BILL NUMBER: SB 9	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 27, 2011

INTRODUCED BY   Senator Yee
   (Principal coauthors: Senators Steinberg and Vargas)
   (Coauthors: Assembly Members Fuentes and Bonnie Lowenthal)

                        DECEMBER 6, 2010

   An act to amend Section 1170 of the Penal Code, relating to
sentencing.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 9, as amended, Yee. Sentencing.
   Existing law provides that the Secretary of the Department of
Corrections and Rehabilitation or the Board of Parole Hearings, or
both, may, for specified reasons, recommend to the court that a
prisoner's sentence be recalled, and that a court may recall a
prisoner's sentence.
   This bill would authorize a prisoner who was under 18 years of age
at the time of committing an offense for which the prisoner was
sentenced to life without parole to submit a petition for recall and
resentencing to the sentencing court, and to the prosecuting agency,
as specified.  The bill would require the petition to include a
statement from the defendant that includes, among other things, his
or her remorse and work towards rehabilitation.  The bill would
establish certain criteria, at least one of which shall be asserted
in the petition, to be considered when a court decides whether to
conduct a hearing on the petition for recall and resentencing and
additional criteria to be considered by the court when deciding
whether to grant the petition. The bill would require the court to
hold a hearing if the court finds that the statements in the
defendant's petition are true, as specified. The bill would apply
retroactively, as specified. 
   The bill would incorporate additional changes to Section 1170 of
the Penal Code, made by AB 109, which has been chaptered but is
inoperative until the occurrence of events specified therein. 
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
   
