"u.s.a"california penal code

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CONDUCT OF THE JURY AFTER THE CAUSE IS SUBMITTED TO
THEM

1137. Upon retiring for deliberation, the jury may take with them
all papers (except depositions) which have been received as evidence
in the cause, or copies of such public records or private documents
given in evidence as ought not, in the opinion of the court, to be
taken from the person having them in possession. They may also take
with them the written instructions given, and notes of the testimony
or other proceedings on the trial, taken by themselves or any of
them, but none taken by any other person. The court shall provide
for the custody and safekeeping of such items.



1138. After the jury have retired for deliberation, if there be any
disagreement between them as to the testimony, or if they desire to
be informed on any point of law arising in the case, they must
require the officer to conduct them into court. Upon being brought
into court, the information required must be given in the presence
of, or after notice to, the prosecuting attorney, and the defendant
or his counsel, or after they have been called.



1138.5. Except for good cause shown, the judge in his of her
discretion need not be present in the court while testimony
previously received in evidence is read to the jury.



1140. Except as provided by law, the jury cannot be discharged
after the cause is submitted to them until they have agreed upon
their verdict and rendered it in open court, unless by consent of
both parties, entered upon the minutes, or unless, at the expiration
of such time as the court may deem proper, it satisfactorily appears
that there is no reasonable probability that the jury can agree.



1141. In all cases where a jury is discharged or prevented from
giving a verdict by reason of an accident or other cause, except
where the defendant is discharged during the progress of the trial,
or after the cause is submitted to them, the cause may be again
tried.



1142. While the jury are absent the Court may adjourn from time to
time, as to other business, but it must nevertheless be open for
every purpose connected with the cause submitted to the jury until a
verdict is rendered or the jury discharged.

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[align=left]1147. When the jury have agreed upon their verdict, they must be
conducted into court by the officer having them in charge. Their
names must then be called, and if all do not appear, the rest must be
discharged without giving a verdict. In that case the action may be
again tried.



1148. If charged with a felony the defendant must, before the
verdict is received, appear in person, 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 the
verdict be received in his absence. If for a misdemeanor, the
verdict may be rendered in his absence.



1149. When the jury appear they must be asked by the Court, or
Clerk, whether they have agreed upon their verdict, and if the
foreman answers in the affirmative, they must, on being required,
declare the same.


1150. The jury must render a general verdict, except that in a
felony case, when they are in doubt as to the legal effect of the
facts proved, they may, except upon a trial for libel, find a special
verdict.


1151. A general verdict upon a plea of not guilty is either "guilty"
or "not guilty," which imports a conviction or acquittal of the
offense charged in the accusatory pleading. Upon a plea of a former
conviction or acquittal of the offense charged, or upon a plea of
once in jeopardy, the general verdict is either "for the people" or
"for the defendant." When the defendant is acquitted on the ground
of a variance between the accusatory pleading and the proof, the
verdict is "not guilty by reason of variance between charge and
proof."


1152. A special verdict is that by which the jury find the facts
only, leaving the judgment to the Court. It must present the
conclusions of fact as established by the evidence, and not the
evidence to prove them, and these conclusions of fact must be so
presented as that nothing remains to the Court but to draw
conclusions of law upon them.



1153. The special verdict must be reduced to writing by the jury,
or in their presence entered upon the minutes of the Court, read to
the jury and agreed to by them, before they are discharged.



1154. The special verdict need not be in any particular form, but
is sufficient if it presents intelligibly the facts found by the
jury.


1155. The court must give judgment upon the special verdict as
follows:
1. If the plea is not guilty, and the facts prove the defendant
guilty of the offense charged in the indictment or information, or of
any other offense of which he could be convicted under that
indictment or information, judgment must be given accordingly. But
if otherwise, judgment of acquittal must be given.
2. If the plea is a former conviction or acquittal or once in
jeopardy of the same offense, the court must give judgment of
acquittal or conviction, as the facts prove or fail to prove the
former conviction or acquittal or jeopardy.



1156. If the jury do not, in a special verdict, pronounce
affirmatively or negatively on the facts necessary to enable the
court to give judgment, or if they find the evidence of facts merely,
and not the conclusions of fact, from the evidence, as established
to their satisfaction, the court shall direct the jury to retire and
return another special verdict. The court may explain to the jury
the defect or insufficiency in the special verdict returned, and the
form which the special verdict to be returned must take.



1157. Whenever a defendant is convicted of a crime or attempt to
commit a crime which is distinguished into degrees, the jury, or the
court if a jury trial is waived, must find the degree of the crime or
attempted crime of which he is guilty. Upon the failure of the jury
or 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.



1158. Whenever the fact of a previous conviction of another offense
is charged in an accusatory pleading, and the defendant is found
guilty of the offense with which he is charged, the jury, or the
judge if a jury trial is waived, must unless the answer of the
defendant admits such previous conviction, find whether or not he has
suffered such previous conviction. The verdict or finding upon the
charge of previous conviction may be: "We (or I) find the charge of
previous conviction true" or "We (or I) find the charge of previous
conviction not true," according as the jury or the judge find that
the defendant has or has not suffered such conviction. If more than
one previous conviction is charged a separate finding must be made as
to each.



1158a. (a) Whenever the fact that a defendant was armed with a
weapon either at the time of his commission of the offense or at the
time of his arrest, or both, is charged in accordance with section
969c of this code, in any count of the indictment or information to
which the defendant has entered a plea of not guilty, the jury, if
they find a verdict of guilty of the offense with which the defendant
is charged, or of any offense included therein, must also find
whether or not the defendant was armed as charged in the count to
which the plea of not guilty was entered. The verdict of the jury
upon a charge of being armed may be: "We find the charge of being
armed contained in the ____ count true," or "We find the charge of
being armed contained in the ____ count not true," as they find that
the defendant was or was not armed as charged in any particular count
of the indictment or information. A separate verdict upon the
charge of being armed must be returned for each count which alleges
that the defendant was armed.
(b) Whenever the fact that a defendant used a firearm is charged
in accordance with Section 969d in any count of the indictment or
information to which the defendant has entered a plea of not guilty,
the jury if they find a verdict of guilty of the offense with which
the defendant is charged must also find whether or not the defendant
used a firearm as charged in the count to which the plea of not
guilty was entered. A verdict of the jury upon a charge of using a
firearm may be: "We find the charge of using a firearm contained in
the ____ count true," or "We find the charge of using a firearm
contained in the ____ count not true," as they find that the
defendant used or did not use a firearm as charged in any particular
count of the indictment or information. A separate verdict upon the
charge of using a firearm shall be returned for each count which
alleges that defendant used a firearm.



1159. The jury, or the judge if a jury trial is waived, may find
the defendant guilty of any offense, the commission of which is
necessarily included in that with which he is charged, or of an
attempt to commit the offense.


1160. On a charge against two or more defendants jointly, if the
jury cannot agree upon a verdict as to all, they may render a verdict
as to the defendant or defendants in regard to whom they do agree,
on which a judgment must be entered accordingly, and the case as to
the other may be tried again.
Where two or more offenses are charged in any accusatory pleading,
if the jury cannot agree upon a verdict as to all of them, they may
render a verdict as to the charge or charges upon which they do
agree, and the charges on which they do not agree may be tried again.




1161. When there is a verdict of conviction, in which it appears to
the Court that the jury have mistaken the law, the Court may explain
the reason for that opinion and direct the jury to reconsider their
verdict, and if, after the reconsideration, they return the same
verdict, it must be entered; but when there is a verdict of
acquittal, the Court cannot require the jury to reconsider it. If
the jury render a verdict which is neither general nor special, the
Court may direct them to reconsider it, and it cannot be recorded
until it is rendered in some form from which it can be clearly
understood that the intent of the jury is either to render a general
verdict or to find the facts specially and to leave the judgment to
the Court.



1162. If the jury persist in finding an informal verdict, from
which, however, it can be clearly understood that their intention is
to find in favor of the defendant upon the issue, it must be entered
in the terms in which it is found, and the Court must give judgment
of acquittal. But no judgment of conviction can be given unless the
jury expressly find against the defendant upon the issue, or judgment
is given against him on a special verdict.



1163. When a verdict is rendered, and before it is recorded, the
jury may be polled, at the request of either party, in which case
they must be severally asked whether it is their verdict, and if any
one answer in the negative, the jury must be sent out for further
deliberation.



1164. (a) When the verdict given is receivable by the court, the
clerk shall record it in full upon the minutes, and if requested by
any party shall read it to the jury, and inquire of them whether it
is their verdict. If any juror disagrees, the fact shall be entered
upon the minutes and the jury again sent out; but if no disagreement
is expressed, the verdict is complete, and the jury shall, subject to
subdivision (b), be discharged from the case.
(b) No jury shall be discharged until the court has verified on
the record that the jury has either reached a verdict or has formally
declared its inability to reach a verdict on all issues before it,
including, but not limited to, the degree of the crime or crimes
charged, and the truth of any alleged prior conviction whether in the
same proceeding or in a bifurcated proceeding.



1165. Where a general verdict is rendered or a finding by the court
is made in favor of the defendant, except on a plea of not guilty by
reason of insanity, a judgment of acquittal must be forthwith given.
If such judgment is given, or a judgment imposing a fine only,
without imprisonment for nonpayment is given, and the defendant is
not detained for any other legal cause, he must be discharged, if in
custody, as soon as the judgment is given, except that where the
acquittal is because of a variance between the pleading and the proof
which may be obviated by a new accusatory pleading, the court may
order his detention, to the end that a new accusatory pleading may be
preferred, in the same manner and with like effect as provided in
Section 1117.



1166. If a general verdict is rendered against the defendant, or a
special verdict is given, he or she must be remanded, if in custody,
or if on bail he or she shall be committed to the proper officer of
the county to await the judgment of the court upon the verdict,
unless, upon considering the protection of the public, the
seriousness of the offense charged and proven, the previous criminal
record of the defendant, the probability of the defendant failing to
appear for the judgment of the court upon the verdict, and public
safety, the court concludes the evidence supports its decision to
allow the defendant to remain out on bail. When committed, his or
her bail is exonerated, or if money is deposited instead of bail it
must be refunded to the defendant or to the person or persons found
by the court to have deposited said money on behalf of said
defendant.


1167. When a jury trial is waived, the judge or justice before whom
the trial is had shall, at the conclusion thereof, announce his
findings upon the issues of fact, which shall be in substantially the
form prescribed for the general verdict of a jury and shall be
entered upon the minutes.



1168. (a) Every person who commits a public offense, for which any
specification of three time periods of imprisonment in any state
prison is now prescribed by law or for which only a single term of
imprisonment in state prison is specified shall, unless such
convicted person be placed on probation, a new trial granted, or the
imposing of sentence suspended, be sentenced pursuant to Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2.
(b) For any person not sentenced under such provision, but who is
sentenced to be imprisoned in the state prison, including
imprisonment not exceeding one year and one day, the court imposing
the sentence shall not fix the term or duration of the period of
imprisonment.[/align]

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Initial Sentencing


1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing in this article shall affect any provision
of law that imposes the death penalty, that authorizes or restricts
the granting of probation or suspending the execution or imposition
of sentence, or expressly provides for imprisonment in the state
prison for life. In any case in which the amount of preimprisonment
credit under Section 2900.5 or any other provision of law is equal to
or exceeds any sentence imposed pursuant to this chapter, the entire
sentence shall be deemed to have been served and the defendant shall
not be actually delivered to the custody of the secretary. The court
shall advise the defendant that he or she shall serve a period of
parole and order the defendant to report to the parole office closest
to the defendant's last legal residence, unless the in-custody
credits equal the total sentence, including both confinement time and
the period of parole. The sentence shall be deemed a separate prior
prison term under Section 667.5, and a copy of the judgment and other
necessary documentation shall be forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court. At least
four days prior to the time set for imposition of judgment, either
party or the victim, or the family of the victim if the victim is
deceased, may submit a statement in aggravation or mitigation. In
determining the appropriate term, the court may consider the record
in the case, the probation officer's report, other reports including
reports received pursuant to Section 1203.03 and statements in
aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim
is deceased, and any further evidence introduced at the sentencing
hearing. The court shall select the term which, in the court's
discretion, best serves the interests of justice. The court shall set
forth on the record the reasons for imposing the term selected and
the court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any provision of
law. A term of imprisonment shall not be specified if imposition of
sentence is suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.

(d) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the secretary, the court
may, within 120 days of the date of commitment on its own motion, or
at any time upon the recommendation of the secretary or the Board of
Parole Hearings, recall the sentence and commitment previously
ordered and resentence the defendant in the same manner as if he or
she had not previously been sentenced, provided the new sentence, if
any, is no greater than the initial sentence. The resentence under
this subdivision shall apply the sentencing rules of the Judicial
Council so as to eliminate disparity of sentences and to promote
uniformity of sentencing. Credit shall be given for time served.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraph (A) and (B)
or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.

The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Any sentence imposed under this article shall be subject to
the provisions of Sections 3000 and 3057 and any other applicable
provisions of law.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) This section shall remain in effect only until January 1,
2009, and as of that date is repealed, unless a later enacted
statute, that is enacted before that date, deletes or extends that
date.



1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing in this article shall affect any provision
of law that imposes the death penalty, that authorizes or restricts
the granting of probation or suspending the execution or imposition
of sentence, or expressly provides for imprisonment in the state
prison for life. In any case in which the amount of preimprisonment
credit under Section 2900.5 or any other provision of law is equal to
or exceeds any sentence imposed pursuant to this chapter, the entire
sentence shall be deemed to have been served and the defendant shall
not be actually delivered to the custody of the secretary. The court
shall advise the defendant that he or she shall serve a period of
parole and order the defendant to report to the parole office closest
to the defendant's last legal residence, unless the in-custody
credits equal the total sentence, including both confinement time and
the period of parole. The sentence shall be deemed a separate prior
prison term under Section 667.5, and a copy of the judgment and other
necessary documentation shall be forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall order
imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime. At least four days prior to
the time set for imposition of judgment, either party or the victim,
or the family of the victim if the victim is deceased, may submit a
statement in aggravation or mitigation to dispute facts in the record
or the probation officer's report, or to present additional facts.
In determining whether there are circumstances that justify
imposition of the upper or lower term, the court may consider the
record in the case, the probation officer's report, other reports
including reports received pursuant to Section 1203.03 and statements
in aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim
is deceased, and any further evidence introduced at the sentencing
hearing. The court shall set forth on the record the facts and
reasons for imposing the upper or lower term. The court may not
impose an upper term by using the fact of any enhancement upon which
sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is
suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.

(d) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the secretary, the court
may, within 120 days of the date of commitment on its own motion, or
at any time upon the recommendation of the secretary or the Board of
Parole Hearings, recall the sentence and commitment previously
ordered and resentence the defendant in the same manner as if he or
she had not previously been sentenced, provided the new sentence, if
any, is no greater than the initial sentence. The resentence under
this subdivision shall apply the sentencing rules of the Judicial
Council so as to eliminate disparity of sentences and to promote
uniformity of sentencing. Credit shall be given for time served.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.

The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Any sentence imposed under this article shall be subject to
the provisions of Sections 3000 and 3057 and any other applicable
provisions of law.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) This section shall become operative on January 1, 2009.



1170.1. (a) Except as otherwise provided by law, and subject to
Section 654, when any person is convicted of two or more felonies,
whether in the same proceeding or court or in different proceedings
or courts, and whether by judgment rendered by the same or by a
different court, and a consecutive term of imprisonment is imposed
under Sections 669 and 1170, the aggregate term of imprisonment for
all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable
enhancements for prior convictions, prior prison terms, and Section
12022.1. The principal term shall consist of the greatest term of
imprisonment imposed by the court for any of the crimes, including
any term imposed for applicable specific enhancements. The
subordinate term for each consecutive offense shall consist of
one-third of the middle term of imprisonment prescribed for each
other felony conviction for which a consecutive term of imprisonment
is imposed, and shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.
(b) If a person is convicted of two or more violations of
kidnapping, as defined in Section 207, involving separate victims,
the subordinate term for each consecutive offense of kidnapping shall
consist of the full middle term and shall include the full term
imposed for specific enhancements applicable to those subordinate
offenses.
(c) In the case of any person convicted of one or more felonies
committed while the person is confined in a state prison or is
subject to reimprisonment for escape from custody and the law either
requires the terms to be served consecutively or the court imposes
consecutive terms, the term of imprisonment for all the convictions
that the person is required to serve consecutively shall commence
from the time the person would otherwise have been released from
prison. If the new offenses are consecutive with each other, the
principal and subordinate terms shall be calculated as provided in
subdivision (a). This subdivision shall be applicable in cases of
convictions of more than one offense in the same or different
proceedings.
(d) When the court imposes a prison sentence for a felony pursuant
to Section 1170 or subdivision (b) of Section 1168, the court shall
also impose, in addition and consecutive to the offense of which the
person has been convicted, the additional terms provided for any
applicable enhancements. If an enhancement is punishable by one of
three terms, the court shall impose the middle term unless there are
circumstances in aggravation or mitigation, and state the reasons for
its sentence choice, other than the middle term, on the record at
the time of sentencing. The court shall also impose any other
additional term that the court determines in its discretion or as
required by law shall run consecutive to the term imposed under
Section 1170 or subdivision (b) of Section 1168. In considering the
imposition of the additional term, the court shall apply the
sentencing rules of the Judicial Council.
(e) All enhancements 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.
(f) When two or more enhancements may be imposed for being armed
with or using a dangerous or deadly weapon or a firearm in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for the infliction of great
bodily injury.
(g) When two or more enhancements may be imposed for the
infliction of great bodily injury on the same victim in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for being armed with or
using a dangerous or deadly weapon or a firearm.
(h) For any violation of an offense specified in Section 667.6,
the number of enhancements that may be imposed shall not be limited,
regardless of whether the enhancements are pursuant to this section,
Section 667.6, or some other provision of law. Each of the
enhancements shall be a full and separately served term.



1170.11. As used in Section 1170.1, the term "specific enhancement"
means an enhancement that relates to the circumstances of the crime.
It includes, but is not limited to, the enhancements provided in
Sections 186.10, 186.11, 186.22, 186.26, 186.33, 273.4, 289.5, 290.4,
290.45, 290.46, 347, and 368, subdivisions (a) and (b) of Section
422.75, paragraphs (2), (3), (4), and (5) of subdivision (a) of
Section 451.1, paragraphs (2), (3), and (4) of subdivision (a) of
Section 452.1, subdivision (g) of Section 550, Sections 593a, 600,
667.8, 667.85, 667.9, 667.10, 667.15, 667.16, 667.17, 674, 675,
12021.5, 12022, 12022.2, 12022.3, 12022.4, 12022.5, 12022.53,
12022.55, 12022.6, 12022.7, 12022.75, 12022.8, 12022.85, 12022.9,
12022.95, 12072, and 12280 of this code, and in Sections 1522.01 and
11353.1, subdivision (b) of Section 11353.4, Sections 11353.6,
11356.5, 11370.4, 11379.7, 11379.8, 11379.9, 11380.1, 11380.7,
25189.5, and 25189.7 of the Health and Safety Code, and in Sections
20001 and 23558 of the Vehicle Code, and in Sections 10980 and 14107
of the Welfare and Institutions Code.



1170.12. (a) Notwithstanding any other provision of law, if a
defendant has been convicted of a felony and it has been pled and
proved that the defendant has one or more prior felony convictions,
as defined in subdivision (b), the court shall adhere to each of the
following:
(1) There shall not be an aggregate term limitation for purposes
of consecutive sentencing for any subsequent felony conviction.
(2) Probation for the current offense shall not be granted, nor
shall execution or imposition of the sentence be suspended for any
prior offense.
(3) The length of time between the prior felony conviction and the
current felony conviction shall not affect the imposition of
sentence.
(4) There shall not be a commitment to any other facility other
than the state prison. Diversion shall not be granted nor shall the
defendant be eligible for commitment to the California Rehabilitation
Center as provided in Article 2 (commencing with Section 3050) of
Chapter 1 of Division 3 of the Welfare and Institutions Code.
(5) The total amount of credits awarded pursuant to Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall not exceed one-fifth of the total term of imprisonment imposed
and shall not accrue until the defendant is physically placed in the
state prison.
(6) If there is a current conviction for more than one felony
count not committed on the same occasion, and not arising from the
same set of operative facts, the court shall sentence the defendant
consecutively on each count pursuant to this section.
(7) If there is a current conviction for more than one serious or
violent felony as described in paragraph (6) of this subdivision, the
court shall impose the sentence for each conviction consecutive to
the sentence for any other conviction for which the defendant may be
consecutively sentenced in the manner prescribed by law.
(8) Any sentence imposed pursuant to this section will be imposed
consecutive to any other sentence which the defendant is already
serving, unless otherwise provided by law.
(b) Notwithstanding any other provision of law and for the
purposes of this section, a prior conviction of a felony shall be
defined as:
(1) Any offense defined in subdivision (c) of Section 667.5 as a
violent felony or any offense defined in subdivision (c) of Section
1192.7 as a serious felony in this state. The determination of
whether a prior conviction is a prior felony conviction for purposes
of this section shall be made upon the date of that prior conviction
and is not affected by the sentence imposed unless the sentence
automatically, upon the initial sentencing, converts the felony to a
misdemeanor. None of the following dispositions shall affect the
determination that a prior conviction is a prior felony for purposes
of this section:
(A) The suspension of imposition of judgment or sentence.
(B) The stay of execution of sentence.
(C) The commitment to the State Department of Health Services as a
mentally disordered *** offender following a conviction of a felony.

(D) The commitment to the California Rehabilitation Center or any
other facility whose function is rehabilitative diversion from the
state prison.
(2) A conviction in another jurisdiction for an offense that, if
committed in California, is punishable by imprisonment in the state
prison. A prior conviction of a particular felony shall include a
conviction in another jurisdiction for an offense that includes all
of the elements of the particular felony as defined in subdivision
(c) of Section 667.5 or subdivision (c) of Section 1192.7.
(3) A prior juvenile adjudication shall constitute a prior felony
conviction for purposes of sentence enhancement if:
(A) The juvenile was sixteen years of age or older at the time he
or she committed the prior offense, and
(B) The prior offense is
(i) listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code, or
(ii) listed in this subdivision as a felony, and
(C) The juvenile was found to be a fit and proper subject to be
dealt with under the juvenile court law, and
(D) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 of the Welfare and Institutions Code
because the person committed an offense listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code.
(c) For purposes of this section, and in addition to any other
enhancements or punishment provisions which may apply, the following
shall apply where a defendant has a prior felony conviction:
(1) If a defendant has one prior felony conviction that has been
pled and proved, the determinate term or minimum term for an
indeterminate term shall be twice the term otherwise provided as
punishment for the current felony conviction.
(2) (A) If a defendant has two or more prior felony convictions,
as defined in paragraph (1) of subdivision (b), that have been pled
and proved, the term for the current felony conviction shall be an
indeterminate term of life imprisonment with a minimum term of the
indeterminate sentence calculated as the greater of
(i) three times the term otherwise provided as punishment for each
current felony conviction subsequent to the two or more prior felony
convictions, or
(ii) twenty-five years or
(iii) the term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement applicable
under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part
2, or any period prescribed by Section 190 or 3046.
(B) The indeterminate term described in subparagraph (A) of
paragraph (2) of this subdivision shall be served consecutive to any
other term of imprisonment for which a consecutive term may be
imposed by law. Any other term imposed subsequent to any
indeterminate term described in subparagraph (A) of paragraph (2) of
this subdivision shall not be merged therein but shall commence at
the time the person would otherwise have been released from prison.
(d) (1) Notwithstanding any other provision of law, this section
shall be applied in every case in which a defendant has a prior
felony conviction as defined in this section. The prosecuting
attorney shall plead and prove each prior felony conviction except as
provided in paragraph (2).
(2) The prosecuting attorney may move to dismiss or strike a prior
felony conviction allegation in the furtherance of justice pursuant
to Section 1385, or if there is insufficient evidence to prove the
prior conviction. If upon the satisfaction of the court that there
is insufficient evidence to prove the prior felony conviction, the
court may dismiss or strike the allegation.
(e) Prior felony convictions shall not be used in plea bargaining,
as defined in subdivision (b) of Section 1192.7. The prosecution
shall plead and prove all known prior felony convictions and shall
not enter into any agreement to strike or seek the dismissal of any
prior felony conviction allegation except as provided in paragraph
(2) of subdivision (d).



1170.125. Notwithstanding Section 2 of Proposition 184, as adopted
at the November 8, 1994, general election, for all offenses committed
on or after the effective date of this act, all references to
existing statutes in Section 1170.12 are to those statutes as they
existed on the effective date of this act, including amendments made
to those statutes by the act enacted during the 2005-06 Regular
Session that amended this section.



1170.13. Notwithstanding subdivision (a) of Section 1170.1 which
provides for the imposition of a subordinate term for a consecutive
offense of one-third of the middle term of imprisonment, if a person
is convicted pursuant to subdivision (b) of Section 139, the
subordinate term for each consecutive offense shall consist of the
full middle term.



1170.15. Notwithstanding subdivision (a) of Section 1170.1 which
provides for the imposition of a subordinate term for a consecutive
offense of one-third of the middle term of imprisonment, if a person
is convicted of a felony, and of an additional felony that is a
violation of Section 136.1 or 137 and that was committed against the
victim of, or a witness or potential witness with respect to, or a
person who was about to give material information pertaining to, the
first felony, or of a felony violation of Section 653f that was
committed to dissuade a witness or potential witness to the first
felony, the subordinate term for each consecutive offense that is a
felony described in this section shall consist of the full middle
term of imprisonment for the felony for which a consecutive term of
imprisonment is imposed, and shall include the full term prescribed
for any enhancements imposed for being armed with or using a
dangerous or deadly weapon or a firearm, or for inflicting great
bodily injury.


1170.16. In lieu of the term provided in Section 1170.1, a full,
separate, and consecutive term may be imposed for each violation of
subdivision (a) of Section 192, whether or not the offenses were
committed during a single transaction.


1170.17. (a) When a person is prosecuted for a criminal offense
committed while he or she was under the age of 18 years and the
prosecution is lawfully initiated in a court of criminal jurisdiction
without a prior finding that the person is not a fit and proper
subject to be dealt with under the juvenile court law, upon
subsequent conviction for any criminal offense, the person shall be
subject to the same sentence as an adult convicted of the identical
offense, in accordance with the provisions set forth in subdivision
(a) of Section 1170.19, except under the circumstances described in
subdivision (b) or (c).
(b) Where the conviction is for the type of offense which, in
combination with the person's age at the time the offense was
committed, makes the person eligible for transfer to a court of
criminal jurisdiction, pursuant to a rebuttable presumption that the
person is not a fit and proper subject to be dealt with under the
juvenile court law, and the prosecution for the offense could not
lawfully be initiated in a court of criminal jurisdiction, then
either of the following shall apply:
(1) The person shall be subject to the same sentence as an adult
convicted of the identical offense in accordance with the provisions
set forth in subdivision (a) of Section 1170.19, unless the person
prevails upon a motion brought pursuant to paragraph (2).
(2) Upon a motion brought by the person, the court shall order the
probation department to prepare a written social study and
recommendation concerning the person's fitness to be dealt with under
the juvenile court law and the court shall either conduct a fitness
hearing or suspend proceedings and remand the matter to the juvenile
court to prepare a social study and make a determination of fitness.
The person shall receive a disposition under the juvenile court law
only if the person demonstrates, by a preponderance of the evidence,
that he or she is a fit and proper subject to be dealt with under the
juvenile court law, based upon each of the following five criteria:

(A) The degree of criminal sophistication exhibited by the person.

(B) Whether the person can be rehabilitated prior to the
expiration of the juvenile court's jurisdiction.
(C) The person's previous delinquent history.
(D) Success of previous attempts by the juvenile court to
rehabilitate the person.
(E) The circumstances and gravity of the offense for which the
person has been convicted.
If the court conducting the fitness hearing finds that the person
is not a fit and proper subject for juvenile court jurisdiction, then
the person shall be sentenced by the court where he or she was
convicted, in accordance with the provisions of paragraph (1). If
the court conducting the hearing on fitness finds that the person is
a fit and proper subject for juvenile court jurisdiction, then the
person shall be subject to a disposition in accordance with the
provisions of subdivision (b) of Section 1170.19.
(c) Where the conviction is for the type of offense which, in
combination with the person's age at the time the offense was
committed, makes the person eligible for transfer to a court of
criminal jurisdiction, pursuant to a rebuttable presumption that the
person is a fit and proper subject to be dealt with under the
juvenile court law, then the person shall be sentenced as follows:
(1) The person shall be subject to a disposition under the
juvenile court law, in accordance with the provisions of subdivision
(b) of Section 1170.19, unless the district attorney prevails upon a
motion, as described in paragraph (2).
(2) Upon a motion brought by the district attorney, the court
shall order the probation department to prepare a written social
study and recommendation concerning whether the person is a fit and
proper subject to be dealt with under the juvenile court law. The
court shall either conduct a fitness hearing or suspend proceedings
and remand the matter to the juvenile court for a determination of
fitness. The person shall be subject to a juvenile disposition under
the juvenile court law unless the district attorney demonstrates, by
a preponderance of the evidence, that the person is not a fit and
proper subject to be dealt with under the juvenile court law, based
upon the five criteria set forth in paragraph (2) of subdivision (b).
If the person is found to be not a fit and proper subject to be
dealt with under the juvenile court law, then the person shall be
sentenced in the court where he or she was convicted, in accordance
with the provisions set forth in subdivision (a) of Section 1170.19.
If the person is found to be a fit and proper subject to be dealt
with under the juvenile court law, the person shall be subject to a
disposition, in accordance with the provisions of subdivision (b) of
Section 1170.19.
(d) Where the conviction is for the type of offense which, in
combination with the person's age, does not make the person eligible
for transfer to a court of criminal jurisdiction, the person shall be
subject to a disposition in accordance with the provisions of
subdivision (b) of Section 1170.19.



1170.19. (a) Notwithstanding any other provision of law, the
following shall apply to a person sentenced pursuant to Section
1170.17.
(1) The person may be committed to the Youth Authority only to the
extent the person meets the eligibility criteria set forth in
Section 1732.6 of the Welfare and Institutions Code.
(2) The person shall not be housed in any facility under the
jurisdiction of the Department of Corrections, if the person is under
the age of 16 years.
(3) The person shall have his or her criminal court records
accorded the same degree of public access as the records pertaining
to the conviction of an adult for the identical offense.
(4) Subject to the knowing and intelligent consent of both the
prosecution and the person being sentenced pursuant to this section,
the court may order a juvenile disposition under the juvenile court
law, in lieu of a sentence under this code, upon a finding that such
an order would serve the best interests of justice, protection of the
community, and the person being sentenced. Prior to ordering a
juvenile disposition, the court shall cause to be received into
evidence a social study by the probation officer, prepared pursuant
to Section 706 of the Welfare and Institutions Code, and shall state
that the social study made by the probation officer has been read and
considered by the court.
(b) Notwithstanding any other provision of law, the following
shall apply to a person who is eligible to receive a juvenile
disposition pursuant to Section 1170.17.
(1) The person shall be entitled a hearing on the proper
disposition of the case, conducted in accordance with the provisions
of Section 706 of the Welfare and Institutions Code. The court in
which the conviction occurred shall order the probation department to
prepare a written social study and recommendation concerning the
proper disposition of the case, prior to conducting the hearing or
remand the matter to the juvenile court for purposes of preparing the
social study, conducting the disposition hearing pursuant to Section
706 of the Welfare and Institutions Code, and making a disposition
order under the juvenile court law.
(2) The person shall have his or her conviction deemed to be a
finding of delinquency wardship under Section 602 of the Welfare and
Institutions Code.
(3) The person shall have his or her criminal court records
accorded the same degree of confidentiality as if the matter had been
initially prosecuted as a delinquency petition in the juvenile
court.
(4) Subject to the knowing and intelligent consent of both the
prosecution and the person being sentenced pursuant to this section,
the court may impose an adult sentence under this code, in lieu of
ordering a juvenile disposition under the juvenile court law, upon a
finding that such an order would serve the best interests of justice,
protection of the community, and the person being sentenced. Prior
to ordering an adult sentence, the court shall cause to be received
into evidence a social study by the probation officer, prepared
pursuant to Section 706 of the Welfare and Institutions Code, and
shall state that the social study prepared by the probation officer
has been read and considered by the court.



