SB 852: Searches: supervised persons.
- Session Year: 2023-2024
- House: Senate
- Latest Version Date: 2023-09-22
Current Status:
Passed
(2023-09-22: Chaptered by Secretary of State. Chapter 218, Statutes of 2023.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
What does this bill do?
The bill requires that only probation officers or other peace officers (law enforcement officers) may search or seize people on probation, mandatory supervision, or in home detention or electronic monitoring programs. It also says local officials who run those programs must designate only probation or peace officers to enter participants’ homes for compliance checks and clarifies that federal immigration agents (ICE) are not peace officers and may not lawfully conduct probation searches.
The summary is provided by generative AI which can make mistakes. For original language, please view the details in the table below.
Existing law authorizes courts to suspend the imposition or execution of punishments in specified criminal cases and instead enforce terms of probation or mandatory supervision. Existing law authorizes the conditions of probation or mandatory supervision to include a waiver of the persons right to refuse searches.
This bill would clarify that a search of a person who is granted probation or mandatory supervision and subject to search or seizure must be performed only by a probation officer or other peace officer.
Existing law requires persons released pursuant to specified provisions, including home detention programs and electronic monitoring programs, to admit any person or agent designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
This bill would clarify that the person designated by the correctional administrator must be a probation officer or other peace officer.
This bill would incorporate additional changes to Section 1170 of the Penal Code proposed by AB 1104 to be operative only if this bill and AB 1104 are enacted and this bill is enacted last.
Existing law authorizes courts to suspend the imposition or execution of punishments in specified criminal cases and instead enforce terms of probation or mandatory supervision. Existing law authorizes the conditions of probation or mandatory supervision to include a waiver of the persons right to refuse searches.
This bill would clarify that a search of a person who is granted probation or mandatory supervision and subject to search or seizure must be performed only by a probation officer or other peace officer.
Existing law requires persons released pursuant to specified provisions, including home detention programs and electronic monitoring programs, to admit any person or agent designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
This bill would clarify that the person designated by the correctional administrator must be a probation officer or other peace officer.
This bill would incorporate additional changes to Section 1170 of the Penal Code proposed by AB 1104 to be operative only if this bill and AB 1104 are enacted and this bill is enacted last.
Existing law authorizes courts to suspend the imposition or execution of punishments in specified criminal cases and instead enforce terms of probation or mandatory supervision. Existing law authorizes the conditions of probation or mandatory supervision to include a waiver of the persons right to refuse searches.
This bill would clarify that a search of a person who is granted probation or mandatory supervision and subject to search or seizure must be performed only by a probation officer or other peace officer.
Existing law requires persons released pursuant to specified provisions, including home detention programs and electronic monitoring programs, to admit any person or agent designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
This bill would clarify that the person designated by the correctional administrator must be a probation officer or other peace officer.
This bill would incorporate additional changes to Section 1170 of the Penal Code proposed by AB 1104 to be operative only if this bill and AB 1104 are enacted and this bill is enacted last.
Existing law authorizes courts to suspend the imposition or execution of punishments in misdemeanor specified criminal cases and instead enforce the terms of probation. probation or mandatory supervision. Existing law authorizes the conditions of probation or mandatory supervision to include a waiver of the persons right to refuse searches.
This bill would clarify that a search of a person who is granted probation or mandatory supervision and subject to search or seizure must be performed only by a probation officer or other peace officer.
Existing law requires persons released pursuant to specified provisions, including home detention programs and electronic monitoring programs, to admit any person or agent designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
This bill would clarify that the person designated by the correctional administrator must be a probation officer or other peace officer.
Existing law authorizes courts to suspend the imposition or execution of punishments in misdemeanor cases and instead enforce the terms of probation. Existing law authorizes the conditions of probation to include a waiver of the persons right to refuse searches.
This bill would clarify that a search of a person who is granted probation and subject to search or seizure must be performed only by a probation officer or other peace officer.
Existing law requires persons released pursuant to specified provisions, including home detention programs and electronic monitoring programs, to admit any person or agent designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
This bill would clarify that the person designated by the correctional administrator must be a probation officer or other peace officer.
Existing law makes peace officer and custodial officer personnel records and specified records maintained by any state or local agency, or information obtained from these records, confidential and prohibits these records from being disclosed in any criminal or civil proceeding except by discovery. This bill would make a technical, nonsubstantive change to that provision.Existing law makes peace officer and custodial officer personnel records and specified records maintained by any state or local agency, or information obtained from these records, confidential and prohibits these records from being disclosed in any criminal or civil proceeding except by discovery.
This bill would make a technical, nonsubstantive change to that provision.
This act shall be known, and may be cited, as the Prohibiting Rogue Officer Tricks and Ensuring Community Trust (PROTECT) Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)United States Immigration and Customs Enforcement (ICE) employees sometimes employ concerning tactics and strategies during home immigration enforcement operations.
(b)The concerning tactics and strategies include ICE employees commonly using a probation ruse, where they misrepresent themselves as probation officers or claim that they are conducting a probation check.
(c)Individuals who are on probation have no choice but to comply with a probation officers request because the terms of their probation require them to permit probation officers to access their homes and persons.
(d)Under existing California law, the terms and conditions of parole limit searches and seizures to be conducted by a probation or parole officer or other peace officer. California law is clear that ICE employees are not California peace officers.
(e)Under existing California law, ICE employees are likely not authorized to exploit probation because the existing definition of peace officer should apply to all probation sentences. Yet, ICE commonly employs probation ruses, targeting people on probation for immigration enforcement operations.
(f)ICEs use of a probation ruse undermines the trust and faith in Californias local law enforcement.
(g)Therefore, California must take necessary actions to eliminate any ambiguity under existing law and make it clear that ICE employees are not peace officers and cannot conduct probation searches and seizures.
SEC. 3.Section 1170 of the Penal Code is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice. When a sentence includes incarceration, this purpose is best served by terms that are proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.
(2)The Legislature further finds and declares that programs should be available for incarcerated persons, including, but not limited to, educational, rehabilitative, and restorative justice programs that are designed to promote behavior change and to prepare all eligible offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate all eligible offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to allow all eligible incarcerated persons the opportunity to enroll in programs that promote successful return to the community. The Department of Corrections and Rehabilitation is directed to establish a mission statement consistent with these principles.
(3)In any case in which the sentence prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison, or a term pursuant to subdivision (h), 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 they had committed their 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 sentence 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 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, except for a remaining portion of mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or the county correctional administrator. The court shall advise the defendant that they shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision and order the defendant to report to the parole or probation 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, postrelease community supervision, or mandatory supervision. The sentence shall be deemed a separate prior prison term or a sentence of imprisonment in a county jail under subdivision (h) for purposes of Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b)(1)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).
(2)The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
(3)Notwithstanding paragraphs (1) and (2), the court may consider the defendants prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This paragraph does not apply to enhancements imposed on prior convictions.
(4)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. 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.
(5)The court shall set forth on the record the facts and reasons for choosing the sentence imposed. 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.
(6)Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(7)Paragraph (6) does not preclude the court from imposing the lower term even if there is no evidence of those circumstances listed in paragraph (6) present.
(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 they may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d)(1)(A)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 been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.
(B)Notwithstanding subparagraph (A), this paragraph shall not apply to defendants sentenced to life without parole for an offense where it was pled and proved that the defendant tortured, as described in Section 206, their 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.
(2)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 the defendant 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 their remorse and work towards rehabilitation, and the defendants statement that one of the following is true:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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.
(C)The defendant committed the offense with at least one adult codefendant.
(D)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(3)If any of the information required in paragraph (2) 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.
(4)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.
(5)If the court finds by a preponderance of the evidence that one or more of the statements specified in subparagraphs (A) to (D), inclusive, of paragraph (2) is true, the court shall recall the sentence and commitment previously ordered and hold a hearing 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.
(6)The factors that the court may consider when determining whether to resentence the defendant to a term of imprisonment with the possibility of parole include, but are not limited to, the following:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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 defendant was sentenced to life without the possibility of parole.
(C)The defendant committed the offense with at least one adult codefendant.
(D)Prior to the offense for which the defendant was sentenced to life without the possibility of parole, the defendant had insufficient adult support or supervision and had suffered from psychological or physical trauma or significant stress.
(E)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.
(F)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(G)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.
(H)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.
(7)The court shall have the discretion 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 paragraph (6). 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.
(8)Notwithstanding paragraph (7), the court may also resentence the defendant to a term that is less than the initial sentence if any of the following were a contributing factor in the commission of the alleged offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(9)Paragraph (8) does not prohibit the court from resentencing the defendant to a term that is less than the initial sentence, even if none of the circumstances listed in paragraph (8) are present.
(10)If the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole, 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 the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole 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.
(11)In addition to the criteria in paragraph (6), 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.
(12)This subdivision shall have retroactive application.
(13)Nothing in this paragraph is intended to diminish or abrogate any rights or remedies otherwise available to the defendant.
(e)Notwithstanding subdivision (a), the court may recall and resentence an incarcerated person pursuant to the compassionate release program set forth in Section 1172.2.
(f)Notwithstanding any other provision of this section, for purposes of paragraph (3) of subdivision (h), an allegation that a defendant is eligible for state prison due to a prior or current conviction, sentence enhancement, or because the defendant is required to register as a sex offender shall not be subject to dismissal pursuant to Section 1385.
(g)A sentence to the 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 the 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 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 that is suspended because a person has absconded shall not be credited toward the period of supervision. A defendant who is subject to search or seizure as part of the terms and conditions of mandatory supervision, is subject to search or seizure only by a probation officer or other peace officer.
(6)When the court is imposing a judgment pursuant to this subdivision concurrent or consecutive to a judgment or judgments previously imposed pursuant to this subdivision in another county or counties, the court rendering the second or other subsequent judgment shall determine the county or counties of incarceration and supervision of the defendant.
(7)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.
(8)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.
(9)Notwithstanding the separate punishment for any enhancement, any enhancement shall be punishable in a county jail or state prison as required by the underlying offense and not as would be required by the enhancement. The intent of the Legislature in enacting this paragraph is to abrogate the holding in People v. Vega (2014) 222 Cal.App.4th 1374, that if an enhancement specifies service of sentence in state prison, the entire sentence is served in state prison, even if the punishment for the underlying offense is a term of imprisonment in the county jail.
SEC. 3.5.Section 1170 of the Penal Code is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice. When a sentence includes incarceration, the deprivation of liberty satisfies the punishment purpose of sentencing. The purpose of incarceration is rehabilitation and successful community reintegration achieved through education, treatment, and active participation in rehabilitative and restorative justice programs. This purpose is best served by terms that are proportionate to the seriousness of the offense with provision for uniformity in the sentences of people incarcerated for committing the same offense under similar circumstances.
(2)The Legislature further finds and declares that programs should be available for incarcerated persons, including, but not limited to, educational, rehabilitative, and restorative justice programs that are designed to promote behavioral change and to prepare all incarcerated persons for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate all incarcerated persons. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to allow all incarcerated persons the opportunity to enroll in programs that promote successful return to the community. The Legislature finds and declares that community-based organizations are an integral part of achieving the states objective of ensuring that all people incarcerated in a state prison have access to rehabilitative programs. The Department of Corrections and Rehabilitation is directed to maintain a mission statement consistent with these principles and shall facilitate access for community-based programs in order to meaningfully effectuate the principles set forth in this section.
(3)In any case in which the sentence prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison, or a term pursuant to subdivision (h), 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 they had committed their 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 sentence 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 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, except for a remaining portion of mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or the county correctional administrator. The court shall advise the defendant that they shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision and order the defendant to report to the parole or probation 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, postrelease community supervision, or mandatory supervision. The sentence shall be deemed a separate prior prison term or a sentence of imprisonment in a county jail under subdivision (h) for purposes of Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b)(1)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).
(2)The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
(3)Notwithstanding paragraphs (1) and (2), the court may consider the defendants prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This paragraph does not apply to enhancements imposed on prior convictions.
(4)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. 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.
(5)The court shall set forth on the record the facts and reasons for choosing the sentence imposed. 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.
(6)Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(7)Paragraph (6) does not preclude the court from imposing the lower term even if there is no evidence of those circumstances listed in paragraph (6) present.
(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 they may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d)(1)(A)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 been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.
(B)Notwithstanding subparagraph (A), this paragraph shall not apply to defendants sentenced to life without parole for an offense where it was pled and proved that the defendant tortured, as described in Section 206, their 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.
(2)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 the defendant 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 their remorse and work towards rehabilitation, and the defendants statement that one of the following is true:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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.
(C)The defendant committed the offense with at least one adult codefendant.
(D)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(3)If any of the information required in paragraph (2) 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.
(4)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.
(5)If the court finds by a preponderance of the evidence that one or more of the statements specified in subparagraphs (A) to (D), inclusive, of paragraph (2) is true, the court shall recall the sentence and commitment previously ordered and hold a hearing 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.
(6)The factors that the court may consider when determining whether to resentence the defendant to a term of imprisonment with the possibility of parole include, but are not limited to, the following:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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 defendant was sentenced to life without the possibility of parole.
(C)The defendant committed the offense with at least one adult codefendant.
(D)Prior to the offense for which the defendant was sentenced to life without the possibility of parole, the defendant had insufficient adult support or supervision and had suffered from psychological or physical trauma or significant stress.
(E)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.
(F)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(G)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.
(H)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.
(7)The court shall have the discretion 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 paragraph (6). 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.
(8)Notwithstanding paragraph (7), the court may also resentence the defendant to a term that is less than the initial sentence if any of the following were a contributing factor in the commission of the alleged offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(9)Paragraph (8) does not prohibit the court from resentencing the defendant to a term that is less than the initial sentence, even if none of the circumstances listed in paragraph (8) are present.
(10)If the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole, 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 the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole 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.
(11)In addition to the criteria in paragraph (6), 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.
(12)This subdivision shall have retroactive application.
(13)Nothing in this paragraph is intended to diminish or abrogate any rights or remedies otherwise available to the defendant.
(e)Notwithstanding subdivision (a), the court may recall and resentence an incarcerated person pursuant to the compassionate release program set forth in Section 1172.2.
(f)Notwithstanding any other provision of this section, for purposes of paragraph (3) of subdivision (h), an allegation that a defendant is eligible for state prison due to a prior or current conviction, sentence enhancement, or because the defendant is required to register as a sex offender shall not be subject to dismissal pursuant to Section 1385.
(g)A sentence to the 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 the 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 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 that is suspended because a person has absconded shall not be credited toward the period of supervision. A defendant who is subject to search or seizure as part of the terms and conditions of mandatory supervision, is subject to search or seizure only by a probation officer or other peace officer.
(6)When the court is imposing a judgment pursuant to this subdivision concurrent or consecutive to a judgment or judgments previously imposed pursuant to this subdivision in another county or counties, the court rendering the second or other subsequent judgment shall determine the county or counties of incarceration and supervision of the defendant.
(7)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.
(8)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.
(9)Notwithstanding the separate punishment for any enhancement, any enhancement shall be punishable in a county jail or state prison as required by the underlying offense and not as would be required by the enhancement. The intent of the Legislature in enacting this paragraph is to abrogate the holding in People v. Vega (2014) 222 Cal.App.4th 1374, that if an enhancement specifies service of sentence in state prison, the entire sentence is served in state prison, even if the punishment for the underlying offense is a term of imprisonment in the county jail.
SEC. 4.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 containing findings and recommendations, including 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 the 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 that person 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 officers 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 recommendations for 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 that person 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 the person 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 in which 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 the persons 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 that person has been convicted.
(3)Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which that person 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, 287, 288, or 288.5, or of former Section 288a, 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 that person 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 the persons arrest for the previous crime, the person 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 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 in which the determination is applicable. The judge, in their 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 containing 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 the 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).
(j)In any court in which 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 defendants ability to pay restitution, in which case the county financial evaluation officer shall report the findings regarding restitution and other court-related costs to the probation officer on the question of the defendants 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 defendants 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, 2028, 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.
(m)A person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer.
SEC. 5.Section 1203.016 of the Penal Code is amended to read:1203.016.(a)Notwithstanding any other law, the board of supervisors of any county may authorize the correctional administrator, as defined in subdivision (g), to offer a program under which inmates committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program, may voluntarily participate or involuntarily be placed in a home detention program during their sentence in lieu of confinement in a county jail or other county correctional facility or program under the auspices of the probation officer.
(b)The board of supervisors, in consultation with the correctional administrator, may prescribe reasonable rules and regulations under which a home detention program may operate. As a condition of participation in the home detention program, the inmate shall give consent in writing to participate in the home detention program and shall in writing agree to comply or, for involuntary participation, the inmate shall be informed in writing that the inmate shall comply, with the rules and regulations of the program, including, but not limited to, the following rules:
(1)The participant shall remain within the interior premises of the participants residence during the hours designated by the correctional administrator.
(2)The participant shall admit any probation officer or other peace officer designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
(3)The participant shall agree to the use of electronic monitoring, which may include Global Positioning System devices or other supervising devices for the purpose of helping to verify compliance with the rules and regulations of the home detention program. The devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant which is to be used solely for the purposes of voice identification.
(4)The participant shall agree that the correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody to serve the balance of the persons sentence if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section. A copy of the agreement shall be delivered to the participant and a copy retained by the correctional administrator.
(c)If the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody to complete the remainder of the original sentence.
(d)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in a home detention program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(1)The rules and regulations and administrative policy of the program shall be written and reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to or made available to any participant upon request.
(2)The correctional administrator, or the administrators designee, shall have the sole discretionary authority to permit program participation as an alternative to physical custody. All persons referred or recommended by the court to participate in the home detention program pursuant to subdivision (e) who are denied participation or all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(e)The court may recommend or refer a person to the correctional administrator for consideration for placement in the home detention program. The recommendation or referral of the court shall be given great weight in the determination of acceptance or denial. At the time of sentencing or at any time that the court deems it necessary, the court may restrict or deny the defendants participation in a home detention program.
(f)The correctional administrator may permit home detention program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance. Willful failure of the program participant to return to the place of home detention not later than the expiration of any period of time during which the participant is authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention are punishable as provided in Section 4532.
(g)As used in this section, correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(h)Notwithstanding any other law, the police department of a city where an office is located to which persons on an electronic monitoring program report may request the county correctional administrator to provide information concerning those persons. This information shall be limited to the name, address, date of birth, offense committed by the home detainee, and if available, at the discretion of the supervising agency and solely for investigatory purposes, current and historical GPS coordinates of the home detainee. A law enforcement department that does not have the primary responsibility to supervise participants in the electronic monitoring program that receives information pursuant to this subdivision shall not use the information to conduct enforcement actions based on administrative violations of the home detention program. A law enforcement department that has knowledge that the subject in a criminal investigation is a participant in an electronic monitoring program shall make reasonable efforts to notify the supervising agency prior to serving a warrant or taking any law enforcement action against a participant in an electronic monitoring program.
(i)It is the intent of the Legislature that home detention programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer a home detention program pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. No public or private agency or entity may operate a home detention program in any county without a written contract with that countys correctional administrator. However, this does not apply to the use of electronic monitoring by the Department of Corrections and Rehabilitation. No public or private agency or entity entering into a contract may itself employ any person who is in the home detention program.
(2)Program acceptance shall not circumvent the normal booking process for sentenced offenders. All home detention program participants shall be supervised.
(3)(A)All privately operated home detention programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards promulgated by state correctional agencies and bodies, including the Corrections Standards Authority, and all statutory provisions and mandates, state and county, as appropriate and applicable to the operation of home detention programs and the supervision of sentenced offenders in a home detention program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs, that may arise from, or be proximately caused by, acts or omissions of the contractor. The contract shall provide for annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated home detention programs shall comply with all appropriate, applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with statutory provisions and requirements or with the standards established by the contract and with the correctional administrator may be sufficient cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with whom there is a contract is not in compliance pursuant to this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(j)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(1)A current liability insurance policy.
(2)A current errors and omissions insurance policy.
(3)A surety bond.
(k)This section shall become operative on July 1, 2021.
SEC. 6.Section 1203.017 of the Penal Code is amended to read:1203.017.(a)Notwithstanding any other provision of law, upon determination by the correctional administrator that conditions in a jail facility warrant the necessity of releasing sentenced misdemeanor inmates prior to them serving the full amount of a given sentence due to lack of jail space, the board of supervisors of any county may authorize the correctional administrator to offer a program under which inmates committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program, may be required to participate in an involuntary home detention program, which shall include electronic monitoring, during their sentence in lieu of confinement in the county jail or other county correctional facility or program under the auspices of the probation officer. Under this program, one day of participation shall be in lieu of one day of incarceration. Participants in the program shall receive any sentence reduction credits that they would have received had they served their sentences in a county correctional facility.
(b)The board of supervisors may prescribe reasonable rules and regulations under which an involuntary home detention program may operate. The inmate shall be informed in writing that they shall comply with the rules and regulations of the program, including, but not limited to, the following rules:
(1)The participant shall remain within the interior premises of their residence during the hours designated by the correctional administrator.
(2)The participant shall admit any probation officer or other peace officer designated by the correctional administrator into their residence at any time for purposes of verifying the participants compliance with the conditions of their detention.
(3)The use of electronic monitoring may include global positioning system devices or other supervising devices for the purpose of helping to verify their compliance with the rules and regulations of the home detention program. The devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant which is to be used solely for the purposes of voice identification.
(4)The correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody to serve the balance of their sentence if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section.
(c)Whenever the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody to complete the remainder of the original sentence.
(d)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in a home detention program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(1)The rules and regulations and administrative policy of the program shall be written and reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to or made available to any participant upon request.
(2)The correctional administrator, or their designee, shall have the sole discretionary authority to permit program participation as an alternative to physical custody. All persons referred or recommended by the court to participate in the home detention program pursuant to subdivision (e) who are denied participation or all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(e)The court may recommend or refer a person to the correctional administrator for consideration for placement in the home detention program. The recommendation or referral of the court shall be given great weight in the determination of acceptance or denial. At the time of sentencing or at any time that the court deems it necessary, the court may restrict or deny the defendants participation in a home detention program.
(f)The correctional administrator may permit home detention program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance. Willful failure of the program participant to return to the place of home detention not later than the expiration of any period of time during which they are authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention are punishable as provided in Section 4532.
(g)As used in this section, correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(h)(1)Notwithstanding any other law, the correctional administrator shall provide the information specified in paragraph (2) regarding persons on involuntary home detention to the Corrections Standards Authority, and upon request, shall provide that information to the law enforcement agency of a city or unincorporated area where an office is located to which persons on involuntary home detention report.
(2)The information required by paragraph (1) shall consist of the following:
(A)The participants name, address, and date of birth.
(B)The offense committed by the participant.
(C)The period of time the participant will be placed on home detention.
(D)Whether the participant successfully completed the prescribed period of home detention or was returned to a county correctional facility, and if the person was returned to a county correctional facility, the reason for that return.
(E)The gender and ethnicity of the participant.
(3)Any information received by a police department pursuant to this subdivision shall be used only for the purpose of monitoring the impact of home detention programs on the community.
