AB 2888,
as amended, begin deleteDoddend delete begin insertLowend insert. begin deleteProbation: sex crimes. end deletebegin insertSex crimes: mandatory prison sentence.end insert
Existing law prohibits a court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of violating specified provisions of law, including rape by force, pandering, aggravated sexual assault of a child, and others.
end insertbegin insertThis bill would prohibit a court from granting probation or suspending the execution or imposition of a sentence if a person is convicted of rape, sodomy, penetration with a foreign object, or oral copulation if the victim was either unconscious or incapable of giving consent due to intoxication.
end insertExisting law defines probation to mean 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. Existing law authorizes a court to grant probation for some, but not all, felony convictions, as enumerated.
end deleteThis bill would prohibit a court from granting probation to a defendant who is convicted of committing specified acts of rape, sodomy, oral copulation, or sexual penetration upon the victim who was prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, or was unconscious, as specified under those provisions.
end deleteVote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
begin insertSection 1203.065 of the end insertbegin insertPenal Codeend insertbegin insert is amended
2to read:end insert
(a) Notwithstanding any otherbegin delete provision ofend delete law,
4probation shall not be granted to, nor shall the execution or
5imposition of sentence be suspended for,begin delete anyend deletebegin insert aend insert person who is
6convicted of violating paragraphbegin delete (2)end deletebegin insert (2), (3), (4),end insert or (6) of
7subdivision (a) of Section 261, Section 264.1, 266h, 266i, 266j,
8or 269, paragraph (2) or
(3) of subdivision (c), or subdivision (d),
9begin insert (f), or (i)end insert of Section 286, paragraph (2) or (3) of subdivision (c),
10or subdivision (d),begin insert (f), or (i)end insert of Section 288a, Section 288.7,
11subdivisionbegin delete (a)end deletebegin insert (a), (e), or (f)end insert of Section 289, or subdivision (b) of
12Section 311.4.
13(b) (1) Except in unusual cases where the interests of justice
14would best be served if the person is granted probation, probation
15shall not be granted tobegin delete anyend deletebegin insert
aend insert
person who is convicted of violating
16paragraph (7) of subdivision (a) of Section 261, subdivision (k) of
17Section 286, subdivision (k) of Section 288a, subdivision (g) of
18Section 289, or Section 220 for assault with intent to commit a
19specified sexual offense.
20(2) begin deleteWhen end deletebegin insertIf end insertprobation is granted, the court shall specify on the
21record and shall enter on the minutes the circumstances indicating
22that the interests of justice would best be served by the disposition.
Section 1203 of the Penal Code is amended to
24read:
(a) As used in this code, “probation” means the
26suspension of the imposition or execution of a sentence and the
27order of conditional and revocable release in the community under
28the supervision of a probation officer. As used in this code,
29“conditional sentence” means the suspension of the imposition or
P3 1execution of a sentence and the order of revocable release in the
2community subject to conditions established by the court without
3the supervision of a probation officer. It is the intent of the
4Legislature that both conditional sentence and probation are
5authorized whenever probation is authorized in any code as a
6sentencing option for infractions or misdemeanors.
7(b) (1) Except as provided in subdivision (j), if a person is
8convicted of a
felony and is eligible for probation, before judgment
9is pronounced, the court shall immediately refer the matter to a
10probation officer to investigate and report to the court, at a specified
11time, upon the circumstances surrounding the crime and the prior
12history and record of the person, which may be considered either
13in aggravation or mitigation of the punishment.
14(2) (A) The probation officer shall immediately investigate and
15make a written report to the court of his or her findings and
16recommendations, including his or her recommendations as to the
17granting or denying of probation and the conditions of probation,
18if granted.
19(B) Pursuant to Section 828 of the Welfare and Institutions
20Code, the probation officer shall include in his or her report any
21information gathered by a law enforcement agency relating to the
22taking of the defendant into custody as a
minor, which shall be
23considered for purposes of determining whether adjudications of
24commissions of crimes as a juvenile warrant a finding that there
25are circumstances in aggravation pursuant to Section 1170 or to
26deny probation.
27(C) If the person was convicted of an offense that requires him
28or her to register as a sex offender pursuant to Sections 290 to
29290.023, inclusive, or if the probation report recommends that
30registration be ordered at sentencing pursuant to Section 290.006,
31the probation officer’s report shall include the results of the
32State-Authorized Risk Assessment Tool for Sex Offenders
33(SARATSO) administered pursuant to Sections 290.04 to 290.06,
34inclusive, if applicable.
35(D) The probation officer may also include in the report his or
36her recommendation of both of the following:
37(i) The amount the
defendant should be required to pay as a
38restitution fine pursuant to subdivision (b) of Section 1202.4.