1170.2. (a) In the case of any inmate who committed a felony prior
to July 1, 1977, who would have been sentenced under Section 1170 if
he or she had committed it after July 1, 1977, the Board of Prison
Terms shall determine what the length of time of imprisonment would
have been under Section 1170 without consideration of good-time
credit and utilizing the middle term of the offense bearing the
longest term of imprisonment of which the prisoner was convicted
increased by any enhancements justified by matters found to be true
and which were imposed by the court at the time of sentencing for
such felony. These matters include: being armed with a deadly or
dangerous weapon as specified in Section 211a, 460, 3024, or 12022
prior to July 1, 1977, which may result in a one-year enhancement
pursuant to the provisions of Section 12022; using a firearm as
specified in Section 12022.5 prior to July 1, 1977, which may result
in a two-year enhancement pursuant to the provisions of Section
12022.5; infliction of great bodily injury as specified in Section
213, 264, or 461 prior to July 1, 1977, which may result in a
three-year enhancement pursuant to the provisions of Section 12022.7;
any prior felony conviction as specified in any statute prior to
July 1, 1977, which prior felony conviction is the equivalent of a
prior prison term as defined in Section 667.5, which may result in
the appropriate enhancement pursuant to the provisions of Section
667.5; and any consecutive sentence.
(b) If the calculation required under subdivision (a) is less than
the time to be served prior to a release date set prior to July 1,
1977, or if a release date had not been set, the Board of Prison
Terms shall establish the prisoner's parole date, subject to
subdivision (d), on the date calculated under subdivision (a) unless
at least two of the commissioners of the Board of Prison Terms after
reviewing the prisoner's file, determine that due to the number of
crimes of which the prisoner was convicted, or due to the number of
prior convictions suffered by the prisoner, or due to the fact that
the prisoner was armed with a deadly weapon when the crime was
committed, or used a deadly weapon during the commission of the
crime, or inflicted or attempted to inflict great bodily injury on
the victim of the crime, the prisoner should serve a term longer than
that calculated in subdivision (a), in which event the prisoner
shall be entitled to a hearing before a panel consisting of at least
two commissioners of the Board of Prison Terms as provided for in
Section 3041.5. The Board of Prison Terms shall notify each prisoner
who is scheduled for such a hearing within 90 days of July 1, 1977,
or within 90 days of the date the prisoner is received by or returned
to the custody of the Department of Corrections, whichever is later.
The hearing shall be held before October 1, 1978, or within 120 days
of receipt of the prisoner, whichever is later. It is the intent of
the Legislature that the hearings provided for in this subdivision
shall be accomplished in the most expeditious manner possible. At
the hearing the prisoner shall be entitled to be represented by legal
counsel, a release date shall be set, and the prisoner shall be
informed in writing of the extraordinary factors specifically
considered determinative and on what basis the release date has been
calculated. In fixing a term under this section the board shall be
guided by, but not limited to, the term which reasonably could be
imposed on a person who committed a similar offense under similar
circumstances on or after July 1, 1977, and further, the board shall
be guided by the following finding and declaration hereby made by the
Legislature: that the necessity to protect the public from
repetition of extraordinary crimes of violence against the person is
the paramount consideration.
(c) Nothing in this section shall be deemed to keep an inmate in
the custody of the Department of Corrections for a period of time
longer than he would have been kept in its custody under the
provisions of law applicable to him prior to July 1, 1977. Nothing
in this section shall be deemed to require the release of an inmate
sentenced to consecutive sentences under the provisions of law
applicable to him prior to July 1, 1977, earlier than if he had been
sentenced to concurrent sentences.
(d) In the case of any prisoner who committed a felony prior to
July 1, 1977, who would have been sentenced under Section 1170 if the
felony was committed on or after July 1, 1977, the good behavior and
participation provisions of Article 2.5 (commencing with Section
2930) of Chapter 7 of Title 1 of Part 3 shall apply from July 1,
1977, and thereafter.
(e) In the case of any inmate who committed a felony prior to July
1, 1977, who would have been sentenced under Section 1168 if the
felony was committed on or after July 1, 1977, the Board of Prison
Terms shall provide for release from prison as provided for by this
code.
(f) In the case of any inmate who committed a felony prior to July
1, 1977, the length, conditions, revocation, and other incidents of
parole shall be the same as if the prisoner had been sentenced for an
offense committed on or after July 1, 1977.
(g) Nothing in this chapter shall affect the eligibility for
parole under Article 3 (commencing with Section 3040) of Chapter 8 of
Title 1 of Part 3 of an inmate sentenced pursuant to Section 1168 as
operative prior to July 1, 1977, for a period of parole as specified
in subdivision (b) of Section 3000.
(h) In fixing a term under this section, the Board of Prison Terms
shall utilize the terms of imprisonment as provided in Chapter 1139
of the Statutes of 1976 and Chapter 165 of the Statutes of 1977.




1170.3. The Judicial Council shall seek to promote uniformity in
sentencing under Section 1170, by:
(a) The adoption of rules providing criteria for the consideration
of the trial judge at the time of sentencing regarding the court's
decision to:
(1) Grant or deny probation.
(2) Impose the lower, middle, or upper prison term.
(3) Impose concurrent or consecutive sentences.
(4) Determine whether or not to impose an enhancement where that
determination is permitted by law.
(b) The adoption of rules standardizing the minimum content and
the sequential presentation of material in probation officer reports
submitted to the court.
(c) This section shall remain in effect only until January 1,
2009, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2009, deletes or extends
that date.


1170.3. The Judicial Council shall seek to promote uniformity in
sentencing under Section 1170, by:
(a) The adoption of rules providing criteria for the consideration
of the trial judge at the time of sentencing regarding the court's
decision to:
(1) Grant or deny probation.
(2) Impose the lower or upper prison term.
(3) Impose concurrent or consecutive sentences.
(4) Determine whether or not to impose an enhancement where that
determination is permitted by law.
(b) The adoption of rules standardizing the minimum content and
the sequential presentation of material in probation officer reports
submitted to the court.
(c) This section shall become operative on January 1, 2009.




1170.4. The Judicial Council shall collect and analyze relevant
information relating to sentencing practices in this state and other
jurisdictions. Such information shall be taken into consideration by
the Judicial Council in the adoption of rules pursuant to Section
1170.3.



1170.45. The Judicial Council shall collect data on criminal cases
statewide relating to the disposition of those cases according to the
race and ethnicity of the defendant, and report annually thereon to
the Legislature beginning no later than January 1, 1999. It is the
intent of the Legislature to appropriate funds to the Judicial
Council for this purpose.



1170.5. The Judicial Council shall conduct annual sentencing
institutes for trial court judges pursuant to Section 68551 of the
Government Code, toward the end of assisting the judge in the
imposition of appropriate sentences.


1170.7. Robbery or attempted robbery for the purpose of obtaining
any controlled substance, as defined in Division 10 (commencing with
Section 11000) of the Health and Safety Code, when committed against
a pharmacist, pharmacy employee, or other person lawfully possessing
controlled substances, shall be considered a circumstance in
aggravation of the crime in imposing a term under subdivision (b) of
Section 1170.



1170.71. The fact that a person who commits a violation of Section
288 has used obscene or harmful matter to induce, persuade, or
encourage the minor to engage in a lewd or lascivious act shall be
considered a circumstance in aggravation of the crime in imposing a
term under subdivision (b) of Section 1170.



1170.72. Upon conviction of a violation of Section 11353, 11353.5,
11353.7, 11354, 11361, or 11380 of the Health and Safety Code, or a
finding of truth of an enhancing allegation pursuant to paragraph (3)
of subdivision (a) of Section 11353.1, Section 11353.6, or paragraph
(3) of subdivision (a) of Section 11380.1, the fact that the minor
was 11 years of age or younger shall be considered a circumstance in
aggravation when imposing a term under subdivision (b) of Section
1170.



1170.73. Upon conviction of a felony violation of Section 11377,
11378, or 11378.5 of the Health and Safety Code, the court shall
consider the quantity of controlled substance involved in determining
whether to impose an aggravated term under subdivision (b) of
Section 1170.



1170.74. Upon conviction of a felony violation of Section 11377,
11378, 11379, or 11379.6 of the Health and Safety Code, for an
offense involving methamphetamine, the fact that the controlled
substance is the crystalline form of methamphetamine shall be
considered a circumstance in aggravation of the crime in imposing a
term under subdivision (b) of Section 1170.



1170.76. The fact that a defendant who commits or attempts to
commit a violation of Section 243.4, 245, or 273.5 is or has been a
member of the household of a minor or of the victim of the offense,
or the defendant is a marital or blood relative of the minor or the
victim, or the defendant or the victim is the natural parent,
adoptive parent, stepparent, or foster parent of the minor, and the
offense contemporaneously occurred in the presence of, or was
witnessed by, the minor shall be considered a circumstance in
aggravation of the crime in imposing a term under subdivision (b) of
Section 1170.



1170.78. Upon a conviction of a violation of Section 451, the fact
that the person committed the offense in retaliation against the
owner or occupant of the property or structure burned, or against one
believed by the person to be the owner or occupant of the property
or structure burned, for any eviction or other legal action taken by
the owner or occupant, or believed owner or occupant, shall be a
circumstance in aggravation of the crime in imposing a term under
subdivision (b) of Section 1170.



1170.8. (a) The fact that a robbery or an assault with a deadly
weapon or instrument or by means of any force likely to produce great
bodily injury was committed against a person while that person was
in a church, synagogue, or building owned and occupied by a religious
educational institution, or any other place primarily used as a
place of worship where religious services are regularly conducted,
shall be considered a circumstance in aggravation of the crime in
imposing a term under subdivision (b) of Section 1170.
(b) Upon conviction of any person for a violation of Section 451
or 453, the fact that the person intentionally burned, or intended to
burn, a church, synagogue, or building owned and occupied by a
religious educational institution, or any other place primarily used
as a place of worship where religious services are regularly
conducted, shall be considered a circumstance in aggravation of the
crime in imposing a term under subdivision (b) of Section 1170.



1170.81. The fact that the intended victim of an attempted life
term crime was a peace officer, as described in subdivisions (a) and
(b) of Section 830.1, or Section 830.2, 830.5 or 830.6, while the
peace officer was engaged in the performance of his or her duties,
and the defendant knew or reasonably should have known that the
victim was a peace officer engaged in the performance of his or her
duties, shall be considered a circumstance in aggravation of the
crime in imposing a term under subdivision (b) of Section 1170.



1170.82. Upon a conviction of a violation of Section 11352, 11360,
11379, or 11379.5 of the Health and Safety Code, the fact that the
person who committed the offense knew, or reasonably should have
known, that any of the following circumstances existed with regard to
the person to whom he or she unlawfully sold, furnished,
administered, or gave away a controlled substance, shall be a
circumstance in aggravation of the crime in imposing a term pursuant
to subdivision (b) of Section 1170:
(a) The person was pregnant at the time of the selling,
furnishing, administering, or giving away of the controlled
substance.
(b) The person had been previously convicted of a violent felony,
as defined in subdivision (c) of Section 667.5.
(c) The person was in psychological treatment for a mental
disorder or for substance abuse at the time of the selling,
furnishing, administering, or giving away of the controlled
substance.


1170.84. Upon conviction of any serious felony, listed in
subdivision (c) of Section 1192.7, it shall be considered a
circumstance in aggravation of the crime in imposing a term under
subdivision (b) of Section 1170 if, during the course of the serious
felony, the person engaged in the tying, binding, or confining of any
victim.



1170.85. (a) Upon conviction of any felony assault or battery
offense, it shall be considered a circumstance in aggravation of the
crime in imposing a term under subdivision (b) of Section 1170 if the
offense was committed to prevent or dissuade a person who is or may
become a witness from attending upon or testifying at any trial,
proceeding, or inquiry authorized by law, or if the offense was
committed because the person provided assistance or information to a
law enforcement officer, or to a public prosecutor in a criminal or
juvenile court proceeding.
(b) Upon conviction of any felony it shall be considered a
circumstance in aggravation in imposing a term under subdivision (b)
of Section 1170 if the victim of an offense is particularly
vulnerable, or unable to defend himself or herself, due to age or
significant disability.



1170.86. Upon conviction of a felony violation of Section 220, 261,
261.5, 264.1, or 266j the fact that the felony was committed within
a safe school zone, as defined in subdivision (c) of Section 626,
against a victim who was a pupil currently attending school, shall be
considered a circumstance in aggravation in imposing a term under
subdivision (b) of Section 1170.



1170.89. Where there is an applicable triad for an enhancement
related to the possession of, being armed with, use of, or furnishing
or supplying a firearm, set forth in Section 12021.5, 12022,
12022.2, 12022.3, 12022.4, 12022.5, or 12022.55 the fact that a
person knew or had reason to believe that a firearm was stolen shall
constitute a circumstance in aggravation of the enhancement
justifying imposition of the upper term on that enhancement.



1170.9. (a) In the case of any person convicted of a criminal
offense who would otherwise be sentenced to county jail or state
prison and who alleges that he or she committed the offense as a
result of post-traumatic stress disorder, substance abuse, or
psychological problems stemming from service in a combat theater in
the United States military, the court shall, prior to sentencing,
hold a hearing to determine whether the defendant was a member of the
military forces of the United States who served in combat and shall
assess whether the defendant suffers from post-traumatic stress
disorder, substance abuse, or psychological problems as a result of
that service.
(b) If the court concludes that a defendant convicted of a
criminal offense is a person described in subdivision (a), and if the
defendant is otherwise eligible for probation and the court places
the defendant on probation, the court may order the defendant into a
local, state, federal, or private nonprofit treatment program for a
period not to exceed that which the defendant would have served in
state prison or county jail, provided the defendant agrees to
participate in the program and the court determines that an
appropriate treatment program exists.
(c) If a referral is made to the county mental health authority,
the county shall be obligated to provide mental health treatment
services only to the extent that resources are available for that
purpose, as described in paragraph (5) of subdivision (b) of Section
5600.3 of the Welfare and Institutions Code. If mental health
treatment services are ordered by the court, the county mental health
agency shall coordinate appropriate referral of the defendant to the
county veterans service officer, as described in paragraph (5) of
subdivision (b) of Section 5600.3 of the Welfare and Institutions
Code. The county mental health agency shall not be responsible for
providing services outside its traditional scope of services. An
order shall be made referring a defendant to a county mental health
agency only if that agency has agreed to accept responsibility for
the treatment of the defendant.
(d) When determining the "needs of the defendant," for purposes of
Section 1202.7, the court shall consider the fact that the defendant
is a person described in subdivision (a) in assessing whether the
defendant should be placed on probation and whether the defendant
would be best served while on probation by being ordered into a
private nonprofit treatment service program with a demonstrated
history of specializing in the treatment of military service-related
issues, such as post-traumatic stress disorder, substance abuse, or
psychological problems.
(e) A defendant granted probation under this section and committed
to a residential treatment program shall earn sentence credits for
the actual time the defendant served in residential treatment.
(f) The court, in making an order under this section to commit a
defendant to an established treatment program, shall give preference
to a treatment program that has a history of successfully treating
combat veterans who suffer from post-traumatic stress disorder,
substance abuse, or psychological problems as a result of that
service.
[/align]

[هيثم الفقى]

[align=left]
PREGNANT AND PARENTING WOMEN'S ALTERNATIVE
SENTENCING PROGRAM ACT



1174. This chapter shall be known as the Pregnant and Parenting
Women's Alternative Sentencing Program Act.



1174.1. For purposes of this chapter, the following definitions
shall apply:
(a) "Agency" means the private agency selected by the department
to operate this program.
(b) "Construction" means the purchase, new construction,
reconstruction, remodeling, renovation, or replacement of facilities,
or a combination thereof.
(c) "County" means each individual county as represented by the
county board of supervisors.
(d) "Court" means the superior court sentencing the offender to
the custody of the department.
(e) "Department" means the Department of Corrections.
(f) "Facility" means the nonsecure physical buildings, rooms,
areas, and equipment.
(g) "Program" means an intensive substance abusing pregnant and
parenting women's alternative sentencing program.



1174.2. (a) Notwithstanding any other law, the unencumbered balance
of Item 5240-311-751 of Section 2 of the Budget Act of 1990 shall
revert to the unappropriated surplus of the 1990 Prison Construction
Fund. The sum of fifteen million dollars ($15,000,000) is hereby
appropriated to the Department of Corrections from the 1990 Prison
Construction Fund for site acquisition, site studies, environmental
studies, master planning, architectural programming, schematics,
preliminary plans, working drawings, construction, and long lead and
equipment items for the purpose of constructing facilities for
pregnant and parenting women's alternative sentencing programs.
These funds shall not be expended for any operating costs, including
those costs reimbursed by the department pursuant to subdivision (c)
of Section 1174.3. Funds not expended pursuant to this chapter shall
be used for planning, construction, renovation, or remodeling by, or
under the supervision of, the Department of Corrections, of
community-based facilities for programs designed to reduce drug use
and recidivism, including, but not limited to, restitution centers,
facilities for the incarceration and rehabilitation of drug
offenders, multipurpose correctional centers, and centers for
intensive programs for parolees. These funds shall not be expended
until legislation authorizing the establishment of these programs is
enacted. If the Legislature finds that the Department of Corrections
has made a good faith effort to site community-based facilities, but
funds designated for these community-based facilities are unexpended
as of January 1, 1998, the Legislature may appropriate these funds
for other Level I housing.
(b) The Department of Corrections shall purchase, design,
construct, and renovate facilities in counties or multicounty areas
with a population of more than 450,000 people pursuant to this
chapter. The department shall target for selection, among other
counties, Los Angeles County, San Diego County, and a bay area,
central valley, and an inland empire county as determined by the
Director of Corrections. The department, in consultation with the
State Department of Alcohol and Drug Programs, shall design core
alcohol and drug treatment programs, with specific requirements and
standards. Residential facilities shall be licensed by the State
Department of Alcohol and Drug Programs in accordance with provisions
of the Health and Safety Code governing licensure of alcoholism or
drug abuse recovery or treatment facilities. Residential and
nonresidential programs shall be certified by the State Department of
Alcohol and Drug Programs as meeting its standards for perinatal
services. Funds shall be awarded to selected agency service
providers based upon all of the following criteria and procedures:
(1) A demonstrated ability to provide comprehensive services to
pregnant women or women with children who are substance abusers
consistent with this chapter. Criteria shall include, but not be
limited to, each of the following:
(A) The success records of the types of programs proposed based
upon standards for successful programs.
(B) Expertise and actual experience of persons who will be in
charge of the proposed program.
(C) Cost-effectiveness, including the costs per client served.
(D) A demonstrated ability to implement a program as expeditiously
as possible.
(E) An ability to accept referrals and participate in a process
with the probation department determining eligible candidates for the
program.
(F) A demonstrated ability to seek and obtain supplemental funding
as required in support of the overall administration of this
facility from any county, state, or federal source that may serve to
support this program, including the State Department of Alcohol and
Drug Programs, the agency or agencies designated by the Director of
Finance pursuant to Section 13820, the State Department of Social
Services, the State Department of Mental Health, or any county public
health department. In addition, the agency shall also attempt to
secure other available funding from all county, state, or federal
sources for program implementation.
(G) An ability to provide intensive supervision of the program
participants to ensure complete daily programming.
(2) Staff from the department shall be available to selected
agencies for consultation and technical services in preparation and
implementation of the selected proposals.
(3) The department shall consult with existing program operators
that are then currently delivering similar program services, the
State Department of Alcohol and Drug Programs, and others it may
identify in the development of the program.
(4) Funds shall be made available by the department to the
agencies selected to administer the operation of this program.
(5) Agencies shall demonstrate an ability to provide offenders a
continuing supportive network of outpatient drug treatment and other
services upon the women's completion of the program and reintegration
into the community.
(6) The department may propose any variation of types and sizes of
facilities to carry out the purposes of this chapter.
(7) The department shall secure all other available funding for
its eligible population from all county, state, or federal sources.
(8) Each program proposal shall include a plan for the required
12-month residential program, plus a 12-month outpatient transitional
services program to be completed by participating women and
children.


1174.3. (a) The department shall ensure that the facility designs
provide adequate space to carry out this chapter, including the
capability for nonsecure housing, programming, child care, food
services, treatment services, educational or vocational services,
intensive day treatment, and transitional living skills services.
(b) The agency selected to operate the program shall administer
and operate the center and program consistent with the criteria set
forth in this chapter and any criteria established by the department.
These responsibilities shall include maintenance and compliance
with all laws, regulations, and health standards. The department
shall contract to reimburse the agency selected to operate this
program for women who would otherwise be sentenced to state prison
based upon actual costs not provided by other funding sources.
(c) Notwithstanding any other law, Division 13 (commencing with
Section 21000) of the Public Resources Code shall not apply to any
facility used for multiperson residential use in the last five years,
including, but not limited to, motels, hotels, long-term care
facilities, apartment buildings, and rooming houses, or to any
project for which facilities intended to house no more than 75 women
and children are constructed or leased pursuant to this chapter.
(d) Proposals submitted pursuant to this chapter are exempt from
approval and submittal of plans and specifications to the Joint
Legislative Committee on Prison Construction Operations and other
legislative fiscal committees.



1174.4. (a) Persons eligible for participation in this alternative
sentencing program shall meet all of the following criteria:
(1) Pregnant women with an established history of substance abuse,
or pregnant or parenting women with an established history of
substance abuse who have one or more children under six years old at
the time of entry into the program. For women with children, at
least one eligible child shall reside with the mother in the
facility.
(2) Never served a prior prison term for, nor been convicted in
the present proceeding of, committing or attempting to commit, any of
the following offenses:
(A) Murder or voluntary manslaughter.
(B) Mayhem.
(C) Rape.
(D) Kidnapping.
(E) Sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.

(F) Oral copulation by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person.
(G) Lewd acts on a child under 14 years of age, as defined in
Section 288.
(H) Any felony punishable by death or imprisonment in the state
prison for life.
(I) Any felony in which the defendant inflicts great bodily injury
on any person, other than an accomplice, that has been charged and
proved as provided for in Section 12022.53, 12022.7, or 12022.9, or
any felony in which the defendant uses a firearm, as provided in
Section 12022.5, 12022.53, or 12022.55, in which the use has been
charged and proved.
(J) Robbery.
(K) Any robbery perpetrated in an inhabited dwelling house or
trailer coach as defined in the Vehicle Code, or in the inhabited
portion of any other building, wherein it is charged and proved that
the defendant personally used a deadly or dangerous weapon, as
provided in subdivision (b) of Section 12022, in the commission of
that robbery.
(L) Arson in violation of subdivision (a) of Section 451.
(M) ***ual penetration in violation of subdivision (a) of Section
289 if 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.
(N) Rape or ***ual penetration in concert, in violation of Section
264.1.
(O) Continual ***ual abuse of a child in violation of Section
288.5.
(P) Assault with intent to commit mayhem, rape, sodomy, oral
copulation, rape in concert with another, lascivious acts upon a
child, or ***ual penetration.
(Q) Assault with a deadly weapon or with force likely to produce
great bodily injury in violation of subdivision (a) of Section 245.
(R) Any violent felony defined in Section 667.5.
(S) A violation of Section 12022.
(T) A violation of Section 12308.
(U) Burglary of the first degree.
(V) A violation of Section 11351, 11351.5, 11352, 11353, 11358,
11359, 11360, 11370.1, 11370.6, 11378, 11378.5, 11379, 11379.5,
11379.6, 11380, or 11383 of the Health and Safety Code.
(3) Has not been sentenced to state prison for a term exceeding 36
months.
(b) Prior to sentencing, if the court proposes to give
consideration to a placement, the court shall consider a written
evaluation by the probation department, which shall include the
following:
(1) Whether the defendant is eligible for participation pursuant
to this section.
(2) Whether participation by the defendant and her eligible
children is deemed to be in the best interests of the children.
(3) Whether the defendant is amenable to treatment for substance
abuse and would benefit from participation in the program.
(4) Whether the program is deemed to be in the best interests of
an eligible child of the defendant, as determined by a representative
of the appropriate child welfare services agency of the county if
the child is a dependent child of the juvenile court pursuant to
Section 300 of the Welfare and Institutions Code.
(c) The district attorney shall make a recommendation to the court
as to whether or not the defendant would benefit from the program,
which the court shall consider in making its decision. If the court'
s decision is without the concurrence of the district attorney, the
court shall specify its reasons in writing and enter them into the
record.
(d) If the court determines that the defendant may benefit from
participation in this program, the court may impose a state prison
sentence with the recommendation that the defendant participate in
the program pursuant to this chapter. The court shall notify the
department within 48 hours of imposition of this sentence.
(e) The Director of Corrections shall consider the court's
recommendation in making a determination on the inmate's placement in
the program.
(f) Women accepted for the program by the Director of Corrections
shall be delivered by the county, pursuant to Section 1202a, to the
facility selected by the department. Before the director accepts a
woman for the program, the county shall provide to the director the
necessary information to determine her eligibility and appropriate
placement status. Priority for services and aftercare shall be given
to inmates who are incarcerated in a county, or adjacent to a
county, in which a program facility is located.
(g) Prior to being admitted to the program, each participant shall
voluntarily sign an agreement specifying the terms and conditions of
participation in the program.
(h) The department may refer inmates back to the sentencing court
if the department determines that an eligible inmate has not been
recommended for the program. The department shall refer the inmate
to the court by an evaluative report so stating the department's
assessment of eligibility, and requesting a recommendation by the
court.
(i) Women who successfully complete the program, including the
minimum of one year of transition services under intensive parole
supervision, shall be discharged from parole. Women who do not
successfully complete the program shall be returned to the state
prison where they shall serve their original sentences. These
persons shall receive full credit against their original sentences
for the time served in the program, pursuant to Section 2933.



1174.5. The department shall be responsible for the funding and
monitoring of the progress, activities, and performance of each
program.


1174.7. The department shall report the status of this program to
the Legislature on or before January 1, 1996, and each year
thereafter.


1174.8. (a) The department shall adopt regulations pursuant to the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code) to
implement this chapter.
(b) Notwithstanding subdivision (a) and any other law, and except
as otherwise specifically provided in this chapter, until July 1,
1996, the Director of Corrections shall have the power to implement,
interpret, and make specific the changes made in this chapter by
issuing director's criteria. These criteria shall be exempt from the
requirements of Articles 5 (commencing with Section 11346) and 6
(commencing with Section 11349) of the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code) and shall remain in effect until
July 1, 1996, unless terminated or replaced by, or readopted as,
emergency regulations pursuant to subdivision (c).
(c) On or before July 1, 1995, the department shall file emergency
regulations to implement this chapter with the Office of
Administrative Law. These emergency regulations shall be considered
by the office as necessary for the immediate preservation of the
public peace, health and safety, or general welfare and shall remain
in effect until July 1, 1996, unless terminated or replaced by, or
readopted as, permanent regulations in compliance with Articles 5
(commencing with Section 11346) and 6 (commencing with Section 11349)
of the Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code) pursuant to subdivision (d).
(d) The department shall file a certificate of compliance with the
Office of Administrative Law to adopt permanent regulations on or
before May 15, 1996.


1174.9. A program facility administered by the Department of
Corrections pursuant to this chapter is exempt from the requirements
and provisions of Chapter 3.4 (commencing with Section 1596.70),
Chapter 3.5 (commencing with Section 1596.90), and Chapter 3.6
(commencing with Section 1597.30) of Division 2 of the Health and
Safety Code.
[/align]

[هيثم الفقى]

[align=left]
1176. When written instructions have been presented, and given,
modified, or refused, or when the charge of the court has been taken
down by the reporter, the questions presented in such instructions or
charge need not be excepted to; but the judge must make and sign an
indorsement upon such instructions, showing the action of the court
thereon.

[/align]

[هيثم الفقى]

[align=left]1179. A new trial is a reexamination of the issue in the same
Court, before another jury, after a verdict has been given.



1180. The granting of a new trial places the parties in the same
position as if no trial had been had. All the testimony must be
produced anew, and the former verdict or finding cannot be used or
referred to, either in evidence or in argument, or be pleaded in bar
of any conviction which might have been had under the accusatory
pleading.



1181. When a verdict has been rendered or a finding made against
the defendant, the court may, upon his application, grant a new
trial, in the following cases only:
1. When the trial has been had in his absence except in cases
where the trial may lawfully proceed in his absence;
2. When the jury has received any evidence out of court, other
than that resulting from a view of the premises, or of personal
property;
3. When the jury has separated without leave of the court after
retiring to deliberate upon their verdict, or been guilty of any
misconduct by which a fair and due consideration of the case has been
prevented;
4. When the verdict has been decided by lot, or by any means other
than a fair expression of opinion on the part of all the jurors;
5. When the court has misdirected the jury in a matter of law, or
has erred in the decision of any question of law arising during the
course of the trial, and when the district attorney or other counsel
prosecuting the case has been guilty of prejudicial misconduct during
the trial thereof before a jury;
6. When the verdict or finding is contrary to law or evidence, but
if the evidence shows the defendant to be not guilty of the degree
of the crime of which he was convicted, but guilty of a lesser degree
thereof, or of a lesser crime included therein, the court may modify
the verdict, finding or judgment accordingly without granting or
ordering a new trial, and this power shall extend to any court to
which the cause may be appealed;
7. When the verdict or finding is contrary to law or evidence, but
in any case wherein authority is vested by statute in the trial
court or jury to recommend or determine as a part of its verdict or
finding the punishment to be imposed, the court may modify such
verdict or finding by imposing the lesser punishment without granting
or ordering a new trial, and this power shall extend to any court to
which the case may be appealed;
8. When new evidence is discovered material to the defendant, and
which he could not, with reasonable diligence, have discovered and
produced at the trial. When a motion for a new trial is made upon
the ground of newly discovered evidence, the defendant must produce
at the hearing, in support thereof, the affidavits of the witnesses
by whom such evidence is expected to be given, and if time is
required by the defendant to procure such affidavits, the court may
postpone the hearing of the motion for such length of time as, under
all circumstances of the case, may seem reasonable.
9. When the right to a phonographic report has not been waived,
and when it is not possible to have a phonographic report of the
trial transcribed by a stenographic reporter as provided by law or by
rule because of the death or disability of a reporter who
participated as a stenographic reporter at the trial or because of
the loss or destruction, in whole or in substantial part, of the
notes of such reporter, the trial court or a judge, thereof, or the
reviewing court shall have power to set aside and vacate the
judgment, order or decree from which an appeal has been taken or is
to be taken and to order a new trial of the action or proceeding.




1182. The application for a new trial must be made and determined
before judgment, the making of an order granting probation, the
commitment of a defendant for observation as a mentally disordered
*** offender, or the commitment of a defendant for narcotics
addiction or insanity, whichever first occurs, and the order granting
or denying the application shall be immediately entered by the clerk
in the minutes.[/align]

[هيثم الفقى]

1185. A motion in arrest of judgment is an application on the part
of the defendant that no judgment be rendered on a plea, finding, or
verdict of guilty, or on a finding or verdict against the defendant,
on a plea of a former conviction, former acquittal or once in
jeopardy. It may be founded on any of the defects in the accusatory
pleading mentioned in Section 1004, unless the objection has been
waived by a failure to demur, and must be made and determined before
the judgment is pronounced. When determined, the order must be
immediately entered in the minutes.



1186. The court may, on its own motion, at any time before judgment
is pronounced, arrest the judgment for any of the defects in the
accusatory pleading upon which a motion in arrest of judgment may be
founded as provided in Section 1185, by order for that purpose
entered upon its minutes.



1187. The effect of an order arresting judgment, in a felony case,
is to place the defendant in the same situation in which the
defendant was immediately before the indictment was found or
information filed. In a misdemeanor or infraction case, the effect
is to place the defendant in the situation in which the defendant was
before the trial was had.

[align=left]

1188. If, from the evidence on the trial, there is reason to
believe the defendant guilty, and a new indictment or information can
be framed upon which he may be convicted, the court may order him to
be recommitted to the officer of the proper county, or admitted to
bail anew, to answer the new indictment or information. If the
evidence shows him guilty of another offense, he must be committed or
held thereon, and in neither case shall the verdict be a bar to
another prosecution. But if no evidence appears sufficient to charge
him with any offense, he must, if in custody, be discharged; or if
admitted to bail, his bail is exonerated; or if money has been
deposited instead of bail, it must be refunded to the defendant or to
the person or persons found by the court to have deposited said
money on behalf of said defendant; and the arrest of judgment shall
operate as an acquittal of the charge upon which the indictment or
information was founded.[/align]

[هيثم الفقى]

[align=left]
THE JUDGMENT



1191. In a felony case, 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 the
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 the 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, or statement stored on
a CD Rom, DVD, or any other recording medium acceptable to the court,
expressing his or her views concerning the crime, the person
responsible, and the need for restitution, in lieu of or in addition
to the person personally appearing at the time of judgment and
sentence. The court shall consider the statement filed with the
court prior to imposing judgment and sentence.
Whenever an audio or video statement or statement stored on a CD
Rom, DVD, or other medium is filed with the court, a written
transcript of the statement 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 a written, audio, or video statement or statement
stored on a CD Rom, DVD, or other medium 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 the statement 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
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 or
statement stored on a CD Rom, DVD, or other medium 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 victim's 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 California Victim Compensation and Government Claims Board,
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.


1191.21. (a) (1) The agency or agencies designated by the Director
of Finance pursuant to Section 13820 shall develop and make available
a "notification of eligibility" card for victims and derivative
victims of crimes as defined in subdivision (c) of Section 13960 of
the Government Code that includes, but is not limited to, the
following information:
"If you have been the victim of a crime that meets the required
definition, you or others may be eligible to receive payment from the
California State Restitution Fund for losses directly resulting from
the crime. To learn about eligibility and receive an application to
receive payments, call the Victims of Crime Program at (800)
777-9229 or call your local county Victim Witness Assistance Center."

(2) At a minimum, the agency or agencies designated by the
Director of Finance pursuant to Section 13820 shall develop a
template available for downloading on its Internet Web site the
information requested in subdivision (b).
(b) In a case involving a crime as defined in subdivision (c) of
Section 13960 of the Government Code, the law enforcement officer
with primary responsibility for investigating the crime committed
against the victim and the district attorney may provide the
"notification of eligibility" card to the victim and derivative
victim of a crime.
(c) The terms "victim" and "derivative victim" shall be given the
same meaning given those terms in Section 13960 of the Government
Code.


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) (1) It is the intent of the Legislature that district
attorneys prosecute violent *** crimes under statutes that provide
sentencing under a "one strike," "three strikes" or habitual ***
offender statute instead of engaging in plea bargaining over those
offenses.
(2) 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.
(3) If the indictment or information charges the defendant with a
violent *** crime, as listed in subdivision (c) of Section 667.61,
that could be prosecuted under Sections 269, 288.7, subdivisions (b)
through (i) of Section 667, Section 667.61, or 667.71, plea
bargaining 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. At the time of presenting the
agreement to the court, the district attorney shall state on the
record why a sentence under one of those sections was not sought.
(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 14 years of age; (7) any felony
punishable by death or imprisonment in the state prison for life; (8)
any 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 bodily injury, great bodily injury, or
mayhem; (17) exploding a destructive device or any explosive with
intent to murder; (18) any burglary of the first degree; (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; (28) any
felony offense, which would also constitute a felony violation of
Section 186.22; (29) assault with the intent to commit mayhem, rape,
sodomy, or oral copulation, in violation of Section 220; (30)
throwing acid or flammable substances, in violation of Section 244;
(31) assault with a deadly weapon, firearm, machinegun, assault
weapon, or semiautomatic firearm or assault on a peace officer or
firefighter, in violation of Section 245; (32) assault with a deadly
weapon against a public transit employee, custodial officer, or
school employee, in violation of Sections 245.2, 245.3, or 245.5;
(33) discharge of a firearm at an inhabited dwelling, vehicle, or
aircraft, in violation of Section 246; (34) commission of rape or
***ual penetration in concert with another person, in violation of
Section 264.1; (35) continuous ***ual abuse of a child, in violation
of Section 288.5; (36) shooting from a vehicle, in violation of
subdivision (c) or (d) of Section 12034; (37) intimidation of victims
or witnesses, in violation of Section 136.1; (38) criminal threats,
in violation of Section 422; (39) any attempt to commit a crime
listed in this subdivision other than an assault; (40) any violation
of Section 12022.53; (41) a violation of subdivision (b) or (c) of
Section 11418; and (42) any conspiracy to commit an offense described
in this subdivision.
(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 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 191.5, paragraph
(1) of subdivision (c) of Section 192, subdivision (a), (b), 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.
(b) It is the intent of the Legislature, in enacting subdivision
(a), 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 (a) 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 must, at any time after the order, issue a
bench warrant into one or more counties.
(b) The clerk 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)).
If the appropriate agency fails to enter the bench warrant into the
national warrant system (NCIC), and the court finds that this failure
prevented the surety or bond agent from surrendering the fugitive
into custody, prevented the fugitive from being arrested or taken
into custody, or resulted in the fugitive's subsequent release from
custody, the court having jurisdiction over the bail shall, upon
petition, set aside the forfeiture of the bond and declare all
liability on the bail bond to be exonerated.



