BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2205


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          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:  








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          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  








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            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  








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            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  








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            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  








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            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.)   








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            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  








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            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  








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            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  








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            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  








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            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.








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          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