Penal code section 1191-1209
CALIFORNIA CODES
PENAL CODE
SECTION 1191-1209
1191. In the superior court, after a plea, finding, or verdict of
guilty, or after a finding or verdict against the defendant on a plea
of a former conviction or acquittal, or once in jeopardy, the court
shall appoint a time for pronouncing judgment, which shall be within
20 judicial days after the verdict, finding, or plea of guilty,
during which time the court shall refer the case to the probation
officer for a report if eligible for probation and pursuant to
Section 1203. However, the court may extend the time not more than
10 days for the purpose of hearing or determining any motion for a
new trial, or in arrest of judgment, and may further extend the time
until the probation officer's report is received and until any
proceedings for granting or denying probation have been disposed of.
If, in the opinion of the court, there is a reasonable ground for
believing a defendant insane, the court may extend the time for
pronouncing sentence until the question of insanity has been heard
and determined, as provided in this code. If the court orders
defendant placed in a diagnostic facility pursuant to Section
1203.03, the time otherwise allowed by this section for pronouncing
judgment is extended by a period equal to (1) the number of days
which elapse between the date of the order and the date on which
notice is received from the Director of Corrections advising whether
or not the Department of Corrections will receive defendant in the
facility, and (2) if the director notifies the court that it will
receive the defendant, the time which elapses until his or her return
to the court from the facility.
1191.1. The victim of any crime, or the parents or guardians of the
victim if the victim is a minor, or the next of kin of the victim if
the victim has died, have the right to attend all sentencing
proceedings under this chapter and shall be given adequate notice by
the probation officer of all sentencing proceedings concerning the
person who committed the crime.
The victim, or up to two of the victim's parents or guardians if
the victim is a minor, or the next of kin of the victim if the victim
has died, have the right to appear, personally or by counsel, at the
sentencing proceeding and to reasonably express his, her, or their
views concerning the crime, the person responsible, and the need for
restitution. The court in imposing sentence shall consider the
statements of victims, parents or guardians, and next of kin made
pursuant to this section and shall state on the record its conclusion
concerning whether the person would pose a threat to public safety
if granted probation.
The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two-thirds of the membership concurring, or
by a statute that becomes effective only when approved by the
electors.
1191.10. The definition of the term "victim" as used in Section
1191.1 includes any insurer or employer who was the victim of workers'
compensation fraud for the crimes specified in Section 549 of this
code, Sections 2314 and 6152 of the Business and Professions Code,
Sections 1871.4, 11760, and 11880 of the Insurance Code, and Section
3215 of the Labor Code.
1191.15. (a) The court may permit the victim of any crime, or his
or her parent or guardian if the victim is a minor, or the next of
kin of the victim if the victim has died, to file with the court a
written, audiotaped, or videotaped statement expressing his or her
views concerning the crime, the person responsible, and the need for
restitution, in lieu of or in addition to such person personally
appearing at the time of judgment and sentence. The court shall
consider any such statement filed with the court prior to imposing
judgment and sentence.
Whenever an audio or video statement is filed with the court, a
written transcript of the tape shall also be provided by the person
filing the statement, and shall be made available as a public record
of the court after the judgment and sentence have been imposed.
(b) Whenever such a written, audio, or video statement is filed
with the court, it shall remain sealed until the time set for
imposition of judgment and sentence except that the court, the
probation officer, and counsel for the parties may view and listen to
such statements not more than two court days prior to the date set
for imposition of judgment and sentence.
(c) No person may, and no court shall, permit any person to
duplicate, copy, or reproduce by any audio or visual means any
audiotaped or videotaped statement submitted to the court under the
provisions of this section.
(d) Nothing in this section shall be construed to prohibit the
prosecutor from representing to the court the views of the victim or
his or her parent or guardian or the next of kin.
(e) In the event the court permits an audio or video statement to
be filed, the court shall not be responsible for providing any
equipment or resources needed to assist the victim in preparing the
statement.
1191.16. The victim of any crime, or the parents or guardians of
the victim if the victim is a minor, or the next of kin of the victim
if the victim has died, who choose to exercise their rights with
respect to sentencing proceedings as described in Section 1191.1 may,
in any case where the defendant is subject to an indeterminate term
of imprisonment, have their statements simultaneously recorded and
preserved by means of videotape, videodisc, or any other means of
preserving audio and video, if they notify the prosecutor in advance
of the sentencing hearing and the prosecutor reasonably is able to
provide the means to record and preserve the statement. If a video
and audio record is developed, that record shall be maintained and
preserved by the prosecution and used in accordance with the
regulations of the Board of Prison Terms at any hearing to review
parole suitability or the setting of a parole date.
1191.2. In providing notice to the victim pursuant to Section
1191.1, the probation officer shall also provide the victim with
information concerning the victim's right to civil recovery against
the defendant, the requirement that the court order restitution for
the victim, the victim's right to receive a copy of the restitution
order from the court and to enforce the restitution order as a civil
judgment, the victim's responsibility to furnish the probation
department, district attorney, and court with information relevant to
his or her losses, and the victims' opportunity to be compensated
from the Restitution Fund if eligible under Article 1 (commencing
with Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2
of the Government Code. This information shall be in the form of
written material prepared by the Judicial Council in consultation
with the State Board of Control, shall include the relevant sections
of the Penal Code, and shall be provided to each victim for whom the
probation officer has a current mailing address.
1191.25. The prosecution shall make a good faith attempt to notify
any victim of a crime which was committed by, or is alleged to have
been committed by, an in-custody informant, as defined in subdivision
(a) of Section 1127a, within a reasonable time before the in-custody
informant is called to testify. The notice shall include
information concerning the prosecution's intention to offer the
in-custody informant a modification or reduction in sentence or
dismissal of the case or early parole in exchange for the in-custody
informant's testimony in another case. The notification or attempt
to notify the victim shall be made prior to the commencement of the
trial in which the in-custody informant is to testify where the
intention to call him or her is known at that time, but in no case
shall the notice be made later than the time the in-custody informant
is called to the stand.
Nothing contained in this section is intended to affect the right
of the people and the defendant to an expeditious disposition of a
criminal proceeding, as provided in Section 1050. The victim of any
case alleged to have been committed by the in-custody informant may
exercise his or her right to appear at the sentencing of the
in-custody informant pursuant to Section 1191.1, but the victim shall
not have a right to intervene in the trial in which the in-custody
informant is called to testify.
1191.3. (a) At the time of sentencing or pronouncement of judgment
in which sentencing is imposed, the court shall make an oral
statement that statutory law permits the award of conduct and
worktime credits up to one-third or one-half of the sentence that is
imposed by the court, that the award and calculation of credits is
determined by the sheriff in cases involving imprisonment in county
jails and by the Department of Corrections in cases involving
imprisonment in the state prison, and that credit for presentence
incarceration served by the defendant is calculated by the probation
department under current state law.
As used in this section, "victim" means the victim of the offense,
the victim's parent or guardian if the victim is a minor, or the
victim's next of kin.
(b) The probation officer shall provide a general estimate of the
credits to which the defendant may be entitled for previous time
served, and conduct or worktime credits authorized under Sections
2931, 2933, or 4019, and shall inform the victim pursuant to Section
1191.1. The probation officer shall file this estimate with the
court and it shall become a part of the court record.
(c) This section applies to all felony convictions.
1192. Upon a plea of guilty, or upon conviction by the court
without a jury, of a crime or attempted crime distinguished or
divided into degrees, the court must, before passing sentence,
determine the degree. Upon the failure of the court to so determine,
the degree of the crime or attempted crime of which the defendant is
guilty, shall be deemed to be of the lesser degree.
1192.1. Upon a plea of guilty to an information or indictment
accusing the defendant of a crime or attempted crime divided into
degrees when consented to by the prosecuting attorney in open court
and approved by the court, such plea may specify the degree thereof
and in such event the defendant cannot be punished for a higher
degree of the crime or attempted crime than the degree specified.
1192.2. Upon a plea of guilty before a committing magistrate as
provided in Section 859a, to a crime or attempted crime divided into
degrees, when consented to by the prosecuting attorney in open court
and approved by such magistrate, such plea may specify the degree
thereof and in such event, the defendant cannot be punished for a
higher degree of the crime or attempted crime than the degree
specified.
1192.3. (a) A plea of guilty or nolo contendere to an accusatory
pleading charging a public offense, other than a felony specified in
Section 1192.5 or 1192.7, which public offense did not result in
damage for which restitution may be ordered, made on the condition
that charges be dismissed for one or more public offenses arising
from the same or related course of conduct by the defendant which did
result in damage for which restitution may be ordered, may specify
the payment of restitution by the defendant as a condition of the
plea or any probation granted pursuant thereto, so long as the plea
is freely and voluntarily made, there is factual basis for the plea,
and the plea and all conditions are approved by the court.
(b) If restitution is imposed which is attributable to a count
dismissed pursuant to a plea bargain, as described in this section,
the court shall obtain a waiver pursuant to People v. Harvey (1979)
25 Cal. 3d 754 from the defendant as to the dismissed count.
1192.4. If the defendant's plea of guilty pursuant to Section
1192.1 or 1192.2 is not accepted by the prosecuting attorney and
approved by the court, the plea shall be deemed withdrawn and the
defendant may then enter such plea or pleas as would otherwise have
been available. The plea so withdrawn may not be received in
evidence in any criminal, civil, or special action or proceeding of
any nature, including proceedings before agencies, commissions,
boards, and tribunals.
1192.5. Upon a plea of guilty or nolo contendere to an accusatory
pleading charging a felony, other than a violation of paragraph (2),
(3), or (6) of subdivision (a) of Section 261, paragraph (1) or (4)
of subdivision (a) of Section 262, Section 264.1, Section 286 by
force, violence, duress, menace or threat of great bodily harm,
subdivision (b) of Section 288, Section 288a by force, violence,
duress, menace or threat of great bodily harm, or subdivision (a) of
Section 289, the plea may specify the punishment to the same extent
as it may be specified by the jury on a plea of not guilty or fixed
by the court on a plea of guilty, nolo contendere, or not guilty, and
may specify the exercise by the court thereafter of other powers
legally available to it.
Where the plea is accepted by the prosecuting attorney in open
court and is approved by the court, the defendant, except as
otherwise provided in this section, cannot be sentenced on the plea
to a punishment more severe than that specified in the plea and the
court may not proceed as to the plea other than as specified in the
plea.
