BILL ANALYSIS Ó AB 2205 Page 1 Date of Hearing: April 5, 2016 Counsel: Sandra Uribe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 2205 (Dodd) - As Amended March 30, 2016 SUMMARY: Overturns a Supreme Court case holding that a court lacks jurisdiction to adjudicate violations of probation occurring after the original term of probation ends. Specifically, this bill: 1)Provides that the period of time during any revocation of probation, mandatory supervision, or post-release community supervision, summary or otherwise, shall not be credited toward any period of supervision, except that such as stay cannot extend beyond five years from the date of the summary revocation unless the court finds that an even longer stay is needed based on the seriousness of the current conviction or on the defendant's past criminal record. 2)Prohibits the extended stay from lasting more than 10 years from the date of the last summary revocation. 3)States that, as to mandatory supervision and post-release community supervision, the person shall not remain in custody for a period longer than the term of supervision authorized by statute. EXISTING LAW: AB 2205 Page 2 1)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).) 2)Gives the court discretion in felony cases to grant probation for up to five years, or no longer than the prison term that can be imposed when the prison term exceeds five years. (Pen. Code, § 1203.1, subd. (a).) 3)Gives the court discretion in misdemeanor cases to generally grant probation for up to three years, or no longer than the consecutive sentence imposed if more than three years. (Pen. Code, § 1203a.) 4)Allows a probation officer, parole officer, or peace officer to arrest a person without warrant or other process during the period that a person is released on probation, conditional sentence or summary probation, mandatory supervision, postrelease community supervision, or parole supervision, if the officer has probable cause to believe that the supervised person is violating the terms of his or her supervision. (Pen. Code, § 1203.2, subd. (a).) 5)Authorizes a court to revoke and terminate the supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of his or her supervision, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses. (Pen. Code, § 1203.2, subd. (a).) 6)Prohibits the revocation of supervision for the defendant's failure to pay restitution imposed as a condition of supervision unless the court determines that the defendant has willfully failed to pay and has the ability to pay. (Pen. Code, § 1203.2, subd. (a).) 7)States that the revocation, summary or otherwise, shall serve AB 2205 Page 3 to toll the running of the period of supervision. (Pen. Code, § 1203.2, subd. (a).) 8)Provides that a court, upon its own motion or upon the petition of the supervised person, the probation or parole officer, or the district attorney, may modify, revoke, or terminate supervision of the person pursuant to this subdivision. (Pen. Code, § 1203.2, subd. (b)(1).) 9)States that, upon any revocation and termination of probation the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced. On the other hand, if the judgment has been pronounced and its execution suspended, the court may revoke the suspension and order that the judgment be in full force and effect. (Pen. Code, § 1203.2, subd. (c).) 10)Provides that the probationary period terminates automatically on the last day. (Pen. Code, § 1203.3, subd. (b)(3).) 11)States that if a probationer is committed to prison for another offense, the court which placed him or her on probation has the jurisdiction to impose sentence. (Pen. Code, § 1203.2a.) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "This bill clarifies that, for all three types of supervision - probation, mandatory and post-release community supervision -- time elapsed during the revocation period shall not be credited toward any period of supervision. Thus, if a court summarily revokes supervision, this bill preserves court authority to determine the consequences of all alleged supervision violations, both those that occurred during the original supervision term and those that occurred after the court revoked supervision. "Under AB 2205, once a court has regained physical custody and AB 2205 Page 4 determined that a person has violated supervision, a court may require the person to comply with court-imposed terms and conditions of supervision, whether or not the violation occurred during the original term of supervision. As a result this bill not only enhances public safety, but also supports the goal of Criminal Justice Realignment to reduce recidivism through rehabilitative supervision." 2)Expiration of Supervision: In the absence of an order revoking probation, probation expires by operation of law on the last day of the probationary period. (Pen. Code, § 1203.3, subd. (b)(3).) After that, the court has no jurisdiction over the person. (In re Griffin (1967) 67 Cal.2d 343, 346; Hilton v. Superior Court (2014) 239 Cal.App.4th 766, 772-773.) However, an agreement by defense counsel or the defendant to a probationary period longer than the maximum statutory period estops a claim that probation has expired. (People v. Ford (2015) 61 Cal.4th 282, 286-288; People v. Jackson (2005) 134 Cal.App.4th 929, 933.) A term of mandatory supervision lasts for the remaining unserved portion of the sentence imposed by the court. (Pen. Code, § 1170, subd. (h)(5)(B).) A term of post-release community supervision lasts for three years from the date of the initial entry onto post-release community supervision, except where the supervision has been tolled. (Pen. Code, § 3455, subd. (e).) 