BILL ANALYSIS
AB 95
Page 1
Date of Hearing: February 27, 2007
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 95 (Beall) - As Introduced: December 20, 2006
As Proposed to be Amended in Committee
SUMMARY : Requires that if a court is to grant a term of
probation for any person convicted of a crime of domestic
violence, as specified, the court must impose only formal
probation until the defendant has completed the batterer's
treatment program (BTP). Specifically, this bill :
1)Limits the authority of the county probation office to
determine the level and type of supervision consistent with a
court-ordered term of probation when the defendant has been
placed on probation for a crime of domestic violence, as
specified.
2)States the sentencing court, with the recommendation of the
county probation office, shall decide the appropriate level of
supervision for offenders placed on probation for a crime of
domestic violence, as specified.
3)Clarifies the minimum period of formal probation for crimes of
domestic violence is three years and states the court may, in
its discretion, place the defendant on court probation once he
or she has completed the required BTP.
4)States the court, and not the probation department, must order
the offender into an approved BTP and not an alternate
counseling program if no BTP is available.
5)Requires the BTP to provide progress reports to the sentencing
court every month.
6)Deletes the authority of the BTP to grant an excused absence
for good cause to the offender and removes the court's
discretion to modify requirements of consecutive attendance.
7)Provides that if a defendant is absent from a weekly session,
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he or she will not be deemed to have successfully completed
the BTP until the defendant attends a make-up session for each
missed session.
8)Requires the defendant to be terminated from the BTP and
re-referred to the sentencing court if he or she misses more
than three weekly sessions during the duration of the BTP or
fails to successfully complete the BTP for any reason.
9)States the sentencing court must revoke probation and impose
sentence unless the court finds good cause to re-instate the
terms and conditions of probation.
10)Provides that if the sentencing court finds good cause, the
court may re-instate probation modifying the terms of
probation to re-refer the defendant to the BTP and require him
or her to serve an additional 15 days in the county jail.
11)State the sentencing court may only re-instate probation and
re-refer the defendant one time. If after that point, the
defendant misses one session or otherwise fails to complete
the BTP, the court must revoke probation and impose sentence.
12)Requires the court-ordered BTP to immediately contact the
court if it finds the defendant unsuitable for the BTP and the
sentencing court to re-calendar the matter or refer the
defendant to alternate BTP.
13)Mandates the court may only refer defendants to BTPs approved
by the probation department, as specified.
14)States probation must annually make available to the courts a
list of approved BTPs and shall only list as approved BTPs
that meet the appropriate standards.
15)States the probation department must design and implement an
approval and annual renewal process for BTPs.
16)Requires the defendant must be removed from the BTP if he or
she fails to abide by the terms of the BTP or is not
benefiting from treatment.
17)Provides that the BTP must submit monthly progress reports to
the court and probation.
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18) Provides that if a BTP fails to comply with the standards
established by the probation department, as specified, the
probation department shall remove the BTP from the list of
approved programs submitted to the court.
19)States the probation department shall have sole authority to
approve the BTPs referred to the court and used as a term of
probation.
20)Mandates the BTPs notify the court, in writing, within 30
days of any person who fails to complete the BTP, is
performing unsatisfactorily or misses more than three sessions
during the entire duration of the program.
21)Finds and declares the following:
a) The State Auditor's November 2006 report regarding
batterer intervention programs found that county probation
departments do not always comply with statutory
requirements regarding batterer intervention programs.
b) Only about one-half of the batterers ordered to complete
a BTP as a term of probation ever complete the BTP, as
required by law.
c) County probation departments re-refer defendants to BTPs
after defendants are terminated from BTPs without notifying
courts of the defendants' terminations from BTPs, as
required by law.
d) County probation departments do not consistently conduct
annual reviews of approved BTPs, as required by law.
e) Courts are failing to impose consequences on defendants
who are re-referred to courts for failing to successfully
complete BTPs.
f) Batterers need to be held accountable for failing to
comply with the requirements of the BTP.
g) The lack of accountability reduces the effectiveness of
BTPs which are designed to alleviate the statewide and
serious problem of domestic violence.
h) More oversight and involvement by the courts increase
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the likelihood that a defendant will successfully complete
a BTP.
i) Current law must be amended to ensure strict compliance
with statutory requirements and to require courts to be
more actively involved in a defendant's progress with a
BTP.