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 ***ual offense listed in subdivision (e), whether or
not a sentence or fine is imposed or probation is granted, to submit
to a blood or oral mucosal transudate saliva test for evidence of
antibodies to the probable causative agent of acquired immune
deficiency syndrome (AIDS) within 180 days of the date of conviction.
Each person tested under this section shall be informed of the
results of the blood or oral mucosal transudate saliva test.
(b) Notwithstanding Section 120980 of the Health and Safety Code,
the results of the blood or oral mucosal transudate saliva 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 ***ual
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 ***ual 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 or oral mucosal
transudate saliva 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 the 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, "***ual offense" includes any of
the following:
(1) Rape in violation of Section 261 or 264.1.
(2) Unlawful intercourse with a person under 18 years of age in
violation of Section 261.5 or 266c.
(3) Rape of a spouse in violation of Section 262 or 264.1.
(4) Sodomy in violation of Section 266c or 286.
(5) Oral copulation in violation of Section 266c or 288a.
(6) (A) Any of the following offenses 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:
(i) ***ual penetration in violation of Section 264.1, 266c, or
289.
(ii) Aggravated ***ual assault of a child in violation of Section
269.
(iii) Lewd or lascivious conduct with a child in violation of
Section 288.
(iv) Continuous ***ual abuse of a child in violation of Section
288.5.
(v) The attempt to commit any offense described in clauses (i) to
(iv), inclusive.
(B) 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 or oral mucosal transudate saliva 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 ***ual 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.
(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. The court
may specify that funds confiscated at the time of the defendant's
arrest, except for funds confiscated pursuant to Section 11469 of the
Health and Safety Code, be applied to the restitution fine if the
funds are not exempt for spousal or child support or subject to any
other legal exemption.
(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 authorized in Section 1464 or Chapter 12 (commencing with
Section 76000) of Title 8 of the Government Code, or the state
surcharge authorized in Section 1465.7, and shall be deposited in the
Restitution Fund in the State Treasury.
(f) Except as provided in subdivision (q), 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. The court may specify that funds
confiscated at the time of the defendant's arrest, except for funds
confiscated pursuant to Section 11469 of the Health and Safety Code,
be applied to the restitution order if the funds are not exempt for
spousal or child support or subject to any other legal exemption.
(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 ordered pursuant
to this subdivision shall be ordered to be deposited to the
Restitution Fund to the extent that the victim, as defined in
subdivision (k), has received assistance from the Victim Compensation
Program pursuant to Chapter 5 (commencing with Section 13950) 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) Mental health counseling expenses.
(D) 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. Lost wages shall include any commission income as well as any
base wages. Commission income shall be established by evidence of
commission income during the 12-month period prior to the date of the
crime for which restitution is being ordered, unless good cause for
a shorter time period is shown.
(E) 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. Lost wages shall include any
commission income as well as any base wages. Commission income shall
be established by evidence of commission income during the 12-month
period prior to the date of the crime for which restitution is being
ordered, unless good cause for a shorter time period is shown.
(F) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(G) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(H) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(I) Expenses incurred by an adult victim in relocating away from
the defendant, including, but not limited to, deposits for utilities
and telephone service, deposits for rental housing, temporary lodging
and food expenses, clothing, and personal items. Expenses incurred
pursuant to this section shall be verified by law enforcement to be
necessary for the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional well-being of
the victim.
(J) Expenses to install or increase residential security incurred
related to a crime, as defined in subdivision (c) of Section 667.5,
including, but not limited to, a home security device or system, or
replacing or increasing the number of locks.
(K) Expenses to retrofit a residence or vehicle, or both, to make
the residence accessible to or the vehicle operational by the victim,
if the victim is permanently disabled, whether the disability is
partial or total, as a direct result of the crime.
(4) (A) If, as a result of the defendant's conduct, the
Restitution Fund has provided assistance to or on behalf of a victim
or derivative victim pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code, the
amount of assistance provided shall be presumed to be a direct
result of the defendant's criminal conduct and shall be included in
the amount of the restitution ordered.
(B) The amount of assistance provided by the Restitution Fund
shall be established by copies of bills submitted to the California
Victim Compensation and Government Claims Board reflecting the amount
paid by the board and whether the services for which payment was
made were for medical or dental expenses, funeral or burial expenses,
mental health counseling, wage or support losses, or rehabilitation.
Certified copies of these bills provided by the board and redacted
to protect the privacy and safety of the victim or any legal
privilege, together with a statement made under penalty of perjury by
the custodian of records that those bills were submitted to and were
paid by the board, shall be sufficient to meet this requirement.
(C) If the defendant offers evidence to rebut the presumption
established by this paragraph, the court may release additional
information contained in the records of the board to the defendant
only after reviewing that information in camera and finding that the
information is necessary for the defendant to dispute the amount of
the restitution order.
(5) Except as provided in paragraph (6), in any case in which an
order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant's arrest for the
crime for which restitution may be ordered. The financial disclosure
statements shall be made available to the victim and the board
pursuant to Section 1214. The disclosure shall be signed by the
defendant upon a form approved or adopted by the Judicial Council for
the purpose of facilitating the disclosure. Any defendant who
willfully states as true any material matter that he or she knows to
be false on the disclosure required by this subdivision is guilty of
a misdemeanor, unless this conduct is punishable as perjury or
another provision of law provides for a greater penalty.
(6) A defendant who fails to file the financial disclosure
required in paragraph (5), but who has filed a financial affidavit or
financial information pursuant to subdivision (c) of Section 987,
shall be deemed to have waived the confidentiality of that affidavit
or financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f). The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (5), and paragraphs (7) to (10), inclusive, shall not
apply.
(7) Except as provided in paragraph (6), the defendant shall file
the disclosure with the clerk of the court no later than the date set
for the defendant's sentencing, unless otherwise directed by the
court. The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.
(8) In its discretion, the court may relieve the defendant of the
duty under paragraph (7) of filing with the clerk by requiring that
the defendant's disclosure be submitted as an attachment to, and be
available to, those authorized to receive the following:
(A) Any report submitted pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
(B) Any stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
(C) Any report by the probation officer, or any information
submitted by the defendant applying for a conditional sentence
pursuant to subdivision (d) of Section 1203.
(9) The court may consider a defendant's unreasonable failure to
make a complete disclosure pursuant to paragraph (5) as any of the
following:
(A) A circumstance in aggravation of the crime in imposing a term
under subdivision (b) of Section 1170.
(B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.
(C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section 1203.

(D) A factor indicating that the interests of justice would not be
served by imposing less than the maximum fine and sentence fixed by
law for the case.
(10) A defendant's failure or refusal to make the required
disclosure pursuant to paragraph (5) shall not delay entry of an
order of restitution or pronouncement of sentence. In appropriate
cases, the court may do any of the following:
(A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).
(B) If sentencing the defendant under Section 1170, provide that
the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant's
employment, occupation, finances, and liabilities.
(C) If sentencing the defendant under Section 1203, set a date and
place for submission of the disclosure required by paragraph (5) as
a condition of probation or suspended sentence.
(11) If a defendant has any remaining unpaid balance on a
restitution order or fine 120 days prior to his or her scheduled
release from probation or 120 days prior to his or her completion of
a conditional sentence, the defendant shall prepare and file a new
and updated financial disclosure identifying all assets, income, and
liabilities in which the defendant holds or controls or has held or
controlled a present or future interest during the defendant's period
of probation or conditional sentence. The financial disclosure shall
be made available to the victim and the board pursuant to Section
1214. The disclosure shall be signed and prepared by the defendant on
the same form as described in paragraph (5). Any defendant who
willfully states as true any material matter that he or she knows to
be false on the disclosure required by this subdivision is guilty of
a misdemeanor, unless this conduct is punishable as perjury or
another provision of law provides for a greater penalty. The
financial disclosure required by this paragraph shall be filed with
the clerk of the court no later than 90 days prior to the defendant's
scheduled release from probation or completion of the defendant's
conditional sentence.
(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.
(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 all of
the following:
(1) The immediate surviving family of the actual victim.
(2) 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.
(3) Any person who has sustained economic loss as the result of a
crime and who satisfies any of the following conditions:
(A) At the time of the crime was the parent, grandparent, sibling,
spouse, child, or grandchild of the victim.
(B) At the time of the crime was living in the household of the
victim.
(C) At the time of the crime was a person who had previously lived
in the household of the victim for a period of not less than two
years in a relationship substantially similar to a relationship
listed in subparagraph (A).
(D) Is another family member of the victim, including, but not
limited to, the victim's fiance or fiancee, and who witnessed the
crime.
(E) Is the primary caretaker of a minor victim.
(4) Any person who is eligible to receive assistance from the
Restitution Fund pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code.
(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 13963 of the Government Code shall
apply to restitution imposed pursuant to this section.
(p) The court clerk shall notify the California Victim
Compensation and Government Claims Board within 90 days of an order
of restitution being imposed if the defendant is ordered to pay
restitution to the board due to the victim receiving compensation
from the Restitution Fund. Notification shall be accomplished by
mailing a copy of the court order to the board, which may be done
periodically by bulk mail or electronic mail.
(q) Upon conviction for a violation of Section 236.1, the court
shall, in addition to any other penalty or restitution, order the
defendant to pay restitution to the victim in any 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. In determining restitution pursuant to
this section, the court shall base its order upon the greater of the
following: the gross value of the victim's labor or services based
upon the comparable value of similar services in the labor market in
which the offense occurred, or the value of the victim's labor as
guaranteed under California law, or the actual income derived by the
defendant from the victim's labor or services or any other
appropriate means to provide reparations to the victim.



1202.41. (a) (1) Notwithstanding Section 977 or any other law, if a
defendant is currently incarcerated in a state prison with two-way
audiovideo communication capability, the Department of Corrections,
at the request of the California Victim Compensation and Government
Claims Board, may collaborate with a court in any county to arrange
for a hearing to impose or amend a restitution order, if the victim
has received assistance pursuant to Article 5 (commencing with
Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the
Government Code, to be conducted by two-way electronic audiovideo
communication between the defendant and the courtroom in lieu of the
defendant's physical presence in the courtroom, provided the county
has agreed to make the necessary equipment available.
(2) Nothing in this subdivision shall be interpreted to eliminate
the authority of the court to issue an order requiring the defendant
to be physically present in the courtroom in those cases where the
court finds circumstances that require the physical presence of the
defendant in the courtroom.
(3) In lieu of the physical presence of the defendant's counsel at
the institution with the defendant, the court and the Department of
Corrections shall establish a confidential telephone and facsimile
transmission line between the court and the institution for
communication between the defendant's counsel in court and the
defendant at the institution. In this case, counsel for the defendant
shall not be required to be physically present at the institution
during the hearing via electronic audiovideo communication. Nothing
in this subdivision shall be construed to prohibit the physical
presence of the defense counsel with the defendant at the state
prison.
(b) If an inmate who is not incarcerated in a state prison with
two-way audiovideo communication capability or ward does not waive
his or her right to attend a restitution hearing for the amendment of
a restitution order, the California Victim Compensation and
Government Claims Board shall determine if the cost of holding the
hearing is justified. If the board determines that the cost of
holding the hearing is not justified, the amendment of the
restitution order affecting that inmate or ward shall not be pursued
at that time.
(c) Nothing in this section shall be construed to prohibit an
individual or district attorney's office from independently pursuing
the imposition or amendment of a restitution order that may result in
a hearing, regardless of whether the victim 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.



1202.42. Upon entry of a restitution order under subdivision (c) of
Section 13967 of the Government Code, as operative on or before
September 28, 1994, paragraph (3) of subdivision (a) of Section
1202.4 of this code, or Section 1203.04 as operative on or before
August 2, 1995, the following shall apply:
(a) The court shall enter a separate order for income deduction
upon determination of the defendant's ability to pay, regardless of
the probation status, in accordance with Section 1203. Determination
of a defendant's ability to pay may include his or her 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 amount of the fine shall not be
required.
(b) (1) In any case in which the court enters a separate order for
income deduction under this section, the order shall be stayed until
the agency in the county responsible for collection of restitution
determines that the defendant has failed to meet his or her
obligation under the restitution order and the defendant has not
provided the agency with good cause for the failure in accordance
with paragraph (2).
(2) If the agency responsible for collection of restitution
receives information that the defendant has failed to meet his or her
obligation under the restitution order, the agency shall request the
defendant to provide evidence indicating that timely payments have
been made or provide information establishing good cause for the
failure. If the defendant fails to either provide the agency with
the evidence or fails to establish good cause within five days of the
request, the agency shall immediately inform the defendant of that
fact, and shall inform the clerk of the court in order that an income
deduction order will be served pursuant to subdivision (f) following
a 15-day appeal period. The defendant may apply for a hearing to
contest the lifting of the stay pursuant to subdivision (f).
(c) The income deduction order shall direct a payer to deduct from
all income due and payable to the defendant the amount required by
the court to meet the defendant's obligation.
(d) The income deduction order shall be effective so long as the
order for restitution upon which it is based is effective or until
further order of the court.
(e) When the court orders the income deduction, the court shall
furnish to the defendant a statement of his or her rights, remedies,
and duties in regard to the income deduction order. The statement
shall state all of the following:
(1) All fees or interest that will be imposed.
(2) The total amount of income to be deducted for each pay period.

(3) That the income deduction order applies to current and
subsequent payers and periods of employment.
(4) That a copy of the income deduction order will be served on
the defendant's payer or payers.
(5) That enforcement of the income deduction order may only be
contested on the ground of mistake of fact regarding the amount of
restitution owed.
(6) That the defendant is required to notify the clerk of the
court within seven days after changes in the defendant's address,
payers, and the addresses of his or her payers.
(7) That the court order will be stayed in accordance with
subdivision (b) and that a hearing is available in accordance with
subdivision (f).
(f) (1) Upon receiving the notice described in paragraph (2) of
subdivision (b), the clerk of the court or officer of the agency
responsible for collection of restitution shall serve an income
deduction order and the notice to payer on the defendant's payer
unless the defendant has applied for a hearing to contest the
enforcement of the income deduction order.
(2) (A) Service by or upon any person who is a party to a
proceeding under this section shall be made in the manner prescribed
for service upon parties in a civil action.
(B) Service upon the defendant's payer or successor payer under
this section shall be made by prepaid certified mail, return receipt
requested.
(3) The defendant, within 15 days after being informed that the
order staying the income deduction order will be lifted, may apply
for a hearing to contest the enforcement of the income deduction
order on the ground of mistake of fact regarding the amount of
restitution owed or on the ground that the defendant has established
good cause for the nonpayment. The timely request for a hearing
shall stay the service of an income deduction order on all payers of
the defendant until a hearing is held and a determination is made as
to whether the enforcement of the income deduction order is proper.
(4) The notice to any payer required by this subdivision shall
contain only information necessary for the payer to comply with the
income deduction order. The notice shall do all of the following:
(A) Require the payer to deduct from the defendant's income the
amount specified in the income deduction order, and to pay that
amount to the clerk of the court.
(B) Instruct the payer to implement the income deduction order no
later than the first payment date that occurs more than 14 days after
the date the income deduction order was served on the payer.
(C) Instruct the payer to forward, within two days after each
payment date, to the clerk of the court the amount deducted from the
defendant's income and a statement as to whether the amount totally
or partially satisfies the periodic amount specified in the income
deduction order.
(D) Specify that if a payer fails to deduct the proper amount from
the defendant's income, the payer is liable for the amount the payer
should have deducted, plus costs, interest, and reasonable attorney'
s fees.
(E) Provide that the payer may collect up to five dollars ($5)
against the defendant's income to reimburse the payer for
administrative costs for the first income deduction and up to one
dollar ($1) for each deduction thereafter.
(F) State that the income deduction order and the notice to payer
are binding on the payer until further notice by the court or until
the payer no longer provides income to the defendant.
(G) Instruct the payer that, when he or she no longer provides
income to the defendant, he or she shall notify the clerk of the
court and shall also provide the defendant's last known address and
the name and address of the defendant's new payer, if known, and
that, if the payer violates this provision, the payer is subject to a
civil penalty not to exceed two hundred fifty dollars ($250) for the
first violation or five hundred dollars ($500) for any subsequent
violation.
(H) State that the payer shall not discharge, refuse to employ, or
take disciplinary action against the defendant because of an income
deduction order and shall state that a violation of this provision
subjects the payer to a civil penalty not to exceed two hundred fifty
dollars ($250) for the first violation or five hundred dollars
($500) for any subsequent violation.
(I) Inform the payer that when he or she receives income deduction
orders requiring that the income of two or more defendants be
deducted and sent to the same clerk of a court, he or she may combine
the amounts that are to be paid to the depository in a single
payment as long as he or she identifies that portion of the payment
attributable to each defendant.
(J) Inform the payer that if the payer receives more than one
income deduction order against the same defendant, he or she shall
contact the court for further instructions.
(5) The clerk of the court shall enforce income deduction orders
against the defendant's successor payer who is located in this state
in the same manner prescribed in this subdivision for the enforcement
of an income deduction order against a payer.
(6) A person may not discharge, refuse to employ, or take
disciplinary action against an employee because of the enforcement of
an income deduction order. An employer who violates this provision
is subject to a civil penalty not to exceed two hundred fifty dollars
($250) for the first violation or five hundred dollars ($500) for
any subsequent violation.
(7) When a payer no longer provides income to a defendant, he or
she shall notify the clerk of the court and shall provide the
defendant's last known address and the name and address of the
defendant's new payer, if known. A payer who violates this provision
is subject to a civil penalty not to exceed two hundred fifty
dollars ($250) for the first violation or five hundred dollars ($500)
for a subsequent violation.
(g) As used in this section, "good cause" for failure to meet an
obligation or "good cause" for nonpayment means, but shall not be
limited to, any of the following:
(1) That there has been a substantial change in the defendant's
economic circumstances, such as involuntary unemployment, involuntary
cost-of-living increases, or costs incurred as the result of medical
circumstances or a natural disaster.
(2) That the defendant reasonably believes there has been an
administrative error with regard to his or her obligation for
payment.
(3) Any other similar and justifiable reasons.



1202.43. (a) The restitution fine imposed pursuant to subdivision
(a) of Section 13967 of the Government Code, as operative on or
before September 28, 1994, subparagraph (B) of paragraph (2) of
subdivision (a) of Section 1203.04, as operative on or before August
2, 1995, or Section 1202.4 shall be payable to the clerk of the
court, the probation officer, or any other person responsible for the
collection of criminal fines. If the defendant is unable or
otherwise fails to pay that fine in a felony case and there is an
amount unpaid of one thousand dollars ($1,000) or more within 60 days
after the imposition of sentence, or in a case in which probation is
granted, within the period of probation, the clerk of the court,
probation officer, or other person to whom the fine is to be paid
shall forward to the Controller the abstract of judgment along with
any information which may be relevant to the present and future
location of the defendant and his or her assets, if any, and any
verifiable amount which the defendant may have paid to the victim as
a result of the crime.
(b) A restitution fine shall be deemed a debt of the defendant
owing to the state for the purposes of Sections 12418 and 12419.5 of
the Government Code, excepting any amounts the defendant has paid to
the victim as a result of the crime. Upon request by the Controller,
the district attorney of a county or the Attorney General may take
any necessary action to recover amounts owing on a restitution fine.
The amount of the recovery shall be increased by a sum sufficient to
cover any costs incurred by any state or local agency in the
administration of this section. The remedies provided by this
subdivision are in addition to any other remedies provided by law for
the enforcement of a judgment.



1202.44. In every case in which a person is convicted of a crime
and a conditional sentence or a sentence that includes a period of
probation is imposed, the court shall, at the time of imposing the
restitution fine pursuant to subdivision (b) of Section 1202.4,
assess an additional probation revocation restitution fine in the
same amount as that imposed pursuant to subdivision (b) of Section
1202.4. This additional probation revocation restitution fine shall
become effective upon the revocation of probation or of a conditional
sentence, and shall not be waived or reduced by the court, absent
compelling and extraordinary reasons stated on record. Probation
revocation restitution fines shall be deposited in the Restitution
Fund in the State Treasury.



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 parole revocation restitution
fine in the same amount as that imposed pursuant to subdivision (b)
of Section 1202.4. This additional parole revocation restitution
fine shall not be subject to penalty assessments authorized by
Section 1464 or Chapter 12 (commencing with Section 76000) of Title 8
of the Government Code, or the state surcharge authorized by Section
1465.7, and shall be suspended unless the person's parole is
revoked. Parole revocation restitution fine moneys shall be deposited
in the Restitution Fund in the State Treasury.



1202.46. Notwithstanding Section 1170, when the economic losses of
a victim cannot be ascertained at the time of sentencing pursuant to
subdivision (f) of Section 1202.4, the court shall retain
jurisdiction over a person subject to a restitution order for
purposes of imposing or modifying restitution until such time as the
losses may be determined. Nothing in this section shall be construed
as prohibiting a victim, the district attorney, or a court on its
own motion from requesting correction, at any time, of a sentence
when the sentence is invalid due to the omission of a restitution
order or fine without a finding of compelling and extraordinary
reasons pursuant to Section 1202.4.



1202.5. (a) In any case in which a defendant is convicted of any of
the offenses enumerated in Section 211, 215, 459, 470, 484, 487,
488, or 594, the court shall 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 shall 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) (1) All fines collected pursuant to this section shall be held
in trust by the county collecting them, until transferred to the
local law enforcement agency to be used exclusively for the
jurisdiction where the offense took place. All moneys collected
shall implement, support, and continue local crime prevention
programs.
(2) All amounts collected pursuant to this section shall be in
addition to, and shall not supplant funds received for crime
prevention purposes from other sources.
(c) As used in this section, "law enforcement agency" includes,
but is not limited to, police departments, sheriffs departments, and
probation departments.



1202.51. In any case in which a defendant is convicted of any of
the offenses enumerated in Section 372, 373a, 374.3, 374.4, 374.7, or
374.8, the court shall order the defendant to pay a fine of one
hundred dollars ($100) if the conviction is for an infraction or two
hundred dollars ($200) if the conviction is for a misdemeanor, 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 shall set the amount to be paid and order the
defendant to pay that sum to the city or, if not within a city, the
county, where the violation occurred, to be used for the city's or
county's illegal dumping enforcement program. Notwithstanding any
other provision of law, no state or county penalty, assessment, fee,
or surcharge shall be imposed on the fine ordered under this section.



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, ***ual 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. It is the intent of the
Legislature that efforts be made with respect to persons who are
subject to Section 290.011 who are on probation to engage them in
treatment.



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) Commencing January 1, 2009, every person who has been assessed
with the State Authorized Risk Assessment Tool for *** Offenders
(SARATSO) pursuant to Sections 290.04 to 290.06, inclusive, and who
has a SARATSO risk level of high shall be continuously electronically
monitored while on probation, unless the court determines that such
monitoring is unnecessary for a particular person. The monitoring
device used for these purposes shall be identified as one that
employs the latest available proven effective monitoring technology.
Nothing in this section prohibits probation authorities from using
electronic monitoring technology pursuant to any other provision of
law.
(c) 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.
(d) Beginning January 1, 2009, and every two years thereafter,
each probation department shall report to the Corrections Standard
Authority all relevant statistics and relevant information regarding
on the effectiveness of continuous electronic monitoring of offenders
pursuant to subdivision (b). The report shall include the costs of
monitoring and the recidivism rates of those persons who have been
monitored. The Corrections Standard Authority shall compile the
reports and submit a single report to the Legislature and the
Governor every two years through 2017.


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) If the person was convicted of an offense that requires him or
her to register as a *** offender pursuant to Section 290, the
probation officer's report shall include the results of the
State-Authorized Risk Assessment Tool for *** Offenders (SARATSO)
administered pursuant to Sections 290.04 to 290.06, inclusive, if
applicable.
(D) 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.
(E) 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, including
the results of the SARATSO, if applicable, 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 and Rehabilitation 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
person was convicted of an offense that requires him or her to
register as a *** offender pursuant to Section 290, the court shall
refer the matter to the probation officer for the purpose of
obtaining a report on the results of the State-Authorized Risk
Assessment Tool for *** Offenders administered pursuant to Sections
290.04 to 290.06, inclusive, if applicable, which the court shall
consider. 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 machinegun 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, which may include global positioning system devices or
other 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.



1203.017. (a) Notwithstanding any other provision of law, upon
determination by the correctional administrator that conditions in a
jail facility warrant the necessity of releasing sentenced
misdemeanor inmates prior to them serving the full amount of a given
sentence due to lack of jail space, the board of supervisors of any
county may authorize the correctional administrator to offer a
program under which inmates committed to a county jail or other
county correctional facility or granted probation, or inmates
participating in a work furlough program, may be required to
participate in an involuntary home detention program, which shall
include electronic monitoring, 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. Under this
program, one day of participation shall be in lieu of one day of
incarceration. Participants in the program shall receive any
sentence reduction credits that they would have received had they
served their sentences in a county correctional facility.
(b) The board of supervisors may prescribe reasonable rules and
regulations under which an involuntary home detention program may
operate. The inmate shall be informed in writing that he or she
shall 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 peace officer 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 use of electronic monitoring may include global
positioning system devices or other 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 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, or if the person for
any other reason no longer meets the established criteria under this
section.
(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) As used in this section, "correctional administrator" means
the sheriff, probation officer, or director of the county department
of corrections.
(h) (1) Notwithstanding any other law, the correctional
administrator shall provide the information specified in paragraph
(2) regarding persons on involuntary home detention to the
Corrections Standards Authority, and upon request, shall provide that
information to the law enforcement agency of a city or
unincorporated area where an office is located to which persons on
involuntary home detention report.
(2) The information required by paragraph (1) shall consist of the
following:
(A) The participant's name, address, and date of birth.
(B) The offense committed by the participant.
(C) The period of time the participant will be placed on home
detention.
(D) Whether the participant successfully completed the prescribed
period of home detention or was returned to a county correctional
facility, and if the person was returned to a county correctional
facility, the reason for that return.
(E) The gender and ethnicity of the participant.
(3) Any information received by a police department pursuant to
this subdivision shall be used only for the purpose of monitoring the
impact of home detention programs on the community.
(i) 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 Department of Corrections and Rehabilitation 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 Corrections
Standards Authority, 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.
(j) Inmates participating in this program shall not be charged
fees or costs for the program.
(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.



1203.045. (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.



1203.049. (a) Except in unusual cases where the interest of justice
would best be served if the person is granted probation, probation
shall not be granted to any person who violates subdivision (f) or
(g) of Section 10980 of the Welfare and Institutions Code, when the
violation has been committed by means of the electronic transfer of
food stamp benefits, and the amount of the electronically transferred
food stamp benefits exceeds one hundred thousand dollars ($100,000).

(b) The fact that the violation was committed by means of an
electronic transfer of food stamp benefits and the amount of the
electronically transferred food stamp benefits exceeds 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 a plea of guilty or nolo
contendere or by trial by the court sitting without a jury.
(c) If 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 that disposition of the
case.



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. (a) Notwithstanding any other provision of law, probation
shall not be granted to, nor shall the execution or imposition of
sentence be suspended for, nor shall a finding bringing the defendant
within this section be stricken pursuant to Section 1385 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, 209, or 209.5.
(D) Lewd or lascivious act, in violation of Section 288.
(E) Burglary of the first degree, as defined in Section 460.
(F) Rape, in violation of Section 261, 262, or 264.1.
(G) Assault with intent to commit a specified ***ual offense, in
violation of Section 220.
(H) Escape, in violation of Section 4530 or 4532.
(I) Carjacking, in violation of Section 215.
(J) Aggravated mayhem, in violation of Section 205.
(K) Torture, in violation of Section 206.
(L) Continuous ***ual abuse of a child, in violation of Section
288.5.
(M) A felony violation of Section 136.1 or 137.
(N) Sodomy, in violation of Section 286.
(O) Oral copulation, in violation of Section 288a.
(P) ***ual penetration, in violation of Section 289 or 264.1.
(Q) Aggravated ***ual assault of a child, in violation of Section
269.
(2) Any person previously convicted of a felony specified in
paragraph (1), or assault with intent to commit murder under former
Section 217, who is convicted of a subsequent felony and who was
personally armed with a firearm at any time during its commission or
attempted commission or was unlawfully armed with a firearm at the
time of his or her arrest for the subsequent felony.
(3) Aggravated arson, in violation of Section 451.5.
(b) (1) The existence of any fact that would make a person
ineligible for probation under subdivision (a) 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.
(2) As used in subdivision (a), "used a firearm" means to display
a firearm in a menacing manner, to intentionally fire it, to
intentionally strike or hit a human being with it, or to use it in
any manner that qualifies under Section 12022.5.
(3) As used in subdivision (a), "armed with a firearm" means to
knowingly carry or have available for use a firearm as a means of
offense or defense.



1203.065. (a) Notwithstanding any other provision of law, probation
shall not be granted to, nor shall the execution or imposition of
sentence be suspended for, any person who is convicted of violating
paragraph (2) or (6) of subdivision (a) of Section 261, Section
264.1, 266h, 266i, 266j, or 269, paragraph (2) or (3) of subdivision
(c), or subdivision (d), of Section 286, paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a, subdivision (a)
of Section 289, or subdivision (c) of Section 311.4.
(b) (1) 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
paragraph (7) of subdivision (a) of Section 261, subdivision (k) of
Section 286, subdivision (k) of Section 288a, subdivision (g) of
Section 289, or Section 220 for assault with intent to commit a
specified ***ual offense.
(2) 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 the
disposition.



1203.066. (a) Notwithstanding Section 1203 or any other law,
probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for, nor shall a finding bringing
the defendant within the provisions of this section be stricken
pursuant to Section 1385 for, any of the following persons:
(1) A person who is convicted of violating Section 288 or 288.5
when the act is committed by the use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim
or another person.
(2) A person who caused bodily injury on the child victim in
committing a violation of Section 288 or 288.5.
(3) A person who is convicted of a violation of Section 288 or
288.5 and who was a stranger to the child victim or befriended the
child victim for the purpose of committing an act in violation of
Section 288 or 288.5, unless the defendant honestly and reasonably
believed the victim was 14 years of age or older.
(4) A person who used a weapon during the commission of a
violation of Section 288 or 288.5.
(5) A person who is convicted of committing a violation of Section
288 or 288.5 and who has been previously convicted of a violation of
Section 261, 262, 264.1, 266, 266c, 267, 285, 286, 288, 288.5, 288a,
or 289, or of assaulting another person with intent to commit a
crime specified in this paragraph in violation of Section 220, or who
has been previously convicted in another state of an offense which,
if committed or attempted in this state, would constitute an offense
enumerated in this paragraph.
(6) A person who violated Section 288 or 288.5 while kidnapping
the child victim in violation of Section 207, 209, or 209.5.
(7) A person who is convicted of committing a violation of Section
288 or 288.5 against more than one victim.
(8) A person who, in violating Section 288 or 288.5, has
substantial ***ual conduct with a victim who is under 14 years of
age.
(9) A person who, in violating Section 288 or 288.5, used obscene
matter, as defined in Section 311, or matter, as defined in Section
311, depicting ***ual conduct, as defined in Section 311.3.
(b) "Substantial ***ual conduct" means penetration of the vagina
or rectum of either the victim or the offender by the penis of the
other or by any foreign object, oral copulation, or masturbation of
either the victim or the offender.
(c) (1) Except for a violation of subdivision (b) of Section 288,
this section shall only apply if the existence of any fact required
in subdivision (a) is alleged in the accusatory pleading and is
either admitted by the defendant in open court, or found to be true
by the trier of fact.
(2) For the existence of any fact under paragraph (7) of
subdivision (a), the allegation must be made pursuant to this
section.
(d) (1) If a person is convicted of a violation of Section 288 or
288.5, and the factors listed in subdivision (a) are not pled or
proven, probation may be granted only if the following terms and
conditions are met:
(A) If the defendant is a member of the victim's household, the
court finds that probation is in the best interest of the child
victim.
(B) The court finds that rehabilitation of the defendant is
feasible and that the defendant is amenable to undergoing treatment,
and the defendant is placed in a recognized treatment program
designed to deal with child molestation immediately after the grant
of probation or the suspension of execution or imposition of
sentence.
(C) If the defendant is a member of the victim's household,
probation shall not be granted unless the defendant is removed from
the household of the victim until the court determines that the best
interests of the victim would be served by his or her return. While
removed from the household, the court shall prohibit contact by the
defendant with the victim, with the exception that the court may
permit supervised contact, upon the request of the director of the
court-ordered supervised treatment program, and with the agreement of
the victim and the victim's parent or legal guardian, other than the
defendant.
(D) The court finds that there is no threat of physical harm to
the victim if probation is granted.
(2) The court shall state its reasons on the record for whatever
sentence it imposes on the defendant.
(3) The court shall order the psychiatrist or psychologist who is
appointed pursuant to Section 288.1 to include a consideration of the
factors specified in subparagraphs (A), (B), and (C) of paragraph
(1) in making his or her report to the court.
(4) The court shall order the defendant to comply with all
probation requirements, including the requirements to attend
counseling, keep all program appointments, and pay program fees based
upon ability to pay.
(5) No victim shall be compelled to participate in a program or
counseling, and no program may condition a defendant's enrollment on
participation by the victim.
(e) As used in subdivision (d), the following definitions apply:
(1) "Contact with the victim" includes all physical contact, being
in the presence of the victim, communicating by any means, including
by a third party acting on behalf of the defendant, or sending any
gifts.
(2) "Recognized treatment program" means a program that consists
of the following components:
(A) Substantial expertise in the treatment of child ***ual abuse.

