BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                      



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          |SENATE RULES COMMITTEE            |                     SB 9|
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                                 THIRD READING


          Bill No:  SB 9
          Author:   Yee (D), et al.
          Amended:  5/27/11
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  5-2, 4/5/11
          AYES:  Hancock, Calderon, Liu, Price, Steinberg
          NOES:  Anderson, Harman

           SENATE APPROPRIATIONS COMMITTEE  :  6-2, 5/26/11
          AYES:  Kehoe, Alquist, Lieu, Pavley, Price, Steinberg
          NOES:  Walters, Runner
          NO VOTE RECORDED:  Emmerson


           SUBJECT  :    Sentencing

           SOURCE  :     Human Rights Watch
                      National Center for Youth Law


           DIGEST  :    This bill authorizes 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 the possibility 
          of parole to submit a petition for recall and re-sentencing 
          to the sentencing court, as specified.  

           Senate Floor Amendments  of 5/27/11 make changes to the 
          bill's proposed process and eligibility for resentencing 
          persons who were sentenced to imprisonment for life without 
          the possibility of parole when they were under 18 years of 
          age, as specified.
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           ANALYSIS  :    Under current law, minors age 14 and older can 
          be subject to prosecution in adult criminal court depending 
          upon their alleged offense and their criminal offense 
          history.  (Welfare and Institutions Code ›WIC] Sections 
          602(b) and 707.)  Current law contains three discrete 
          mechanisms for remanding minors to adult criminal court for 
          prosecution:

           1. Statutory or legislative waiver requires that minors 14 
             years of age or older who are alleged to have committed 
             specified murder and sex offenses be prosecuted in adult 
             criminal court (i.e., the juvenile court has no 
             jurisdiction over these cases) (WIC Section 602 (a));


           2. Prosecutorial waiver gives prosecutors the discretion 
             to file cases against minors 14 and older, depending 
             upon their age, alleged offense and offense history, in 
             juvenile or adult criminal court (WIC Section 707 (d)); 
             and


           3. Judicial waiver gives courts the discretion to evaluate 
             whether a minor is unfit for juvenile court based on 
             specified criteria and applicable rebuttable 
             presumptions.  (WIC Section 707 (a), (b) and (c))

          Under current law, if a prosecution is commenced against a 
          minor as a criminal case as a "direct file" case - that is, 
          through either statutory waiver or prosecutorial waiver - 
          and the minor is convicted of a "direct file" offense, the 
          minor is required to be sentenced as an adult.  (Penal Code 
          (PEN) Section 1170.17 (a).)  Minors who have been convicted 
          in criminal court of lesser offenses for which they still 
          would have been eligible for transfer to adult court may be 
          able to seek a juvenile disposition instead of a criminal 
          sentence through a post-conviction fitness proceeding.  
          (PEN Section 1170.17 (b) and (c).)  Minors who are 
          convicted in adult criminal court of offenses for which 
          they would not have been eligible for adult court 
          prosecution had a petition first been filed in juvenile 
          court are subject to a juvenile disposition.  (PEN Sections 
          1170.17 (d) and 1170.19)

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          Under current law, these post-conviction proceedings are 
          not available to minors who are convicted after they have 
          been remanded to criminal court from the juvenile court 
          pursuant to WIC Section 707 (a) or (c).

          Existing law provides that notwithstanding any other law, 
          the death penalty shall not be imposed upon any person who 
          is under the age of 18 at the time of the commission of the 
          crime.  The burden of proof as to the age of such person 
          shall be upon the defendant.  (PEN Section 190.5 (a))

          Existing law provides the penalty for a defendant found 
          guilty of murder in the first degree, in any case in which 
          one or more special circumstances enumerated in PEN Section 
          190.2 or 190.25 has been found to be true, who was 16 years 
          of age or older and under the age of 18 years at the time 
          of the commission of the crime, shall be in confinement in 
          the state prison for life without the possibility of parole 
          (LWOP) or, at the discretion of the court, 25 years to 
          life.  (PEN Section 190.5 (b))

          Existing law provides for sentencing which includes a term 
          of imprisonment in the state prison, as specified.  
          Existing law provides that "(n)othing 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."  (PEN Section 1170)

          This bill provides that 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 
          LWOP has served at least 10 years of that sentence, the 
          defendant may submit to the sentencing court a petition for 
          recall and re-sentencing, 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 re-sentencing 
          pursuant to this subdivision until they have served 15 
          years.  This bill requires the petition to include a 
          statement from the defendant that includes, among other 
          things, his/her remorse and work toward rehabilitation.


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          This bill provides that defendants who have served 15 or 
          more years, but less than 25 years as of January 1, 2010, 
          be permitted to submit a petition for recall and 
          re-sentencing as follows:

           Those defendants who entered custody prior to July 1, 
            1993, may submit a petition in 2012.