If the court approves of the plea, it shall inform the defendant
prior to the making of the plea that (1) its approval is not binding,
(2) it may, at the time set for the hearing on the application for
probation or pronouncement of judgment, withdraw its approval in the
light of further consideration of the matter, and (3) in that case,
the defendant shall be permitted to withdraw his or her plea if he or
she desires to do so. The court shall also cause an inquiry to be
made of the defendant to satisfy itself that the plea is freely and
voluntarily made, and that there is a factual basis for the plea.
If the plea is not accepted by the prosecuting attorney and
approved by the court, the plea shall be deemed withdrawn and the
defendant may then enter the plea or pleas as would otherwise have
been available.
If the plea is withdrawn or deemed withdrawn, it may not be
received in evidence in any criminal, civil, or special action or
proceeding of any nature, including proceedings before agencies,
commissions, boards, and tribunals.
1192.6. (a) In each felony case in which the charges contained in
the original accusatory pleading are amended or dismissed, the record
shall contain a statement explaining the reason for the amendment or
dismissal.
(b) In each felony case in which the prosecuting attorney seeks a
dismissal of a charge in the complaint, indictment, or information,
he or she shall state the specific reasons for the dismissal in open
court, on the record.
(c) When, upon a plea of guilty or nolo contendere to an
accusatory pleading charging a felony, whether or not that plea is
entered pursuant to Section 1192.5, the prosecuting attorney
recommends what punishment the court should impose or how it should
exercise any of the powers legally available to it, the prosecuting
attorney shall state the specific reasons for the recommendation in
open court, on the record. The reasons for the recommendation shall
be transcribed and made part of the court file.
1192.7. (a) Plea bargaining in any case in which the indictment or
information charges any serious felony, any felony in which it is
alleged that a firearm was personally used by the defendant, or any
offense of driving while under the influence of alcohol, drugs,
narcotics, or any other intoxicating substance, or any combination
thereof, is prohibited, unless there is insufficient evidence to
prove the people's case, or testimony of a material witness cannot be
obtained, or a reduction or dismissal would not result in a
substantial change in sentence.
(b) As used in this section "plea bargaining" means any
bargaining, negotiation, or discussion between a criminal defendant,
or his or her counsel, and a prosecuting attorney or judge, whereby
the defendant agrees to plead guilty or nolo contendere, in exchange
for any promises, commitments, concessions, assurances, or
consideration by the prosecuting attorney or judge relating to any
charge against the defendant or to the sentencing of the defendant.
(c) As used in this section, "serious felony" means any of the
following:
(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4)
sodomy by force, violence, duress, menace, threat of great bodily
injury, or fear of immediate and unlawful bodily injury on the victim
or another person; (5) oral copulation by force, violence, duress,
menace, threat of great bodily injury, or fear of immediate and
unlawful bodily injury on the victim or another person; (6) lewd or
lascivious act on a child under the age of 14 years; (7) any felony
punishable by death or imprisonment in the state prison for life; (8)
any other felony in which the defendant personally inflicts great
bodily injury on any person, other than an accomplice, or any felony
in which the defendant personally uses a firearm; (9) attempted
murder; (10) assault with intent to commit rape or robbery; (11)
assault with a deadly weapon or instrument on a peace officer; (12)
assault by a life prisoner on a noninmate; (13) assault with a
deadly weapon by an inmate; (14) arson; (15) exploding a destructive
device or any explosive with intent to injure; (16) exploding a
destructive device or any explosive causing great bodily injury or
mayhem; (17) exploding a destructive device or any explosive with
intent to murder; (18) burglary of an inhabited dwelling house, or
trailer coach as defined by the Vehicle Code, or inhabited portion of
any other building; (19) robbery or bank robbery; (20) kidnapping;
(21) holding of a hostage by a person confined in a state prison;
(22) attempt to commit a felony punishable by death or imprisonment
in the state prison for life; (23) any felony in which the defendant
personally used a dangerous or deadly weapon; (24) selling,
furnishing, administering, giving, or offering to sell, furnish,
administer, or give to a minor any heroin, cocaine, phencyclidine
(PCP), or any methamphetamine-related drug, as described in paragraph
(2) of subdivision (d) of Section 11055 of the Health and Safety
Code, or any of the precursors of methamphetamines, as described in
subparagraph (A) of paragraph (1) of subdivision (f) of Section 11055
or subdivision (a) of Section 11100 of the Health and Safety Code;
(25) any violation of subdivision (a) of Section 289 where the act is
accomplished against the victim's will by force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim
or another person; (26) grand theft involving a firearm; (27)
carjacking; any attempt to commit a crime listed in this subdivision
other than an assault; and (20) any conspiracy to commit an offense
described in paragraph (24) as it applies to Section 11370.4 of the
Health and Safety Code where the defendant conspirator was
substantially involved in the planning, direction, or financing of
the underlying offense.
(d) As used in this section, "bank robbery" means to take or
attempt to take, by force or violence, or by intimidation from the
person or presence of another any property or money or any other
thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any savings
and loan association.
As used in this subdivision, the following terms have the
following meanings:
(1) "Bank" means any member bank of the Federal Reserve System,
and any bank, banking association, trust company, savings bank, or
other banking institution organized or operating under the laws of
the United States, and any bank the deposits of which are insured by
the Federal Deposit Insurance Corporation.
(2) "Savings and loan association" means any federal savings and
loan association and any "insured institution" as defined in Section
401 of the National Housing Act, as amended, and any federal credit
union as defined in Section 2 of the Federal Credit Union Act.
(3) "Credit union" means any federal credit union and any
state-chartered credit union the accounts of which are insured by the
Administrator of the National Credit Union Administration.
(e) The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two-thirds of the membership concurring, or
by a statute that becomes effective only when approved by the
electors.
1192.8. (a) For purposes of subdivision (c) of Section 1192.7,
"serious felony" also means any violation of Section 288.5.
(b) For purposes of subdivision (c) of Section 1192.7, "serious
felony" also means any violation of Section 191.5, paragraph (1) or
(3) of subdivision (c) of Section 192, paragraph (a) or (c) of
Section 192.5 of this code, or Section 2800.3, subdivision (b) of
Section 23104, or Section 23153 of the Vehicle Code, when any of
these offenses involve the personal infliction of great bodily injury
on any person other than an accomplice, or the personal use of a
dangerous or deadly weapon, within the meaning of paragraph (8) or
(23) of subdivision (c) of Section 1192.7.
(c) It is the intent of the Legislature, in enacting subdivision
(b), to codify the court decisions of People v. Gonzales, 29 Cal.
App. 4th 1684, and People v. Bow, 13 Cal. App. 4th 1551, and to
clarify that the crimes specified in subdivision (b) have always
been, and continue to be, serious felonies within the meaning of
subdivision (c) of Section 1192.7.
1193. Judgment upon persons convicted of commission of crime shall
be pronounced as follows:
(a) If the conviction is for a felony, the defendant shall be
personally present when judgment is pronounced against him or her,
unless the defendant, in open court and on the record, or in a
notarized writing, requests that judgment be pronounced against him
or her in his or her absence, and that he or she be represented by an
attorney when judgment is pronounced, and the court approves his or
her absence during the pronouncement of judgment, or unless, after
the exercise of reasonable diligence to procure the presence of the
defendant, the court shall find that it will be in the interest of
justice that judgment be pronounced in his or her absence; provided,
that when any judgment imposing the death penalty has been affirmed
by the appellate court, sentence may be reimposed upon the defendant
in his or her absence by the court from which the appeal was taken,
and in the following manner: upon receipt by the superior court from
which the appeal is taken of the certificate of the appellate court
affirming the judgment, the judge of the superior court shall
forthwith make and cause to be entered an order pronouncing sentence
against the defendant, and a warrant signed by the judge, and
attested by the clerk under the seal of the court, shall be drawn,
and it shall state the conviction and judgment and appoint a day upon
which the judgment shall be executed, which shall not be less than
60 days nor more than 90 days from the time of making the order; and
that, within five days thereafter, a certified copy of the order,
attested by the clerk under the seal of the court, and attached to
the warrant, shall, for the purpose of execution, be transmitted by
registered mail to the warden of the state prison having the custody
of the defendant and certified copies thereof shall be transmitted by
registered mail to the Governor; and provided further, that when any
judgment imposing the death penalty has been affirmed and sentence
has been reimposed as above provided there shall be no appeal from
the order fixing the time for and directing the execution of the
judgment as herein provided. If a pro se defendant requests that
judgment in a noncapital case be pronounced against him or her in his
or her absence, the court shall appoint an attorney to represent the
defendant in the in absentia sentencing.
(b) If the conviction be of a misdemeanor, judgment may be
pronounced against the defendant in his absence.
1194. When the defendant is in custody, the Court may direct the
officer in whose custody he is to bring him before it for judgment,
and the officer must do so.
1195. If the defendant has been released on bail, or has deposited
money or property instead thereof, and does not appear for judgment
when his personal appearance is necessary, the court, in addition to
the forfeiture of the undertaking of bail, or of the money or
property deposited, must, on application of the prosecuting attorney,
direct the issuance of a bench warrant for the arrest of the
defendant.
If the defendant, who is on bail, does appear for judgment and
judgment is pronounced upon him or probation is granted to him, then
the bail shall be exonerated or, if money or property has been
deposited instead of bail, it must be returned to the defendant or to
the person or persons found by the court to have deposited said
money or property on behalf of said defendant.
1196. (a) The clerk, or the judge or justice, if there is no clerk,
must at any time after the order issue a bench warrant into one or
more counties.
(b) The clerk, or the judge or justice, shall require the
appropriate agency to enter each bench warrant issued on a private
surety-bonded felony case into the national warrant system (National
Crime Information Center (NCIC)).
1197. The bench warrant must be substantially in the following
form:
County of ____
The people of the State of California to any peace officer in this
State: ______ (name of defendant) having been on the ____ day of
____, 19_, duly convicted in the ____ court of ____ (naming the
court) of the crime of ____ (designating it generally), you are
therefore commanded forthwith to arrest the above named defendant and
bring him before that court for judgment.
Given under my hand with the seal of said court affixed, this ____
day of ____, 19_.