(B) A treatment regimen designed to specifically address the
offense.
(C) The ability to serve indigent clients.
(D) Adequate reporting requirements to ensure that all persons
who, after being ordered to attend and complete a program, may be
identified for either failure to enroll in, or failure to
successfully complete, the program, or for the successful completion
of the program as ordered. The program shall notify the court and the
probation department, in writing, within the period of time and in
the manner specified by the court of any person who fails to complete
the program. Notification shall be given if the program determines
that the defendant is performing unsatisfactorily or if the defendant
is not benefiting from the education, treatment, or counseling.



1203.067. (a) Notwithstanding any other law, before probation may
be granted to any person convicted of a felony specified in Section
261, 262, 264.1, 286, 288, 288a, or 289, who is eligible for
probation, the court shall do all of the following:
(1) Order the defendant evaluated pursuant to Section 1203.03, or
similar evaluation by the county probation department.
(2) Conduct a hearing at the time of sentencing to determine if
probation of the defendant would pose a threat to the victim. The
victim shall be notified of the hearing by the prosecuting attorney
and given an opportunity to address the court.
(3) Order any psychiatrist or psychologist appointed pursuant to
Section 288.1 to include a consideration of the threat to the victim
and the defendant's potential for positive response to treatment in
making his or her report to the court. Nothing in this section shall
be construed to require the court to order an examination of the
victim.
(b) If a defendant is granted probation pursuant to subdivision
(a), the court shall order the defendant to be placed in an
appropriate treatment program designed to deal with child molestation
or ***ual offenders, if an appropriate program is available in the
county.
(c) Any defendant ordered to be placed in a treatment program
pursuant to subdivision (b) shall be responsible for paying the
expense of his or her participation in the treatment program as
determined by the court. The court shall take into consideration the
ability of the defendant to pay, and no defendant shall be denied
probation because of his or her inability to pay.



1203.07. (a) Notwithstanding Section 1203, 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 is convicted of violating Section 11351 of the
Health and Safety Code by possessing for sale 14.25 grams or more of
a substance containing heroin.
(2) Any person who is convicted of violating Section 11352 of the
Health and Safety Code by selling or offering to sell 14.25 grams or
more of a substance containing heroin.
(3) Any person convicted of violating Section 11351 of the Health
and Safety Code by possessing heroin for sale or convicted of
violating Section 11352 of the Health and Safety Code by selling or
offering to sell heroin, and who has one or more prior convictions
for violating Section 11351 or Section 11352 of the Health and Safety
Code.
(4) Any person who is convicted of violating Section 11378.5 of
the Health and Safety Code by possessing for sale 14.25 grams or more
of any salt or solution of phencyclidine or any of its analogs as
specified in paragraph (21), (22), or (23) of subdivision (d) of
Section 11054 or in paragraph (3) of subdivision (e) of Section 11055
of the Health and Safety Code, or any of the precursors of
phencyclidine as specified in paragraph (2) of subdivision (f) of
Section 11055 of the Health and Safety Code.
(5) Any person who is convicted of violating Section 11379.5 of
the Health and Safety Code by transporting for sale, importing for
sale, or administering, or offering to transport for sale, import for
sale, or administer, or by attempting to import for sale or
transport for sale, phencyclidine or any of its analogs or
precursors.
(6) Any person who is convicted of violating Section 11379.5 of
the Health and Safety Code by selling or offering to sell
phencyclidine or any of its analogs or precursors.
(7) Any person who is convicted of violating Section 11379.6 of
the Health and Safety Code by manufacturing or offering to perform an
act involving the manufacture of phencyclidine or any of its analogs
or precursors.
As used in this section "manufacture" refers to the act of any
person who manufactures, compounds, converts, produces, derives,
processes, or prepares, either directly or indirectly by chemical
extraction or independently by means of chemical synthesis.
(8) Any person who is convicted of violating Section 11380 of the
Health and Safety Code by using, soliciting, inducing, encouraging,
or intimidating a minor to act as an agent to manufacture, compound,
or sell any controlled substance specified in subdivision (d) of
Section 11054 of the Health and Safety Code, except paragraphs (13),
(14), (15), (20), (21), (22), and (23) of subdivision (d), or
specified in subdivision (d), (e), or (f) of Section 11055 of the
Health and Safety Code, except paragraph (3) of subdivision (e) and
subparagraphs (A) and (B) of paragraph (2) of subdivision (f).
(9) Any person who is convicted of violating Section 11380.5 of
the Health and Safety Code by the use of a minor as an agent or who
solicits, induces, encourages, or intimidates a minor with the intent
that the minor shall violate the provisions of Section 11378.5,
11379.5, or 11379.6 of the Health and Safety Code insofar as the
violation relates to phencyclidine or any of its analogs or
precursors.
(10) Any person who is convicted of violating subdivision (b) of
Section 11383 of the Health and Safety Code by possessing piperidine,
pyrrolidine, or morpholine, and cyclohexanone, with intent to
manufacture phencyclidine or any of its analogs.
(11) Any person convicted of violating Section 11351, 11351.5, or
11378 of the Health and Safety Code by possessing for sale cocaine
base, cocaine, or methamphetamine, or convicted of violating Section
11352 or 11379 of the Health and Safety Code, by selling or offering
to sell cocaine base, cocaine, or methamphetamine and who has one or
more convictions for violating Section 11351, 11351.5, 11352, 11378,
11378.5, 11379, or 11379.5 of the Health and Safety Code. For
purposes of prior convictions under Sections 11352, 11379, and
11379.5 of the Health and Safety Code, this subdivision shall not
apply to the transportation, offering to transport, or attempting to
transport a controlled substance.
(b) The existence of any fact which would make a person ineligible
for probation under subdivision (a) shall be alleged in the
information or indictment, 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.



1203.073. (a) A person convicted of a felony specified in
subdivision (b) may be granted probation only in an unusual case
where the interests of justice would best be served. When probation
is granted in such a case, the court shall specify on the record and
shall enter in the minutes the circumstances indicating that the
interests of justice would best be served by such a disposition.
(b) Except as provided in subdivision (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 is convicted of violating Section 11351 of the
Health and Safety Code by possessing for sale, or Section 11352 of
the Health and Safety Code by selling, a substance containing 28.5
grams or more of cocaine as specified in paragraph (6) of subdivision
(b) of Section 11055 of the Health and Safety Code, or 57 grams or
more of a substance containing cocaine as specified in paragraph (6)
of subdivision (b) of Section 11055 of the Health and Safety Code.
(2) Any person who is convicted of violating Section 11378 of the
Health and Safety Code by possessing for sale, or Section 11379 of
the Health and Safety Code by selling a substance containing 28.5
grams or more of methamphetamine or 57 grams or more of a substance
containing methamphetamine.
(3) Any person who is convicted of violating subdivision (a) of
Section 11379.6 of the Health and Safety Code, except those who
manufacture phencyclidine, or who is convicted of an act which is
punishable under subdivision (b) of Section 11379.6 of the Health and
Safety Code, except those who offer to perform an act which aids in
the manufacture of phencyclidine.
(4) Except as otherwise provided in Section 1203.07, any person
who is convicted of violating Section 11353 or 11380 of the Health
and Safety Code by using, soliciting, inducing, encouraging, or
intimidating a minor to manufacture, compound, or sell heroin,
cocaine base as specified in paragraph (1) of subdivision (f) of
Section 11054 of the Health and Safety Code, cocaine as specified in
paragraph (6) of subdivision (b) of Section 11055 of the Health and
Safety Code, or methamphetamine.
(5) Any person who is convicted of violating Section 11351.5 of
the Health and Safety Code by possessing for sale a substance
containing 14.25 grams or more of cocaine base as specified in
paragraph (1) of subdivision (f) of Section 11054 of the Health and
Safety Code or 57 grams or more of a substance containing at least
five grams of cocaine base as specified in paragraph (1) of
subdivision (f) of Section 11054 of the Health and Safety Code.
(6) Any person who is convicted of violating Section 11352 of the
Health and Safety Code by transporting for sale, importing for sale,
or administering, or by offering to transport for sale, import for
sale, or administer, or by attempting to import for sale or transport
for sale, cocaine base as specified in paragraph (1) of subdivision
(f) of Section 11054 of the Health and Safety Code.
(7) Any person who is convicted of violating Section 11352 of the
Health and Safety Code by selling or offering to sell cocaine base as
specified in paragraph (1) of subdivision (f) of Section 11054 of
the Health and Safety Code.
(8) Any person convicted of violating Section 11379.6, 11382, or
11383 of the Health and Safety Code with respect to methamphetamine,
if he or she has one or more prior convictions for a violation of
Section 11378, 11379, 11379.6, 11380, 11382, or 11383 with respect to
methamphetamine.
(c) As used in this section, the term "manufacture" refers to the
act of any person who manufactures, compounds, converts, produces,
derives, processes, or prepares, either directly or indirectly by
chemical extraction or independently by means of chemical synthesis.

(d) The existence of any previous conviction or fact which would
make a person ineligible for probation under this section shall be
alleged in the information or indictment, 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 trial by the court sitting without
a jury.


1203.074. (a) A person convicted of a felony specified in
subdivision (b) may be granted probation only in an unusual case
where the interests of justice would best be served; when probation
is granted in such a case, the court shall specify on the record and
shall enter in the minutes the circumstances indicating that the
interests of justice would best be served by such a disposition.
(b) Except as provided in subdivision (a), probation shall not be
granted to, nor shall the execution or imposition of sentence be
suspended for, any person who is convicted of violating Section
11366.6 of the Health and Safety Code.


1203.075. (a) Notwithstanding any other provision of law, probation
shall not be granted to, nor shall the execution or imposition of
sentence be suspended for, nor shall a finding bringing the defendant
within this section be stricken pursuant to Section 1385 for, any
person who personally inflicts great bodily injury, as defined in
Section 12022.7, on the person of another in the commission or
attempted commission of any of the following crimes:
(1) Murder.
(2) Robbery, in violation of Section 211.
(3) Kidnapping, in violation of Section 207, 209, or 209.5.
(4) Lewd or lascivious act, in violation of Section 288.
(5) Burglary of the first degree, as defined in Section 460.
(6) Rape, in violation of Section 261, 262, or 264.1.
(7) Assault with intent to commit a specified ***ual offense, in
violation of Section 220.
(8) Escape, in violation of Section 4530 or 4532.
(9) ***ual penetration, in violation of Section 289 or 264.1.
(10) Sodomy, in violation of Section 286.
(11) Oral copulation, in violation of Section 288a.
(12) Carjacking, in violation of Section 215.
(13) Continuous ***ual abuse of a child, in violation of Section
288.5.
(14) Aggravated ***ual assault of a child, in violation of Section
269.
(b) The existence of any fact that would make a person ineligible
for probation under subdivision (a) 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.



1203.076. Any person convicted of violating Section 11352 of the
Health and Safety Code relating to the sale of cocaine, cocaine
hydrochloride, or heroin, or Section 11379.5 of the Health and Safety
Code, who is eligible for probation and who is granted probation
shall, as a condition thereof, be confined in the county jail for at
least 180 days. The imposition of the minimum 180-day sentence shall
be imposed in every case where probation has been granted, except
that the court may, in an unusual case where the interests of justice
would best be served, absolve a person from spending the 180-day
sentence in the county jail if the court specifies on the record and
enters into the minutes, the circumstances indicating that the
interests of justice would best be served by that disposition.




1203.08. (a) Notwithstanding any other law, probation shall not be
granted to, nor shall the execution or imposition of sentence be
suspended for, any adult person convicted of a designated felony who
has been previously convicted as an adult under charges separately
brought and tried two or more times of any designated felony or in
any other place of a public offense which, if committed in this
state, would have been punishable as a designated felony, if all the
convictions occurred within a 10-year period. The 10-year period
shall be calculated exclusive of any period of time during which the
person has been confined in a state or federal prison.
(b) (1) The existence of any fact which would make a person
ineligible for probation under subdivision (a) shall be alleged in
the information or indictment, 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.
(2) Except where the existence of the fact was not admitted or
found to be true pursuant to paragraph (1), or the court finds that a
prior conviction was invalid, the court shall not strike or dismiss
any prior convictions alleged in the information or indictment.
(3) 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.
(c) As used in this section, "designated felony" means any felony
specified in Section 187, 192, 207, 209, 209.5, 211, 215, 217, 245,
288, or paragraph (2), (6), or (7) of subdivision (a) of Section 261,
paragraph (1), (4), or (5) of subdivision (a) of Section 262,
subdivision (a) of Section 460, or when great bodily injury occurs in
perpetration of an assault to commit robbery, mayhem, or rape, as
defined in Section 220.


1203.085. (a) Any person convicted of an offense punishable by
imprisonment in the state prison but without an alternate sentence to
a county jail shall not be granted probation or have the execution
or imposition of sentence suspended, if the offense was committed
while the person was on parole from state prison pursuant to Section
3000, following a term of imprisonment imposed for 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.
(b) Any person 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, shall not be granted probation or
have the execution or imposition of sentence suspended, if the
offense was committed while the person was on parole from state
prison pursuant to Section 3000.
(c) The existence of any fact that would make a person ineligible
for probation under subdivision (a) or (b) shall be alleged in the
information or indictment, 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.




1203.09. (a) Notwithstanding any other law, probation shall not be
granted to, nor shall the execution or imposition of sentence be
suspended for, any person who commits or attempts to commit one or
more of the crimes listed in subdivision (b) against a person who is
60 years of age or older; or against a person who is blind, a
paraplegic, a quadriplegic, or a person confined to a wheelchair and
that disability is known or reasonably should be known to the person
committing the crime; and who during the course of the offense
inflicts great bodily injury upon the person.
(b) Subdivision (a) applies to the following crimes:
(1) Murder.
(2) Robbery, in violation of Section 211.
(3) Kidnapping, in violation of Section 207.
(4) Kidnapping, in violation of Section 209.
(5) Burglary of the first degree, as defined in Section 460.
(6) Rape by force or violence, in violation of paragraph (2) or
(6) of subdivision (a) of Section 261 or paragraph (1) or (4) of
subdivision (a) of Section 262.
(7) Assault with intent to commit rape or sodomy, in violation of
Section 220.
(8) Carjacking, in violation of Section 215.
(9) Kidnapping, in violation of Section 209.5.
(c) The existence of any fact which would make a person ineligible
for probation under either subdivision (a) or (f) shall be alleged
in the information or indictment, 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.
(d) As used in this section "great bodily injury" means "great
bodily injury" as defined in Section 12022.7.
(e) This section shall apply in all cases, including those cases
where the infliction of great bodily injury is an element of the
offense.
(f) 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, nor shall the execution or imposition of sentence
be suspended for, any person convicted of having committed one or
more of the following crimes against a person who is 60 years of age
or older: assault with a deadly weapon or instrument, battery which
results in physical injury which requires professional medical
treatment, carjacking, robbery, or mayhem.



1203.095. (a) Except as provided in subdivision (b), but
notwithstanding any other provision of law, if any person convicted
of a violation of paragraph (2) of subdivision (a) of Section 245, of
a violation of paragraph (1) of subdivision (d) of Section 245, of a
violation of Section 246, or a violation of subdivision (c) of
Section 417, is granted probation or the execution or imposition of
sentence is suspended, it shall be a condition thereof that he or she
be imprisoned for at least six months, and if any person convicted
of a violation of paragraph (2) of subdivision (a) of Section 417 is
granted probation or the execution or imposition of sentence is
suspended, it shall be a condition thereof that he or she be
imprisoned for at least three months.
(b) The provisions of subdivision (a) shall apply except in
unusual cases where the interests of justice would best be served by
granting probation or suspending the imposition or execution of
sentence without the imprisonment required by subdivision (a), or by
granting probation or suspending the imposition or execution of
sentence with conditions other than those set forth in subdivision
(a), in which case 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.
(c) This section 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.


1203.096. (a) Upon conviction of any felony in which the defendant
is sentenced to state prison and in which the court makes the
findings set forth in subdivision (b), a court shall, in addition to
any other terms of imprisonment, fine, and conditions, recommend in
writing that the defendant participate in a counseling or education
program having a substance abuse component while imprisoned.
(b) The court shall make the recommendation specified in
subdivision (a) if it finds that any of the following are true:
(1) That the defendant at the time of the commission of the
offense was under the influence of any alcoholic beverages.
(2) That the defendant at the time of the commission of the
offense was under the influence of any controlled substance.
(3) That the defendant has a demonstrated history of substance
abuse.
(4) That the offense or offenses for which the defendant was
convicted are drug related.


1203.097. (a) If a person is granted probation for a crime in which
the victim is a person defined in Section 6211 of the Family Code,
the terms of probation shall include all of the following:
(1) A minimum period of probation of 36 months, which may include
a period of summary probation as appropriate.
(2) A criminal court protective order protecting the victim from
further acts of violence, threats, stalking, ***ual abuse, and
harassment, and, if appropriate, containing residence exclusion or
stay-away conditions.
(3) Notice to the victim of the disposition of the case.
(4) Booking the defendant within one week of sentencing if the
defendant has not already been booked.
(5) A minimum payment by the defendant of four hundred dollars
($400) to be disbursed as specified in this paragraph. If, after a
hearing in court on the record, the court finds that the defendant
does not have the ability to pay, the court may reduce or waive this
fee.
Two-thirds of the moneys deposited with the county treasurer
pursuant to this section shall be retained by counties and deposited
in the domestic violence programs special fund created pursuant to
Section 18305 of the Welfare and Institutions Code, to be expended
for the purposes of Chapter 5 (commencing with Section 18290) of Part
6 of Division 9 of the Welfare and Institutions Code. The remainder
shall be transferred, once a month, to the Controller for deposit in
equal amounts in the Domestic Violence Restraining Order
Reimbursement Fund and in the Domestic Violence Training and
Education Fund, which are hereby created, in an amount equal to
one-third of funds collected during the preceding month. In no event
may the funds transferred to the Controller be less than one hundred
thirty-three dollars ($133) for each defendant. However, if the court
orders the defendant to pay less than two hundred dollars ($200)
because of his or her inability to pay, the state shall receive
two-thirds of the payment. Moneys deposited into these funds pursuant
to this section shall be available upon appropriation by the
Legislature and shall be distributed each fiscal year as follows:
(A) Funds from the Domestic Violence Restraining Order
Reimbursement Fund shall be distributed to local law enforcement or
other criminal justice agencies for state-mandated local costs
resulting from the notification requirements set forth in subdivision
(b) of Section 6380 of the Family Code, based on the annual
notification from the Department of Justice of the number of
restraining orders issued and registered in the state domestic
violence restraining order registry maintained by the Department of
Justice, for the development and maintenance of the domestic violence
restraining order databank system.
(B) Funds from the Domestic Violence Training and Education Fund
shall support a statewide training and education program to increase
public awareness of domestic violence and to improve the scope and
quality of services provided to the victims of domestic violence.
Grants to support this program shall be awarded on a competitive
basis and be administered by the State Department of Public Health,
in consultation with the statewide domestic violence coalition, which
is eligible to receive funding under this section.
(6) Successful completion of a batterer's program, as defined in
subdivision (c), or if none is available, another appropriate
counseling program designated by the court, for a period not less
than one year with periodic progress reports by the program to the
court every three months or less and weekly sessions of a minimum of
two hours class time duration. The defendant shall attend
consecutive weekly sessions, unless granted an excused absence for
good cause by the program for no more than three individual sessions
during the entire program, and shall complete the program within 18
months, unless, after a hearing, the court finds good cause to modify
the requirements of consecutive attendance or completion within 18
months.
(7) (A) (i) The court shall order the defendant to comply with all
probation requirements, including the requirements to attend
counseling, keep all program appointments, and pay program fees based
upon the ability to pay.
(ii) The terms of probation for offenders shall not be lifted
until all reasonable fees due to the counseling program have been
paid in full, but in no case shall probation be extended beyond the
term provided in subdivision (a) of Section 1203.1. If the court
finds that the defendant does not have the ability to pay the fees
based on the defendant's changed circumstances, the court may reduce
or waive the fees.
(B) Upon request by the batterer's program, the court shall
provide the defendant's arrest report, prior incidents of violence,
and treatment history to the program.
(8) The court also shall order the defendant to perform a
specified amount of appropriate community service, as designated by
the court. The defendant shall present the court with proof of
completion of community service and the court shall determine if the
community service has been satisfactorily completed. If sufficient
staff and resources are available, the community service shall be
performed under the jurisdiction of the local agency overseeing a
community service program.
(9) If the program finds that the defendant is unsuitable, the
program shall immediately contact the probation department or the
court. The probation department or court shall either recalendar the
case for hearing or refer the defendant to an appropriate
alternative batterer's program.
(10) (A) Upon recommendation of the program, a court shall require
a defendant to participate in additional sessions throughout the
probationary period, unless it finds that it is not in the interests
of justice to do so, states its reasons on the record, and enters
them into the minutes. In deciding whether the defendant would
benefit from more sessions, the court shall consider whether any of
the following conditions exist:
(i) The defendant has been violence free for a minimum of six
months.
(ii) The defendant has cooperated and participated in the batterer'
s program.
(iii) The defendant demonstrates an understanding of and practices
positive conflict resolution skills.
(iv) The defendant blames, degrades, or has committed acts that
dehumanize the victim or puts at risk the victim's safety, including,
but not limited to, molesting, stalking, striking, attacking,
threatening, ***ually assaulting, or battering the victim.
(v) The defendant demonstrates an understanding that the use of
coercion or violent behavior to maintain dominance is unacceptable in
an intimate relationship.
(vi) The defendant has made threats to harm anyone in any manner.

(vii) The defendant has complied with applicable requirements
under paragraph (6) of subdivision (c) or subparagraph (C) to receive
alcohol counseling, drug counseling, or both.
(viii) The defendant demonstrates acceptance of responsibility for
the abusive behavior perpetrated against the victim.
(B) The program shall immediately report any violation of the
terms of the protective order, including any new acts of violence or
failure to comply with the program requirements, to the court, the
prosecutor, and, if formal probation has been ordered, to the
probation department. The probationer shall file proof of enrollment
in a batterer's program with the court within 30 days of conviction.

(C) Concurrent with other requirements under this section, in
addition to, and not in lieu of, the batterer's program, and unless
prohibited by the referring court, the probation department or the
court may make provisions for a defendant to use his or her resources
to enroll in a chemical dependency program or to enter voluntarily a
licensed chemical dependency recovery hospital or residential
treatment program that has a valid license issued by the state to
provide alcohol or drug services to receive program participation
credit, as determined by the court. The probation department shall
document evidence of this hospital or residential treatment
participation in the defendant's program file.
(11) The conditions of probation may include, in lieu of a fine,
but not in lieu of the fund payment required under paragraph (5), one
or more of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of five thousand dollars ($5,000).
(B) That the defendant reimburse the victim for reasonable
expenses that the court finds are the direct result of the defendant'
s offense.
For any order to pay a fine, to make payments to a battered women'
s shelter, or to pay restitution as a condition of probation under
this subdivision, the court shall make a determination of the
defendant's ability to pay. Determination of a defendant's ability to
pay may include his or her 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
amount of the fine shall not be required. In no event shall any order
to make payments to a battered women's shelter be made if it would
impair the ability of the defendant to pay direct restitution to the
victim or court-ordered child support. When the injury to a married
person is caused, in whole or in part, by the criminal acts of his or
her spouse in violation of this section, the community property
shall not be used to discharge the liability of the offending spouse
for restitution to the injured spouse, as required by Section
1203.04, as operative on or before August 2, 1995, or Section 1202.4,
or to a shelter for costs with regard to the injured spouse, until
all separate property of the offending spouse is exhausted.
(12) If it appears to the prosecuting attorney, the court, or the
probation department that the defendant is performing
unsatisfactorily in the assigned program, is not benefiting from
counseling, or has engaged in criminal conduct, upon request of the
probation officer, the prosecuting attorney, or on its own motion,
the court, as a priority calendar item, shall hold a hearing to
determine whether further sentencing should proceed. The court may
consider factors, including, but not limited to, any violence by the
defendant against the former or a new victim while on probation and
noncompliance with any other specific condition of probation. If the
court finds that the defendant is not performing satisfactorily in
the assigned program, is not benefiting from the program, has not
complied with a condition of probation, or has engaged in criminal
conduct, the court shall terminate the defendant's participation in
the program and shall proceed with further sentencing.
(b) If a person is granted formal probation for a crime in which
the victim is a person defined in Section 6211 of the Family Code, in
addition to the terms specified in subdivision (a), all of the
following shall apply:
(1) The probation department shall make an investigation and take
into consideration the defendant's age, medical history, employment
and service records, educational background, community and family
ties, prior incidents of violence, police report, treatment history,
if any, demonstrable motivation, and other mitigating factors in
determining which batterer's program would be appropriate for the
defendant. This information shall be provided to the batterer's
program if it is requested. The probation department shall also
determine which community programs the defendant would benefit from
and which of those programs would accept the defendant. The probation
department shall report its findings and recommendations to the
court.
(2) The court shall advise the defendant that the failure to
report to the probation department for the initial investigation, as
directed by the court, or the failure to enroll in a specified
program, as directed by the court or the probation department, shall
result in possible further incarceration. The court, in the interests
of justice, may relieve the defendant from the prohibition set forth
in this subdivision based upon the defendant's mistake or excusable
neglect. Application for this relief shall be filed within 20 court
days of the missed deadline. This time limitation may not be
extended. A copy of any application for relief shall be served on the
office of the prosecuting attorney.
(3) After the court orders the defendant to a batterer's program,
the probation department shall conduct an initial assessment of the
defendant, including, but not limited to, all of the following:
(A) Social, economic, and family background.
(B) Education.
(C) Vocational achievements.
(D) Criminal history.
(E) Medical history.
(F) Substance abuse history.
(G) Consultation with the probation officer.
(H) Verbal consultation with the victim, only if the victim
desires to participate.
(I) Assessment of the future probability of the defendant
committing murder.
(4) The probation department shall attempt to notify the victim
regarding the requirements for the defendant's participation in the
batterer's program, as well as regarding available victim resources.
The victim also shall be informed that attendance in any program does
not guarantee that an abuser will not be violent.
(c) The court or the probation department shall refer defendants
only to batterer's programs that follow standards outlined in
paragraph (1), which may include, but are not limited to, lectures,
classes, group discussions, and counseling. The probation department
shall design and implement an approval and renewal process for
batterer's programs and shall solicit input from criminal justice
agencies and domestic violence victim advocacy programs.
(1) The goal of a batterer's program under this section shall be
to stop domestic violence. A batterer's program shall consist of the
following components:
(A) Strategies to hold the defendant accountable for the violence
in a relationship, including, but not limited to, providing the
defendant with a written statement that the defendant shall be held
accountable for acts or threats of domestic violence.
(B) A requirement that the defendant participate in ongoing
same-gender group sessions.
(C) An initial intake that provides written definitions to the
defendant of physical, emotional, ***ual, economic, and verbal abuse,
and the techniques for stopping these types of abuse.
(D) Procedures to inform the victim regarding the requirements for
the defendant's participation in the intervention program as well as
regarding available victim resources. The victim also shall be
informed that attendance in any program does not guarantee that an
abuser will not be violent.
(E) A requirement that the defendant attend group sessions free of
chemical influence.
(F) Educational programming that examines, at a minimum, gender
roles, socialization, the nature of violence, the dynamics of power
and control, and the effects of abuse on children and others.
(G) A requirement that excludes any couple counseling or family
counseling, or both.
(H) Procedures that give the program the right to assess whether
or not the defendant would benefit from the program and to refuse to
enroll the defendant if it is determined that the defendant would not
benefit from the program, so long as the refusal is not because of
the defendant's inability to pay. If possible, the program shall
suggest an appropriate alternative program.
(I) Program staff who, to the extent possible, have specific
knowledge regarding, but not limited to, spousal abuse, child abuse,
***ual abuse, substance abuse, the dynamics of violence and abuse,
the law, and procedures of the legal system.
(J) Program staff who are encouraged to utilize the expertise,
training, and assistance of local domestic violence centers.
(K) A requirement that the defendant enter into a written
agreement with the program, which shall include an outline of the
contents of the program, the attendance requirements, the requirement
to attend group sessions free of chemical influence, and a statement
that the defendant may be removed from the program if it is
determined that the defendant is not benefiting from the program or
is disruptive to the program.
(L) A requirement that the defendant sign a confidentiality
statement prohibiting disclosure of any information obtained through
participating in the program or during group sessions regarding other
participants in the program.
(M) Program content that provides cultural and ethnic sensitivity.

(N) A requirement of a written referral from the court or
probation department prior to permitting the defendant to enroll in
the program. The written referral shall state the number of minimum
sessions required by the court.
(O) Procedures for submitting to the probation department all of
the following uniform written responses:
(i) Proof of enrollment, to be submitted to the court and the
probation department and to include the fee determined to be charged
to the defendant, based upon the ability to pay, for each session.
(ii) Periodic progress reports that include attendance, fee
payment history, and program compliance.
(iii) Final evaluation that includes the program's evaluation of
the defendant's progress, using the criteria set forth in paragraph
(4) of subdivision (a) and recommendation for either successful or
unsuccessful termination or continuation in the program.
(P) A sliding fee schedule based on the defendant's ability to
pay. The batterer's program shall develop and utilize a sliding fee
scale that recognizes both the defendant's ability to pay and the
necessity of programs to meet overhead expenses. An indigent
defendant may negotiate a deferred payment schedule, but shall pay a
nominal fee, if the defendant has the ability to pay the nominal fee.
Upon a hearing and a finding by the court that the defendant does
not have the financial ability to pay the nominal fee, the court
shall waive this fee. The payment of the fee shall be made a
condition of probation if the court determines the defendant has the
present ability to pay the fee. The fee shall be paid during the term
of probation unless the program sets other conditions. The
acceptance policies shall be in accordance with the scaled fee
system.
(2) The court shall refer persons only to batterer's programs that
have been approved by the probation department pursuant to paragraph
(5). The probation department shall do both of the following:
(A) Provide for the issuance of a provisional approval, provided
that the applicant is in substantial compliance with applicable laws
and regulations and an urgent need for approval exists. A provisional
approval shall be considered an authorization to provide services
and shall not be considered a vested right.
(B) If the probation department determines that a program is not
in compliance with standards set by the department, the department
shall provide written notice of the noncompliant areas to the
program. The program shall submit a written plan of corrections
within 14 days from the date of the written notice on noncompliance.
A plan of correction shall include, but not be limited to, a
description of each corrective action and timeframe for
implementation. The department shall review and approve all or any
part of the plan of correction and notify the program of approval or
disapproval in writing. If the program fails to submit a plan of
correction or fails to implement the approved plan of correction, the
department shall consider whether to revoke or suspend approval and,
upon revoking or suspending approval, shall have the option to cease
referrals of defendants under this section.
(3) No program, regardless of its source of funding, shall be
approved unless it meets all of the following standards:
(A) The establishment of guidelines and criteria for education
services, including standards of services that may include lectures,
classes, and group discussions.
(B) Supervision of the defendant for the purpose of evaluating the
person's progress in the program.
(C) Adequate reporting requirements to ensure that all persons
who, after being ordered to attend and complete a program, may be
identified for either failure to enroll in, or failure to
successfully complete, the program or for the successful completion
of the program as ordered. The program shall notify the court and the
probation department, in writing, within the period of time and in
the manner specified by the court of any person who fails to complete
the program. Notification shall be given if the program determines
that the defendant is performing unsatisfactorily or if the defendant
is not benefiting from the education, treatment, or counseling.
(D) No victim shall be compelled to participate in a program or
counseling, and no program may condition a defendant's enrollment on
participation by the victim.
(4) In making referrals of indigent defendants to approved
batterer's programs, the probation department shall apportion these
referrals evenly among the approved programs.
(5) The probation department shall have the sole authority to
approve a batterer's program for probation. The program shall be
required to obtain only one approval but shall renew that approval
annually.
(A) The procedure for the approval of a new or existing program
shall include all of the following:
(i) The completion of a written application containing necessary
and pertinent information describing the applicant program.
(ii) The demonstration by the program that it possesses adequate
administrative and operational capability to operate a batterer's
treatment program. The program shall provide documentation to prove
that the program has conducted batterer's programs for at least one
year prior to application. This requirement may be waived under
subparagraph (A) of paragraph (2) if there is no existing batterer's
program in the city, county, or city and county.
(iii) The onsite review of the program, including monitoring of a
session to determine that the program adheres to applicable statutes
and regulations.
(iv) The payment of the approval fee.
(B) The probation department shall fix a fee for approval not to
exceed two hundred fifty dollars ($250) and for approval renewal not
to exceed two hundred fifty dollars ($250) every year in an amount
sufficient to cover its costs in administering the approval process
under this section. No fee shall be charged for the approval of local
governmental entities.
(C) The probation department has the sole authority to approve the
issuance, denial, suspension, or revocation of approval and to cease
new enrollments or referrals to a batterer's program under this
section. The probation department shall review information relative
to a program's performance or failure to adhere to standards, or
both. The probation department may suspend or revoke any approval
issued under this subdivision or deny an application to renew an
approval or to modify the terms and conditions of approval, based on
grounds established by probation, including, but not limited to,
either of the following:
(i) Violation of this section by any person holding approval or by
a program employee in a program under this section.
(ii) Misrepresentation of any material fact in obtaining the
approval.
(6) For defendants who are chronic users or serious abusers of
drugs or alcohol, standard components in the program shall include
concurrent counseling for substance abuse and violent behavior, and
in appropriate cases, detoxification and abstinence from the abused
substance.
(7) The program shall conduct an exit conference that assesses the
defendant's progress during his or her participation in the batterer'
s program.
(d) This section shall remain in effect only until January 1,
2010, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2010, deletes or extends
that date.