3)Summary Revocation: A trial court has the authority to modify, revoke or terminate probation at any time during the probationary period. (Pen. Code, §§ 1203.2, subd. (b)(1); 1203.3, subd. (a).) This power includes the power to extend the probationary term. "A change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation." (People v. Cookson (1991) 54 Cal.3d 1091, 1095.) The revocation process is generally divided into two components: the summary revocation and a subsequent formal revocation hearing where a final decision is made whether to reinstate, permanently revoke or terminate probation. The court may summarily revoke a defendant's probation at any time during AB 2205 Page 5 the period of probation if it believes the defendant has violation probation. (Pen. Code, § 1203.2, subd. (a).) A summary revocation serves to toll the running of the probationary period. (Id.) Revocation, modification, and tolling of post-release community supervision functions similarly. (See Pen. Code, § 3455, citing Pen. Code, § 1203.2.) 4)Tolling of Probation: Courts were divided regarding the effect of the tolling provision in Penal Code § 1203.2, subdivision (a). Specifically, the question courts had disagreed on is whether the tolling provision permits a trial court to find a violation of probation and then reinstate or terminate probation based solely on conduct that occurred after the original probationary period had expired. In People v. Tapia (2001), 91 Cal.App.4th 738, the court held that "a summary revocation of probation suspends the running of the probationary period and permits extension of the term of probation if, and only if, the probation is reinstated based upon a violation that occurred during the unextended period of probation. (Tapia, supra, 91 Cal.App.4th at p. 741.) In People v. Salas (2012) 210 Cal.App.4th 974, the court disagreed with the Tapia court and held that the summary revocation suspended the running of defendant's probationary term until a future date where the trial court either reinstates probation, executes sentence or discharges the defendant from probation. (Salas, supra, 210 Cal.App.4th at pp. 979-980.) In People v. Leiva (2013) 56 Cal.4th 498, the California Supreme Court resolved the issue and held that the tolling provision preserves the trial court's authority to adjudicate in a subsequent formal probation violation hearing whether the probationer violated probation during, but not after, the court-imposed probationary period. (Id. at p. 502.). 5)People v. Leiva, supra, 56 Cal.4th 498: In Leiva, the defendant was placed on probation for a period of three years on April 11, 2000. (Leiva, supra, 56 Cal.4th at p. 502.) Among the probation conditions imposed were orders that the defendant report to the probation officer following his AB 2205 Page 6 release from county jail and that he not reenter the county illegally if he was deported. (Ibid.) On the day defendant was released from jail, he was deported to El Salvador. (Ibid.) In September 2001, the trial court summarily revoked probation and issued a bench warrant after defendant failed to report to the probation officer. (Ibid.) At the time, neither the probation department nor the court knew that the reason for the failure to report or to appear in court was the deportation. (Ibid.) In November 2008, defendant was brought to court on the probation violation following his arrest on a traffic matter. (Leiva, supra, 56 Cal. 4th at p. 503.) By the time of the formal violation hearing on February 13, 2009, the court and parties knew of defendant's involuntary deportation and the prosecutor conceded that he could not show that the 2001 failure to report had been a willful probation violation. (Ibid.) Defense counsel argued that probation must be terminated since there was no evidence of any probation violation during the original term of probation. (Ibid.) However, the court found that defendant did violate probation when he failed to report to probation following his return to the United States. The court reinstated probation and ordered it extended until June 6, 2011 and additionally ordered that, if defendant voluntarily left the country again or was deported, he must report to his probation officer within 24 hours of his return to the United States and present proof that he was in the country legally. Defendant appealed. (Ibid.) Defendant was deported again in March of 2009, and in June of 2009 the court summarily revoked his probation based on failure to report to the probation officer and issued a bench warrant for his arrest. (Leiva, supra, 56 Cal. 4th at pp. 503-504.) Defendant later returned to California and was arrested on the outstanding warrant. On October 9, 2009, the trial court held a formal probation violation hearing and found that defendant had violated his probation for re-entering the country illegally in 2009. The court ordered that probation remain revoked and sentenced defendant to two years in state prison based on one of the counts to which defendant had pleaded no contest in 2000. (Id. at p. 504.) AB 2205 Page 7 On appeal, defendant argued that the trial court erred by finding a violation of probation based on conduct that occurred after his original three-year probationary period expired. (Ibid.) The Court of Appeal rendered a split decision with the majority upholding the trial court's decisions. The California Supreme Court reversed the judgments of the Court of Appeal. (Ibid.) In construing the tolling provision in Penal Code Section 1203.2, subdivision (a), the California Supreme Court held that the statute "preserves the trial court's authority to adjudicate, in a subsequent formal probation violation hearing, whether