Bill Text: CA AB908 | 2009-2010 | Regular Session | Introduced
Bill Title: Probation.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-02-02 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB908 Detail]
Download: California-2009-AB908-Introduced.html
BILL NUMBER: AB 908 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Tom Berryhill
FEBRUARY 26, 2009
An act to amend Section 1203.1b of the Penal Code, relating to
probation.
LEGISLATIVE COUNSEL'S DIGEST
AB 908, as introduced, Tom Berryhill. Probation.
Existing law establishes a procedure to by which a probation
officer determines the ability of the defendant to pay all or a
portion of the reasonable costs of any probation supervision or
conditional sentence, as specified. Existing law also provides that
if practicable, the court shall order or the probation officer shall
set payments for those costs to be made on a monthly basis. Existing
law further provides that execution may be issued on the payment
order in the same manner as a judgment in a civil action, ad that the
order to pay all or part of the costs shall not be enforced by
contempt.
This bill would require that the court order the payment of the
described probation costs as a condition of probation, if probation
is granted.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1203.1b of the Penal Code is amended to read:
1203.1b. (a) In any case in which a defendant is convicted of an
offense and is the subject of any preplea or presentence
investigation and report, whether or not probation supervision is
ordered by the court, and in any case in which a defendant is granted
probation or given a conditional sentence, the probation officer, or
his or her authorized representative, taking into account any amount
that the defendant is ordered to pay in fines, assessments, and
restitution, shall make a determination of the ability of the
defendant to pay all or a portion of the reasonable cost of any
probation supervision or a conditional sentence, of conducting any
preplea investigation and preparing any preplea report pursuant to
Section 1203.7, of conducting any presentence investigation and
preparing any presentence report made pursuant to Section 1203, and
of processing a jurisdictional transfer pursuant to Section 1203.9 or
of processing a request for interstate compact supervision pursuant
to Sections 11175 to 11179, inclusive, whichever applies. The
reasonable cost of these services and of probation supervision or a
conditional sentence shall not exceed the amount determined to be the
actual average cost thereof. A payment schedule for the
reimbursement of the costs of preplea or presentence investigations
based on income shall be developed by the probation department of
each county and approved by the presiding judge of the superior
court. The court shall order the defendant to appear before the
probation officer, or his or her authorized representative, to make
an inquiry into the ability of the defendant to pay all or a portion
of these costs. The probation officer, or his or her authorized
representative, shall determine the amount of payment and the manner
in which the payments shall be made to the county, based upon the
defendant's ability to pay. The probation officer shall inform the
defendant that the defendant is entitled to a hearing, that includes
the right to counsel, in which the court shall make a determination
of the defendant's ability to pay and the payment amount. The
defendant must waive the right to a determination by the court of his
or her ability to pay and the payment amount by a knowing and
intelligent waiver.
(b) When the defendant fails to waive the right provided in
subdivision (a) to a determination by the court of his or her ability
to pay and the payment amount, the probation officer shall refer the
matter to the court for the scheduling of a hearing to determine the
amount of payment and the manner in which the payments shall be
made. The court shall order the defendant to pay the reasonable costs
if it determines that the defendant has the ability to pay those
costs based on the report of the probation officer, or his or her
authorized representative , and shall make that order a
condition of probation, if probation is granted . The following
shall apply to a hearing conducted pursuant to this subdivision:
(1) At the hearing, the defendant shall be entitled to have, but
shall not be limited to, the opportunity to be heard in person, to
present witnesses and other documentary evidence, and to confront and
cross-examine adverse witnesses, and to disclosure of the evidence
against the defendant, and a written statement of the findings of the
court or the probation officer, or his or her authorized
representative.
(2) At the hearing, if the court determines that the defendant has
the ability to pay all or part of the costs, the court shall set the
amount to be reimbursed and order the defendant to pay that sum to
the county in the manner in which the court believes reasonable and
compatible with the defendant's financial ability.
(3) At the hearing, in making a determination of whether a
defendant has the ability to pay, the court shall take into account
the amount of any fine imposed upon the defendant and any amount the
defendant has been ordered to pay in restitution.
(4) When the court determines that the defendant's ability to pay
is different from the determination of the probation officer, the
court shall state on the record the reason for its order.
(c) The court may hold additional hearings during the probationary
or conditional sentence period to review the defendant's financial
ability to pay the amount, and in the manner, as set by the probation
officer, or his or her authorized representative, or as set by the
court pursuant to this section.
(d) If practicable, the court shall order or the probation officer
shall set payments pursuant to subdivisions (a) and (b) to be made
on a monthly basis. Execution may be issued on the order issued
pursuant to this section in the same manner as a judgment in a civil
action. The order to pay all or part of the costs shall not be
enforced by contempt.
(e) The term "ability to pay" means the overall capability of the
defendant to reimburse the costs, or a portion of the costs, of
conducting the presentence investigation, preparing the preplea or
presentence report, processing a jurisdictional transfer pursuant to
Section 1203.9, processing requests for interstate compact
supervision pursuant to Sections 11175 to 11179, inclusive, and
probation supervision or conditional sentence, and shall include, but
shall not be limited to, the defendant's:
(1) Present financial position.
(2) Reasonably discernible future financial position. In no event
shall the court consider a period of more than one year from the date
of the hearing for purposes of determining reasonably discernible
future financial position.
(3) Likelihood that the defendant shall be able to obtain
employment within the one-year period from the date of the hearing.
(4) Any other factor or factors that may bear upon the defendant's
financial capability to reimburse the county for the costs.
(f) At any time during the pendency of the judgment rendered
according to the terms of this section, a defendant against whom a
judgment has been rendered may petition the probation officer for a
review of the defendant's financial ability to pay or the rendering
court to modify or vacate its previous judgment on the grounds of a
change of circumstances with regard to the defendant's ability to pay
the judgment. The probation officer and the court shall advise the
defendant of this right at the time of rendering of the terms of
probation or the judgment.
(g) All sums paid by a defendant pursuant to this section shall be
allocated for the operating expenses of the county probation
department.
(h) The board of supervisors in any county, by resolution, may
establish a fee for the processing of payments made in installments
to the probation department pursuant to this section, not to exceed
the administrative and clerical costs of the collection of those
installment payments as determined by the board of supervisors,
except that the fee shall not exceed fifty dollars ($50).
(i) This section shall be operative in a county upon the adoption
of an ordinance to that effect by the board of supervisors.