1203.097. (a) If a person is granted probation for a crime in which
the victim is a person defined in Section 6211 of the Family Code,
the terms of probation shall include all of the following:
(1) A minimum period of probation of 36 months, which may include
a period of summary probation as appropriate.
(2) A criminal court protective order protecting the victim from
further acts of violence, threats, stalking, ***ual abuse, and
harassment, and, if appropriate, containing residence exclusion or
stay-away conditions.
(3) Notice to the victim of the disposition of the case.
(4) Booking the defendant within one week of sentencing if the
defendant has not already been booked.
(5) A minimum payment by the defendant of two hundred dollars
($200) to be disbursed as specified in this paragraph. If, after a
hearing in court on the record, the court finds that the defendant
does not have the ability to pay, the court may reduce or waive this
fee.
One-third of the moneys deposited with the county treasurer
pursuant to this section shall be retained by counties and deposited
in the domestic violence programs special fund created pursuant to
Section 18305 of the Welfare and Institutions Code, to be expended
for the purposes of Chapter 5 (commencing with Section 18290) of Part
6 of Division 9 of the Welfare and Institutions Code. The remainder
shall be transferred, once a month, to the Controller for deposit in
equal amounts in the Domestic Violence Restraining Order
Reimbursement Fund and in the Domestic Violence Training and
Education Fund, which are hereby created, in an amount equal to
two-thirds of funds collected during the preceding month. Moneys
deposited into these funds pursuant to this section shall be
available upon appropriation by the Legislature and shall be
distributed each fiscal year as follows:
(A) Funds from the Domestic Violence Restraining Order
Reimbursement Fund shall be distributed to local law enforcement or
other criminal justice agencies for state-mandated local costs
resulting from the notification requirements set forth in subdivision
(b) of Section 6380 of the Family Code, based on the annual
notification from the Department of Justice of the number of
restraining orders issued and registered in the state domestic
violence restraining order registry maintained by the Department of
Justice, for the development and maintenance of the domestic violence
restraining order databank system.
(B) Funds from the Domestic Violence Training and Education Fund
shall support a statewide training and education program to increase
public awareness of domestic violence and to improve the scope and
quality of services provided to the victims of domestic violence.
Grants to support this program shall be awarded on a competitive
basis and be administered by the State Department of Public Health,
in consultation with the statewide domestic violence coalition, which
is eligible to receive funding under this section.
(6) Successful completion of a batterer's program, as defined in
subdivision (c), or if none is available, another appropriate
counseling program designated by the court, for a period not less
than one year with periodic progress reports by the program to the
court every three months or less and weekly sessions of a minimum of
two hours class time duration. The defendant shall attend
consecutive weekly sessions, unless granted an excused absence for
good cause by the program for no more than three individual sessions
during the entire program, and shall complete the program within 18
months, unless, after a hearing, the court finds good cause to modify
the requirements of consecutive attendance or completion within 18
months.
(7) (A) (i) The court shall order the defendant to comply with all
probation requirements, including the requirements to attend
counseling, keep all program appointments, and pay program fees based
upon the ability to pay.
(ii) The terms of probation for offenders shall not be lifted
until all reasonable fees due to the counseling program have been
paid in full, but in no case shall probation be extended beyond the
term provided in subdivision (a) of Section 1203.1. If the court
finds that the defendant does not have the ability to pay the fees
based on the defendant's changed circumstances, the court may reduce
or waive the fees.
(B) Upon request by the batterer's program, the court shall
provide the defendant's arrest report, prior incidents of violence,
and treatment history to the program.
(8) The court also shall order the defendant to perform a
specified amount of appropriate community service, as designated by
the court. The defendant shall present the court with proof of
completion of community service and the court shall determine if the
community service has been satisfactorily completed. If sufficient
staff and resources are available, the community service shall be
performed under the jurisdiction of the local agency overseeing a
community service program.
(9) If the program finds that the defendant is unsuitable, the
program shall immediately contact the probation department or the
court. The probation department or court shall either recalendar the
case for hearing or refer the defendant to an appropriate
alternative batterer's program.
(10) (A) Upon recommendation of the program, a court shall require
a defendant to participate in additional sessions throughout the
probationary period, unless it finds that it is not in the interests
of justice to do so, states its reasons on the record, and enters
them into the minutes. In deciding whether the defendant would
benefit from more sessions, the court shall consider whether any of
the following conditions exist:
(i) The defendant has been violence free for a minimum of six
months.
(ii) The defendant has cooperated and participated in the batterer'
s program.
(iii) The defendant demonstrates an understanding of and practices
positive conflict resolution skills.
(iv) The defendant blames, degrades, or has committed acts that
dehumanize the victim or puts at risk the victim's safety, including,
but not limited to, molesting, stalking, striking, attacking,
threatening, ***ually assaulting, or battering the victim.
(v) The defendant demonstrates an understanding that the use of
coercion or violent behavior to maintain dominance is unacceptable in
an intimate relationship.
(vi) The defendant has made threats to harm anyone in any manner.

(vii) The defendant has complied with applicable requirements
under paragraph (6) of subdivision (c) or subparagraph (C) to receive
alcohol counseling, drug counseling, or both.
(viii) The defendant demonstrates acceptance of responsibility for
the abusive behavior perpetrated against the victim.
(B) The program shall immediately report any violation of the
terms of the protective order, including any new acts of violence or
failure to comply with the program requirements, to the court, the
prosecutor, and, if formal probation has been ordered, to the
probation department. The probationer shall file proof of enrollment
in a batterer's program with the court within 30 days of conviction.

(C) Concurrent with other requirements under this section, in
addition to, and not in lieu of, the batterer's program, and unless
prohibited by the referring court, the probation department or the
court may make provisions for a defendant to use his or her resources
to enroll in a chemical dependency program or to enter voluntarily a
licensed chemical dependency recovery hospital or residential
treatment program that has a valid license issued by the state to
provide alcohol or drug services to receive program participation
credit, as determined by the court. The probation department shall
document evidence of this hospital or residential treatment
participation in the defendant's program file.
(11) The conditions of probation may include, in lieu of a fine,
but not in lieu of the fund payment required under paragraph (5), one
or more of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of five thousand dollars ($5,000).
(B) That the defendant reimburse the victim for reasonable
expenses that the court finds are the direct result of the defendant'
s offense.
For any order to pay a fine, to make payments to a battered women'
s shelter, or to pay restitution as a condition of probation under
this subdivision, the court shall make a determination of the
defendant's ability to pay. Determination of a defendant's ability to
pay may include his or her 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
amount of the fine shall not be required. In no event shall any order
to make payments to a battered women's shelter be made if it would
impair the ability of the defendant to pay direct restitution to the
victim or court-ordered child support. When the injury to a married
person is caused, in whole or in part, by the criminal acts of his or
her spouse in violation of this section, the community property
shall not be used to discharge the liability of the offending spouse
for restitution to the injured spouse, as required by Section
1203.04, as operative on or before August 2, 1995, or Section 1202.4,
or to a shelter for costs with regard to the injured spouse, until
all separate property of the offending spouse is exhausted.
(12) If it appears to the prosecuting attorney, the court, or the
probation department that the defendant is performing
unsatisfactorily in the assigned program, is not benefiting from
counseling, or has engaged in criminal conduct, upon request of the
probation officer, the prosecuting attorney, or on its own motion,
the court, as a priority calendar item, shall hold a hearing to
determine whether further sentencing should proceed. The court may
consider factors, including, but not limited to, any violence by the
defendant against the former or a new victim while on probation and
noncompliance with any other specific condition of probation. If the
court finds that the defendant is not performing satisfactorily in
the assigned program, is not benefiting from the program, has not
complied with a condition of probation, or has engaged in criminal
conduct, the court shall terminate the defendant's participation in
the program and shall proceed with further sentencing.
(b) If a person is granted formal probation for a crime in which
the victim is a person defined in Section 6211 of the Family Code, in
addition to the terms specified in subdivision (a), all of the
following shall apply:
(1) The probation department shall make an investigation and take
into consideration the defendant's age, medical history, employment
and service records, educational background, community and family
ties, prior incidents of violence, police report, treatment history,
if any, demonstrable motivation, and other mitigating factors in
determining which batterer's program would be appropriate for the
defendant. This information shall be provided to the batterer's
program if it is requested. The probation department shall also
determine which community programs the defendant would benefit from
and which of those programs would accept the defendant. The probation
department shall report its findings and recommendations to the
court.
(2) The court shall advise the defendant that the failure to
report to the probation department for the initial investigation, as
directed by the court, or the failure to enroll in a specified
program, as directed by the court or the probation department, shall
result in possible further incarceration. The court, in the interests
of justice, may relieve the defendant from the prohibition set forth
in this subdivision based upon the defendant's mistake or excusable
neglect. Application for this relief shall be filed within 20 court
days of the missed deadline. This time limitation may not be
extended. A copy of any application for relief shall be served on the
office of the prosecuting attorney.
(3) After the court orders the defendant to a batterer's program,
the probation department shall conduct an initial assessment of the
defendant, including, but not limited to, all of the following:
(A) Social, economic, and family background.
(B) Education.
(C) Vocational achievements.
(D) Criminal history.
(E) Medical history.
(F) Substance abuse history.
(G) Consultation with the probation officer.
(H) Verbal consultation with the victim, only if the victim
desires to participate.
(I) Assessment of the future probability of the defendant
committing murder.
(4) The probation department shall attempt to notify the victim
regarding the requirements for the defendant's participation in the
batterer's program, as well as regarding available victim resources.
The victim also shall be informed that attendance in any program does
not guarantee that an abuser will not be violent.
(c) The court or the probation department shall refer defendants
only to batterer's programs that follow standards outlined in
paragraph (1), which may include, but are not limited to, lectures,
classes, group discussions, and counseling. The probation department
shall design and implement an approval and renewal process for
batterer's programs and shall solicit input from criminal justice
agencies and domestic violence victim advocacy programs.
(1) The goal of a batterer's program under this section shall be
to stop domestic violence. A batterer's program shall consist of the
following components:
(A) Strategies to hold the defendant accountable for the violence
in a relationship, including, but not limited to, providing the
defendant with a written statement that the defendant shall be held
accountable for acts or threats of domestic violence.
(B) A requirement that the defendant participate in ongoing
same-gender group sessions.
(C) An initial intake that provides written definitions to the
defendant of physical, emotional, ***ual, economic, and verbal abuse,
and the techniques for stopping these types of abuse.
(D) Procedures to inform the victim regarding the requirements for
the defendant's participation in the intervention program as well as
regarding available victim resources. The victim also shall be
informed that attendance in any program does not guarantee that an
abuser will not be violent.
(E) A requirement that the defendant attend group sessions free of
chemical influence.
(F) Educational programming that examines, at a minimum, gender
roles, socialization, the nature of violence, the dynamics of power
and control, and the effects of abuse on children and others.
(G) A requirement that excludes any couple counseling or family
counseling, or both.
(H) Procedures that give the program the right to assess whether
or not the defendant would benefit from the program and to refuse to
enroll the defendant if it is determined that the defendant would not
benefit from the program, so long as the refusal is not because of
the defendant's inability to pay. If possible, the program shall
suggest an appropriate alternative program.
(I) Program staff who, to the extent possible, have specific
knowledge regarding, but not limited to, spousal abuse, child abuse,
***ual abuse, substance abuse, the dynamics of violence and abuse,
the law, and procedures of the legal system.
(J) Program staff who are encouraged to utilize the expertise,
training, and assistance of local domestic violence centers.
(K) A requirement that the defendant enter into a written
agreement with the program, which shall include an outline of the
contents of the program, the attendance requirements, the requirement
to attend group sessions free of chemical influence, and a statement
that the defendant may be removed from the program if it is
determined that the defendant is not benefiting from the program or
is disruptive to the program.
(L) A requirement that the defendant sign a confidentiality
statement prohibiting disclosure of any information obtained through
participating in the program or during group sessions regarding other
participants in the program.
(M) Program content that provides cultural and ethnic sensitivity.

(N) A requirement of a written referral from the court or
probation department prior to permitting the defendant to enroll in
the program. The written referral shall state the number of minimum
sessions required by the court.
(O) Procedures for submitting to the probation department all of
the following uniform written responses:
(i) Proof of enrollment, to be submitted to the court and the
probation department and to include the fee determined to be charged
to the defendant, based upon the ability to pay, for each session.
(ii) Periodic progress reports that include attendance, fee
payment history, and program compliance.
(iii) Final evaluation that includes the program's evaluation of
the defendant's progress, using the criteria set forth in paragraph
(4) of subdivision (a) and recommendation for either successful or
unsuccessful termination or continuation in the program.
(P) A sliding fee schedule based on the defendant's ability to
pay. The batterer's program shall develop and utilize a sliding fee
scale that recognizes both the defendant's ability to pay and the
necessity of programs to meet overhead expenses. An indigent
defendant may negotiate a deferred payment schedule, but shall pay a
nominal fee, if the defendant has the ability to pay the nominal fee.
Upon a hearing and a finding by the court that the defendant does
not have the financial ability to pay the nominal fee, the court
shall waive this fee. The payment of the fee shall be made a
condition of probation if the court determines the defendant has the
present ability to pay the fee. The fee shall be paid during the term
of probation unless the program sets other conditions. The
acceptance policies shall be in accordance with the scaled fee
system.
(2) The court shall refer persons only to batterer's programs that
have been approved by the probation department pursuant to paragraph
(5). The probation department shall do both of the following:
(A) Provide for the issuance of a provisional approval, provided
that the applicant is in substantial compliance with applicable laws
and regulations and an urgent need for approval exists. A provisional
approval shall be considered an authorization to provide services
and shall not be considered a vested right.
(B) If the probation department determines that a program is not
in compliance with standards set by the department, the department
shall provide written notice of the noncompliant areas to the
program. The program shall submit a written plan of corrections
within 14 days from the date of the written notice on noncompliance.
A plan of correction shall include, but not be limited to, a
description of each corrective action and timeframe for
implementation. The department shall review and approve all or any
part of the plan of correction and notify the program of approval or
disapproval in writing. If the program fails to submit a plan of
correction or fails to implement the approved plan of correction, the
department shall consider whether to revoke or suspend approval and,
upon revoking or suspending approval, shall have the option to cease
referrals of defendants under this section.
(3) No program, regardless of its source of funding, shall be
approved unless it meets all of the following standards:
(A) The establishment of guidelines and criteria for education
services, including standards of services that may include lectures,
classes, and group discussions.
(B) Supervision of the defendant for the purpose of evaluating the
person's progress in the program.
(C) Adequate reporting requirements to ensure that all persons
who, after being ordered to attend and complete a program, may be
identified for either failure to enroll in, or failure to
successfully complete, the program or for the successful completion
of the program as ordered. The program shall notify the court and the
probation department, in writing, within the period of time and in
the manner specified by the court of any person who fails to complete
the program. Notification shall be given if the program determines
that the defendant is performing unsatisfactorily or if the defendant
is not benefiting from the education, treatment, or counseling.
(D) No victim shall be compelled to participate in a program or
counseling, and no program may condition a defendant's enrollment on
participation by the victim.
(4) In making referrals of indigent defendants to approved
batterer's programs, the probation department shall apportion these
referrals evenly among the approved programs.
(5) The probation department shall have the sole authority to
approve a batterer's program for probation. The program shall be
required to obtain only one approval but shall renew that approval
annually.
(A) The procedure for the approval of a new or existing program
shall include all of the following:
(i) The completion of a written application containing necessary
and pertinent information describing the applicant program.
(ii) The demonstration by the program that it possesses adequate
administrative and operational capability to operate a batterer's
treatment program. The program shall provide documentation to prove
that the program has conducted batterer's programs for at least one
year prior to application. This requirement may be waived under
subparagraph (A) of paragraph (2) if there is no existing batterer's
program in the city, county, or city and county.
(iii) The onsite review of the program, including monitoring of a
session to determine that the program adheres to applicable statutes
and regulations.
(iv) The payment of the approval fee.
(B) The probation department shall fix a fee for approval not to
exceed two hundred fifty dollars ($250) and for approval renewal not
to exceed two hundred fifty dollars ($250) every year in an amount
sufficient to cover its costs in administering the approval process
under this section. No fee shall be charged for the approval of local
governmental entities.
(C) The probation department has the sole authority to approve the
issuance, denial, suspension, or revocation of approval and to cease
new enrollments or referrals to a batterer's program under this
section. The probation department shall review information relative
to a program's performance or failure to adhere to standards, or
both. The probation department may suspend or revoke any approval
issued under this subdivision or deny an application to renew an
approval or to modify the terms and conditions of approval, based on
grounds established by probation, including, but not limited to,
either of the following:
(i) Violation of this section by any person holding approval or by
a program employee in a program under this section.
(ii) Misrepresentation of any material fact in obtaining the
approval.
(6) For defendants who are chronic users or serious abusers of
drugs or alcohol, standard components in the program shall include
concurrent counseling for substance abuse and violent behavior, and
in appropriate cases, detoxification and abstinence from the abused
substance.
(7) The program shall conduct an exit conference that assesses the
defendant's progress during his or her participation in the batterer'
s program.
(d) This section shall become operative on January 1, 2010.



1203.098. (a) Unless otherwise provided, a person who works as a
facilitator in a batterers' intervention program that provides
programs for batterers pursuant to subdivision (c) of Section
1203.097 shall complete the following requirements before being
eligible to work as a facilitator in a batterers' intervention
program:
(1) Forty hours of core-basic training. A minimum of eight hours
of this instruction shall be provided by a shelter-based or
shelter-approved trainer. The core curriculum shall include the
following components:
(A) A minimum of eight hours in basic domestic violence knowledge
focusing on victim safety and the role of domestic violence shelters
in a community-coordinated response.
(B) A minimum of eight hours in multicultural, cross cultural, and
multiethnic diversity and domestic violence.
(C) A minimum of four hours in substance abuse and domestic
violence.
(D) A minimum of four hours in intake and assessment, including
the history of violence and the nature of threats and substance
abuse.
(E) A minimum of eight hours in group content areas focusing on
gender roles and socialization, the nature of violence, the dynamics
of power and control, and the affects of abuse on children and others
as required by Section 1203.097.
(F) A minimum of four hours in group facilitation.
(G) A minimum of four hours in domestic violence and the law,
ethics, all requirements specified by the probation department
pursuant to Section 1203.097, and the role of batterers' intervention
programs in a coordinated-community response.
(H) Any person that provides documentation of coursework, or
equivalent training, that he or she has satisfactorily completed,
shall be exempt from that part of the training that was covered by
the satisfactorily completed coursework.
(I) The coursework that this person performs shall count towards
the continuing education requirement.
(2) Fifty-two weeks or no less than 104 hours in six months, as a
trainee in an approved batterers' intervention program with a minimum
of a two-hour group each week. A training program shall include at
least one of the following:
(A) Cofacilitation internship in which an experienced facilitator
is present in the room during the group session.
(B) Observation by a trainer of the trainee conducting a group
session via a one-way mirror.
(C) Observation by a trainer of the trainee conducting a group
session via a video or audio tape.
(D) Consultation and or supervision twice a week in a six-month
program or once a week in a 52-week program.
(3) An experienced facilitator is one who has the following
qualifications:
(A) Documentation on file, approved by the agency, evidencing that
the experienced facilitator has the skills needed to provide quality
supervision and training.
(B) Documented experience working with batterers for three years,
and a minimum of two years working with batterer's groups.
(C) Documentation by January 1, 2003, of coursework or equivalent
training that demonstrates satisfactory completion of the 40-hour
basic-core training.
(b) A facilitator of a batterers' intervention program shall
complete, as a minimum continuing education requirement, 16 hours
annually of continuing education in either domestic violence or a
related field with a minimum of 8 hours in domestic violence.
(c) A person or agency with a specific hardship may request the
probation department, in writing, for an extension of time to
complete the training or to complete alternative training options.
(d) (1) An experienced facilitator, as defined in paragraph (3) of
subdivision (a), is not subject to the supervision requirements of
this section, if they meet the requirements of subparagraph (C) of
paragraph (3) of subdivision (a).
(2) This section does not apply to a person who provides batterers'
treatment through a jail education program if the person in charge
of that program determines that such person has adequate education or
training in domestic violence or a related field.
(e) A person who satisfactorily completes the training
requirements of a county probation department whose training program
is equivalent to or exceeds the training requirements of this act
shall be exempt from the training requirements of this act.



1203.1. (a) The court, or judge thereof, in the order granting
probation, may suspend the imposing or the execution of the sentence
and may direct that the suspension may continue for a period of time
not exceeding the maximum possible term of the sentence, except as
hereinafter set forth, and upon those terms and conditions as it
shall determine. The court, or judge thereof, in the order granting
probation and as a condition thereof, may imprison the defendant in a
county jail for a period not exceeding the maximum time fixed by law
in the case.
However, where the maximum possible term of the sentence is five
years or less, then the period of suspension of imposition or
execution of sentence may, in the discretion of the court, continue
for not over five years. The following shall apply to this
subdivision:
(1) The court may fine the defendant in a sum not to exceed the
maximum fine provided by law in the case.
(2) The court may, in connection with granting probation, impose
either imprisonment in a county jail or a fine, both, or neither.
(3) The court shall provide for restitution in proper cases. The
restitution order shall be fully enforceable as a civil judgment
forthwith and in accordance with Section 1202.4 of the Penal Code.
(4) The court may require bonds for the faithful observance and
performance of any or all of the conditions of probation.
(b) The court shall consider whether the defendant as a condition
of probation shall make restitution to the victim or the Restitution
Fund. Any restitution payment received by a probation department in
the form of cash or money order shall be forwarded to the victim
within 30 days from the date the payment is received by the
department. Any restitution payment received by a probation
department in the form of a check or draft shall be forwarded to the
victim within 45 days from the date the payment is received by the
department, provided, that payment need not be forwarded to a victim
until 180 days from the date the first payment is received, if the
restitution payments for that victim received by the probation
department total less than fifty dollars ($50). In cases where the
court has ordered the defendant to pay restitution to multiple
victims and where the administrative cost of disbursing restitution
payments to multiple victims involves a significant cost, any
restitution payment received by a probation department shall be
forwarded to multiple victims when it is cost-effective to do so, but
in no event shall restitution disbursements be delayed beyond 180
days from the date the payment is received by the probation
department.
(c) In counties or cities and counties where road camps, farms, or
other public work is available the court may place the probationer
in the road camp, farm, or other public work instead of in jail. In
this case, Section 25359 of the Government Code shall apply to
probation and the court shall have the same power to require adult
probationers to work, as prisoners confined in the county jail are
required to work, at public work. Each county board of supervisors
may fix the scale of compensation of the adult probationers in that
county.
(d) In all cases of probation the court may require as a condition
of probation that the probationer go to work and earn money for the
support of his or her dependents or to pay any fine imposed or
reparation condition, to keep an account of his or her earnings, to
report them to the probation officer and apply those earnings as
directed by the court.
(e) The court shall also consider whether the defendant as a
condition of probation shall make restitution to a public agency for
the costs of an emergency response pursuant to Article 8 (commencing
with Section 53150) of Chapter 1 of Part 1 of Division 2 of the
Government Code.
(f) In all felony cases in which, as a condition of probation, a
judge of the superior court sitting by authority of law elsewhere
than at the county seat requires a convicted person to serve his or
her sentence at intermittent periods the sentence may be served on
the order of the judge at the city jail nearest to the place at which
the court is sitting, and the cost of his or her maintenance shall
be a county charge.
(g) (1) The court and prosecuting attorney shall consider whether
any defendant who has been convicted of a nonviolent or nonserious
offense and ordered to participate in community service as a
condition of probation shall be required to engage in the removal of
graffiti in the performance of the community service. For the
purpose of this subdivision, a nonserious offense shall not include
the following:
(A) Offenses in violation of the Dangerous Weapons' Control Law
(Chapter 1 (commencing with Section 12000) of Title 2 of Part 4).
(B) Offenses involving the use of a dangerous or deadly weapon,
including all violations of Section 417.
(C) Offenses involving the use or attempted use of violence
against the person of another or involving injury to a victim.
(D) Offenses involving annoying or molesting children.
(2) Notwithstanding subparagraph (A) of paragraph (1), any person
who violates Section 12101 shall be ordered to perform not less than
100 hours and not more than 500 hours of community service as a
condition of probation.
(3) The court and the prosecuting attorney need not consider a
defendant pursuant to paragraph (1) if the following circumstances
exist:
(A) The defendant was convicted of any offense set forth in
subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7.
(B) The judge believes that the public safety may be endangered if
the person is ordered to do community service or the judge believes
that the facts or circumstances or facts and circumstances call for
imposition of a more substantial penalty.
(h) The probation officer or his or her designated representative
shall consider whether any defendant who has been convicted of a
nonviolent and nonserious offense and ordered to participate in
community service as a condition of probation shall be required to
engage in the performance of house repairs or yard services for
senior citizens and the performance of repairs to senior centers
through contact with local senior service organizations in the
performance of the community service.
(i) (1) Upon conviction of any offense involving child abuse or
neglect, the court may require, in addition to any or all of the
above-mentioned terms of imprisonment, fine, and other reasonable
conditions, that the defendant shall participate in counseling or
education programs, or both, including, but not limited to, parent
education or parenting programs operated by community colleges,
school districts, other public agencies, or private agencies.
(2) Upon conviction of any *** offense subjecting the defendant to
the registration requirements of Section 290, the court may order as
a condition of probation, at the request of the victim or in the
court's discretion, that the defendant stay away from the victim and
the victim's residence or place of employment, and that the defendant
have no contact with the victim in person, by telephone or
electronic means, or by mail.
(j) The court may impose and require any or all of the
above-mentioned terms of imprisonment, fine, and conditions, and
other reasonable conditions, as it may determine are fitting and
proper to the end that justice may be done, that amends may be made
to society for the breach of the law, for any injury done to any
person resulting from that breach, and generally and specifically for
the reformation and rehabilitation of the probationer, and that
should the probationer violate any of the terms or conditions imposed
by the court in the matter, it shall have authority to modify and
change any and all the terms and conditions and to reimprison the
probationer in the county jail within the limitations of the penalty
of the public offense involved. Upon the defendant being released
from the county jail under the terms of probation as originally
granted or any modification subsequently made, and in all cases where
confinement in a county jail has not been a condition of the grant
of probation, the court shall place the defendant or probationer in
and under the charge of the probation officer of the court, for the
period or term fixed for probation. However, upon the payment of any
fine imposed and the fulfillment of all conditions of probation,
probation shall cease at the end of the term of probation, or sooner,
in the event of modification. In counties and cities and counties
in which there are facilities for taking fingerprints, those of each
probationer shall be taken and a record of them kept and preserved.
(k) Notwithstanding any other provisions of law to the contrary,
except as provided in Section 13967, as operative on or before
September 28, 1994, of the Government Code and Section 13967.5 of the
Government Code and Sections 1202.4, 1463.16, paragraph (1) of
subdivision (a) of Section 1463.18, and Section 1464, and Section
1203.04, as operative on or before August 2, 1995, all fines
collected by a county probation officer in any of the courts of this
state, as a condition of the granting of probation or as a part of
the terms of probation, shall be paid into the county treasury and
placed in the general fund for the use and benefit of the county.
(l) If the court orders restitution to be made to the victim, the
board of supervisors may add a fee to cover the actual administrative
cost of collecting restitution but not to exceed 10 percent of the
total amount ordered to be paid. The fees shall be paid into the
general fund of the county treasury for the use and benefit of the
county.


1203.1a. The probation officer of the county may authorize the
temporary removal under custody or temporary release without custody
of any inmate of the county jail, honor farm, or other detention
facility, who is confined or committed as a condition of probation,
after suspension of imposition of sentence or suspension of execution
of sentence, for purposes preparatory to his return to the
community, within 30 days prior to his release date, if he concludes
that such an inmate is a fit subject therefor. Any such temporary
removal shall not be for a period of more than three days. When an
inmate is released for purposes preparatory to his return to the
community, the probation officer may require the inmate to reimburse
the county, in whole or in part, for expenses incurred by the county
in connection therewith.



1203.1ab. Upon conviction of any offense involving the unlawful
possession, use, sale, or other furnishing of any controlled
substance, as defined in Chapter 2 (commencing with Section 11053) of
Division 10 of the Health and Safety Code, in addition to any or all
of the terms of imprisonment, fine, and other reasonable conditions
specified in or permitted by Section 1203.1, unless it makes a
finding that this condition would not serve the interests of justice,
the court, when recommended by the probation officer, shall require
as a condition of probation that the defendant shall not use or be
under the influence of any controlled substance and shall submit to
drug and substance abuse testing as directed by the probation
officer. If the defendant is required to submit to testing and has
the financial ability to pay all or part of the costs associated with
that testing, the court shall order the defendant to pay a
reasonable fee, which shall not exceed the actual cost of the
testing.



1203.1b. (a) In any case in which a defendant is convicted of an
offense and is the subject of any preplea or presentence
investigation and report, whether or not probation supervision is
ordered by the court, and in any case in which a defendant is granted
probation or given a conditional sentence, the probation officer, or
his or her authorized representative, taking into account any amount
that the defendant is ordered to pay in fines, assessments, and
restitution, shall make a determination of the ability of the
defendant to pay all or a portion of the reasonable cost of any
probation supervision or a conditional sentence, of conducting any
preplea investigation and preparing any preplea report pursuant to
Section 1203.7, of conducting any presentence investigation and
preparing any presentence report made pursuant to Section 1203, and
of processing a jurisdictional transfer pursuant to Section 1203.9 or
of processing a request for interstate compact supervision pursuant
to Sections 11175 to 11179, inclusive, whichever applies. The
reasonable cost of these services and of probation supervision or a
conditional sentence shall not exceed the amount determined to be the
actual average cost thereof. A payment schedule for the
reimbursement of the costs of preplea or presentence investigations
based on income shall be developed by the probation department of
each county and approved by the presiding judge of the superior
court. The court shall order the defendant to appear before the
probation officer, or his or her authorized representative, to make
an inquiry into the ability of the defendant to pay all or a portion
of these costs. The probation officer, or his or her authorized
representative, shall determine the amount of payment and the manner
in which the payments shall be made to the county, based upon the
defendant's ability to pay. The probation officer shall inform the
defendant that the defendant is entitled to a hearing, that includes
the right to counsel, in which the court shall make a determination
of the defendant's ability to pay and the payment amount. The
defendant must waive the right to a determination by the court of his
or her ability to pay and the payment amount by a knowing and
intelligent waiver.
(b) When the defendant fails to waive the right provided in
subdivision (a) to a determination by the court of his or her ability
to pay and the payment amount, the probation officer shall refer the
matter to the court for the scheduling of a hearing to determine the
amount of payment and the manner in which the payments shall be
made. The court shall order the defendant to pay the reasonable
costs if it determines that the defendant has the ability to pay
those costs based on the report of the probation officer, or his or
her authorized representative. The following shall apply to a
hearing conducted pursuant to this subdivision:
(1) At the hearing, the defendant shall be entitled to have, but
shall not be limited to, the opportunity to be heard in person, to
present witnesses and other documentary evidence, and to confront and
cross-examine adverse witnesses, and to disclosure of the evidence
against the defendant, and a written statement of the findings of the
court or the probation officer, or his or her authorized
representative.
(2) At the hearing, if the court determines that the defendant has
the ability to pay all or part of the costs, the court shall 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.
(3) At the hearing, in making a determination of whether a
defendant has the ability to pay, the court shall take into account
the amount of any fine imposed upon the defendant and any amount the
defendant has been ordered to pay in restitution.
(4) When the court determines that the defendant's ability to pay
is different from the determination of the probation officer, the
court shall state on the record the reason for its order.
(c) The court may hold additional hearings during the probationary
or conditional sentence period to review the defendant's financial
ability to pay the amount, and in the manner, as set by the probation
officer, or his or her authorized representative, or as set by the
court pursuant to this section.
(d) If practicable, the court shall order or the probation officer
shall set payments pursuant to subdivisions (a) and (b) to be made
on a monthly basis. Execution may be issued on the order issued
pursuant to this section in the same manner as a judgment in a civil
action. The order to pay all or part of the costs shall not be
enforced by contempt.
(e) The term "ability to pay" means the overall capability of the
defendant to reimburse the costs, or a portion of the costs, of
conducting the presentence investigation, preparing the preplea or
presentence report, processing a jurisdictional transfer pursuant to
Section 1203.9, processing requests for interstate compact
supervision pursuant to Sections 11175 to 11179, inclusive, and
probation supervision or conditional sentence, and shall include, but
shall not be limited to, the defendant's:
(1) Present financial position.
(2) Reasonably discernible future financial position. In no event
shall the court consider a period of more than one year from the
date of the hearing for purposes of determining reasonably
discernible future financial position.
(3) Likelihood that the defendant shall be able to obtain
employment within the one-year period from the date of the hearing.
(4) Any other factor or factors that may bear upon the defendant's
financial capability to reimburse the county for the costs.
(f) At any time during the pendency of the judgment rendered
according to the terms of this section, a defendant against whom a
judgment has been rendered may petition the probation officer for a
review of the defendant's financial ability to pay or the rendering
court to modify or vacate its previous judgment on the grounds of a
change of circumstances with regard to the defendant's ability to pay
the judgment. The probation officer and the court shall advise the
defendant of this right at the time of rendering of the terms of
probation or the judgment.
(g) All sums paid by a defendant pursuant to this section shall be
allocated for the operating expenses of the county probation
department.
(h) The board of supervisors in any county, by resolution, may
establish a fee for the processing of payments made in installments
to the probation department pursuant to this section, not to exceed
the administrative and clerical costs of the collection of those
installment payments as determined by the board of supervisors,
except that the fee shall not exceed fifty dollars ($50).
(i) This section shall be operative in a county upon the adoption
of an ordinance to that effect by the board of supervisors.




1203.1bb. (a) The reasonable cost of probation determined under
subdivision (a) of Section 1203.1b shall include the cost of
purchasing and installing an ignition interlock device pursuant to
Section 13386 of the Vehicle Code. Any defendant subject to this
section shall pay the manufacturer of the ignition interlock device
directly for the cost of its purchase and installation, in accordance
with the payment schedule ordered by the court. If practicable, the
court shall order payment to be made to the manufacturer of the
ignition interlock device within a six-month period.
(b) This section does not require any county to pay the costs of
purchasing and installing any ignition interlock devices ordered
pursuant to Section 13386 of the Vehicle Code. The Office of Traffic
Safety shall consult with the presiding judge or his or her designee
in each county to determine an appropriate means, if any, to provide
for installation of ignition interlock devices in cases in which the
defendant has no ability to pay.


