SB 679: Mandatory supervision.
- Session Year: 2015-2016
- House: Senate
- Latest Version Date: 2015-02-27
Existing law authorizes a court, when sentencing a person to county jail for a felony, to commit the person to county jail for either the full term in custody, as specified, or to suspend the execution of a concluding portion of the term selected at the courts discretion. Under existing law, this period of suspended execution is supervised by the county probation officer and is known as mandatory supervision.
This bill would make a defendant, and his or her residence and possessions, subject to search and seizure by an agent of the supervising county agency or a peace officer at any time of the day or night, with or without a warrant and with or without cause.
(a)(1)The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.
(2)Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program.
(3)In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life, except as provided in paragraph (2) of subdivision (d). In any case in which the amount of preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the secretary. The court shall advise the defendant that he or she shall serve a period of parole and order the defendant to report to the parole office closest to the defendants last legal residence, unless the in-custody credits equal the total sentence, including both confinement time and the period of parole. The sentence shall be deemed a separate prior prison term under Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation. In determining the appropriate term, the court may consider the record in the case, the probation officers report, other reports, including reports received pursuant to Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.
(c)The court shall state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000.
(d)(1)When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
(2)(A)(i)When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and resentencing.
(ii)Notwithstanding clause (i), this paragraph shall not apply to defendants sentenced to life without parole for an offense where the defendant tortured, as described in Section 206, his or her victim or the victim was a public safety official, including any law enforcement personnel mentioned in Chapter 4.5 (commencing with Section 830) of Title 3, or any firefighter as described in Section 245.1, as well as any other officer in any segment of law enforcement who is employed by the federal government, the state, or any of its political subdivisions.
(B)The defendant shall file the original petition with the sentencing court. A copy of the petition shall be served on the agency that prosecuted the case. The petition shall include the defendants statement that he or she was under 18 years of age at the time of the crime and was sentenced to life in prison without the possibility of parole, the defendants statement describing his or her remorse and work towards rehabilitation, and the defendants statement that one of the following is true:
(i)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(ii)The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall.
(iii)The defendant committed the offense with at least one adult codefendant.
(iv)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his or her classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(C)If any of the information required in subparagraph (B) is missing from the petition, or if proof of service on the prosecuting agency is not provided, the court shall return the petition to the defendant and advise the defendant that the matter cannot be considered without the missing information.
(D)A reply to the petition, if any, shall be filed with the court within 60 days of the date on which the prosecuting agency was served with the petition, unless a continuance is granted for good cause.
(E)If the court finds by a preponderance of the evidence that the statements in the petition are true, the court shall hold a hearing to consider whether to recall the sentence and commitment previously ordered and to resentence the defendant in the same manner as if the defendant had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence. Victims, or victim family members if the victim is deceased, shall retain the rights to participate in the hearing.
(F)The factors that the court may consider when determining whether to recall and resentence include, but are not limited to, the following:
(i)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(ii)The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall.
(iii)The defendant committed the offense with at least one adult codefendant.
(iv)Prior to the offense for which the sentence is being considered for recall, the defendant had insufficient adult support or supervision and had suffered from psychological or physical trauma, or significant stress.
(v)The defendant suffers from cognitive limitations due to mental illness, developmental disabilities, or other factors that did not constitute a defense, but influenced the defendants involvement in the offense.
(vi)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his or her classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(vii)The defendant has maintained family ties or connections with others through letter writing, calls, or visits, or has eliminated contact with individuals outside of prison who are currently involved with crime.
(viii)The defendant has had no disciplinary actions for violent activities in the last five years in which the defendant was determined to be the aggressor.
(G)The court shall have the discretion to recall the sentence and commitment previously ordered and to resentence the defendant in the same manner as if the defendant had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence. The discretion of the court shall be exercised in consideration of the criteria in subparagraph (B). Victims, or victim family members if the victim is deceased, shall be notified of the resentencing hearing and shall retain their rights to participate in the hearing.
(H)If the sentence is not recalled, the defendant may submit another petition for recall and resentencing to the sentencing court when the defendant has been committed to the custody of the department for at least 20 years. If recall and resentencing is not granted under that petition, the defendant may file another petition after having served 24 years. The final petition may be submitted, and the response to that petition shall be determined, during the 25th year of the defendants sentence.
(I)In addition to the criteria in subparagraph (F), the court may consider any other criteria that the court deems relevant to its decision, so long as the court identifies them on the record, provides a statement of reasons for adopting them, and states why the defendant does or does not satisfy the criteria.
(J)This subdivision shall have retroactive application.
(e)(1)Notwithstanding any other law and consistent with paragraph (1) of subdivision (a), if the secretary or the Board of Parole Hearings or both determine that a prisoner satisfies the criteria set forth in paragraph (2), the secretary or the board may recommend to the court that the prisoners sentence be recalled.
