BILL NUMBER: AB 2 CHAPTERED 01/21/04 CHAPTER 1 FILED WITH SECRETARY OF STATE JANUARY 21, 2004 APPROVED BY GOVERNOR JANUARY 21, 2004 PASSED THE ASSEMBLY JANUARY 12, 2004 PASSED THE SENATE AUGUST 27, 2003 AMENDED IN SENATE AUGUST 21, 2003 AMENDED IN SENATE JULY 1, 2003 AMENDED IN ASSEMBLY MARCH 5, 2003 AMENDED IN ASSEMBLY JANUARY 29, 2003 INTRODUCED BY Assembly Member Bogh (Coauthors: Assembly Members Bermudez, Cogdill, Koretz, and Spitzer) DECEMBER 2, 2002 An act to amend Sections 1191.15, 3041, and 3043.2 of, and to add Section 3043.6 to, the Penal Code, and to add Section 1767.9 to the Welfare and Institutions Code, relating to victims, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST AB 2, Bogh. Victims: appearances at parole hearings. Existing law authorizes the court to permit the victim of any crime, or his or her parent or guardian if the victim is a minor, or the next of kin of the victim if the victim has died, to file with the court a written, audiotaped, or videotaped statement expressing his or her views concerning the crime, the person responsible, and the need for restitution, in lieu of or in addition to the person personally appearing at the time of judgment and sentence. This bill would in addition, authorize submission of the statement on a CD Rom, DVD, or any other recording medium acceptable to the court. Existing law establishes procedures for granting parole. Existing law also provides, on an emergency basis, and only until December 31, 2003, that life parole consideration hearings and life rescission hearings may be conducted by a 2-person panel, and would impose other requirements on the panel in order to eliminate a backlog of inmates awaiting parole consideration, as specified. Existing law also requires the Board of Prison Terms to report monthly on the number of hearings conducted in the previous month, the number scheduled in the current and subsequent months, the backlog of cases awaiting a hearing, and progress toward eliminating the backlog. This bill would provide that these provisions would be operative until December 31, 2005. The bill would also provide that the described reports would be due on a quarterly basis. Existing law authorizes the Board of Prison Terms to permit, in lieu of personal appearance at any hearing to review the parole suitability or the setting of a parole date, the victim, his or her next of kin, or immediate family members to file with the board a written, audiotaped, or videotaped statement expressing his or her views concerning the crime and the person responsible. This bill would in addition, authorize submission of the statement on a CD Rom, DVD, or any other recording medium accepted by the board or by a court pursuant to the provision discussed above. The bill would authorize the hearing officer to ensure that only accurate and relevant statements are considered in determining parole suitability, as specified. Existing law, added by initiative statute, provides that a victim or certain others may appear at a parole hearing for the prisoner responsible for the crime who is confined in the state prison in order to present his or her views concerning the crime and the person responsible. Existing law, added by initiative statute, similarly provides that a victim or certain others may appear at the parole hearing for the prisoner responsible for the crime who is under the control of the Youth Authority. The initiative statute provides that any amendment to its provisions by the Legislature shall require a 2/3 vote of the membership of each house. This bill would authorize the victim or others appearing with or for the victim to request that the victim or others speak last at a parole hearing for the person confined in the state prison or under the control of the Youth Authority. The bill would require the Board of Prison Terms to report to the Legislature, no later than June 30, 2004, regarding the use of video conferencing to conduct life parole consideration hearings. Because this bill would amend provisions of the initiative statutes, this bill would require a 2/3 vote. This bill would declare that it is to take effect immediately as an urgency statute. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1191.15 of the Penal Code is amended to read: 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. SEC. 2. Section 3041 of the Penal Code is amended to read: 3041. (a) In the case of any prisoner sentenced pursuant to any provision of law, other than Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, the Board of Prison Terms shall meet with each inmate during the third year of incarceration for the purposes of reviewing the inmate's file, making recommendations, and documenting activities and conduct pertinent to granting or withholding postconviction credit. One year prior to the inmate's minimum eligible parole release date a panel consisting of at least two commissioners of the Board of Prison Terms shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5. The panel shall consist solely of commissioners or deputy commissioners from the Board of Prison Terms. The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the prisoner was sentenced and other factors in mitigation or aggravation of the crime. At least one commissioner of the panel shall have been present at the last preceding meeting, unless it is not feasible to do so or where the last preceding meeting was the initial meeting. Any person on the hearing panel may request review of any decision regarding parole to the full board for an en banc hearing. In case of a review, a majority vote of the full Board of Prison Terms in favor of parole is required to grant parole to any prisoner. (b) The