(i)It is the intent of the Legislature that home detention programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer a home detention program pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. No public or private agency or entity may operate a home detention program in any county without a written contract with that countys correctional administrator. However, this does not apply to the use of electronic monitoring by the Department of Corrections and Rehabilitation as established in Section 3004. No public or private agency or entity entering into a contract may itself employ any person who is in the home detention program.
(2)Program acceptance shall not circumvent the normal booking process for sentenced offenders. All home detention program participants shall be supervised.
(3)(A)All privately operated home detention programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards promulgated by state correctional agencies and bodies, including the Corrections Standards Authority, and all statutory provisions and mandates, state and county, as appropriate and applicable to the operation of home detention programs and the supervision of sentenced offenders in a home detention program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs, that may arise from, or be proximately caused by, acts or omissions of the contractor. The contract shall provide for annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated home detention programs shall comply with all appropriate, applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with statutory provisions and requirements or with the standards established by the contract and with the correctional administrator may be sufficient cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with whom there is a contract is not in compliance pursuant to this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(j)Inmates participating in this program shall not be charged fees or costs for the program.
(k)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(1)A current liability insurance policy.
(2)A current errors and omissions insurance policy.
(3)A surety bond.
SEC. 7.Section 1203.018 of the Penal Code is amended to read:1203.018.(a)Notwithstanding any other law, this section shall only apply to inmates being held in lieu of bail and on no other basis.
(b)Notwithstanding any other law, the board of supervisors of any county may authorize the correctional administrator, as defined in paragraph (1) of subdivision (j), to offer a program under which inmates being held in lieu of bail in a county jail or other county correctional facility may participate in an electronic monitoring program if the conditions specified in subdivision (c) are met.
(c)(1)In order to qualify for participation in an electronic monitoring program pursuant to this section, the inmate shall be an inmate with no holds or outstanding warrants to whom one of the following circumstances applies:
(A)The inmate has been held in custody for at least 30 calendar days from the date of arraignment pending disposition of only misdemeanor charges.
(B)The inmate has been held in custody pending disposition of charges for at least 60 calendar days from the date of arraignment.
(C)The inmate is appropriate for the program based on a determination by the correctional administrator that the inmates participation would be consistent with the public safety interests of the community.
(2)All participants shall be subject to discretionary review for eligibility and compliance by the correctional administrator consistent with this section.
(d)The board of supervisors, after consulting with the sheriff and district attorney, may prescribe reasonable rules and regulations under which an electronic monitoring program pursuant to this section may operate. As a condition of participation in the electronic monitoring program, the participant shall give consent in writing to participate and shall agree in writing to comply with the rules and regulations of the program, including, but not limited to, all of the following:
(1)The participant shall remain within the interior premises of the participants residence during the hours designated by the correctional administrator.
(2)The participant shall admit any probation officer or other peace officer designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
(3)The electronic monitoring may include global positioning system devices or other supervising devices for the purpose of helping to verify the participants compliance with the rules and regulations of the electronic monitoring program. The electronic devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant to be used solely for the purposes of voice identification.
(4)The correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section.
(5)A copy of the signed consent to participate and a copy of the agreement to comply with the rules and regulations shall be provided to the participant and a copy shall be retained by the correctional administrator.
(e)The rules and regulations and administrative policy of the program shall be reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to every participant.
(f)Whenever the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody.
(g)(1)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in an electronic monitoring program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(2)The correctional administrator, or the administrators designee, shall have discretionary authority consistent with this section to permit program participation as an alternative to physical custody. All persons approved by the correctional administrator to participate in the electronic monitoring program pursuant to subdivision (c) who are denied participation and all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(h)The correctional administrator may permit electronic monitoring program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance.
(i)Willful failure of the program participant to return to the place of home detention prior to the expiration of any period of time during which the participant is authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention is punishable pursuant to Section 4532.
(j)For purposes of this section, the following terms have the following meanings:
(1)Correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(2)Electronic monitoring program includes, but is not limited to, home detention programs, work furlough programs, and work release programs.
(k)Notwithstanding any other law, upon request of a local law enforcement agency with jurisdiction over the location where a participant in an electronic monitoring program is placed, the correctional administrator shall provide the following information regarding participants in the electronic monitoring program:
(1)The participants name, address, and date of birth.
(2)The offense or offenses alleged to have been committed by the participant.
(3)The period of time the participant will be placed on home detention.
(4)Whether the participant successfully completed the prescribed period of home detention or was returned to a county correctional facility, and if the person was returned to a county correctional facility, the reason for the return.
(5)The gender and ethnicity of the participant.
(l)Notwithstanding any other law, upon request of a local law enforcement agency with jurisdiction over the location where a participant in an electronic monitoring program is placed, the correctional administrator may, in the administrators discretion and solely for investigatory purposes, provide current and historical GPS coordinates, if available.
(m)A law enforcement agency that does not have the primary responsibility to supervise participants in the electronic monitoring program that receives information pursuant to subdivision (k) shall not use the information to conduct enforcement actions based on administrative violations of the home detention program. An agency that has knowledge that the subject in a criminal investigation is a participant in an electronic monitoring program shall make reasonable efforts to notify the supervising agency prior to serving a warrant or taking any law enforcement action against a participant in an electronic monitoring program.
(n)It is the intent of the Legislature that electronic monitoring programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer an electronic monitoring program as provided in this section pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. A public or private agency or entity shall not operate a home detention program pursuant to this section in any county without a written contract with that countys correctional administrator. A public or private agency or entity entering into a contract pursuant to this subdivision shall not itself employ any person who is in the electronic monitoring program.
(2)Program participants shall undergo the normal booking process for arrestees entering the jail. All electronic monitoring program participants shall be supervised.
(3)(A)All privately operated electronic monitoring programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract specified in subparagraph (A) shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards and all state and county laws applicable to the operation of electronic monitoring programs and the supervision of offenders in an electronic monitoring program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted to and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs that may arise from, or be proximately caused by, acts or omissions of the contractor.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that requires an annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(vi)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated electronic monitoring programs shall comply with all applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with state or county laws or with the standards established by the contract with the correctional administrator shall constitute cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with which there is a contract is not in compliance with this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(H)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(i)A current liability insurance policy.
(ii)A current errors and omissions insurance policy.
(iii)A surety bond.
(o)This section shall become operative on July 1, 2021.
SEC. 8.Section 1203.25 of the Penal Code is amended to read:1203.25.(a)All persons released by a court at or after the initial hearing and prior to a formal probation violation hearing pursuant to subdivision (a) of Section 1203.2 shall be released on their own recognizance unless the court finds, by clear and convincing evidence, that the particular circumstances of the case require the imposition of an order to provide reasonable protection to the public and reasonable assurance of the persons future appearance in court.
(1)The court shall make an individualized determination of the factors that do or do not indicate that the person would be a danger to the public if released pending a formal revocation hearing. Any finding of danger to the public must be based on clear and convincing evidence.
(2)The court shall not require the use of any algorithm-based risk assessment tool in setting conditions of release.
(3)The court shall impose the least restrictive conditions of release necessary to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(b)Reasonable conditions of release may include, but are not limited to, reporting telephonically to a probation officer, protective orders, a global positioning system (GPS) monitoring device or other electronic monitoring, an alcohol use detection device, or search and seizure by a probation officer or other peace officer. The person shall not be required to bear the expense of any conditions of release ordered by the court.
(c)(1)Bail shall not be imposed unless the court finds by clear and convincing evidence that other reasonable conditions of release are not adequate to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(2)Bail as used in this section is defined as cash bail. A bail bond or property bond is not bail. In determining the amount of bail, the court shall make an individualized determination based on the particular circumstances of the case, and it shall consider the persons ability to pay cash bail, not a bail bond or property bond. Bail shall be set at a level the person can reasonably afford.
(d)The court shall not deny release for a person on probation for misdemeanor conduct before the court holds a formal probation revocation hearing, unless the person fails to comply with an order of the court, including an order to appear in court in the underlying case, in which case subdivision (a) shall apply.
(e)The court shall not deny release for a person on probation for felony conduct before the court holds a formal probation revocation hearing unless the court finds by clear and convincing evidence that there are no means reasonably available to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(f)All findings required to be made by clear and convincing evidence under this section shall, based on all evidence presented, including, but not limited to, any probation report, be made orally on the record by the court. The court also shall set forth the reason in an order entered upon the minutes if requested by either party in any case in which the proceedings are not being reported by a court reporter.
(g)If a new charge is the basis for a probation violation, nothing in this section shall be construed to limit the courts authority to hold, release, limit release, or impose conditions of release for that charge as permitted by applicable law.
SEC. 9.Section 3.5 of this bill incorporates amendments to Section 1170 of the Penal Code proposed by both this bill and Assembly Bill 1104. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 1170 of the Penal Code, and (3) this bill is enacted after Assembly Bill 1104, in which case Section 3 of this bill shall not become operative.
This act shall be known, and may be cited, as the Prohibiting Rogue Officer Tricks and Ensuring Community Trust (PROTECT) Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)United States Immigration and Customs Enforcement (ICE) employees sometimes employ concerning tactics and strategies during home immigration enforcement operations.
(b)The concerning tactics and strategies include ICE employees commonly using a probation ruse, where they misrepresent themselves as probation officers or claim that they are conducting a probation check.
(c)Individuals who are on probation have no choice but to comply with a probation officers request because the terms of their probation require them to permit probation officers to access their homes and persons.
(d)Under existing California law, the terms and conditions of parole limit searches and seizures to be conducted by a probation or parole officer or other peace officer. California law is clear that ICE employees are not California peace officers.
(e)Under existing California law, ICE employees are likely not authorized to exploit probation because the existing definition of peace officer should apply to all probation sentences. Yet, ICE commonly employs probation ruses, targeting people on probation for immigration enforcement operations.
(f)ICEs use of a probation ruse undermines the trust and faith in Californias local law enforcement.
(g)Therefore, California must take necessary actions to eliminate any ambiguity under existing law and make it clear that ICE employees are not peace officers and cannot conduct probation searches and seizures.
SEC. 3.Section 1170 of the Penal Code is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice. When a sentence includes incarceration, this purpose is best served by terms that are proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.
(2)The Legislature further finds and declares that programs should be available for incarcerated persons, including, but not limited to, educational, rehabilitative, and restorative justice programs that are designed to promote behavior change and to prepare all eligible offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate all eligible offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to allow all eligible incarcerated persons the opportunity to enroll in programs that promote successful return to the community. The Department of Corrections and Rehabilitation is directed to establish a mission statement consistent with these principles.
(3)In any case in which the sentence prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison, or a term pursuant to subdivision (h), 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 they had committed their 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 sentence 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 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, except for a remaining portion of mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or the county correctional administrator. The court shall advise the defendant that they shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision and order the defendant to report to the parole or probation 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, postrelease community supervision, or mandatory supervision. The sentence shall be deemed a separate prior prison term or a sentence of imprisonment in a county jail under subdivision (h) for purposes of Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b)(1)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).
(2)The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
(3)Notwithstanding paragraphs (1) and (2), the court may consider the defendants prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This paragraph does not apply to enhancements imposed on prior convictions.
(4)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. 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.
(5)The court shall set forth on the record the facts and reasons for choosing the sentence imposed. 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.
(6)Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(7)Paragraph (6) does not preclude the court from imposing the lower term even if there is no evidence of those circumstances listed in paragraph (6) present.
(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 they may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d)(1)(A)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 been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.
(B)Notwithstanding subparagraph (A), this paragraph shall not apply to defendants sentenced to life without parole for an offense where it was pled and proved that the defendant tortured, as described in Section 206, their 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.
(2)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 the defendant 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 their remorse and work towards rehabilitation, and the defendants statement that one of the following is true:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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.
(C)The defendant committed the offense with at least one adult codefendant.
(D)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(3)If any of the information required in paragraph (2) 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.
(4)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.
(5)If the court finds by a preponderance of the evidence that one or more of the statements specified in subparagraphs (A) to (D), inclusive, of paragraph (2) is true, the court shall recall the sentence and commitment previously ordered and hold a hearing 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.
(6)The factors that the court may consider when determining whether to resentence the defendant to a term of imprisonment with the possibility of parole include, but are not limited to, the following:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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 defendant was sentenced to life without the possibility of parole.
(C)The defendant committed the offense with at least one adult codefendant.
(D)Prior to the offense for which the defendant was sentenced to life without the possibility of parole, the defendant had insufficient adult support or supervision and had suffered from psychological or physical trauma or significant stress.
(E)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.
(F)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(G)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.
(H)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.
(7)The court shall have the discretion 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 paragraph (6). 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.
(8)Notwithstanding paragraph (7), the court may also resentence the defendant to a term that is less than the initial sentence if any of the following were a contributing factor in the commission of the alleged offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(9)Paragraph (8) does not prohibit the court from resentencing the defendant to a term that is less than the initial sentence, even if none of the circumstances listed in paragraph (8) are present.
(10)If the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole, 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 the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole 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.
(11)In addition to the criteria in paragraph (6), 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.
(12)This subdivision shall have retroactive application.
(13)Nothing in this paragraph is intended to diminish or abrogate any rights or remedies otherwise available to the defendant.
(e)Notwithstanding subdivision (a), the court may recall and resentence an incarcerated person pursuant to the compassionate release program set forth in Section 1172.2.
(f)Notwithstanding any other provision of this section, for purposes of paragraph (3) of subdivision (h), an allegation that a defendant is eligible for state prison due to a prior or current conviction, sentence enhancement, or because the defendant is required to register as a sex offender shall not be subject to dismissal pursuant to Section 1385.
(g)A sentence to the 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 the 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 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 that is suspended because a person has absconded shall not be credited toward the period of supervision. A defendant who is subject to search or seizure as part of the terms and conditions of mandatory supervision, is subject to search or seizure only by a probation officer or other peace officer.
(6)When the court is imposing a judgment pursuant to this subdivision concurrent or consecutive to a judgment or judgments previously imposed pursuant to this subdivision in another county or counties, the court rendering the second or other subsequent judgment shall determine the county or counties of incarceration and supervision of the defendant.
(7)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.
(8)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.
(9)Notwithstanding the separate punishment for any enhancement, any enhancement shall be punishable in a county jail or state prison as required by the underlying offense and not as would be required by the enhancement. The intent of the Legislature in enacting this paragraph is to abrogate the holding in People v. Vega (2014) 222 Cal.App.4th 1374, that if an enhancement specifies service of sentence in state prison, the entire sentence is served in state prison, even if the punishment for the underlying offense is a term of imprisonment in the county jail.
SEC. 3.5.Section 1170 of the Penal Code is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice. When a sentence includes incarceration, the deprivation of liberty satisfies the punishment purpose of sentencing. The purpose of incarceration is rehabilitation and successful community reintegration achieved through education, treatment, and active participation in rehabilitative and restorative justice programs. This purpose is best served by terms that are proportionate to the seriousness of the offense with provision for uniformity in the sentences of people incarcerated for committing the same offense under similar circumstances.
(2)The Legislature further finds and declares that programs should be available for incarcerated persons, including, but not limited to, educational, rehabilitative, and restorative justice programs that are designed to promote behavioral change and to prepare all incarcerated persons for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate all incarcerated persons. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to allow all incarcerated persons the opportunity to enroll in programs that promote successful return to the community. The Legislature finds and declares that community-based organizations are an integral part of achieving the states objective of ensuring that all people incarcerated in a state prison have access to rehabilitative programs. The Department of Corrections and Rehabilitation is directed to maintain a mission statement consistent with these principles and shall facilitate access for community-based programs in order to meaningfully effectuate the principles set forth in this section.
(3)In any case in which the sentence prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison, or a term pursuant to subdivision (h), 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 they had committed their 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 sentence 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 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, except for a remaining portion of mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or the county correctional administrator. The court shall advise the defendant that they shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision and order the defendant to report to the parole or probation 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, postrelease community supervision, or mandatory supervision. The sentence shall be deemed a separate prior prison term or a sentence of imprisonment in a county jail under subdivision (h) for purposes of Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b)(1)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).
(2)The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
(3)Notwithstanding paragraphs (1) and (2), the court may consider the defendants prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This paragraph does not apply to enhancements imposed on prior convictions.
(4)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. 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.
(5)The court shall set forth on the record the facts and reasons for choosing the sentence imposed. 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.
(6)Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(7)Paragraph (6) does not preclude the court from imposing the lower term even if there is no evidence of those circumstances listed in paragraph (6) present.
(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 they may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d)(1)(A)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 been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.
(B)Notwithstanding subparagraph (A), this paragraph shall not apply to defendants sentenced to life without parole for an offense where it was pled and proved that the defendant tortured, as described in Section 206, their 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.
(2)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 the defendant 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 their remorse and work towards rehabilitation, and the defendants statement that one of the following is true:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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.
(C)The defendant committed the offense with at least one adult codefendant.
(D)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(3)If any of the information required in paragraph (2) 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.
(4)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.
(5)If the court finds by a preponderance of the evidence that one or more of the statements specified in subparagraphs (A) to (D), inclusive, of paragraph (2) is true, the court shall recall the sentence and commitment previously ordered and hold a hearing 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.
(6)The factors that the court may consider when determining whether to resentence the defendant to a term of imprisonment with the possibility of parole include, but are not limited to, the following:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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 defendant was sentenced to life without the possibility of parole.
(C)The defendant committed the offense with at least one adult codefendant.
(D)Prior to the offense for which the defendant was sentenced to life without the possibility of parole, the defendant had insufficient adult support or supervision and had suffered from psychological or physical trauma or significant stress.
(E)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.
(F)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(G)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.
(H)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.
(7)The court shall have the discretion 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 paragraph (6). 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.
(8)Notwithstanding paragraph (7), the court may also resentence the defendant to a term that is less than the initial sentence if any of the following were a contributing factor in the commission of the alleged offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(9)Paragraph (8) does not prohibit the court from resentencing the defendant to a term that is less than the initial sentence, even if none of the circumstances listed in paragraph (8) are present.
(10)If the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole, 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 the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole 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.
(11)In addition to the criteria in paragraph (6), 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.
(12)This subdivision shall have retroactive application.
(13)Nothing in this paragraph is intended to diminish or abrogate any rights or remedies otherwise available to the defendant.
(e)Notwithstanding subdivision (a), the court may recall and resentence an incarcerated person pursuant to the compassionate release program set forth in Section 1172.2.
(f)Notwithstanding any other provision of this section, for purposes of paragraph (3) of subdivision (h), an allegation that a defendant is eligible for state prison due to a prior or current conviction, sentence enhancement, or because the defendant is required to register as a sex offender shall not be subject to dismissal pursuant to Section 1385.
(g)A sentence to the 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 the 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 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 that is suspended because a person has absconded shall not be credited toward the period of supervision. A defendant who is subject to search or seizure as part of the terms and conditions of mandatory supervision, is subject to search or seizure only by a probation officer or other peace officer.
(6)When the court is imposing a judgment pursuant to this subdivision concurrent or consecutive to a judgment or judgments previously imposed pursuant to this subdivision in another county or counties, the court rendering the second or other subsequent judgment shall determine the county or counties of incarceration and supervision of the defendant.
(7)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.
(8)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.
(9)Notwithstanding the separate punishment for any enhancement, any enhancement shall be punishable in a county jail or state prison as required by the underlying offense and not as would be required by the enhancement. The intent of the Legislature in enacting this paragraph is to abrogate the holding in People v. Vega (2014) 222 Cal.App.4th 1374, that if an enhancement specifies service of sentence in state prison, the entire sentence is served in state prison, even if the punishment for the underlying offense is a term of imprisonment in the county jail.
SEC. 4.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 containing findings and recommendations, including 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 the 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 that person 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 officers 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 recommendations for 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 that person 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 the person 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 in which 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 the persons 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 that person has been convicted.
(3)Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which that person 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, 287, 288, or 288.5, or of former Section 288a, 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 that person 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 the persons arrest for the previous crime, the person 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 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 in which the determination is applicable. The judge, in their 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 containing 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 the 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).
(j)In any court in which 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 defendants ability to pay restitution, in which case the county financial evaluation officer shall report the findings regarding restitution and other court-related costs to the probation officer on the question of the defendants 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 defendants 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, 2028, 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.
(m)A person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer.
SEC. 5.Section 1203.016 of the Penal Code is amended to read:1203.016.(a)Notwithstanding any other law, the board of supervisors of any county may authorize the correctional administrator, as defined in subdivision (g), to offer a program under which inmates committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program, may voluntarily participate or involuntarily be placed in a home detention program during their sentence in lieu of confinement in a county jail or other county correctional facility or program under the auspices of the probation officer.
(b)The board of supervisors, in consultation with the correctional administrator, may prescribe reasonable rules and regulations under which a home detention program may operate. As a condition of participation in the home detention program, the inmate shall give consent in writing to participate in the home detention program and shall in writing agree to comply or, for involuntary participation, the inmate shall be informed in writing that the inmate shall comply, with the rules and regulations of the program, including, but not limited to, the following rules:
(1)The participant shall remain within the interior premises of the participants residence during the hours designated by the correctional administrator.
(2)The participant shall admit any probation officer or other peace officer designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
(3)The participant shall agree to the use of electronic monitoring, which may include Global Positioning System devices or other supervising devices for the purpose of helping to verify compliance with the rules and regulations of the home detention program. The devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant which is to be used solely for the purposes of voice identification.
(4)The participant shall agree that the correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody to serve the balance of the persons sentence if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section. A copy of the agreement shall be delivered to the participant and a copy retained by the correctional administrator.
(c)If the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody to complete the remainder of the original sentence.
(d)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in a home detention program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(1)The rules and regulations and administrative policy of the program shall be written and reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to or made available to any participant upon request.
(2)The correctional administrator, or the administrators designee, shall have the sole discretionary authority to permit program participation as an alternative to physical custody. All persons referred or recommended by the court to participate in the home detention program pursuant to subdivision (e) who are denied participation or all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(e)The court may recommend or refer a person to the correctional administrator for consideration for placement in the home detention program. The recommendation or referral of the court shall be given great weight in the determination of acceptance or denial. At the time of sentencing or at any time that the court deems it necessary, the court may restrict or deny the defendants participation in a home detention program.
(f)The correctional administrator may permit home detention program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance. Willful failure of the program participant to return to the place of home detention not later than the expiration of any period of time during which the participant is authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention are punishable as provided in Section 4532.
(g)As used in this section, correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(h)Notwithstanding any other law, the police department of a city where an office is located to which persons on an electronic monitoring program report may request the county correctional administrator to provide information concerning those persons. This information shall be limited to the name, address, date of birth, offense committed by the home detainee, and if available, at the discretion of the supervising agency and solely for investigatory purposes, current and historical GPS coordinates of the home detainee. A law enforcement department that does not have the primary responsibility to supervise participants in the electronic monitoring program that receives information pursuant to this subdivision shall not use the information to conduct enforcement actions based on administrative violations of the home detention program. A law enforcement department that has knowledge that the subject in a criminal investigation is a participant in an electronic monitoring program shall make reasonable efforts to notify the supervising agency prior to serving a warrant or taking any law enforcement action against a participant in an electronic monitoring program.