  SECTION 1.    Section 1170 of the Penal Code, as
amended by Section 1 of Chapter 416 of the Statutes of 2008, 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, except as provided in subdivision (e). 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 court resentencing
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) When a defendant who was under 18 years of age at the time
of the commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of parole
has served at least 10 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing, provided that defendants who have served 10 years but
not more than 15 years as of January 1, 2012, shall not be permitted
to submit a petition for recall and resentencing pursuant to this
subdivision until they have served 15 years. Defendants who have
served 15 or more years but less than 25 years as of January 1, 2012,
shall be permitted to submit a petition for recall and resentencing
as follows:
   (A) Those defendants who entered custody prior to July 1, 1993,
may submit a petition in 2012.
   (B) Those defendants who entered custody on or after July 1, 1993,
but prior to January 1, 1994, may submit a petition in 2013.
   (C) Those defendants who entered custody on or after January 1,
1994, but prior to July 1, 1994, may submit a petition in 2014.
   (D) Those defendants who entered custody on or after July 1, 1994,
but prior to January 1, 1996, may submit a petition in 2015.
   (2) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime, was sentenced to life in prison without the
possibility of parole, and that one of the following is true:
   (A) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
   (B) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
   (C) The defendant committed the offense with at least one adult
codefendant.
   (D) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
   (3) If any of the information required in paragraph (2) is missing
from the petition, or if proof of service on the prosecuting agency
is not provided, the court shall return the petition to the defendant
and advise the defendant that the matter cannot be considered
without the missing information. The defendant may resubmit a
petition with the information or proof of service.
   (4) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency was
served with the petition, unless a continuance is granted for good
cause.
   (5) If the court finds by a preponderance of the evidence that the
statements in the petition are true, the court shall hold a hearing
to consider whether to recall the sentence and commitment previously
ordered and to resentence the defendant in the same manner as if the
defendant had not previously been sentenced, provided that the new
sentence, if any, is not greater than the initial sentence. Victims,
or victim family members if the victim is deceased, shall retain the
right to participate in the hearing.
   (6) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
   (A) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
   (B) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
   (C) The defendant committed the offense with at least one adult
codefendant.
   (D) Prior to the offense for which the sentence is being
considered for recall, the defendant had insufficient adult support
or supervision and had suffered from psychological or physical
trauma, or significant stress.
   (E) The defendant suffers from cognitive limitations due to mental
illness, developmental disabilities, or other factors that did not
constitute a defense, but influenced the defendant's involvement in
the offense.
   (F) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
   (G) The defendant has maintained family ties or connections with
others through letter writing, calls, or visits, or has eliminated
contact with individuals outside of prison who are currently involved
with crime.
   (H) The defendant has had no disciplinary actions for violent
activities in the last five years in which the defendant was
determined to be the aggressor.
   (7) The court shall have the discretion to recall the sentence and
commitment previously ordered and to resentence the defendant in the
same manner as if the defendant had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence. The discretion of the court shall be exercised in
consideration of the criteria in paragraph (6). Victims, or victim
family members if the victim is deceased, shall be notified of the
resentencing hearing and shall retain their rights to participate in
the hearing.
   (8) If the sentence is not recalled, the defendant may submit
another petition for recall and resentencing to the sentencing court
when the defendant has been committed to the custody of the
department for at least 15 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 20 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 24 years. The final petition may be submitted,
and the response to that petition shall be determined, during the
25th year of the defendant's sentence.
   (9) In addition to the criteria in paragraph (6), the court may
consider any other criteria that the court deems relevant to its
decision, so long as the court identifies them on the record,
provides a statement of reasons for adopting them, and states why the
defendant does or does not satisfy the criteria.
   (10) This subdivision shall have retroactive application.
   (f) (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.
   (g) Any sentence imposed under this article shall be subject to
the provisions of Sections 3000 and 3057 and any other applicable
provisions of law.
   (h) 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.
   (i) This section shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before that date, deletes or extends that
date. 
   SEC. 2.   SECTION 1.   Section 1170 of
the Penal Code, as amended by Section  2 of Chapter 416 of
the Statutes of 2008   6 of Chapter 256 of the Statutes
of 2010  , 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, except as provided in  paragraph (2) of
subdivision  (e)   (d)  . 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)  (1)
   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 court resentencing 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) 
    (2)     (A)  When a defendant who was
under 18 years of age at the time of the commission of the offense
for which the defendant was sentenced to imprisonment for life
without the possibility of parole has served at least  10
  15  years of that sentence, the defendant may
submit to the sentencing court a petition for recall and 
resentencing, provided that defendants who have served 10 or more
years as of January 1, 2012, shall not be permitted to submit a
petition for recall and resentencing pursuant to this subdivision
until they have served 15 years. Defendants who have served 15 or
more years but less than 25 years as of January 1, 2012, shall
  resentencing provided that defendants who entered
custody on or after January 1, 1992, but prior to July 1, 2002, shall
 be permitted to submit a petition for recall and resentencing
 only  as follows: 
   (A) 
    (i)  Those defendants who entered custody prior to
 July 1, 1993   January 1, 1994  , may
submit a petition in  2012   the 2011-12 fiscal
year  . 
   (B) 
    (ii)  Those defendants who entered custody on or after
 July 1, 1993   January 1, 1994  , but
prior to January 1,  1994   1995  , may
submit a petition in  2013   the 2012-13 fiscal
year  . 
   (C) 
    (iii)  Those defendants who entered custody on or after
January 1,  1994   1995  , but prior to
 July 1, 1994   January 1, 1996, and those who
entered custody on or after January 1, 2000, but prior to January 1,
2001  , may submit a petition in  2014  
the 2013-14 fiscal year  . 
   (D) 
    (iv)  Those defendants who entered custody on or after
 July 1, 1994, but prior to January 1, 1996, may submit a
petition in 2015.   January   1, 1996, but
prior to July 1, 1996, and those who entered custody on or after
January 1, 2001, but prior to May 1, 2001, may submit a petition in
the 2014-15 fiscal year.  
    (v) Those defendants who entered custody on or after July 1,
1996, but prior to January 1, 1997, and those who entered custody on
or after May 1, 2001, but prior to January 1, 2002, may submit a
petition in the 2015-16 fiscal year.  
    (vi) Those defendants who entered custody on or after January 1,
1997, but prior to July 1, 1997, and those who entered custody on or
after January 1, 2002, but prior to July 1, 2002, may submit a
petition in the 2016-17 fiscal year.  
    (vii) Those defendants who entered custody on or after July 1,
1997, but prior to January 1, 1998, may submit a petition in the
2017-18 fiscal year.  
    (viii) Those defendants who entered custody on or after January
1, 1998, but prior to July 1, 1998, may submit a petition in the
2018-19 fiscal year.  
    (ix) Those defendants who entered custody on or after July 1,
1998, but prior to January 1, 1999, may submit a petition in the
2019-20 fiscal year.  
    (x) Those defendants who entered custody on or after January 1,
1999, but prior to July 1, 1999, may submit a petition in the 2020-21
fiscal year.  
    (xi) Those defendants who entered custody on or after July 1,
1999, but prior to January 1, 2000, may submit a petition in the
2021-22 fiscal year.  
    (xii) If recall and resentencing is not granted under petitions
permitted in clauses (i) to (xi), inclusive, defendants who entered
custody on or after January 1, 1992, but prior to January 1, 2000,
may submit a second and final petition after having served 24 years.
The final petition may be submitted, and the response to that
petition shall be determined, during the 25th year of the defendant's
sentence. If recall and resentencing is not granted under petitions
permitted in clauses (i) to (vi), inclusive, defendants who entered
custody on or after January 1, 2000, but prior to July 1, 2002, may
submit petitions as described in subparagraph (H).  
   (2) 
    (B)  The defendant shall file the original petition with
the sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime  ,   and  was sentenced
to life in prison without the possibility of parole,  and
  the defendant's statement describing his or her
remorse and work towards rehabilitation, and the defendant's
statement  that one of the following is true: 
   (A) 
    (i)  The defendant was convicted pursuant to felony
murder or aiding and abetting murder provisions of law. 
   (B) 
    (ii)  The defendant does not have juvenile felony
adjudications for assault or other felony crimes with a significant
potential for personal harm to victims prior to the offense for which
the sentence is being considered for recall. 
   (C) 
    (iii)  The defendant committed the offense with at least
one adult codefendant. 
   (D) 
    (iv)  The defendant has performed acts that tend to
indicate rehabilitation or the potential for rehabilitation,
including, but not limited to, availing himself or herself of
rehabilitative, educational, or vocational programs, if those
programs have been available at his or her classification level and
facility, using self-study for self-improvement, or showing evidence
of remorse. 
   (3) 
    (C)  If any of the information required in 
paragraph (2)   subparagraph (B)  is missing from
the petition, or if proof of service on the prosecuting agency is not
provided, the court shall return the petition to the defendant and
advise the defendant that the matter cannot be considered without the
missing information. 
   (4) 
    (D)  A reply to the petition, if any, shall be filed
with the court within 60 days of the date on which the prosecuting
agency was served with the petition, unless a continuance is granted
for good cause. 
   (5) 
    (E)  If the court finds by a preponderance of the
evidence that the statements in the petition are true, the court
shall hold a hearing to consider whether to recall the sentence and
commitment previously ordered and to resentence the defendant in the
same manner as if the defendant had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence. Victims, or victim family members if the victim is
deceased, shall retain the rights to participate in the hearing.

