California Legislature—2013–14 Regular Session

Assembly BillNo. 1508


Introduced by Assembly Member Gatto

January 14, 2014


An act to amend Section 1203 of, and to add Sections 19.1, 29.9, and 1170.83 to, the Penal Code, relating to criminal procedure.

LEGISLATIVE COUNSEL’S DIGEST

AB 1508, as introduced, Gatto. Criminal procedure.

(1) Existing law requires, when a range of punishments is prescribed for a particular crime, the punishment to be inflicted in a particular case to be determined by the court, subject to certain limitations, and requires, when a statute specifies 3 possible terms of imprisonment, the court to order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.

This bill would provide that, when determining the punishment to be imposed in all misdemeanor and infraction cases, or when determining the term to be imposed when a statute specifies 3 possible terms of imprisonment, the fact that a defendant did not understand the consequences of his or her actions because he or she was raised in an affluent or overly permissive household shall not be considered a circumstance in mitigation of the crime.

(2) Existing law requires the court to hear and determine the suitability of probation in a particular case. At the hearing, the court is required to consider any report of the probation officer, and, 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, the court may place the person on probation.

This bill would provide, for purposes of these provisions, that circumstances in mitigation do not include the fact that the defendant may not have understood the consequences of his or her actions because he or she was raised in an affluent or overly permissive household.

(3) Existing law provides that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Existing law provides that diminished capacity, diminished responsibility, or irresistable impulse is not a defense in a criminal action or juvenile adjudication hearing.

This bill would provide that an act committed by a person is not less criminal by reason of his or her having been raised in an affluent or overly permissive household, nor is it a defense to a criminal action or juvenile adjudication that a person did not understand the consequences of his or her actions because he or she was raised in an affluent or overly permissive household. By eliminating a potential criminal defense, this bill would impose a state-mandated local program.

(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

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SECTION 1.  

Section 19.1 is added to the Penal Code, to read:

2

19.1.  

In all misdemeanor and infraction cases, the fact that a
3defendant did not understand the consequences of his or her actions
4because he or she was raised in an affluent or overly permissive
5household shall not be considered a circumstance in mitigation of
6the crime in determining the punishment to be imposed.

7

SEC. 2.  

Section 29.9 is added to the Penal Code, immediately
8following Section 29.8, to read:

9

29.9.  

As a matter of public policy, it shall not be a defense in
10any criminal action or juvenile adjudication that a person did not
11understand the consequences of his or her actions because he or
12she was raised in an affluent or overly permissive household, nor
13shall any act committed by a person be less criminal by reason of
P3    1his or her having been raised in an affluent or overly permissive
2household.

3

SEC. 3.  

Section 1170.83 is added to the Penal Code, to read:

4

1170.83.  

The fact that a defendant did not understand the
5consequences of his or her actions because he or she was raised
6in an affluent or overly permissive household shall not be
7considered a circumstance in mitigation of the crime in imposing
8a term under subdivision (b) of Section 1170.

9

SEC. 4.  

Section 1203 of the Penal Code is amended to read:

10

1203.  

(a) As used in this code, “probation” means the
11suspension of the imposition or execution of a sentence and the
12order of conditional and revocable release in the community under
13the supervision of a probation officer. As used in this code,
14“conditional sentence” means the suspension of the imposition or
15execution of a sentence and the order of revocable release in the
16community subject to conditions established by the court without
17the supervision of a probation officer. It is the intent of the
18Legislature that both conditional sentence and probation are
19authorized whenever probation is authorized in any code as a
20sentencing option for infractions or misdemeanors.

21(b) (1) Except as provided in subdivision (j), if a person is
22convicted of a felony and is eligible for probation, before judgment
23is pronounced, the court shall immediately refer the matter to a
24probation officer to investigate and report to the court, at a specified
25time, upon the circumstances surrounding the crime and the prior
26history and record of the person, which may be considered either
27in aggravation or mitigation of the punishment.

28(2) (A) The probation officer shall immediately investigate and
29make a written report to the court of his or her findings and
30recommendations, including his or her recommendations as to the
31granting or denying of probation and the conditions of probation,
32if granted.

33(B) Pursuant to Section 828 of the Welfare and Institutions
34Code, the probation officer shall include in his or her report any
35information gathered by a law enforcement agency relating to the
36taking of the defendant into custody as a minor, which shall be
37considered for purposes of determining whether adjudications of
38commissions of crimes as a juvenile warrant a finding that there
39are circumstances in aggravation pursuant to Section 1170 or to
40deny probation.

P4    1(C) If the person was convicted of an offense that requires him
2or her to register as a sex offender pursuant to Sections 290 to
3290.023, inclusive, or if the probation report recommends that
4registration be ordered at sentencing pursuant to Section 290.006,
5the probation officer’s report shall include the results of the
6State-Authorized Risk Assessment Tool for Sex Offenders
7(SARATSO) administered pursuant to Sections 290.04 to 290.06,
8inclusive, if applicable.