(i)It is the intent of the Legislature that home detention programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer a home detention program pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. No public or private agency or entity may operate a home detention program in any county without a written contract with that countys correctional administrator. However, this does not apply to the use of electronic monitoring by the Department of Corrections and Rehabilitation. No public or private agency or entity entering into a contract may itself employ any person who is in the home detention program.
(2)Program acceptance shall not circumvent the normal booking process for sentenced offenders. All home detention program participants shall be supervised.
(3)(A)All privately operated home detention programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards promulgated by state correctional agencies and bodies, including the Corrections Standards Authority, and all statutory provisions and mandates, state and county, as appropriate and applicable to the operation of home detention programs and the supervision of sentenced offenders in a home detention program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs, that may arise from, or be proximately caused by, acts or omissions of the contractor. The contract shall provide for annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated home detention programs shall comply with all appropriate, applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with statutory provisions and requirements or with the standards established by the contract and with the correctional administrator may be sufficient cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with whom there is a contract is not in compliance pursuant to this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(j)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(1)A current liability insurance policy.
(2)A current errors and omissions insurance policy.
(3)A surety bond.
(k)This section shall become operative on July 1, 2021.
SEC. 6.Section 1203.017 of the Penal Code is amended to read:1203.017.(a)Notwithstanding any other provision of law, upon determination by the correctional administrator that conditions in a jail facility warrant the necessity of releasing sentenced misdemeanor inmates prior to them serving the full amount of a given sentence due to lack of jail space, the board of supervisors of any county may authorize the correctional administrator to offer a program under which inmates committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program, may be required to participate in an involuntary home detention program, which shall include electronic monitoring, during their sentence in lieu of confinement in the county jail or other county correctional facility or program under the auspices of the probation officer. Under this program, one day of participation shall be in lieu of one day of incarceration. Participants in the program shall receive any sentence reduction credits that they would have received had they served their sentences in a county correctional facility.
(b)The board of supervisors may prescribe reasonable rules and regulations under which an involuntary home detention program may operate. The inmate shall be informed in writing that they shall comply with the rules and regulations of the program, including, but not limited to, the following rules:
(1)The participant shall remain within the interior premises of their residence during the hours designated by the correctional administrator.
(2)The participant shall admit any probation officer or other peace officer designated by the correctional administrator into their residence at any time for purposes of verifying the participants compliance with the conditions of their detention.
(3)The use of electronic monitoring may include global positioning system devices or other supervising devices for the purpose of helping to verify their compliance with the rules and regulations of the home detention program. The devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant which is to be used solely for the purposes of voice identification.
(4)The correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody to serve the balance of their sentence if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section.
(c)Whenever the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody to complete the remainder of the original sentence.
(d)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in a home detention program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(1)The rules and regulations and administrative policy of the program shall be written and reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to or made available to any participant upon request.
(2)The correctional administrator, or their designee, shall have the sole discretionary authority to permit program participation as an alternative to physical custody. All persons referred or recommended by the court to participate in the home detention program pursuant to subdivision (e) who are denied participation or all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(e)The court may recommend or refer a person to the correctional administrator for consideration for placement in the home detention program. The recommendation or referral of the court shall be given great weight in the determination of acceptance or denial. At the time of sentencing or at any time that the court deems it necessary, the court may restrict or deny the defendants participation in a home detention program.
(f)The correctional administrator may permit home detention program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance. Willful failure of the program participant to return to the place of home detention not later than the expiration of any period of time during which they are authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention are punishable as provided in Section 4532.
(g)As used in this section, correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(h)(1)Notwithstanding any other law, the correctional administrator shall provide the information specified in paragraph (2) regarding persons on involuntary home detention to the Corrections Standards Authority, and upon request, shall provide that information to the law enforcement agency of a city or unincorporated area where an office is located to which persons on involuntary home detention report.
(2)The information required by paragraph (1) shall consist of the following:
(A)The participants name, address, and date of birth.
(B)The offense committed by the participant.
(C)The period of time the participant will be placed on home detention.
(D)Whether the participant successfully completed the prescribed period of home detention or was returned to a county correctional facility, and if the person was returned to a county correctional facility, the reason for that return.
(E)The gender and ethnicity of the participant.
(3)Any information received by a police department pursuant to this subdivision shall be used only for the purpose of monitoring the impact of home detention programs on the community.
(i)It is the intent of the Legislature that home detention programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer a home detention program pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. No public or private agency or entity may operate a home detention program in any county without a written contract with that countys correctional administrator. However, this does not apply to the use of electronic monitoring by the Department of Corrections and Rehabilitation as established in Section 3004. No public or private agency or entity entering into a contract may itself employ any person who is in the home detention program.
(2)Program acceptance shall not circumvent the normal booking process for sentenced offenders. All home detention program participants shall be supervised.
(3)(A)All privately operated home detention programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards promulgated by state correctional agencies and bodies, including the Corrections Standards Authority, and all statutory provisions and mandates, state and county, as appropriate and applicable to the operation of home detention programs and the supervision of sentenced offenders in a home detention program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs, that may arise from, or be proximately caused by, acts or omissions of the contractor. The contract shall provide for annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated home detention programs shall comply with all appropriate, applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with statutory provisions and requirements or with the standards established by the contract and with the correctional administrator may be sufficient cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with whom there is a contract is not in compliance pursuant to this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(j)Inmates participating in this program shall not be charged fees or costs for the program.
(k)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(1)A current liability insurance policy.
(2)A current errors and omissions insurance policy.
(3)A surety bond.
SEC. 7.Section 1203.018 of the Penal Code is amended to read:1203.018.(a)Notwithstanding any other law, this section shall only apply to inmates being held in lieu of bail and on no other basis.
(b)Notwithstanding any other law, the board of supervisors of any county may authorize the correctional administrator, as defined in paragraph (1) of subdivision (j), to offer a program under which inmates being held in lieu of bail in a county jail or other county correctional facility may participate in an electronic monitoring program if the conditions specified in subdivision (c) are met.
(c)(1)In order to qualify for participation in an electronic monitoring program pursuant to this section, the inmate shall be an inmate with no holds or outstanding warrants to whom one of the following circumstances applies:
(A)The inmate has been held in custody for at least 30 calendar days from the date of arraignment pending disposition of only misdemeanor charges.
(B)The inmate has been held in custody pending disposition of charges for at least 60 calendar days from the date of arraignment.
(C)The inmate is appropriate for the program based on a determination by the correctional administrator that the inmates participation would be consistent with the public safety interests of the community.
(2)All participants shall be subject to discretionary review for eligibility and compliance by the correctional administrator consistent with this section.
(d)The board of supervisors, after consulting with the sheriff and district attorney, may prescribe reasonable rules and regulations under which an electronic monitoring program pursuant to this section may operate. As a condition of participation in the electronic monitoring program, the participant shall give consent in writing to participate and shall agree in writing to comply with the rules and regulations of the program, including, but not limited to, all of the following:
(1)The participant shall remain within the interior premises of the participants residence during the hours designated by the correctional administrator.
(2)The participant shall admit any probation officer or other peace officer designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
(3)The electronic monitoring may include global positioning system devices or other supervising devices for the purpose of helping to verify the participants compliance with the rules and regulations of the electronic monitoring program. The electronic devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant to be used solely for the purposes of voice identification.
(4)The correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section.
(5)A copy of the signed consent to participate and a copy of the agreement to comply with the rules and regulations shall be provided to the participant and a copy shall be retained by the correctional administrator.
(e)The rules and regulations and administrative policy of the program shall be reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to every participant.
(f)Whenever the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody.
(g)(1)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in an electronic monitoring program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(2)The correctional administrator, or the administrators designee, shall have discretionary authority consistent with this section to permit program participation as an alternative to physical custody. All persons approved by the correctional administrator to participate in the electronic monitoring program pursuant to subdivision (c) who are denied participation and all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(h)The correctional administrator may permit electronic monitoring program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance.
(i)Willful failure of the program participant to return to the place of home detention prior to the expiration of any period of time during which the participant is authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention is punishable pursuant to Section 4532.
(j)For purposes of this section, the following terms have the following meanings:
(1)Correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(2)Electronic monitoring program includes, but is not limited to, home detention programs, work furlough programs, and work release programs.
(k)Notwithstanding any other law, upon request of a local law enforcement agency with jurisdiction over the location where a participant in an electronic monitoring program is placed, the correctional administrator shall provide the following information regarding participants in the electronic monitoring program:
(1)The participants name, address, and date of birth.
(2)The offense or offenses alleged to have been committed by the participant.
(3)The period of time the participant will be placed on home detention.
(4)Whether the participant successfully completed the prescribed period of home detention or was returned to a county correctional facility, and if the person was returned to a county correctional facility, the reason for the return.
(5)The gender and ethnicity of the participant.
(l)Notwithstanding any other law, upon request of a local law enforcement agency with jurisdiction over the location where a participant in an electronic monitoring program is placed, the correctional administrator may, in the administrators discretion and solely for investigatory purposes, provide current and historical GPS coordinates, if available.
(m)A law enforcement agency that does not have the primary responsibility to supervise participants in the electronic monitoring program that receives information pursuant to subdivision (k) shall not use the information to conduct enforcement actions based on administrative violations of the home detention program. An agency that has knowledge that the subject in a criminal investigation is a participant in an electronic monitoring program shall make reasonable efforts to notify the supervising agency prior to serving a warrant or taking any law enforcement action against a participant in an electronic monitoring program.
(n)It is the intent of the Legislature that electronic monitoring programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer an electronic monitoring program as provided in this section pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. A public or private agency or entity shall not operate a home detention program pursuant to this section in any county without a written contract with that countys correctional administrator. A public or private agency or entity entering into a contract pursuant to this subdivision shall not itself employ any person who is in the electronic monitoring program.
(2)Program participants shall undergo the normal booking process for arrestees entering the jail. All electronic monitoring program participants shall be supervised.
(3)(A)All privately operated electronic monitoring programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract specified in subparagraph (A) shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards and all state and county laws applicable to the operation of electronic monitoring programs and the supervision of offenders in an electronic monitoring program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted to and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs that may arise from, or be proximately caused by, acts or omissions of the contractor.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that requires an annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(vi)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated electronic monitoring programs shall comply with all applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with state or county laws or with the standards established by the contract with the correctional administrator shall constitute cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with which there is a contract is not in compliance with this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(H)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(i)A current liability insurance policy.
(ii)A current errors and omissions insurance policy.
(iii)A surety bond.
(o)This section shall become operative on July 1, 2021.
SEC. 8.Section 1203.25 of the Penal Code is amended to read:1203.25.(a)All persons released by a court at or after the initial hearing and prior to a formal probation violation hearing pursuant to subdivision (a) of Section 1203.2 shall be released on their own recognizance unless the court finds, by clear and convincing evidence, that the particular circumstances of the case require the imposition of an order to provide reasonable protection to the public and reasonable assurance of the persons future appearance in court.
(1)The court shall make an individualized determination of the factors that do or do not indicate that the person would be a danger to the public if released pending a formal revocation hearing. Any finding of danger to the public must be based on clear and convincing evidence.
(2)The court shall not require the use of any algorithm-based risk assessment tool in setting conditions of release.
(3)The court shall impose the least restrictive conditions of release necessary to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(b)Reasonable conditions of release may include, but are not limited to, reporting telephonically to a probation officer, protective orders, a global positioning system (GPS) monitoring device or other electronic monitoring, an alcohol use detection device, or search and seizure by a probation officer or other peace officer. The person shall not be required to bear the expense of any conditions of release ordered by the court.
(c)(1)Bail shall not be imposed unless the court finds by clear and convincing evidence that other reasonable conditions of release are not adequate to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(2)Bail as used in this section is defined as cash bail. A bail bond or property bond is not bail. In determining the amount of bail, the court shall make an individualized determination based on the particular circumstances of the case, and it shall consider the persons ability to pay cash bail, not a bail bond or property bond. Bail shall be set at a level the person can reasonably afford.
(d)The court shall not deny release for a person on probation for misdemeanor conduct before the court holds a formal probation revocation hearing, unless the person fails to comply with an order of the court, including an order to appear in court in the underlying case, in which case subdivision (a) shall apply.
(e)The court shall not deny release for a person on probation for felony conduct before the court holds a formal probation revocation hearing unless the court finds by clear and convincing evidence that there are no means reasonably available to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(f)All findings required to be made by clear and convincing evidence under this section shall, based on all evidence presented, including, but not limited to, any probation report, be made orally on the record by the court. The court also shall set forth the reason in an order entered upon the minutes if requested by either party in any case in which the proceedings are not being reported by a court reporter.
(g)If a new charge is the basis for a probation violation, nothing in this section shall be construed to limit the courts authority to hold, release, limit release, or impose conditions of release for that charge as permitted by applicable law.
SEC. 9.Section 3.5 of this bill incorporates amendments to Section 1170 of the Penal Code proposed by both this bill and Assembly Bill 1104. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 1170 of the Penal Code, and (3) this bill is enacted after Assembly Bill 1104, in which case Section 3 of this bill shall not become operative.
This act shall be known, and may be cited, as the Prohibiting Rogue Officer Tricks and Ensuring Community Trust (PROTECT) Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)United States Immigration and Customs Enforcement (ICE) employees sometimes employ concerning tactics and strategies during home immigration enforcement operations.
(b)The concerning tactics and strategies include ICE employees commonly using a probation ruse, where they misrepresent themselves as probation officers or claim that they are conducting a probation check.
(c)Individuals who are on probation have no choice but to comply with a probation officers request because the terms of their probation require them to permit probation officers to access their homes and persons.
(d)Under existing California law, the terms and conditions of parole limit searches and seizures to be conducted by a probation or parole officer or other peace officer. California law is clear that ICE employees are not California peace officers.
(e)Under existing California law, ICE employees are likely not authorized to exploit probation because the existing definition of peace officer should apply to all probation sentences. Yet, ICE commonly employs probation ruses, targeting people on probation for immigration enforcement operations.
(f)ICEs use of a probation ruse undermines the trust and faith in Californias local law enforcement.
(g)Therefore, California must take necessary actions to eliminate any ambiguity under existing law and make it clear that ICE employees are not peace officers and cannot conduct probation searches and seizures.
SEC. 3.Section 1170 of the Penal Code is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice. When a sentence includes incarceration, this purpose is best served by terms that are proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.
(2)The Legislature further finds and declares that programs should be available for incarcerated persons, including, but not limited to, educational, rehabilitative, and restorative justice programs that are designed to promote behavior change and to prepare all eligible offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate all eligible offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to allow all eligible incarcerated persons the opportunity to enroll in programs that promote successful return to the community. The Department of Corrections and Rehabilitation is directed to establish a mission statement consistent with these principles.
(3)In any case in which the sentence prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison, or a term pursuant to subdivision (h), 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 they had committed their 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 sentence 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 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, except for a remaining portion of mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or the county correctional administrator. The court shall advise the defendant that they shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision and order the defendant to report to the parole or probation 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, postrelease community supervision, or mandatory supervision. The sentence shall be deemed a separate prior prison term or a sentence of imprisonment in a county jail under subdivision (h) for purposes of Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b)(1)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).
(2)The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, term and the facts underlying those circumstances have been stipulated to by the defendant, defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
(3)Notwithstanding paragraphs (1) and (2), the court may consider the defendants prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This paragraph does not apply to enhancements imposed on prior convictions.
(4)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, report or to present additional facts. 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.
(5)The court shall set forth on the record the facts and reasons for choosing the sentence imposed. 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.
(6)Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth, youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(7)Paragraph (6) does not preclude the court from imposing the lower term even if there is no evidence of those circumstances listed in paragraph (6) present.
(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 they may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d)(1)(A)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 been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.
(B)Notwithstanding subparagraph (A), this paragraph shall not apply to defendants sentenced to life without parole for an offense where it was pled and proved that the defendant tortured, as described in Section 206, their 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.
(2)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 the defendant 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 their remorse and work towards rehabilitation, and the defendants statement that one of the following is true:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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.
(C)The defendant committed the offense with at least one adult codefendant.
(D)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(3)If any of the information required in paragraph (2) 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.
(4)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, petition unless a continuance is granted for good cause.
(5)If the court finds by a preponderance of the evidence that one or more of the statements specified in subparagraphs (A) to (D), inclusive, of paragraph (2) is true, the court shall recall the sentence and commitment previously ordered and hold a hearing 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.
(6)The factors that the court may consider when determining whether to resentence the defendant to a term of imprisonment with the possibility of parole include, but are not limited to, the following:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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 defendant was sentenced to life without the possibility of parole.
(C)The defendant committed the offense with at least one adult codefendant.
(D)Prior to the offense for which the defendant was sentenced to life without the possibility of parole, the defendant had insufficient adult support or supervision and had suffered from psychological or physical trauma, trauma or significant stress.
(E)The defendant suffers from cognitive limitations due to mental illness, developmental disabilities, or other factors that did not constitute a defense, defense but influenced the defendants involvement in the offense.
(F)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(G)The defendant has maintained family ties or connections with others through letter writing, calls, or visits, visits or has eliminated contact with individuals outside of prison who are currently involved with crime.
(H)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.
(7)The court shall have the discretion 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 paragraph (6). 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.
(8)Notwithstanding paragraph (7), the court may also resentence the defendant to a term that is less than the initial sentence if any of the following were a contributing factor in the commission of the alleged offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth, youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(9)Paragraph (8) does not prohibit the court from resentencing the defendant to a term that is less than the initial sentence sentence, even if none of the circumstances listed in paragraph (8) are present.
(10)If the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole, 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 the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole 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.
(11)In addition to the criteria in paragraph (6) (6), 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.
(12)This subdivision shall have retroactive application.
(13)Nothing in this paragraph is intended to diminish or abrogate any rights or remedies otherwise available to the defendant.
(e)Notwithstanding subdivision (a), the court may recall and resentence an incarcerated person pursuant to the compassionate release program set forth in Section 1172.2.
(f)Notwithstanding any other provision of this section, for purposes of paragraph (3) of subdivision (h), any an allegation that a defendant is eligible for state prison due to a prior or current conviction, sentence enhancement, or because the defendant is required to register as a sex offender shall not be subject to dismissal pursuant to Section 1385.
(g)A sentence to the state prison for a determinate term for which only one term is specified, 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 the 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, probation for the remaining unserved portion of the sentence imposed by the court. The period of supervision shall be mandatory, mandatory and may not be earlier terminated 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 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 that is suspended because a person has absconded shall not be credited toward the period of supervision. A defendant who is subject to search or seizure as part of the terms and conditions of mandatory supervision, is subject to search or seizure only by a probation officer or other peace officer.
(6)When the court is imposing a judgment pursuant to this subdivision concurrent or consecutive to a judgment or judgments previously imposed pursuant to this subdivision in another county or counties, the court rendering the second or other subsequent judgment shall determine the county or counties of incarceration and supervision of the defendant.
(7)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.
(8)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.
(9)Notwithstanding the separate punishment for any enhancement, any enhancement shall be punishable in a county jail or state prison as required by the underlying offense and not as would be required by the enhancement. The intent of the Legislature in enacting this paragraph is to abrogate the holding in People v. Vega (2014) 222 Cal.App.4th 1374, that if an enhancement specifies service of sentence in state prison, the entire sentence is served in state prison, even if the punishment for the underlying offense is a term of imprisonment in the county jail.
SEC. 3.5.Section 1170 of the Penal Code is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice. When a sentence includes incarceration, this purpose is the deprivation of liberty satisfies the punishment purpose of sentencing. The purpose of incarceration is rehabilitation and successful community reintegration achieved through education, treatment, and active participation in rehabilitative and restorative justice programs. This purpose is best served by terms that are proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders people incarcerated for committing the same offense under similar circumstances.
(2)The Legislature further finds and declares that programs should be available for incarcerated persons, including, but not limited to, educational, rehabilitative, and restorative justice programs that are designed to promote behavior behavioral change and to prepare all eligible offenders incarcerated persons for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate all eligible offenders. incarcerated persons. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to allow all eligible incarcerated persons the opportunity to enroll in programs that promote successful return to the community. The Legislature finds and declares that community-based organizations are an integral part of achieving the states objective of ensuring that all people incarcerated in a state prison have access to rehabilitative programs. The Department of Corrections and Rehabilitation is directed to establish maintain a mission statement consistent with these principles. principles and shall facilitate access for community-based programs in order to meaningfully effectuate the principles set forth in this section.
(3)In any case in which the sentence prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison, or a term pursuant to subdivision (h), 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 they had committed their 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 sentence 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 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, except for a remaining portion of mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or the county correctional administrator. The court shall advise the defendant that they shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision and order the defendant to report to the parole or probation 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, postrelease community supervision, or mandatory supervision. The sentence shall be deemed a separate prior prison term or a sentence of imprisonment in a county jail under subdivision (h) for purposes of Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b)(1)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).
(2)The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, term and the facts underlying those circumstances have been stipulated to by the defendant, defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
(3)Notwithstanding paragraphs (1) and (2), the court may consider the defendants prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This paragraph does not apply to enhancements imposed on prior convictions.
(4)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, report or to present additional facts. 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.
(5)The court shall set forth on the record the facts and reasons for choosing the sentence imposed. 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.
(6)Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth, youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(7)Paragraph (6) does not preclude the court from imposing the lower term even if there is no evidence of those circumstances listed in paragraph (6) present.
(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 they may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d)(1)(A)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 been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.
(B)Notwithstanding subparagraph (A), this paragraph shall not apply to defendants sentenced to life without parole for an offense where it was pled and proved that the defendant tortured, as described in Section 206, their 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.
(2)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 the defendant 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 their remorse and work towards rehabilitation, and the defendants statement that one of the following is true:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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.
(C)The defendant committed the offense with at least one adult codefendant.
(D)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(3)If any of the information required in paragraph (2) 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.
(4)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, petition unless a continuance is granted for good cause.
(5)If the court finds by a preponderance of the evidence that one or more of the statements specified in subparagraphs (A) to (D), inclusive, of paragraph (2) is true, the court shall recall the sentence and commitment previously ordered and hold a hearing 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.
(6)The factors that the court may consider when determining whether to resentence the defendant to a term of imprisonment with the possibility of parole include, but are not limited to, the following:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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 defendant was sentenced to life without the possibility of parole.
(C)The defendant committed the offense with at least one adult codefendant.
(D)Prior to the offense for which the defendant was sentenced to life without the possibility of parole, the defendant had insufficient adult support or supervision and had suffered from psychological or physical trauma, trauma or significant stress.
(E)The defendant suffers from cognitive limitations due to mental illness, developmental disabilities, or other factors that did not constitute a defense, defense but influenced the defendants involvement in the offense.
(F)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(G)The defendant has maintained family ties or connections with others through letter writing, calls, or visits, visits or has eliminated contact with individuals outside of prison who are currently involved with crime.
(H)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.