1203.1c. (a) In any case in which a defendant is convicted of an
offense and is ordered to serve a period of confinement in a county
jail, city jail, or other local detention facility as a term of
probation or a conditional sentence, the court may, after a hearing,
make a determination of the ability of the defendant to pay all or a
portion of the reasonable costs of such incarceration, including
incarceration pending disposition of the case. The reasonable cost
of such incarceration shall not exceed the amount determined by the
board of supervisors, with respect to the county jail, and by the
city council, with respect to the city jail, to be the actual average
cost thereof on a per-day basis. The court may, in its discretion,
hold additional hearings during the probationary period. The court
may, in its discretion before such hearing, order the defendant to
file a statement setting forth his or her assets, liability and
income, under penalty of perjury, and may order the defendant to
appear before a county officer designated by the board of supervisors
to make an inquiry into the ability of the defendant to pay all or a
portion of such costs. At the hearing, the defendant shall be
entitled to have the opportunity to be heard in person or to be
represented by counsel, to present witnesses and other evidence, and
to confront and cross-examine adverse witnesses. A defendant
represented by counsel appointed by the court in the criminal
proceedings shall be entitled to such representation at any hearing
held pursuant to this section. If the court determines that the
defendant has the ability to pay all or a part of the costs, the
court may set the amount to be reimbursed and order the defendant to
pay that sum to the county, or to the city with respect to
incarceration in the city jail, in the manner in which the court
believes reasonable and compatible with the defendant's financial
ability. Execution may be issued on the order in the same manner as
on a judgment in a civil action. The order to pay all or part of the
costs shall not be enforced by contempt.
If practicable, the court shall order payments to be made on a
monthly basis and the payments shall be made payable to the county
officer designated by the board of supervisors, or to a city officer
designated by the city council with respect to incarceration in the
city jail.
A payment schedule for reimbursement of the costs of incarceration
pursuant to this section based upon income shall be developed by the
county officer designated by the board of supervisors, or by the
city council with respect to incarceration in the city jail, and
approved by the presiding judge of the superior court in the county.

(b) "Ability to pay" means the overall capability of the defendant
to reimburse the costs, or a portion of the costs, of incarceration
and includes, but is not limited to, the defendant's:
(1) Present financial obligations, including family support
obligations, and fines, penalties and other obligations to the court.

(2) Reasonably discernible future financial position. In no event
shall the court consider a period of more than one year from the
date of the hearing for purposes of determining reasonable
discernible future position.
(3) Likelihood that the defendant shall be able to obtain
employment within the one-year period from the date of the hearing.
(4) Any other factor or factors which may bear upon the defendant'
s financial ability to reimburse the county or city for the costs.
(c) All sums paid by a defendant pursuant to this section shall be
deposited in the general fund of the county or city.
(d) This section shall be operative in a county upon the adoption
of an ordinance to that effect by the board of supervisors, and shall
be operative in a city upon the adoption of an ordinance to that
effect by the city council. Such ordinance shall include a
designation of the officer responsible for collection of moneys
ordered pursuant to this section and shall include a determination,
to be reviewed annually, of the average per-day costs of
incarceration in the county jail, city jail, or other local detention
facility.


1203.1d. (a) In determining the amount and manner of disbursement
under an order made pursuant to this code requiring a defendant to
make reparation or restitution to a victim of a crime, to pay any
money as reimbursement for legal assistance provided by the court, to
pay any cost of probation or probation investigation, to pay any
cost of jail or other confinement, or to pay any other reimbursable
costs, the court, after determining the amount of any fine and
penalty assessments, and a county financial evaluation officer when
making a financial evaluation, shall first determine the amount of
restitution to be ordered paid to any victim, and shall then
determine the amount of the other reimbursable costs.
If payment is made in full, the payment shall be apportioned and
disbursed in the amounts ordered by the court.
If reasonable and compatible with the defendant's financial
ability, the court may order payments to be made in installments.
(b) With respect to installment payments and amounts collected by
the Franchise Tax Board pursuant to Section 19280 of the Revenue and
Taxation Code and subsequently transferred by the Controller pursuant
to Section 19282 of the Revenue and Taxation Code, the board of
supervisors shall provide that disbursements be made in the following
order of priority:
(1) Restitution ordered to, or on behalf of, the victim pursuant
to subdivision (f) of Section 1202.4.
(2) The state surcharge ordered pursuant to Section 1465.7.
(3) Any fines, penalty assessments, and restitution fines ordered
pursuant to subdivision (b) of Section 1202.4. Payment of each of
these items shall be made on a proportional basis to the total amount
levied for all of these items.
(4) Any other reimburseable costs.
(c) The board of supervisors shall apply these priorities of
disbursement to orders or parts of orders in cases where defendants
have been ordered to pay more than one court order.
(d) Documentary evidence, such as bills, receipts, repair
estimates, insurance payment statements, payroll stubs, business
records, and similar documents relevant to the value of the stolen or
damaged property, medical expenses, and wages and profits lost shall
not be excluded as hearsay evidence.



1203.1e. (a) In any case in which a defendant is ordered to serve a
period of confinement in a county jail or other local detention
facility, and the defendant is eligible to be released on parole by
the county board of parole commissioners, the court shall, after a
hearing, make a determination of the ability of the person to pay all
or a portion of the reasonable cost of providing parole supervision.
The reasonable cost of those services shall not exceed the amount
determined to be the actual average cost of providing parole
supervision.
(b) If the court determines that the person has the ability to pay
all or part of the costs, the court may set the amount to be
reimbursed and order the person to pay that sum to the county in the
manner in which the court believes reasonable and compatible with the
person's financial ability. In making a determination of whether a
person has the ability to pay, the court shall take into account the
amount of any fine imposed upon the person and any amount the person
has been ordered to pay in restitution.
If practicable, the court shall order payments to be made on a
monthly basis as directed by the court. Execution may be issued on
the order in the same manner as a judgment in a civil action. The
order to pay all or part of the costs shall not be enforced by
contempt.
(c) For the purposes of this section, "ability to pay" means the
overall capability of the person to reimburse the costs, or a portion
of the costs, of providing parole supervision and shall include, but
shall not be limited to, consideration of all of the following
factors:
(1) Present financial position.
(2) Reasonably discernible future financial position. In no event
shall the board consider a period of more than six months from the
date of the hearing for purposes of determining reasonably
discernible future financial position.
(3) Likelihood that the person shall be able to obtain employment
within the six-month period from the date of the hearing.
(4) Any other factor or factors which may bear upon the person's
financial capability to reimburse the county for the costs.
(d) At any time during the pendency of the order made under this
section, a person against whom an order has been made may petition
the court to modify or vacate its previous order on the grounds of a
change of circumstances with regard to the person's ability to pay.
The court shall advise the person of this right at the time of making
the order.
(e) All sums paid by any person pursuant to this section shall be
deposited in the general fund of the county.
(f) The parole of any person shall not be denied or revoked in
whole or in part based upon the inability or failure to pay under
this section.
(g) The county board of parole commissioners shall not have access
to offender financial data prior to the rendering of any parole
decision.
(h) This section shall become operative on January 1, 1995.



1203.1f. If practicable, the court shall consolidate the ability to
pay determination hearings authorized by this code into one
proceeding, and the determination of ability to pay made at the
consolidated hearing may be used for all purposes.




1203.1g. In any case in which a defendant is convicted of ***ual
assault on a minor, and the defendant is eligible for probation, the
court, as a condition of probation, shall order him or her to make
restitution for the costs of medical or psychological treatment
incurred by the victim as a result of the assault and that he or she
seek and maintain employment and apply that portion of his or her
earnings specified by the court toward those costs.
As used in this section, "***ual assault" has the meaning
specified in subdivisions (a) and (b) of Section 11165.1. The
defendant is entitled to a hearing concerning any modification of the
amount of restitution based on the costs of medical and
psychological treatment incurred by the victim subsequent to the
issuance of the order of probation.



1203.1h. (a) In addition to any other costs which a court is
authorized to require a defendant to pay, upon conviction of any
offense involving child abuse or neglect, the court may require that
the defendant pay to a law enforcement agency incurring the cost, the
cost of any medical examinations conducted on the victim in order to
determine the nature or extent of the abuse or neglect. If the
court determines that the defendant has the ability to pay all or
part of the medical examination costs, the court may set the amount
to be reimbursed and order the defendant to pay that sum to the law
enforcement agency 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 fine imposed
upon the defendant and any amount the defendant has been ordered to
pay in restitution.
(b) In addition to any other costs which a court is authorized to
require a defendant to pay, upon conviction of any offense involving
***ual assault or attempted ***ual assault, including child
molestation, the court may require that the defendant pay, to the law
enforcement agency, county, or local governmental agency incurring
the cost, the cost of any medical examinations conducted on the
victim for the collection and preservation of evidence. If the court
determines that the defendant has the ability to pay all or part of
the cost of the medical examination, the court may set the amount to
be reimbursed and order the defendant to pay that sum to the law
enforcement agency, county, or local governmental agency, in the
manner in which the court believes reasonable and compatible with the
defendant's financial ability. In making the determination of
whether a defendant has the ability to pay, the court shall take into
account the amount of any fine imposed upon the defendant and any
amount the defendant has been ordered to pay in restitution. In no
event shall a court penalize an indigent defendant by imposing an
additional period of imprisonment in lieu of payment.



1203.1i. (a) In any case in which a defendant is convicted of a
violation of any building standards adopted by a local entity by
ordinance or resolution, including, but not limited to, local health,
fire, building, or safety ordinances or resolutions, or any other
ordinance or resolution relating to the health and safety of
occupants of buildings, by maintaining a substandard building, as
specified in Section 17920.3 of the Health and Safety Code, the
court, or judge thereof, in making an order granting probation, in
addition to any other orders, may order the defendant placed under
house confinement, or may order the defendant to serve both a term of
imprisonment in the county jail and to be placed under house
confinement.
This section only applies to violations involving a dwelling unit
occupied by persons specified in subdivision (a) of Section 1940 of
the Civil Code who are not excluded by subdivision (b) of that
section.
(b) If the court orders a defendant to serve all or part of his or
her sentence under house confinement, pursuant to subdivision (a),
he or she may also be ordered to pay the cost of having a police
officer or guard stand guard outside the area in which the defendant
has been confined under house confinement if it has been determined
that the defendant is able to pay these costs.
(c) As used in this section, "house confinement" means confinement
to a residence or location designated by the court and specified in
the probation order.


1203.1j. In any case in which the defendant is convicted of
assault, battery, or assault with a deadly weapon on a victim 65
years of age or older, and the defendant knew or reasonably should
have known the elderly status of the victim, the court, as a
condition of probation, shall order the defendant to make
restitution for the costs of medical or psychological treatment
incurred by the victim as a result of the crime, and that the
defendant seek and maintain legitimate employment and apply that
portion of his or her earnings specified by the court toward those
costs.
The defendant shall be entitled to a hearing, concerning any
modification of the amount of restitution, based on the costs of
medical and psychological treatment incurred by the victim subsequent
to the issuance of the order of probation.



1203.1k. For any order of restitution made under Section 1203.1,
the court may order the specific amount of restitution and the manner
in which restitution shall be made to a victim or the Restitution
Fund, to the extent that the victim has received payment from the
Victims of Crime Program, based on the probation officer's report or
it may, with the consent of the defendant, order the probation
officer to set the amount of restitution and the manner in which
restitution shall be made to a victim or the Restitution Fund, to the
extent that the victim has received payment from the Victims of
Crime Program. The defendant shall have the right to a hearing
before the judge to dispute the determinations made by the probation
officer in regard to the amount or manner in which restitution is to
be made to the victim or the Restitution Fund, to the extent that the
victim has received payment from the Victims of Crime Program. If
the court orders restitution to be made to the Restitution Fund, the
court, and not the probation officer, shall determine the amount and
the manner in which restitution is to be made to the Restitution
Fund.



1203.1l. In any case in which, pursuant to Section 1203.1, the
court orders the defendant, as a condition of probation, to make
restitution to a public agency for the costs of an emergency
response, all of the following shall apply:
(a) The probation department shall obtain the actual costs for an
emergency response from a public agency, and shall include the public
agency's documents supporting the actual costs for the emergency
response in the probation department's sentencing report to the
court.
(b) At the sentencing hearing, the defendant has the right to
confront witnesses and present evidence in opposition to the amount
claimed to be due to the public agency for its actual costs for the
emergency response.
(c) The collection of the emergency response costs is the
responsibility of the public agency seeking the reimbursement. If a
defendant fails to make restitution payment when a payment is due,
the public agency shall by verified declaration notify the probation
department of the delinquency. The probation department shall make
an investigation of the delinquency and shall make a report to the
court of the delinquency. The report shall contain any
recommendation that the probation officer finds to be relevant
regarding the delinquency and future payments. The court, after a
hearing on the delinquency, may make modifications to the existing
order in the furtherance of justice.
(d) The defendant has the right to petition the court for a
modification of the emergency response reimbursement order whenever
he or she has sustained a substantial change in economic
circumstances. The defendant has a right to a hearing on the
proposed modification, and the court may make any modification to the
existing order in the furtherance of justice.



1203.1m. (a) If a defendant is convicted of an offense and ordered
to serve a period of imprisonment in the state prison, the court may,
after a hearing, make a determination of the ability of the
defendant to pay all or a portion of the reasonable costs of the
imprisonment. The reasonable costs of imprisonment shall not exceed
the amount determined by the Director of Corrections to be the actual
average cost of imprisonment in the state prison on a per-day basis.

(b) The court may, in its discretion before any hearing, order the
defendant to file a statement setting forth his or her assets,
liability, and income, under penalty of perjury. At the hearing, the
defendant shall have the opportunity to be heard in person or
through counsel, to present witnesses and other evidence, and to
confront and cross-examine adverse witnesses. A defendant who is
represented by counsel appointed by the court in the criminal
proceedings shall be entitled to representation at any hearing held
pursuant to this section. If the court determines that the defendant
has the ability to pay all or a part of the costs, the court shall
set the amount to be reimbursed and order the defendant to pay that
sum to the Department of Corrections for deposit in the General Fund
in the manner in which the court believes reasonable and compatible
with the defendant's financial ability. Execution may be issued on
the order in the same manner as on a judgment in a civil action. The
order to pay all or part of the costs shall not be enforced by
contempt.
(c) At any time during the pendency of an order made under this
section, a person against whom the order has been made may petition
the court to modify or vacate its previous order on the grounds of a
change of circumstances with regard to the person's ability to pay.
The court shall advise the person of this right at the time of making
the order.
(d) If the amount paid by the defendant for imprisonment exceeds
the actual average cost of the term of imprisonment actually served
by the defendant, the amount paid by the defendant in excess of the
actual average cost shall be returned to the defendant within 60 days
of his or her release from the state prison.
(e) For the purposes of this section, in determining a defendant's
ability to pay, the court shall consider the overall ability of the
defendant to reimburse all or a portion of the costs of imprisonment
in light of the defendant's present and foreseeable financial
obligations, including family support obligations, restitution to the
victim, and fines, penalties, and other obligations to the court,
all of which shall take precedence over a reimbursement order made
pursuant to this section.
(f) For the purposes of this section, in determining a defendant's
ability to pay, the court shall not consider the following:
(1) The personal residence of the defendant, if any, up to a
maximum amount of the median home sales price in the county in which
the residence is located.
(2) The personal motor vehicle of the defendant, if any, up to a
maximum amount of ten thousand dollars ($10,000).
(3) Any other assets of the defendant up to a maximum amount of
the median annual income in California.



1203.2. (a) At any time during the probationary period of a person
released on probation under the care of a probation officer pursuant
to this chapter, or of a person released on conditional sentence or
summary probation not under the care of a probation officer, if any
probation officer or peace officer has probable cause to believe that
the probationer is violating any term or condition of his or her
probation or conditional sentence, the officer may, without warrant
or other process and at any time until the final disposition of the
case, rearrest the person and bring him or her before the court or
the court may, in its discretion, issue a warrant for his or her
rearrest. Upon such rearrest, or upon the issuance of a warrant for
rearrest the court may revoke and terminate such probation if the
interests of justice so require and the court, in its judgment, has
reason to believe from the report of the probation officer or
otherwise that the person has violated any of the conditions of his
or her probation, has become abandoned to improper associates or a
vicious life, or has subsequently committed other offenses,
regardless whether he or she has been prosecuted for such offenses.
However, probation shall not be revoked for failure of a person to
make restitution pursuant to Section 1203.04 as a condition of
probation unless the court determines that the defendant has
willfully failed to pay and has the ability to pay. Restitution
shall be consistent with a person's ability to pay. The revocation,
summary or otherwise, shall serve to toll the running of the
probationary period.
(b) Upon its own motion or upon the petition of the probationer,
probation officer or the district attorney of the county in which the
probationer is supervised, the court may modify, revoke, or
terminate the probation of the probationer pursuant to this
subdivision. The court shall give notice of its motion, and the
probation officer or the district attorney shall give notice of his
or her petition to the probationer, his or her attorney of record,
and the district attorney or the probation officer, as the case may
be. The probationer shall give notice of his or her petition to the
probation officer and notice of any motion or petition shall be given
to the district attorney in all cases. The court shall refer its
motion or the petition to the probation officer. After the receipt
of a written report from the probation officer, the court shall read
and consider the report and either its motion or the petition and
may modify, revoke, or terminate the probation of the probationer
upon the grounds set forth in subdivision (a) if the interests of
justice so require.
The notice required by this subdivision may be given to the
probationer upon his or her first court appearance in the proceeding.
Upon the agreement by the probationer in writing to the specific
terms of a modification or termination of a specific term of
probation, any requirement that the probationer make a personal
appearance in court for the purpose of a modification or termination
shall be waived. Prior to the modification or termination and waiver
of appearance, the probationer shall be informed of his or her right
to consult with counsel, and if indigent the right to secure court
appointed counsel. If the probationer waives his or her right to
counsel a written waiver shall be required. If probationer consults
with counsel and thereafter agrees to a modification or termination
of the term of probation and waiver of personal appearance, the
agreement shall be signed by counsel showing approval for the
modification or termination and waiver.
(c) Upon any revocation and termination of probation the court
may, if the sentence has been suspended, pronounce judgment for any
time within the longest period for which the person might have been
sentenced. However, if the judgment has been pronounced and the
execution thereof has been suspended, the court may revoke the
suspension and order that the judgment shall be in full force and
effect. In either case, the person shall be delivered over to the
proper officer to serve his or her sentence, less any credits herein
provided for.
(d) In any case of revocation and termination of probation,
including, but not limited to, cases in which the judgment has been
pronounced and the execution thereof has been suspended, upon the
revocation and termination, the court may, in lieu of any other
sentence, commit the person to the Department of the Youth Authority
if he or she is otherwise eligible for such commitment.
(e) If probation has been revoked before the judgment has been
pronounced, the order revoking probation may be set aside for good
cause upon motion made before pronouncement of judgment. If
probation has been revoked after the judgment has been pronounced,
the judgment and the order which revoked the probation may be set
aside for good cause within 30 days after the court has notice that
the execution of the sentence has commenced. If an order setting
aside the judgment, the revocation of probation, or both is made
after the expiration of the probationary period, the court may again
place the person on probation for that period and with those terms
and conditions as it could have done immediately following
conviction.


1203.2a. If any defendant who has been released on probation is
committed to a prison in this state or another state for another
offense, the court which released him or her on probation shall have
jurisdiction to impose sentence, if no sentence has previously been
imposed for the offense for which he or she was granted probation, in
the absence of the defendant, on the request of the defendant made
through his or her counsel, or by himself or herself in writing, if
such writing is signed in the presence of the warden of the prison in
which he or she is confined or the duly authorized representative of
the warden, and the warden or his or her representative attests both
that the defendant has made and signed such request and that he or
she states that he or she wishes the court to impose sentence in the
case in which he or she was released on probation, in his or her
absence and without him or her being represented by counsel.
The probation officer may, upon learning of the defendant's
imprisonment, and must within 30 days after being notified in writing
by the defendant or his or her counsel, or the warden or duly
authorized representative of the prison in which the defendant is
confined, report such commitment to the court which released him or
her on probation.
Upon being informed by the probation officer of the defendant's
confinement, or upon receipt from the warden or duly authorized
representative of any prison in this state or another state of a
certificate showing that the defendant is confined in prison, the
court shall issue its commitment if sentence has previously been
imposed. If sentence has not been previously imposed and if the
defendant has requested the court through counsel or in writing in
the manner herein provided to impose sentence in the case in which he
or she was released on probation in his or her absence and without
the presence of counsel to represent him or her, the court shall
impose sentence and issue its commitment, or shall make other final
order terminating its jurisdiction over the defendant in the case in
which the order of probation was made. If the case is one in which
sentence has previously been imposed, the court shall be deprived of
jurisdiction over defendant if it does not issue its commitment or
make other final order terminating its jurisdiction over defendant in
the case within 60 days after being notified of the confinement. If
the case is one in which sentence has not previously been imposed,
the court is deprived of jurisdiction over defendant if it does not
impose sentence and issue its commitment or make other final order
terminating its jurisdiction over defendant in the case within 30
days after defendant has, in the manner prescribed by this section,
requested imposition of sentence.
Upon imposition of sentence hereunder the commitment shall be
dated as of the date upon which probation was granted. If the
defendant is then in a state prison for an offense committed
subsequent to the one upon which he or she has been on probation, the
term of imprisonment of such defendant under a commitment issued
hereunder shall commence upon the date upon which defendant was
delivered to prison under commitment for his or her subsequent
offense. Any terms ordered to be served consecutively shall be
served as otherwise provided by law.
In the event the probation officer fails to report such commitment
to the court or the court fails to impose sentence as herein
provided, the court shall be deprived thereafter of all jurisdiction
it may have retained in the granting of probation in said case.




1203.3. (a) The court shall have authority at any time during the
term of probation to revoke, modify, or change its order of
suspension of imposition or execution of sentence. The court may at
any time when the ends of justice will be subserved thereby, and when
the good conduct and reform of the person so held on probation shall
warrant it, terminate the period of probation, and discharge the
person so held.
(b) The exercise of the court's authority in subdivision (a) to
revoke, modify, change, or terminate probation is subject to the
following:
(1) Before any sentence or term or condition of probation is
modified, a hearing shall be held in open court before the judge.
The prosecuting attorney shall be given a two-day written notice and
an opportunity to be heard on the matter, except that, as to
modifying or terminating a protective order in a case involving
domestic violence, as defined in Section 6211 of the Family Code, the
prosecuting attorney shall be given a five-day written notice and an
opportunity to be heard.
(A) If the sentence or term or condition of probation is modified
pursuant to this section, the judge shall state the reasons for that
modification on the record.
(B) As used in this section, modification of sentence shall
include reducing a felony to a misdemeanor.
(2) No order shall be made without written notice first given by
the court or the clerk thereof to the proper probation officer of the
intention to revoke, modify, or change its order.
(3) In all cases, if the court has not seen fit to revoke the
order of probation and impose sentence or pronounce judgment, the
defendant shall at the end of the term of probation or any extension
thereof, be by the court discharged subject to the provisions of
these sections.
(4) The court may modify the time and manner of the term of
probation for purposes of measuring the timely payment of restitution
obligations or the good conduct and reform of the defendant while on
probation. The court shall not modify the dollar amount of the
restitution obligations due to the good conduct and reform of the
defendant, absent compelling and extraordinary reasons, nor shall the
court limit the ability of payees to enforce the obligations in the
manner of judgments in civil actions.
(5) Nothing in this section shall be construed to prohibit the
court from modifying the dollar amount of a restitution order
pursuant to subdivision (f) of Section 1202.4 at any time during the
term of the probation.
(6) The court may limit or terminate a protective order that is a
condition of probation in a case involving domestic violence, as
defined in Section 6211 of the Family Code. In determining whether
to limit or terminate the protective order, the court shall consider
if there has been any material change in circumstances since the
crime for which the order was issued, and any issue that relates to
whether there exists good cause for the change, including, but not
limited to, consideration of all of the following:
(A) Whether the probationer has accepted responsibility for the
abusive behavior perpetrated against the victim.
(B) Whether the probationer is currently attending and actively
participating in counseling sessions.
(C) Whether the probationer has completed parenting counseling, or
attended alcoholics or narcotics counseling.
(D) Whether the probationer has moved from the state, or is
incarcerated.
(E) Whether the probationer is still cohabiting, or intends to
cohabit, with any subject of the order.
(F) Whether the defendant has performed well on probation,
including consideration of any progress reports.
(G) Whether the victim desires the change, and if so, the victim's
reasons, whether the victim has consulted a victim advocate, and
whether the victim has prepared a safety plan and has access to local
resources.
(H) Whether the change will impact any children involved,
including consideration of any child protective services information.

(I) Whether the ends of justice would be served by limiting or
terminating the order.
(c) If a probationer is ordered to serve time in jail, and the
probationer escapes while serving that time, the probation is revoked
as a matter of law on the day of the escape.
(d) If probation is revoked pursuant to subdivision (c), upon
taking the probationer into custody, the probationer shall be
accorded a hearing or hearings consistent with the holding in the
case of People v. Vickers (1972) 8 Cal.3d 451. The purpose of that
hearing or hearings is not to revoke probation, as the revocation has
occurred as a matter of law in accordance with subdivision (c), but
rather to afford the defendant an opportunity to require the
prosecution to establish that the alleged violation did in fact occur
and to justify the revocation.
(e) This section does not apply to cases covered by Section
1203.2.



1203.4. (a) In any case in which a defendant has fulfilled the
conditions of probation for the entire period of probation, or has
been discharged prior to the termination of the period of probation,
or in any other case in which a court, in its discretion and the
interests of justice, determines that a defendant should be granted
the relief available under this section, the defendant shall, at any
time after the termination of the period of probation, if he or she
is not then serving a sentence for any offense, on probation for any
offense, or charged with the commission of any offense, be permitted
by the court to withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he or she has been
convicted after a plea of not guilty, the court shall set aside the
verdict of guilty; and, in either case, the court shall thereupon
dismiss the accusations or information against the defendant and
except as noted below, he or she shall thereafter be released from
all penalties and disabilities resulting from the offense of which he
or she has been convicted, except as provided in Section 13555 of
the Vehicle Code. The probationer shall be informed, in his or her
probation papers, of this right and privilege and his or her right,
if any, to petition for a certificate of rehabilitation and pardon.
The probationer may make the application and change of plea in person
or by attorney, or by the probation officer authorized in writing.
However, in any subsequent prosecution of the defendant for any other
offense, the prior conviction may be pleaded and proved and shall
have the same effect as if probation had not been granted or the
accusation or information dismissed. The order shall state, and the
probationer shall be informed, that the order does not relieve him or
her of the obligation to disclose the conviction in response to any
direct question contained in any questionnaire or application for
public office, for licensure by any state or local agency, or for
contracting with the California State Lottery.
Dismissal of an accusation or information pursuant to this section
does not permit a person to own, possess, or have in his or her
custody or control any firearm or prevent his or her conviction under
Section 12021.
This subdivision shall apply to all applications for relief under
this section which are filed on or after November 23, 1970.
(b) Subdivision (a) of this section does not apply to any
misdemeanor that is within the provisions of subdivision (b) of
Section 42001 of the Vehicle Code, to any violation of subdivision
(c) of Section 286, Section 288, subdivision (c) of Section 288a,
Section 288.5, or subdivision (j) of Section 289, any felony
conviction pursuant to subdivision (d) of Section 261.5, or to any
infraction.
(c) (1) Except as provided in paragraph (2), subdivision (a) does
not apply to a person who receives a notice to appear or is otherwise
charged with a violation of an offense described in subdivisions (a)
to (e), inclusive, of Section 12810 of the Vehicle Code.
(2) If a defendant who was convicted of a violation listed in
paragraph (1) petitions the court, the court in its discretion and in
the interests of justice, may order the relief provided pursuant to
subdivision (a) to that defendant.
(d) A person who petitions for a change of plea or setting aside
of a verdict under this section may be required to reimburse the
court for the actual costs of services rendered, whether or not the
petition is granted and the records are sealed or expunged, at a rate
to be determined by the court not to exceed one hundred twenty
dollars ($120), and to reimburse the county for the actual costs of
services rendered, whether or not the petition is granted and the
records are sealed or expunged, at a rate to be determined by the
county board of supervisors not to exceed one hundred twenty dollars
($120), and to reimburse any city for the actual costs of services
rendered, whether or not the petition is granted and the records are
sealed or expunged, at a rate to be determined by the city council
not to exceed one hundred twenty dollars ($120). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in any case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the costs for services established
pursuant to this subdivision.
(e) Relief shall not be granted under this section unless the
prosecuting attorney has been given 15 days' notice of the petition
for relief. The probation officer shall notify the prosecuting
attorney when a petition is filed, pursuant to this section.
It shall be presumed that the prosecuting attorney has received
notice if proof of service is filed with the court.
(f) If, after receiving notice pursuant to subdivision (e), the
prosecuting attorney fails to appear and object to a petition for
dismissal, the prosecuting attorney may not move to set aside or
otherwise appeal the grant of that petition.
(g) Notwithstanding the above provisions or any other provision of
law, the Governor shall have the right to pardon a person convicted
of a violation of subdivision (c) of Section 286, Section 288,
subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of
Section 289, if there are extraordinary circumstances.



1203.4a. (a) Every defendant convicted of a misdemeanor and not
granted probation shall, at any time after the lapse of one year from
the date of pronouncement of judgment, if he or she has fully
complied with and performed the sentence of the court, is not then
serving a sentence for any offense and is not under charge of
commission of any crime and has, since the pronouncement of judgment,
lived an honest and upright life and has conformed to and obeyed the
laws of the land, be permitted by the court to withdraw his or her
plea of guilty or nolo contendere and enter a plea of not guilty; or
if he or she has been convicted after a plea of not guilty, the court
shall set aside the verdict of guilty; and in either case the court
shall thereupon dismiss the accusatory pleading against the
defendant, who shall thereafter be released from all penalties and
disabilities resulting from the offense of which he or she has been
convicted, except as provided in Section 12021.1 of this code or
Section 13555 of the Vehicle Code. The defendant shall be informed of
the provisions of this section, either orally or in writing, at the
time he or she is sentenced. The defendant may make an application
and change of plea in person or by attorney, or by the probation
officer authorized in writing; provided, that in any subsequent
prosecution of the defendant for any other offense, the prior
conviction may be pleaded and proved and shall have the same effect
as if relief had not been granted pursuant to this section.
This subdivision applies to convictions which occurred before as
well as those occurring after, the effective date of this section.
(b) Subdivision (a) does not apply to any misdemeanor falling
within the provisions of subdivision (b) of Section 42001 of the
Vehicle Code, or to any infraction.
(c) A person who petitions for a dismissal of a charge under this
section may be required to reimburse the county and the court for the
cost of services rendered at a rate to be determined by the county
board of supervisors for the county and by the court for the court,
not to exceed sixty dollars ($60), and to reimburse any city for the
cost of services rendered at a rate to be determined by the city
council not to exceed sixty dollars ($60). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in any case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the cost for services established
pursuant to this subdivision.
(d) Any determination of amount made by a court under this section
shall be valid only if either (1) made under procedures adopted by
the Judicial Council or (2) approved by the Judicial Council.



1203.45. (a) In a case in which a person was under the age of 18
years at the time of commission of a misdemeanor and is eligible for,
or has previously received, the relief provided by Section 1203.4 or
1203.4a, that person, in a proceeding under Section 1203.4 or
1203.4a, or a separate proceeding, may petition the court for an
order sealing the record of conviction and other official records in
the case, including records of arrests resulting in the criminal
proceeding and records relating to other offenses charged in the
accusatory pleading, whether defendant was acquitted or charges were
dismissed. If the court finds that the person was under the age of 18
at the time of the commission of the misdemeanor, and is eligible
for relief under Section 1203.4 or 1203.4a or has previously received
that relief, it may issue its order granting the relief prayed for.
Thereafter the conviction, arrest, or other proceeding shall be
deemed not to have occurred, and the petitioner may answer
accordingly any question relating to their occurrence.
(b) This section applies to convictions that occurred before, as
well as those that occur after, the effective date of this section.
(c) This section shall not apply to offenses for which
registration is required under Section 290, to violations of Division
10 (commencing with Section 11000) of the Health and Safety Code, or
to misdemeanor violations of the Vehicle Code relating to operation
of a vehicle or of a local ordinance relating to operation, standing,
stopping, or parking of a motor vehicle.
(d) This section does not apply to a person convicted of more than
one offense, whether the second or additional convictions occurred
in the same action in which the conviction as to which relief is
sought occurred or in another action, except in the following cases:

(1) One of the offenses includes the other or others.
(2) The other conviction or convictions were for the following:
(A) Misdemeanor violations of Chapters 1 (commencing with Section
21000) to 9 (commencing with Section 22500), inclusive, Chapter 12
(commencing with Section 23100), or Chapter 13 (commencing with
Section 23250) of Division 11 of the Vehicle Code, other than Section
23103, 23104, 23105, 23152, 23153, or 23220.
(B) Violation of a local ordinance relating to the operation,
stopping, standing, or parking of a motor vehicle.
(3) The other conviction or convictions consisted of any
combination of paragraphs (1) and (2).
(e) This section shall apply in a case in which a person was under
the age of 21 at the time of the commission of an offense as to
which this section is made applicable if that offense was committed
prior to March 7, 1973.
(f) In an action or proceeding based upon defamation, a court,
upon a showing of good cause, may order the records sealed under this
section to be opened and admitted into evidence. The records shall
be confidential and shall be available for inspection only by the
court, jury, parties, counsel for the parties, and any other person
who is authorized by the court to inspect them. Upon the judgment in
the action or proceeding becoming final, the court shall order the
records sealed.
(g) A person who petitions for an order sealing a record under
this section may be required to reimburse the court for the actual
cost of services rendered, whether or not the petition is granted and
the records are sealed or expunged, at a rate to be determined by
the court not to exceed one hundred twenty dollars ($120), and to
reimburse the county for the actual cost of services rendered,
whether or not the petition is granted and the records are sealed or
expunged, at a rate to be determined by the county board of
supervisors not to exceed one hundred twenty dollars ($120), and to
reimburse any city for the actual cost of services rendered, whether
or not the petition is granted and the records are sealed or
expunged, at a rate to be determined by the city council not to
exceed one hundred twenty dollars ($120). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in a case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the cost for services established
pursuant to this subdivision.