By order of said court. ____________________ (SEAL)
Clerk (or Judge, or Justice)
1198. The bench warrant may be served in any county in the same
manner as a warrant of arrest.
1199. Whether the bench warrant is served in the county in which it
was issued or in another county, the officer must arrest the
defendant and bring him before the court, or deliver him to any peace
officer of the county from which the warrant issued, who must bring
him before said court according to the command thereof.
1200. When the defendant appears for judgment he must be informed
by the Court, or by the Clerk, under its direction, of the nature of
the charge against him and of his plea, and the verdict, if any
thereon, and must be asked whether he has any legal cause to show why
judgment should not be pronounced against him.
1201. He or she may show, for cause against the judgment:
(a) That he or she is insane; and if, in the opinion of the court,
there is reasonable ground for believing him or her insane, the
question of insanity shall be tried as provided in Chapter 6
(commencing with Section 1367) of Title 10 of Part 2. If, upon the
trial of that question, the jury finds that he or she is sane,
judgment shall be pronounced, but if they find him or her insane, he
or she shall be committed to the state hospital for the care and
treatment of the insane, until he or she becomes sane; and when
notice is given of that fact, as provided in Section 1372, he or she
shall be brought before the court for judgment.
(b) That he or she has good cause to offer, either in arrest of
judgment or for a new trial; in which case the court may, in its
discretion, order the judgment to be deferred, and proceed to decide
upon the motion in arrest of judgment or for a new trial.
1201.5. Any motions made subsequent to judgment must be made only
upon written notice served upon the prosecution at least three days
prior to the date of hearing thereon. No affidavit or other writing
shall be presented or considered in support thereof unless a copy of
the same has been duly served upon the prosecution at least three
days prior to a hearing thereon. Any appeal from an order entered
upon a motion made other than as herein provided, must be dismissed
by the court.
1202. If no sufficient cause is alleged or appears to the court at
the time fixed for pronouncing judgment, as provided in Section 1191,
why judgment should not be pronounced, it shall thereupon be
rendered; and if not rendered or pronounced within the time so fixed
or to which it is continued under the provisions of Section 1191,
then the defendant shall be entitled to a new trial. If the court
shall refuse to hear a defendant's motion for a new trial or when
made shall neglect to determine such motion before pronouncing
judgment or the making of an order granting probation, then the
defendant shall be entitled to a new trial.
1202a. If the judgment is for imprisonment in the state prison the
judgment shall direct that the defendant be delivered into the
custody of the Director of Corrections at the state prison or
institution designated by the Director of Corrections as the place
for the reception of persons convicted of felonies, except where the
judgment is for death in which case the defendant shall be taken to
the warden of the California State Prison at San Quentin.
Unless a different place or places are so designated by the
Director of Corrections, the judgment shall direct that the defendant
be delivered into the custody of the Director of Corrections at the
California State Prison at San Quentin. The Director of Corrections
shall designate a place or places for the reception of persons
convicted of felonies by order, which order or orders shall be served
by registered mail, return receipt requested, upon each judge of
each superior court in the state. The Director of Corrections may
change the place or places of commitment by the issuance of a new
order. Nothing contained in this section affects any provision of
Section 3400.
1202.05. (a) Whenever a person is sentenced to the state prison on
or after January 1, 1993, for violating Section 261, 264.1, 266c,
285, 286, 288, 288a, 288.5, or 289, and the victim of one or more of
those offenses is a child under the age of 18 years, the court shall
prohibit all visitation between the defendant and the child victim.
The court's order shall be transmitted to the Department of
Corrections, to the parents, adoptive parents, or guardians, or a
combination thereof, of the child victim, and to the child victim.
If any parent, adoptive parent, or legal guardian of the child
victim, or the child victim objects to the court's order, he or she
may request a hearing on the matter. Any request for a hearing on
the matter filed with the sentencing court shall be referred to the
appropriate juvenile court pursuant to Section 362.6 of the Welfare
and Institutions Code.
(b) The Department of Corrections is authorized to notify the
sentencing court of persons who were sentenced to the state prison
prior to January 1, 1993, for violating Section 261, 264.1, 266c,
285, 286, 288, 288a, 288.5, or 289, when the victim of one or more of
those offenses was a child under the age of 18 years.
Upon notification by the department pursuant to this subdivision,
the sentencing court shall prohibit all visitation between the
defendant and the child victim, according to the procedures specified
in subdivision (a).
1202.1. (a) Notwithstanding Sections 120975 and 120990 of the
Health and Safety Code, the court shall order every person who is
convicted of, or adjudged by the court to be a person described by
Section 601 or 602 of the Welfare and Institutions Code as provided
in Section 725 of the Welfare and Institutions Code by reason of a
violation of, a sexual offense listed in subdivision (e), whether or
not a sentence or fine is imposed or probation is granted, to submit
to a blood test for evidence of antibodies to the probable causative
agent of acquired immune deficiency syndrome (AIDS). Each person
tested under this section shall be informed of the results of the
blood test.
(b) Notwithstanding Section 120980 of the Health and Safety Code,
the results of the blood test to detect antibodies to the probable
causative agent of AIDS shall be transmitted by the clerk of the
court to the Department of Justice and the local health officer.
(c) Notwithstanding Section 120980 of the Health and Safety Code,
the Department of Justice shall provide the results of a test or
tests as to persons under investigation or being prosecuted under
Section 647f or 12022.85, if the results are on file with the
department, to the defense attorney upon request; and the results
also shall be available to the prosecuting attorney upon request for
the purpose of either preparing counts for a subsequent offense under
Section 647f or sentence enhancement under Section 12022.85 or
complying with subdivision (d).
(d) (1) In every case in which a person is convicted of a sexual
offense listed in subdivision (e) or adjudged by the court to be a
person described by Section 601 or 602 of the Welfare and
Institutions Code as provided in Section 725 of the Welfare and
Institutions Code by reason of the commission of a sexual offense
listed in subdivision (e), the prosecutor or the prosecutor's
victim-witness assistance bureau shall advise the victim of his or
her right to receive the results of the blood test performed pursuant
to subdivision (a). The prosecutor or the prosecutor's
victim-witness assistance bureau shall refer the victim to the local
health officer for counseling to assist him or her in understanding
the extent to which the particular circumstances of the crime may or
may not have placed the victim at risk of transmission of human
immunodeficiency virus (HIV) from the accused, to ensure that the
victim understands the limitations and benefits of current tests for
HIV, and to assist the victim in determining whether he or she should
make the request.
(2) Notwithstanding any other law, upon the victim's request, the
local health officer shall be responsible for disclosing test results
to the victim who requested the test and the person who was tested.
However, as specified in subdivision (g), positive test results
shall not be disclosed to the victim or the person who was tested
without offering or providing professional counseling appropriate to
the circumstances as follows:
(A) To help the victim understand the extent to which the
particular circumstances of the crime may or may not have put the
victim at risk of transmission of HIV from the perpetrator.
(B) To ensure that the victim understands both the benefits and
limitations of the current tests for HIV.
(C) To obtain referrals to appropriate health care and support
services.
(e) For purposes of this section, "sexual offense" includes any of
the following:
(1) Rape in violation of Section 261.
(2) Unlawful intercourse with a female under age 18 in violation
of Section 261.5.
(3) Rape of a spouse in violation of Section 262.
(4) Sodomy in violation of Section 286.
(5) Oral copulation in violation of Section 288a.
(6) Lewd or lascivious acts with a child in violation of Section
288, if the court finds that there is probable cause to believe that
blood, semen, or any other bodily fluid capable of transmitting HIV
has been transferred from the defendant to the victim. For purposes
of this paragraph, the court shall note its finding on the court
docket and minute order if one is prepared.
(f) Any blood tested pursuant to subdivision (a) shall be
subjected to appropriate confirmatory tests to ensure accuracy of the
first test results, and under no circumstances shall test results be
transmitted to the victim or the person who is tested unless any
initially reactive test result has been confirmed by appropriate
confirmatory tests for positive reactors.
(g) The local health officer shall be responsible for disclosing
test results to the victim who requested the test and the person who
was tested. However, positive test results shall not be disclosed to
the victim or the person who was tested without offering or
providing professional counseling appropriate to the circumstances.
(h) The local health officer and the victim shall comply with all
laws and policies relating to medical confidentiality, subject to the
disclosure authorized by subdivisions (g) and (i).
(i) Any victim who receives information from the local health
officer pursuant to subdivision (g) may disclose the information as
he or she deems necessary to protect his or her health and safety or
the health and safety of his or her family or sexual partner.
(j) Any person who transmits test results or discloses information
pursuant to this section shall be immune from civil liability for
any action taken in compliance with this section.
1202.4. (a) (1) It is the intent of the Legislature that a victim
of crime who incurs any economic loss as a result of the commission
of a crime shall receive restitution directly from any defendant
convicted of that crime.
(2) Upon a person being convicted of any crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment pursuant to Section 1214.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense, but shall
not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony,
and shall not be less than one hundred dollars ($100), and not more
than one thousand dollars ($1,000), if the person is convicted of a
misdemeanor.
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of felony counts of which
the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the
two-hundred-dollar ($200) or one-hundred-dollar ($100) minimum.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the two-hundred-dollar ($200) or one-hundred-dollar
($100) minimum, the court shall consider any relevant factors
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered any losses
as a result of the crime, and the number of victims involved in the
crime. Those losses may include pecuniary losses to the victim or
his or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a defendant'
s inability to pay may include his or her future earning capacity. A
defendant shall bear the burden of demonstrating his or her
inability to pay. Express findings by the court as to the factors
bearing on the amount of the fine shall not be required. A separate
hearing for the fine shall not be required.
(e) The restitution fine shall not be subject to penalty
assessments as provided in Section 1464, and shall be deposited in
the Restitution Fund in the State Treasury.
(f) In every case in which a victim has suffered economic loss as
a result of the defendant's conduct, the court shall require that the
defendant make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed by
the victim or victims or any other showing to the court. If the
amount of loss cannot be ascertained at the time of sentencing, the
restitution order shall include a provision that the amount shall be
determined at the direction of the court. The court shall order full
restitution unless it finds compelling and extraordinary reasons for
not doing so, and states them on the record.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court
may modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party. Restitution payments made
pursuant to this subdivision shall be made to the Restitution Fund to
the extent that the victim, as defined in subdivision (k), has
received assistance pursuant to Article 1 (commencing with Section
13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the
Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor.