the probationer violated probation during, but not after, the court-imposed probationary period." (Leiva, supra, 56 Cal. 4th at p. 502.) The Court rejected a reading of the tolling provision "as allowing a trial court, through summary revocation, to extend indefinitely the conditions and terms of probation until a formal revocation proceeding can be held." (Id. at p. 509.) The Court stated that such interpretation "raises serious due process concerns because . . . [it] would extend a defendant's probationary term indefinitely without notice or a hearing as to the propriety of such an increase." (Ibid.) The Court also relied on legislative history to determine that the tolling language was added to Penal Code Section 1203.2, subdivision (a) to address jurisdictional problems that can arise when a formal revocation hearing cannot be held during the court-imposed period of probation. (Leiva, supra, 56 Cal. 4th at p. 511.) The Court referenced "the Assembly Committee on Criminal Justice's comments to Senate Bill 426 to support the conclusion that the Legislature in 1977 was focused on preserving the jurisdiction of the trial court to hold formal probation violation hearings that met . . . [due process] requirements after the period of probation had expired. . . . [The Legislature] expressed concern that former section 1203.2 did not address the situation in which a trial court summarily revoked probation and the defendant did not appear in court on the violation. Senate Bill 426 was considered a 'cleanup measure' (citation omitted), designed to preserve a trial court's authority to hold a full hearing on an alleged probation violation that occurred during the court-imposed AB 2205 Page 8 probationary period." (Id. at pp. 512-513.) The ruling in Leiva is supported by long-standing case law. As early as 1918, a Court of Appeal held that the trial court loses jurisdiction or power to make an order revoking or modifying the order after the probationary period has expired. (People v. O'Donnell (1918) 37 Cal.App. 192, 196-197.) Once a revocation order is in effect, the trial court retains jurisdiction in the case only to pronounce judgment by imposing the sentence if imposition of sentence had been suspended, or by ordering execution of the previously ordered but suspended sentence. (People v.Williams (1944) 24 Cal.2d 848, 851-854.) The court must find that the probationer violated probation during the original period of probation, even if the term of probation was tolled, in order for the trial court to retain jurisdiction to revoke probation after the expiration of the probation term. (People v. Burton (2009) 177 Cal.App. 4th 194, 200; People v. Tapia, supra, 91 Cal.App.4th at p. 741.) The Leiva decision does not prevent a court from holding absconders accountable. If a probationer absconds at any time during the period of probation and the court summarily revokes probation, the probationer is not relieved of the duty to comply with the probation terms and conditions. There is "no 'window' during the probationary term which allows the probationer to be free from the terms and conditions originally imposed or later modified." (People v. Lewis (1992) 7 Cal.App.4th 1949, 1954.) Therefore, all terms and conditions of probation including restitution orders, search and seizure, and the requirement to obey all laws would still be in effect during the court-imposed term of probation after a summary revocation. Once the absconder is found and brought back to court, the court has the jurisdiction to find that the person violated probation for all conduct that occurred during the original probation term. Overturning Leiva would mean that the terms and conditions of probation could remain in effect for years after the original term of probation has expired. As stated in the Leiva case, this "would result in absurd consequences and present constitutional concerns. . ." (Leiva, supra, 56 Cal. 4th at AB 2205 Page 9 p.509.) Even if a probation violation within the original term of probation is not proven, the person would still be subject to all of the terms and conditions during the entire time that the probation term is tolled. This bill would overturn People v. Leiva, supra, 56 Cal.4th 498. The bill extends the period of supervision after a summary revocation by requiring all terms and conditions of supervision to remain in effect during the tolling time period, regardless of whether the originally imposed period of supervision has expired. But rather than extending the supervisory period indefinitely, as was the concern in Leiva, the bill provides that the supervisory period can be extended for up to 5 years, unless the court decides that based on the defendant's record, the supervisory period should last for up to 10 years. That the supervisory period will last 5 or 10 years, rather than indefinitely, does not alleviate the due process concerns. Notably, this potential stay will be double, or triple (or more) the original term of supervision. The court can impose additional sanctions perhaps a decade after the supervision should have ended. And this decade-long extension will have occurred without notice or a hearing as to the propriety of such an increase. (People v. Leiva, supra, 56 Cal.4th at p. 509.) It bears repeating that the court can still hold a defendant accountable for any violations committed during the mandated supervisory period. And if a person commits a new violation of law after that period of supervision, the prosecutor is authorized to file new charges. 