22)Recasts the provisions related to probation in domestic
violence cases so as to preserve the law beyond the January 1,
2010 sunset date in existing law.
EXISTING LAW :
1)Defines "domestic violence" as abuse perpetrated against a
spouse or former spouse, a cohabitant or former cohabitant, a
person with whom the defendant is having or has had a dating
or engagement relationship, a person with whom the defendant
has had a child, a child of a party or a child who is the
subject of an action under the Uniform Parentage Act, where
the presumption applies that the male parent is the father of
the child to be protected, or any other person related by
consanguinity or affinity within the second degree. (Family
Code Section 6211.)
2)States when a battery is committed against a spouse, a person
with whom the defendant is cohabiting, a person who is the
parent of the defendant's child, former spouse, fianc?, or
fianc?e, or a person with whom the defendant currently has, or
has previously had, a dating or engagement relationship, the
battery is punishable by a fine not exceeding two $2,000; by
imprisonment in a county jail for a period of not more than
one year; or by both that fine and imprisonment. If probation
is granted, or the execution or imposition of the sentence is
suspended, it shall be a condition thereof that the defendant
participate in, for no less than one year, and successfully
complete, a BTP, as defined in existing law, or if none is
available, another appropriate counseling program designated
by the court. However, this provision shall not be construed
as requiring a city, a county, or a city and county to provide
a new program or higher level of service as contemplated by
the State Constitution. [Penal Code Section 243(e)(1).]
3)Provides that upon conviction of a violation for battery on a
person in a dating relationship, as specified, if probation is
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granted, the conditions of probation may include, in lieu of a
fine, one or both of the following requirements:
a) That the defendant make payments to a battered women's
shelter, up to a maximum of $5,000;
b) That the defendant reimburses the victim for reasonable
costs of counseling and other reasonable expenses that the
court finds are the direct result of the defendant's
offense. [Penal Code Section 243(e)(2)(A) and (B).]
4)States any person who willfully inflicts upon a person who is
his or her spouse, former spouse, cohabitant, former
cohabitant, or the mother or father of his or her child,
corporal injury resulting in a traumatic condition, is guilty
of a felony, and upon conviction thereof shall be punished by
imprisonment in the state prison for two, three, or four years
or in a county jail for not more than one year; by a fine of
up to $6,000; or by both that fine and imprisonment. [Penal
Code Section 273.5(a).]
5)Includes the terms and conditions of probation for a person
granted probation for a crime in which the victim is a person
defined in the Family Code and it is a crime of domestic
violence, as follows:
a) A minimum period of probation of 36 months, which may
include a period of summary probation as appropriate.
b) A criminal court protective order protecting the victim
from further acts of violence, threats, stalking, sexual
abuse, and harassment, and, if appropriate, containing
residence exclusion or stay-away conditions.
c) Notice to the victim of the disposition of the case.
d) Booking the defendant within one week of sentencing if
the defendant has not already been booked.
e) Successful completion of a batterer's program, as
defined in existing law, or if none is available, another
appropriate counseling program designated by the court, for
a period not less than one year with periodic progress
reports by the program to the court every three months or
less and weekly sessions of a minimum of two hours class
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time duration. The defendant shall attend consecutive
weekly sessions unless granted an excused absence for good
cause by the program for no more than three individual
sessions during the entire program, and shall complete the
program within 18 months unless, after a hearing, the court
finds good cause to modify the requirements of consecutive
attendance or completion within 18 months. [Penal Code
Section 1203.097(a)(1) to (6).]