(D) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution.
(E) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(F) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(G) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(g) The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution order, nor shall inability to pay be a consideration
in determining the amount of a restitution order.
(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing with
Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, in order to determine the defendant's
financial assets for purposes of collecting on the restitution order.
(i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment, pursuant to
Section 1214.
(j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the
Restitution Fund as otherwise provided by law, except to the extent
that restitution is actually collected pursuant to the order.
Restitution collected pursuant to this subdivision shall be credited
to any other judgments for the same losses obtained against the
defendant arising out of the crime for which the defendant was
convicted.
(k) For purposes of this section, "victim" shall include the
immediate surviving family of the actual victim. "Victim" shall also
include any corporation, business trust, estate, trust, partnership,
association, joint venture, government, governmental subdivision,
agency, or instrumentality, or any other legal or commercial entity
when that entity is a direct victim of a crime.
(l) At its discretion, the board of supervisors of any county may
impose a fee to cover the actual administrative cost of collecting
the restitution fine, not to exceed 10 percent of the amount ordered
to be paid, to be added to the restitution fine and included in the
order of the court, the proceeds of which shall be deposited in the
general fund of the county.
(m) In every case in which the defendant is granted probation, the
court shall make the payment of restitution fines and orders imposed
pursuant to this section a condition of probation. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation shall continue to be enforceable by a victim
pursuant to Section 1214 until the obligation is satisfied.
(n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine or full restitution
order should not be required, the court shall order, as a condition
of probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition to
the finding that restitution should not be required. Upon revocation
of probation, the court shall impose restitution pursuant to this
section.
(o) The provisions of Section 13966.01 of the Government Code
shall apply to restitution imposed pursuant to this section.
1202.45. In every case where a person is convicted of a crime and
whose sentence includes a period of parole, the court shall at the
time of imposing the restitution fine pursuant to subdivision (b) of
Section 1202.4, assess an additional restitution fine in the same
amount as that imposed pursuant to subdivision (b) of Section 1202.4.
This additional restitution fine shall be suspended unless the
person's parole is revoked.
1202.5. (a) In any case in which a defendant is convicted of any of
the offenses enumerated in Section 211, 215, 459, 487, or 488, the
court may order the defendant to pay a fine of ten dollars ($10) in
addition to any other penalty or fine imposed. If the court
determines that the defendant has the ability to pay all or part of
the fine, the court may set the amount to be reimbursed and order the
defendant to pay that sum to the county in the manner in which the
court believes reasonable and compatible with the defendant's
financial ability. In making a determination of whether a defendant
has the ability to pay, the court shall take into account the amount
of any other fine imposed upon the defendant and any amount the
defendant has been ordered to pay in restitution.
(b) All fines collected pursuant to this section shall be
transferred to the local law enforcement agency in the jurisdiction
where the offense took place. All moneys collected shall be used
exclusively to implement, support, and continue local crime
prevention programs.
(c) As used in this section, "law enforcement agency" includes,
but is not limited to, police departments, sheriffs departments, and
probation departments.
1202.6. (a) Notwithstanding Sections 120975, 120980, and 120990 of
the Health and Safety Code, upon the first conviction of any person
for a violation of subdivision (b) of Section 647, the court shall,
before sentencing or as a condition of probation, order the defendant
to complete instruction in the causes and consequences of acquired
immune deficiency syndrome (AIDS) pursuant to subdivision (d) and
shall order the defendant to submit to testing for AIDS in accordance
with subdivision (e). In addition, the court shall refer a
defendant, where appropriate, to a program under Article 3.2
(commencing with Section 11320) of Chapter 2 of Part 3 of Division 9
of the Welfare and Institutions Code or to any drug diversion
program, or both.
(b) Upon a second or subsequent conviction of a violation of
subdivision (b) of Section 647, the court shall, before sentencing,
order the defendant to submit to testing for AIDS in accordance with
subdivision (e).
(c) At the sentencing hearing of a defendant ordered to submit to
testing for AIDS pursuant to subdivision (a) or (b), the court shall
furnish the defendant with a copy of the report submitted pursuant to
subdivision (e) and shall direct the clerk to note the receipt of
the report by the defendant in the records of the case.
If the results of the test described in the report are positive,
the court shall make certain that the defendant understands the
nature and meaning of the contents of the report and shall further
advise the defendant of the penalty established in Section 647f for a
subsequent violation of subdivision (b) of Section 647.
(d) The county health officer in each county shall select an
agency, or agencies, in the county that shall provide AIDS prevention
education. The county health officer shall endeavor to select an
agency, or agencies, that currently provide AIDS prevention education
programs to substance abusers or prostitutes. If no agency is
currently providing this education, the county agency responsible for
substance abuse shall develop an AIDS prevention education program
either within the agency or under contract with a community-based,
nonprofit organization in the county. The county health officer
shall forward to the courts a list of agencies selected for purposes
of referral.
An AIDS prevention education program providing services, at a
minimum, shall include details about the transmission of human
immunodeficiency virus (HIV), the etiologic agent for AIDS, symptoms
of AIDS or AIDS-related conditions, prevention through avoidance or
cleaning of needles, sexual practices that constitute high risk, low
risk, and no risk (including abstinence), and resources for
assistance if the person decides to take a test for the etiologic
agent for AIDS and receives a positive test result. The program also
shall include other relevant medical and prevention information as
it becomes available.
(e) The court shall order testing of every defendant as ordered
pursuant to subdivision (a) or (b) for evidence of antibodies to the
probable causative agent of acquired immune deficiency syndrome.
Notwithstanding Section 120980 of the Health and Safety Code, written
copies of the report on the test shall be furnished to both of the
following:
(1) The court in which the defendant is to be sentenced.
(2) The State Department of Health Services.
(f) Except as provided in subdivisions (c) and (g), the reports
required by subdivision (e) shall be confidential.
(g) The State Department of Health Services shall maintain the
confidentiality of the reports received pursuant to subdivision (e),
except that the department shall furnish copies of any report to a
district attorney upon request.
1202.7. The Legislature finds and declares that the provision of
probation services is an essential element in the administration of
criminal justice. The safety of the public, which shall be a primary
goal through the enforcement of court-ordered conditions of
probation; the nature of the offense; the interests of justice,
including punishment, reintegration of the offender into the
community, and enforcement of conditions of probation; the loss to
the victim; and the needs of the defendant shall be the primary
considerations in the granting of probation.
1202.8. (a) Persons placed on probation by a court shall be under
the supervision of the county probation officer who shall determine
both the level and type of supervision consistent with the
court-ordered conditions of probation.
(b) Within 30 days of a court making an order to provide
restitution to a victim or to the Restitution Fund, the probation
officer shall establish an account into which any restitution
payments that are not deposited into the Restitution Fund shall be
deposited.
1203. (a) As used in this code, "probation" means 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. As used in this code,
"conditional sentence" means the suspension of the imposition or
execution of a sentence and the order of revocable release in the
community subject to conditions established by the court without the
supervision of a probation officer. It is the intent of the
Legislature that both conditional sentence and probation are
authorized whenever probation is authorized in any code as a
sentencing option for infractions or misdemeanors.
(b) (1) Except as provided in subdivision (j), if a person is
convicted of a felony and is eligible for probation, before judgment
is pronounced, the court shall immediately refer the matter to a
probation officer to investigate and report to the court, at a
specified time, upon the circumstances surrounding the crime and the
prior history and record of the person, which may be considered
either in aggravation or mitigation of the punishment.
(2) (A) The probation officer shall immediately investigate and
make a written report to the court of his or her findings and
recommendations, including his or her recommendations as to the
granting or denying of probation and the conditions of probation, if
granted.
(B) Pursuant to Section 828 of the Welfare and Institutions Code,
the probation officer shall include in his or her report any
information gathered by a law enforcement agency relating to the
taking of the defendant into custody as a minor, which shall be
considered for purposes of determining whether adjudications of
commissions of crimes as a juvenile warrant a finding that there are
circumstances in aggravation pursuant to Section 1170 or to deny
probation.
(C) The probation officer shall also include in the report his or
her recommendation of both of the following:
(i) The amount the defendant should be required to pay as a
restitution fine pursuant to subdivision (b) of Section 1202.4.
(ii) Whether the court shall require, as a condition of probation,
restitution to the victim or to the Restitution Fund and the amount
thereof.
(D) The report shall be made available to the court and the
prosecuting and defense attorneys at least five days, or upon request
of the defendant or prosecuting attorney, nine days prior to the
time fixed by the court for the hearing and determination of the
report, and shall be filed with the clerk of the court as a record in
the case at the time of the hearing. The time within which the
report shall be made available and filed may be waived by written
stipulation of the prosecuting and defense attorneys that is filed
with the court or an oral stipulation in open court that is made and
entered upon the minutes of the court.
(3) At a time fixed by the court, the court shall hear and
determine the application, if one has been made, or, in any case, the
suitability of probation in the particular case. At the hearing,
the court shall consider any report of the probation officer and
shall make a statement that it has considered the report which shall
be filed with the clerk of the court as a record in the case. 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, it may place the person
on probation. If probation is denied, the clerk of the court shall
immediately send a copy of the report to the Department of
Corrections at the prison or other institution to which the person is
delivered.
(4) The preparation of the report or the consideration of the
report by the court may be waived only by a written stipulation of
the prosecuting and defense attorneys that is filed with the court or
an oral stipulation in open court that is made and entered upon the
minutes of the court, except that there shall be no waiver unless the
court consents thereto. However, if the defendant is ultimately
sentenced and committed to the state prison, a probation report shall
be completed pursuant to Section 1203c.
(c) If a defendant is not represented by an attorney, the court
shall order the probation officer who makes the probation report to
discuss its contents with the defendant.
(d) If a person is convicted of a misdemeanor, the court may
either refer the matter to the probation officer for an investigation
and a report or summarily pronounce a conditional sentence. If the
case is not referred to the probation officer, in sentencing the
person, the court may consider any information concerning the person
that could have been included in a probation report. The court shall
inform the person of the information to be considered and permit him
or her to answer or controvert the information. For this purpose,
upon the request of the person, the court shall grant a continuance
before the judgment is pronounced.