1203.5. The offices of adult probation officer, assistant adult
probation officer, and deputy adult probation officer are hereby
created. The probation officers, assistant probation officers, and
deputy probation officers appointed in accordance with Chapter 2
(commencing with Section 200) of Division 2 of Part 1 of the Welfare
and Institutions Code shall be ex officio adult probation officers,
assistant adult probation officers, and deputy adult probation
officers except in any county or city and county whose charter
provides for the separate office of adult probation officer. When
the separate office of adult probation officer has been established
he or she shall perform all the duties of probation officers except
for matters under the jurisdiction of the juvenile court. Any adult
probation officer may accept appointment as member of the Board of
Corrections and serve in that capacity in addition to his or her
duties as adult probation officer and may receive the per diem
allowance authorized in Section 6025.1.


1203.6. The adult probation officer shall be appointed and may be
removed for good cause in a county with two superior court judges, by
the presiding judge. In the case of a superior court of more than
two judges, a majority of the judges shall make the appointment, and
may effect removal.
The salary of the probation officer shall be established by the
board of supervisors.
The adult probation officer shall appoint and may remove all
assistants, deputies and other persons employed in the officer's
department, and their compensation shall be established, according to
the merit system or civil service system provisions of the county.
If no merit system or civil service system exists in the county, the
board of supervisors shall provide for appointment, removal, and
compensation of such personnel.
This section is applicable in a charter county whose charter
establishes the office of adult probation officer and provides that
the officer shall be appointed in accordance with general law subject
to the merit system provisions of the charter.



1203.7. (a) Either at the time of the arrest for a crime of any
person over 16 years of age, or at the time of the plea or verdict of
guilty, the probation officer of the county of the jurisdiction of
the crime shall, when so directed by the court, inquire into the
antecedents, character, history, family environment and offense of
that person. The probation officer shall report that information to
the court and file a written report in the records of the court. The
report shall contain his or her recommendation for or against the
release of the person on probation.
(b) If that person is released on probation and committed to the
care of the probation officer, the officer shall keep a complete and
accurate record of the history of the case in court and of the name
of the probation officer, and his or her acts in connection with the
case. This information shall include the age, ***, nativity,
residence, education, habits of temperance, marital status, and the
conduct, employment, occupation, parents' occupation, and the
condition of the person committed to his or her care during the term
of probation, and the result of probation. This record shall
constitute a part of the records of the court and shall at all times
be open to the inspection of the court or any person appointed by the
court for that purpose, as well as of all magistrates and the chief
of police or other head of the police, unless otherwise ordered by
the court.
(c) Five years after termination of probation in any case subject
to this section, the probation officer may destroy any records and
papers in his or her possession relating to the case.
(d) The probation officer shall furnish to each person released on
probation and committed to his or her care, a written statement of
the terms and conditions of probation, and shall report to the court
or judge appointing him or her, any violation or breach of the terms
and conditions imposed by the court on the person placed in his or
her care.



1203.71. Any of the duties of the probation officer may be
performed by a deputy probation officer and shall be performed by him
or her whenever detailed to perform those by the probation officer;
and it shall be the duty of the probation officer to see that the
deputy probation officer performs his or her duties.
The probation officer and each deputy probation officer shall
have, as to the person so committed to the care of the probation
officer or deputy probation officer, the powers of a peace officer.
The probation officers and deputy probation officers shall serve
as such probation officers in all courts having original jurisdiction
of criminal actions in this state.



1203.72. Except as provided in subparagraph (D) of paragraph (2) of
subdivision (b) of Section 1203, no court shall pronounce judgment
upon any defendant, as to whom the court has requested a probation
report pursuant to Section 1203.7, unless a copy of the probation
report has been made available to the court, the prosecuting
attorney, and the defendant or his or her attorney, at least two days
or, upon the request of the defendant, five days prior to the time
fixed by the court for consideration of the report with respect to
pronouncement of judgment. The report shall be filed with the clerk
of the court as a record in the case at the time the court considers
the report.
If the defendant is not represented by an attorney, the court,
upon ordering the probation report, shall also order the probation
officer who prepares the report to discuss its contents with the
defendant.



1203.73. The probation officers and deputy probation officers in
all counties of the state shall be allowed those necessary incidental
expenses incurred in the performance of their duties as required by
any law of this state, as may be authorized by a judge of the
superior court; and the same shall be a charge upon the county in
which the court appointing them has jurisdiction and shall be paid
out of the county treasury upon a warrant issued therefor by the
county auditor upon the order of the court; provided, however, that
in counties in which the probation officer is appointed by the board
of supervisors, the expenses shall be authorized by the probation
officer and claims therefor shall be audited, allowed and paid in the
same manner as other county claims.



1203.74. Upon a determination that, in his or her opinion, staff
and financial resources available to him or her are insufficient to
meet his or her statutory or court ordered responsibilities, the
probation officer shall immediately notify the presiding judge of the
superior court and the board of supervisors of the county, or city
and county, in writing. The notification shall explain which
responsibilities cannot be met and what resources are necessary in
order that statutory or court ordered responsibilities can be
properly discharged.


1203.8. (a) A county may develop a multiagency plan to prepare and
enhance nonviolent felony offenders' successful reentry into the
community. The plan shall be developed by, and have the concurrence
of, the presiding judge, the chief probation officer, the district
attorney, the local custodial agency, and the public defender, or
their designees, and shall be submitted to the board of supervisors
for its approval. The plan shall provide that when a report prepared
pursuant to Section 1203.10 recommends a state prison commitment, the
report shall also include, but not be limited to, the offender's
treatment, literacy, and vocational needs. Any sentence imposed
pursuant to this section shall include a recommendation for
completion while in state prison, all relevant programs to address
those needs identified in the assessment.
(b) The Department of Corrections and Rehabilitation is authorized
to enter into an agreement with up to three counties to implement
subdivision (a) and to provide funding for the purpose of the
probation department carrying out the assessment. The Department of
Corrections and Rehabilitation, to the extent feasible, shall provide
to the offender all programs pursuant to the court's recommendation.



1203.9. (a) Whenever any person is released upon probation, the
case may be transferred to any court of the same rank in any other
county in which the person resides permanently, meaning the stated
intention to remain for the duration of probation; provided that the
court of the receiving county shall first be given an opportunity to
determine whether the person does reside in and has stated the
intention to remain in that county for the duration of probation. If
the court finds that the person does not reside in or has not stated
an intention to remain in that county for the duration of probation,
it may refuse to accept the transfer. The court and the probation
department shall give the matter of investigating those transfers
precedence over all actions or proceedings therein, except actions or
proceedings to which special precedence is given by law, to the end
that all those transfers shall be completed expeditiously.
(b) Except as provided in subdivision (c), if the court of the
receiving county finds that the person does permanently reside in or
has permanently moved to the county, it may, in its discretion,
either accept the entire jurisdiction over the case, or assume
supervision of the probationer on a courtesy basis.
(c) Whenever a person is granted probation under Section 1210.1,
the sentencing court may, in its discretion, transfer jurisdiction of
the entire case, upon a finding by the receiving court of the person'
s permanent residency in the receiving county.
(d) The order of transfer shall contain an order committing the
probationer to the care and custody of the probation officer of the
receiving county and an order for reimbursement of reasonable costs
for processing the transfer to be paid to the sending county in
accordance with Section 1203.1b. A copy of the orders and probation
reports shall be transmitted to the court and probation officer of
the receiving county within two weeks of the finding by that county
that the person does permanently reside in or has permanently moved
to that county, and thereafter the receiving court shall have entire
jurisdiction over the case, with the like power to again request
transfer of the case whenever it seems proper.



1203.10. At the time of the plea or verdict of guilty of any person
over 18 years of age, the probation officer of the county of the
jurisdiction of said criminal shall, when so directed by the court,
inquire into the antecedents, character, history, family environment,
and offense of such person, and must report the same to the court
and file his report in writing in the records of such court. When
directed, his report shall contain his recommendation for or against
the release for such person on probation. If any such person shall
be released on probation and committed to the care of the probation
officer, such officer shall keep a complete and accurate record in
suitable books or other form in writing of the history of the case in
court, and of the name of the probation officer, and his act in
connection with said case; also the age, ***, nativity, residence,
education, habit of temperance, whether married or single, and the
conduct, employment and occupation, and parents' occupation, and
condition of such person committed to his care during the term of
such probation and the result of such probation. Such record of such
probation officer shall be and constitute a part of the records of
the court, and shall at all times be open to the inspection of the
court or of any person appointed by the court for that purpose, as
well as of all magistrates, and the chief of police, or other heads
of the police, unless otherwise ordered by the court. Said books of
records shall be furnished for the use of said probation officer of
said county, and shall be paid for out of the county treasury.
Five years after termination of probation in any case subject to
this section, the probation officer may destroy any records and
papers in his possession relating to such case.



1203.11. A probation or parole officer or parole agent of the
Department of Corrections may serve any process regarding the
issuance of a temporary restraining order or other protective order
against a person committed to the care of the probation or parole
officer or parole agent when the person appears for an appointment
with the probation or parole officer or parole agent at their office.



1203.12. The probation officer shall furnish to each person who has
been released on probation, and committed to his care, a written
statement of the terms and conditions of his probation unless such a
statement has been furnished by the court, and shall report to the
court, or judge, releasing such person on probation, any violation or
breach of the terms and conditions imposed by such court on the
person placed in his care.



1203.13. The probation officer of any county may establish, or
assist in the establishment of, any public council or committee
having as its object the prevention of crime, and may cooperate with
or participate in the work of any such councils or committees for the
purpose of preventing or decreasing crime, including the improving
of recreational, health, and other conditions in the community.



1203.14. Notwithstanding any other provision of law, probation
departments may engage in activities designed to prevent adult
delinquency. These activities include rendering direct and indirect
services to persons in the community. Probation departments shall
not be limited to providing services only to those persons on
probation being supervised under Section 1203.10, but may provide
services to any adults in the community.



1203a. In all counties and cities and counties the courts therein,
having jurisdiction to impose punishment in misdemeanor cases, shall
have the power to refer cases, demand reports and to do and require
all things necessary to carry out the purposes of Section 1203 of
this code insofar as they are in their nature applicable to
misdemeanors. Any such court shall have power to suspend the
imposing or the execution of the sentence, and to make and enforce
the terms of probation for a period not to exceed three years;
provided, that when the maximum sentence provided by law exceeds
three years imprisonment, the period during which sentence may be
suspended and terms of probation enforced may be for a longer period
than three years, but in such instance, not to exceed the maximum
time for which sentence of imprisonment might be pronounced.



1203b. All courts shall have power to suspend the imposition or
execution of a sentence and grant a conditional sentence in
misdemeanor and infraction cases without referring such cases to the
probation officer. Unless otherwise ordered by the court, persons
granted a conditional sentence in the community shall report only to
the court and the probation officer shall not be responsible in any
way for supervising or accounting for such persons.



1203c. (a) (1) Notwithstanding any other provisions of law,
whenever a person is committed to an institution under the
jurisdiction of the Department of Corrections and Rehabilitation,
whether probation has been applied for or not, or granted and
revoked, it shall be the duty of the probation officer of the county
from which the person is committed to send to the Department of
Corrections and Rehabilitation a report of the circumstances
surrounding the offense and the prior record and history of the
defendant, as may be required by the Secretary of the Department of
Corrections and Rehabilitation.
(2) If the person is being committed to the jurisdiction of the
department for a conviction of an offense that requires him or her to
register as a *** offender pursuant to Section 290, the probation
officer shall include in the report the results of the
State-Authorized Risk Assessment Tool for *** Offenders (SARATSO)
administered pursuant to Sections 290.04 to 290.06, inclusive, if
applicable.
(b) These reports shall accompany the commitment papers. The
reports shall be prepared in the form prescribed by the administrator
following consultation with the Corrections Standards Authority,
except that if the defendant is ineligible for probation, a report of
the circumstances surrounding the offense and the prior record and
history of the defendant, prepared by the probation officer on
request of the court and filed with the court before sentence, shall
be deemed to meet the requirements of paragraph (1) of subdivision
(a).
(c) In order to allow the probation officer an opportunity to
interview, for the purpose of preparation of these reports, the
defendant shall be held in the county jail for 48 hours, excluding
Saturdays, Sundays and holidays, subsequent to imposition of sentence
and prior to delivery to the custody of the Secretary of the
Department of Corrections and Rehabilitation, unless the probation
officer has indicated the need for a different period of time.




1203d. No court shall pronounce judgment upon any defendant, as to
whom the court has requested a probation report pursuant to Section
1203.10, unless a copy of the probation report has been made
available to the court, the prosecuting attorney, and the defendant
or his or her attorney, at least two days or, upon the request of the
defendant, five days prior to the time fixed by the court for
consideration of the report with respect to pronouncement of
judgment. The report shall be filed with the clerk of the court as a
record in the case at the time the court considers the report.
If the defendant is not represented by an attorney, the court,
upon ordering the probation report, shall also order the probation
officer who prepares the report to discuss its contents with the
defendant. Any waiver of the preparation of the report or the
consideration of the report by the court shall be as provided in
subdivision (b) of Section 1203, with respect to cases to which that
subdivision applies.
The sentence recommendations of the report shall also be made
available to the victim of the crime, or the victim's next of kin if
the victim has died, through the district attorney's office. The
victim or the victim's next of kin shall be informed of the
availability of this information through the notice provided pursuant
to Section 1191.1.



1203e. (a) Commencing June 1, 2010, the probation department shall
compile a Facts of Offense Sheet for every person convicted of an
offense that requires him or her to register as a *** offender
pursuant to Section 290 who is referred to the department pursuant to
Section 1203. The Facts of Offense Sheet shall contain the following
information concerning the offender: name; CII number; criminal
history, including all arrests and convictions for any registerable
*** offenses or any violent offense; circumstances of the offense for
which registration is required, including, but not limited to,
weapons used and victim pattern; and results of the State-Authorized
Risk Assessment Tool for *** Offenders (SARATSO), as set forth in
Section 290.04, if required. The Facts of Offense Sheet shall be
included in the probation officer's report.
(b) The defendant may move the court to correct the Facts of
Offense Sheet. Any corrections to that sheet shall be made consistent
with procedures set forth in Section 1204.
(c) The probation officer shall send a copy of the Facts of
Offense Sheet to the Department of Justice *** Offender Tracking
Program within 30 days of the person's *** offense conviction, and it
shall be made part of the registered *** offender's file maintained
by the *** Offender Tracking Program. The Facts of Offense Sheet
shall thereafter be made available to law enforcement by the
Department of Justice, which shall post it with the offender's record
on the Department of Justice Internet Web site maintained pursuant
to Section 290.46, and shall be accessible only to law enforcement.
(d) If the registered *** offender is sentenced to a period of
incarceration, at either the state prison or a county jail, the Facts
of Offense Sheet shall be sent by the Department of Corrections and
Rehabilitation or the county sheriff to the registering law
enforcement agency in the jurisdiction where the registered ***
offender will be paroled or will live on release, within three days
of the person's release. If the registered *** offender is committed
to the Department of Mental Health, the Facts of Offense Sheet shall
be sent by the Department of Mental Health to the registering law
enforcement agency in the jurisdiction where the person will live on
release, within three days of release.



1203f. Every probation department shall ensure that all
probationers under active supervision who are deemed to pose a high
risk to the public of committing *** crimes, as determined by the
State-Authorized Risk Assessment Tool for *** Offenders, as set forth
in Sections 290.04 to 290.06, inclusive, are placed on intensive and
specialized probation supervision and are required to report
frequently to designated probation officers. The probation department
may place any other probationer convicted of an offense that
requires him or her to register as a *** offender who is on active
supervision to be placed on intensive and specialized supervision and
require him or her to report frequently to designated probation
officers.



1203h. If the court initiates an investigation pursuant to
subdivision (a) or (d) of Section 1203 and the convicted person was
convicted of violating any section of this code in which a minor is a
victim of an act of abuse or neglect, then the investigation may
include a psychological evaluation to determine the extent of
counseling necessary for successful rehabilitation and which may be
mandated by the court during the term of probation. Such evaluation
may be performed by psychiatrists, psychologists, or licensed
clinical social workers. The results of the examination shall be
included in the probation officer's report to the court.




1204. The circumstances shall be presented by the testimony of
witnesses examined in open court, except that when a witness is so
sick or infirm as to be unable to attend, his deposition may be taken
by a magistrate of the county, out of court, upon such notice to the
adverse party as the court may direct. No affidavit or testimony,
or representation of any kind, verbal or written, can be offered to
or received by the court, or a judge thereof, in aggravation or
mitigation of the punishment, except as provided in this and the
preceding section. This section shall not be construed to prohibit
the filing of a written report by a defendant or defendant's counsel
on behalf of a defendant if such a report presents a study of his
background and personality and suggests a rehabilitation program. If
such a report is submitted, the prosecution or probation officer
shall be permitted to reply to or to evaluate the program.



1204.5. (a) In any criminal action, after the filing of any
complaint or other accusatory pleading and before a plea, finding, or
verdict of guilty, no judge shall read or consider any written
report of any law enforcement officer or witness to any offense, any
information reflecting the arrest or conviction record of a
defendant, or any affidavit or representation of any kind, verbal or
written, without the defendant's consent given in open court, except
as provided in the rules of evidence applicable at the trial, or as
provided in affidavits in connection with the issuance of a warrant
or the hearing of any law and motion matter, or in any application
for an order fixing or changing bail, or a petition for a writ.
(b) This section does not preclude a judge, who is not the
preliminary hearing or trial judge in the case, from considering any
information about the defendant for the purpose of that judge
adopting a pre-trial sentencing position or approving or disapproving
a guilty plea entered pursuant to Section 1192.5, if all of the
following occur:
(1) The defendant is represented by counsel, unless he or she
expressly waives the right to counsel.
(2) Any information provided to the judge for either of those
purposes is also provided to the district attorney and to the defense
counsel at least five days prior to any hearing or conference held
for the purpose of considering a proposed guilty plea or proposed
sentence.
(3) At any hearing or conference held for either of those
purposes, defense counsel or the district attorney is allowed to
provide information, either on or off the record, to supplement or
rebut the information provided pursuant to paragraph (2).



1205. (a) A judgment that the defendant pay a fine, with or without
other punishment, may also direct that he or she be imprisoned until
the fine is satisfied and may further direct that the imprisonment
begin at and continue after the expiration of any imprisonment
imposed as a part of the punishment or of any other imprisonment to
which he or she may theretofore have been sentenced. Each of these
judgments shall specify the extent of the imprisonment for nonpayment
of the fine, which shall not be more than one day for each thirty
dollars ($30) of the fine, nor exceed in any case the term for which
the defendant might be sentenced to imprisonment for the offense of
which he or she has been convicted. A defendant held in custody for
nonpayment of a fine shall be entitled to credit on the fine for each
day he or she is so held in custody, at the rate specified in the
judgment. When the defendant has been convicted of a misdemeanor, a
judgment that the defendant pay a fine may also direct that he or she
pay the fine within a limited time or in installments on specified
dates and that in default of payment as therein stipulated he or she
be imprisoned in the discretion of the court either until the
defaulted installment is satisfied or until the fine is satisfied in
full; but unless the direction is given in the judgment, the fine
shall be payable forthwith.
(b) Except as otherwise provided in case of fines imposed,
including restitution fines or restitution orders, as conditions of
probation, the defendant shall pay the fine to the clerk of the
court, or to the judge thereof if there is no clerk, unless the
defendant is taken into custody for nonpayment of the fine, in which
event payments made while he or she is in custody shall be made to
the officer who holds him or her in custody and all amounts so paid
shall be forthwith paid over by the officer to the court which
rendered the judgment. The clerk shall report to the court every
default in payment of a fine or any part thereof, or if there is no
clerk, the court shall take notice of the default. If time has been
given for payment of a fine or it has been made payable in
installments, the court shall, upon any default in payment,
immediately order the arrest of the defendant and order him or her to
show cause why he or she should not be imprisoned until the fine or
installment thereof, as the case may be, is satisfied in full. If
the fine, restitution fine, restitution order, or installment, is
payable forthwith and it is not so paid, the court shall without
further proceedings, immediately commit the defendant to the custody
of the proper officer to be held in custody until the fine or
installment thereof, as the case may be, is satisfied in full.
(c) This section applies to any violation of any of the codes or
statutes of this state punishable by a fine or by a fine and
imprisonment.
Nothing in this section shall be construed to prohibit the clerk
of the court, or the judge thereof if there is no clerk, from turning
these accounts over to another county department or a collecting
agency for processing and collection.
(d) The defendant shall pay to the clerk of the court or the
collecting agency a fee for the processing of installment accounts.
This fee shall equal the administrative and clerical costs, as
determined by the board of supervisors, except that the fee shall not
exceed thirty-five dollars ($35). The Legislature hereby authorizes
the establishment of the following program described in this
section, to be implemented in any county, upon the adoption of a
resolution by the board of supervisors authorizing it. The board of
supervisors in any county may establish a fee for the processing of
accounts receivable that are not to be paid in installments. The
defendant shall pay to the clerk of the court or the collecting
agency the fee established for the processing of the accounts. The
fee shall equal the administrative and clerical costs, as determined
by the board of supervisors, except that the fee shall not exceed
thirty dollars ($30).
(e) This section shall only apply to restitution fines and
restitution orders if the defendant has defaulted on the payment of
other fines.



1205.3. In any case in which a defendant is convicted of an offense
and granted probation, and the court orders the defendant either to
pay a fine or to perform specified community service work as a
condition of probation, the court shall specify that if community
service work is performed, it shall be performed in place of the
payment of all fines and restitution fines on a proportional basis,
and the court shall specify in its order the amount of the fine and
restitution fine and the number of hours of community service work
that shall be performed as an alternative to payment of the fine.



1207. When judgment upon a conviction is rendered, the clerk must
enter the judgment in the minutes, stating briefly the offense for
which the conviction was had, and the fact of a prior conviction, if
any. A copy of the judgment of conviction shall be filed with the
papers in the case.



1208. (a) The provisions of this section, insofar as they relate to
employment, shall be operative in any county in which the board of
supervisors by ordinance finds, on the basis of employment
conditions, the state of the county jail facilities, and other
pertinent circumstances, that the operation of this section, insofar
as it relates to employment, in that county is feasible. The
provisions of this section, insofar as they relate to job training,
shall be operative in any county in which the board of supervisors by
ordinance finds, on the basis of job training conditions, the state
of the county jail facilities, and other pertinent circumstances,
that the operation of this section, insofar as it relates to job
training, in that county is feasible. The provisions of this section,
insofar as they relate to education, shall be operative in any
county in which the board of supervisors by ordinance finds, on the
basis of education conditions, the state of the county jail
facilities, and other pertinent circumstances, that the operation of
this section, insofar as it relates to education, in that county is
feasible. In any ordinance the board shall prescribe whether the
sheriff, the probation officer, the director of the county department
of corrections, or the superintendent of a county industrial farm or
industrial road camp in the county shall perform the functions of
the work furlough administrator. The board may, in that ordinance,
provide for the performance of any or all functions of the work
furlough administrator by any one or more of those persons, acting
separately or jointly as to any of the functions; and may, by a
subsequent ordinance, revise the provisions within the authorization
of this section. The board of supervisors may also terminate the
operation of this section, either with respect to employment, job
training, or education in the county if it finds by ordinance that
because of changed circumstances, the operation of this section,
either with respect to employment, job training, or education in that
county is no longer feasible.
Notwithstanding any other provision of law, the board of
supervisors may by ordinance designate a facility for confinement of
prisoners classified for the work furlough program and designate the
work furlough administrator as the custodian of the facility. The
work furlough administrator may operate the work furlough facility
or, with the approval of the board of supervisors, administer the
work furlough facility pursuant to written contracts with appropriate
public or private agencies or private entities. No agency or
private entity may operate a work furlough program or facility
without a written contract with the work furlough administrator, and
no agency or private entity entering into a written contract may
itself employ any person who is in the work furlough program. The
sheriff or director of the county department of corrections, as the
case may be, is authorized to transfer custody of prisoners to the
work furlough administrator to be confined in a facility for the
period during which they are in the work furlough program.
All privately operated local work furlough facilities and programs
shall be under the jurisdiction of, and subject to the terms of a
written contract entered into with, the work furlough administrator.
Each contract shall include, but not be limited to, a provision
whereby the private agency or entity agrees to operate in compliance
with all appropriate state and local building, zoning, health,
safety, and fire statutes, ordinances, and regulations and the
minimum jail standards for Type IV facilities as established by
regulations adopted by the Board of Corrections, and a provision
whereby the private agency or entity agrees to operate in compliance
with Section 1208.2, which provides that no eligible person shall be
denied consideration for, or be removed from, participation in a work
furlough program because of an inability to pay all or a portion of
the program fees. The private agency or entity shall select and
train its personnel in accordance with selection and training
requirements adopted by the Board of Corrections as set forth in
Subchapter 1 (commencing with Section 100) of Chapter 1 of Division 1
of Title 15 of the California Code of Regulations. Failure to
comply with the appropriate health, safety, and fire laws or minimum
jail standards adopted by the board may be cause for termination of
the contract. Upon discovery of a failure to comply with these
requirements, the work furlough administrator shall notify the
privately operated program director that the contract may be canceled
if the specified deficiencies are not corrected within 60 days.
All private work furlough facilities and programs shall be
inspected biennially by the Board of Corrections unless the work
furlough administrator requests an earlier inspection pursuant to
Section 6031.1. Each private agency or entity shall pay a fee to the
Board of Corrections commensurate with the cost of those inspections
and a fee commensurate with the cost of the initial review of the
facility.
(b) When a person is convicted of a misdemeanor and sentenced to
the county jail, or is imprisoned in the county jail for nonpayment
of a fine, for contempt, or as a condition of probation for any
criminal offense, the work furlough administrator may, if he or she
concludes that the person is a fit subject to continue in his or her
regular employment, direct that the person be permitted to continue
in that employment, if that is compatible with the requirements of
subdivision (c), or may authorize the person to secure employment
for himself or herself, unless the court at the time of sentencing or
committing has ordered that the person not be granted work
furloughs. The work furlough administrator may, if he or she
concludes that the person is a fit subject to continue in his or her
job training program, direct that the person be permitted to continue
in that job training program, if that is compatible with the
requirements of subdivision (c), or may authorize the person to
secure local job training for himself or herself, unless the court at
the time of sentencing has ordered that person not be granted work
furloughs. The work furlough administrator may, if he or she
concludes that the person is a fit subject to continue in his or her
regular educational program, direct that the person be permitted to
continue in that educational program, if that is compatible with the
requirements of subdivision (c), or may authorize the person to
secure education for himself or herself, unless the court at the time
of sentencing has ordered that person not be granted work furloughs.

(c) If the work furlough administrator so directs that the
prisoner be permitted to continue in his or her regular employment,
job training, or educational program, the administrator shall arrange
for a continuation of that employment or for that job training or
education, so far as possible without interruption. If the prisoner
does not have regular employment or a regular job training or
educational program, and the administrator has authorized the
prisoner to secure employment, job training, or education for himself
or herself, the prisoner may do so, and the administrator may assist
the prisoner in doing so. Any employment, job training, or
education so secured shall be suitable for the prisoner. The
employment, and the job training or educational program if it
includes earnings by the prisoner, shall be at a wage at least as
high as the prevailing wage for similar work in the area where the
work is performed and in accordance with the prevailing working
conditions in that area. In no event may any employment, job
training, or educational program involving earnings by the prisoner
be permitted where there is a labor dispute in the establishment in
which the prisoner is, or is to be, employed, trained, or educated.
(d) Whenever the prisoner is not employed or being trained or
educated and between the hours or periods of employment, training, or
education, the prisoner shall be confined in the facility designated
by the board of supervisors for work furlough confinement unless the
work furlough administrator directs otherwise. If the prisoner is
injured during a period of employment, job training, or education,
the work furlough administrator shall have the authority to release
him or her from the facility for continued medical treatment by
private physicians or at medical facilities at the expense of the
employer, workers' compensation insurer, or the prisoner. The
release shall not be construed as assumption of liability by the
county or work furlough administrator for medical treatment obtained.

The work furlough administrator may release any prisoner
classified for the work furlough program for a period not to exceed
72 hours for medical, dental, or psychiatric care, or for family
emergencies or pressing business which would result in severe
hardship if the release were not granted, or to attend those
activities as the administrator deems may effectively promote the
prisoner's successful return to the community, including, but not
limited to, an attempt to secure housing, employment, entry into
educational programs, or participation in community programs.
(e) The earnings of the prisoner may be collected by the work
furlough administrator, and it shall be the duty of the prisoner's
employer to transmit the wages to the administrator at the latter's
request. Earnings levied upon pursuant to writ of execution or in
other lawful manner shall not be transmitted to the administrator.
If the administrator has requested transmittal of earnings prior to
levy, that request shall have priority. In a case in which the
functions of the administrator are performed by a sheriff, and the
sheriff receives a writ of execution for the earnings of a prisoner
subject to this section but has not yet requested transmittal of the
prisoner's earnings pursuant to this section, the sheriff shall first
levy on the earnings pursuant to the writ. When an employer or
educator transmits earnings to the administrator pursuant to this
subdivision, the sheriff shall have no liability to the prisoner for
those earnings. From the earnings the administrator shall pay the
prisoner's board and personal expenses, both inside and outside the
jail, and shall deduct so much of the costs of administration of this
section as is allocable to the prisoner or if the prisoner is unable
to pay that sum, a lesser sum as is reasonable, and, in an amount
determined by the administrator, shall pay the support of the
prisoner's dependents, if any. If sufficient funds are available
after making the foregoing payments, the administrator may, with the
consent of the prisoner, pay, in whole or in part, the preexisting
debts of the prisoner. Any balance shall be retained until the
prisoner's discharge. Upon discharge the balance shall be paid to
the prisoner.
(f) The prisoner shall be eligible for time credits pursuant to
Sections 4018 and 4019.
(g) In the event the prisoner violates the conditions laid down
for his or her conduct, custody, job training, education, or
employment, the work furlough administrator may order the balance of
the prisoner's sentence to be spent in actual confinement.
(h) Willful failure of the prisoner to return to the place of
confinement not later than the expiration of any period during which
he or she is authorized to be away from the place of confinement
pursuant to this section is punishable as provided in Section 4532.

(i) The court may recommend or refer a person to the work furlough
administrator for consideration for placement in the work furlough
program or a particular work furlough facility. The recommendation
or referral of the court shall be given great weight in the
determination of acceptance or denial for placement in the work
furlough program or a particular work furlough facility.
(j) As used in this section, the following definitions apply:
(1) "Education" includes vocational and educational training and
counseling, and psychological, drug abuse, alcoholic, and other
rehabilitative counseling.
(2) "Educator" includes a person or institution providing that
training or counseling.
(3) "Employment" includes care of children, including the daytime
care of children of the prisoner.
(4) "Job training" may include, but shall not be limited to, job
training assistance as provided through the Job Training Partnership
Act (Public Law 97-300; 29 U.S.C.A. Sec. 1501 et seq.).
(k) This section shall be known and may be cited as the "Cobey
Work Furlough Law."


1208.2. (a) (1) This section shall apply to individuals authorized
to participate in a work furlough program pursuant to Section 1208,
or to individuals authorized to participate in an electronic home
detention program pursuant to Section 1203.016, or to individuals
authorized to participate in a county parole program pursuant to
Article 3.5 (commencing with Section 3074) of Chapter 8 of Title 1 of
Part 3.
(2) As used in this section, as appropriate, "administrator" means
the sheriff, probation officer, director of the county department of
corrections, or county parole administrator.
(b) (1) A board of supervisors which implements programs
identified in paragraph (1) of subdivision (a), may prescribe a
program administrative fee and an application fee, that together
shall not exceed the pro rata cost of the program to which the person
is accepted, including equipment, supervision, and other operating
costs, except as provided in paragraph (2).
(2) With regard to a privately operated electronic home detention
program pursuant to Section 1203.016, the limitation, described in
paragraph (1), in prescribing a program administrative fee and
application fee shall not apply.
(c) The correctional administrator, or his or her designee, shall
not have access to a person's financial data prior to granting or
denying a person's participation in, or assigning a person to, any of
the programs governed by this section.
(d) The correctional administrator, or his or her designee, shall
not consider a person's ability or inability to pay all or a portion
of the program fee for the purposes of granting or denying a person's
participation in, or assigning a person to, any of the programs
governed by this section.
(e) For purposes of this section, "ability to pay" means the
overall capability of the person to reimburse the costs, or a portion
of the costs, of providing supervision and shall include, but shall
not be limited to, consideration of all of the following factors:
(1) Present financial position.
(2) Reasonably discernible future financial position. In no event
shall the administrator, or his or her designee, consider a period
of more than six months from the date of acceptance into the program
for purposes of determining reasonably discernible future financial
position.
(3) Likelihood that the person shall be able to obtain employment
within the six-month period from the date of acceptance into the
program.
(4) Any other factor that may bear upon the person's financial
capability to reimburse the county for the fees fixed pursuant to
subdivision (b).
(f) The administrator, or his or her designee, may charge a person
the fee set by the board of supervisors or any portion of the fee
and may determine the method and frequency of payment. Any fee the
administrator, or his or her designee, charges pursuant to this
section shall not in any case be in excess of the fee set by the
board of supervisors and shall be based on the person's ability to
pay. The administrator, or his or her designee, shall have the
option to waive the fees for program supervision when deemed
necessary, justified, or in the interests of justice. The fees
charged for program supervision may be modified or waived at any time
based on the changing financial position of the person. All fees
paid by persons for program supervision shall be deposited into the
general fund of the county.
(g) No person shall be denied consideration for, or be removed
from, participation in any of the programs to which this section
applies because of an inability to pay all or a portion of the
program supervision fees. At any time during a person's sentence,
the person may request that the administrator, or his or her
designee, modify or suspend the payment of fees on the grounds of a
change in circumstances with regard to the person's ability to pay.
(h) If the person and the administrator, or his or her designee,
are unable to come to an agreement regarding the person's ability to
pay, or the amount which is to be paid, or the method and frequency
with which payment is to be made, the administrator, or his or her
designee, shall advise the appropriate court of the fact that the
person and administrator, or his or her designee, have not been able
to reach agreement and the court shall then resolve the disagreement
by determining the person's ability to pay, the amount which is to be
paid, and the method and frequency with which payment is to be made.