(7)The court shall have the discretion 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 paragraph (6). 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.
(8)Notwithstanding paragraph (7), the court may also resentence the defendant to a term that is less than the initial sentence if any of the following were a contributing factor in the commission of the alleged offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth, youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(9)Paragraph (8) does not prohibit the court from resentencing the defendant to a term that is less than the initial sentence sentence, even if none of the circumstances listed in paragraph (8) are present.
(10)If the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole, 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 the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole 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.
(11)In addition to the criteria in paragraph (6) (6), 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.
(12)This subdivision shall have retroactive application.
(13)Nothing in this paragraph is intended to diminish or abrogate any rights or remedies otherwise available to the defendant.
(e)Notwithstanding subdivision (a), the court may recall and resentence an incarcerated person pursuant to the compassionate release program set forth in Section 1172.2.
(f)Notwithstanding any other provision of this section, for purposes of paragraph (3) of subdivision (h), any an allegation that a defendant is eligible for state prison due to a prior or current conviction, sentence enhancement, or because the defendant is required to register as a sex offender shall not be subject to dismissal pursuant to Section 1385.
(g)A sentence to the state prison for a determinate term for which only one term is specified, 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 the 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, probation for the remaining unserved portion of the sentence imposed by the court. The period of supervision shall be mandatory, mandatory and may not be earlier terminated 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 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 that is suspended because a person has absconded shall not be credited toward the period of supervision. A defendant who is subject to search or seizure as part of the terms and conditions of mandatory supervision, is subject to search or seizure only by a probation officer or other peace officer.
(6)When the court is imposing a judgment pursuant to this subdivision concurrent or consecutive to a judgment or judgments previously imposed pursuant to this subdivision in another county or counties, the court rendering the second or other subsequent judgment shall determine the county or counties of incarceration and supervision of the defendant.
(7)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.
(8)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.
(9)Notwithstanding the separate punishment for any enhancement, any enhancement shall be punishable in a county jail or state prison as required by the underlying offense and not as would be required by the enhancement. The intent of the Legislature in enacting this paragraph is to abrogate the holding in People v. Vega (2014) 222 Cal.App.4th 1374, that if an enhancement specifies service of sentence in state prison, the entire sentence is served in state prison, even if the punishment for the underlying offense is a term of imprisonment in the county jail.
SEC. 4.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 containing findings and recommendations, including 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 the 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 that person 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 officers 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 recommendations for 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 that person 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 the person 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 in which 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 the persons 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 that person has been convicted.
(3)Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which that person 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, 287, 288, or 288.5, or of former Section 288a, 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 that person 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 the persons arrest for the previous crime, the person 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 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 in which the determination is applicable. The judge, in their 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 containing 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 the 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).
(j)In any court in which 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 defendants ability to pay restitution, in which case the county financial evaluation officer shall report the findings regarding restitution and other court-related costs to the probation officer on the question of the defendants 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 defendants 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, 2028, 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.
(m)A person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer.
SEC. 5.Section 1203.016 of the Penal Code is amended to read:1203.016.(a)Notwithstanding any other law, the board of supervisors of any county may authorize the correctional administrator, as defined in subdivision (g), to offer a program under which inmates committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program, may voluntarily participate or involuntarily be placed in a home detention program during their sentence in lieu of confinement in a county jail or other county correctional facility or program under the auspices of the probation officer.
(b)The board of supervisors, in consultation with the correctional administrator, may prescribe reasonable rules and regulations under which a home detention program may operate. As a condition of participation in the home detention program, the inmate shall give consent in writing to participate in the home detention program and shall in writing agree to comply or, for involuntary participation, the inmate shall be informed in writing that the inmate shall comply, with the rules and regulations of the program, including, but not limited to, the following rules:
(1)The participant shall remain within the interior premises of the participants residence during the hours designated by the correctional administrator.
(2)The participant shall admit any probation officer or other peace officer designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
(3)The participant shall agree to the use of electronic monitoring, which may include Global Positioning System devices or other supervising devices for the purpose of helping to verify compliance with the rules and regulations of the home detention program. The devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant which is to be used solely for the purposes of voice identification.
(4)The participant shall agree that the correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody to serve the balance of the persons sentence if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section. A copy of the agreement shall be delivered to the participant and a copy retained by the correctional administrator.
(c)If the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody to complete the remainder of the original sentence.
(d)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in a home detention program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(1)The rules and regulations and administrative policy of the program shall be written and reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to or made available to any participant upon request.
(2)The correctional administrator, or the administrators designee, shall have the sole discretionary authority to permit program participation as an alternative to physical custody. All persons referred or recommended by the court to participate in the home detention program pursuant to subdivision (e) who are denied participation or all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(e)The court may recommend or refer a person to the correctional administrator for consideration for placement in the home detention program. The recommendation or referral of the court shall be given great weight in the determination of acceptance or denial. At the time of sentencing or at any time that the court deems it necessary, the court may restrict or deny the defendants participation in a home detention program.
(f)The correctional administrator may permit home detention program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance. Willful failure of the program participant to return to the place of home detention not later than the expiration of any period of time during which the participant is authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention are punishable as provided in Section 4532.
(g)As used in this section, correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(h)Notwithstanding any other law, the police department of a city where an office is located to which persons on an electronic monitoring program report may request the county correctional administrator to provide information concerning those persons. This information shall be limited to the name, address, date of birth, offense committed by the home detainee, and if available, at the discretion of the supervising agency and solely for investigatory purposes, current and historical GPS coordinates of the home detainee. A law enforcement department that does not have the primary responsibility to supervise participants in the electronic monitoring program that receives information pursuant to this subdivision shall not use the information to conduct enforcement actions based on administrative violations of the home detention program. A law enforcement department that has knowledge that the subject in a criminal investigation is a participant in an electronic monitoring program shall make reasonable efforts to notify the supervising agency prior to serving a warrant or taking any law enforcement action against a participant in an electronic monitoring program.
(i)It is the intent of the Legislature that home detention programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer a home detention program pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. No public or private agency or entity may operate a home detention program in any county without a written contract with that countys correctional administrator. However, this does not apply to the use of electronic monitoring by the Department of Corrections and Rehabilitation. No public or private agency or entity entering into a contract may itself employ any person who is in the home detention program.
(2)Program acceptance shall not circumvent the normal booking process for sentenced offenders. All home detention program participants shall be supervised.
(3)(A)All privately operated home detention programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards promulgated by state correctional agencies and bodies, including the Corrections Standards Authority, and all statutory provisions and mandates, state and county, as appropriate and applicable to the operation of home detention programs and the supervision of sentenced offenders in a home detention program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs, that may arise from, or be proximately caused by, acts or omissions of the contractor. The contract shall provide for annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated home detention programs shall comply with all appropriate, applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with statutory provisions and requirements or with the standards established by the contract and with the correctional administrator may be sufficient cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with whom there is a contract is not in compliance pursuant to this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(j)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(1)A current liability insurance policy.
(2)A current errors and omissions insurance policy.
(3)A surety bond.
(k)This section shall become operative on July 1, 2021.
SEC. 6.Section 1203.017 of the Penal Code is amended to read:1203.017.(a)Notwithstanding any other provision of law, upon determination by the correctional administrator that conditions in a jail facility warrant the necessity of releasing sentenced misdemeanor inmates prior to them serving the full amount of a given sentence due to lack of jail space, the board of supervisors of any county may authorize the correctional administrator to offer a program under which inmates committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program, may be required to participate in an involuntary home detention program, which shall include electronic monitoring, during their sentence in lieu of confinement in the county jail or other county correctional facility or program under the auspices of the probation officer. Under this program, one day of participation shall be in lieu of one day of incarceration. Participants in the program shall receive any sentence reduction credits that they would have received had they served their sentences in a county correctional facility.
(b)The board of supervisors may prescribe reasonable rules and regulations under which an involuntary home detention program may operate. The inmate shall be informed in writing that they shall comply with the rules and regulations of the program, including, but not limited to, the following rules:
(1)The participant shall remain within the interior premises of their residence during the hours designated by the correctional administrator.
(2)The participant shall admit any probation officer or other peace officer designated by the correctional administrator into their residence at any time for purposes of verifying the participants compliance with the conditions of their detention.
(3)The use of electronic monitoring may include global positioning system devices or other supervising devices for the purpose of helping to verify their compliance with the rules and regulations of the home detention program. The devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant which is to be used solely for the purposes of voice identification.
(4)The correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody to serve the balance of their sentence if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section.
(c)Whenever the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody to complete the remainder of the original sentence.
(d)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in a home detention program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(1)The rules and regulations and administrative policy of the program shall be written and reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to or made available to any participant upon request.
(2)The correctional administrator, or their designee, shall have the sole discretionary authority to permit program participation as an alternative to physical custody. All persons referred or recommended by the court to participate in the home detention program pursuant to subdivision (e) who are denied participation or all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(e)The court may recommend or refer a person to the correctional administrator for consideration for placement in the home detention program. The recommendation or referral of the court shall be given great weight in the determination of acceptance or denial. At the time of sentencing or at any time that the court deems it necessary, the court may restrict or deny the defendants participation in a home detention program.
(f)The correctional administrator may permit home detention program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance. Willful failure of the program participant to return to the place of home detention not later than the expiration of any period of time during which they are authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention are punishable as provided in Section 4532.
(g)As used in this section, correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(h)(1)Notwithstanding any other law, the correctional administrator shall provide the information specified in paragraph (2) regarding persons on involuntary home detention to the Corrections Standards Authority, and upon request, shall provide that information to the law enforcement agency of a city or unincorporated area where an office is located to which persons on involuntary home detention report.
(2)The information required by paragraph (1) shall consist of the following:
(A)The participants name, address, and date of birth.
(B)The offense committed by the participant.
(C)The period of time the participant will be placed on home detention.
(D)Whether the participant successfully completed the prescribed period of home detention or was returned to a county correctional facility, and if the person was returned to a county correctional facility, the reason for that return.
(E)The gender and ethnicity of the participant.
(3)Any information received by a police department pursuant to this subdivision shall be used only for the purpose of monitoring the impact of home detention programs on the community.
(i)It is the intent of the Legislature that home detention programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer a home detention program pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. No public or private agency or entity may operate a home detention program in any county without a written contract with that countys correctional administrator. However, this does not apply to the use of electronic monitoring by the Department of Corrections and Rehabilitation as established in Section 3004. No public or private agency or entity entering into a contract may itself employ any person who is in the home detention program.
(2)Program acceptance shall not circumvent the normal booking process for sentenced offenders. All home detention program participants shall be supervised.
(3)(A)All privately operated home detention programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards promulgated by state correctional agencies and bodies, including the Corrections Standards Authority, and all statutory provisions and mandates, state and county, as appropriate and applicable to the operation of home detention programs and the supervision of sentenced offenders in a home detention program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs, that may arise from, or be proximately caused by, acts or omissions of the contractor. The contract shall provide for annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated home detention programs shall comply with all appropriate, applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with statutory provisions and requirements or with the standards established by the contract and with the correctional administrator may be sufficient cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with whom there is a contract is not in compliance pursuant to this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(j)Inmates participating in this program shall not be charged fees or costs for the program.
(k)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(1)A current liability insurance policy.
(2)A current errors and omissions insurance policy.
(3)A surety bond.
SEC. 7.Section 1203.018 of the Penal Code is amended to read:1203.018.(a)Notwithstanding any other law, this section shall only apply to inmates being held in lieu of bail and on no other basis.
(b)Notwithstanding any other law, the board of supervisors of any county may authorize the correctional administrator, as defined in paragraph (1) of subdivision (j), to offer a program under which inmates being held in lieu of bail in a county jail or other county correctional facility may participate in an electronic monitoring program if the conditions specified in subdivision (c) are met.
(c)(1)In order to qualify for participation in an electronic monitoring program pursuant to this section, the inmate shall be an inmate with no holds or outstanding warrants to whom one of the following circumstances applies:
(A)The inmate has been held in custody for at least 30 calendar days from the date of arraignment pending disposition of only misdemeanor charges.
(B)The inmate has been held in custody pending disposition of charges for at least 60 calendar days from the date of arraignment.
(C)The inmate is appropriate for the program based on a determination by the correctional administrator that the inmates participation would be consistent with the public safety interests of the community.
(2)All participants shall be subject to discretionary review for eligibility and compliance by the correctional administrator consistent with this section.
(d)The board of supervisors, after consulting with the sheriff and district attorney, may prescribe reasonable rules and regulations under which an electronic monitoring program pursuant to this section may operate. As a condition of participation in the electronic monitoring program, the participant shall give consent in writing to participate and shall agree in writing to comply with the rules and regulations of the program, including, but not limited to, all of the following:
(1)The participant shall remain within the interior premises of the participants residence during the hours designated by the correctional administrator.
(2)The participant shall admit any probation officer or other peace officer designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
(3)The electronic monitoring may include global positioning system devices or other supervising devices for the purpose of helping to verify the participants compliance with the rules and regulations of the electronic monitoring program. The electronic devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant to be used solely for the purposes of voice identification.
(4)The correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section.
(5)A copy of the signed consent to participate and a copy of the agreement to comply with the rules and regulations shall be provided to the participant and a copy shall be retained by the correctional administrator.
(e)The rules and regulations and administrative policy of the program shall be reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to every participant.
(f)Whenever the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody.
(g)(1)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in an electronic monitoring program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(2)The correctional administrator, or the administrators designee, shall have discretionary authority consistent with this section to permit program participation as an alternative to physical custody. All persons approved by the correctional administrator to participate in the electronic monitoring program pursuant to subdivision (c) who are denied participation and all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(h)The correctional administrator may permit electronic monitoring program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance.
(i)Willful failure of the program participant to return to the place of home detention prior to the expiration of any period of time during which the participant is authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention is punishable pursuant to Section 4532.
(j)For purposes of this section, the following terms have the following meanings:
(1)Correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(2)Electronic monitoring program includes, but is not limited to, home detention programs, work furlough programs, and work release programs.
(k)Notwithstanding any other law, upon request of a local law enforcement agency with jurisdiction over the location where a participant in an electronic monitoring program is placed, the correctional administrator shall provide the following information regarding participants in the electronic monitoring program:
(1)The participants name, address, and date of birth.
(2)The offense or offenses alleged to have been committed by the participant.
(3)The period of time the participant will be placed on home detention.
(4)Whether the participant successfully completed the prescribed period of home detention or was returned to a county correctional facility, and if the person was returned to a county correctional facility, the reason for the return.
(5)The gender and ethnicity of the participant.
(l)Notwithstanding any other law, upon request of a local law enforcement agency with jurisdiction over the location where a participant in an electronic monitoring program is placed, the correctional administrator may, in the administrators discretion and solely for investigatory purposes, provide current and historical GPS coordinates, if available.
(m)A law enforcement agency that does not have the primary responsibility to supervise participants in the electronic monitoring program that receives information pursuant to subdivision (k) shall not use the information to conduct enforcement actions based on administrative violations of the home detention program. An agency that has knowledge that the subject in a criminal investigation is a participant in an electronic monitoring program shall make reasonable efforts to notify the supervising agency prior to serving a warrant or taking any law enforcement action against a participant in an electronic monitoring program.
(n)It is the intent of the Legislature that electronic monitoring programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer an electronic monitoring program as provided in this section pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. A public or private agency or entity shall not operate a home detention program pursuant to this section in any county without a written contract with that countys correctional administrator. A public or private agency or entity entering into a contract pursuant to this subdivision shall not itself employ any person who is in the electronic monitoring program.
(2)Program participants shall undergo the normal booking process for arrestees entering the jail. All electronic monitoring program participants shall be supervised.
(3)(A)All privately operated electronic monitoring programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract specified in subparagraph (A) shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards and all state and county laws applicable to the operation of electronic monitoring programs and the supervision of offenders in an electronic monitoring program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted to and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs that may arise from, or be proximately caused by, acts or omissions of the contractor.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that requires an annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(vi)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated electronic monitoring programs shall comply with all applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with state or county laws or with the standards established by the contract with the correctional administrator shall constitute cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with which there is a contract is not in compliance with this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(H)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(i)A current liability insurance policy.
(ii)A current errors and omissions insurance policy.
(iii)A surety bond.
(o)This section shall become operative on July 1, 2021.
SEC. 8.Section 1203.25 of the Penal Code is amended to read:1203.25.(a)All persons released by a court at or after the initial hearing and prior to a formal probation violation hearing pursuant to subdivision (a) of Section 1203.2 shall be released on their own recognizance unless the court finds, by clear and convincing evidence, that the particular circumstances of the case require the imposition of an order to provide reasonable protection to the public and reasonable assurance of the persons future appearance in court.
(1)The court shall make an individualized determination of the factors that do or do not indicate that the person would be a danger to the public if released pending a formal revocation hearing. Any finding of danger to the public must be based on clear and convincing evidence.
(2)The court shall not require the use of any algorithm-based risk assessment tool in setting conditions of release.
(3)The court shall impose the least restrictive conditions of release necessary to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(b)Reasonable conditions of release may include, but are not limited to, reporting telephonically to a probation officer, protective orders, a global positioning system (GPS) monitoring device or other electronic monitoring, an alcohol use detection device, or search and seizure by a probation officer or other peace officer. The person shall not be required to bear the expense of any conditions of release ordered by the court.
(c)(1)Bail shall not be imposed unless the court finds by clear and convincing evidence that other reasonable conditions of release are not adequate to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(2)Bail as used in this section is defined as cash bail. A bail bond or property bond is not bail. In determining the amount of bail, the court shall make an individualized determination based on the particular circumstances of the case, and it shall consider the persons ability to pay cash bail, not a bail bond or property bond. Bail shall be set at a level the person can reasonably afford.
(d)The court shall not deny release for a person on probation for misdemeanor conduct before the court holds a formal probation revocation hearing, unless the person fails to comply with an order of the court, including an order to appear in court in the underlying case, in which case subdivision (a) shall apply.
(e)The court shall not deny release for a person on probation for felony conduct before the court holds a formal probation revocation hearing unless the court finds by clear and convincing evidence that there are no means reasonably available to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(f)All findings required to be made by clear and convincing evidence under this section shall, based on all evidence presented, including, but not limited to, any probation report, be made orally on the record by the court. The court also shall set forth the reason in an order entered upon the minutes if requested by either party in any case in which the proceedings are not being reported by a court reporter.
(g)If a new charge is the basis for a probation violation, nothing in this section shall be construed to limit the courts authority to hold, release, limit release, or impose conditions of release for that charge as permitted by applicable law.
SEC. 9.Section 3.5 of this bill incorporates amendments to Section 1170 of the Penal Code proposed by both this bill and Assembly Bill 1104. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 1170 of the Penal Code, and (3) this bill is enacted after Assembly Bill 1104, in which case Section 3 of this bill shall not become operative.
This act shall be known, and may be cited, as the Prohibiting Rogue Officer Tricks and Ensuring Community Trust (PROTECT) Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)United States Immigration and Customs Enforcement (ICE) employees sometimes employ concerning tactics and strategies during home immigration enforcement operations.
(b)The concerning tactics and strategies include ICE employees commonly using a probation ruse, where they misrepresent themselves as probation officers or claim that they are conducting a probation check.
(c)Individuals who are on probation have no choice but to comply with a probation officers request because the terms of their probation require them to permit probation officers to access their homes and persons.
(d)Under existing California law, the terms and conditions of parole limit searches and seizures to be conducted by a probation or parole officer or other peace officer. California law is clear that ICE employees are not California peace officers.
(e)Under existing California law, ICE employees are likely not authorized to exploit probation because the existing definition of peace officer should apply to all probation sentences. Yet, ICE commonly employs probation ruses, targeting people on probation for immigration enforcement operations.
(f)ICEs use of a probation ruse undermines the trust and faith in Californias local law enforcement.
(g)Therefore, California must take necessary actions to eliminate any ambiguity under existing law and make it clear that ICE employees are not peace officers and cannot conduct probation searches and seizures.
SEC. 3.Section 1170 of the Penal Code is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice. When a sentence includes incarceration, this purpose is best served by terms that are proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.
(2)The Legislature further finds and declares that programs should be available for incarcerated persons, including, but not limited to, educational, rehabilitative, and restorative justice programs that are designed to promote behavior change and to prepare all eligible offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate all eligible offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to allow all eligible incarcerated persons the opportunity to enroll in programs that promote successful return to the community. The Department of Corrections and Rehabilitation is directed to establish a mission statement consistent with these principles.
(3)In any case in which the sentence prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison, or a term pursuant to subdivision (h), 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 they had committed their 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 sentence 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 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, except for a remaining portion of mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or the county correctional administrator. The court shall advise the defendant that they shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision and order the defendant to report to the parole or probation 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, postrelease community supervision, or mandatory supervision. The sentence shall be deemed a separate prior prison term or a sentence of imprisonment in a county jail under subdivision (h) for purposes of Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b)(1)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).
(2)The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
(3)Notwithstanding paragraphs (1) and (2), the court may consider the defendants prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This paragraph does not apply to enhancements imposed on prior convictions.
(4)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. 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.
(5)The court shall set forth on the record the facts and reasons for choosing the sentence imposed. 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.
(6)Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(7)Paragraph (6) does not preclude the court from imposing the lower term even if there is no evidence of those circumstances listed in paragraph (6) present.
(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 they may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d)(1)(A)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 been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.
(B)Notwithstanding subparagraph (A), this paragraph shall not apply to defendants sentenced to life without parole for an offense where it was pled and proved that the defendant tortured, as described in Section 206, their 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.
(2)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 the defendant 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 their remorse and work towards rehabilitation, and the defendants statement that one of the following is true:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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.
(C)The defendant committed the offense with at least one adult codefendant.
(D)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(3)If any of the information required in paragraph (2) 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.
(4)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.
(5)If the court finds by a preponderance of the evidence that one or more of the statements specified in subparagraphs (A) to (D), inclusive, of paragraph (2) is true, the court shall recall the sentence and commitment previously ordered and hold a hearing 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.
(6)The factors that the court may consider when determining whether to resentence the defendant to a term of imprisonment with the possibility of parole include, but are not limited to, the following:
(A)The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B)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 defendant was sentenced to life without the possibility of parole.
(C)The defendant committed the offense with at least one adult codefendant.
(D)Prior to the offense for which the defendant was sentenced to life without the possibility of parole, the defendant had insufficient adult support or supervision and had suffered from psychological or physical trauma, or significant stress.
(E)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.
(F)The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(G)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.
(H)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.
(7)The court shall have the discretion 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 paragraph (6). 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.
(8)Notwithstanding paragraph (7), the court may also resentence the defendant to a term that is less than the initial sentence if any of the following were a contributing factor in the commission of the alleged offense:
(A)The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B)The person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C)Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(9)Paragraph (8) does not prohibit the court from resentencing the defendant to a term that is less than the initial sentence even if none of the circumstances listed in paragraph (8) are present.
(10)If the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole, 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 the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole 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.
(11)In addition to the criteria in paragraph (6) 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.