(2)The court shall have the discretion to resentence or recall if the court finds that the facts described in subparagraphs (A) and (B) or subparagraphs (B) and (C) exist:
(A)The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.
(B)The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.
(C)The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this subdivision before making a recommendation for resentence or recall to the court. This subdivision does not apply to a prisoner sentenced to death or a term of life without the possibility of parole.
(3)Within 10 days of receipt of a positive recommendation by the secretary or the board, the court shall hold a hearing to consider whether the prisoners sentence should be recalled.
(4)Any physician employed by the department who determines that a prisoner has six months or less to live shall notify the chief medical officer of the prognosis. If the chief medical officer concurs with the prognosis, he or she shall notify the warden. Within 48 hours of receiving notification, the warden or the wardens representative shall notify the prisoner of the recall and resentencing procedures, and shall arrange for the prisoner to designate a family member or other outside agent to be notified as to the prisoners medical condition and prognosis, and as to the recall and resentencing procedures. If the inmate is deemed mentally unfit, the warden or the wardens representative shall contact the inmates emergency contact and provide the information described in paragraph (2).
(5)The warden or the wardens representative shall provide the prisoner and his or her family member, agent, or emergency contact, as described in paragraph (4), updated information throughout the recall and resentencing process with regard to the prisoners medical condition and the status of the prisoners recall and resentencing proceedings.
(6)Notwithstanding any other provisions of this section, the prisoner or his or her family member or designee may independently request consideration for recall and resentencing by contacting the chief medical officer at the prison or the secretary. Upon receipt of the request, the chief medical officer and the warden or the wardens representative shall follow the procedures described in paragraph (4). If the secretary determines that the prisoner satisfies the criteria set forth in paragraph (2), the secretary or board may recommend to the court that the prisoners sentence be recalled. The secretary shall submit a recommendation for release within 30 days in the case of inmates sentenced to determinate terms and, in the case of inmates sentenced to indeterminate terms, the secretary shall make a recommendation to the Board of Parole Hearings with respect to the inmates who have applied under this section. The board shall consider this information and make an independent judgment pursuant to paragraph (2) and make findings related thereto before rejecting the request or making a recommendation to the court. This action shall be taken at the next lawfully noticed board meeting.
(7)Any recommendation for recall submitted to the court by the secretary or the Board of Parole Hearings shall include one or more medical evaluations, a postrelease plan, and findings pursuant to paragraph (2).
(8)If possible, the matter shall be heard before the same judge of the court who sentenced the prisoner.
(9)If the court grants the recall and resentencing application, the prisoner shall be released by the department within 48 hours of receipt of the courts order, unless a longer time period is agreed to by the inmate. At the time of release, the warden or the wardens representative shall ensure that the prisoner has each of the following in his or her possession: a discharge medical summary, full medical records, state identification, parole medications, and all property belonging to the prisoner. After discharge, any additional records shall be sent to the prisoners forwarding address.
(10)The secretary shall issue a directive to medical and correctional staff employed by the department that details the guidelines and procedures for initiating a recall and resentencing procedure. The directive shall clearly state that any prisoner who is given a prognosis of six months or less to live is eligible for recall and resentencing consideration, and that recall and resentencing procedures shall be initiated upon that prognosis.
(f)Notwithstanding any other provision of this section, for purposes of paragraph (3) of subdivision (h), any allegation that a defendant is eligible for state prison due to a prior or current conviction, sentence enhancement, or because he or she is required to register as a sex offender shall not be subject to dismissal pursuant to Section 1385.
(g)A sentence to state prison for a determinate term for which only one term is specified, is a sentence to state prison under this section.
(h)(1)Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.
(2)Except as provided in paragraph (3), a felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the term described in the underlying offense.
(3)Notwithstanding paragraphs (1) and (2), where the defendant (A) has a prior or current felony conviction for a serious felony described in subdivision (c) of Section 1192.7 or a prior or current conviction for a violent felony described in subdivision (c) of Section 667.5, (B) has a prior felony conviction in another jurisdiction for an offense that has all the elements of a serious felony described in subdivision (c) of Section 1192.7 or a violent felony described in subdivision (c) of Section 667.5, (C) is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime and as part of the sentence an enhancement pursuant to Section 186.11 is imposed, an executed sentence for a felony punishable pursuant to this subdivision shall be served in state prison.
(4)Nothing in this subdivision shall be construed to prevent other dispositions authorized by law, including pretrial diversion, deferred entry of judgment, or an order granting probation pursuant to Section 1203.1.
(5)(A)Unless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion of the term for a period selected at the courts discretion.
