BILL NUMBER: SB 40 ENROLLED
BILL TEXT
PASSED THE SENATE MARCH 28, 2007
PASSED THE ASSEMBLY MARCH 26, 2007
AMENDED IN ASSEMBLY MARCH 15, 2007
AMENDED IN ASSEMBLY MARCH 8, 2007
AMENDED IN SENATE FEBRUARY 1, 2007
AMENDED IN SENATE JANUARY 25, 2007
INTRODUCED BY Senator Romero
DECEMBER 20, 2006
An act to amend, repeal, and add Sections 1170 and 1170.3 of the
Penal Code, relating to sentencing, and declaring the urgency
thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 40, Romero. 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these changes would be repealed on January 1, 2009. The bill would
make other conforming changes.
The bill would require the Department of Corrections and
Rehabilitation, commencing July 1, 2007, to post on its Internet Web
site biannual updates of the number of felons admitted to state
prison with at least one upper term sentence, as specified. The bill
would also require the Judicial Council to report to the Legislature
on or before January 1, 2008, on the implementation of the provisions
of the bill, as specified.
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. 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 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 Secretary of the Department
of Corrections and Rehabilitation.
(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 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 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 of the Department
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 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) 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 of the
Department of Corrections and Rehabilitation. 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 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.
(5) Any recommendation for recall submitted to the court by the
Secretary of the Department of Corrections and Rehabilitation or the
Board of 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 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 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), if the Secretary of the Department
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. Section 1170.3 of the Penal Code is amended to read:
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.
SEC. 5. Section 1170.3 is added to the Penal Code, to read:
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.
SEC. 6. (a) The Department of Corrections and Rehabilitation
shall, commencing July 1, 2007, post on its Internet Web site,
biannual updates for that calendar year of the number of felons
admitted to state prison with at least one upper term sentence.
(b) On or before January 1, 2008, the Judicial Council shall
advise the Legislature on the implementation of the provisions of the
act adding this paragraph, including, but not limited to, the
development of revised rules of court and any relevant information
concerning implementation consequences relating to the effect of this
act.
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:
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.