(12)This subdivision shall have retroactive application.
(13)Nothing in this paragraph is intended to diminish or abrogate any rights or remedies otherwise available to the defendant.
(e)Notwithstanding subdivision (a), the court may recall and resentence an incarcerated person pursuant to the compassionate release program set forth in Section 1172.2.
(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 the defendant is required to register as a sex offender shall not be subject to dismissal pursuant to Section 1385.
(g)A sentence to the 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 the 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 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. A defendant who is subject to search or seizure as part of the terms and conditions of mandatory supervision, is subject to search or seizure only by a probation officer or other peace officer.
(6)When the court is imposing a judgment pursuant to this subdivision concurrent or consecutive to a judgment or judgments previously imposed pursuant to this subdivision in another county or counties, the court rendering the second or other subsequent judgment shall determine the county or counties of incarceration and supervision of the defendant.
(7)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.
(8)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.
(9)Notwithstanding the separate punishment for any enhancement, any enhancement shall be punishable in county jail or state prison as required by the underlying offense and not as would be required by the enhancement. The intent of the Legislature in enacting this paragraph is to abrogate the holding in People v. Vega (2014) 222 Cal.App.4th 1374, that if an enhancement specifies service of sentence in state prison, the entire sentence is served in state prison, even if the punishment for the underlying offense is a term of imprisonment in the county jail.
SEC. 3.SEC. 4.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 containing findings and recommendations, including 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 the 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 that person 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 officers 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 recommendations for 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 that person 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 the person 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 in which 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 the persons 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 that person has been convicted.
(3)Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which that person 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, 287, 288, or 288.5, or of former Section 288a, 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 that person 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 the persons arrest for the previous crime, the person 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 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 in which the determination is applicable. The judge, in their 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 containing 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 the 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).
(j)In any court in which 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 defendants ability to pay restitution, in which case the county financial evaluation officer shall report the findings regarding restitution and other court-related costs to the probation officer on the question of the defendants 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 defendants 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, 2028, 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.
(m)A person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer.
SEC. 4.SEC. 5.Section 1203.016 of the Penal Code is amended to read:1203.016.(a)Notwithstanding any other law, the board of supervisors of any county may authorize the correctional administrator, as defined in subdivision (g), to offer a program under which inmates committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program, may voluntarily participate or involuntarily be placed in a home detention program during their sentence in lieu of confinement in a county jail or other county correctional facility or program under the auspices of the probation officer.
(b)The board of supervisors, in consultation with the correctional administrator, may prescribe reasonable rules and regulations under which a home detention program may operate. As a condition of participation in the home detention program, the inmate shall give consent in writing to participate in the home detention program and shall in writing agree to comply or, for involuntary participation, the inmate shall be informed in writing that the inmate shall comply, with the rules and regulations of the program, including, but not limited to, the following rules:
(1)The participant shall remain within the interior premises of the participants residence during the hours designated by the correctional administrator.
(2)The participant shall admit any probation officer or other peace officer designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
(3)The participant shall agree to the use of electronic monitoring, which may include Global Positioning System devices or other supervising devices for the purpose of helping to verify compliance with the rules and regulations of the home detention program. The devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant which is to be used solely for the purposes of voice identification.
(4)The participant shall agree that the correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody to serve the balance of the persons sentence if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section. A copy of the agreement shall be delivered to the participant and a copy retained by the correctional administrator.
(c)If the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody to complete the remainder of the original sentence.
(d)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in a home detention program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(1)The rules and regulations and administrative policy of the program shall be written and reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to or made available to any participant upon request.
(2)The correctional administrator, or the administrators designee, shall have the sole discretionary authority to permit program participation as an alternative to physical custody. All persons referred or recommended by the court to participate in the home detention program pursuant to subdivision (e) who are denied participation or all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(e)The court may recommend or refer a person to the correctional administrator for consideration for placement in the home detention program. The recommendation or referral of the court shall be given great weight in the determination of acceptance or denial. At the time of sentencing or at any time that the court deems it necessary, the court may restrict or deny the defendants participation in a home detention program.
(f)The correctional administrator may permit home detention program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance. Willful failure of the program participant to return to the place of home detention not later than the expiration of any period of time during which the participant is authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention are punishable as provided in Section 4532.
(g)As used in this section, correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(h)Notwithstanding any other law, the police department of a city where an office is located to which persons on an electronic monitoring program report may request the county correctional administrator to provide information concerning those persons. This information shall be limited to the name, address, date of birth, offense committed by the home detainee, and if available, at the discretion of the supervising agency and solely for investigatory purposes, current and historical GPS coordinates of the home detainee. A law enforcement department that does not have the primary responsibility to supervise participants in the electronic monitoring program that receives information pursuant to this subdivision shall not use the information to conduct enforcement actions based on administrative violations of the home detention program. A law enforcement department that has knowledge that the subject in a criminal investigation is a participant in an electronic monitoring program shall make reasonable efforts to notify the supervising agency prior to serving a warrant or taking any law enforcement action against a participant in an electronic monitoring program.
(i)It is the intent of the Legislature that home detention programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer a home detention program pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. No public or private agency or entity may operate a home detention program in any county without a written contract with that countys correctional administrator. However, this does not apply to the use of electronic monitoring by the Department of Corrections and Rehabilitation. No public or private agency or entity entering into a contract may itself employ any person who is in the home detention program.
(2)Program acceptance shall not circumvent the normal booking process for sentenced offenders. All home detention program participants shall be supervised.
(3)(A)All privately operated home detention programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards promulgated by state correctional agencies and bodies, including the Corrections Standards Authority, and all statutory provisions and mandates, state and county, as appropriate and applicable to the operation of home detention programs and the supervision of sentenced offenders in a home detention program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs, that may arise from, or be proximately caused by, acts or omissions of the contractor. The contract shall provide for annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated home detention programs shall comply with all appropriate, applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with statutory provisions and requirements or with the standards established by the contract and with the correctional administrator may be sufficient cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with whom there is a contract is not in compliance pursuant to this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(j)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(1)A current liability insurance policy.
(2)A current errors and omissions insurance policy.
(3)A surety bond.
(k)This section shall become operative on July 1, 2021.
SEC. 5.SEC. 6.Section 1203.017 of the Penal Code is amended to read:1203.017.(a)Notwithstanding any other provision of law, upon determination by the correctional administrator that conditions in a jail facility warrant the necessity of releasing sentenced misdemeanor inmates prior to them serving the full amount of a given sentence due to lack of jail space, the board of supervisors of any county may authorize the correctional administrator to offer a program under which inmates committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program, may be required to participate in an involuntary home detention program, which shall include electronic monitoring, during their sentence in lieu of confinement in the county jail or other county correctional facility or program under the auspices of the probation officer. Under this program, one day of participation shall be in lieu of one day of incarceration. Participants in the program shall receive any sentence reduction credits that they would have received had they served their sentences in a county correctional facility.
(b)The board of supervisors may prescribe reasonable rules and regulations under which an involuntary home detention program may operate. The inmate shall be informed in writing that they shall comply with the rules and regulations of the program, including, but not limited to, the following rules:
(1)The participant shall remain within the interior premises of their residence during the hours designated by the correctional administrator.
(2)The participant shall admit any probation officer or other peace officer designated by the correctional administrator into their residence at any time for purposes of verifying the participants compliance with the conditions of their detention.
(3)The use of electronic monitoring may include global positioning system devices or other supervising devices for the purpose of helping to verify their compliance with the rules and regulations of the home detention program. The devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant which is to be used solely for the purposes of voice identification.
(4)The correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody to serve the balance of their sentence if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section.
(c)Whenever the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody to complete the remainder of the original sentence.
(d)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in a home detention program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(1)The rules and regulations and administrative policy of the program shall be written and reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to or made available to any participant upon request.
(2)The correctional administrator, or their designee, shall have the sole discretionary authority to permit program participation as an alternative to physical custody. All persons referred or recommended by the court to participate in the home detention program pursuant to subdivision (e) who are denied participation or all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(e)The court may recommend or refer a person to the correctional administrator for consideration for placement in the home detention program. The recommendation or referral of the court shall be given great weight in the determination of acceptance or denial. At the time of sentencing or at any time that the court deems it necessary, the court may restrict or deny the defendants participation in a home detention program.
(f)The correctional administrator may permit home detention program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance. Willful failure of the program participant to return to the place of home detention not later than the expiration of any period of time during which they are authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention are punishable as provided in Section 4532.
(g)As used in this section, correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(h)(1)Notwithstanding any other law, the correctional administrator shall provide the information specified in paragraph (2) regarding persons on involuntary home detention to the Corrections Standards Authority, and upon request, shall provide that information to the law enforcement agency of a city or unincorporated area where an office is located to which persons on involuntary home detention report.
(2)The information required by paragraph (1) shall consist of the following:
(A)The participants name, address, and date of birth.
(B)The offense committed by the participant.
(C)The period of time the participant will be placed on home detention.
(D)Whether the participant successfully completed the prescribed period of home detention or was returned to a county correctional facility, and if the person was returned to a county correctional facility, the reason for that return.
(E)The gender and ethnicity of the participant.
(3)Any information received by a police department pursuant to this subdivision shall be used only for the purpose of monitoring the impact of home detention programs on the community.
(i)It is the intent of the Legislature that home detention programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer a home detention program pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. No public or private agency or entity may operate a home detention program in any county without a written contract with that countys correctional administrator. However, this does not apply to the use of electronic monitoring by the Department of Corrections and Rehabilitation as established in Section 3004. No public or private agency or entity entering into a contract may itself employ any person who is in the home detention program.
(2)Program acceptance shall not circumvent the normal booking process for sentenced offenders. All home detention program participants shall be supervised.
(3)(A) All privately operated home detention programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards promulgated by state correctional agencies and bodies, including the Corrections Standards Authority, and all statutory provisions and mandates, state and county, as appropriate and applicable to the operation of home detention programs and the supervision of sentenced offenders in a home detention program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs, that may arise from, or be proximately caused by, acts or omissions of the contractor. The contract shall provide for annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated home detention programs shall comply with all appropriate, applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with statutory provisions and requirements or with the standards established by the contract and with the correctional administrator may be sufficient cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with whom there is a contract is not in compliance pursuant to this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(j)Inmates participating in this program shall not be charged fees or costs for the program.
(k)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(1)A current liability insurance policy.
(2)A current errors and omissions insurance policy.
(3)A surety bond.
SEC. 6.SEC. 7.Section 1203.018 of the Penal Code is amended to read:1203.018.(a)Notwithstanding any other law, this section shall only apply to inmates being held in lieu of bail and on no other basis.
(b)Notwithstanding any other law, the board of supervisors of any county may authorize the correctional administrator, as defined in paragraph (1) of subdivision (j), to offer a program under which inmates being held in lieu of bail in a county jail or other county correctional facility may participate in an electronic monitoring program if the conditions specified in subdivision (c) are met.
(c)(1)In order to qualify for participation in an electronic monitoring program pursuant to this section, the inmate shall be an inmate with no holds or outstanding warrants to whom one of the following circumstances applies:
(A)The inmate has been held in custody for at least 30 calendar days from the date of arraignment pending disposition of only misdemeanor charges.
(B)The inmate has been held in custody pending disposition of charges for at least 60 calendar days from the date of arraignment.
(C)The inmate is appropriate for the program based on a determination by the correctional administrator that the inmates participation would be consistent with the public safety interests of the community.
(2)All participants shall be subject to discretionary review for eligibility and compliance by the correctional administrator consistent with this section.
(d)The board of supervisors, after consulting with the sheriff and district attorney, may prescribe reasonable rules and regulations under which an electronic monitoring program pursuant to this section may operate. As a condition of participation in the electronic monitoring program, the participant shall give consent in writing to participate and shall agree in writing to comply with the rules and regulations of the program, including, but not limited to, all of the following:
(1)The participant shall remain within the interior premises of the participants residence during the hours designated by the correctional administrator.
(2)The participant shall admit any probation officer or other peace officer designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
(3)The electronic monitoring may include global positioning system devices or other supervising devices for the purpose of helping to verify the participants compliance with the rules and regulations of the electronic monitoring program. The electronic devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant to be used solely for the purposes of voice identification.
(4)The correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section.
(5)A copy of the signed consent to participate and a copy of the agreement to comply with the rules and regulations shall be provided to the participant and a copy shall be retained by the correctional administrator.
(e)The rules and regulations and administrative policy of the program shall be reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to every participant.
(f)Whenever the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody.
(g)(1)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in an electronic monitoring program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(2)The correctional administrator, or the administrators designee, shall have discretionary authority consistent with this section to permit program participation as an alternative to physical custody. All persons approved by the correctional administrator to participate in the electronic monitoring program pursuant to subdivision (c) who are denied participation and all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(h)The correctional administrator may permit electronic monitoring program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance.
(i)Willful failure of the program participant to return to the place of home detention prior to the expiration of any period of time during which the participant is authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention is punishable pursuant to Section 4532.
(j)For purposes of this section, the following terms have the following meanings:
(1)Correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(2)Electronic monitoring program includes, but is not limited to, home detention programs, work furlough programs, and work release programs.
(k)Notwithstanding any other law, upon request of a local law enforcement agency with jurisdiction over the location where a participant in an electronic monitoring program is placed, the correctional administrator shall provide the following information regarding participants in the electronic monitoring program:
(1)The participants name, address, and date of birth.
(2)The offense or offenses alleged to have been committed by the participant.
(3)The period of time the participant will be placed on home detention.
(4)Whether the participant successfully completed the prescribed period of home detention or was returned to a county correctional facility, and if the person was returned to a county correctional facility, the reason for the return.
(5)The gender and ethnicity of the participant.
(l)Notwithstanding any other law, upon request of a local law enforcement agency with jurisdiction over the location where a participant in an electronic monitoring program is placed, the correctional administrator may, in the administrators discretion and solely for investigatory purposes, provide current and historical GPS coordinates, if available.
(m)A law enforcement agency that does not have the primary responsibility to supervise participants in the electronic monitoring program that receives information pursuant to subdivision (k) shall not use the information to conduct enforcement actions based on administrative violations of the home detention program. An agency that has knowledge that the subject in a criminal investigation is a participant in an electronic monitoring program shall make reasonable efforts to notify the supervising agency prior to serving a warrant or taking any law enforcement action against a participant in an electronic monitoring program.
(n)It is the intent of the Legislature that electronic monitoring programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer an electronic monitoring program as provided in this section pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. A public or private agency or entity shall not operate a home detention program pursuant to this section in any county without a written contract with that countys correctional administrator. A public or private agency or entity entering into a contract pursuant to this subdivision shall not itself employ any person who is in the electronic monitoring program.
(2)Program participants shall undergo the normal booking process for arrestees entering the jail. All electronic monitoring program participants shall be supervised.
(3)(A)All privately operated electronic monitoring programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract specified in subparagraph (A) shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards and all state and county laws applicable to the operation of electronic monitoring programs and the supervision of offenders in an electronic monitoring program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted to and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs that may arise from, or be proximately caused by, acts or omissions of the contractor.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that requires an annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(vi)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated electronic monitoring programs shall comply with all applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with state or county laws or with the standards established by the contract with the correctional administrator shall constitute cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with which there is a contract is not in compliance with this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(H)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(i)A current liability insurance policy.
(ii)A current errors and omissions insurance policy.
(iii)A surety bond.
(o)This section shall become operative on July 1, 2021.
SEC. 7.SEC. 8.Section 1203.25 of the Penal Code is amended to read:1203.25.(a)All persons released by a court at or after the initial hearing and prior to a formal probation violation hearing pursuant to subdivision (a) of Section 1203.2 shall be released on their own recognizance unless the court finds, by clear and convincing evidence, that the particular circumstances of the case require the imposition of an order to provide reasonable protection to the public and reasonable assurance of the persons future appearance in court.
(1)The court shall make an individualized determination of the factors that do or do not indicate that the person would be a danger to the public if released pending a formal revocation hearing. Any finding of danger to the public must be based on clear and convincing evidence.
(2)The court shall not require the use of any algorithm-based risk assessment tool in setting conditions of release.
(3)The court shall impose the least restrictive conditions of release necessary to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(b)Reasonable conditions of release may include, but are not limited to, reporting telephonically to a probation officer, protective orders, a global positioning system (GPS) monitoring device or other electronic monitoring, an alcohol use detection device, or search and seizure by a probation officer or other peace officer. The person shall not be required to bear the expense of any conditions of release ordered by the court.
(c)(1)Bail shall not be imposed unless the court finds by clear and convincing evidence that other reasonable conditions of release are not adequate to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(2)Bail as used in this section is defined as cash bail. A bail bond or property bond is not bail. In determining the amount of bail, the court shall make an individualized determination based on the particular circumstances of the case, and it shall consider the persons ability to pay cash bail, not a bail bond or property bond. Bail shall be set at a level the person can reasonably afford.
(d)The court shall not deny release for a person on probation for misdemeanor conduct before the court holds a formal probation revocation hearing, unless the person fails to comply with an order of the court, including an order to appear in court in the underlying case, in which case subdivision (a) shall apply.
(e)The court shall not deny release for a person on probation for felony conduct before the court holds a formal probation revocation hearing unless the court finds by clear and convincing evidence that there are no means reasonably available to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(f)All findings required to be made by clear and convincing evidence under this section shall, based on all evidence presented, including, but not limited to, any probation report, be made orally on the record by the court. The court also shall set forth the reason in an order entered upon the minutes if requested by either party in any case in which the proceedings are not being reported by a court reporter.
(g)If a new charge is the basis for a probation violation, nothing in this section shall be construed to limit the courts authority to hold, release, limit release, or impose conditions of release for that charge as permitted by applicable law.
This act shall be known, and may be cited, as the Prohibiting Rogue Officer Tricks and Ensuring Community Trust (PROTECT) Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)United States Immigration and Customs Enforcement (ICE) employees sometimes employ concerning tactics and strategies during home immigration enforcement operations.
(b)The concerning tactics and strategies include ICE employees commonly using a probation ruse, where they misrepresent themselves as probation officers or claim that they are conducting a probation check.
(c)Individuals who are on probation have no choice but to comply with a probation officers request because the terms of their probation require them to permit probation officers to access their homes and persons.
(d)Under existing California law, the terms and conditions of parole limit searches and seizures to be conducted by a probation or parole officer or other peace officer. California law is clear that ICE employees are not California peace officers.
(e)Under existing California law, ICE employees are likely not authorized to exploit probation because the existing definition of peace officer should apply to all probation sentences. Yet, ICE commonly employs probation ruses, targeting people on probation for immigration enforcement operations.
(f)ICEs use of a probation ruse undermines the trust and faith in Californias local law enforcement.
(g)Therefore, California must take necessary actions to eliminate any ambiguity under existing law and make it clear that ICE employees are not peace officers and cannot conduct probation searches and seizures.
SEC. 3.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 containing findings and recommendations, including 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 the 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 that person 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 officers 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 recommendations for 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 that person 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 the person 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 in which 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 the persons 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 that person has been convicted.
(3)Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which that person 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, 287, 288, or 288.5, or of former Section 288a, 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 that person 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 the persons arrest for the previous crime, the person 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 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 in which the determination is applicable. The judge, in their 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 containing 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 the 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).
(j)In any court in which 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 defendants ability to pay restitution, in which case the county financial evaluation officer shall report the findings regarding restitution and other court-related costs to the probation officer on the question of the defendants 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 defendants 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, 2028, 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.
(m)A person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer.
SEC. 4.Section 1203.016 of the Penal Code is amended to read:1203.016.(a)Notwithstanding any other law, the board of supervisors of any county may authorize the correctional administrator, as defined in subdivision (g), to offer a program under which inmates committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program, may voluntarily participate or involuntarily be placed in a home detention program during their sentence in lieu of confinement in a county jail or other county correctional facility or program under the auspices of the probation officer.
(b)The board of supervisors, in consultation with the correctional administrator, may prescribe reasonable rules and regulations under which a home detention program may operate. As a condition of participation in the home detention program, the inmate shall give consent in writing to participate in the home detention program and shall in writing agree to comply or, for involuntary participation, the inmate shall be informed in writing that the inmate shall comply, with the rules and regulations of the program, including, but not limited to, the following rules:
(1)The participant shall remain within the interior premises of the participants residence during the hours designated by the correctional administrator.
(2)The participant shall admit any person or agent probation officer or other peace officer designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
(3)The participant shall agree to the use of electronic monitoring, which may include Global Positioning System devices or other supervising devices for the purpose of helping to verify compliance with the rules and regulations of the home detention program. The devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant which is to be used solely for the purposes of voice identification.
(4)The participant shall agree that the correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody to serve the balance of the persons sentence if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section. A copy of the agreement shall be delivered to the participant and a copy retained by the correctional administrator.
(c)If the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody to complete the remainder of the original sentence.
(d)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in a home detention program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(1)The rules and regulations and administrative policy of the program shall be written and reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to or made available to any participant upon request.
(2)The correctional administrator, or the administrators designee, shall have the sole discretionary authority to permit program participation as an alternative to physical custody. All persons referred or recommended by the court to participate in the home detention program pursuant to subdivision (e) who are denied participation or all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(e)The court may recommend or refer a person to the correctional administrator for consideration for placement in the home detention program. The recommendation or referral of the court shall be given great weight in the determination of acceptance or denial. At the time of sentencing or at any time that the court deems it necessary, the court may restrict or deny the defendants participation in a home detention program.
(f)The correctional administrator may permit home detention program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance. Willful failure of the program participant to return to the place of home detention not later than the expiration of any period of time during which the participant is authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention are punishable as provided in Section 4532.
(g)As used in this section, correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(h)Notwithstanding any other law, the police department of a city where an office is located to which persons on an electronic monitoring program report may request the county correctional administrator to provide information concerning those persons. This information shall be limited to the name, address, date of birth, offense committed by the home detainee, and if available, at the discretion of the supervising agency and solely for investigatory purposes, current and historical GPS coordinates of the home detainee. A law enforcement department that does not have the primary responsibility to supervise participants in the electronic monitoring program that receives information pursuant to this subdivision shall not use the information to conduct enforcement actions based on administrative violations of the home detention program. A law enforcement department that has knowledge that the subject in a criminal investigation is a participant in an electronic monitoring program shall make reasonable efforts to notify the supervising agency prior to serving a warrant or taking any law enforcement action against a participant in an electronic monitoring program.
(i)It is the intent of the Legislature that home detention programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer a home detention program pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. No public or private agency or entity may operate a home detention program in any county without a written contract with that countys correctional administrator. However, this does not apply to the use of electronic monitoring by the Department of Corrections and Rehabilitation. No public or private agency or entity entering into a contract may itself employ any person who is in the home detention program.
(2)Program acceptance shall not circumvent the normal booking process for sentenced offenders. All home detention program participants shall be supervised.
