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California Penal Code Section 1203.097

Legal Research Home > California Laws > Penal Code > California Penal Code Section 1203.097

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, sexual 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) A minimum payment by the defendant of a fee of five
hundred dollars ($500) to be disbursed as specified in this
paragraph. If, after a hearing in open court, the court finds that
the defendant does not have the ability to pay, the court may reduce
or waive this fee. If the court exercises its discretion to reduce or
waive the fee, it shall state the reason on the record.
   (B) 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. Of the moneys
deposited in the domestic violence programs special fund, no more
than 8 percent may be used for administrative costs, as specified in
Section 18305 of the Welfare and Institutions Code.
   (C) The remaining one-third of the moneys 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. 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:
   (i) 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.
   (ii) 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.
   (D) The fee imposed by this paragraph shall be treated as a fee,
not as a fine, and shall not be subject to reduction for time served
as provided pursuant to Section 1205 or 2900.5.
   (E) The fee imposed by this paragraph may be collected by the
collecting agency, or the agency's designee, after the termination of
the period of probation, whether probation is terminated by
revocation or by completion of the term.
   (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 exists:
   (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, sexually 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, sexual, 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,
sexual 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
subparagraph (A) of paragraph (10) 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 an 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) An act or omission relating to the approval of a batterer's
treatment programs under paragraph (5) of subdivision (c) is a
discretionary act pursuant to Section 820.2 of the Government Code.

Section: Previous  1203.075  1203.076  1203.08  1203.085  1203.09  1203.095  1203.096  1203.097  1203.098  1203.1  1203.1a  1203.1b  1203.1c  Next

Last modified: March 17, 2014