9(D) The probation officer may also include in the report his or
10her recommendation of both of the following:

11(i) The amount the defendant should be required to pay as a
12restitution fine pursuant to subdivision (b) of Section 1202.4.

13(ii) Whether the court shall require, as a condition of probation,
14restitution to the victim or to the Restitution Fund and the amount
15thereof.

16(E) The report shall be made available to the court and the
17prosecuting and defense attorneys at least five days, or upon request
18of the defendant or prosecuting attorney nine days, prior to the
19time fixed by the court for the hearing and determination of the
20report, and shall be filed with the clerk of the court as a record in
21the case at the time of the hearing. The time within which the report
22shall be made available and filed may be waived by written
23stipulation of the prosecuting and defense attorneys that is filed
24with the court or an oral stipulation in open court that is made and
25entered upon the minutes of the court.

26(3) begin insert(A)end insertbegin insertend insertAt a time fixed by the court, the court shall hear and
27determine the application, if one has been made, or, in any case,
28the suitability of probation in the particular case. At the hearing,
29the court shall consider any report of the probation officer,
30including the results of the SARATSO, if applicable, and shall
31make a statement that it has considered the report, which shall be
32filed with the clerk of the court as a record in the case. If the court
33determines that there are circumstances in mitigation of the
34punishment prescribed by law or that the ends of justice would be
35served by granting probation to the person, it may place the person
36on probation. If probation is denied, the clerk of the court shall
37immediately send a copy of the report to the Department of
38Corrections and Rehabilitation at the prison or other institution to
39which the person is delivered.

begin insert

P5    1(B) For purposes of subparagraph (A), circumstances in
2mitigation of the punishment prescribed by law shall not include
3the fact that the defendant may not have understood the
4consequences of his or her actions because he or she was raised
5in an affluent or overly permissive household.

end insert

6(4) The preparation of the report or the consideration of the
7report by the court may be waived only by a written stipulation of
8the prosecuting and defense attorneys that is filed with the court
9or an oral stipulation in open court that is made and entered upon
10the minutes of the court, except that a waiver shall not be allowed
11unless the court consents thereto. However, if the defendant is
12ultimately sentenced and committed to the state prison, a probation
13report shall be completed pursuant to Section 1203c.

14(c) If a defendant is not represented by an attorney, the court
15shall order the probation officer who makes the probation report
16to discuss its contents with the defendant.

17(d) If a person is convicted of a misdemeanor, the court may
18either refer the matter to the probation officer for an investigation
19and a report or summarily pronounce a conditional sentence. If
20the person was convicted of an offense that requires him or her to
21register as a sex offender pursuant to Sections 290 to 290.023,
22inclusive, or if the probation officer recommends that the court,
23at sentencing, order the offender to register as a sex offender
24pursuant to Section 290.006, the court shall refer the matter to the
25probation officer for the purpose of obtaining a report on the results
26of the State-Authorized Risk Assessment Tool for Sex Offenders
27administered pursuant to Sections 290.04 to 290.06, inclusive, if
28applicable, which the court shall consider. If the case is not referred
29to the probation officer, in sentencing the person, the court may
30consider any information concerning the person that could have
31been included in a probation report. The court shall inform the
32person of the information to be considered and permit him or her
33to answer or controvert the information. For this purpose, upon
34the request of the person, the court shall grant a continuance before
35the judgment is pronounced.

36(e) Except in unusual cases where the interests of justice would
37best be served if the person is granted probation, probation shall
38not be granted to any of the following persons:

39(1) Unless the person had a lawful right to carry a deadly
40weapon, other than a firearm, at the time of the perpetration of the
P6    1crime or his or her arrest, any person who has been convicted of
2 arson, robbery, carjacking, burglary, burglary with explosives,
3rape with force or violence, torture, aggravated mayhem, murder,
4attempt to commit murder, trainwrecking, kidnapping, escape from
5the state prison, or a conspiracy to commit one or more of those
6crimes and who was armed with the weapon at either of those
7times.

8(2) Any person who used, or attempted to use, a deadly weapon
9upon a human being in connection with the perpetration of the
10crime of which he or she has been convicted.

11(3) Any person who willfully inflicted great bodily injury or
12torture in the perpetration of the crime of which he or she has been
13convicted.

14(4) Any person who has been previously convicted twice in this
15state of a felony or in any other place of a public offense which,
16if committed in this state, would have been punishable as a felony.

17(5) Unless the person has never been previously convicted once
18in this state of a felony or in any other place of a public offense
19which, if committed in this state, would have been punishable as
20a felony, any person who has been convicted of burglary with
21explosives, rape with force or violence, torture, aggravated
22mayhem, murder, attempt to commit murder, trainwrecking,
23extortion, kidnapping, escape from the state prison, a violation of
24Section 286, 288, 288a, or 288.5, or a conspiracy to commit one
25or more of those crimes.