(3)(A)All privately operated home detention programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards promulgated by state correctional agencies and bodies, including the Corrections Standards Authority, and all statutory provisions and mandates, state and county, as appropriate and applicable to the operation of home detention programs and the supervision of sentenced offenders in a home detention program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs, that may arise from, or be proximately caused by, acts or omissions of the contractor. The contract shall provide for annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated home detention programs shall comply with all appropriate, applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with statutory provisions and requirements or with the standards established by the contract and with the correctional administrator may be sufficient cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with whom there is a contract is not in compliance pursuant to this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(j)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(1)A current liability insurance policy.
(2)A current errors and omissions insurance policy.
(3)A surety bond.
(k)This section shall become operative on July 1, 2021.
SEC. 5.Section 1203.017 of the Penal Code is amended to read:1203.017.(a)Notwithstanding any other provision of law, upon determination by the correctional administrator that conditions in a jail facility warrant the necessity of releasing sentenced misdemeanor inmates prior to them serving the full amount of a given sentence due to lack of jail space, the board of supervisors of any county may authorize the correctional administrator to offer a program under which inmates committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program, may be required to participate in an involuntary home detention program, which shall include electronic monitoring, during their sentence in lieu of confinement in the county jail or other county correctional facility or program under the auspices of the probation officer. Under this program, one day of participation shall be in lieu of one day of incarceration. Participants in the program shall receive any sentence reduction credits that they would have received had they served their sentences in a county correctional facility.
(b)The board of supervisors may prescribe reasonable rules and regulations under which an involuntary home detention program may operate. The inmate shall be informed in writing that he or she they shall comply with the rules and regulations of the program, including, but not limited to, the following rules:
(1)The participant shall remain within the interior premises of his or her their residence during the hours designated by the correctional administrator.
(2)The participant shall admit any probation officer or other peace officer designated by the correctional administrator into his or her their residence at any time for purposes of verifying the participants compliance with the conditions of his or her their detention.
(3)The use of electronic monitoring may include global positioning system devices or other supervising devices for the purpose of helping to verify his or her their compliance with the rules and regulations of the home detention program. The devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant which is to be used solely for the purposes of voice identification.
(4)The correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody to serve the balance of his or her their sentence if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section.
(c)Whenever the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody to complete the remainder of the original sentence.
(d)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in a home detention program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(1)The rules and regulations and administrative policy of the program shall be written and reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to or made available to any participant upon request.
(2)The correctional administrator, or his or her their designee, shall have the sole discretionary authority to permit program participation as an alternative to physical custody. All persons referred or recommended by the court to participate in the home detention program pursuant to subdivision (e) who are denied participation or all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(e)The court may recommend or refer a person to the correctional administrator for consideration for placement in the home detention program. The recommendation or referral of the court shall be given great weight in the determination of acceptance or denial. At the time of sentencing or at any time that the court deems it necessary, the court may restrict or deny the defendants participation in a home detention program.
(f)The correctional administrator may permit home detention program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance. Willful failure of the program participant to return to the place of home detention not later than the expiration of any period of time during which he or she is they are authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention are punishable as provided in Section 4532.
(g)As used in this section, correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(h)(1)Notwithstanding any other law, the correctional administrator shall provide the information specified in paragraph (2) regarding persons on involuntary home detention to the Corrections Standards Authority, and upon request, shall provide that information to the law enforcement agency of a city or unincorporated area where an office is located to which persons on involuntary home detention report.
(2)The information required by paragraph (1) shall consist of the following:
(A)The participants name, address, and date of birth.
(B)The offense committed by the participant.
(C)The period of time the participant will be placed on home detention.
(D)Whether the participant successfully completed the prescribed period of home detention or was returned to a county correctional facility, and if the person was returned to a county correctional facility, the reason for that return.
(E)The gender and ethnicity of the participant.
(3)Any information received by a police department pursuant to this subdivision shall be used only for the purpose of monitoring the impact of home detention programs on the community.
(i)It is the intent of the Legislature that home detention programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer a home detention program pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. No public or private agency or entity may operate a home detention program in any county without a written contract with that countys correctional administrator. However, this does not apply to the use of electronic monitoring by the Department of Corrections and Rehabilitation as established in Section 3004. No public or private agency or entity entering into a contract may itself employ any person who is in the home detention program.
(2)Program acceptance shall not circumvent the normal booking process for sentenced offenders. All home detention program participants shall be supervised.
(3)(A) All privately operated home detention programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards promulgated by state correctional agencies and bodies, including the Corrections Standards Authority, and all statutory provisions and mandates, state and county, as appropriate and applicable to the operation of home detention programs and the supervision of sentenced offenders in a home detention program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs, that may arise from, or be proximately caused by, acts or omissions of the contractor. The contract shall provide for annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated home detention programs shall comply with all appropriate, applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with statutory provisions and requirements or with the standards established by the contract and with the correctional administrator may be sufficient cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with whom there is a contract is not in compliance pursuant to this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(j)Inmates participating in this program shall not be charged fees or costs for the program.
(k)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(1)A current liability insurance policy.
(2)A current errors and omissions insurance policy.
(3)A surety bond.
SEC. 6.Section 1203.018 of the Penal Code is amended to read:1203.018.(a)Notwithstanding any other law, this section shall only apply to inmates being held in lieu of bail and on no other basis.
(b)Notwithstanding any other law, the board of supervisors of any county may authorize the correctional administrator, as defined in paragraph (1) of subdivision (j), to offer a program under which inmates being held in lieu of bail in a county jail or other county correctional facility may participate in an electronic monitoring program if the conditions specified in subdivision (c) are met.
(c)(1)In order to qualify for participation in an electronic monitoring program pursuant to this section, the inmate shall be an inmate with no holds or outstanding warrants to whom one of the following circumstances applies:
(A)The inmate has been held in custody for at least 30 calendar days from the date of arraignment pending disposition of only misdemeanor charges.
(B)The inmate has been held in custody pending disposition of charges for at least 60 calendar days from the date of arraignment.
(C)The inmate is appropriate for the program based on a determination by the correctional administrator that the inmates participation would be consistent with the public safety interests of the community.
(2)All participants shall be subject to discretionary review for eligibility and compliance by the correctional administrator consistent with this section.
(d)The board of supervisors, after consulting with the sheriff and district attorney, may prescribe reasonable rules and regulations under which an electronic monitoring program pursuant to this section may operate. As a condition of participation in the electronic monitoring program, the participant shall give consent in writing to participate and shall agree in writing to comply with the rules and regulations of the program, including, but not limited to, all of the following:
(1)The participant shall remain within the interior premises of the participants residence during the hours designated by the correctional administrator.
(2)The participant shall admit any person or agent probation officer or other peace officer designated by the correctional administrator into the participants residence at any time for purposes of verifying the participants compliance with the conditions of the detention.
(3)The electronic monitoring may include global positioning system devices or other supervising devices for the purpose of helping to verify the participants compliance with the rules and regulations of the electronic monitoring program. The electronic devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant to be used solely for the purposes of voice identification.
(4)The correctional administrator in charge of the county correctional facility from which the participant was released may, without further order of the court, immediately retake the person into custody if the electronic monitoring or supervising devices are unable for any reason to properly perform their function at the designated place of home detention, if the person fails to remain within the place of home detention as stipulated in the agreement, or if the person for any other reason no longer meets the established criteria under this section.
(5)A copy of the signed consent to participate and a copy of the agreement to comply with the rules and regulations shall be provided to the participant and a copy shall be retained by the correctional administrator.
(e)The rules and regulations and administrative policy of the program shall be reviewed on an annual basis by the county board of supervisors and the correctional administrator. The rules and regulations shall be given to every participant.
(f)Whenever the peace officer supervising a participant has reasonable cause to believe that the participant is not complying with the rules or conditions of the program, or that the electronic monitoring devices are unable to function properly in the designated place of confinement, the peace officer may, under general or specific authorization of the correctional administrator, and without a warrant of arrest, retake the person into custody.
(g)(1)Nothing in this section shall be construed to require the correctional administrator to allow a person to participate in this program if it appears from the record that the person has not satisfactorily complied with reasonable rules and regulations while in custody. A person shall be eligible for participation in an electronic monitoring program only if the correctional administrator concludes that the person meets the criteria for release established under this section and that the persons participation is consistent with any reasonable rules and regulations prescribed by the board of supervisors or the administrative policy of the correctional administrator.
(2)The correctional administrator, or the administrators designee, shall have discretionary authority consistent with this section to permit program participation as an alternative to physical custody. All persons approved by the correctional administrator to participate in the electronic monitoring program pursuant to subdivision (c) who are denied participation and all persons removed from program participation shall be notified in writing of the specific reasons for the denial or removal. The notice of denial or removal shall include the participants appeal rights, as established by program administrative policy.
(h)The correctional administrator may permit electronic monitoring program participants to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance.
(i)Willful failure of the program participant to return to the place of home detention prior to the expiration of any period of time during which the participant is authorized to be away from the place of home detention pursuant to this section and unauthorized departures from the place of home detention is punishable pursuant to Section 4532.
(j)For purposes of this section, the following terms have the following meanings:
(1)Correctional administrator means the sheriff, probation officer, or director of the county department of corrections.
(2)Electronic monitoring program includes, but is not limited to, home detention programs, work furlough programs, and work release programs.
(k)Notwithstanding any other law, upon request of a local law enforcement agency with jurisdiction over the location where a participant in an electronic monitoring program is placed, the correctional administrator shall provide the following information regarding participants in the electronic monitoring program:
(1)The participants name, address, and date of birth.
(2)The offense or offenses alleged to have been committed by the participant.
(3)The period of time the participant will be placed on home detention.
(4)Whether the participant successfully completed the prescribed period of home detention or was returned to a county correctional facility, and if the person was returned to a county correctional facility, the reason for the return.
(5)The gender and ethnicity of the participant.
(l)Notwithstanding any other law, upon request of a local law enforcement agency with jurisdiction over the location where a participant in an electronic monitoring program is placed, the correctional administrator may, in the administrators discretion and solely for investigatory purposes, provide current and historical GPS coordinates, if available.
(m)A law enforcement agency that does not have the primary responsibility to supervise participants in the electronic monitoring program that receives information pursuant to subdivision (k) shall not use the information to conduct enforcement actions based on administrative violations of the home detention program. An agency that has knowledge that the subject in a criminal investigation is a participant in an electronic monitoring program shall make reasonable efforts to notify the supervising agency prior to serving a warrant or taking any law enforcement action against a participant in an electronic monitoring program.
(n)It is the intent of the Legislature that electronic monitoring programs established under this section maintain the highest public confidence, credibility, and public safety. In the furtherance of these standards, the following shall apply:
(1)The correctional administrator, with the approval of the board of supervisors, may administer an electronic monitoring program as provided in this section pursuant to written contracts with appropriate public or private agencies or entities to provide specified program services. A public or private agency or entity shall not operate a home detention program pursuant to this section in any county without a written contract with that countys correctional administrator. A public or private agency or entity entering into a contract pursuant to this subdivision shall not itself employ any person who is in the electronic monitoring program.
(2)Program participants shall undergo the normal booking process for arrestees entering the jail. All electronic monitoring program participants shall be supervised.
(3)(A)All privately operated electronic monitoring programs shall be under the jurisdiction of, and subject to the terms and conditions of the contract entered into with, the correctional administrator.
(B)Each contract specified in subparagraph (A) shall include, but not be limited to, all of the following:
(i)A provision whereby the private agency or entity agrees to operate in compliance with any available standards and all state and county laws applicable to the operation of electronic monitoring programs and the supervision of offenders in an electronic monitoring program.
(ii)A provision that clearly defines areas of respective responsibility and liability of the county and the private agency or entity.
(iii)A provision that requires the private agency or entity to demonstrate evidence of financial responsibility, submitted to and approved by the board of supervisors, in amounts and under conditions sufficient to fully indemnify the county for reasonably foreseeable public liability, including legal defense costs that may arise from, or be proximately caused by, acts or omissions of the contractor.
(iv)A provision that requires the private agency or entity to provide evidence of financial responsibility, such as certificates of insurance or copies of insurance policies, prior to commencing any operations pursuant to the contract or at any time requested by the board of supervisors or correctional administrator.
(v)A provision that requires an annual review by the correctional administrator to ensure compliance with requirements set by the board of supervisors and for adjustment of the financial responsibility requirements if warranted by caseload changes or other factors.
(vi)A provision that permits the correctional administrator to immediately terminate the contract with a private agency or entity at any time that the contractor fails to demonstrate evidence of financial responsibility.
(C)All privately operated electronic monitoring programs shall comply with all applicable ordinances and regulations specified in subdivision (a) of Section 1208.
(D)The board of supervisors, the correctional administrator, and the designee of the correctional administrator shall comply with Section 1090 of the Government Code in the consideration, making, and execution of contracts pursuant to this section.
(E)The failure of the private agency or entity to comply with state or county laws or with the standards established by the contract with the correctional administrator shall constitute cause to terminate the contract.
(F)Upon the discovery that a private agency or entity with which there is a contract is not in compliance with this paragraph, the correctional administrator shall give 60 days notice to the director of the private agency or entity that the contract may be canceled if the specified deficiencies are not corrected.
(G)Shorter notice may be given or the contract may be canceled without notice whenever a serious threat to public safety is present because the private agency or entity has failed to comply with this section.
(H)For purposes of this section, evidence of financial responsibility may include, but is not limited to, certified copies of any of the following:
(i)A current liability insurance policy.
(ii)A current errors and omissions insurance policy.
(iii)A surety bond.
(o)This section shall become operative on July 1, 2021.
SEC. 7.Section 1203.25 of the Penal Code is amended to read:1203.25.(a)All persons released by a court at or after the initial hearing and prior to a formal probation violation hearing pursuant to subdivision (a) of Section 1203.2 shall be released on their own recognizance unless the court finds, by clear and convincing evidence, that the particular circumstances of the case require the imposition of an order to provide reasonable protection to the public and reasonable assurance of the persons future appearance in court.
(1)The court shall make an individualized determination of the factors that do or do not indicate that the person would be a danger to the public if released pending a formal revocation hearing. Any finding of danger to the public must be based on clear and convincing evidence.
(2)The court shall not require the use of any algorithm-based risk assessment tool in setting conditions of release.
(3)The court shall impose the least restrictive conditions of release necessary to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(b)Reasonable conditions of release may include, but are not limited to, reporting telephonically to a probation officer, protective orders, a global positioning system (GPS) monitoring device or other electronic monitoring, or an alcohol use detection device. device, or search and seizure by a probation officer or other peace officer. The person shall not be required to bear the expense of any conditions of release ordered by the court.
(c)(1)Bail shall not be imposed unless the court finds by clear and convincing evidence that other reasonable conditions of release are not adequate to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(2)Bail as used in this section is defined as cash bail. A bail bond or property bond is not bail. In determining the amount of bail, the court shall make an individualized determination based on the particular circumstances of the case, and it shall consider the persons ability to pay cash bail, not a bail bond or property bond. Bail shall be set at a level the person can reasonably afford.
(d)The court shall not deny release for a person on probation for misdemeanor conduct before the court holds a formal probation revocation hearing, unless the person fails to comply with an order of the court, including an order to appear in court in the underlying case, in which case subdivision (a) shall apply.
(e)The court shall not deny release for a person on probation for felony conduct before the court holds a formal probation revocation hearing unless the court finds by clear and convincing evidence that there are no means reasonably available to provide reasonable protection of the public and reasonable assurance of the persons future appearance in court.
(f)All findings required to be made by clear and convincing evidence under this section shall, based on all evidence presented, including, but not limited to, any probation report, be made orally on the record by the court. The court also shall set forth the reason in an order entered upon the minutes if requested by either party in any case in which the proceedings are not being reported by a court reporter.
(g)If a new charge is the basis for a probation violation, nothing in this section shall be construed to limit the courts authority to hold, release, limit release, or impose conditions of release for that charge as permitted by applicable law.
All matter omitted in this version of the bill appears in the bill as introduced in the Senate, February 17, 2023. (JR11)(a)Except as provided in subdivision (b), the personnel records of peace officers and custodial officers and records maintained by a state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any a criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section does not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorneys office, or the Attorney Generals office.
(b)(1)Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by a state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code):
(A)A record relating to the report, investigation, or findings of any of the following:
(i)An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
(ii)An incident involving the use of force against a person by a peace officer or custodial officer that resulted in death or in great bodily injury.
(iii)A sustained finding involving a complaint that alleges unreasonable or excessive force.
(iv)A sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive.
(B)(i)Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.
(ii)As used in this subparagraph, sexual assault means the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under the color of authority. For purposes of this definition, the propositioning for or commission of any sexual act while on duty is considered a sexual assault.
(iii)As used in this subparagraph, member of the public means any person not employed by the officers employing agency and includes any participant in a cadet, explorer, or other youth program affiliated with the agency.
(C)Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency involving dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any false statements, filing false reports, destruction, falsifying, or concealing of evidence, or perjury.
(D)Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
(E)Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that the peace officer made an unlawful arrest or conducted an unlawful search.
(2)Records that are subject to disclosure under clause (iii) or (iv) of subparagraph (A) of paragraph (1), or under subparagraph (D) or (E) of paragraph (1), relating to an incident that occurs before January 1, 2022, shall not be subject to the time limitations in paragraph (11) until January 1, 2023.
(3)Records that shall be released pursuant to this subdivision include all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, whether the officers action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or corrective action to take; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action. Records that shall be released pursuant to this subdivision also include records relating to an incident specified in paragraph (1) in which the peace officer or custodial officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.
(4)A record from a separate and prior investigation or assessment of a separate incident shall not be released unless it is independently subject to disclosure pursuant to this subdivision.
(5)If an investigation or incident involves multiple officers, information about allegations of misconduct by, or the analysis or disposition of an investigation of, an officer shall not be released pursuant to subparagraph (B), (C), (D), or (E) of paragraph (1), unless it relates to a sustained finding regarding that officer that is itself subject to disclosure pursuant to this section. However, factual information about that action of an officer during an incident, or the statements of an officer about an incident, shall be released if they are relevant to a finding against another officer that is subject to release pursuant to subparagraph (B), (C), (D), or (E) of paragraph (1).
(6)An agency shall redact a record disclosed pursuant to this section only for any of the following purposes:
(A)To remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers.
(B)To preserve the anonymity of whistleblowers, complainants, victims, and witnesses.
(C)To protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about possible misconduct and use of force by peace officers and custodial officers.
(D)Where there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or another person.
(7)Notwithstanding paragraph (6), an agency may redact a record disclosed pursuant to this section, including personal identifying information, where, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information.
(8)An agency may withhold a record of an incident described in paragraph (1) that is the subject of an active criminal or administrative investigation, in accordance with any of the following:
(A)(i)During an active criminal investigation, disclosure may be delayed for up to 60 days from the date the misconduct or use of force occurred or until the district attorney determines whether to file criminal charges related to the misconduct or use of force, whichever occurs sooner. If an agency delays disclosure pursuant to this clause, the agency shall provide, in writing, the specific basis for the agencys determination that the interest in delaying disclosure clearly outweighs the public interest in disclosure. This writing shall include the estimated date for disclosure of the withheld information.
(ii)After 60 days from the misconduct or use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against an officer who engaged in misconduct or used the force. If an agency delays disclosure pursuant to this clause, the agency shall, at 180-day intervals as necessary, provide, in writing, the specific basis for the agencys determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. The writing shall include the estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner.
(iii)After 60 days from the misconduct or use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against someone other than the officer who engaged in the misconduct or used the force. If an agency delays disclosure under this clause, the agency shall, at 180-day intervals, provide, in writing, the specific basis why disclosure could reasonably be expected to interfere with a criminal enforcement proceeding, and shall provide an estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner, unless extraordinary circumstances warrant continued delay due to the ongoing criminal investigation or proceeding. In that case, the agency must show by clear and convincing evidence that the interest in preventing prejudice to the active and ongoing criminal investigation or proceeding outweighs the public interest in prompt disclosure of records about misconduct or use of force by peace officers and custodial officers. The agency shall release all information subject to disclosure that does not cause substantial prejudice, including any documents that have otherwise become available.
(iv)In an action to compel disclosure brought pursuant to Section 6258 of the Government Code, an agency may justify delay by filing an application to seal the basis for withholding, in accordance with Rule 2.550 of the California Rules of Court, or any successor rule, if disclosure of the written basis itself would impact a privilege or compromise a pending investigation.
(B)If criminal charges are filed related to the incident in which misconduct occurred or force was used, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial or, if a plea of guilty or no contest is entered, the time to withdraw the plea pursuant to Section 1018.
(C)During an administrative investigation into an incident described in paragraph (1), the agency may delay the disclosure of records or information until the investigating agency determines whether the misconduct or use of force violated a law or agency policy, but no longer than 180 days after the date of the employing agencys discovery of the misconduct or use of force, or allegation of misconduct or use of force, by a person authorized to initiate an investigation.
(9)A record of a complaint, or the investigations, findings, or dispositions of that complaint, shall not be released pursuant to this section if the complaint is frivolous, as defined in Section 128.5 of the Code of Civil Procedure, or if the complaint is unfounded.
(10)The cost of copies of records subject to disclosure pursuant to this subdivision that are made available upon the payment of fees covering direct costs of duplication pursuant to subdivision (b) of Section 6253 of the Government Code shall not include the costs of searching for, editing, or redacting the records.
(11)Except to the extent temporary withholding for a longer period is permitted pursuant to paragraph (8), records subject to disclosure under this subdivision shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.
(12)(A)For purposes of releasing records pursuant to this subdivision, the lawyer-client privilege does not prohibit the disclosure of either of the following:
(i)Factual information provided by the public entity to its attorney or factual information discovered in any investigation conducted by, or on behalf of, the public entitys attorney.
(ii)Billing records related to the work done by the attorney so long as the records do not relate to active and ongoing litigation and do not disclose information for the purpose of legal consultation between the public entity and its attorney.
(B)This paragraph does not prohibit the public entity from asserting that a record or information within the record is exempted or prohibited from disclosure pursuant to any other federal or state law.
(c)Notwithstanding subdivisions (a) and (b), a department or agency shall release to the complaining party a copy of the complaining partys own statements at the time the complaint is filed.
(d)Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial officers may disseminate data regarding the number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made against its officers if that information is in a form which does not identify the individuals involved.
(e)Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial officers may release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, or the officers agent or representative, publicly makes a statement they know to be false concerning the investigation or the imposition of disciplinary action. Information may not be disclosed by the peace or custodial officers employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper. Disclosure of factual information by the employing agency pursuant to this subdivision is limited to facts contained in the officers personnel file concerning the disciplinary investigation or imposition of disciplinary action that specifically refute the false statements made public by the peace or custodial officer or their agent or representative.
(f)(1)The department or agency shall provide written notification to the complaining party of the disposition of the complaint within 30 days of the disposition.
(2)The notification described in this subdivision is not conclusive or binding or admissible as evidence in any separate or subsequent action or proceeding brought before an arbitrator, court, or judge of this state or the United States.
(g)This section does not affect the discovery or disclosure of information contained in a peace or custodial officers personnel file pursuant to Section 1043 of the Evidence Code.
