BILL NUMBER: SB 40	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JANUARY 25, 2007

INTRODUCED BY   Senator Romero

                        DECEMBER 20, 2006

   An act to  add Article 6.6 (commencing with Section
110808) to Chapter 5 of Part 5 of Division 104 of the Health and
Safety Code, relating to food.   amend, repeal, and add
Section 1170 of the Penal Code, relating to sentencing and declaring
the urgency thereof, to take effect immediately. 


	LEGISLATIVE COUNSEL'S DIGEST


   SB 40, as amended, Romero.  Food: trans fats. 
 Sentencing.  
   Existing law establishes various felonies punishable by a triad of
terms of incarceration in the state prison, comprised of low,
middle, and upper terms. Existing law requires the court to impose
the middle term, unless there are circumstances in mitigation or
aggravation of the crime.  
   This bill would instead provide that the choice of the appropriate
term would rest within the sound discretion of the court. The bill
would make other nonsubstantive changes. This bill would provide that
these changes would be repealed on January 1, 2009. 
    This bill would declare that it is to   take effect
immediately as an urgency statute.  
   The Sherman Food, Drug, and Cosmetic Act contains various
provisions regarding the contents, packaging, labeling, and
advertising of food, drugs, and cosmetics. The State Department of
Health Services administers and enforces the act. Effective July 1,
2007, these duties shall be transferred to the State Department of
Public Health.  
   This bill would require every food facility to maintain on the
premises the manufacturer's documentation or label for any food or
food additive that is or includes any fat, oil, or shortening, for as
long as this food or food additive is stored, distributed, or served
by, or used in the preparation of food within, the food facility.
The bill would require the manufacturer's documentation to be
authorized by the department and to disclose specified information.
 
   This bill would also, on and after July 1, 2008, prohibit any food
containing artificial trans fat, as specified, from being stored,
distributed, or served by, or used in the preparation of any food
within, a food facility. The bill would exempt from this prohibition,
food sold or served in a manufacturer's original sealed package.

   Vote:  majority   2/3  . Appropriation:
no. Fiscal committee: yes. State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    It is the intent of the Legislature in
enacting this provision to respond to the decision of the United
States Supreme Court in Cunningham v. California, No. 05-6551, 2007
U.S. Lexis 1324. It is the further intent of the Legislature to
maintain stability in California's criminal justice system while the
criminal justice and sentencing structures in California sentencing
are being reviewed. 
   SEC. 2.    Section 1170 of the   Penal Code
  is amended to read: 
   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  Director of
Corrections   Secretary of the Department of
Corrections and Rehabilitation  . 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  Director of
Corrections   Secretary of the Department of C 
 orrections and Rehabilitation  .
   (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   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 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  Director of
Corrections   Secretary of the Department of Corrections
and Rehabilitation  , the court may, within 120 days of the
date of commitment on its own motion, or at any time upon the
recommendation of the  Director of Corrections  
s   ecretary  or the Board of  Prison Terms
  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) of Section 1170, if the 
Director of Corrections   Secretary of the Department of
Corrections and Rehabilitation  or the Board of  Prison
Terms   Parole Hearings  or both determine that a
prisoner satisfies the criteria set forth in paragraph (2), the
 director   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 both of the following:
   (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.
   The Board of  Prison Terms   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
 director   secretary  or the board, the
court shall hold a hearing to consider whether the prisoner's
sentence should be recalled.
   (4) The prisoner or his or her family member or designee may
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the  Director of
Corrections   Secretary of the Department of Corrections
and Rehabilitation  . Upon receipt of the request, if the
 director   secretary  determines that the
prisoner satisfies the criteria set forth in paragraph (2), the
 director   secretary  or board may
recommend to the court that the prisoner's sentence be recalled. The
 director   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  director  
secretary  may make a recommendation to the Board of 
Prison Terms   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.
   (5) Any recommendation for recall submitted to the court by the
 Director of Corrections   Secretary of the
Department of Corrections and Rehabilitation  or the Board of
 Prison Terms   Parole Hearings  shall
include one or more medical evaluations, a postrelease plan, and
findings pursuant to paragraph (2).
   (6) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
   (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.

   SEC. 3.    Section 1170 is added to the  
Penal Code   , to read:  
   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 of
Corrections and Rehabilitation. 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 of
Corrections and Rehabilitation, 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) of Section 1170, if the Secretary of
Corrections and Rehabilitation 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 both of the following:
   (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.
   The board 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) The prisoner or his or her family member or designee may
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, 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 may make a
recommendation to the board 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.
   (5) Any recommendation for recall submitted to the court by the
secretary or the board shall include one or more medical evaluations,
a postrelease plan, and findings pursuant to paragraph (2).
   (6) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
   (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. 
   SEC. 4.    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:

   In order to respond to the United States Supreme Court decision in
Cunningham v. California and provide for stability in California's
criminal justice system, it is necessary that this act take effect
immediately.  
  SECTION 1.    Article 6.6 (commencing with Section
110808) is added to Chapter 5 of Part 5 of Division 104 of the
Health and Safety Code, to read:

      Article 6.6.  Trans Fats


   110808.  (a) Every food facility shall maintain on the premises
the manufacturer's documentation or label for any food or food
additive that is or includes any fat, oil, or shortening, for as long
as this food or food additive is stored, distributed, or served by,
or used in the preparation of food within, the food facility. The
label described in this subdivision refers to the label that is
required by applicable federal and state law to be on the food or
food additive at the time of purchase by the food facility. The
manufacturer's documentation may be maintained in lieu of the label.
The manufacturer's documentation shall be maintained whenever the
label is not required by federal and state law on the food or food
additive that is or includes any fat, oil, or shortening. The
manufacturer's documentation described in this subdivision shall be
authorized by the department and disclose one or both of the
following:
   (1) The trans fat content of the food or food additive.
   (2) Whether a food or food additive is or includes margarine,
vegetable shortening, or any kind of partially hydrogenated vegetable
oil.
   (b) (1) On and after July 1, 2008, no food containing artificial
trans fat may be stored, distributed, or served by, or used in the
preparation of any food within, a food facility.
   (2) Paragraph (1) shall not apply to food sold or served in a
manufacturer's original, sealed package.
   (c) For purposes of this section, a food contains artificial trans
fat if the food contains vegetable shortening, margarine, or any
kind of partially hydrogenated vegetable oil, unless the manufacturer'
s documentation or the label required on the food, pursuant to
applicable federal and state law, lists the trans fat content as less
than 0.5 grams per serving.
   (d) For purposes of this section, food facility has the same
meaning as in Section 113789.
   (e) Section 111825 shall not apply to a violation of this section.