Bill Text: CA SB266 | 2015-2016 | Regular Session | Chaptered
Bill Title: Probation and mandatory supervision: flash incarceration.
Spectrum: Bipartisan Bill
Status: (Passed) 2016-09-27 - Chaptered by Secretary of State. Chapter 706, Statutes of 2016. [SB266 Detail]
Download: California-2015-SB266-Chaptered.html
BILL NUMBER: SB 266 CHAPTERED
BILL TEXT
CHAPTER 706
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2016
APPROVED BY GOVERNOR SEPTEMBER 27, 2016
PASSED THE SENATE AUGUST 24, 2016
PASSED THE ASSEMBLY AUGUST 18, 2016
AMENDED IN ASSEMBLY JUNE 27, 2016
AMENDED IN ASSEMBLY JUNE 2, 2016
AMENDED IN SENATE APRIL 7, 2015
INTRODUCED BY Senator Block
(Coauthor: Senator Anderson)
FEBRUARY 19, 2015
An act to amend Section 1203 of, to amend, repeal, and add Section
4019 of, and to add and repeal Section 1203.35 of, the Penal Code,
relating to crimes.
LEGISLATIVE COUNSEL'S DIGEST
SB 266, Block. Probation and mandatory supervision: flash
incarceration.
Existing law authorizes probation and mandatory supervision, which
in each case is a period of time when a defendant is released from
incarceration and is subject to specified conditions and supervision
by county probation authorities.
This bill would, until January 1, 2021, allow a court to authorize
the use of flash incarceration, as defined, to detain the offender
in county jail for not more than 10 days for a violation of his or
her conditions of probation or mandatory supervision, as specified.
These provisions would not apply to persons convicted of certain drug
possession offenses. The bill would, until January 1, 2021, allow a
person to receive credits earned for a period of flash incarceration
pursuant to these provisions if his or her probation or mandatory
supervision is revoked.
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.
(l) For any person granted probation prior to January 1, 2021, at
the time the court imposes probation, the court may take a waiver
from the defendant permitting flash incarceration by the probation
officer, pursuant to Section 1203.35.
SEC. 2. Section 1203.35 is added to the Penal Code, to read:
1203.35. (a) (1) In any case where the court grants probation or
imposes a sentence that includes mandatory supervision, the county
probation department is authorized to use flash incarceration for any
violation of the conditions of probation or mandatory supervision
if, at the time of granting probation or ordering mandatory
supervision, the court obtains from the defendant a waiver to a court
hearing prior to the imposition of a period of flash incarceration.
Probation shall not be denied for refusal to sign the waiver.
(2) Each county probation department shall develop a response
matrix that establishes protocols for the imposition of graduated
sanctions for violations of the conditions of probation to determine
appropriate interventions to include the use of flash incarceration.
(3) A supervisor shall approve the term of flash incarceration
prior to the imposition of flash incarceration.
(4) Upon a decision to impose a period of flash incarceration, the
probation department shall notify the court, public defender,
district attorney, and sheriff of each imposition of flash
incarceration.
(5) If the person on probation or mandatory supervision does not
agree to accept a recommended period of flash incarceration, upon a
determination that there has been a violation, the probation officer
is authorized to address the alleged violation by filing a
declaration or revocation request with the court.
(b) For purposes of this section, "flash incarceration" is a
period of detention in a county jail due to a violation of an
offender's conditions of probation or mandatory supervision. The
length of the detention period may range between one and 10
consecutive days. Shorter, but if necessary more frequent, periods of
detention for violations of an offender's conditions of probation or
mandatory supervision shall appropriately punish an offender while
preventing the disruption in a work or home establishment that
typically arises from longer periods of detention. In cases where
there are multiple violations in a single incident, only one flash
incarceration booking is authorized and may range between one and 10
consecutive days.
(c) This section shall not apply to any defendant sentenced
pursuant to Section 1210.1.
(d) This section shall remain in effect only until January 1,
2021, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2021, deletes or extends
that date.
SEC. 3. Section 4019 of the Penal Code is amended to read:
4019. (a) The provisions of this section shall apply in all of
the following cases:
(1) When a prisoner is confined in or committed to a county jail,
industrial farm, or road camp or any city jail, industrial farm, or
road camp, including all days of custody from the date of arrest to
the date on which the serving of the sentence commences, under a
judgment of imprisonment or of a fine and imprisonment until the fine
is paid in a criminal action or proceeding.
(2) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial
farm, or road camp as a condition of probation after suspension of
imposition of a sentence or suspension of execution of sentence in a
criminal action or proceeding.
(3) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial
farm, or road camp for a definite period of time for contempt
pursuant to a proceeding other than a criminal action or proceeding.
(4) When a prisoner is confined in a county jail, industrial farm,
or road camp or a city jail, industrial farm, or road camp following
arrest and prior to the imposition of sentence for a felony
conviction.
(5) When a prisoner is confined in a county jail, industrial farm,
or road camp or a city jail, industrial farm, or road camp as part
of custodial sanction imposed following a violation of postrelease
community supervision or parole.
(6) When a prisoner is confined in a county jail, industrial farm,
or road camp or a city jail, industrial farm, or road camp as a
result of a sentence imposed pursuant to subdivision (h) of Section
1170.
(7) When a prisoner participates in a program pursuant to Section
1203.016 or Section 4024.2. Except for prisoners who have already
been deemed eligible to receive credits for participation in a
program pursuant to Section 1203.016 prior to January 1, 2015, this
paragraph shall apply prospectively.