(h)This section does not supersede or affect the criminal discovery process outlined in Chapter 10 (commencing with Section 1054) of Title 6 of Part 2, or the admissibility of personnel records pursuant to subdivision (a), which codifies the court decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531.
(i)Nothing in this chapter is intended to limit the publics right of access as provided for in Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59.
|
Date
|
Status
|
|---|---|
| Sep 22, 2023 | Chaptered by Secretary of State. Chapter 218, Statutes of 2023. |
| Sep 22, 2023 | Approved by the Governor. |
| Sep 11, 2023 | Enrolled and presented to the Governor at 3 p.m. |
| Sep 6, 2023 | Assembly amendments concurred in. (Ayes 39. Noes 0. Page 2421.) Ordered to engrossing and enrolling. |
| Sep 1, 2023 | In Senate. Concurrence in Assembly amendments pending. |
| Sep 1, 2023 | Read third time. Passed. (Ayes 67. Noes 0. Page 2882.) Ordered to the Senate. |
| Aug 28, 2023 | Read third time and amended. |
| Aug 28, 2023 | Ordered to third reading. |
| Jun 14, 2023 | Read second time. Ordered to third reading. |
| Jun 13, 2023 | From committee: Do pass. (Ayes 8. Noes 0.) (June 13). |
| Jun 7, 2023 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on PUB. S. |
| May 18, 2023 | Referred to Com. on PUB. S. |
| May 11, 2023 | In Assembly. Read first time. Held at Desk. |
| May 11, 2023 | Read third time. Passed. (Ayes 39. Noes 0. Page 1050.) Ordered to the Assembly. |
| Apr 27, 2023 | Read second time. Ordered to third reading. |
| Apr 26, 2023 | From committee: Do pass. (Ayes 5. Noes 0. Page 902.) (April 25). |
| Apr 10, 2023 | Set for hearing April 25. |
| Mar 29, 2023 | Re-referred to Com. on PUB S. |
| Mar 21, 2023 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on RLS. |
| Mar 1, 2023 | Referred to Com. on RLS. |
| Feb 21, 2023 | From printer. May be acted upon on or after March 20. |
| Feb 17, 2023 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 6, 2023 | Unfinished Business SB852 Rubio Concurrence | Senate Floor |
Passed |
|
| Sep 1, 2023 | SB 852 Rubio Senate Third Reading By Santiago | Assembly Floor |
Passed |
|
| Jun 13, 2023 | Do pass. | Assembly Standing Committee on Public Safety |
Passed |
|
| May 11, 2023 | Senate 3rd Reading SB852 Rubio | Senate Floor |
Passed |
|
| Apr 25, 2023 | Do pass | Senate Standing Committee on Public Safety |
Passed |
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
|
|---|---|---|
| Aclu California Action | ** Support | |
| California Immigrant Policy Center | ** Support | |
| California Public Defenders Association | ** Support | |
| California Rural Legal Assistance Foundation | ** Support | |
| Coalition for Humane Immigrant Rights | ** Support | |
| Communities United for Restorative Youth Justice | ** Support | |
| Ella Baker Center For Human Rights | * Support | Jun 13, 2023 |
| Immigrant Defenders Law Center | ** Support | |
| Initiate Justice Action | ** Support | |
| Inland Coalition for Immigrant Justice | ** Support | |
| Kern County Criminal Justice Coalition | ** Support | |
| Smart Justice California | ** Support |
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 852 |
UNFINISHED BUSINESS
Bill No: SB 852
Author: Rubio (D)
Amended: 8/28/23
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/25/23
AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener
SENATE FLOOR: 39-0, 5/11/23
AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
NO VOTE RECORDED: Grove
ASSEMBLY FLOOR: 67-0, 9/1/23 - See last page for vote
SUBJECT: Searches: supervised persons
SOURCE: ACLU California Action
DIGEST:
This bill clarifies that a person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer; and clarifies that only a probation officer or peace officer may be designated by a correctional administrator to conduct searches of the residences of individuals participating in home detention programs or electronic monitoring programs.
Assembly Amendments
add mandatory supervision in order to cover all types of supervised release.
ANALYSIS:
Existing law:
- Declares specific persons to be peace officers. (Pen. Code, §§ 830-830.55.)
- Clarifies that U.S. Immigration and Customs Enforcement officers and U.S. Customs and Border Protection officers are not California peace officers. (Pen. Code § 830.85.)
- Defines “probation” as “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.” (Pen. Code, § 1203, subd. (a).)
- Defines “conditional sentence” as “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.” (Pen. Code, § 1203, subd. (a).)
- Provides, notwithstanding any other law, that the board of supervisors of any county may authorize the correctional administrator, as defined, to offer a program under which the incarcerated individuals committed to a county jail or other county correctional facility or granted probation, or incarcerated individuals participating in a work furlough program, may voluntarily participate or involuntarily be placed in a home detention program during their sentence in lieu of confinement in a county jail or other county correctional facility or program under the auspices of the probation officer. (Pen. Code, § 1203.016, subd. (a).)
- Defines “correctional administrator” to mean the sheriff, probation officer, or director of the county department of corrections. (Pen. Code, § 1203.016, subd. (g).)
- Authorizes the board of supervisors, in consultation with the correctional administrator, to prescribe reasonable rules and regulations under which a home detention program may operate. Requires the incarcerated individual to give consent in writing to participate in the home detention program as a condition of participation in the program, and to agree in writing to comply or, for involuntary participation, requires the incarcerated individual to be informed in writing that the individual must comply, with the rules and regulations of the program, including, that the participant must admit any person or agent designated by the correctional administrator into the participant’s residence at any time for purposes of verifying the participant’s compliance with the conditions of the detention. (Pen. Code, § 1203.016, subd. (b).)
- Provides, notwithstanding any other provision of law, upon determination by the correctional administrator that conditions in a jail facility warrant the necessity of releasing incarcerated individuals sentenced for misdemeanors prior to them serving the full amount of a given sentence due to lack of jail space, the board of supervisors of any county may authorize the correctional administrator to offer a program under which incarcerated individuals committed to a county jail or other county correctional facility or granted probation, or incarcerated individuals participating in a work furlough program, may be required to participate in an involuntary home detention program, which shall include electronic monitoring, during their sentence in lieu of confinement in the county jail or other county correctional facility or program under the auspices of the probation officer. (Pen. Code, § 1203.017, subd. (a).)
- Authorizes the board of supervisors to prescribe reasonable rules and regulations under which an involuntary home detention program may operate. Requires the incarcerated person to be informed in writing that he or she must comply with the rules and regulations of the program, including, that the participant must admit any peace officer designated by the correctional administrator into his or her residence at any time for purposes of verifying the participant’s compliance with the conditions of his or her detention. (Pen. Code, § 1203.017, subd. (b).)
- Provides, notwithstanding any other law, the board of supervisors of any county may authorize the correctional administrator, as defined, to offer a program under which incarcerated individuals being held in lieu of bail in a county jail or other county correctional facility may participate in an electronic monitoring program if specified conditions are met. (Pen. Code, § 1203.018, subd. (b).)
- Authorizes the board of supervisors, after consulting with the sheriff and district attorney, to prescribe reasonable rules and regulations under which an electronic monitoring program may operate. Requires the participant to give consent in writing to participate as a condition of participation in the electronic monitoring program and to agree in writing to comply with the rules and regulations of the program, including, that the participant must admit any person or agent designated by the correctional administrator into the participant’s residence at any time for purposes of verifying the participant’s compliance with the conditions of the detention. (Pen. Code, § 1203.018, subd. (d).)
- Requires all persons released by a court at or after the initial hearing and prior to a formal probation violation hearing, as specified, be released on their own recognizance unless the court finds, by clear and convincing evidence, that the particular circumstances of the case require the imposition of an order to provide reasonable protection to the public and reasonable assurance of the person’s future appearance in court. (Pen. Code, § 1203.25, subd. (a).)
- Provides that reasonable conditions of release may include, but are not limited to, reporting telephonically to a probation officer, protective orders, a global positioning system (GPS) monitoring device or other electronic monitoring, or an alcohol use detection device. (Pen. Code, § 1203.25, subd. (b).)
- Requires that any incarcerated individual who is eligible for release on parole or postrelease community supervision be given notice that he or she is subject to terms and conditions of his or her release from prison. Requires the notice to include several things, including 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. (Pen. Code, § 3067, subds. (a), (b).)
This bill:
- Provides that a person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer.
- Clarifies that a participant of a home detention program must admit any probation officer or peace officer designated by the correctional administrator into the participant’s residence at any time for purposes of verifying the participant’s compliance with the conditions of the participant’s detention.
- Specifies that reasonable conditions of release for a person released by a court on their own recognizance includes search and seizure by a probation officer or other peace officer.
- Includes several legislative findings and declarations.
Background
Several provisions of law declare specific persons to be peace officers. (Pen. Code, §§ 830-830.55.) As a result of aggressive immigration enforcement, Penal Code section 830.85 was enacted in 2017 to clarify that U.S. ICE and U.S. Customs and Border Protection officers are not California peace officers. The supporters of this bill assert that ICE officers have posed as probation officers in order to gain access to individuals on probation who are subject to home searches. This bill provides that a person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer. This bill also seeks to amend several code sections related to probation when the person is a participant in a home detention or electronic monitoring program to clarify that a search of the person’s residence must be performed only by a probation officer or other peace officer. Finally, this bill specifies that reasonable conditions of release for a person released by a court on their own recognizance includes search and seizure by a probation officer or other peace officer.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
SUPPORT: (Verified 9/1/23)
ACLU California Action (source)
California Immigrant Policy Center
California Public Defenders Association
California Rural Legal Assistance Foundation
Coalition for Humane Immigrant Rights
Immigrant Defenders Law Center
Inland Coalition for Immigrant Justice
Kern County Criminal Justice Coalition
OPPOSITION: (Verified 9/1/23)
ASSEMBLY FLOOR: 67-0, 9/1/23
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ta, Valencia, Villapudua, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
NO VOTE RECORDED: Bains, Bauer-Kahan, Chen, Vince Fong, Gallagher, Haney, Hoover, Lackey, Mathis, Joe Patterson, Sanchez, Ting, Waldron
Prepared by: Stephanie Jordan / PUB. S. /
9/2/23 8:20:21
**** END ****
SENATE THIRD READING
STR Bill Id:SB 852
Author:(Rubio)
As Amended Ver:August 28, 2023
Majority vote
SUMMARY
Clarifies that only a probation officer or other peace officer may conduct a search or a seizure of a person on specified forms of supervised release.
Major Provisions
- Specifies that a person who is granted probation is subject to search or seizure as part of the terms and conditions of probation only by a probation officer or other peace officer.
- Specifies that a person participating in a home detention or electronic monitoring program is subject to verification of compliance with conditions of detention only by a probation officer or other peace officer.
- Specifies that a person who is serving a part of their sentence on mandatory supervision is subject to search or seizure as part of the terms and conditions of supervision only by a probation officer or other peace officer.
- Contains legislative findings and declarations.
COMMENTS
According to the Author
"No one should be afraid to come forward when they are the victim of a crime because they have lost trust in law enforcement. But unfortunately, many immigrant communities are afraid to interact with law enforcement professionals because of deceptive actions by Immigration and Customs Enforcement (ICE) agents. One tactic that ICE has used in California to deceive our immigrant communities is known as a probation ruse, where ICE agents pretend to be probation officers in order to trick people into cooperating with them. A person on probation is required to comply with searches at any time, so these people are deceived into complying with ICE agents and find themselves placed under arrest.
"California's state and local law enforcement professionals work hard to develop trust with the communities they serve. That trust is jeopardized when ICE agents impersonate probation officers as a tactic to coerce people into cooperating with them. It is wrong for ICE to deceive our immigrant communities. SB 852 will safeguard and protect the public's trust in law enforcement by specifying that probation searches can only be conducted by probation officers or peace officers, putting a stop to ICE agents falsely identifying themselves as probation officers."
Arguments in Support
According to ACLU California Action, a co-sponsor of this bill, "California Penal Code Section 3067, which discusses the terms and conditions of parole, limits "searches and seizures" to be conducted "by a probation or parole officer or other peace officer." Cal. Pen. Code [Section] 3067(b)(3) (emphasis added). In 2017, the California Legislature clarified that ICE officers are not California peace officers. See [California Penal Code Section] 830.85. However, California Penal Code Section 1203, governing the rules of probation, does not similarly limit searches to probation officers or peace officers.
"In practice, the absence of this limitation, has allowed ICE officers to target individuals on probation for enforcement operations. In conducting enforcement operations, particularly at the home, ICE officers commonly employ a "probation ruse" – e.g., ICE represents themselves as probation officers, claim they are conducting a probation check, or after knocking on the person's door, ICE (without identifying themselves as such) ask to confirm that the person is on probation and ask them to either step outside of their home or grant officers consent to enter their home. Individuals who are on probation typically have no choice but to comply with officers' requests because the terms of their probation require them to permit probation officers to access their homes and persons. Under current law, ICE officers likely aren't authorized to exploit probation in this manner (because the existing definition of "peace officer" should apply to all probation sentences). Yet, ICE regularly exploits the ambiguity between "law enforcement" and "peace officer" in regard to probation in order to arrest probationers using methods that would be unconstitutional if used on non-probationers.
"In the Los Angeles area of responsibility, ICE has conducted at least 19,000 "at-large" arrests from 2014 to 2021. A sizable number of these arrests occur at residences. In April 2020, the ACLU of Southern California filed Kidd v. Mayorkas, a lawsuit challenging, among other things, probation ruses.
"SB 852 seeks to modify the California Penal Code Section 1203 clarify that probation searches can be conducted by probation officers or peace officers. Currently, this language does not exist in Section 1203.
"By limiting probation searches and seizures to be conducted by probation officers or peace officers, SB 852 would not allow ICE officers to rely on, and exploit, a person’s probation status when conducting home enforcement operations."
Arguments in Opposition
None on file.
FISCAL COMMENTS
Unknown. This bill is keyed non-fiscal by the Legislative Counsel.
VOTES
SENATE FLOOR: 39-0-1
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ABS, ABST OR NV: Grove
ASM PUBLIC SAFETY: 8-0-0
YES: Jones-Sawyer, Alanis, Bonta, Bryan, Lackey, Ortega, Santiago, Zbur
UPDATED
VERSION: August 28, 2023
CONSULTANT: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0001346
SENATE THIRD READING
STR Bill Id:SB 852
Author:(Rubio)
As Amended Ver:June 7, 2023
Majority vote
SUMMARY
Clarifies that only a probation officer or other peace officer may conduct a search or a seizure of a person on specified forms of supervised release.
Major Provisions
- Specifies that a person who is granted probation is subject to search or seizure as part of the terms and conditions of probation only by a probation officer or other peace officer.
- Specifies that a person participating in a home detention or electronic monitoring program is subject to verification of compliance with conditions of detention only by a probation officer or other peace officer.
- Specifies that a person who is serving a part of their sentence on mandatory supervision is subject to search or seizure as part of the terms and conditions of supervision only by a probation officer or other peace officer.
- Contains legislative findings and declarations.
COMMENTS
EXISTING LAW:
- Declares specified persons to be peace officers and extends different levels of authority to different types of peace officers. (Penal Code, Section 830-830.55.)
- Declares that certain persons are not peace officers, but may exercise the power of arrest during the course and scope of their employment if they have completed a training course prescribed by the Commission on Peace Officer Standards and Training in the exercise of that power. (Penal Code, Section 830.7.)
- Provides that federal criminal investigators and law enforcement officers are not California peace officers, but may exercise the power of arrest of a peace officer under specified circumstances. (Penal Code, Section 830.8.)
- Provides that, notwithstanding any other law, United States Immigration and Customs Enforcement officers and United States Customs and Border Protection officers are not California peace officers. (Penal Code, Section 830.85.)
- Entitles people the right to be secure in their persons, houses, papers, and effects and not to be subject to unreasonable searches and seizures. (U.S. Const., Fourth Amend. & Cal. Const. article 1, sec. 13 of the California Constitution.)
- Defines "probation" as "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." (Penal Code, Section 1203, subd. (a).)
- Defines "conditional sentence" as "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." (Penal Code, Section 1203, subd. (a).)
- Authorizes the court to impose and require any or all reasonable conditions of probation as it may determine are fitting and proper to the end that justice may be done, that amends may be done to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer. (Penal Code, Section 1203.1, subd. (j).)
- Provides that when a defendant is sentenced to a "split sentence" under criminal justice realignment, 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. (Penal Code, Section 1170, subd. (h)(5)(B).)
- Provides that a person on parole or on post release community supervision is subject to a 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. (Penal Code, Section 3067, subd. (b)(3).)
According to the Author
"No one should be afraid to come forward when they are the victim of a crime because they have lost trust in law enforcement. But unfortunately, many immigrant communities are afraid to interact with law enforcement professionals because of deceptive actions by Immigration and Customs Enforcement (ICE) agents. One tactic that ICE has used in California to deceive our immigrant communities is known as a probation ruse, where ICE agents pretend to be probation officers in order to trick people into cooperating with them. A person on probation is required to comply with searches at any time, so these people are deceived into complying with ICE agents and find themselves placed under arrest.
"California's state and local law enforcement professionals work hard to develop trust with the communities they serve. That trust is jeopardized when ICE agents impersonate probation officers as a tactic to coerce people into cooperating with them. It is wrong for ICE to deceive our immigrant communities. SB 852 will safeguard and protect the public's trust in law enforcement by specifying that probation searches can only be conducted by probation officers or peace officers, putting a stop to ICE agents falsely identifying themselves as probation officers."
Arguments in Support
According to ACLU California Action, a co-sponsor of this bill, "California Penal Code Section 3067, which discusses the terms and conditions of parole, limits "searches and seizures" to be conducted "by a probation or parole officer or other peace officer." Cal. Pen. Code § 3067(b)(3) (emphasis added). In 2017, the California Legislature clarified that ICE officers are not California peace officers. See Cal. Pen. Code § 830.85. However, California Penal Code Section 1203, governing the rules of probation, does not similarly limit searches to probation officers or peace officers.
"In practice, the absence of this limitation, has allowed ICE officers to target individuals on probation for enforcement operations. In conducting enforcement operations, particularly at the home, ICE officers commonly employ a "probation ruse" – e.g., ICE represents themselves as probation officers, claim they are conducting a probation check, or after knocking on the person's door, ICE (without identifying themselves as such) ask to confirm that the person is on probation and ask them to either step outside of their home or grant officers consent to enter their home. Individuals who are on probation typically have no choice but to comply with officers' requests because the terms of their probation require them to permit probation officers to access their homes and persons. Under current law, ICE officers likely aren't authorized to exploit probation in this manner (because the existing definition of "peace officer" should apply to all probation sentences). Yet, ICE regularly exploits the ambiguity between "law enforcement" and "peace officer" in regard to probation in order to arrest probationers using methods that would be unconstitutional if used on non-probationers.
"In the Los Angeles area of responsibility, ICE has conducted at least 19,000 "at-large" arrests from 2014 to 2021. A sizable number of these arrests occur at residences. In April 2020, the ACLU of Southern California filed Kidd v. Mayorkas, a lawsuit challenging, among other things, probation ruses.
"SB 852 seeks to modify the California Penal Code Section 1203 clarify that probation searches can be conducted by probation officers or peace officers. Currently, this language does not exist in Section 1203.
"By limiting probation searches and seizures to be conducted by probation officers or peace officers, SB 852 would not allow ICE officers to rely on, and exploit, a person's probation status when conducting home enforcement operations."
Arguments in Opposition
None on file.
FISCAL COMMENTS
Unknown. This bill is keyed non-fiscal by the Legislative Counsel.
VOTES
SENATE FLOOR: 39-0-1
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ABS, ABST OR NV: Grove
ASM PUBLIC SAFETY: 8-0-0
YES: Jones-Sawyer, Alanis, Bonta, Bryan, Lackey, Ortega, Santiago, Zbur
UPDATED
VERSION: June 7, 2023
CONSULTANT: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0001072
Date of Hearing: June 13, 2023
Chief Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SBPCA Bill Id:SB 852
Author:(Rubio) – As Amended Ver:June 7, 2023
SUMMARY: Clarifies that only a probation officer or other peace officer may conduct a search or a seizure of a person on specified forms of supervised release. Specifically, this bill:
- Specifies that a person who is granted probation is subject to search or seizure as part of the terms and conditions of probation only by a probation officer or other peace officer.
- Specifies that a person participating in a home detention or electronic monitoring program is subject to verification of compliance with conditions of detention only by a probation officer or other peace officer.
- Specifies that a person who is serving a part of their sentence on mandatory supervision is subject to search or seizure as part of the terms and conditions of supervision only by a probation officer or other peace officer.
- Contains legislative findings and declarations.
EXISTING LAW:
- Declares specified persons to be peace officers and extends different levels of authority to different types of peace officers. (Pen. Code, §§ 830-830.55.)
- Declares that certain persons are not peace officers, but may exercise the power of arrest during the course and scope of their employment if they have completed a training course prescribed by the Commission on Peace Officer Standards and Training in the exercise of that power. (Pen. Code, § 830.7.)
- Provides that federal criminal investigators and law enforcement officers are not California peace officers, but may exercise the power of arrest of a peace officer under specified circumstances. (Pen. Code, § 830.8.)
- Provides that, notwithstanding any other law, United States Immigration and Customs Enforcement officers and United States Customs and Border Protection officers are not California peace officers. (Pen. Code, § 830.85.)
- Entitles people the right to be secure in their persons, houses, papers, and effects and not to be subject to unreasonable searches and seizures. (U.S. Const., Fourth Amend. & Cal. Const. article 1, sec. 13 of the California Constitution.)
- Defines “probation” as “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.” (Pen. Code, § 1203, subd. (a).)
- Defines “conditional sentence” as “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.” (Pen. Code, § 1203, subd. (a).)
- Authorizes the court to impose and require any or all reasonable conditions of probation as it may determine are fitting and proper to the end that justice may be done, that amends may be done to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer. (Pen. Code, § 1203.1, subd. (j).)
- Provides that when a defendant is sentenced to a “split sentence” under criminal justice realignment, 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. (Pen. Code, § 1170, subd. (h)(5)(B).)
- Provides that a person on parole or on post release community supervision is subject to a 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. (Pen. Code, § 3067, subd. (b)(3).)
- Prohibits law enforcement agencies, including school police and security departments, from using resources to investigate, interrogate, detain, detect, or arrest people for immigration enforcement purposes. (Gov. Code, § 7284.6.)
FISCAL EFFECT:
COMMENTS:
- Author's Statement: According to the author, “No one should be afraid to come forward when they are the victim of a crime because they have lost trust in law enforcement. But unfortunately, many immigrant communities are afraid to interact with law enforcement professionals because of deceptive actions by Immigration and Customs Enforcement (ICE) agents. One tactic that ICE has used in California to deceive our immigrant communities is known as a probation ruse, where ICE agents pretend to be probation officers in order to trick people into cooperating with them. A person on probation is required to comply with searches at any time, so these people are deceived into complying with ICE agents and find themselves placed under arrest.