           Those defendants who entered custody on or after July 1, 
            1993, but prior to January 1, 1994, may submit a petition 
            in 2013.

           Those defendants who entered custody on or after January 
            1, 1994, but prior to July 1, 1994, may submit a petition 
            in 2014.

           Those defendants who entered custody on or after July 1, 
            1994, but prior to January 1, 1995, may submit a petition 
            in 2015.

          This bill provides that the defendant serve the original 
          petition with the sentencing court and a copy of the 
          petition shall be served on the agency that prosecuted the 
          case. 

          This bill provides that the petition shall include the 
          defendant's statement that he/she was under 18 years of age 
          at the time of the crime, was sentenced to LWOP, and that 
          one of the following was true:

           The defendant was convicted pursuant to felony murder or 
            aiding and abetting murder. 

           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.

           The defendant committed the offense with at least one 
            adult codefendant.

           The defendant has performed acts that tend to indicate 
            rehabilitation or the potential for rehabilitation, 

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            including, but not limited to, availing himself/herself 
            of rehabilitative, educational, or vocational programs, 
            if those programs have been available at his/her 
            classification level and facility, using self-study for 
            self-improvement, or taking action that demonstrates the 
            presence of remorse.
           
          This bill provides that if any of the information required 
          to petition the court for a hearing 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 
          person and advise him/her that the matter cannot be 
          considered without the missing information. 

          This bill states a reply to the petition, if any, shall be 
          filed with the court within 60 days of the date on which 
          the prosecuting agency is served with the motion, unless a 
          continuance is granted for good cause. 

          This bill provides that if the court finds by a 
          preponderance of the evidence that the statements in the 
          petition are true, or if no reply to the petition is filed, 
          the court shall hold a hearing to consider whether to 
          recall the sentence and commitment previously ordered and 
          to re-sentence the defendant in the same manner as if the 
          defendant had not been previously 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.

          This bill states that the factors that the court may 
          consider when determining whether to recall and resentence 
          include, but are not limited to:

           The defendant was convicted pursuant to felony murder or 
            aiding and abetting murder provisions of law.

           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.


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           The defendant committed the offense with at least one 
            adult codefendant.

           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.

           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.

           The defendant has performed acts that tend to indicate 
            rehabilitation or the potential for rehabilitation, 
            including, but not limited to, availing himself/herself 
            of rehabilitative, educational, or vocational programs, 
            if those programs have been available at his/her 
            classification level and facility, using self-study for 
            self-improvement, or showing evidence of remorse.

           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.

           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.

          This bill states the court shall have the discretion to 
          recall the sentence and commitment previously ordered and 
          to re-sentence 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. 

          This bill mandates the court, in exercising its discretion, 
          must consider the criteria listed above.  Victims, or 
          victim family members if the victim is deceased, shall be 
          notified of the re-sentencing hearing and shall retain 
          their rights to participate in the hearing.

          This bill states that if the sentence is not recalled, the 

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          defendant may submit another petition for recall and 
          re-sentencing to the sentencing court when the defendant 
          has been committed to the custody of the department for at 
          least 15 years, or if not granted, after 20 years, or if 
          not granted, after 24 years, and a final petition may be 
          submitted and the response to that petition shall be 
          determined during the 25th year of the defendant's 
          sentence.

          This bill provides that in addition to the criteria 
          specified above, 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.

          This bill states that the provisions of this bill shall 
          apply retroactively. 

          This bill incorporates 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.

           Prior legislation  .  SB 399 (Yee), 2009-10 Session, passed 
          the Senate Floor (23-15) on June 2, 2009, but failed 
          passage on the Assembly Floor in 2010.  SB 999 (Yee), 
          2007-08 Session, died on the Senate Floor.  SB 1223 
          (Kuehl), 2003-04 Session, died on Assembly Suspense.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes   
          Local:  No

          According to the Senate Appropriations Committee:

                          Fiscal Impact (in thousands)

           Major Provisions      2011-12     2012-13     2013-14       Fund  

          Resentencing hearings         up to $52             up to 
          $64                 up to $90           General*
          Case-processing/admin         unknown, likely minorGeneral*
          Petitioner transportation     minor, absorbable     General
          Reduced sentences   unknown, potential cost savings of 

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          upGeneral
                              to $25 per inmate per year

          * Trial Court Trust Fund
           
           SUPPORT  :   (Verified  5/31/11)