P4 1(ii) Whether the court shall require, as a condition of probation,
2restitution to the victim or to the Restitution Fund and the amount
3thereof.
4(E) The report shall be made available to the court and the
5prosecuting and defense attorneys at least five days, or upon request
6of the defendant or prosecuting attorney nine days, prior to the
7time fixed by the court for the hearing and determination of the
8report, and shall be filed with the clerk of the court as a record in
9the case at the time of the hearing. The time within which the report
10shall be made available and filed may be waived by written
11stipulation of the prosecuting and defense attorneys that is filed
12with the court or an oral stipulation in open court that is made and
13entered upon the minutes of the court.
14(3) At a time fixed by the court, the court shall hear and
15determine the application, if one has been made, or, in any case,
16the suitability of probation in the particular case. At the hearing,
17the court shall consider any report of the probation officer,
18including the results of the SARATSO, if applicable, and shall
19make a statement that it has considered the report, which shall be
20filed with the clerk of the court as a record in the case. If the court
21determines that there are circumstances in mitigation of the
22punishment prescribed by law or that the ends of justice would be
23served by granting probation to the person, it may place the person
24on probation. If probation is denied, the clerk of the court shall
25immediately send a copy of the report to the Department of
26Corrections and Rehabilitation at the prison or other institution to
27which the person is delivered.
28(4) The
preparation of the report or the consideration of the
29report by the court may be waived only by a written stipulation of
30the prosecuting and defense attorneys that is filed with the court
31or an oral stipulation in open court that is made and entered upon
32the minutes of the court, except that a waiver shall not be allowed
33unless the court consents thereto. However, if the defendant is
34ultimately sentenced and committed to the state prison, a probation
35report shall be completed pursuant to Section 1203c.
36(c) If a defendant is not represented by an attorney, the court
37shall order the probation officer who makes the probation report
38to discuss its contents with the defendant.
39(d) If a person is convicted of a misdemeanor, the court may
40either refer the matter to the probation officer for an investigation
P5 1and a report or summarily pronounce a conditional sentence. If
2the person was
convicted of an offense that requires him or her to
3register as a sex offender pursuant to Sections 290 to 290.023,
4inclusive, or if the probation officer recommends that the court,
5at sentencing, order the offender to register as a sex offender
6pursuant to Section 290.006, the court shall refer the matter to the
7probation officer for the purpose of obtaining a report on the results
8of the State-Authorized Risk Assessment Tool for Sex Offenders
9administered pursuant to Sections 290.04 to 290.06, inclusive, if
10applicable, which the court shall consider. If the case is not referred
11to the probation officer, in sentencing the person, the court may
12consider any information concerning the person that could have
13been included in a probation report. The court shall inform the
14person of the information to be considered and permit him or her
15to answer or controvert the information. For this purpose, upon
16the request of the person, the court shall grant a continuance before
17the judgment is pronounced.
18(e) Except in unusual cases where the interests of justice would
19best be served if the person is granted probation, probation shall
20not be granted to any of the following persons:
21(1) Unless the person had a lawful right to carry a deadly
22weapon, other than a firearm, at the time of the perpetration of the
23crime or his or her arrest, any person who has been convicted of
24arson, robbery, carjacking, burglary, burglary with explosives,
25rape with force or violence, torture, aggravated mayhem, murder,
26attempt to commit murder, trainwrecking, kidnapping, escape from
27the state prison, or a conspiracy to commit one or more of those
28crimes and who was armed with the weapon at either of those
29times.
30(2) Any person who used, or attempted to use, a deadly weapon
31upon a human being in connection with the perpetration of the
32crime of
which he or she has been convicted.
33(3) Any person who willfully inflicted great bodily injury or
34torture in the perpetration of the crime of which he or she has been
35convicted.
36(4) Any person who has been previously convicted twice in this
37state of a felony or in any other place of a public offense which,
38if committed in this state, would have been punishable as a felony.
39(5) Unless the person has never been previously convicted once
40in this state of a felony or in any other place of a public offense
P6 1which, if committed in this state, would have been punishable as
2a felony, any person who has been convicted of burglary with
3explosives, rape with force or violence, torture, aggravated
4mayhem, murder, attempt to commit murder, trainwrecking,
5extortion, kidnapping, escape from the state prison, a violation of
6Section
286, 288, 288a, or 288.5, or a conspiracy to commit one
7or more of those crimes.