“California’s state and local law enforcement professionals work hard to develop trust with the communities they serve. That trust is jeopardized when ICE agents impersonate probation officers as a tactic to coerce people into cooperating with them. It is wrong for ICE to deceive our immigrant communities. SB 852 will safeguard and protect the public’s trust in law enforcement by specifying that probation searches can only be conducted by probation officers or peace officers, putting a stop to ICE agents falsely identifying themselves as probation officers.” - Background: In 2017, the Legislature clarified that federal Immigration and Customs Enforcement (ICE) officers and Customs and Border Protection officers are not California peace officers. (Pen. Code, § 830.85.) The impetus behind that legislation, AB 1440 (Kalra), Chapter 116, Statutes of 2017, was to prevent ICE agents from misrepresenting themselves as licensed peace officers in order to compel or coerce individuals into cooperating with them under false pretenses.
According to the background information provided by the author, despite this clarification, ICE agents continue to pose as peace officers. For example, a lawsuit filed by the ACLU of Southern California alleges that ICE conducts immigration enforcement operations at homes without a warrant or valid consent by using unlawful ruses where ICE officers impersonate police or misrepresent their governmental identity or purpose to residents. (See Kidd v. Mayorkas, Case No. 2:20-c-v-03512-ODW-JPR, https://www.aclusocal.org/en/cases/kidd-v-mayorkas [as of June 5, 2023].) In the February 2023 court order in that case granting class action certification the order states:
The parties dispute the content of ICE’s policies, and the extent of its practices, regarding mentioning an arrest target’s probationary status or impersonating a probation officer. ICE officers are typically aware of an arrest target’s probationary status because, prior to an enforcement action, ICE runs a criminal rap sheet on the target that indicates, among other things, the target’s probationary status. (R.H. Dep. 306:17-24.) Defendants suggest that the only way field officers use this information is to remind the arrest target that they are on probation and to threaten to contact the target’s probation officer in the event the target refuses to exit the residence. (Opp’n 6-7; R.H. Dep. 304:24-306:5.) Ice officer testimony reflects that ICE officer’s practice was to mention a target’s probationary status as part of their effort to convince the target to leave the residence, but that ICE officers did not actually impersonate probation officers. (Saarman Gonzalez Decl. Ex. 32 (“J.H. Dep.”) 196:18-21 (“It would be as simple as, you know, ‘You are on [c]ourt-[o]rdered probation, and you have to listen to all law enforcement authorities as a condition of your release, so could you come outside.’”); id. at 197:4 (“[T]o clarify, we don’t say we are probation.”).) (Kidd v. Mayorkas, order granting plaintiff’s motion to certify class, filed Feb. 7, 2023, at pp. 5-6, available at: https://www.aclusocal.org/en/cases/kidd-v-mayorkas [as of June 5, 2023].)
This bill seeks to prohibit ICE agents from impersonating probation officers or other California peace officers to coerce an undocumented person from cooperating under the guise of misrepresentation by limiting the authority to conduct searches and seizures of persons on supervised release only to probation officers or other peace officers.
- Forms of Supervised Release: Existing law provides that all individuals on parole and post-release community supervision (PRCS) are subject to search and seizure by parole officers, probation officers, and other peace officers. This condition of parole and PRCS is mandated by statute. (See Pen. Code, § 3067, subd. (b)(3).)
Unlike persons on parole or PRCS, not all persons on probation and other forms of supervised release are automatically subject to search and seizure conditions; rather, the person is subject to search and seizure per court order. The supervised person waives their constitutional right to privacy and agrees to search and seizure as a condition of supervised release. Accordingly, under existing law, there are no provisions specifying who can conduct a search of persons on other forms of supervised release, such as mandatory supervision[1], probation, home detention, or electronic monitoring.
This bill provides that all person subject to a warrantless search and seizure condition under these forms of supervised release are subject to search or seizure only by a probation officer or other peace officer. - Argument in Support: According to ACLU California Action, a co-sponsor of this bill, “California Penal Code Section 3067, which discusses the terms and conditions of parole, limits “searches and seizures” to be conducted “by a probation or parole officer or other peace officer.” Cal. Pen. Code § 3067(b)(3) (emphasis added). In 2017, the California Legislature clarified that ICE officers are not California peace officers. See Cal. Pen. Code § 830.85. However, California Penal Code Section 1203, governing the rules of probation, does not similarly limit searches to probation officers or peace officers.
“In practice, the absence of this limitation, has allowed ICE officers to target individuals on probation for enforcement operations. In conducting enforcement operations, particularly at the home, ICE officers commonly employ a “probation ruse” – e.g., ICE represents themselves as probation officers, claim they are conducting a probation check, or after knocking on the person’s door, ICE (without identifying themselves as such) ask to confirm that the person is on probation and ask them to either step outside of their home or grant officers consent to enter their home. Individuals who are on probation typically have no choice but to comply with officers’ requests because the terms of their probation require them to permit probation officers to access their homes and persons. Under current law, ICE officers likely aren’t authorized to exploit probation in this manner (because the existing definition of “peace officer” should apply to all probation sentences). Yet, ICE regularly exploits the ambiguity between “law enforcement” and “peace officer” in regard to probation in order to arrest probationers using methods that would be unconstitutional if used on non-probationers.
“In the Los Angeles area of responsibility, ICE has conducted at least 19,000 “at-large” arrests from 2014 to 2021. A sizable number of these arrests occur at residences. In April 2020, the ACLU of Southern California filed Kidd v. Mayorkas, a lawsuit challenging, among other things, probation ruses.
“SB 852 seeks to modify the California Penal Code Section 1203 clarify that probation searches can be conducted by probation officers or peace officers. Currently, this language does not exist in Section 1203.
“By limiting probation searches and seizures to be conducted by probation officers or peace officers, SB 852 would not allow ICE officers to rely on, and exploit, a person’s probation status when conducting home enforcement operations.”
- Related Legislation: AB 1306 (Carrillo) prohibits the California Department of Corrections and Rehabilitation from cooperating with the United States Department of Homeland Security when specified persons are being released. AB 1306 is pending referral in the Senate.
- Prior Legislation: AB 1440 (Kalra), Chapter 116, Statutes of 2017, specified that federal Immigration and Customs Enforcement officers and Customs and Border Protection officers are not California peace officers.
REGISTERED SUPPORT / OPPOSITION:
Support
ACLU California Action (Sponsor)
California Immigrant Policy Center
California Public Defenders Association
California Rural Legal Assistance Foundation
Coalition for Humane Immigrant Rights
Communities United for Restorative Youth Justice (CURYJ)
Immigrant Defenders Law Center
Initiate Justice Action
Inland Coalition for Immigrant Justice
Kern County Criminal Justice Coalition
Smart Justice California
Opposition
None submitted
Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744
Under realignment, where a felon is sentenced to county jail, the court must suspend execution of a concluding portion of the sentence, “[u]nless the court finds that, in the interests of justice, it is not appropriate in a particular case.” (Pen. Code, § 1170, subd. (h)(5)(A).) During the period of suspended execution, “known as mandatory supervision” the felon is supervised by the county probation officer. (Pen. Code, § 1170, subd. (h)(5)(B).) ↑
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 852 |
THIRD READING
Bill No: SB 852
Author: Rubio (D)
Amended: 3/21/23
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/25/23
AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener
SUBJECT: Searches: supervised persons
SOURCE: ACLU California Action
DIGEST:
This bill clarifies that a person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer; and clarifies that only a probation officer or peace officer may be designated by a correctional administrator to conduct searches of the residences of individuals participating in home detention programs or electronic monitoring programs.
ANALYSIS:
Existing law:
- Declares specific persons to be peace officers. (Pen. Code, §§ 830-830.55.)
- Clarifies that U.S. Immigration and Customs Enforcement officers and U.S. Customs and Border Protection officers are not California peace officers. (Pen. Code § 830.85.)
- Defines “probation” as “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.” (Pen. Code, § 1203, subd. (a).)
- Defines “conditional sentence” as “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.” (Pen. Code, § 1203, subd. (a).)
- Provides, notwithstanding any other law, that the board of supervisors of any county may authorize the correctional administrator, as defined, to offer a program under which the incarcerated individuals committed to a county jail or other county correctional facility or granted probation, or incarcerated individuals participating in a work furlough program, may voluntarily participate or involuntarily be placed in a home detention program during their sentence in lieu of confinement in a county jail or other county correctional facility or program under the auspices of the probation officer. (Pen. Code, § 1203.016, subd. (a).)
- Defines “correctional administrator” to mean the sheriff, probation officer, or director of the county department of corrections. (Pen. Code, § 1203.016, subd. (g).)
- Authorizes the board of supervisors, in consultation with the correctional administrator, to prescribe reasonable rules and regulations under which a home detention program may operate. Requires the incarcerated individual to give consent in writing to participate in the home detention program as a condition of participation in the program, and to agree in writing to comply or, for involuntary participation, requires the incarcerated individual to be informed in writing that the individual must comply, with the rules and regulations of the program, including, that the participant must admit any person or agent designated by the correctional administrator into the participant’s residence at any time for purposes of verifying the participant’s compliance with the conditions of the detention. (Pen. Code, § 1203.016, subd. (b).)
- Provides, notwithstanding any other provision of law, upon determination by the correctional administrator that conditions in a jail facility warrant the necessity of releasing incarcerated individuals sentenced for misdemeanors prior to them serving the full amount of a given sentence due to lack of jail space, the board of supervisors of any county may authorize the correctional administrator to offer a program under which incarcerated individuals committed to a county jail or other county correctional facility or granted probation, or incarcerated individuals participating in a work furlough program, may be required to participate in an involuntary home detention program, which shall include electronic monitoring, during their sentence in lieu of confinement in the county jail or other county correctional facility or program under the auspices of the probation officer. (Pen. Code, § 1203.017, subd. (a).)
- Authorizes the board of supervisors to prescribe reasonable rules and regulations under which an involuntary home detention program may operate. Requires the incarcerated person to be informed in writing that he or she must comply with the rules and regulations of the program, including, that the participant must admit any peace officer designated by the correctional administrator into his or her residence at any time for purposes of verifying the participant’s compliance with the conditions of his or her detention. (Pen. Code, § 1203.017, subd. (b).)
- Provides, notwithstanding any other law, the board of supervisors of any county may authorize the correctional administrator, as defined, to offer a program under which incarcerated individuals being held in lieu of bail in a county jail or other county correctional facility may participate in an electronic monitoring program if specified conditions are met. (Pen. Code, § 1203.018, subd. (b).)
- Authorizes the board of supervisors, after consulting with the sheriff and district attorney, to prescribe reasonable rules and regulations under which an electronic monitoring program may operate. Requires the participant to give consent in writing to participate as a condition of participation in the electronic monitoring program and to agree in writing to comply with the rules and regulations of the program, including, that the participant must admit any person or agent designated by the correctional administrator into the participant’s residence at any time for purposes of verifying the participant’s compliance with the conditions of the detention. (Pen. Code, § 1203.018, subd. (d).)
- Requires all persons released by a court at or after the initial hearing and prior to a formal probation violation hearing, as specified, be released on their own recognizance unless the court finds, by clear and convincing evidence, that the particular circumstances of the case require the imposition of an order to provide reasonable protection to the public and reasonable assurance of the person’s future appearance in court. (Pen. Code, § 1203.25, subd. (a).)
- Provides that reasonable conditions of release may include, but are not limited to, reporting telephonically to a probation officer, protective orders, a global positioning system (GPS) monitoring device or other electronic monitoring, or an alcohol use detection device. (Pen. Code, § 1203.25, subd. (b).)
- Requires that any incarcerated individual who is eligible for release on parole or postrelease community supervision be given notice that he or she is subject to terms and conditions of his or her release from prison. Requires the notice to include several things, including 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. (Pen. Code, § 3067, subds. (a), (b).)
This bill:
- Provides that a person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer.
- Clarifies that a participant of a home detention program must admit any probation officer or peace officer designated by the correctional administrator into the participant’s residence at any time for purposes of verifying the participant’s compliance with the conditions of the participant’s detention.
- Specifies that reasonable conditions of release for a person released by a court on their own recognizance includes search and seizure by a probation officer or other peace officer.
- Includes several legislative findings and declarations.
Background
Several provisions of law declare specific persons to be peace officers. (Pen. Code, §§ 830-830.55.) As a result of aggressive immigration enforcement, Penal Code section 830.85 was enacted in 2017 to clarify that U.S. ICE and U.S. Customs and Border Protection officers are not California peace officers. The supporters of this bill assert that ICE officers have posed as probation officers in order to gain access to individuals on probation who are subject to home searches. This bill provides that a person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer. This bill also seeks to amend several code sections related to probation when the person is a participant in a home detention or electronic monitoring program to clarify that a search of the person’s residence must be performed only by a probation officer or other peace officer. Finally, this bill specifies that reasonable conditions of release for a person released by a court on their own recognizance includes search and seizure by a probation officer or other peace officer.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
SUPPORT: (Verified 4/26/23)
ACLU California Action (source)
California Immigrant Policy Center
California Public Defenders Association
California Rural Legal Assistance Foundation
Coalition for Humane Immigrant Rights
Immigrant Defenders Law Center
Inland Coalition for Immigrant Justice
Kern County Criminal Justice Coalition
OPPOSITION: (Verified 4/26/23)
None received
Prepared by: Stephanie Jordan / PUB. S. /
4/28/23 15:14:58
**** END ****
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Aisha Wahab, Chair
2023 - 2024 Regular
Bill No: SB 852 Hearing Date: April 25, 2023
Author: | Rubio | ||
Version: | March 21, 2023 | ||
Urgency: | No | Fiscal: | No |
Consultant: | SJ | ||
Subject: Searches: supervised persons
HISTORY
Source: ACLU California Action
Prior Legislation: AB 1440 (Kalra), Ch. 116, Stats. 2017
Support: California Immigrant Policy Center; California Public Defenders Association; California Rural Legal Assistance Foundation; Coalition for Humane Immigrant Rights; Immigrant Defenders Law Center
Opposition: None known
PURPOSE
The purpose of this bill is to: 1) clarify that a person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer; and 2) clarify that only a probation officer or peace officer may be designated by a correctional administrator to conduct searches of the residences of individuals participating in home detention programs or electronic monitoring programs.
Existing law declares specific persons to be peace officers. (Pen. Code, §§ 830-830.55.)
Existing law clarifies that U.S. Immigration and Customs Enforcement officers and U.S. Customs and Border Protection officers are not California peace officers. (Pen. Code § 830.85.)
Existing law defines “probation” as “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.” (Pen. Code, § 1203, subd. (a).)
Existing law defines “conditional sentence” as “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.” (Pen. Code, § 1203, subd. (a).)
Existing law provides, notwithstanding any other law, that the board of supervisors of any county may authorize the correctional administrator, as defined, to offer a program under which the incarcerated individuals committed to a county jail or other county correctional facility or granted probation, or incarcerated individuals participating in a work furlough program, may voluntarily participate or involuntarily be placed in a home detention program during their sentence in lieu of confinement in a county jail or other county correctional facility or program under the auspices of the probation officer. (Pen. Code, § 1203.016, subd. (a).)
Existing law defines “correctional administrator” to mean the sheriff, probation officer, or director of the county department of corrections. (Pen. Code, § 1203.016, subd. (g).)
Existing law authorizes the board of supervisors, in consultation with the correctional administrator, to prescribe reasonable rules and regulations under which a home detention program may operate. Requires the incarcerated individual to give consent in writing to participate in the home detention program as a condition of participation in the program, and to agree in writing to comply or, for involuntary participation, requires the incarcerated individual to be informed in writing that the individual must comply, with the rules and regulations of the program, including, that the participant must admit any person or agent designated by the correctional administrator into the participant’s residence at any time for purposes of verifying the participant’s compliance with the conditions of the detention. (Pen. Code, § 1203.016, subd. (b).)
Existing law provides, notwithstanding any other provision of law, upon determination by the correctional administrator that conditions in a jail facility warrant the necessity of releasing incarcerated individuals sentenced for misdemeanors prior to them serving the full amount of a given sentence due to lack of jail space, the board of supervisors of any county may authorize the correctional administrator to offer a program under which incarcerated individuals committed to a county jail or other county correctional facility or granted probation, or incarcerated individuals participating in a work furlough program, may be required to participate in an involuntary home detention program, which shall include electronic monitoring, during their sentence in lieu of confinement in the county jail or other county correctional facility or program under the auspices of the probation officer. (Pen. Code, § 1203.017, subd. (a).)
Existing law authorizes the board of supervisors to prescribe reasonable rules and regulations under which an involuntary home detention program may operate. Requires the incarcerated person to be informed in writing that he or she must comply with the rules and regulations of the program, including, that the participant must admit any peace officer designated by the correctional administrator into his or her residence at any time for purposes of verifying the participant’s compliance with the conditions of his or her detention. (Pen. Code, § 1203.017, subd. (b).)
Existing law provides, notwithstanding any other law, the board of supervisors of any county may authorize the correctional administrator, as defined, to offer a program under which incarcerated individuals being held in lieu of bail in a county jail or other county correctional facility may participate in an electronic monitoring program if specified conditions are met. (Pen. Code, § 1203.018, subd. (b).)
Existing law authorizes the board of supervisors, after consulting with the sheriff and district attorney, to prescribe reasonable rules and regulations under which an electronic monitoring program may operate. Requires the participant to give consent in writing to participate as a condition of participation in the electronic monitoring program and to agree in writing to comply with the rules and regulations of the program, including, that the participant must admit any person or agent designated by the correctional administrator into the participant’s residence at any time for purposes of verifying the participant’s compliance with the conditions of the detention. (Pen. Code, § 1203.018, subd. (d).)
Existing law requires all persons released by a court at or after the initial hearing and prior to a formal probation violation hearing, as specified, be released on their own recognizance unless the court finds, by clear and convincing evidence, that the particular circumstances of the case require the imposition of an order to provide reasonable protection to the public and reasonable assurance of the person’s future appearance in court. (Pen. Code, § 1203.25, subd. (a).)
Existing law provides that reasonable conditions of release may include, but are not limited to, reporting telephonically to a probation officer, protective orders, a global positioning system (GPS) monitoring device or other electronic monitoring, or an alcohol use detection device. (Pen. Code, § 1203.25, subd. (b).)
Existing law requires that any incarcerated individual who is eligible for release on parole or postrelease community supervision be given notice that he or she is subject to terms and conditions of his or her release from prison. Requires the notice to include several things, including 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. (Pen. Code, § 3067, subds. (a), (b).)
This bill provides that a person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer.
This bill clarifies that a participant of a home detention program must admit any probation officer or peace officer designated by the correctional administrator into the participant’s residence at any time for purposes of verifying the participant’s compliance with the conditions of the participant’s detention.
This bill specifies that reasonable conditions of release for a person released by a court on their own recognizance includes search and seizure by a probation officer or other peace officer.
This bill includes several legislative findings and declarations.
COMMENTS
- Need For This Bill
According to the author:
California’s courageous law enforcement professionals have worked hard to build trust with local communities in order to provide for the public’s safety. That trust is jeopardized when ICE agents impersonate probation officers as a tactic to compel and coerce people into cooperating with them.
SB 852 – also known as the Prohibiting Rogue Officers Tricks and Ensuring Community Trust (PROTECT) Act – will safeguard and protect the public’s trust in law enforcement by prohibiting ICE agents from falsely identifying themselves as probation officers. This will limit ICE officers’ ability to use unlawful ruse tactics that abuse the rights of probationers when conducing home enforcement operations. Although ICE officers are not likely authorized to exploit probation, given that the existing definition of “peace officer” should apply to all probation sentences, they nevertheless exploit the ambiguity between law enforcement officer and peace officer. In this way, ICE officers arrest probationers using methods that would be unconstitutional if used on non-probationers. The community as a whole, but particularly the Latino community, has or may be impacted by ICE’s unlawful ruse tactics, including the use of probation ruses.
By specifying that probation searches can only be conducted by California probation officers or peace officers, the PROTECT Act will put an end to these tactics and reassure all community members that they can interact with state and local law enforcement without fear of deportation.
- Background
Several provisions of law declare specific persons to be peace officers. (Pen. Code, §§ 830-830.55.) As a result of aggressive immigration enforcement, Penal Code section 830.85 was enacted in 2017 to clarify that U.S. ICE and U.S. Customs and Border Protection officers are not California peace officers. The supporters of this bill assert that ICE officers have posed as probation officers in order to gain access to individuals on probation who are subject to home searches. This bill provides that a person who is granted probation is subject to search or seizure as part of their terms and conditions only by a probation officer or other peace officer. This bill also seeks to amend several code sections related to probation when the person is a participant in a home detention or electronic monitoring program to clarify that a search of the person’s residence must be performed only by a probation officer or other peace officer. Finally, this bill specifies that reasonable conditions of release for a person released by a court on their own recognizance includes search and seizure by a probation officer or other peace officer.
- Argument in Support
The Coalition for Humane Immigrant Rights writes:
SB 852 … would eliminate ambiguities in the terms and conditions of probation under California law, which does not currently limit searches to probation officers or peace officers. These conditions have been exploited by U.S. Immigration and Customs Enforcement (ICE) officers when conducting home enforcement operations. The changes made by SB 852 will prohibit ICE officers from relying on and exploiting a person’s probation status when conducting home enforcement operations.
This proposal follows previous, similar reforms. In 2017, the California Legislature clarified that ICE officers are not California peace officers. See Cal. Pen. Code § 830.85. However, California Penal Code Section 1203, governing the rules of probation, does not similarly limit searches to probation officers or peace officers. California Penal Code Section 3067, which discusses the terms and conditions of parole, limits “searches and seizures” to be conducted “by a probation or parole officer or other peace officer.” Cal. Pen. Code § 3067(b)(3) (emphasis added).
In practice, the absence of this limitation, has allowed ICE officers to target individuals on probation for enforcement operations. In conducting enforcement operations, particularly at the home, ICE officers commonly employ a “probation ruse” – e.g., ICE represents themselves as probation officers, claim they are conducting a probation check, or after knocking on the person’s door, ICE (without identifying themselves as such) ask to confirm that the person is on probation and ask them to either step outside of their home or grant officers consent to enter their home. Individuals who are on probation typically have no choice but to comply with officers’ requests because the terms of their probation require them to permit probation officers to access their homes and persons. Under current law, ICE officers likely are not authorized to exploit probation in this manner (because the existing definition of “peace officer” should apply to all probation sentences). Yet, ICE regularly exploits the ambiguity between “law enforcement” and “peace officer” in regard to probation in order to arrest probationers using methods that would be unconstitutional if used on non-probationers.
In the Los Angeles area of responsibility alone, ICE has conducted at least 19,000 “at-large” arrests from 2014 to 2021. A sizable number of these arrests occur at residences. In April 2020, the ACLU of Southern California filed Kidd v. Mayorkas, a lawsuit challenging, among other things, probation ruses.
By limiting probation searches and seizures to be conducted by probation officers or peace officers, SB 852 would not allow ICE officers to rely on, and exploit, a person’s probation status when conducting home enforcement operations.
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Bill Author
Bill Co-Author(s):