(B)The portion of a defendants sentenced term that is suspended pursuant to this paragraph shall be known as mandatory supervision, and, unless otherwise ordered by the court, shall commence upon release from physical custody or an alternative custody program, whichever is later. During the period of mandatory supervision, the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, 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. Any proceeding to revoke or modify mandatory supervision under this subparagraph shall be conducted pursuant to either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3. During the period when the defendant is under such that supervision, unless in actual custody related to the sentence imposed by the court, the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court. Any time period which is suspended because a person has absconded shall not be credited toward the period of supervision. During the period of mandatory supervision, the defendant, and his or her residence and possessions, are subject to search and seizure at any time of the day or night, with or without a warrant and with or without cause, by an agent of the supervising county agency or by a peace officer.
(6)The sentencing changes made by the act that added this subdivision shall be applied prospectively to any person sentenced on or after October 1, 2011.
(7)The sentencing changes made to paragraph (5) by the act that added this paragraph shall become effective and operative on January 1, 2015, and shall be applied prospectively to any person sentenced on or after January 1, 2015.
(i)This section shall remain in effect only until January 1, 2017, and as of that date is repealed, unless a later enacted statute, that is enacted before that date, deletes or extends that date.
SEC. 2.Section 1170 of the Penal Code, as amended by Section 2 of Chapter 612 of the Statutes of 2014, is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.
(2)Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program.
(3)In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life, except as provided in paragraph (2) of subdivision (d). In any case in which the amount of preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the secretary. The court shall advise the defendant that he or she shall serve a period of parole and order the defendant to report to the parole office closest to the defendants last legal residence, unless the in-custody credits equal the total sentence, including both confinement time and the period of parole. The sentence shall be deemed a separate prior prison term under Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation to dispute facts in the record or the probation officers report, or to present additional facts. In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officers report, other reports, including reports received pursuant to Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall set forth on the record the facts and reasons for imposing the upper or lower term. The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.
(c)The court shall state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000.
(d)(1)When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
(2)(A)(i)When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and resentencing.
(ii)Notwithstanding clause (i), this paragraph shall not apply to defendants sentenced to life without parole for an offense where the defendant tortured, as described in Section 206, his or her victim or the victim was a public safety official, including any law enforcement personnel mentioned in Chapter 4.5 (commencing with Section 830) of Title 3, or any firefighter as described in Section 245.1, as well as any other officer in any segment of law enforcement who is employed by the federal government, the state, or any of its political subdivisions.
(B)The defendant shall file the original petition with the sentencing court. A copy of the petition shall be served on the agency that prosecuted the case. The petition shall include the defendants statement that he or she was under 18 years of age at the time of the crime and was sentenced to life in prison without the possibility of parole, the defendants statement describing his or her remorse and work towards rehabilitation, and the defendants statement that one of the following is true:
(i)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(ii)The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall.
(iii)The defendant committed the offense with at least one adult codefendant.
(iv)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his or her classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(C)If any of the information required in subparagraph (B) is missing from the petition, or if proof of service on the prosecuting agency is not provided, the court shall return the petition to the defendant and advise the defendant that the matter cannot be considered without the missing information.
(D)A reply to the petition, if any, shall be filed with the court within 60 days of the date on which the prosecuting agency was served with the petition, unless a continuance is granted for good cause.
(E)If the court finds by a preponderance of the evidence that the statements in the petition are true, the court shall hold a hearing to consider whether to recall the sentence and commitment previously ordered and to resentence the defendant in the same manner as if the defendant had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence. Victims, or victim family members if the victim is deceased, shall retain the rights to participate in the hearing.
(F)The factors that the court may consider when determining whether to recall and resentence include, but are not limited to, the following:
(i)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(ii)The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall.
(iii)The defendant committed the offense with at least one adult codefendant.
(iv)Prior to the offense for which the sentence is being considered for recall, the defendant had insufficient adult support or supervision and had suffered from psychological or physical trauma, or significant stress.
(v)The defendant suffers from cognitive limitations due to mental illness, developmental disabilities, or other factors that did not constitute a defense, but influenced the defendants involvement in the offense.
(vi)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his or her classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(vii)The defendant has maintained family ties or connections with others through letter writing, calls, or visits, or has eliminated contact with individuals outside of prison who are currently involved with crime.
(viii)The defendant has had no disciplinary actions for violent activities in the last five years in which the defendant was determined to be the aggressor.
(G)The court shall have the discretion to recall the sentence and commitment previously ordered and to resentence the defendant in the same manner as if the defendant had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence. The discretion of the court shall be exercised in consideration of the criteria in subparagraph (B). Victims, or victim family members if the victim is deceased, shall be notified of the resentencing hearing and shall retain their rights to participate in the hearing.