panel or board shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting. After the effective date of this subdivision, any decision of the parole panel finding an inmate suitable for parole shall become final within 120 days of the date of the hearing. During that period, the board may review the panel's decision. The panel's decision shall become final pursuant to this subdivision unless the board finds that the panel made an error of law, or that the panel's decision was based on an error of fact, or that new information should be presented to the board, any of which when corrected or considered by the board has a substantial likelihood of resulting in a substantially different decision upon a rehearing. In making this determination, the board shall consult with the commissioners who conducted the parole consideration hearing. No decision of the parole panel shall be disapproved and referred for rehearing except by a majority vote of the board following a public hearing. (c) For the purpose of reviewing the suitability for parole of those prisoners eligible for parole under prior law at a date earlier than that calculated under Section 1170.2, the board shall appoint panels of at least two persons to meet annually with each prisoner until the time the person is released pursuant to proceedings or reaches the expiration of his or her term as calculated under Section 1170.2. (d) Notwithstanding subdivision (a) and Section 5076.1, on an emergency basis, and only until December 31, 2005, life parole consideration hearings or life rescission hearings may be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. It is the intent of the Legislature in enacting this subdivision to allow the board to increase the number of hearings conducted each month to eliminate the backlog of inmates awaiting a parole consideration hearing. The board shall report monthly on the number of hearings conducted in the previous month, the number scheduled in the current and subsequent months, the backlog of cases awaiting a hearing, and progress toward eliminating the backlog, if any. The report shall be made public at a regularly scheduled meeting of the board and a written report shall be made available to the public and transmitted to the Legislature quarterly. SEC. 3. Section 3043.2 of the Penal Code is amended to read: 3043.2. (a) In lieu of personal appearance at any hearing to review the parole suitability or the setting of a parole date, the Board of Prison Terms may permit the victim, his or her next of kin, or immediate family members to file with the board a written, audiotaped, or videotaped statement, or statement stored on a CD Rom, DVD, or any other recording medium accepted by a court pursuant to Section 1191.15 or by the board, expressing his or her views concerning the crime and the person responsible. The statement may be personal messages from the person to the board made at any time or may be a statement made pursuant to Section 1191.16, or a combination of both. The board shall consider any statement filed prior to reaching a decision, and shall include in its report a statement of whether the person would pose a threat to public safety if released on parole. (b) Whenever an audio or video statement or a statement stored on a CD Rom, DVD, or other medium is filed with the board, a written transcript of the statement shall also be provided by the person filing the statement. (c) Nothing in this section shall be construed to prohibit the prosecutor from representing to the board the views of the victim, his or her immediate family members, or next of kin. (d) In the event the board permits an audio or video statement or statement stored on a CD Rom, DVD, or other medium to be filed, the board shall not be responsible for providing any equipment or resources needed to assist the victim in preparing the statement. SEC. 4. Section 3043.6 is added to the Penal Code, to read: 3043.6. Any person authorized to appear at a parole hearing pursuant to Section 3043, or a prosecutor authorized to represent the views of the victim, his or her immediate family, or next of kin, pursuant to Section 3043.2, shall have the right to speak last before the board in regard to those persons appearing and speaking before the board at a parole hearing. Nothing in this section shall prohibit the person presiding at the hearing from taking any steps he or she deems appropriate to ensure that only accurate and relevant statements are considered in determining parole suitability as provided in law, including, but not limited to, the rebuttal of inaccurate statements made by any party. SEC. 5. Section 1767.9 is added to the Welfare and Institutions Code, to read: 1767.9. Any person authorized to appear at a parole hearing pursuant to Section 1767 shall have the right to speak last before the board in regard to those persons appearing and speaking before the board at a parole hearing. Nothing in this section shall prohibit the person presiding at the hearing from taking any steps he or she deems appropriate to ensure that only accurate and relevant statements are considered in determining parole suitability as provided in law, including, but not limited to, the rebuttal of inaccurate statements made by any party. SEC. 6. The board shall report to the Legislature no later than June 30, 2004, on the use of video conferencing to conduct life parole consideration hearings. SEC. 7. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: Because the appearance of victims at parole hearings is important to the operation of the criminal justice system, in order to facilitate the appearance of victims, it is necessary that this bill take effect immediately.