26(6) Any person who has been previously convicted once in this
27state of a felony or in any other place of a public offense which,
28if committed in this state, would have been punishable as a felony,
29if he or she committed any of the following acts:

30(A) Unless the person had a lawful right to carry a deadly
31weapon at the time of the perpetration of the previous crime or his
32or her arrest for the previous crime, he or she was armed with a
33weapon at either of those times.

34(B) The person used, or attempted to use, a deadly weapon upon
35a human being in connection with the perpetration of the previous
36crime.

37(C) The person willfully inflicted great bodily injury or torture
38in the perpetration of the previous crime.

39(7) Any public official or peace officer of this state or any city,
40county, or other political subdivision who, in the discharge of the
P7    1duties of his or her public office or employment, accepted or gave
2or offered to accept or give any bribe, embezzled public money,
3or was guilty of extortion.

4(8) Any person who knowingly furnishes or gives away
5phencyclidine.

6(9) Any person who intentionally inflicted great bodily injury
7in the commission of arson under subdivision (a) of Section 451
8or who intentionally set fire to, burned, or caused the burning of,
9an inhabited structure or inhabited property in violation of
10subdivision (b) of Section 451.

11(10) Any person who, in the commission of a felony, inflicts
12great bodily injury or causes the death of a human being by the
13discharge of a firearm from or at an occupied motor vehicle
14proceeding on a public street or highway.

15(11) Any person who possesses a short-barreled rifle or a
16short-barreled shotgun under Section 33215, a machinegun under
17Section 32625, or a silencer under Section 33410.

18(12) Any person who is convicted of violating Section 8101 of
19the Welfare and Institutions Code.

20(13) Any person who is described in subdivision (b) or (c) of
21Section 27590.

22(f) When probation is granted in a case which comes within
23subdivision (e), the court shall specify on the record and shall enter
24on the minutes the circumstances indicating that the interests of
25justice would best be served by that disposition.

26(g) If a person is not eligible for probation, the judge shall refer
27the matter to the probation officer for an investigation of the facts
28relevant to determination of the amount of a restitution fine
29pursuant to subdivision (b) of Section 1202.4 in all cases where
30the determination is applicable. The judge, in his or her discretion,
31may direct the probation officer to investigate all facts relevant to
32the sentencing of the person. Upon that referral, the probation
33officer shall immediately investigate the circumstances surrounding
34the crime and the prior record and history of the person and make
35a written report to the court of his or her findings. The findings
36shall include a recommendation of the amount of the restitution
37fine as provided in subdivision (b) of Section 1202.4.

38(h) If a defendant is convicted of a felony and a probation report
39is prepared pursuant to subdivision (b) or (g), the probation officer
40may obtain and include in the report a statement of the comments
P8    1of the victim concerning the offense. The court may direct the
2probation officer not to obtain a statement if the victim has in fact
3testified at any of the court proceedings concerning the offense.

4(i) A probationer shall not be released to enter another state
5unless his or her case has been referred to the Administrator of the
6Interstate Probation and Parole Compacts, pursuant to the Uniform
7Act for Out-of-State Probationer or Parolee Supervision (Article
83 (commencing with Section 11175) of Chapter 2 of Title 1 of Part
94) and the probationer has reimbursed the county that has
10jurisdiction over his or her probation case the reasonable costs of
11processing his or her request for interstate compact supervision.
12The amount and method of reimbursement shall be in accordance
13with Section 1203.1b.

14(j) In any court where a county financial evaluation officer is
15available, in addition to referring the matter to the probation officer,
16the court may order the defendant to appear before the county
17financial evaluation officer for a financial evaluation of the
18defendant’s ability to pay restitution, in which case the county
19financial evaluation officer shall report his or her findings regarding
20 restitution and other court-related costs to the probation officer on
21the question of the defendant’s ability to pay those costs.

22Any order made pursuant to this subdivision may be enforced
23as a violation of the terms and conditions of probation upon willful
24failure to pay and at the discretion of the court, may be enforced
25in the same manner as a judgment in a civil action, if any balance
26remains unpaid at the end of the defendant’s probationary period.

27(k) Probation shall not be granted to, nor shall the execution of,
28or imposition of sentence be suspended for, any person who is
29convicted of a violent felony, as defined in subdivision (c) of
30Section 667.5, or a serious felony, as defined in subdivision (c) of
31Section 1192.7, and who was on probation for a felony offense at
32the time of the commission of the new felony offense.

33

SEC. 5.  

No reimbursement is required by this act pursuant to
34Section 6 of Article XIII B of the California Constitution because
35the only costs that may be incurred by a local agency or school
36district will be incurred because this act creates a new crime or
37infraction, eliminates a crime or infraction, or changes the penalty
38for a crime or infraction, within the meaning of Section 17556 of
39the Government Code, or changes the definition of a crime within
P9    1the meaning of Section 6 of Article XIII B of the California
2Constitution.



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