(H)If the sentence is not recalled, the defendant may submit another petition for recall and resentencing to the sentencing court when the defendant has been committed to the custody of the department for at least 20 years. If recall and resentencing is not granted under that petition, the defendant may file another petition after having served 24 years. The final petition may be submitted, and the response to that petition shall be determined, during the 25th year of the defendants sentence.
(I)In addition to the criteria in subparagraph (F), the court may consider any other criteria that the court deems relevant to its decision, so long as the court identifies them on the record, provides a statement of reasons for adopting them, and states why the defendant does or does not satisfy the criteria.
(J)This subdivision shall have retroactive application.
(e)(1)Notwithstanding any other law and consistent with paragraph (1) of subdivision (a), if the secretary or the Board of Parole Hearings or both determine that a prisoner satisfies the criteria set forth in paragraph (2), the secretary or the board may recommend to the court that the prisoners sentence be recalled.
(2)The court shall have the discretion to resentence or recall if the court finds that the facts described in subparagraphs (A) and (B) or subparagraphs (B) and (C) exist:
(A)The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.
(B)The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.
(C)The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this subdivision before making a recommendation for resentence or recall to the court. This subdivision does not apply to a prisoner sentenced to death or a term of life without the possibility of parole.
(3)Within 10 days of receipt of a positive recommendation by the secretary or the board, the court shall hold a hearing to consider whether the prisoners sentence should be recalled.
(4)Any physician employed by the department who determines that a prisoner has six months or less to live shall notify the chief medical officer of the prognosis. If the chief medical officer concurs with the prognosis, he or she shall notify the warden. Within 48 hours of receiving notification, the warden or the wardens representative shall notify the prisoner of the recall and resentencing procedures, and shall arrange for the prisoner to designate a family member or other outside agent to be notified as to the prisoners medical condition and prognosis, and as to the recall and resentencing procedures. If the inmate is deemed mentally unfit, the warden or the wardens representative shall contact the inmates emergency contact and provide the information described in paragraph (2).
(5)The warden or the wardens representative shall provide the prisoner and his or her family member, agent, or emergency contact, as described in paragraph (4), updated information throughout the recall and resentencing process with regard to the prisoners medical condition and the status of the prisoners recall and resentencing proceedings.
(6)Notwithstanding any other provisions of this section, the prisoner or his or her family member or designee may independently request consideration for recall and resentencing by contacting the chief medical officer at the prison or the secretary. Upon receipt of the request, the chief medical officer and the warden or the wardens representative shall follow the procedures described in paragraph (4). If the secretary determines that the prisoner satisfies the criteria set forth in paragraph (2), the secretary or board may recommend to the court that the prisoners sentence be recalled. The secretary shall submit a recommendation for release within 30 days in the case of inmates sentenced to determinate terms and, in the case of inmates sentenced to indeterminate terms, the secretary shall make a recommendation to the Board of Parole Hearings with respect to the inmates who have applied under this section. The board shall consider this information and make an independent judgment pursuant to paragraph (2) and make findings related thereto before rejecting the request or making a recommendation to the court. This action shall be taken at the next lawfully noticed board meeting.
(7)Any recommendation for recall submitted to the court by the secretary or the Board of Parole Hearings shall include one or more medical evaluations, a postrelease plan, and findings pursuant to paragraph (2).
(8)If possible, the matter shall be heard before the same judge of the court who sentenced the prisoner.
(9)If the court grants the recall and resentencing application, the prisoner shall be released by the department within 48 hours of receipt of the courts order, unless a longer time period is agreed to by the inmate. At the time of release, the warden or the wardens representative shall ensure that the prisoner has each of the following in his or her possession: a discharge medical summary, full medical records, state identification, parole medications, and all property belonging to the prisoner. After discharge, any additional records shall be sent to the prisoners forwarding address.
(10)The secretary shall issue a directive to medical and correctional staff employed by the department that details the guidelines and procedures for initiating a recall and resentencing procedure. The directive shall clearly state that any prisoner who is given a prognosis of six months or less to live is eligible for recall and resentencing consideration, and that recall and resentencing procedures shall be initiated upon that prognosis.
(f)Notwithstanding any other provision of this section, for purposes of paragraph (3) of subdivision (h), any allegation that a defendant is eligible for state prison due to a prior or current conviction, sentence enhancement, or because he or she is required to register as a sex offender shall not be subject to dismissal pursuant to Section 1385.
(g)A sentence to state prison for a determinate term for which only one term is specified, is a sentence to state prison under this section.
(h)(1)Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.
(2)Except as provided in paragraph (3), a felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the term described in the underlying offense.