(e) Except in unusual cases where the interests of justice would
best be served if the person is granted probation, probation shall
not be granted to any of the following persons:
(1) Unless the person had a lawful right to carry a deadly weapon,
other than a firearm, at the time of the perpetration of the crime
or his or her arrest, any person who has been convicted of arson,
robbery, carjacking, burglary, burglary with explosives, rape with
force or violence, torture, aggravated mayhem, murder, attempt to
commit murder, trainwrecking, kidnapping, escape from the state
prison, or a conspiracy to commit one or more of those crimes and who
was armed with the weapon at either of those times.
(2) Any person who used, or attempted to use, a deadly weapon upon
a human being in connection with the perpetration of the crime of
which he or she has been convicted.
(3) Any person who willfully inflicted great bodily injury or
torture in the perpetration of the crime of which he or she has been
convicted.
(4) Any person who has been previously convicted twice in this
state of a felony or in any other place of a public offense which, if
committed in this state, would have been punishable as a felony.
(5) Unless the person has never been previously convicted once in
this state of a felony or in any other place of a public offense
which, if committed in this state, would have been punishable as a
felony, any person who has been convicted of burglary with
explosives, rape with force or violence, torture, aggravated mayhem,
murder, attempt to commit murder, trainwrecking, extortion,
kidnapping, escape from the state prison, a violation of Section 286,
288, 288a, or 288.5, or a conspiracy to commit one or more of those
crimes.
(6) Any person who has been previously convicted once in this
state of a felony or in any other place of a public offense which, if
committed in this state, would have been punishable as a felony, if
he or she committed any of the following acts:
(A) Unless the person had a lawful right to carry a deadly weapon
at the time of the perpetration of the previous crime or his or her
arrest for the previous crime, he or she was armed with a weapon at
either of those times.
(B) The person used, or attempted to use, a deadly weapon upon a
human being in connection with the perpetration of the previous
crime.
(C) The person willfully inflicted great bodily injury or torture
in the perpetration of the previous crime.
(7) Any public official or peace officer of this state or any
city, county, or other political subdivision who, in the discharge of
the duties of his or her public office or employment, accepted or
gave or offered to accept or give any bribe, embezzled public money,
or was guilty of extortion.
(8) Any person who knowingly furnishes or gives away
phencyclidine.
(9) Any person who intentionally inflicted great bodily injury in
the commission of arson under subdivision (a) of Section 451 or who
intentionally set fire to, burned, or caused the burning of, an
inhabited structure or inhabited property in violation of subdivision
(b) of Section 451.
(10) Any person who, in the commission of a felony, inflicts great
bodily injury or causes the death of a human being by the discharge
of a firearm from or at an occupied motor vehicle proceeding on a
public street or highway.
(11) Any person who possesses a short-barreled rifle or a
short-barreled shotgun under Section 12020, a machine gun under
Section 12220, or a silencer under Section 12520.
(12) Any person who is convicted of violating Section 8101 of the
Welfare and Institutions Code.
(13) Any person who is described in paragraph (2) or (3) of
subdivision (g) of Section 12072.
(f) When probation is granted in a case which comes within
subdivision (e), the court shall specify on the record and shall
enter on the minutes the circumstances indicating that the interests
of justice would best be served by that disposition.
(g) If a person is not eligible for probation, the judge shall
refer the matter to the probation officer for an investigation of the
facts relevant to determination of the amount of a restitution fine
pursuant to subdivision (b) of Section 1202.4 in all cases where the
determination is applicable. The judge, in his or her discretion,
may direct the probation officer to investigate all facts relevant to
the sentencing of the person. Upon that referral, the probation
officer shall immediately investigate the circumstances surrounding
the crime and the prior record and history of the person and make a
written report to the court of his or her findings. The findings
shall include a recommendation of the amount of the restitution fine
as provided in subdivision (b) of Section 1202.4.
(h) If a defendant is convicted of a felony and a probation report
is prepared pursuant to subdivision (b) or (g), the probation
officer may obtain and include in the report a statement of the
comments of the victim concerning the offense. The court may direct
the probation officer not to obtain a statement if the victim has in
fact testified at any of the court proceedings concerning the
offense.
(i) No probationer shall be released to enter another state unless
his or her case has been referred to the Administrator of the
Interstate Probation and Parole Compacts, pursuant to the Uniform Act
for Out-of-State Probationer or Parolee Supervision (Article 3
(commencing with Section 11175) of Chapter 2 of Title 1 of Part 4)
and the probationer has reimbursed the county that has jurisdiction
over his or her probation case the reasonable costs of processing his
or her request for interstate compact supervision. The amount and
method of reimbursement shall be in accordance with Section 1203.1b.
(j) In any court where a county financial evaluation officer is
available, in addition to referring the matter to the probation
officer, the court may order the defendant to appear before the
county financial evaluation officer for a financial evaluation of the
defendant's ability to pay restitution, in which case the county
financial evaluation officer shall report his or her findings
regarding restitution and other court-related costs to the probation
officer on the question of the defendant's ability to pay those
costs.
Any order made pursuant to this subdivision may be enforced as a
violation of the terms and conditions of probation upon willful
failure to pay and at the discretion of the court, may be enforced in
the same manner as a judgment in a civil action, if any balance
remains unpaid at the end of the defendant's probationary period.
(k) Probation shall not be granted to, nor shall the execution of,
or imposition of sentence be suspended for, any person who is
convicted of a violent felony, as defined in subdivision (c) of
Section 667.5, or a serious felony, as defined in subdivision (c) of
Section 1192.7, and who was on probation for a felony offense at the
time of the commission of the new felony offense.
1203.01. Immediately after judgment has been pronounced, the judge
and the district attorney, respectively, may cause to be filed with
the clerk of the court a brief statement of their views respecting
the person convicted or sentenced and the crime committed, together
with any reports the probation officer may have filed relative to
the prisoner. The judge and district attorney shall cause those
statements to be filed if no probation officer's report has been
filed. The attorney for the defendant and the law enforcement agency
that investigated the case may likewise file with the clerk of the
court statements of their views respecting the defendant and the
crime of which he or she was convicted. Immediately after the filing
of those statements and reports, the clerk of the court shall mail a
copy thereof, certified by that clerk, with postage prepaid,
addressed to the Department of Corrections at the prison or other
institution to which the person convicted is delivered. Within 60
days after judgment has been pronounced, the clerk shall mail a copy
of the charging documents, the transcript of the proceedings at the
time of the defendant's guilty plea, if the defendant pleaded guilty,
and the transcript of the proceedings at the time of sentencing,
with postage prepaid, to the prison or other institution to which the
person convicted is delivered. The clerk shall also mail a copy of
any statement submitted by the court, district attorney, or law
enforcement agency, pursuant to this section, with postage prepaid,
addressed to the attorney for the defendant, if any, and to the
defendant, in care of the Department of Corrections, and a copy of
any statement submitted by the attorney for the defendant, with
postage prepaid, shall be mailed to the district attorney.
1203.016. (a) Notwithstanding any other provision of law, the board
of supervisors of any county may authorize the correctional
administrator, as defined in subdivision (h), to offer a program
under which minimum security inmates and low-risk offenders committed
to a county jail or other county correctional facility or granted
probation, or inmates participating in a work furlough program, may
voluntarily participate in a home detention program during their
sentence in lieu of confinement in the county jail or other county
correctional facility or program under the auspices of the probation
officer.
(b) The board of supervisors may prescribe reasonable rules and
regulations under which a home detention program may operate. As a
condition of participation in the home detention program, the inmate
shall give his or her consent in writing to participate in the home
detention program and shall in writing agree to comply with the rules
and regulations of the program, including, but not limited to, the
following rules:
(1) The participant shall remain within the interior premises of
his or her residence during the hours designated by the correctional
administrator.
(2) The participant shall admit any person or agent designated by
the correctional administrator into his or her residence at any time
for purposes of verifying the participant's compliance with the
conditions of his or her detention.
(3) The participant shall agree to the use of electronic
monitoring or supervising devices for the purpose of helping to
verify his or her compliance with the rules and regulations of the
home detention program. The devices shall not be used to eavesdrop
or record any conversation, except a conversation between the
participant and the person supervising the participant which is to be
used solely for the purposes of voice identification.
(4) The participant shall agree that the correctional
administrator in charge of the county correctional facility from
which the participant was released may, without further order of the
court, immediately retake the person into custody to serve the
balance of his or her sentence if the electronic monitoring or
supervising devices are unable for any reason to properly perform
their function at the designated place of home detention, if the
person fails to remain within the place of home detention as
stipulated in the agreement, if the person willfully fails to pay
fees to the provider of electronic home detention services, as
stipulated in the agreement, subsequent to the written notification
of the participant that the payment has not been received and that
return to custody may result, or if the person for any other reason
no longer meets the established criteria under this section. A copy
of the agreement shall be delivered to the participant and a copy
retained by the correctional administrator.
(c) Whenever the peace officer supervising a participant has
reasonable cause to believe that the participant is not complying
with the rules or conditions of the program, or that the electronic
monitoring devices are unable to function properly in the designated
place of confinement, the peace officer may, under general or
specific authorization of the correctional administrator, and without
a warrant of arrest, retake the person into custody to complete the
remainder of the original sentence.
(d) Nothing in this section shall be construed to require the
correctional administrator to allow a person to participate in this
program if it appears from the record that the person has not
satisfactorily complied with reasonable rules and regulations while
in custody. A person shall be eligible for participation in a home
detention program only if the correctional administrator concludes
that the person meets the criteria for release established under this
section and that the person's participation is consistent with any
reasonable rules and regulations prescribed by the board of
supervisors or the administrative policy of the correctional
administrator.
(1) The rules and regulations and administrative policy of the
program shall be written and reviewed on an annual basis by the
county board of supervisors and the correctional administrator. The
rules and regulations shall be given to or made available to any
participant upon request.
(2) The correctional administrator, or his or her designee, shall
have the sole discretionary authority to permit program participation
as an alternative to physical custody. All persons referred or
recommended by the court to participate in the home detention program
pursuant to subdivision (e) who are denied participation or all
persons removed from program participation shall be notified in
writing of the specific reasons for the denial or removal. The
notice of denial or removal shall include the participant's appeal
rights, as established by program administrative policy.