(i) At the time a person is approved for any of the programs to
which this section applies, the administrator, or his or her
designee, shall furnish the person a written statement of the person'
s rights in regard to the program for which the person has been
approved, including, but not limited to, both of the following:
(1) The fact that the person cannot be denied consideration for
or removed from participation in the program because of an inability
to pay.
(2) The fact that if the person is unable to reach agreement with
the administrator, or his or her designee, regarding the person's
ability to pay, the amount which is to be paid, or the manner and
frequency with which payment is to be made, that the matter shall be
referred to the court to resolve the differences.
(j) In all circumstances where a county board of supervisors has
approved a program administrator, as described in Sections 1203.016
and 1208, to enter into a contract with a private agency or entity to
provide specified program services, the program administrator shall
ensure that the provisions of this section are contained within any
contractual agreement for this purpose. All privately operated home
detention programs shall comply with all appropriate, applicable
ordinances and regulations specified in subdivision (a) of Section
1208.


1208.3. The administrator is not prohibited by subdivision (c) of
Section 1208.2 from verifying any of the following:
(a) That the prisoner is receiving wages at a rate of pay not less
than the prevailing minimum wage requirement as provided for in
subdivision (c) of Section 1208.
(b) That the prisoner is working a specified minimum number of
required hours.
(c) That the prisoner is covered under an appropriate or suitable
workers' compensation insurance plan as may otherwise be required by
law.
The purpose of the verification shall be solely to insure that the
prisoner's employment rights are being protected, that the prisoner
is not being taken advantage of, that the job is suitable for the
prisoner, and that the prisoner is making every reasonable effort to
make a productive contribution to the community.



1208.5. The boards of supervisors of two or more counties having
work furlough programs may enter into agreements whereby a person
sentenced to, or imprisoned in, the jail of one county, but regularly
residing in another county or regularly employed in another county,
may be transferred by the sheriff of the county in which he or she is
confined to the jail of the county in which he or she resides or is
employed, in order that he or she may be enabled to continue in his
or her regular employment or education in the other county through
the county's work furlough program. This agreement may make
provision for the support of transferred persons by the county from
which they are transferred. The board of supervisors of any county
may, by ordinance, delegate the authority to enter into these
agreements to the work furlough administrator.
This section shall become operative on January 1, 1999.



1209. Upon conviction of any criminal offense for which the court
orders the confinement of a person in the county jail, or other
suitable place of confinement, either as the final sentence or as a
condition of any grant of probation, and allows the person so
sentenced to continue in his or her regular employment by serving the
sentence on weekends or similar periods during the week other than
their regular workdays and by virtue of this schedule of serving the
sentence the prisoner is ineligible for work furlough under Section
1208, the county may collect from the defendant according to the
defendant's ability to pay so much of the costs of administration of
this section as are allocable to such defendant. The amount of this
fee shall not exceed the actual costs of such confinement and may be
collected prior to completion of each weekly or monthly period of
confinement until the entire sentence has been served, and the funds
shall be deposited in the county treasury pursuant to county
ordinance.
The court, upon allowing sentences to be served on weekends or
other nonemployment days, shall conduct a hearing to determine if the
defendant has the ability to pay all or a part of the costs of
administration without resulting in unnecessary economic hardship to
the defendant and his or her dependents. At the hearing, the
defendant shall be entitled to have, but shall not be limited to, the
opportunity to be heard in person, to present witnesses and other
documentary evidence, and to confront and cross-examine adverse
witnesses, and to disclosure of the evidence against the defendant,
and a written statement of the findings of the court. If the court
determines that the defendant has the ability to pay all or part of
the costs of administration without resulting in unnecessary economic
hardship to the defendant and his or her dependents, the court shall
advise the defendant of the provisions of this section and order him
or her to pay all or part of the fee as required by the sheriff,
probation officer, or Director of the County Department of
Corrections, whichever the case may be. In making a determination of
whether a defendant has the ability to pay, the court shall take
into account the amount of any fine imposed upon the defendant and
any amount the defendant has been ordered to pay in restitution.
As used in this section, the term "ability to pay" means the
overall capability of the defendant to reimburse the costs, or a
portion of the costs, and shall include, but shall not be limited to,
the following:
(a) The defendant's present financial position.
(b) The defendant's reasonably discernible future financial
position. In no event shall the court consider a period of more than
six months from the date of the hearing for purposes of determining
reasonably discernible future financial position.
(c) Likelihood that the defendant shall be able to obtain
employment within the six-month period from the date of the hearing.

(d) Any other factor or factors which may bear upon the defendant'
s financial capability to reimburse the county for the costs.
Execution may be issued on the order in the same manner as a
judgment in a civil action.
The order to pay all or part shall not be enforced by contempt.
At any time during the pendency of the judgment, a defendant against
whom a judgment has been rendered may petition the rendering court to
modify or vacate its previous judgment on the grounds of a change of
circumstances with regard to the defendant's ability to pay the
judgment. The court shall advise the defendant of this right at the
time of making the judgment.


1209.5. Notwithstanding any other provision of law, any person
convicted of an infraction may, upon a showing that payment of the
total fine would pose a hardship on the defendant or his or her
family, be sentenced to perform community service in lieu of the
total fine that would otherwise be imposed. The defendant shall
perform community service at the hourly rate applicable to community
service work performed by criminal defendants. For purposes of this
section, the term "total fine" means the base fine and all
assessments, penalties, and additional moneys to be paid by the
defendant. For purposes of this section, the hourly rate applicable
to community service work by criminal defendants shall be determined
by dividing the total fine by the number of hours of community
service ordered by the court to be performed in lieu of the total
fine.


1210. As used in Sections 1210.1 and 3063.1 of this code, and
Division 10.8 (commencing with Section 11999.4) of the Health and
Safety Code, the following definitions apply:
(a) The term "nonviolent drug possession offense" means the
unlawful personal use, possession for personal use, or transportation
for personal use of any controlled substance identified in Section
11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or
the offense of being under the influence of a controlled substance
in violation of Section 11550 of the Health and Safety Code. The term
"nonviolent drug possession offense" does not include the possession
for sale, production, or manufacturing of any controlled substance
and does not include violations of Section 4573.6 or 4573.8.
(b) The term "drug treatment program" or "drug treatment" means a
state licensed or certified community drug treatment program, which
may include one or more of the following: drug education, outpatient
services, narcotic replacement therapy, residential treatment,
detoxification services, and aftercare services. The term "drug
treatment program" or "drug treatment" includes a drug treatment
program operated under the direction of the Veterans Health
Administration of the Department of Veterans Affairs or a program
specified in Section 8001. That type of program shall be eligible to
provide drug treatment services without regard to the licensing or
certification provisions required by this subdivision. The term "drug
treatment program" or "drug treatment" does not include drug
treatment programs offered in a prison or jail facility.
(c) The term "successful completion of treatment" means that a
defendant who has had drug treatment imposed as a condition of
probation has completed the prescribed course of drug treatment as
recommended by the treatment provider and ordered by the court and,
as a result, there is reasonable cause to believe that the defendant
will not abuse controlled substances in the future. Completion of
treatment shall not require cessation of narcotic replacement
therapy.
(d) The term "misdemeanor not related to the use of drugs" means a
misdemeanor that does not involve (1) the simple possession or use
of drugs or drug paraphernalia, being present where drugs are used,
or failure to register as a drug offender, or (2) any activity
similar to those listed in (1).



1210.1. (a) Notwithstanding any other provision of law, and except
as provided in subdivision (b), any person convicted of a nonviolent
drug possession offense shall receive probation. As a condition of
probation the court shall require participation in and completion of
an appropriate drug treatment program. The court shall impose
appropriate drug testing as a condition of probation. The court may
also impose, as a condition of probation, participation in vocational
training, family counseling, literacy training and/or community
service. A court may not impose incarceration as an additional
condition of probation. Aside from the limitations imposed in this
subdivision, the trial court is not otherwise limited in the type of
probation conditions it may impose. Probation shall be imposed by
suspending the imposition of sentence. No person shall be denied the
opportunity to benefit from the provisions of the Substance Abuse and
Crime Prevention Act of 2000 based solely upon evidence of a
co-occurring psychiatric or developmental disorder. To the greatest
extent possible, any person who is convicted of, and placed on
probation pursuant to this section for a nonviolent drug possession
offense shall be monitored by the court through the use of a
dedicated court calendar and the incorporation of a collaborative
court model of oversight that includes close collaboration with
treatment providers and probation, drug testing commensurate with
treatment needs, and supervision of progress through review hearings.

In addition to any fine assessed under other provisions of law,
the trial judge may require any person convicted of a nonviolent drug
possession offense who is reasonably able to do so to contribute to
the cost of his or her own placement in a drug treatment program.
(b) Subdivision (a) shall not apply to any of the following:
(1) Any defendant who previously has been convicted of one or more
violent or serious felonies as defined in subdivision (c) of Section
667.5 or subdivision (c) of Section 1192.7, respectively, unless the
nonviolent drug possession offense occurred after a period of five
years in which the defendant remained free of both prison custody and
the commission of an offense that results in a felony conviction
other than a nonviolent drug possession offense, or a misdemeanor
conviction involving physical injury or the threat of physical injury
to another person.
(2) Any defendant who, in addition to one or more nonviolent drug
possession offenses, has been convicted in the same proceeding of a
misdemeanor not related to the use of drugs or any felony.
(3) Any defendant who, while armed with a deadly weapon, with the
intent to use the same as a deadly weapon, unlawfully possesses or is
under the influence of any controlled substance identified in
Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety
Code.
(4) Any defendant who refuses drug treatment as a condition of
probation.
(5) Any defendant who has two separate convictions for nonviolent
drug possession offenses, has participated in two separate courses of
drug treatment pursuant to subdivision (a), and is found by the
court, by clear and convincing evidence, to be unamenable to any and
all forms of available drug treatment, as defined in subdivision (b)
of Section 1210. Notwithstanding any other provision of law, the
trial court shall sentence that defendant to 30 days in jail.
(c) (1) Any defendant who has previously been convicted of at
least three non-drug-related felonies for which the defendant has
served three separate prison terms within the meaning of subdivision
(b) of Section 667.5 shall be presumed eligible for treatment under
subdivision (a). The court may exclude such a defendant from
treatment under subdivision (a) where the court, pursuant to the
motion of the prosecutor or its own motion, finds that the defendant
poses a present danger to the safety of others and would not benefit
from a drug treatment program. The court shall, on the record, state
its findings, the reasons for those findings.
(2) Any defendant who has previously been convicted of a
misdemeanor or felony at least five times within the prior 30 months
shall be presumed to be eligible for treatment under subdivision (a).
The court may exclude such a defendant from treatment under
subdivision (a) if the court, pursuant to the motion of the
prosecutor, or on its own motion, finds that the defendant poses a
present danger to the safety of others or would not benefit from a
drug treatment program. The court shall, on the record, state its
findings and the reasons for those findings.
(d) Within seven days of an order imposing probation under
subdivision (a), the probation department shall notify the drug
treatment provider designated to provide drug treatment under
subdivision (a). Within 30 days of receiving that notice, the
treatment provider shall prepare a treatment plan and forward it to
the probation department for distribution to the court and counsel.
The treatment provider shall provide to the probation department
standardized treatment progress reports, with minimum data elements
as determined by the department, including all drug testing results.
At a minimum, the reports shall be provided to the court every 90
days, or more frequently, as the court directs.
(1) If at any point during the course of drug treatment the
treatment provider notifies the probation department and the court
that the defendant is unamenable to the drug treatment being
provided, but may be amenable to other drug treatments or related
programs, the probation department may move the court to modify the
terms of probation, or on its own motion, the court may modify the
terms of probation after a hearing to ensure that the defendant
receives the alternative drug treatment or program.
(2) If at any point during the course of drug treatment the
treatment provider notifies the probation department and the court
that the defendant is unamenable to the drug treatment provided and
all other forms of drug treatment programs pursuant to subdivision
(b) of Section 1210, the probation department may move to revoke
probation. At the revocation hearing, if it is proved that the
defendant is unamenable to all drug treatment programs pursuant to
subdivision (b) of Section 1210, the court may revoke probation.
(3) Drug treatment services provided by subdivision (a) as a
required condition of probation may not exceed 12 months, unless the
court makes a finding supported by the record, that the continuation
of treatment services beyond 12 months is necessary for drug
treatment to be successful. If such a finding is made, the court may
order up to two six-month extensions of treatment services. The
provision of treatment services under the Substance Abuse and Crime
Prevention Act of 2000 shall not exceed 24 months.
(e) (1) At any time after completion of drug treatment and the
terms of probation, the court shall conduct a hearing, and if the
court finds that the defendant successfully completed drug treatment,
and substantially complied with the conditions of probation,
including refraining from the use of drugs after the completion of
treatment, the conviction on which the probation was based shall be
set aside and the court shall dismiss the indictment, complaint, or
information against the defendant. In addition, except as provided in
paragraphs (2) and (3), both the arrest and the conviction shall be
deemed never to have occurred. The defendant may additionally
petition the court for a dismissal of charges at any time after
completion of the prescribed course of drug treatment. Except as
provided in paragraph (2) or (3), the defendant shall thereafter be
released from all penalties and disabilities resulting from the
offense of which he or she has been convicted.
(2) Dismissal of an indictment, complaint, or information pursuant
to paragraph (1) does not permit a person to own, possess, or have
in his or her custody or control any firearm capable of being
concealed upon the person or prevent his or her conviction under
Section 12021.
(3) Except as provided below, after an indictment, complaint, or
information is dismissed pursuant to paragraph (1), the defendant may
indicate in response to any question concerning his or her prior
criminal record that he or she was not arrested or convicted for the
offense. Except as provided below, a record pertaining to an arrest
or conviction resulting in successful completion of a drug treatment
program under this section may not, without the defendant's consent,
be used in any way that could result in the denial of any employment,
benefit, license, or certificate.
Regardless of his or her successful completion of drug treatment,
the arrest and conviction on which the probation was based may be
recorded by the Department of Justice and disclosed in response to
any peace officer application request or any law enforcement inquiry.
Dismissal of an information, complaint, or indictment under this
section does not relieve a defendant of the obligation to disclose
the arrest and conviction in response to any direct question
contained in any questionnaire or application for public office, for
a position as a peace officer as defined in Section 830, for
licensure by any state or local agency, for contracting with the
California State Lottery, or for purposes of serving on a jury.
(f) (1) If probation is revoked pursuant to the provisions of this
subdivision, the defendant may be incarcerated pursuant to otherwise
applicable law without regard to the provisions of this section. The
court may modify or revoke probation if the alleged violation is
proved.
(2) If a defendant receives probation under subdivision (a), and
violates that probation either by committing an offense that is not a
nonviolent drug possession offense, or by violating a
non-drug-related condition of probation, and the state moves to
revoke probation, the court may remand the defendant for a period not
exceeding 30 days during which time the court may receive input from
treatment, probation, the state, and the defendant, and the court
may conduct further hearings as it deems appropriate to determine
whether or not probation should be reinstated under this section. If
the court reinstates the defendant on probation, the court may modify
the treatment plan and any other terms of probation, and continue
the defendant in a treatment program under the Substance Abuse and
Crime Prevention Act of 2000. If the court reinstates the defendant
on probation, the court may, after receiving input from the treatment
provider and probation, if available, intensify or alter the
treatment plan under subdivision (a), and impose sanctions, including
jail sanctions not exceeding 30 days, a tool to enhance treatment
compliance.
(3) (A) If a defendant receives probation under subdivision (a),
and violates that probation either by committing a nonviolent drug
possession offense, or a misdemeanor for simple possession or use of
drugs or drug paraphernalia, being present where drugs are used, or
failure to register as a drug offender, or any activity similar to
those listed in subdivision (d) of Section 1210, or by violating a
drug-related condition of probation, and the state moves to revoke
probation, the court shall conduct a hearing to determine whether
probation shall be revoked. The trial court shall revoke probation if
the alleged probation violation is proved and the state proves by a
preponderance of the evidence that the defendant poses a danger to
the safety of others. If the court does not revoke probation, it may
intensify or alter the drug treatment plan and in addition, if the
violation does not involve the recent use of drugs as a circumstance
of the violation, including, but not limited to, violations relating
to failure to appear at treatment or court, noncompliance with
treatment, and failure to report for drug testing, the court may
impose sanctions including jail sanctions that may not exceed 48
hours of continuous custody as a tool to enhance treatment compliance
and impose other changes in the terms and conditions of probation.
The court shall consider, among other factors, the seriousness of the
violation, previous treatment compliance, employment, education,
vocational training, medical conditions, medical treatment, including
narcotics replacement treatment, and including the opinion of the
defendant's licensed and treating physician if immediately available
and presented at the hearing, child support obligations, and family
responsibilities. The court shall consider additional conditions of
probation, which may include, but are not limited to, community
service and supervised work programs. If one of the circumstances of
the violation involves recent drug use, as well as other
circumstances of violation, and the circumstance of recent drug use
is demonstrated to the court by satisfactory evidence and a finding
made on the record, the court may, after receiving input from
treatment and probation, if available, direct the defendant to enter
a licensed detoxification or residential treatment facility, and if
there is no bed immediately available in such a facility, the court
may order that the defendant be confined in a county jail for
detoxification purposes only, if the jail offers detoxification
services, for a period not to exceed 10 days. The detoxification
services must provide narcotic replacement therapy for those
defendants presently actually receiving narcotic replacement therapy.

(B) If a defendant receives probation under subdivision (a), and
for the second time violates that probation either by committing a
nonviolent drug possession offense, or a misdemeanor for simple
possession or use of drugs or drug paraphernalia, being present where
drugs are used, or failure to register as a drug offender, or any
activity similar to those listed in subdivision (d) of Section 1210,
or by violating a drug-related condition of probation, and the state
moves to revoke probation, the court shall conduct a hearing to
determine whether probation shall be revoked. The trial court shall
revoke probation if the alleged probation violation is proved and the
state proves by a preponderance of the evidence either that the
defendant poses a danger to the safety of others or is unamenable to
drug treatment. In determining whether a defendant is unamenable to
drug treatment, the court may consider, to the extent relevant,
whether the defendant (i) has committed a serious violation of rules
at the drug treatment program, (ii) has repeatedly committed
violations of program rules that inhibit the defendant's ability to
function in the program, or (iii) has continually refused to
participate in the program or asked to be removed from the program.
If the court does not revoke probation, it may intensify or alter the
drug treatment plan, and may, in addition, if the violation does not
involve the recent use of drugs as a circumstance of the violation,
including, but not limited to, violations relating to failure to
appear at treatment or court, noncompliance with treatment, and
failure to report for drug testing, impose sanctions including jail
sanctions that may not exceed 120 hours of continuous custody as a
tool to enhance treatment compliance and impose other changes in the
terms and conditions of probation. The court shall consider, among
other factors, the seriousness of the violation, previous treatment
compliance, employment, education, vocational training, medical
conditions, medical treatment, including narcotics replacement
treatment, and including the opinion of the defendant's licensed and
treating physician if immediately available and presented at the
hearing, child support obligations, and family responsibilities. The
court shall consider additional conditions of probation, which may
include, but are not limited to, community service and supervised
work programs. If one of the circumstances of the violation involves
recent drug use, as well as other circumstances of violation, and the
circumstance of recent drug use is demonstrated to the court by
satisfactory evidence and a finding made on the record, the court
may, after receiving input from treatment and probation, if
available, direct the defendant to enter a licensed detoxification or
residential treatment facility, and if there is no bed immediately
available in the facility, the court may order that the defendant be
confined in a county jail for detoxification purposes only, if the
jail offers detoxification services, for a period not to exceed 10
days. Detoxification services must provide narcotic replacement
therapy for those defendants presently actually receiving narcotic
replacement therapy.
(C) If a defendant receives probation under subdivision (a), and
for the third or subsequent time violates that probation either by
committing a nonviolent drug possession offense, or by violating a
drug-related condition of probation, and the state moves for a third
or subsequent time to revoke probation, the court shall conduct a
hearing to determine whether probation shall be revoked. If the
alleged probation violation is proved, the defendant is not eligible
for continued probation under subdivision (a) unless the court
determines that the defendant is not a danger to the community and
would benefit from further treatment under subdivision (a). The court
may then either intensify or alter the treatment plan under
subdivision (a) or transfer the defendant to a highly structured drug
court. If the court continues the defendant in treatment under
subdivision (a), or drug court, the court may impose appropriate
sanctions including jail sanctions as the court deems appropriate.
(D) If a defendant on probation at the effective date of this act
for a nonviolent drug possession offense violates that probation
either by committing a nonviolent drug possession offense, or a
misdemeanor for simple possession or use of drugs or drug
paraphernalia, being present where drugs are used, or failure to
register as a drug offender, or any activity similar to those listed
in subdivision (d) of Section 1210, or by violating a drug-related
condition of probation, and the state moves to revoke probation, the
court shall conduct a hearing to determine whether probation shall be
revoked. The trial court shall revoke probation if the alleged
probation violation is proved and the state proves by a preponderance
of the evidence that the defendant poses a danger to the safety of
others. If the court does not revoke probation, it may modify or
alter the treatment plan, and in addition, if the violation does not
involve the recent use of drugs as a circumstance of the violation,
including, but not limited to, violations relating to failure to
appear at treatment or court, noncompliance with treatment, and
failure to report for drug testing, the court may impose sanctions
including jail sanctions that may not exceed 48 hours of continuous
custody as a tool to enhance treatment compliance and impose other
changes in the terms and conditions of probation. The court shall
consider, among other factors, the seriousness of the violation,
previous treatment compliance, employment, education, vocational
training, medical conditions, medical treatment, including narcotics
replacement treatment, and including the opinion of the defendant's
licensed and treating physician if immediately available and
presented at the hearing, child support obligations, and family
responsibilities. The court shall consider additional conditions of
probation, which may include, but are not limited to, community
service and supervised work programs. If one of the circumstances of
the violation involves recent drug use, as well as other
circumstances of violation, and the circumstance of recent drug use
is demonstrated to the court by satisfactory evidence and a finding
made on the record, the court may, after receiving input from
treatment and probation, if available, direct the defendant to enter
a licensed detoxification or residential treatment facility, and if
there is no bed immediately available in such a facility, the court
may order that the defendant be confined in a county jail for
detoxification purposes only, if the jail offers detoxification
services, for a period not to exceed 10 days. The detoxification
services must provide narcotic replacement therapy for those
defendants presently actually receiving narcotic replacement therapy.

(E) If a defendant on probation at the effective date of this act
for a nonviolent drug possession offense violates that probation a
second time either by committing a nonviolent drug possession
offense, or a misdemeanor for simple possession or use of drugs or
drug paraphernalia, being present where drugs are used, or failure to
register as a drug offender, or any activity similar to those listed
in subdivision (d) of Section 1210, or by violating a drug-related
condition of probation, and the state moves for a second time to
revoke probation, the court shall conduct a hearing to determine
whether probation shall be revoked. The trial court shall revoke
probation if the alleged probation violation is proved and the state
proves by a preponderance of the evidence either that the defendant
poses a danger to the safety of others or that the defendant is
unamenable to drug treatment. If the court does not revoke probation,
it may modify or alter the treatment plan, and in addition, if the
violation does not involve the recent use of drugs as a circumstance
of the violation, including, but not limited to, violations relating
to failure to appear at treatment or court, noncompliance with
treatment, and failure to report for drug testing, the court may
impose sanctions including jail sanctions that may not exceed 120
hours of continuous custody as a tool to enhance treatment compliance
and impose other changes in the terms and conditions of probation.
The court shall consider, among other factors, the seriousness of the
violation, previous treatment compliance, employment, education,
vocational training, medical conditions, medical treatment including
narcotics replacement treatment, and including the opinion of the
defendant's licensed and treating physician if immediately available
and presented at the hearing, child support obligations, and family
responsibilities. The court shall consider additional conditions of
probation, which may include, but are not limited to, community
service and supervised work programs. If one of the circumstances of
the violation involves recent drug use, as well as other
circumstances of violation, and the circumstance of recent drug use
is demonstrated to the court by satisfactory evidence and a finding
made on the record, the court may, after receiving input from
treatment and probation, if available, direct the defendant to enter
a licensed detoxification or residential treatment facility, and if
there is no bed immediately available in such a facility, the court
may order that the defendant be confined in a county jail for
detoxification purposes only, if the jail offers detoxification
services, for a period not to exceed 10 days. The detoxification
services must provide narcotic replacement therapy for those
defendants presently actually receiving narcotic replacement therapy.

(F) If a defendant on probation at the effective date of this act
for a nonviolent drug offense violates that probation a third or
subsequent time either by committing a nonviolent drug possession
offense, or by violating a drug-related condition of probation, and
the state moves for a third or subsequent time to revoke probation,
the court shall conduct a hearing to determine whether probation
shall be revoked. If the alleged probation violation is proved, the
defendant is not eligible for continued probation under subdivision
(a), unless the court determines that the defendant is not a danger
to the community and would benefit from further treatment under
subdivision (a). The court may then either intensify or alter the
treatment plan under subdivision (a) or transfer the defendant to a
highly structured drug court. If the court continues the defendant in
treatment under subdivision (a), or drug court, the court may impose
appropriate sanctions including jail sanctions.
(g) The term "drug-related condition of probation" shall include a
probationer's specific drug treatment regimen, employment,
vocational training, educational programs, psychological counseling,
and family counseling.



1210.5. In a case where a person has been ordered to undergo drug
treatment as a condition of probation, any court ordered drug testing
shall be used as a treatment tool. In evaluating a probationer's
treatment program, results of any drug testing shall be given no
greater weight than any other aspects of the probationer's individual
treatment program.

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1210.7. (a) Notwithstanding any other provisions of law, a county
probation department may utilize continuous electronic monitoring to
electronically monitor the whereabouts of persons on probation, as
provided by this chapter.
(b) Any use of continuous electronic monitoring pursuant to this
chapter shall have as its primary objective the enhancement of public
safety through the reduction in the number of people being
victimized by crimes committed by persons on probation.
(c) It is the intent of the Legislature in enacting this chapter
to specifically encourage a county probation department acting
pursuant to this chapter to utilize a system of continuous electronic
monitoring that conforms with the requirements of this chapter.
(d) For purposes of this chapter, "continuous electronic
monitoring" may include the use of worldwide radio navigation system
technology, known as the Global Positioning System, or GPS. The
Legislature finds that because of its capability for continuous
surveillance, continuous electronic monitoring has been used in other
parts of the country to monitor persons on formal probation who are
identified as requiring a high level of supervision.
(e) The Legislature finds that continuous electronic monitoring
has proven to be an effective risk management tool for supervising
high-risk persons on probation who are likely to reoffend where
prevention and knowledge of their whereabouts is a high priority for
maintaining public safety.



1210.8. A county probation department may utilize a continuous
electronic monitoring device pursuant to this section that has all of
the following attributes:
(a) A device designed to be worn by a human being.
(b) A device that emits a signal as a person is moving or is
stationary. The signal shall be capable of being received and tracked
across large urban or rural areas, statewide, and being received
from within structures, vehicles, and other objects to the degree
technically feasible in light of the associated costs, design, and
other considerations as are determined relevant by the county
probation department.
(c) A device that functions 24 hours a day.
(d) A device that is resistant or impervious to unintentional or
willful damage.


1210.9. (a) A continuous electronic monitoring system may have the
capacity to immediately notify a county probation department of
violations, actual or suspected, of the terms of probation that have
been identified by the monitoring system if the requirement is deemed
necessary by the county probation officer with respect to an
individual person.
(b) The information described in subdivision (a), including
geographic location and tampering, may be used as evidence to prove a
violation of the terms of probation.



1210.10. A county probation department shall establish the
following standards as are necessary to enhance public safety:
(a) Standards for the minimum time interval between transmissions
of information about the location of the person under supervision.
The standards shall be established after an evaluation of, at a
minimum, all of the following:
(1) The resources of the county probation department.
(2) The criminal history of the person under supervision.
(3) The safety of the victim of the persons under supervision.
(b) Standards for the accuracy of the information identifying the
location of the person under supervision. The standards shall be
established after consideration of, at a minimum, all of the
following:
(1) The need to identify the location of a person proximate to the
location of a crime, including a violation of probation.
(2) Resources of the probation department.
(3) The need to avoid false indications of proximity to crimes.



1210.11. (a) A county probation department operating a system of
continuous electronic monitoring pursuant to this section shall
establish prohibitions against unauthorized access to, and use of,
information by private or public entities as may be deemed
appropriate. Unauthorized access to, and use of, electronic signals
includes signals transmitted in any fashion by equipment utilized for
continuous electronic monitoring.
(b) Devices used pursuant to this section shall not be used to
eavesdrop or record any conversation, except a conversation between
the participant and the person supervising the participant that is to
be used solely for the purposes of voice identification.



1210.12. (a) A county chief probation officer shall have the sole
discretion, consistent with the terms and conditions of probation, to
decide which persons shall be supervised using continuous electronic
monitoring administered by the county probation department. No
individual shall be required to participate in continuous electronic
monitoring authorized by this chapter for any period of time longer
than the term of probation.
(b) The county chief probation officer shall establish written
guidelines that identify those persons on probation subject to
continuous electronic monitoring authorized by this chapter. These
guidelines shall include the need for enhancing monitoring in
comparison to other persons not subject to the enhanced monitoring
and the public safety needs that will be served by the enhanced
monitoring.



1210.13. A county chief probation officer may revoke, in his or her
discretion, the continuous monitoring of any individual.



1210.14. Whenever a probation officer supervising an individual has
reasonable cause to believe that the individual is not complying
with the rules or conditions set forth for the use of continuous
electronic monitoring as a supervision tool, the probation officer
supervising the individual may, without a warrant of arrest, take the
individual into custody for a violation of probation.



1210.15. (a) A chief probation officer may charge persons on
probation for the costs of any form of supervision that utilizes
continuous electronic monitoring devices that monitor the whereabouts
of the person pursuant to this chapter, upon a finding of the
ability to pay those costs. However, the department shall waive any
or all of that payment upon a finding of an inability to pay.
Inability to pay all or a portion of the costs of continuous
electronic monitoring authorized by this chapter shall not preclude
use of continuous electronic monitoring, and eligibility for
probation shall not be enhanced by reason of ability to pay.
(b) A chief probation officer may charge a person on probation
pursuant to subdivision (a) for the cost of continuous electronic
monitoring in accordance with Section 1203.1b provided the person has
first satisfied all other outstanding base fines, state and local
penalties, restitution fines, and restitution orders imposed by a
court.



1210.16. It is the intent of the Legislature that continuous
electronic monitoring established pursuant to this chapter maintain
the highest public confidence, credibility, and public safety. In the
furtherance of these standards, the following shall apply:
(a) The chief probation officer may administer continuous
electronic monitoring pursuant to written contracts and appropriate
public or private agencies or entities to provide specified
supervision services. No public or private agency or entity may
operate a continuous electronic monitoring system as authorized by
this section in any county without a written contract with the county'
s probation department. No public or private agency or entity
entering into a contract may itself employ any person who is a
participant in continuous electronic monitoring surveillance.
(b) The county board of supervisors, the chief probation officer,
and designees of the chief probation officer shall comply with
Section 1090 of the Government Code in the consideration, making, and
execution of contracts pursuant to this section.[/align]

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1211. (a) In order to ensure the quality of drug diversion programs
provided pursuant to this chapter and Chapter 2.5 (commencing with
Section 1000) of Title 6, and to expand the availability of these
programs, the county drug program administrator in each county, in
consultation with representatives of the court and the county
probation department, shall establish minimum requirements, criteria,
and fees for the successful completion of drug diversion programs
which shall be approved by the county board of supervisors no later
than January 1, 1995. These minimum requirements shall include, but
not be limited to, all of the following:
(1) An initial assessment of each divertee, which may include all
of the following:
(A) Social, economic, and family background.
(B) Education.
(C) Vocational achievements.
(D) Criminal history.
(E) Medical history.
(F) Drug history and previous treatment.
(2) A minimum of 20 hours of either effective education or
counseling or any combination of both for each divertee.
(3) An exit conference which shall reflect the divertee's progress
during his or her participation in the program.
(4) Fee exemptions for persons who cannot afford to pay.
(b) The county drug program administrator shall implement a
certification procedure for drug diversion programs.
(c) The county drug program administrator shall recommend for
approval by the county board of supervisors programs pursuant to this
chapter. No program, regardless of how it is funded, may be
approved unless it meets the standards established by the
administrator, which shall include, but not be limited to, all of the
following:
(1) Guidelines and criteria for education and treatment services,
including standards of services which may include lectures, classes,
group discussions, and individual counseling. However, any class or
group discussion other than lectures, shall not exceed 15 persons at
any one meeting.
(2) Established and approved supervision, either on a regular or
irregular basis, of the person for the purpose of evaluating the
person's progress.
(3) A schedule of fees to be charged for services rendered to each
person under a county drug program plan in accordance with the
following provisions:
(A) Fees shall be used only for the purposes set forth in this
chapter.
(B) Fees for the treatment or rehabilitation of each participant
receiving services under a certified drug diversion program shall not
exceed the actual cost thereof, as determined by the county drug
program administrator according to standard accounting practices.
(C) Actual costs shall include both of the following:
(i) All costs incurred by the providers of diversion programs.
(ii) All expenses incurred by the county for administration,
certification, or management of the drug diversion program in
compliance with this chapter.
(d) The county shall require, as a condition of certification,
that the drug diversion program pay to the county drug program
administrator all expenses incurred by the county for administration,
certification, or management of the drug diversion program in
compliance with this chapter. No fee shall be required by any county
other than that county where the program is located.[/align]