(3)Notwithstanding paragraphs (1) and (2), where the defendant (A) has a prior or current felony conviction for a serious felony described in subdivision (c) of Section 1192.7 or a prior or current conviction for a violent felony described in subdivision (c) of Section 667.5, (B) has a prior felony conviction in another jurisdiction for an offense that has all the elements of a serious felony described in subdivision (c) of Section 1192.7 or a violent felony described in subdivision (c) of Section 667.5, (C) is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime and as part of the sentence an enhancement pursuant to Section 186.11 is imposed, an executed sentence for a felony punishable pursuant to this subdivision shall be served in state prison.
(4)Nothing in this subdivision shall be construed to prevent other dispositions authorized by law, including pretrial diversion, deferred entry of judgment, or an order granting probation pursuant to Section 1203.1.
(5)(A)Unless the court finds, in the interest of justice, that it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion of the term for a period selected at the courts discretion.
(B)The portion of a defendants sentenced term that is suspended pursuant to this paragraph shall be known as mandatory supervision, and, unless otherwise ordered by the court, shall commence upon release from physical custody or an alternative custody program, whichever is later. During the period of mandatory supervision, the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, 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. Any proceeding to revoke or modify mandatory supervision under this subparagraph shall be conducted pursuant to either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3. During the period when the defendant is under such that supervision, unless in actual custody related to the sentence imposed by the court, the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court. Any time period which is suspended because a person has absconded shall not be credited toward the period of supervision. During the period of mandatory supervision, the defendant, and his or her residence and possessions, are subject to search and seizure at any time of the day or night, with or without a warrant and with or without cause, by an agent of the supervising county agency or by a peace officer.
(6)The sentencing changes made by the act that added this subdivision shall be applied prospectively to any person sentenced on or after October 1, 2011.
(7)The sentencing changes made to paragraph (5) by the act that added this paragraph shall become effective and operative on January 1, 2015, and shall be applied prospectively to any person sentenced on or after January 1, 2015.
(i)This section shall become operative on January 1, 2017.
|
Date
|
Status
|
|---|---|
| Feb 27, 2015 | Introduced. To Com. on RLS. for assignment. To print. |
| Mar 2, 2015 | From printer. May be acted upon on or after April 1. |
| Mar 2, 2015 | Read first time. |
| Mar 19, 2015 | Referred to Com. on PUB. S. |
| Mar 24, 2015 | Set for hearing April 21. |
| Apr 29, 2015 | April 21 set for first hearing. Failed passage in committee. (Ayes 2. Noes 5. Page 730.) Reconsideration granted. |
| Feb 1, 2016 | Returned to Secretary of Senate pursuant to Joint Rule 56. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Apr 21, 2015 | [First] hearing set for [04-29-2015]: Failed passage in Committee. Reconsideration granted | Senate Standing Committee on Public Safety |
Passed |
|
| Apr 21, 2015 | Do pass as amended | Senate Standing Committee on Public Safety |
Failed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| San Diego County District Attorney's Office | * Support | Apr 22, 2015 |
SB 679 (Bates ) Page 8 of 8
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 679 Hearing Date: April 21, 2015
Author: |
Bates |
||
Version: |
February 27, 2015 |
||
Urgency: |
No |
Fiscal: |
No |
Consultant: |
AA |
||
Subject: Mandatory Supervision: Warrantless Searches and Seizures
HISTORY
Source: San Diego District Attorney
Prior Legislation: None
Support: California District Attorneys Association; County of San Diego; Crime Victims United of California; California State Sheriffs’ Association; California Probation, Parole and Correctional Association
Opposition: American Civil Liberties Union of California; California Attorneys for Criminal Justice
PURPOSE
The purpose of this bill is to statutorily require that during the period of mandatory supervision – which is the community supervision portion of a “split sentence” for persons who have been convicted of a jail felony -- the defendant, and his or her residence and possessions, would be subject to search and seizure at any time of the day or night, with or without a warrant and with or without cause, by an agent of the supervising county agency or by a peace officer.
Current law generally provides certain persons who are subject to community supervision as a result of a criminal conviction also are subject to warrantless search and seizure by a peace officer at any time of the night or day, and with or without cause. The following situations expressly authorize warrantless searches and seizures in statute:
The alternative custody program for female prison inmates (Penal Code § 1170.05);
Parolees (Penal Code § 3067); and
Persons coming out of prison who are subject to postrelease community supervision. (Id.)
Current law authorizes courts to impose what is known as a “split sentence” on persons convicted of a so-called “jail felony,” for which any custodial time will be served locally (not in state prison), and where the court imposes a sentence comprised of both time in custody and time subject to what is termed “mandatory supervision” in the community by probation. (Penal Code § 1170(h).)
Current law requires that, unless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court shall impose a period of mandatory supervision for a person sentenced for a jail felony, as specified, (Penal Code § 1170(h)(5)(A).
Current law provides that during “the period of mandatory supervision, the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, 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 such that supervision, unless in actual custody related to the sentence imposed by the court, the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court. Any time period which is suspended because a person has absconded shall not be credited toward the period of supervision.” (Penal Code § 1170(h)(5)(B).)
