Bill Text: CA AB2888 | 2015-2016 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Sex crimes: mandatory prison sentence.

Spectrum: Slight Partisan Bill (Democrat 6-2)

Status: (Passed) 2016-09-30 - Chaptered by Secretary of State - Chapter 863, Statutes of 2016. [AB2888 Detail]

Download: California-2015-AB2888-Amended.html

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BILL NUMBER: AB 2888	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 21, 2016
	AMENDED IN SENATE  JUNE 16, 2016

INTRODUCED BY   Assembly  Member   Dodd
  Members   Low   and Dodd 
    (   Coauthor:   Senator   Hill
  ) 

                        FEBRUARY 29, 2016

   An act to amend Section  1203   1203.065
 of the Penal Code, relating to probation.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2888, as amended,  Dodd   Low  .
 Probation: sex crimes.   Sex crimes: mandatory
prison sentence.  
   Existing law prohibits a court from granting probation or
suspending the execution or imposition of a sentence if a person is
convicted of violating specified provisions of law, including rape by
force, pandering, aggravated sexual assault of a child, and others.
 
   This bill would prohibit a court from granting probation or
suspending the execution or imposition of a sentence if a person is
convicted of rape, sodomy, penetration with a foreign object, or oral
copulation if the victim was either unconscious or incapable of
giving consent due to intoxication.  
   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 a court to grant probation
for some, but not all, felony convictions, as enumerated. 

   This bill would prohibit a court from granting probation to a
defendant who is convicted of committing specified acts of rape,
sodomy, oral copulation, or sexual penetration upon the victim who
was prevented from resisting by any intoxicating or anesthetic
substance, or any controlled substance, or was unconscious, as
specified under those provisions. 
   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 1203.065 of the  
Penal Code   is amended to read: 
   1203.065.  (a) Notwithstanding any other  provision of
 law, probation shall not be granted to, nor shall the
execution or imposition of sentence be suspended for,  any
  a  person who is convicted of violating paragraph
 (2)   (2), (3), (4),  or (6) of
subdivision (a) of Section 261, Section 264.1, 266h, 266i, 266j, or
269, paragraph (2) or (3) of subdivision (c), or subdivision (d),
 (f), or (i)  of Section 286, paragraph (2) or (3) of
subdivision (c), or subdivision (d),  (f), or (i)  of
Section 288a, Section 288.7, subdivision  (a)  
(a), (e), or (f)  of Section 289, or subdivision (b) of Section
311.4.
   (b) (1) 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   a  person
who is convicted of violating paragraph (7) of subdivision (a) of
Section 261, subdivision (k) of Section 286, subdivision (k) of
Section 288a, subdivision (g) of Section 289, or Section 220 for
assault with intent to commit a specified sexual offense.
   (2)  When   If  probation is granted,
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 the disposition. 
  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.
   (14) Any person who is convicted of violating paragraph (3) or (4)
of subdivision (a) of Section 261, paragraph (2) or (3) of
subdivision (a) of Section 262, subdivision (f) or (i) of Section
286, subdivision (f) or (i) of Section 288a, or subdivision (d) or
(e) of Section 289.
   (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.