Bill Text: CA AB63 | 2013-2014 | Regular Session | Amended

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Bill Title: Electronic monitoring: removing or disabling.

Spectrum: Strong Partisan Bill (Republican 14-1)

Status: (Introduced - Dead) 2014-02-03 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB63 Detail]

Download: California-2013-AB63-Amended.html

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BILL NUMBER: AB 63	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 1, 2013
	AMENDED IN ASSEMBLY  FEBRUARY 19, 2013

INTRODUCED BY   Assembly Member Patterson
   (Coauthors: Assembly Members Bigelow, Conway, Beth Gaines, 
Hagman,  Harkey, Maienschein, Melendez, Morrell, Waldron, and
Wilk)
   (Coauthors: Senators  Berryhill  
  and Huff   Berryhill,  
Gaines,   Huff,  and Nielsen  )

                        JANUARY 7, 2013

   An act to  amend Section 3000.08, 3000.09, 3455, and 3458
of, andto  add Section 3010.10  to,  
to  the Penal Code, relating to electronic monitoring.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 63, as amended, Patterson. Electronic monitoring: removing or
disabling.
   Existing law permits, and with respect to certain sex offenders
requires, the use of electronic monitoring by county probation
departments and the Department of Corrections and Rehabilitation to
electronically monitor the whereabouts of persons on postrelease
community supervision and parole, respectively. Under existing law, a
person on postrelease community supervision  or parole
  parole, or mandatory supervision  who fails to
comply with the rules or conditions for the use of electronic
monitoring as a supervision tool may be found to have violated the
terms of his or her postrelease community supervision  or
parole,   parole, or mandatory supervision, 
respectively, and may be required to serve a term of imprisonment in
the county jail.
   This bill would provide that unauthorized removal, as specified,
of an electronic, global positioning system (GPS), or other
monitoring device affixed as a condition of postrelease community
supervision  or parole   parole, or mandatory
supervision  is an offense punishable by imprisonment in the
county jail for not more than one year, or in the state prison for 16
months, 2 years, or 3 years. This bill would also provide that a
person on postrelease community supervision  or parole
  parole, or mandatory supervision  who is ordered
pursuant to a revocation hearing to serve a term of imprisonment,
incarceration, or confinement for violating the conditions of
release, when the violation was based on the removal or disabling of
an electronic, GPS, or other monitoring device affixed as a condition
of release, and the person has not been prosecuted for that conduct,
shall serve that term in the state prison. This bill would also make
related, conforming changes.
   By creating a new crime, this bill would impose a state-mandated
local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
   
  SECTION 1.    Section 3000.08 of the Penal Code,
as amended by Section 35 of Chapter 43 of the Statutes of 2012, is
amended to read:
   3000.08.  (a) Persons released from state prison prior to or on or
after July 1, 2013, after serving a prison term or, whose sentence
has been deemed served pursuant to Section 2900.5, for any of the
following crimes shall be subject to parole supervision by the
Department of Corrections and Rehabilitation and the jurisdiction of
the court in the county where the parolee is released or resides for
the purpose of hearing petitions to revoke parole and impose a term
of custody:
   (1) A serious felony as described in subdivision (c) of Section
1192.7.
   (2) A violent felony as described in subdivision (c) of Section
667.5.
   (3) A crime for which the person was sentenced pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12.
   (4) Any crime where the person eligible for release from prison is
classified as a High Risk Sex Offender.
   (5) Any crime where the person is required, as a condition of
parole, to undergo treatment by the Department of Mental Health
pursuant to Section 2962.
   (b) Notwithstanding any other provision of law, all other
offenders released from prison shall be placed on postrelease
supervision pursuant to Title 2.05 (commencing with Section 3450).
   (c) At any time during the period of parole of a person subject to
this section, if any parole agent or peace officer has probable
cause to believe that the parolee is violating any term or condition
of his or her parole, the agent or officer may, without warrant or
other process and at any time until the final disposition of the
case, arrest the person and bring him or her before the court, or the
court may, in its discretion, issue a warrant for that person's
arrest pursuant to Section 1203.2.
   (d) Upon review of the alleged violation and a finding of good
cause that the parolee has committed a violation of law or violated
his or her conditions of parole, the supervising parole agency may
impose additional and appropriate conditions of supervision,
including rehabilitation and treatment services and appropriate
incentives for compliance, and impose immediate, structured, and
intermediate sanctions for parole violations, including flash
incarceration in a county jail. Periods of "flash incarceration," as
defined in subdivision (e) are encouraged as one method of punishment
for violations of a parolee's conditions of parole. Nothing in this
section is intended to preclude referrals to a reentry court pursuant
to Section 3015.
   (e) "Flash incarceration" is a period of detention in county jail
due to a violation of a parolee's conditions of parole. The length of
the detention period can range between one and 10 consecutive days.
Shorter, but if necessary more frequent, periods of detention for
violations of a parolee's conditions of parole shall appropriately
punish a parolee while preventing the disruption in a work or home
establishment that typically arises from longer periods of detention.