(e) The court may recommend or refer a person to the correctional
administrator for consideration for placement in the home detention
program. The recommendation or referral of the court shall be given
great weight in the determination of acceptance or denial. At the
time of sentencing or at any time that the court deems it necessary,
the court may restrict or deny the defendant's participation in a
home detention program.
(f) The correctional administrator may permit home detention
program participants to seek and retain employment in the community,
attend psychological counseling sessions or educational or vocational
training classes, or seek medical and dental assistance. Willful
failure of the program participant to return to the place of home
detention not later than the expiration of any period of time during
which he or she is authorized to be away from the place of home
detention pursuant to this section and unauthorized departures from
the place of home detention are punishable as provided in Section
4532.
(g) The board of supervisors may prescribe a program
administrative fee to be paid by each home detention participant that
shall be determined according to his or her ability to pay.
Inability to pay all or a portion of the program fees shall not
preclude participation in the program, and eligibility shall not be
enhanced by reason of ability to pay. All program administration and
supervision fees shall be administered in compliance with Section
1208.2.
(h) As used in this section, the following words have the
following meanings:
(1) "Correctional administrator" means the sheriff, probation
officer, or director of the county department of corrections.
(2) "Minimum security inmate" means an inmate who, by established
local classification criteria, would be eligible for placement in a
Type IV local detention facility, as described in Title 15 of the
California Code of Regulations, or for placement into the community
for work or school activities, or who is determined to be a minimum
security risk under a classification plan developed pursuant to
Section 1050 of Title 15 of the California Code of Regulations.
(3) "Low-risk offender" means a probationer, as defined by the
National Institute of Corrections model probation system.
(i) Notwithstanding any other law, the police department of a city
where an office is located to which persons on an electronic
monitoring program report may require the county correctional
administrator to provide information concerning those persons. This
information shall be limited to the name, address, date of birth, and
offense committed by the home detainee. Any information received by
a police department pursuant to this paragraph shall be used only
for the purpose of monitoring the impact of home detention programs
on the community.
(j) It is the intent of the Legislature that home detention
programs established under this section maintain the highest public
confidence, credibility, and public safety. In the furtherance of
these standards, the following shall apply:
(1) The correctional administrator, with the approval of the board
of supervisors, may administer a home detention program pursuant to
written contracts with appropriate public or private agencies or
entities to provide specified program services. No public or private
agency or entity may operate a home detention program in any county
without a written contract with that county's correctional
administrator. However, this does not apply to the use of electronic
monitoring by the California Department of Corrections or the
Department of the Youth Authority as established in Section 3004. No
public or private agency or entity entering into a contract may
itself employ any person who is in the home detention program.
(2) Program acceptance shall not circumvent the normal booking
process for sentenced offenders. All home detention program
participants shall be supervised.
(3) (A) All privately operated home detention programs shall be
under the jurisdiction of, and subject to the terms and conditions of
the contract entered into with, the correctional administrator.
(B) Each contract shall include, but not be limited to, all of the
following:
(i) A provision whereby the private agency or entity agrees to
operate in compliance with any available standards promulgated by
state correctional agencies and bodies, including the Board of
Corrections, and all statutory provisions and mandates, state and
county, as appropriate and applicable to the operation of home
detention programs and the supervision of sentenced offenders in a
home detention program.
(ii) A provision that clearly defines areas of respective
responsibility and liability of the county and the private agency or
entity.
(iii) A provision that requires the private agency or entity to
demonstrate evidence of financial responsibility, submitted and
approved by the board of supervisors, in amounts and under conditions
sufficient to fully indemnify the county for reasonably foreseeable
public liability, including legal defense costs, that may arise from,
or be proximately caused by, acts or omissions of the contractor.
The contract shall provide for annual review by the correctional
administrator to ensure compliance with requirements set by the board
of supervisors and for adjustment of the financial responsibility
requirements if warranted by caseload changes or other factors.
(iv) A provision that requires the private agency or entity to
provide evidence of financial responsibility, such as certificates of
insurance or copies of insurance policies, prior to commencing any
operations pursuant to the contract or at any time requested by the
board of supervisors or correctional administrator.
(v) A provision that permits the correctional administrator to
immediately terminate the contract with a private agency or entity at
any time that the contractor fails to demonstrate evidence of
financial responsibility.
(C) All privately operated home detention programs shall comply
with all appropriate, applicable ordinances and regulations specified
in subdivision (a) of Section 1208.
(D) The board of supervisors, the correctional administrator, and
the designee of the correctional administrator shall comply with
Section 1090 of the Government Code in the consideration, making, and
execution of contracts pursuant to this section.
(E) The failure of the private agency or entity to comply with
statutory provisions and requirements or with the standards
established by the contract and with the correctional administrator
may be sufficient cause to terminate the contract.
(F) Upon the discovery that a private agency or entity with whom
there is a contract is not in compliance pursuant to this paragraph,
the correctional administrator shall give 60 days' notice to the
director of the private agency or entity that the contract may be
canceled if the specified deficiencies are not corrected.
(G) Shorter notice may be given or the contract may be canceled
without notice whenever a serious threat to public safety is present
because the private agency or entity has failed to comply with this
section.
(k) For purposes of this section, "evidence of financial
responsibility" may include, but is not limited to, certified copies
of any of the following:
(1) A current liability insurance policy.
(2) A current errors and omissions insurance policy.
(3) A surety bond.
1203.02. The court, or judge thereof, in granting probation to a
defendant convicted of any of the offenses enumerated in Section 290
of this code shall inquire into the question whether the defendant at
the time the offense was committed was intoxicated or addicted to
the excessive use of alcoholic liquor or beverages at that time or
immediately prior thereto, and if the court, or judge thereof,
believes that the defendant was so intoxicated, or so addicted, such
court, or judge thereof, shall require as a condition of such
probation that the defendant totally abstain from the use of
alcoholic liquor or beverages.
1203.03. (a) In any case in which a defendant is convicted of an
offense punishable by imprisonment in the state prison, the court, if
it concludes that a just disposition of the case requires such
diagnosis and treatment services as can be provided at a diagnostic
facility of the Department of Corrections, may order that defendant
be placed temporarily in such facility for a period not to exceed 90
days, with the further provision in such order that the Director of
the Department of Corrections report to the court his diagnosis and
recommendations concerning the defendant within the 90-day period.
(b) The Director of the Department of Corrections shall, within
the 90 days, cause defendant to be observed and examined and shall
forward to the court his diagnosis and recommendation concerning the
disposition of defendant's case. Such diagnosis and recommendation
shall be embodied in a written report and copies of the report shall
be served only upon the defendant or his counsel, the probation
officer, and the prosecuting attorney by the court receiving such
report. After delivery of the copies of the report, the information
contained therein shall not be disclosed to anyone else without the
consent of the defendant. After disposition of the case, all copies
of the report, except the one delivered to the defendant or his
counsel, shall be filed in a sealed file and shall be available
thereafter only to the defendant or his counsel, the prosecuting
attorney, the court, the probation officer, or the Department of
Corrections.
(c) Notwithstanding subdivision (b), the probation officer may
retain a copy of the report for the purpose of supervision of the
defendant if the defendant is placed on probation by the court. The
report and information contained therein shall be confidential and
shall not be disclosed to anyone else without the written consent of
the defendant. Upon the completion or termination of probation, the
copy of the report shall be returned by the probation officer to the
sealed file prescribed in subdivision (b).
(d) The Department of Corrections shall designate the place to
which a person referred to it under the provisions of this section
shall be transported. After the receipt of any such person, the
department may return the person to the referring court if the
director of the department, in his discretion, determines that the
staff and facilities of the department are inadequate to provide such
services.
(e) The sheriff of the county in which an order is made placing a
defendant in a diagnostic facility pursuant to this section, or any
other peace officer designated by the court, shall execute the order
placing such defendant in the center or returning him therefrom to
the court. The expense of such sheriff or other peace officer
incurred in executing such order is a charge upon the county in which
the court is situated.
(f) It is the intention of the Legislature that the diagnostic
facilities made available to the counties by this section shall only
be used for the purposes designated and not in lieu of sentences to
local facilities.
(g) Time spent by a defendant in confinement in a diagnostic
facility of the Department of Corrections pursuant to this section or
as an inpatient of the California Rehabilitation Center shall be
credited on the term of imprisonment in state prison, if any, to
which defendant is sentenced in the case.
(h) In any case in which a defendant has been placed in a
diagnostic facility pursuant to this section and, in the course of
his confinement, he is determined to be suffering from a remediable
condition relevant to his criminal conduct, the department may, with
the permission of defendant, administer treatment for such condition.
If such treatment will require a longer period of confinement than
the period for which defendant was placed in the diagnostic facility,
the Director of Corrections may file with the court which placed
defendant in the facility a petition for extension of the period of
confinement, to which shall be attached a writing signed by defendant
giving his consent to the extension. If the court finds the
petition and consent in order, it may order the extension, and
transmit a copy of the order to the Director of Corrections.
1203.044. (a) This section shall apply only to a defendant
convicted of a felony for theft of an amount exceeding fifty thousand
dollars ($50,000) in a single transaction or occurrence. This
section shall not apply unless the fact that the crime involved the
theft of an amount exceeding fifty thousand dollars ($50,000) in a
single transaction or occurrence is charged in the accusatory
pleading and either admitted by the defendant in open court or found
to be true by the trier of fact. Aggregate losses from more than one
criminal act shall not be considered in determining if this section
applies.
(b) Notwithstanding any other law, probation shall not be granted
to a defendant convicted of a crime to which subdivision (a) applies
if the defendant was previously convicted of an offense for which an
enhancement pursuant to Section 12022.6 was found true even if that
enhancement was not imposed by the sentencing court. The prior
conviction shall be alleged in the accusatory pleading and either
admitted by the defendant in open court or found to be true by the
trier of fact.
(c) In deciding whether to grant probation to a defendant
convicted of a crime to which subdivision (a) applies, the court
shall consider all relevant information, including the extent to
which the defendant has attempted to pay restitution to the victim
between the date upon which the defendant was convicted and the date
of sentencing. A defendant claiming inability to pay restitution
before the date of sentencing shall provide a statement of assets,
income, and liabilities, as set forth in subdivision (j) to the
court, the probation department, and the prosecution.