Current Rules of Court enumerate several factors courts may consider in exercising discretion to select the appropriate period and conditions of mandatory supervision, including “Public safety, including protection of any victims and witnesses,” and the “defendant’s specific needs and risk factors identified by a validated risk/needs assessment, if available; . . . “(Cal. Rules of Ct., 4.415(c).)
This bill would provide that “(d)uring the period of mandatory supervision, the defendant, and his or her residence and possessions, are subject to search and seizure at any time of the day or night, with or without a warrant and with or without cause, by an agent of the supervising county agency or by a peace officer.”
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.
On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
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.
In February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.”( Defendants’ February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison population, the state now must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed to reducing the prison population;
Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or legislative drafting error; and
Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.
COMMENTS
Stated Need for This Bill
The author states:
All offenders released on PRCS are subject to search and seizure waivers. Parolees are also subject to the same waiver. However, the same is not true for offenders released onto Mandatory Supervision (MS). These are offenders who are sentenced pursuant to Penal Code section 1170(h) to local prison and serve part of their prison term in the community and receiving credit off of that prison term while in the community, unlike a parolee or PRCS offender who are released onto supervision after completing their prison term.
A Penal Code 1170(h) sentence allows judges to impose a straight sentence of jail incarceration, or a split sentence with a period of incarceration followed by a mandatory term of supervision for offenders convicted of a wide variety of criminal offenses, including auto theft, second degree burglary and selling controlled substances. Split sentences, followed by a term of MS, give probation officers the opportunity to use evidence-based practices to work with offenders, connect them to services and treatment, and reduce their likelihood of recidivism.
The level of scrutiny for an offender still serving their prison term should be higher and more restrictive. Moreover, if a defendant on MS moves from county to county, there is no way for the law enforcement in the new county to consistently know whether the offender is subject to search and seizure waiver. Additionally, on January 1, 2015, the presumptive splits went into effect and therefore there will be a greater number of defendants serving MS sentences in the community. Thus, the need is greater to ensure there is consistency throughout the state.
This bill ensures continuity of the law for all offenders released into the community to serve out the rest of their sentences. SB 679 would make a defendant subject to MS subject to search and seizure by a peace officer at any time of the day or night, with or without cause and with or without a warrant.
SB 679 would also require the defendant, and his or her residence and possessions, are subject to search and seizure at any time of the day or night, with or without a warrant and with or without cause, by an agent of the supervising county agency or by a peace officer.
What This Bill Would Do
This bill would require statutorily that during the period of “mandatory supervision,” in every case the defendant, and his or her residence and possessions, would be subject to search and seizure at any time of the day or night, with or without a warrant and with or without cause, by an agent of the supervising county agency or by a peace officer. As discussed in more detail below, mandatory supervision is a feature of what is commonly known as a “split sentence,” created in 2011 by the public safety realignment as a sentencing variation which structures a felony sentence into two elements, incarceration and community supervision. This bill would remove the discretion of a sentencing judge to impose this as a term and condition of mandatory supervision; instead, it would be required in every case as a statutory requirement.
As discussed in detail below, there have been a number of court cases in varying contexts addressing the nature of mandatory supervision. As members consider these issues, they may wish to consider whether a search requirement for these convicted felons should be imposed according to statute, or whether this requirement is adequately addressed by the sentencing court as part of its sentencing discretion.
SHOULD A WARRANTLESS SEARCH REQUIREMENT ON PERSONS SUBJECT TO MANDATORY SUPERVISION BE IMPOSED AS A MATTER OF STATUTORY LAW?
SHOULD THIS REQUIREMENT CONTINUE TO BE LEFT TO THE DISCRETION OF THE SENTENCING COURT?
Case Law – Mandatory Supervision: More Like Probation, or Parole?1
“Mandatory Supervision” was created as part of the public safety realignment of 2011, as initially enacted by AB 109 of that year. It is the community supervision element of a sentence for a jail felony conviction in a so-called “split sentence,” where the court imposes a sentence structured with both custodial and community supervision features. The period of supervision is mandatory. (Penal Code § 1170(h)(5)(B).) Offenders are supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, for the remaining unserved portion of the sentence imposed by the court. (Id.)
Mandatory supervision is similar to probation in that in both cases supervision is performed by probation. However, unlike probation, mandatory supervision is not agreed to by a defendant in lieu of a custody sentence; it is expressly mandatory. As explained in an appellate decision last year:
As an initial matter, we note that although supervised release is to be monitored by county probation officers “in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation”. . . “this does not mean placing a defendant on mandatory supervision is the equivalent of granting probation or giving a conditional sentence. Indeed, section 1170, subdivision (h), comes into play only after probation has been denied.” . . . Thus, the Legislature has decided a county jail commitment followed by mandatory supervision imposed under section 1170, subdivision (h), is akin to a state prison commitment; it is not a grant of probation or a conditional sentence.” Therefore , . . . “mandatory supervision is more similar to parole than probation.” (People v. Martinez (2014) 226 Cal. App. 4th 759, 762-763 (citations omitted) (emphasis added).)