   (f) If the supervising parole agency has determined, following
application of its assessment processes, that intermediate sanctions
up to and including flash incarceration are not appropriate, the
supervising parole agency shall, pursuant to Section 1203.2, petition
the court in the county in which the parolee is being supervised to
revoke parole. At any point during the process initiated pursuant to
this section, a parolee may waive, in writing, his or her right to
counsel, admit the parole violation, waive a court hearing, and
accept the proposed parole modification or revocation. The petition
shall include a written report that contains additional information
regarding the petition, including the relevant terms and conditions
of parole, the circumstances of the alleged underlying violation, the
history and background of the parolee, and any recommendations. The
Judicial Council shall adopt forms and rules of court to establish
uniform statewide procedures to implement this subdivision, including
the minimum contents of supervision agency reports. Upon a finding
that the person has violated the conditions of parole, the court
shall have authority to do any of the following:
   (1) Return the person to parole supervision with modifications of
conditions, if appropriate, including a period of incarceration in
county jail.
   (2) Revoke parole and order the person to confinement in the
county jail.
   (3) Refer the person to a reentry court pursuant to Section 3015
or other evidence-based program in the court's discretion.
   (4) When a violation is found based on the conduct described in
Section 3010.10, revoke parole and order the person to confinement in
the state prison.
   (g) (1) Confinement pursuant to paragraphs (1) and (2) of
subdivision (f) shall not exceed a period of 180 days in the county
jail.
   (2) Notwithstanding subdivision (e) of Section 3057, confinement
pursuant to paragraph (4) of subdivision (f) shall be in accordance
with subdivisions (a) to (d), inclusive, of Section 3057.
   (h) Notwithstanding any other provision of law, in any case where
Section 3000.1 or paragraph (4) of subdivision (b) of Section 3000
applies to a person who is on parole and the court determines that
the person has committed a violation of law or violated his or her
conditions of parole, the person on parole shall be remanded to the
custody of the Department of Corrections and Rehabilitation and the
jurisdiction of the Board of Parole Hearings for the purpose of
future parole consideration.
   (i) Notwithstanding subdivision (a), any of the following persons
released from state prison shall be subject to the jurisdiction of,
and parole supervision by, the Department of Corrections and
Rehabilitation for a period of parole up to three years or the parole
term the person was subject to at the time of the commission of the
offense, whichever is greater:
   (1) The person is required to register as a sex offender pursuant
to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1,
and was subject to a period of parole exceeding three years at the
time he or she committed a felony for which they were convicted and
subsequently sentenced to state prison.
   (2) The person was subject to parole for life pursuant to Section
3000.1 at the time of the commission of the offense that resulted in
a conviction and state prison sentence.
   (j) Parolees subject to this section who have a pending
adjudication for a parole violation on July 1, 2013, shall be subject
to the jurisdiction of the Board of Parole Hearings. Parole
revocation proceedings conducted by the Board of Parole Hearings
prior to July 1, 2013, if reopened on or after July 1, 2013, shall be
subject to the jurisdiction of the Board of Parole Hearings.
   (k) Except as described in subdivision (c), any person who is
convicted of a felony that requires community supervision and who
still has a period of state parole to serve shall discharge from
state parole at the time of release to community supervision.
   (  l  ) This section shall become operative on
July 1, 2013. 
  SEC. 2.    Section 3000.09 of the Penal Code is
amended to read:
   3000.09.  (a) Notwithstanding any other law, any parolee who was
paroled from state prison prior to October 1, 2011, shall be subject
to this section.
   (b) Parolees subject to this section shall remain under
supervision by the Department of Corrections and Rehabilitation until
one of the following occurs:
   (1) Jurisdiction over the person is terminated by operation of
law.
   (2) The supervising agent recommends to the Board of Parole
Hearings that the offender be discharged and the parole authority
approves the discharge.
   (3) The offender is subject to a period of parole of up to three
years pursuant to paragraph (1) of subdivision (b) of Section 3000
and was not imprisoned for committing a violent felony, as defined in
subdivision (c) of Section 667.5, a serious felony, as defined by
subdivision (c) of Section 1192.7, or is required to register as a