(d) In addition to the restrictions on probation imposed by
subdivisions (b) and (c), probation shall not be granted to any
person convicted of theft in an amount exceeding one hundred thousand
dollars ($100,000) in a single transaction or occurrence, except in
unusual cases if the interests of justice would best be served if the
person is granted probation. The fact that the theft was of an
amount exceeding one hundred thousand dollars ($100,000) in a single
transaction or occurrence, shall be alleged in the accusatory
pleading and either admitted by the defendant in open court or found
to be true by the trier of fact. This subdivision shall not
authorize a grant of probation otherwise prohibited under subdivision
(b) or (c). If probation is granted pursuant to this subdivision,
the court shall specify on the record and shall enter on the minutes
the circumstances indicating that the interests of justice would best
be served by that disposition. Aggregate losses from more than one
criminal act shall not be considered in determining whether this
subdivision applies.
(e) Subject to subdivision (f), if a defendant is convicted of a
crime to which subdivision (a) applies and the court grants
probation, a court shall impose at least a 90-day sentence in a
county jail as a condition of probation. If the defendant was
convicted of a crime to which subdivision (d) applies, and the court
grants probation, the court shall impose at least a 180-day sentence
in a county jail as a condition of probation.
(f) The court shall designate a portion of any sentence imposed
pursuant to subdivision (e) as a mandatory in-custody term. For the
purpose of this section only, "mandatory in-custody term" means that
the defendant shall serve that term, notwithstanding credits pursuant
to Section 4019, in custody in the county jail. The defendant shall
not be allowed release on any program during that term, including
work furlough, work release, public service program, or electronic
monitoring. The court shall designate the mandatory in-custody term
as follows:
(1) If the defendant was convicted of a crime to which subdivision
(a) applies, the mandatory in-custody term shall be no less than 30
days. If the person serves a mandatory in-custody term of at least
30 days, the court may, in the interests of justice, and for reasons
stated in the record, reduce the mandatory minimum 90-day sentence
required by subdivision (e).
(2) If the defendant was convicted of a crime to which subdivision
(d) applies, the mandatory in-custody term shall be no less than 60
days. If the person serves a mandatory in-custody term of at least
60 days, the court may, in the interests of justice, and for reasons
stated in the record, reduce the mandatory minimum 180-day sentence
required by subdivision (e).
(g) If a defendant is convicted of a crime to which subdivision
(a) applies, and the court grants probation, the court shall require
the defendant as a condition of probation to pay restitution to the
victim and to pay a surcharge to the county in the amount of 20
percent of the restitution ordered by the court, as follows:
(1) The surcharge is not subject to any assessments otherwise
imposed by Section 1464. The surcharge shall be paid into the county
treasury and placed in the general fund to be used exclusively for
the investigation and prosecution of white collar crime offenses and
to pay the expenses incurred by the county in administering this
section, including increased costs incurred as a result of offenders
serving mandatory in-custody terms pursuant to this section.
(2) The court shall also enter an income deduction order as
provided in Section 13967.2 of the Government Code to secure payment
of the surcharge. That order may be enforced to secure payment of the
surcharge as provided by those provisions.
(3) The county board of supervisors shall not charge the fee
provided for by Section 1203.1, subdivision (l) of Section 1202.4, or
subdivision (d) of Section 13967, as operative on or before
September 28, 1994, of the Government Code for the collection of
restitution or any restitution fine.
(4) The defendant shall not be required to pay the costs of
probation as otherwise required by subdivision (b) of Section 1203.1.
(h) Notwithstanding any other law, if a defendant is convicted of
a crime to which subdivision (a) applies and the court grants
probation, as a condition of probation, within 30 court days after
being granted probation, and annually thereafter, the defendant shall
provide the county financial officer with all of the following
documents and records:
(1) True and correct copies of all income tax and personal
property tax returns for the previous tax year, including W-2 forms
filed on the defendant's behalf with any state tax agency. If the
defendant is unable to supply a copy of a state tax return, the
defendant shall provide a true and correct copy of all income tax
returns for the previous tax year filed on his or her behalf with the
federal government. The defendant is not required to provide any
particular document if to do so would violate federal law or the law
of the state in which the document was filed. However, this section
shall supersede all other laws in this state concerning the right to
privacy with respect to tax returns filed with this state. If,
during the term of probation, the defendant intentionally fails to
provide the county financial officer with any document that he or she
knows is required to be provided under this subdivision, that
failure shall constitute a violation of probation.
(2) A statement of income, assets, and liabilities as defined in
subdivision (j).
(i) The submission by the defendant of any tax document pursuant
to paragraph (1) of subdivision (h) that the defendant knows does not
accurately state the defendant's income, or if required, the
defendant's personal property, if the inaccuracy is material,
constitutes a violation of probation.
(j) A statement of income, assets, and liabilities form, that is
consistent with the disclosure requirements of this section, may be
established by the financial officer of each county. That statement
shall require the defendant to furnish relevant financial information
identifying the defendant's income, assets, possessions, or
liabilities, actual or contingent. The statement may include the
following:
(1) All real property in which the defendant has any interest.
(2) Any item of personal property worth more than three thousand
dollars ($3,000) in which the defendant has any interest, including,
but not limited to, vehicles, airplanes, boats, computers, and
consumer electronics. Any collection of jewelry, coins, silver,
china, artwork, antiques, or other collectibles in which the
defendant has any interest, if that collection is worth more than
three thousand dollars ($3,000).
(3) All domestic and foreign assets in the defendant's name, or in
the name of the defendant's spouse or minor children, of a value
over three thousand dollars ($3,000) and in whatever form, including,
but not limited to, bank accounts, securities, stock options, bonds,
mutual funds, money market funds, certificates of deposits,
annuities, commodities, precious metals, deferred compensation
accounts, individual retirement accounts, and related or analogous
accounts.
(4) All insurance policies in which the defendant or the defendant'
s spouse or minor children retain a cash value.
(5) All pension funds in which the defendant has a vested right.
(6) All insurance policies of which the defendant is a
beneficiary.
(7) All contracts, agreements, judgments, awards, or prizes
granting the defendant the right to receive money or real or personal
property in the future, including alimony and child support.
(8) All trusts of which the defendant is a beneficiary.
(9) All unrevoked wills of a decedent if the defendant or
defendant's spouse or minor child is a beneficiary.
(10) All lawsuits currently maintained by the defendant or by or
against a corporation in which the defendant owns more than a 25
percent interest if the suit includes a prayer for damages.
(11) All corporations of which the defendant is an officer. If
the defendant is an officer in a corporation sole, subchapter S
corporation, or closely held corporation, and controls more equity of
that corporation than any other individual, the county financial
officer shall have authority to request other records of the
corporation.
(12) All debts in excess of three thousand dollars ($3,000) owed
by the defendant to any person or entity.
(13) Copies of all applications for loans made by the defendant
during the last year.
(14) All encumbrances on any real and personal property in which
the defendant has any interest.
(15) All sales, transfers, assignments, quitclaims, conveyances,
or encumbrances of any interest in real or personal property of a
value exceeding three thousand dollars ($3,000) made by the defendant
during the period beginning one year before charges were filed to
the present, including the identity of the recipient of same, and
relationship, if any, to the defendant.
(k) The information contained in the statement of income, assets,
and liabilities shall not be available to the public. Information
received pursuant to this subdivision shall not be disclosed to any
member of the public. Any disclosure in violation of this section
shall be a contempt of court punishable by a fine not exceeding one
thousand dollars ($1,000), and shall also create a civil cause of
action for damages.
(l) After providing the statement of income, assets, and
liabilities, the defendant shall provide the county financial officer
with copies of any documents representing or reflecting the
financial information set forth in subdivision (j) as requested by
that officer.
(m) The defendant shall sign the statement of income, assets, and
liabilities under penalty of perjury. The provision of information
known to be false, or the intentional failure to provide material
information knowing that it was required to have been provided, shall
constitute a violation of probation.
(n) The Franchise Tax Board and the Employment Development
Department shall release copies of income tax returns filed by the
defendant and other information concerning the defendant's current
income and place of employment to the county financial officer upon
request. That information shall be kept confidential and shall not
be made available to any member of the public. Any unauthorized
release shall be subject to subdivision (k). The county shall
reimburse the reasonable administrative expenses incurred by those
agencies in providing this information.
(o) During the term of probation, the defendant shall notify the
county financial officer in writing within 30 days, after receipt
from any source of any money or real or personal property that has a
value of over five thousand dollars ($5,000), apart from the salary
from the defendant's and the defendant's spouse's regular employment.
The defendant shall report the source and value of the money or
real or personal property received. This information shall not be
made available to the public or the victim. Any unauthorized release
shall be subject to subdivision (k).
(p) The term of probation in all cases shall be 10 years.
However, after the defendant has served five years of probation, the
defendant shall be released from all terms and conditions of
probation except those terms and conditions included within this
section. A court may not revoke or otherwise terminate probation
within 10 years unless and until the defendant has satisfied both the
restitution judgment and the surcharge, or the defendant is
imprisoned for a violation of probation. Upon satisfying the
restitution judgment, the defendant is entitled to a court order
vacating that judgment and removing it from the public record.
Amounts owing on the surcharge are forgiven upon completion of the
term of probation.
(q) The county financial officer shall establish a suggested
payment schedule each year to ensure that the defendant remits
amounts to make restitution to the victim and pay the surcharge. The
county financial officer shall evaluate the defendant's current
earnings, future earning capacity, assets (including assets that are
in trust or in accounts where penalties may be incurred upon
premature withdrawal of funds), and liabilities, and set payments to
the county based upon the defendant's ability to pay. The defendant
shall bear the burden of demonstrating the lack of his or her ability
to pay. If the defendant objects to the suggested payment schedule,
the court shall set the schedule. Express findings by the court as
to the factors bearing on the payment schedule shall not be required.
After the payment schedule is set, a defendant may request a change
in the schedule upon a change of circumstances. The restitution
schedule shall set a reasonable payment amount and shall not set
payments in an amount that is likely to cause severe financial
hardship to the defendant or his or her family.
(r) The willful failure to pay the amounts required by the payment
schedule or to comply with the requirements of the county financial
officer or the probation department pursuant to this section, if the
defendant is able to pay or comply, is a violation of probation.