6)States if a person is granted formal probation for a crime in
which the victim is a person defined in the Family Code and is
a crime of domestic violence, in addition to the terms
specified, all of the following shall apply:
a) The probation department shall make an investigation and
take into consideration the defendant's age; medical
history; employment and service records; educational
background; community and family ties; prior incidents of
violence; police report; treatment history, if any;
demonstrable motivation; and other mitigating factors in
determining which batterer's program would be appropriate
for the defendant. This information shall be provided to
the BTP if it is requested. The probation department shall
also determine which community programs the defendant would
benefit from and which of those programs would accept the
defendant. The probation department shall report its
findings and recommendations to the court. [Penal Code
Section 1203.097(b)(1).]
b) The court shall advise the defendant that the failure to
report to the probation department for the initial
investigation, as directed by the court, or the failure to
enroll in a specified program, as directed by the court or
the probation department, shall result in possible further
incarceration. The court, in the interests of justice, may
relieve the defendant from the prohibition set forth in
this subdivision based upon the defendant's mistake or
excusable neglect. Application for this relief shall be
filed within 20 court days of the missed deadline. This
time limitation may not be extended. A copy of any
application for relief shall be served on the office of the
prosecuting attorney. [Penal Code Section 1203.097(b)(2).]
c) After the court orders the defendant to a BTP, the
probation department shall conduct an initial assessment of
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the defendant, including, but not limited to, all of the
following:
i) Social, economic, and family background.
ii) Education.
iii) Vocational achievements.
iv) Criminal history.
v) Medical history.
vi) Substance abuse history.
vii) Consultation with the probation officer.
viii) Verbal consultation with the victim, only if the
victim desires to participate.
ix) Assessment of the future probability of the
defendant committing murder.
7)Requires the court or the probation department refer
defendants only to BTPs that follow standards outlined in
existing law, which may include, but are not limited to,
lectures, classes, group discussions, and counseling. The
probation department shall design and implement an approval
and renewal process for batterer's programs and shall solicit
input from criminal justice agencies and domestic violence
victim advocacy programs. [Penal Code Section 1203.097(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "When the Bureau
of State Auditors (BSA) brought this report's conclusions to
my attention, I was angered and outraged to find out that only
about one-half of batterers actually fulfill their BTP
requirements. I was appalled to come to understand that some
of the county probation departments that were visited are
counseling and referring batterers back to BTPs after they
have been terminated for violations, rather than remanding
these violent offenders back to the courts for prosecution and
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jail time. This outrage was compounded when the auditor
pointed out that only 2 out of 125 violent offenders ever
completed a program after committing three or more violations.
We have to STOP sending a message to these violent offenders
that their crimes are not serious and will be tolerated, and
this bill does just that!"
2)Background : According to information provided by the author,
"Recently, the BSA conducted an audit of these intervention
programs and found the following:
a) "The overall completion rate for batterers enrolling in
a program in 2004 was 54%, and more than 25% of those
reviewed who completed the programs did so after committing
violations of program or probation requirements.
b) "Although the most frequent violation was for
noncompliance with attendance policies, the departments
reviewed had differing policies, and all were more lenient
than statutory provisions.
c) "Some departments are counseling and referring batterers
back to BTPs after being terminated for violations, rather
than notifying the courts. This practice is in conflict
with statutory provisions that require departments to
notify the courts of violations.
d) "The ability to impose consequences on noncompliant
batterers makes the role of the courts crucial in batterer
accountability. Yet, sometimes courts notified of
violations simply return batterers to BTPs without imposing
any additional jail time, even though batterers had
multiple prior violations. This practice may be sending
the unintended message to batterers that they can avoid the
program requirement without any significant penalty for
doing so.
e) "Some counties have batterers appear regularly in court
for progress reviews, which appears to provide greater
accountability and may improve outcomes.
f) "The departments are not consistently performing on-site
reviews as required by statute to ensure that the programs
are complying with statutory requirements."
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3)Formal Probation vs. Court Probation : Under existing law,
formal "probation" is defined as the suspension of the
imposition of a sentence and the order or conditional and
revocable release in the community under the supervision of a
probation department. [Penal Code Section 1203(a).] For
example, a defendant may be found guilty of felony grand
theft. After reviewing the facts of the case and the
defendant's record, the judge may decide to suspend a sentence
of two years in state prison and place the defendant on
probation for a term of three years. This means the defendant
must be report regularly to a probation officer who monitors
the defendant. The probation department ensures the defendant
is complying with the terms and conditions of probation. If
the defendant violates probation, a judge may require the
defendant to return to court and impose the original two year
sentence.