sex offender pursuant to Section 290, and completes six consecutive
months of parole without violating their conditions, at which time
the supervising agent shall review and make a recommendation on
whether to discharge the offender to the Board of Parole Hearings and
the Board of Parole Hearings approves the discharge.
   (c) Parolees subject to this section who are being held for a
parole violation in state prison on October 1, 2011, upon completion
of a revocation term on or after November 1, 2011, shall either
remain under parole supervision of the department pursuant to Section
3000.08 or shall be placed on postrelease community supervision
pursuant to Title 2.05 (commencing with Section 3450). Any person
placed on postrelease community supervision pursuant to Title 2.05
(commencing with Section 3450) after serving a term for a parole
revocation pursuant to this subdivision shall serve a period of
postrelease supervision that is no longer than the time period for
which the person would have served if the person remained on parole.
Notwithstanding Section 3000.08, any parolee who is in a county jail
serving a term of parole revocation or being held pursuant to Section
3056 on October 1, 2011, and is released directly from county jail
without returning to a state facility on or after October 1, 2011,
shall remain under the parole supervision of the department. Any
parolee that is pending final adjudication of a parole revocation
charge prior to October 1, whether located in county jail or state
prison, may be returned to state prison and shall be confined
pursuant to subdivisions (a) to (d), inclusive, of Section 3057. Any
subsequent parole revocations of a parolee on postrelease community
supervision shall be served in county jail pursuant to Section 3056,
unless the revocation is based on the conduct described in Section
3010.10, in which case the subsequent parole revocation shall be
served in state prison.
   (d) Any parolee who was paroled prior to October 1, 2011, who
commits a violation of parole shall, until July 1, 2013, be subject
to parole revocation procedures in accordance with the rules and
regulations of the department consistent with Division 2 of Title 15
of the California Code of Regulations. On and after July 1, 2013, any
parolee who was paroled prior to October 1, 2011, shall be subject
to the procedures established under Section 3000.08. 
   SEC. 3.   SECTION 1.   Section 3010.10
is added to the Penal Code, to read:
   3010.10.  (a) Except as provided in paragraph (2) of subdivision
(c), a person subject to  parole   mandatory
supervision pursuant to subparagraph (B) of paragraph (5) of
subdivision (h) of Section 1170, parole,  or postrelease
community supervision who willfully removes or disables, or willfully
permits another to remove or disable, an electronic, global
positioning system (GPS), or other monitoring device affixed to his
or her person, and the device was affixed as a condition of 
parole   mandatory supervision   , parole,
 or postrelease community supervision, is guilty of a public
offense, punishable by imprisonment in the county jail not exceeding
one year, or in the state prison for 16 months, two years, or three
years.
   (b) Except as provided in subdivision (c), a person who willfully
removes or disables an electronic, GPS, or other monitoring device
affixed to the person of another, knowing that the device was affixed
as a condition of  parole   mandatory
supervision   ,   parole,  or postrelease
community supervision is guilty of a felony, punishable by
imprisonment in a county jail not exceeding one year, or in the state
prison for 16 months, two years, or three years.
   (c) (1) Subdivision (b) shall not apply to the removal or
disabling of an electronic, GPS, or other monitoring device by a
physician, emergency medical services technician, or by any other
emergency response or medical personnel when doing so is necessary
during the course of medical treatment of the person subject to the
electronic, GPS, or other monitoring device.
   (2) This section shall not apply where the removal or disabling of
the electronic, GPS, or other monitoring device is authorized or
required by a court of law, or by the law enforcement, probation,
parole authority, or other entity responsible for placing the
electronic, GPS, or other monitoring device upon the person, or that
has, at the time, the authority and responsibility to monitor the
electronic, GPS, or other monitoring device.
   (d) Notwithstanding any other law, any imprisonment,
incarceration, or confinement ordered pursuant to a revocation
hearing described in Section 3000.08 or  3455  
3455, or ordered as a result of a proceeding to revoke mandatory
supervision pursuant to either subdivisions (a) and (b) of Section
1203.2 or Section 1203.3,  as a result of a person violating the
conditions of parole or postrelease community supervision by
engaging in the conduct described in subdivision (a), when that