   (6) 
    (F)  The factors that the court may consider when
determining whether to recall and resentence include, but are not
limited to, the following: 
   (A) 
    (i)  The defendant was convicted pursuant to felony
murder or aiding and abetting murder provisions of law. 
   (B) 
    (ii)  The defendant does not have juvenile felony
adjudications for assault or other felony crimes with a significant
potential for personal harm to victims prior to the offense for which
the sentence is being considered for recall. 
   (C) 
    (iii)  The defendant committed the offense with at least
one adult codefendant. 
   (D) 
    (iv)  Prior to the offense for which the sentence is
being considered for recall, the defendant had insufficient adult
support or supervision and had suffered from psychological or
physical trauma, or significant stress. 
   (E) 
    (v)  The defendant suffers from cognitive limitations
due to mental illness, developmental disabilities, or other factors
that did not constitute a defense, but influenced the defendant's
involvement in the offense. 
   (F) 
    (vi)  The defendant has performed acts that tend to
indicate rehabilitation or the potential for rehabilitation,
including, but not limited to, availing himself or herself of
rehabilitative, educational, or vocational programs, if those
programs have been available at his or her classification level and
facility, using self-study for self-improvement, or showing evidence
of remorse. 
   (G) 
    (vii)  The defendant has maintained family ties or
connections with others through letter writing, calls, or visits, or
has eliminated contact with individuals outside of prison who are
currently involved with crime. 
   (H) 
    (viii)  The defendant has had no disciplinary actions
for violent activities in the last five years in which the defendant
was determined to be the aggressor. 
   (7) 
    (G)  The court shall have the discretion to recall the
sentence and commitment previously ordered and to resentence the
defendant in the same manner as if the defendant had not previously
been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence. The discretion of the court shall
be exercised in consideration of the criteria in  paragraph
(2)   subparagraph (B)  . Victims, or victim family
members if the victim is deceased, shall be notified of the
resentencing hearing and shall retain their rights to participate in
the hearing. 
   (8) 
    (H)  If the sentence is not recalled, the defendant may
submit another petition for recall and resentencing to the sentencing
court when the defendant has been committed to the custody of the
department for at least  15 years. If recall and resentencing
is not granted under that petition, the defendant may file another
petition after having served  20 years. If recall and
resentencing is not granted under that petition, the defendant may
file another petition after having served 24 years. The final
petition may be submitted, and the response to that petition shall be
determined, during the 25th year of the defendant's sentence.