The Martinez court concluded that its analysis of the validity of the terms of supervised release under mandatory supervision would be guided by standards analogous to the conditions of parole. The court explained:
“In California, parolee status carries distinct disadvantages when compared to the situation of the law-abiding citizen. Even when released from actual confinement, a parolee is still constructively a prisoner subject to correctional authorities. . . . The United States Supreme Court has characterized parole as ‘an established variation on imprisonment’ and a parolee as possessing ‘not … the absolute liberty to which every citizen is entitled, but only … the conditional liberty properly dependent on observance of special parole restrictions.’ . . . Our own Supreme Court holds a like opinion: ‘Although a parolee is no longer confined in prison his custody status is one which requires … restrictions which may not be imposed on members of the public generally.’
The fundamental goals of parole
are “‘to help individuals reintegrate into society as
constructive individuals’ . . . ‘“to end criminal careers
through the rehabilitation of those convicted of crime”’ . . .
and to [help them] become self-supporting.” In furtherance of
these goals, “[t]he state may impose any condition reasonably
related to parole supervision.” . . . These conditions “must be
reasonably related to the compelling state interest of fostering a
law-abiding lifestyle in the parolee.”
The
validity and reasonableness of parole conditions is analyzed under
the same standard as that developed for probation conditions. “A
condition of [parole] will not be held invalid unless it ‘(1) has
no relationship to the crime of which the offender was convicted, (2)
relates to conduct which is not in itself criminal, and (3) requires
or forbids conduct which is not reasonably related to future
criminality … .’ . . . Conversely, a condition of [parole] which
requires or forbids conduct which is not itself criminal is valid if
that conduct is reasonably related to the crime of which the
defendant was convicted or to future criminality.”
In general, the courts are given broad discretion in fashioning terms of supervised release, in order to foster the reformation and rehabilitation of the offender, while protecting public safety. . . . (People v. Martinez, supra at 763.)
Authority and Standards for Parole Searches
Following the Martinez court’s reasoning that mandatory supervision should be analyzed according to standards applicable to parole, California statutory law now requires that inmates eligible for parole be notified that they are subject to terms and conditions of parole upon release.2 (Penal Code § 3067.) The statute specifies the content of the notice. With respect to searches and seizures, the statute states the inmate must receive the following:
An advisement that he or she is subject to search or seizure by a probation or parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause.3 (Id., subd.(a) (3).)
This bill would appear to statutorily authorize a broader scope of search or seizure of persons on mandatory supervision:
During the period of mandatory supervision, the defendant, and his or her residence and possessions, are subject to search and seizure at any time of the day or night, with or without a warrant and with or without cause, by an agent of the supervising county agency or by a peace officer.
However, regulations currently applicable to parolees reach both a parolee’s residence and property under a parolee’s control:
Search. You and your residence and any property under your control may be searched without a warrant at any time by any agent of the Department of Corrections or any law enforcement officer. (15 CCR 2511 (4).)
Case law appears to uphold the warrantless searches of parolee residences if law enforcement officers have probable cause to believe that the parolee is a resident of the house to be searched. (See U.S. v. Grandberry, 730 F.3d 968 (9th Cir. 2013.) As drafted, it does not appear that the bill would abrogate this requirement.
The current parolee statute also includes the following, which is not included in this bill:
It is not the intent of the Legislature to authorize law enforcement officers to conduct searches for the sole purpose of harassment.” (Penal Code § 3067(d).)
The motive of officers in conducting suspicionless search of parolee's residence is relevant to determining whether a suspicionless search is arbitrary, capricious, or harassing. (Smith v. City of Oakland, 538 F. Supp. 2d 1217 (N.D. Cal. 2008).)
In addition, while courts have upheld “suspicionless” searches, such searches cannot be for the purpose of harassment. As explained by the Ninth Circuit:
(P)ivotal to the Court's permitting suspicionless searches of parolees was the safeguard that such searches may not be arbitrary, capricious, or harassing -- e.g., motivated by the "purpose of harassment." Accordingly, while the existence of objective probable cause or individualized reasonable suspicion may obviate inquiry into subjective motives . . ., where there is no such objective protection, parolees subject to suspicionless searches are entitled to at least protection against searches initiated for arbitrary, capricious, or harassing reasons under Samson. Smith v. City of Oakland, 538 F. Supp. 2d 1217 (9th Cir. 2008); (Aff’d., Smith v. City of Oakland, 2010 U.S. App. LEXIS 10132 (9th Cir. Cal., May 18, 2010) (some citations omitted) (emphasis added).)