8(6) Any person who has been previously convicted once in this
9state of a felony or in any other place of a public offense which,
10if committed in this state, would have been punishable as a felony,
11if he or she committed any of the following acts:
12(A) Unless the person had a lawful right to carry a deadly
13weapon at the time of the perpetration of the previous crime or his
14or her arrest for the previous crime, he or she was armed with a
15weapon at either of those times.
16(B) The person used, or attempted to use, a deadly weapon upon
17a human being in connection with the perpetration of the previous
18crime.
19(C) The person willfully inflicted great bodily injury or torture
20in the
perpetration of the previous crime.
21(7) Any public official or peace officer of this state or any city,
22county, or other political subdivision who, in the discharge of the
23duties of his or her public office or employment, accepted or gave
24or offered to accept or give any bribe, embezzled public money,
25or was guilty of extortion.
26(8) Any person who knowingly furnishes or gives away
27phencyclidine.
28(9) Any person who intentionally inflicted great bodily injury
29in the commission of arson under subdivision (a) of Section 451
30or who intentionally set fire to, burned, or caused the burning of,
31an inhabited structure or inhabited property in violation of
32subdivision (b) of Section 451.
33(10) Any person who, in the commission of a felony, inflicts
34great bodily
injury or causes the death of a human being by the
35discharge of a firearm from or at an occupied motor vehicle
36proceeding on a public street or highway.
37(11) Any person who possesses a short-barreled rifle or a
38short-barreled shotgun under Section 33215, a machinegun under
39Section 32625, or a silencer under Section 33410.
P7 1(12) Any person who is convicted of violating Section 8101 of
2the Welfare and Institutions Code.
3(13) Any person who is described in subdivision (b) or (c) of
4Section 27590.
5(14) Any person who is convicted of violating paragraph (3) or
6(4) of subdivision (a) of Section 261, paragraph (2) or (3) of
7subdivision (a) of Section 262, subdivision (f) or (i)
of Section
8286, subdivision (f) or (i) of Section 288a, or subdivision (d) or
9(e) of Section 289.
10(f) When probation is granted in a case which comes within
11subdivision (e), the court shall specify on the record and shall enter
12on the minutes the circumstances indicating that the interests of
13justice would best be served by that disposition.
14(g) If a person is not eligible for probation, the judge shall refer
15the matter to the probation officer for an investigation of the facts
16relevant to determination of the amount of a restitution fine
17pursuant to subdivision (b) of Section 1202.4 in all cases where
18the determination is applicable. The judge, in his or her discretion,
19may direct the probation officer to investigate all facts relevant to
20the sentencing of the person. Upon that referral, the probation
21officer shall immediately investigate the
circumstances surrounding
22the crime and the prior record and history of the person and make
23a written report to the court of his or her findings. The findings
24shall include a recommendation of the amount of the restitution
25fine as provided in subdivision (b) of Section 1202.4.
26(h) If a defendant is convicted of a felony and a probation report
27is prepared pursuant to subdivision (b) or (g), the probation officer
28may obtain and include in the report a statement of the comments
29of the victim concerning the offense. The court may direct the
30probation officer not to obtain a statement if the victim has in fact
31testified at any of the court proceedings concerning the offense.
32(i) A probationer shall not be released to enter another state
33unless his or her case has been referred to the Administrator of the
34Interstate Probation and Parole Compacts, pursuant to the Uniform
35Act for
Out-of-State Probationer or Parolee Supervision (Article
363 (commencing with Section 11175) of Chapter 2 of Title 1 of Part
374) and the probationer has reimbursed the county that has
38jurisdiction over his or her probation case the reasonable costs of
39processing his or her request for interstate compact supervision.
P8 1The amount and method of reimbursement shall be in accordance
2with Section 1203.1b.
3(j) In any court where a county financial evaluation officer is
4available, in addition to referring the matter to the probation officer,
5the court may order the defendant to appear before the county
6financial evaluation officer for a financial evaluation of the
7defendant’s ability to pay restitution, in which case the county
8financial evaluation officer shall report his or her findings regarding
9restitution and other court-related costs to the probation officer on
10the question of the defendant’s ability to pay those costs.
11Any order made pursuant to this subdivision may be enforced
12as a violation of the terms and conditions of probation upon willful
13failure to pay and at the discretion of the court, may be enforced
14in the same manner as a judgment in a civil action, if any balance
15remains unpaid at the end of the defendant’s probationary period.
16(k) Probation shall not be granted to, nor shall the execution of,
17or imposition of sentence be suspended for, any person who is
18convicted of a violent felony, as defined in subdivision (c) of
19Section 667.5, or a serious felony, as defined in subdivision (c) of
20Section 1192.7, and who was on probation for a felony offense at
21the time of the commission of the new felony offense.
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