6)Argument in Support: According to the Judicial Council of California, the sponsor of this bill, "AB 2205 clarifies that, for all three types of supervision-probation, mandatory and post-release community supervision-time elapsed during the revocation period shall not be credited toward any period of supervision. Thus, if a court summarily revokes supervision, AB 2205 preserves court authority to determine the consequences of all alleged supervision vioaltions, both those that occurred during the original supervision term and those AB 2205 Page 10 that occurred after the court revoked supervision. "Under AB 2205, once a court has regained physical custody and determined that a person has violated supervision, a court may require the person to comply with court-imposed terms and conditions of supervision, whether or not the violation occurred during the original term of the supervision. As a result, this bill not only enhances public safety, but also supports the goal of Criminal Justice Realignment to reduce recidivism through rehabilitative supervision. "Finally, AB 2205 enhances judicial discretion by preserving court jurisdiction to adjudicate revocations of probation, mandatory supervision, and postrelease community supervision." 7)Argument in Opposition: According to the American Civil Liberties Union of California, "For all forms of supervised release, the court may summarily revoke the supervised release based on an allegation that the defendant violated the terms and conditions of release. If the defendant is not present in court when the supervised release is summarily revoked, the court issues a bench warrant for the person's arrest. The court must eventually hold a hearing to determine if there is a factual basis for the alleged violation of the conditions of release. (See People v. Leiva (2013) 56 Cal.4th 498, 504-505.) "The question raised by the bill is what happens when the hearing on the summary revocation is held after the original period of supervised release has ended. AB 2205 seeks to overturn a recent ruling of the California Supreme Court which held that, in the case of probation specifically, if there is no evidence that the defendant violated the terms of probation during the original period of probation, the court may not place the defendant back on probation after the original term has lapsed. (People v. Leiva, 56 Cal.4th at pp. 502.) On the other hand, the Leiva court made clear that the judge may reinstate and extend probation if there is evidence that the defendant violated the terms and conditions of probation during the period of supervised release, even if the violation is not adjudicated until years later. (Ibid.) AB 2205 seeks to undo that ruling and allow a court to place a person back on probation, based on evidence that he or she did not comply AB 2205 Page 11 with the conditions of probation after the probationary period had lapsed, and seeks to extend that new rule to the other forms of court supervised release: mandatory supervision and postrelease community supervision. "We believe that the rule announced by the California Supreme Court in Leiva is fair and should not be changed. The Leiva decision made clear that if a person violates the terms of probation during the probationary period, the court may reinstate and extend probation, even if the defendant is not brought before the court for the hearing on the summary revocation until years later. We agree with the California Supreme Court that is it unfair to allow the court to place someone back on probation based on conduct that did not occur during the original probationary term. This rule provides the court with the ability to respond to proven, willful violations of probation that occur during the probationary period, even if the defendant evades the jurisdiction of the court for some time. At the same time, the rule prevents the unfairness of placing people back on probation years later, when there is no actual evidence that they violated the conditions of supervised release during the period originally imposed by the court. (Id. at pp. 516-517.) ? "The sponsor of AB 2205, the Judicial Council, appears to think that the Leiva ruling prevents the court from placing a defendant back on supervised release after the original term has ended if the defendant 'absconded.' If by 'absconded,' the Council means the person intentionally absented himself or herself from the courts' jurisdiction, then we disagree with this interpretation. If a person intentionally avoids the jurisdiction of the supervising court, that is a violation of the terms and conditions of supervised release and, under Leiva, a sound basis for reinstating and extending the period of supervised release." 8)Related Legislation: AB 2477 (Patterson) would overturn case law holding that a court lacks jurisdiction to modify a restitution order after the defendant's probation expires, thereby extending jurisdiction for restitution indefinitely AB 2477 failed passage and reconsideration was granted in this committee. AB 2205 Page 12 9)Prior Legislation: AB 2339 (Quirk), of the 2013-2014 Legislative Session, would have required that all the terms and conditions of probation supervision remain in effect during the time period that the running of probation supervision is tolled as a result of a summary revocation by the court. AB 2339 was pulled by the author. REGISTERED SUPPORT / OPPOSITION: Support Judicial Council (Sponsor) California District Attorneys Association California Judges Association California State Sheriffs' Association Chief Probation Officers of California Opposition American Civil Liberties Union of California California Attorneys for Criminal Justice California Public Defenders Association Legal Services for Prisoners with Children Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744