defendant's ability to pay the
probation costs. (Pen. Code, � 1203.1, subd. (c).)
This bill would revise this provision to also allow for
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additional hearings during the period of mandatory supervision
to review the defendant's financial ability to pay mandatory
supervision costs.
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 that 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.
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 requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
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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 % inmate population cap by December 31, 2013.
The Three-Judge Court then ordered, on April 11, 2013, 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." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
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The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the prison
population;
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
1.Stated Need for This Bill
According to the author:
Under existing law, a trial court is authorized to
order a defendant to pay the reasonable cost of
supervision when probation is granted or a conditional
sentence is imposed. Existing law takes into account a
defendant's ability to pay using a mechanism to
determine the appropriate amount that a defendant
should be charged. Existing law has not been updated
to account for Mandatory Supervision offenders who are
now under the supervision of local probation
departments. Supervision fees can help to cover a
portion of the actual costs of providing critical adult
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field services, supervision, and programs. This bill
would authorize a supervision fee for Mandatory
Supervision, thereby bringing parity with other
supervised populations.
2.Necessity for This Bill
Recently, two appellate courts have concluded that supervision
fees authorized in Penal Code section 1203.1b are inapplicable
to mandatory supervision. (See People v. Fandinola (2013) 221
Cal.App.4th 1415; and People v. Ghebretensea (2013) 222
Cal.App.4th741.) Both courts noted that the plain language of
the Penal Code section 1203.1b applies only to a grant of
probation or a conditional sentence, and that mandatory
supervision is neither a grant of probation nor a conditional
sentence. (Fandinola, supra, 221 Cal.App.4th at pp. 1421-1422;
Ghebretensea, supra, 222 Cal.App.4th at p. 764.) Both courts
also noted that after the enactment of realignment the
Legislature has amended two other Penal Code sections to
expressly provide that particular fines and costs are applicable
to mandatory supervision cases. Given the Legislature did not
similarly amend section 1203.1b to apply to mandatory
supervision, this indicates it did not intend such application.
(Fandinola, supra, 221 Cal.App.4th at pp. 1422-1423;
Ghebretensea, supra, 222 Cal.App.4th at pp. 765-766 [both
referencing Pen. Code, �� 1202.45 and 1203.9].)
Therefore, under current law, the court lacks authority to
impose the supervision fee on a defendant who is given a split
sentence and subject to mandatory supervision. This bill would
expand the application of Penal Code section 1203.1b to allow
probation departments to recoup the costs of mandatory
supervision, if the defendant has the ability to pay.
3.Split Sentencing Under Realignment
Realignment gives the sentencing judge discretion to impose two
types of felony sentences to county jail. (Pen. Code � 1170,
subd. (h)(5).) The court may commit the defendant to county
jail for the straight term allowed by law. (Pen. Code � 1170,
subd. (h)(5)(A).) With this alternative, the defendant will
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serve the computed term in custody, less conduct credits, then
be released without restriction. With the second alternative,
the court may send the defendant to county jail for the computed
term, but suspend a concluding portion of the term. (Pen. Code
� 1170, subd. (h)(5)(B).) During this time, the defendant will
be supervised by the county probation officer in accordance with
the terms, conditions and procedures generally applicable to
persons placed on probation. If the court chooses to impose the
supervision period, the defendant's participation is mandatory.
Like the straight sentence, once the custody and supervision
term has been served, the defendant is free of any restrictions
or supervision. These sentences are called "split" sentences
because they generally are composed of a mixture of custody and
mandatory supervision time.
A January 2014 report by the Stanford Criminal Justice Center
states:
Recently released data from the Chief Probation
Officers of California (CPOC) indicate that most
1170(h) offenders sentenced to some jail time are given
straight jail sentences, rather than split sentences.
However, the percentage of split sentences imposed has
steadily increased since Realignment's enactment in
October 2011. ? The use of split sentences was low
when AB 109 first went into effect -- only 17% of all
sentences imposed in October 2011 were split sentences.
By October 2012, the percentage of 1170(h) offenders
given split sentences increased to 30%. This
percentage has remained steady through March 2013.
(Assessing Judicial Sentencing Preferences After Public
Safety Realignment: A Survey of California Judges, pp.
22-23,
http://www.law.stanford.edu/sites/default/files/child-page
/443444/doc/slspublic/Judges%20Report%20Feb%2028%202014%20
Final.pdf.)
4.Comparing Probation and Mandatory Supervision
Mandatory supervision is similar to probation in that the
defendant is supervised by a probation officer, and the
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defendant's release is subject to the terms and conditions
imposed by the judge or the probation department. Like
probation, the failure to comply with terms and conditions can
result in the person being sent back to custody.
Despite the fact that county probation offices are responsible
for monitoring individuals on mandatory supervision as part of a
split sentence, that period of time is not considered probation.