Members may wish to consider whether this bill should be amended to fully mirror the current law applicable to parolees, by adding the following sentence to its provisions:
It is not the intent of the Legislature to authorize law enforcement officers to conduct searches that are arbitrary, capricious, or for the sole purpose of harassment.
SHOULD THIS AMENDMENT BE MADE?
Opposition
The American Civil Liberties Union of California, which opposes this bill, argues in part that this “bill unnecessarily removes from the trial courts the discretion to determine the appropriateness of a condition of supervised release.
Under realignment, a trial court that sentences an individual to county jail may “suspend execution of a concluding part” of that sentence and release the person for a period of “mandatory supervision.” . . . With mandatory supervision as with probation, the court retains jurisdiction over the case. . . . The trial court sets all the conditions of mandatory supervision and individuals are then “supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation.”. . .
“In general, the courts are given broad discretion in fashioning terms of supervised release, in order to foster the reformation and rehabilitation of the offender, while protecting public safety.” (People v. Martinez (2014) 226 Cal. App. 4th 759, 764.) This is distinct from parole or release following prison on post-conviction community supervision. In those circumstances, the conditions of release are set by the Department of Corrections and Rehabilitation. Indeed, the Third District of the Courts of Appeal recently stated,
While we have said that mandatory supervision is more like parole than probation it is similar to probation in the sense that the terms and conditions of the defendant's release are ordered by the court.
(People v. Munoz (2015) 183 Cal.Rptr.3d 484, 487 [citation omitted]; see also People v. Fandinola (2013) 221 Cal.App.4th 1415, 1423 [“the Legislature understood mandatory supervision is neither probation nor parole”].)
In the context of probation, the California Supreme Court has stated, “[t]he trial court's discretion, although broad, nevertheless is not without limits.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) The court explained further,
probation conditions which regulate conduct not itself criminal [must] be reasonably related to the crime of which the defendant was convicted or to future criminality. As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or exceeds the bounds of reason, all of the circumstances being considered. . . .
Currently, courts determine all conditions for mandatory supervision and routinely impose a “search clause” that requires the supervised person to submit to law enforcement searches. Trial courts now have the discretion to determine if a search clause is appropriate and if so, to determine the exact scope of the search clause. For example, a trial court may decide that it is not reasonable to require someone to subject his or her entire residence to a search without a warrant if the home is shared with other people. In such cases, the court will fashion a more limited search clause, requiring, for example, that the supervised person submit to a search of his or her person, property or vehicle without a warrant, but not his or her residence.
Under SB 679, however, the courts would lose this ability. Conditions imposed during mandatory supervision should be left to the sound discretion of the court, to ensure that the conditions reasonably related to the offense committed and are not “arbitrary or capricious or exceeds the bounds of reason.” (Ibid.)
-- END –
1 The unique nature of mandatory supervision in California’s sentencing scheme is not limited to issues concerning terms and conditions of supervision. Last year, several plaintiffs filed a lawsuit in Alameda county concerning the right of persons on mandatory supervision (as well as postrelease community supervision) to vote. The trial court noted, “(t)his petition squarely presents the question of whether in enacting the Realignment Act the Legislature intended Mandatory Supervision and PRCS to be “parole” for purposes of voting rights under the (law),” and held that “as a matter of law that California Constitution Article II, section 2 and Elections Code 2101, require the State of California to provide all otherwise eligible persons on Mandatory Supervision . . . and Post-Release Community Supervision (“PRCS”) . . . the same right to register to vote and to vote as all other otherwise eligible persons. Neither Mandatory Supervision nor PRCS is “parole” under the Penal Code, which compels this court to hold that neither Mandatory Supervision nor PRCS is “parole” under Elections Code 2101.” (Michael Scott et al. v. Debra Bowen, Superior Court of Alameda County, Case No. RG14-712570). This case is now on appeal.
2 There is no parallel statutory authority for the warrantless search of probationers, although that can be a condition of probation imposed by the court and agreed to by the defendant.
3 As discussed later in this analysis, this section also states that, “It is not the intent of the Legislature to authorize law enforcement officers to conduct searches for the sole purpose of harassment.” (Penal Code § 3067(d).) The motive of officers in conducting suspicionless search of parolee's residence is relevant to determining whether a suspicionless search is arbitrary, capricious, or harassing. ( Smith v. City of Oakland, 538 F. Supp. 2d 1217 (N.D. Cal. 2008).)
Discussed in Hearing
5MIN
Senate Standing Committee on Public Safety
Bill Author
Bill Co-Author(s):