   (9) 
    (I)  In addition to the criteria in  paragraph
(6)   subparagraph (F)  , the court may consider
any other criteria that the court deems relevant to its decision, so
long as the court identifies them on the record, provides a statement
of reasons for adopting them, and states why the defendant does or
does not satisfy the criteria. 
   (10) 
    (J)  This subdivision shall have retroactive
application. 
   (f) 
    (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.

   (g) 
    (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. 
   (h) 
    (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. 
   (i) 
    (h)  This section shall become operative on January 1,
2012.
   SEC. 2.    Section 1170 of the   Penal Code
  , as amended by Section 451 of Chapter 15 of  
the Statutes of 2011, 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 , except as provided in paragraph (2) of
subdivision (d)  . 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)  (1)   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. 
   (2) (A) When a defendant who was under 18 years of age at the time
of the commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of parole
has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and resentencing
provided that defendants who entered custody on or after January 1,
1992, but prior to July 1, 2002, shall be permitted to submit a
petition for recall and resentencing only as follows:  
   (i) Those defendants who entered custody prior to January 1, 1994,
may submit a petition in the 2011-12 fiscal year.  
   (ii) Those defendants who entered custody on or after July 1,
1994, but prior to January 1, 1995, may submit a petition in the
2012-13 fiscal year.  
   (iii) Those defendants who entered custody on or after January 1,
1995, but prior to January 1, 1996, and those who entered custody on
or after January 1, 2000, but prior to January 1, 2001, may submit a
petition in the 2013-14 fiscal year.  
   (iv) Those defendants who entered custody on or after January 1,
1996, but prior to July 1, 1996, and those who entered custody on or
after January 1, 2001, but prior to May 1, 2001, may submit a
petition in the 2014-15 fiscal year.  
   (v) Those defendants who entered custody on or after July 1, 1996,
but prior to January 1, 1997, and those who entered custody on or
after May 1, 2001, but prior to January 1, 2002, may submit a
petition in the 2015-16 fiscal year.  
   (vi) Those defendants who entered custody on or after January 1,
1997, but prior to July 1, 1997, and those who entered custody on or
after January 1, 2002, but prior to July 1, 2002, may submit a
petition in the 2016-17 fiscal year.  
   (vii) Those defendants who entered custody on or after July 1,
1997, but prior to January 1, 1998, may submit a petition in the
2017-18 fiscal year.  
   (viii) Those defendants who entered custody on or after January 1,
1998, but prior to July 1, 1998, may submit a petition in the
2018-19 fiscal year.  
   (ix) Those defendants who entered custody on or after July 1,
1998, but prior to January 1, 1999, may submit a petition in the
2019-20 fiscal year.  
   (x) Those defendants who entered custody on or after January 1,
1999, but prior to July 1, 1999, may submit a petition in the 2020-21
fiscal year.  
   (xi) Those defendants who entered custody on or after July 1,
1999, but prior to January 1, 2000, may submit a petition in the
2021-22 fiscal year.  
   (xii) If recall and resentencing is not granted under petitions
permitted in clauses (i) to (xi), inclusive, defendants who entered
custody on or after January 1, 1992, but prior to January 1, 2000,
may submit a second and final petition after having served 24 years.
The final petition may be submitted, and the response to that
petition shall be determined, during the 25th year of the defendant's
sentence. If recall and resentencing is not granted under petitions
permitted in clauses (i) to (vi), inclusive, defendants who entered
custody on or after January 1, 2000, but prior to July 1, 2002, may
submit petitions as described in subparagraph (H).  
    (B) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:  
   (i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.  
   (ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.  
   (iii) The defendant committed the offense with at least one adult
codefendant.  
   (iv) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
 