Mandatory supervision may not be used until the judge denies
probation and imposes a split sentence. The supervision is part
of the sentence imposed by the court.
There is another significant difference between probation and
mandatory supervision: a defendant can refuse probation and
instead choose to serve the sentence. (People v. Beal (1997) 60
Cal.App.4th 84, 87.) In contrast, a defendant does not have the
right to refuse a split sentence requiring mandatory
supervision. "Since the commitment under section 1170(h)
generally is the equivalent of a prison sentence, the defendant
need not agree to the terms and conditions of supervision in the
same manner as a sentence involving a grant of probation." (See
Felony Sentencing After Realignment, by Judge Couzens (Ret.) &
Justice Bigelow, June 2013, at p. 13 [discussing split
sentences],
.)
SHOULD DEFENDANTS ON MANDATORY SUPERVISION BE CHARGED COSTS FOR
SUPERVISION THAT THEY DO NOT HAVE THE RIGHT TO REFUSE?
5.Background on Probation Supervision Fee
The court may order that a defendant who is granted probation or
conditional release pay the costs of supervision and preparation
of probation reports, if he or she is financially able to do so.
(People v. Hall (2002) 103 Cal.App.4th 889, 892-893.)
Before supervision costs may be imposed, however, probationers
must be informed of their right to a hearing and to a judicial
determination of ability to pay. Any waiver of these procedures
by the probationer must be knowing and intelligent. (Pen. Code
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� 1203.1b; People v. O'Connell (2003) 107 Cal.App.4th 1062,
1067-1068.)
When a probationer is ordered to pay probation costs, payment of
these costs cannot be made a condition of probation. Therefore,
the failure to pay probation costs cannot be considered a
violation of probation conditions. (People v. Hall, supra, 103
Cal.App.4th at p. 892; People v. O'Connell, supra, 107
Cal.App.4th at p. 1068.)
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In People v. Washington (2002) 100 Cal. App. 4th 590, the court
discussed the legislative reasoning behind the probation
supervision fee:
Penal Code section 1203.1b is a recoupment statute and
should be flexibly interpreted in light of the
legislative policy to conserve public funds. "Section
1203.1b and other recoupment statutes reflect a strong
legislative policy in favor of shifting the costs
stemming from criminal acts back to the convicted
defendant?[R]ecoupment statutes demonstrate legislative
concern for 'replenishing a county treasury from the
pockets of those who have directly benefited from
county expenditures."' It has also been acknowledged
that the state has an important interest in recoupment
laws in this age of expanding criminal dockets and the
resulting heightened burden on public revenues.
Recoupment laws reflect legislative efforts to recover
some of these added costs and conserve the public
fisc." (p.4) (citations omitted.)
WOULD EXTENDING THE SUPERVISION FEE TO MANDATORY SUPERVISION BE
CONSISTENT WITH THE RATIONALE OF THE CURRENT RECOUPMENT STATUTE?
6.Ability to Pay Provisions
When determining whether the defendant has the ability to pay
the costs of supervision, the trial court must consider: (1)
the defendant's present financial position; (2) the defendant's
reasonably discernable future financial position; (3) the
likelihood that the defendant will be able to obtain a job
within one year; and (4) any other factors that may bear on the
defendant's financial ability to reimburse the county. However,
in no event can the court consider a period of more than one
year from the date of the hearing for purposes of the
defendant's future financial position or future job prospects.
(Pen. Code � 1203.1, subd. (e).)
The one-year limitations on considering future job prospects and
future financial position when determining ability to pay
probation supervision costs are due to the fact that jail time
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as a condition of probation is limited to one year. (See Pen.
Code � 19.2.)
However, the same one-year limit on incarceration does not apply
to a defendant serving a split sentence. The judge can split
the sentence between jail custody and mandatory supervision in
the community in any proportion he or she wants. (See Pen. Code
� 1170, subd. (h)(5)(B).) Many defendants will serve over one
year before their period of mandatory supervision begins. In
these cases, the factors the court is to consider when making a
determination of a defendant's ability to pay will weigh in
favor of a finding that the defendant does not have the ability
to pay the costs of mandatory supervision.
WOULD THIS BILL ALLOW THE PROBATION DEPARTMENT TO RECOUP COSTS
FROM MANDATORY SUPERVISION AS INTENDED?
7.Argument in Support
The Chief Probation Officers of California, the sponsor of this
bill writes:
AB 2199 would bring needed parity to these populations
of similarly situated offenders by allowing defendants
to be charged for the reasonable costs of mandatory
supervision. Ability to pay provisions would
similarly apply and probation (sic) would not be
revoked for someone's inability to pay. These
supervision fees help cover a portion of the actual
cost to provide critical adult field service
supervision and programs.
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