individual has not been prosecuted under subdivision (a), shall be
served in state prison.
   (e) Nothing in this section shall preclude prosecution under any
other law. 
  SEC. 4.    Section 3455 of the Penal Code is
amended to read:
   3455.  (a) If the supervising county agency has determined,
following application of its assessment processes, that intermediate
sanctions as authorized in subdivision (b) of Section 3454 are not
appropriate, the supervising county agency shall petition the court
pursuant to Section 1203.2 to revoke, modify, or terminate
postrelease community supervision. At any point during the process
initiated pursuant to this section, a person may waive, in writing,
his or her right to counsel, admit the violation of his or her
postrelease community supervision, waive a court hearing, and accept
the proposed modification of his or her postrelease community
supervision. The petition shall include a written report that
contains additional information regarding the petition, including the
relevant terms and conditions of postrelease community supervision,
the circumstances of the alleged underlying violation, the history
and background of the violator, and any recommendations. The Judicial
Council shall adopt forms and rules of court to establish uniform
statewide procedures to implement this subdivision, including the
minimum contents of supervision agency reports. Upon a finding that
the person has violated the conditions of postrelease community
supervision, the revocation hearing officer shall have authority to
do all of the following:
   (1) Return the person to postrelease community supervision with
modifications of conditions, if appropriate, including a period of
incarceration in county jail.
   (2) Revoke and terminate postrelease community supervision and
order the person to confinement in the county jail.
   (3) Refer the person to a reentry court pursuant to Section 3015
or other evidence-based program in the court's discretion.
   (4) When a violation is found based on the conduct described in
Section 3010.10, revoke and terminate postrelease community
supervision and order the person to confinement in the state prison.
   (b) (1) At any time during the period of postrelease community
supervision, if any peace officer has probable cause to believe a
person subject to postrelease community supervision is violating any
term or condition of his or her release, the officer may, without a
warrant or other process, arrest the person and bring him or her
before the supervising county agency established by the county board
of supervisors pursuant to subdivision (a) of Section 3451.
Additionally, an officer employed by the supervising county agency
may seek a warrant and a court or its designated hearing officer
appointed pursuant to Section 71622.5 of the Government Code shall
have the authority to issue a warrant for that person's arrest.
   (2) The court or its designated hearing officer shall have the
authority to issue a warrant for any person who is the subject of a
petition filed under this section who has failed to appear for a
hearing on the petition or for any reason in the interests of
justice, or to remand to custody a person who does appear at a
hearing on the petition for any reason in the interests of justice.
   (c) The revocation hearing shall be held within a reasonable time
after the filing of the revocation petition. Based upon a showing of
a preponderance of the evidence that a person under supervision poses
an unreasonable risk to public safety, or the person may not appear
if released from custody, or for any reason in the interests of
justice, the supervising county agency shall have the authority to
make a determination whether the person should remain in custody
pending the first court appearance on a petition to revoke
postrelease community supervision, and upon that determination, may
order the person confined pending his or her first court appearance.
   (d) (1) Confinement pursuant to paragraphs (1) and (2) of
subdivision (a) shall not exceed a period of 180 days in the county
jail for each custodial sanction.
   (2) Notwithstanding subdivision (e) of Section 3057, confinement
pursuant to paragraph (4) of subdivision (a) shall be in accordance
with subdivisions (a) to (d), inclusive, of Section 3057.
   (e) A person shall not remain under supervision or in custody
pursuant to this title on or after three years from the date of the
person's initial entry onto postrelease community supervision, except
when his or her supervision is tolled pursuant to Section 1203.2 or
subdivision (b) of Section 3456.  
  SEC. 5.    Section 3458 of the Penal Code is
amended to read:
   3458.  Except as described in Section 3010.10, no person subject
to this title shall be returned to prison for a violation of any
condition of the person's postrelease supervision agreement.

   SEC. 6.   SEC. 2.   No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.