Courts are also authorized to place a defendant convicted of an
infraction or misdemeanor on probation without referring him
or her to the probation department. (Penal Code Section
1203b.) This is generally referred to as "summary" or "court"
probation. Court probation means the defendant must comply
with the terms and conditions of probation, but will not have
to report to, and will not be monitored by, the probation
department. The defendant's probation may still be revoked if
he or she fails to comply with the terms of probation. In the
above example, the court may have placed the defendant on
probation for a total of five years: three years of "formal"
probation and two years of "court" probation. In most cases,
the maximum length of time for "court" probation is three
years, as specified; and unless the court states otherwise,
misdemeanors are granted "court" probation. [Penal Code
Sections 1203a) and (b).] This bill would require "formal"
probation for three years for all domestic violence crimes
regardless of whether the charge is a misdemeanor or a felony
and denies probation the authority to decide the appropriate
supervision level.
4)Probation for Domestic Violence Crimes : In cases of "domestic
violence", existing law requires that if the court places the
defendant on probation, he or she must be referred and
successfully complete a BTP. [Penal Code Section
1203.097(a).] The defendant must be in a BTP for at least one
year and the program must send periodic reports on the
defendant's progress to the court every three months. The
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defendant is required to attend consecutive weekly sessions,
unless granted an excused absence for good cause by the
program for no more than three individual sessions during the
BTP and must complete the program within 18 months. [Penal
Code Section 1203.097(b)(6).] If formal probation is granted,
the probation department does extensive evaluations of the
defendant and determines the best BTP for his or her
individual needs.
Under this bill, if the court decides to place the defendant on
probation for a domestic violence charge, it must be formal
probation until he or she has completed the BTP. This bill
also states that probation may only provide the court with a
list of approved BTPs and the court, based on the information
provided by probation, will refer the defendant to the
appropriate program. The program must report the defendant's
progress to the court every month. If the defendant misses
more than three sessions, he or she is returned to court and
sentenced unless the judge finds good cause to re-refer the
defendant for one last chance. If the court does decide to
re-refer the defendant to the BTP, the court must sentence the
defendant to 15 days in jail.
5)Attorney General Report on Victim Safety and Batterer
Accountability : In June 2005, the Attorney General (AG)
issued a report, "Keeping the Promise: Victim Safety and
Batterer Accountability". The report outlined how local
jurisdictions were responding to domestic violence. The
report found several areas in which local jurisdictions were
lacking in protecting victims of domestic violence and made
various recommendations for improvement. The task force made
several findings on the effectiveness of BTPs and what changes
should be made to increase participation. The report states,
"Batterer intervention programs are at the center of
California's criminal justice response to domestic violence.
Most convicted batterers are sentenced to probation and
required, as part of that sentence, to complete a 52-week
program. Even after 15 years of national evaluations, it is
impossible to say how effective these programs are. This is
in part because so many participants fail to complete their
programs, which in turn suggests that there are no credible
sanctions for non-completion. The Task Force examined this
key issue: how do criminal justice agencies in the core
counties ensure that batterers complete their programs.
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"In the mid-1990s, the Legislature gave batterer intervention
programs substantial responsibility for probationary
supervision of batterers. Programs must periodically apprise
the court about a batterer's compliance with program
requirements and immediately notify the court if the batterer
appears to be out of compliance. It is the court's
responsibility to hold an immediate hearing and decide whether
to impose sanctions.
" Problematic Practice : Batterers in the core counties have a
dismal record of completing their programs. The estimates of
non-completion offered by probation officers and prosecutors
ranged from 30% to 50%. The only county that tracks this data
reported a non-completion rate of 89% (citation omitted). By
law, a batterer intervention program must refer a batterer to
court for a hearing if the batterer misses a session without
'good cause,' or misses a session, regardless of the reason,
after three excused absences. All programs surveyed in the
core counties excuse more absences - some allow many more
absences - than the law permits. The probation department, in
collaboration with the prosecutor's office, victim advocacy
agencies, batterer intervention programs, and other members of
the local domestic violence coordinating council, should
develop and enforce a consistent policy regarding legally
permissible absences from batterer intervention programs.