(b) Subject to the provisions of subdivision (d), for each
four-day period in which a prisoner is confined in or committed to a
facility as specified in this section, one day shall be deducted from
his or her period of confinement unless it appears by the record
that the prisoner has refused to satisfactorily perform labor as
assigned by the sheriff, chief of police, or superintendent of an
industrial farm or road camp.
(c) For each four-day period in which a prisoner is confined in or
committed to a facility as specified in this section, one day shall
be deducted from his or her period of confinement unless it appears
by the record that the prisoner has not satisfactorily complied with
the reasonable rules and regulations established by the sheriff,
chief of police, or superintendent of an industrial farm or road
camp.
(d) This section does not require the sheriff, chief of police, or
superintendent of an industrial farm or road camp to assign labor to
a prisoner if it appears from the record that the prisoner has
refused to satisfactorily perform labor as assigned or that the
prisoner has not satisfactorily complied with the reasonable rules
and regulations of the sheriff, chief of police, or superintendent of
any industrial farm or road camp.
(e) A deduction shall not be made under this section unless the
person is committed for a period of four days or longer.
(f) It is the intent of the Legislature that if all days are
earned under this section, a term of four days will be deemed to have
been served for every two days spent in actual custody.
(g) The changes in this section as enacted by the act that added
this subdivision shall apply to prisoners who are confined to a
county jail, city jail, industrial farm, or road camp for a crime
committed on or after the effective date of that act.
(h) The changes to this section enacted by the act that added this
subdivision shall apply prospectively and shall apply to prisoners
who are confined to a county jail, city jail, industrial farm, or
road camp for a crime committed on or after October 1, 2011. Any days
earned by a prisoner prior to October 1, 2011, shall be calculated
at the rate required by the prior law.
(i) (1) This section shall not apply, and no credits may be
earned, for periods of flash incarceration imposed pursuant to
Section 3000.08 or 3454.
(2) Credits earned pursuant to this section for a period of flash
incarceration pursuant to Section 1203.35 shall, if the person's
probation or mandatory supervision is revoked, count towards the term
to be served.
(j) This section shall remain in effect only until January 1,
2021, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2021, deletes or extends
that date.
SEC. 4. Section 4019 is added to the Penal Code, to read:
4019. (a) The provisions of this section shall apply in all of
the following cases:
(1) When a prisoner is confined in or committed to a county jail,
industrial farm, or road camp or any city jail, industrial farm, or
road camp, including all days of custody from the date of arrest to
the date on which the serving of the sentence commences, under a
judgment of imprisonment or of a fine and imprisonment until the fine
is paid in a criminal action or proceeding.
(2) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial
farm, or road camp as a condition of probation after suspension of
imposition of a sentence or suspension of execution of sentence in a
criminal action or proceeding.
(3) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial
farm, or road camp for a definite period of time for contempt
pursuant to a proceeding other than a criminal action or proceeding.
(4) When a prisoner is confined in a county jail, industrial farm,
or road camp or a city jail, industrial farm, or road camp following
arrest and prior to the imposition of sentence for a felony
conviction.
(5) When a prisoner is confined in a county jail, industrial farm,
or road camp or a city jail, industrial farm, or road camp as part
of custodial sanction imposed following a violation of postrelease
community supervision or parole.
(6) When a prisoner is confined in a county jail, industrial farm,
or road camp or a city jail, industrial farm, or road camp as a
result of a sentence imposed pursuant to subdivision (h) of Section
1170.
(7) When a prisoner participates in a program pursuant to Section
1203.016 or Section 4024.2. Except for prisoners who have already
been deemed eligible to receive credits for participation in a
program pursuant to Section 1203.016 prior to January 1, 2015, this
paragraph shall apply prospectively.
(b) Subject to the provisions of subdivision (d), for each
four-day period in which a prisoner is confined in or committed to a
facility as specified in this section, one day shall be deducted from
his or her period of confinement unless it appears by the record
that the prisoner has refused to satisfactorily perform labor as
assigned by the sheriff, chief of police, or superintendent of an
industrial farm or road camp.
(c) For each four-day period in which a prisoner is confined in or
committed to a facility as specified in this section, one day shall
be deducted from his or her period of confinement unless it appears
by the record that the prisoner has not satisfactorily complied with
the reasonable rules and regulations established by the sheriff,
chief of police, or superintendent of an industrial farm or road
camp.
(d) This section does not require the sheriff, chief of police, or
superintendent of an industrial farm or road camp to assign labor to
a prisoner if it appears from the record that the prisoner has
refused to satisfactorily perform labor as assigned or that the
prisoner has not satisfactorily complied with the reasonable rules
and regulations of the sheriff, chief of police, or superintendent of
any industrial farm or road camp.
(e) A deduction shall not be made under this section unless the
person is committed for a period of four days or longer.
(f) It is the intent of the Legislature that if all days are
earned under this section, a term of four days will be deemed to have
been served for every two days spent in actual custody.
(g) The changes in this section as enacted by the act that added
this subdivision shall apply to prisoners who are confined to a
county jail, city jail, industrial farm, or road camp for a crime
committed on or after the effective date of that act.
(h) The changes to this section enacted by the act that added this
subdivision shall apply prospectively and shall apply to prisoners
who are confined to a county jail, city jail, industrial farm, or
road camp for a crime committed on or after October 1, 2011. Any days
earned by a prisoner prior to October 1, 2011, shall be calculated
at the rate required by the prior law.
(i) This section shall not apply, and no credits may be earned,
for periods of flash incarceration imposed pursuant to Section
3000.08 or 3454.
(j) This section shall become operative on January 1, 2021.