   (C) If any of the information required in subparagraph (B) is
missing from the petition, or if proof of service on the prosecuting
agency is not provided, the court shall return the petition to the
defendant and advise the defendant that the matter cannot be
considered without the missing information. The defendant may
resubmit a petition with the information or proof of service. 

   (D) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency was
served with the petition, unless a continuance is granted for good
cause.  
   (E) If the court finds by a preponderance of the evidence that the
statements in the petition are true, the court shall hold a hearing
to consider whether to recall the sentence and commitment previously
ordered and to resentence the defendant in the same manner as if the
defendant had not previously been sentenced, provided that the new
sentence, if any, is not greater than the initial sentence. Victims,
or victim family members if the victim is deceased, shall retain the
right to participate in the hearing.  
   (F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:  
   (i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.  
   (ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.  
   (iii) The defendant committed the offense with at least one adult
codefendant.  
   (iv) Prior to the offense for which the sentence is being
considered for recall, the defendant had insufficient adult support
or supervision and had suffered from psychological or physical
trauma, or significant stress.  
   (v) The defendant suffers from cognitive limitations due to mental
illness, developmental disabilities, or other factors that did not
constitute a defense, but influenced the defendant's involvement in
the offense.  
   (vi) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
 
   (vii) The defendant has maintained family ties or connections with
others through letter writing, calls, or visits, or has eliminated
contact with individuals outside of prison who are currently involved
with crime.  
   (viii) The defendant has had no disciplinary actions for violent
activities in the last five years in which the defendant was
determined to be the aggressor.  
   (G) The court shall have the discretion to recall the sentence and
commitment previously ordered and to resentence the defendant in the
same manner as if the defendant had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence. The discretion of the court shall be exercised in
consideration of the criteria in subparagraph (F). Victims, or victim
family members if the victim is deceased, shall be notified of the
resentencing hearing and shall retain their rights to participate in
the hearing.  
   (H) If the sentence is not recalled, the defendant may submit
another petition for recall and resentencing to the sentencing court
when the defendant has been committed to the custody of the
department for at least 20 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 24 years. The final petition may be submitted,
and the response to that petition shall be determined, during the
25th year of the defendant's sentence.  
   (I) In addition to the criteria in subparagraph (F), the court may
consider any other criteria that the court deems relevant to its
decision, so long as the court identifies them on the record,
provides a statement of reasons for adopting them, and states why the
defendant does or does not satisfy the criteria.  
   (J) This paragraph shall have retroactive application. 
   (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) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
   (2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
   (3) Notwithstanding paragraphs (1) and (2), where the defendant
has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7, a violent felony
described in subdivision (c) of Section 667.5, is required to
register as a sex offender pursuant to Chapter 5.5 (commencing with
Section 290) of Title 9 of Part 1, or is convicted of a crime and as
part of the sentence an enhancement pursuant to Section 186.11 is
imposed, an executed sentence for a felony punishable pursuant to
this subdivision shall be served in state prison.
   (4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
   (5) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after July 1, 2011.
   (i) This section shall become operative on January 1, 2012.
   SEC. 3.    Section 2 of this bill incorporates
amendments to Section 1170 of the Penal Code proposed by both this
bill and AB 109, which has been chaptered but is not operative.
Section 2 shall become operative only if (a) this bill is enacted and
becomes effective on or before January 1, 2012, (b) this bill amends
Section 1170 of the Penal Code, and (c) AB 109 becomes operative, in
which case Section 1170 of the Penal Code, as amended by Section 1
of this bill, shall remain operative only until the operative date of
AB 109, at which time Section 2 of this bill shall become operative.