" Recommendation : In each county, the probation department and
prosecutor's office, in consultation with the court, should
adopt a strategy that imposes specific, immediate, and
predictable consequences (including immediate arrest) for
absences from batterer intervention programs. When batterer
intervention programs refer non-compliant batterers to court
(usually for unexcused absences), the most common judicial
sanction is to re-enroll the offender in another program,
numerous times if necessary. Re-enrollment means that there
are virtually no consequences for a batterer who does not
comply with attendance requirements. The lack of consequences
is complete when judges give re-enrolled batterers credit for
sessions attended in the previous program, and some judges do
precisely that. In each county, the court, in consultation
with the probation department and the prosecutor's office,
should develop a strategy to ensure that multiple
re-enrollments do not take place without additional and
graduated sanctions." [AG Report, "Keeping the Promise:
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Victim Safety and Batterer Accountability", Executive Summary
pgs. 5 to 7 (June 2005).]
This bill includes several of the recommendations suggested by
the report, including the requirement for courts to take a
more active role in monitoring the defendant's progress in the
BTP and imposing graduated sanctions for failure to comply if
the defendant is to be re-referred to the program.
6)Arguments in Opposition : The California Public Defenders
Association (CPDA) states, "While well intentioned, CPDA is
concerned that this bill will not further the goal of reducing
domestic violence, nor will this bill ensure that meaningful
treatment is received by those convicted of spousal battery
related offenses. Rather, this bill would deplete existing
supervision resources of county probation departments without
efficiently utilizing their resources.
"Currently, courts are appropriately utilizing discretion in
determining whether particular considerations of a misdemeanor
domestic violence case justify the imposition of formal
probation. Additionally, county probation departments are
competent to determine the level of supervision consistent
with court-ordered conditions.
"Defendants convicted of domestic violence related crimes are
already required to attend a Probation-approved, 52-week
batter's intervention program and must report for regular
progress reports to the court. Probation already approves of
and monitors the court-ordered batterer's intervention
programs and some of those programs are conducted in other
major languages. Requiring that Probation go further to
specify a particular program for each individual probationer
would prove extremely time consuming and would provide no
added benefit.
"Batterer's intervention programs currently refer appropriate
misdemeanor domestic violence probationers back to the courts
upon apparent failures to comply with attendance requirements.
The fact that a program has terminated a probationer does not
mean that a probationer is in violation of probation.
Oftentimes, programs terminate participants for failure to
pay, due to reasons that are not the fault of the probationer.
Probationers are entitled to hearings where good cause must
be established, and courts may not impose violations based on
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an individual's inability to pay for the classes. Bench
officers must maintain broad discretion and independence in
their sentencing options as well as in determining appropriate
sanctions for a particular individual. Requiring that
sentence be executed if a defendant is re-referred to the
court and limiting a court's ability to re-refer a probationer
to a program to one time will strip the court of its ability
to approach each case on its individual merits."
7)Prior Legislation :
a) AB 59 (Cohn), of the 2005-06 Legislative Session, would
have provided for enhanced punishment for persons convicted
of domestic violence in the presence of any child under 18
years of age. AB 59 was held on the Assembly Committee on
Appropriations' Suspense File.
b) AB 106 (Cohn), of the 2005-06 Legislative Session, would
have created an amnesty program for fines, fees, penalties,
and assessments imposed on those convicted of spousal
battery or domestic violence. AB 106 was held on the
Assembly Committee on Appropriations' Suspense File.
c) AB 2695 (Goldberg), Chapter 476, Statutes of 2006,
extends the sunset date to January 1, 2010 for the $400 fee
imposed on a person convicted of domestic violence to
support domestic violence centers, the Domestic Violence
Restraining Order Reimbursement Fund and the Domestic
Violence Training and Education Fund.
REGISTERED SUPPORT / OPPOSITION :
Support
Police Officers Research Association of California
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
State Coalition of Probation Organizations
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744
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