(s) In determining the defendant's ability to pay, the court shall
consider whether the annual payment required, including any money or
property seized to satisfy the restitution judgment, exceeds 15
percent of the defendant's taxable income for the previous year as
identified on the defendant's tax return for the defendant's state of
residence or on the defendant's federal tax return. If the
defendant has filed a joint return, the defendant's income for
purposes of this section shall be presumed to be the total of all
wages earned by the defendant, plus one-half of all other nonsalary
income listed on the tax return and accompanying schedules, unless
the defendant demonstrates otherwise. The court shall also consider
the defendant's current income and future earning capacity. A
defendant shall bear the burden of demonstrating lack of his or her
ability to pay. Express findings by the court as to the factors
bearing on the payment schedule shall not be required.
(t) The defendant shall personally appear at any hearing held
pursuant to any provision of this section unless the defendant is
incarcerated or otherwise excused by the court, in which case the
defendant may appear through counsel.
(u) Notwithstanding subdivision (d) of Section 1203.1, the county
financial officer shall distribute proceeds collected by the county
pursuant to this section as follows:
(1) If the restitution judgment has been satisfied, but the
surcharge remains outstanding, all amounts paid by the defendant
shall be kept by the county and applied to the surcharge.
(2) If the surcharge has been satisfied, but the restitution
judgment has not been satisfied, all amounts submitted to the county
shall be remitted to the victim.
(3) If neither judgment has been satisfied, the county shall remit
70 percent of the amounts collected to the victim. Those amounts
shall be credited to the restitution judgment. The remaining 30
percent shall be retained by the county and credited toward the
surcharge.
(v) Neither this section, nor the amendments to Section 12022.6 of
the Penal Code enacted pursuant to Chapter 104 of the Statutes of
1992, are intended to lessen or otherwise mitigate sentences that
could otherwise be imposed under any law in effect when the offense
was committed.
(w) For the purpose of this section, a county may designate an
appropriate employee of the county probation department, the
department revenue, or any other analogous county department to act
as the county financial officer pursuant to this section.
(x) This section shall remain in effect only until January 1,
2008, and as of that date is repealed unless a later enacted statute,
which is enacted before January 1, 2008, deletes or extends that
date.
(y) This act shall be known as the Economic Crime Act of 1992.
1203.045. (a) Except in unusual cases where the interests of
justice would best be served if the person is granted probation,
probation shall not be granted to any person convicted of a crime of
theft of an amount exceeding one hundred thousand dollars ($100,000).
(b) The fact that the theft was of an amount exceeding one hundred
thousand dollars ($100,000) shall be alleged in the accusatory
pleading, and either admitted by the defendant in open court, or
found to be true by the jury trying the issue of guilt or by the
court where guilt is established by plea of guilty or nolo contendere
or by trial by the court sitting without a jury.
(c) When probation is granted, the court shall specify on the
record and shall enter on the minutes the circumstances indicating
that the interests of justice would best be served by such a
disposition.
1203.046. (a) Except in unusual cases where the interests of
justice would best be served if the person is granted probation,
probation shall not be granted to any person who is convicted of
violating Section 653j by using, soliciting, inducing, encouraging,
or intimidating a minor to commit a felony in violation of that
section.
(b) When probation is granted pursuant to subdivision (a), the
court shall specify on the record and shall enter into the minutes
the circumstances indicating that the interests of justice would best
be served by that disposition.
1203.047. A person convicted of a violation of paragraph (1), (2),
(4), or (5) of subdivision (c) of Section 502, or of a felony
violation of paragraph (3), (6), (7), or (8) of subdivision (c) of
Section 502, or a violation of subdivision (b) of Section 502.7 may
be granted probation, but, except in unusual cases where the ends of
justice would be better served by a shorter period, the period of
probation shall not be less than three years and the following terms
shall be imposed. During the period of probation, that person shall
not accept employment where that person would use a computer
connected by any means to any other computer, except upon approval of
the court and notice to and opportunity to be heard by the
prosecuting attorney, probation department, prospective employer, and
the convicted person. Court approval shall not be given unless the
court finds that the proposed employment would not pose a risk to the
public.
1203.048. (a) Except in unusual cases where the interests of
justice would best be served if the person is granted probation,
probation shall not be granted to any person convicted of a violation
of Section 502 or subdivision (b) of Section 502.7 involving the
taking of or damage to property with a value exceeding one hundred
thousand dollars ($100,000).
(b) The fact that the value of the property taken or damaged was
an amount exceeding one hundred thousand dollars ($100,000) shall be
alleged in the accusatory pleading, and either admitted by the
defendant in open court, or found to be true by the jury trying the
issue of guilt or by the court where guilt is established by plea of
guilt or nolo contendere or by trial by the court sitting without a
jury.
(c) When probation is granted, the court shall specify on the
record and shall enter on the minutes the circumstances indicating
that the interests of justice would best be served by such a
disposition.
1203.05. Any report of the probation officer filed with the court,
including any report arising out of a previous arrest of the person
who is the subject of the report, may be inspected or copied only as
follows:
(a) By any person, from the date judgment is pronounced or
probation granted or, in the case of a report arising out of a
previous arrest, from the date the subsequent accusatory pleading is
filed, to and including 60 days from the date judgment is pronounced
or probation is granted, whichever is earlier.
(b) By any person, at any time, by order of the court, upon filing
a petition therefor by the person.
(c) By the general public, if the court upon its own motion orders
that a report or reports shall be open or that the contents of the
report or reports shall be disclosed.
(d) By any person authorized or required by law to inspect or
receive copies of the report.
(e) By the district attorney of the county at any time.
(f) By the subject of the report at any time.
1203.055. (a) Notwithstanding any other law, in sentencing a person
convicted of committing or of attempting to commit one or more of
the offenses listed in subdivision (b) against a person who is a
passenger, operator, driver, or other occupant of any public transit
vehicle whether the offense or attempt is committed within the
vehicle or directed at the vehicle, the court shall require that the
person serve some period of confinement. If probation is granted, it
shall be a condition of probation that the person shall be confined
in the county jail for some period of time. If the time spent in
jail prior to arraignment is less than 24 hours, it shall not be
considered to satisfy the requirement that some period of confinement
be imposed.
As used in this subdivision, "public transit vehicle" means any
motor vehicle, streetcar, trackless trolley, bus, shuttle, light rail
system, rapid transit system, subway, train, taxi cab, or jitney,
which transports members of the public for hire.
(b) Subdivision (a) applies to the following crimes:
(1) Murder.
(2) A violation of Section 241, 241.3, 241.4, 244, 245, 245.2, or
246.
(3) Robbery, in violation of Section 211.
(4) Kidnapping, in violation of Section 207.
(5) Kidnapping, in violation of Section 209.
(6) Battery, in violation of Section 243, 243.1, or 243.3.
(7) Rape, in violation of Section 261, 262, 264, or 264.1.
(8) Assault with intent to commit rape or sodomy, in violation of
Section 220.
(9) Any other offense in which the defendant inflicts great bodily
injury on any person other than an accomplice. As used in this
paragraph, "great bodily injury" means "great bodily injury" as
defined in Section 12022.7.
(10) Grand theft, in violation of subdivision (1) of Section 487.
(11) Throwing of a hard substance or shooting a missile at a
transit vehicle, in violation of Section 219.2.
(12) Unlawfully causing a fire, in violation of Section 452.
(13) Drawing, exhibiting, or using a firearm or deadly weapon, in
violation of Section 417.
(14) A violation of Section 214.
(15) A violation of Section 215.
(16) Kidnapping, in violation of Section 209.5.
(c) Probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for, any person convicted of a
felony offense falling within this section if the person has been
previously convicted and sentenced pursuant to this section.
(d) (1) The existence of any fact which would make a person
ineligible for probation under subdivisions (a) and (c) shall be
alleged in the accusatory pleading, and either admitted by the
defendant in open court, or found to be true by the jury trying the
issue of guilt or by the court where guilt is established by a plea
of guilty or nolo contendere or by a trial by the court sitting
without a jury.
A finding bringing the defendant within this section shall not be
stricken pursuant to Section 1385 or any provision of law.
(2) This subdivision does not prohibit the adjournment of criminal
proceedings pursuant to Division 3 (commencing with Section 3000) or
Division 6 (commencing with Section 6000) of the Welfare and
Institutions Code.
(e) The court shall require, as a condition of probation for any
person convicted of committing a crime which took place on a public
transit vehicle, except in any case in which the court makes a
finding and states on the record clear and compelling reasons why the
condition would be inappropriate, that the person make restitution
to the victim. If restitution is found to be inappropriate, the
court shall require as a condition of probation, except in any case
in which the court makes a finding and states on the record its
reasons that the condition would be inappropriate, that the defendant
perform specified community service. Nothing in this subdivision
shall be construed to limit the authority of a court to provide
additional conditions of probation.
(f) In any case in which a person is convicted of committing a
crime which took place on a public transit vehicle, the probation
officer shall immediately investigate and report to the court at a
specified time whether, as a result of the crime, property damage or
loss or personal injury was caused by the defendant, the amount of
the damage, loss, or injury, and the feasibility of requiring
restitution to be made by the defendant. When a probation report is
required pursuant to Section 1203 the information required by this
subdivision shall be added to that probation report.
1203.06. Notwithstanding Section 1203:
(a) Probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for, any of the following
persons:
(1) Any person who personally used a firearm during the commission
or attempted commission of any of the following crimes:
(A) Murder.
(B) Robbery, in violation of Section 211.
(C) Kidnapping, in violation of Section 207.
(D) Kidnapping in violation of Section 209.
(E) Burglary of the first degree, as defined in Section 460.
(F) Except as provided in Section 1203.065, rape in violation of
paragraph (2) of subdivision (a) of Section 261.
(G) Assault with intent to commit rape or sodomy, in violation of
Section 220.
(H) Escape, in violation of Section 4530 or 4532.
(I) Carjacking, in violation of Section 215.
(J) Any person convicted of aggravated mayhem in violation of
Section 205.
(K) Torture, in violation of Section 206.
(L) Kidnapping, in violation of Section 209.5.
(M) A felony violation of Section 136.1 or 137.
(2) Any person previously convicted of a felony specified in
subparagraphs (A) to (L), inclusive, of paragraph (1), or assault
with intent