          Human Rights Watch (co-source)
          National Center for Youth Law (co-source)
          Advancement Project
          American Civil Liberties Union
          American Federation of State, County and Municipal 
          Employees
          American Probation and Parole Association
          American Psychiatric Association
          Bar Association of San Francisco
          Books Not Bars, Ella Baker Center for Human Rights
          Buddhist Peace Fellowship
          California Attorneys for Criminal Justice
          California Church IMPACT
          California Coalition for Women Prisoners
          California Communities United Institute
          California Council of Churches
          California Mental Health Directors Association
          California Public Defenders Association
          California Psychiatric Association
          Californians United for Responsible Budget
          Campaign for the Fair Sentencing of Youth
          Center for Juvenile Law and Policy, Loyola Law School
          Center on Juvenile & Criminal Justice
          Christy L. Fraser, A Law Corporation - Minor Differences, a 
          film
          Child Welfare League of America
          Children's Advocacy Institute
          Children's Defense Fund
          Commonweal
          Disability Rights Legal Center
          Disability Rights California
          Everychild Foundation (Los Angeles)
          Equal Justice Initiative
          Feminist Majority and National Center for Women and 
          Policing
          Friends Committee on Legislation of California (Quakers)
          Hayward Burns Institute

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          Healing Justice Coalition
          Human Rights Advocates
          International Community Corrections Association
          John Burton Foundation for Children Without Homes
          Just Detention Institute
          Justice Now
          Justice Policy Institute
          Juvenile Law Center
          Law Office of the Alternate Public Defender for Los Angeles 
          County
          Legal Defense Fund
          Legal Services for Children
          Legal Services for Prisoners with Children
          Life Support Alliance, Rancho Cordova
          Lutheran Office of Public Policy - California
          NAACP Legal Defense and Educational Fund
          National African American Drug Policy Coalition
          National Alliance on Mental Illness - California
          National Juvenile Justice Network
          National Offices of the United Church of Christ
          Office of Restorative Justice of the Archdiocese of Los 
          Angeles
          Pacific Juvenile Defender Center
          Prison Fellowship
          Prison Law Office
          Progressive Christians Uniting
          Progressive Jewish Alliance
          Public Counsel Law Center
          Sacred Heart Church, Rancho Cucamonga
          Sentencing Project
          Sisters of St. Joseph of Orange
          Southern Poverty Law Center, Florida Youth Initiative 
          St. Mark Presbyterian Church, Newport Beach, Peace and 
            Justice Commission
          United Methodist Church, California-Nevada Conference
          University of San Francisco School of Law, Center for Law 
            and Global Justice
          University of Southern California, Gould School of Law, The 
            Post-Conviction Justice Project
          Youth Justice Coalition
          Youth Law Center

           OPPOSITION  :    (Verified  5/27/11)


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          Association for Los Angeles Deputy Sheriffs
          California District Attorneys Association
          Crime Victims Action Alliance
          Crime Victims United of California
          Los Angeles Police Protective League
          Office of the District Attorney of Sacramento County, Jan 
          Scully
          Peace Officers Research Association of California  
           
           ARGUMENTS IN SUPPORT  :    According to the author's office, 
          under existing California law, youth under the age of 18 
          years old are sentenced to life in prison without the 
          possibility of parole.  There is no system of review for 
          these cases.  The use of this sentence for juveniles (1) 
          ignores neuroscience and well-accepted understandings of 
          adolescent development
          (2) is a practice that is in violation of international law 
          and out of step with international norms, and (3) in 
          California, it is a policy that is applied unjustly.  Youth 
          are different from adults.  While they should be held 
          accountable for their actions, even those who commit 
          serious crimes should have the opportunity to prove they 
          have matured and changed.   

           ARGUMENTS IN OPPOSITION  :    The California District 
          Attorneys Association opposes this bill stating:

            "To be clear, the universe of inmates to which this bill 
            would apply is comprised almost exclusively of persons 
            who were convicted of first degree murder with one or 
            more special circumstances and who were 16 or 17 years 
            old at the time of the offense.  Existing law properly 
            recognizes the fact that there are juveniles who commit 
            special circumstances murder and that LWOP is an 
            appropriate sentence in many, if not most, of those 
            cases.  At the same time, the statute acknowledges the 
            possibility of a rare exception and grants judicial 
            discretion to impose a lesser sentence of 25 years to 
            life.  We agree with the propriety of existing law in 
            this regard and therefore oppose any effort, whether 
            overt or veiled, to substantially weaken the statutory 
            response to special circumstances murder committed by 
            specified juveniles.


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            "In addition to our general concern with the intent of 
            this bill, we take issue with the specific sentence 
            recall process contained therein.  Under one scenario 
            contemplated by the measure, a petitioner found by the 
            court to have been under the age of 18 at the time of the 
            offense that resulted in his or her LWOP sentence could 
            qualify for a resentencing hearing solely on the basis 
            that the petitioner has performed acts that tend to 
            indicate rehabilitation, or the potential for 
            rehabilitation, or has shown evidence of remorse.  
            Creating the potential for an LWOP sentence to be reduced 
            by setting such a low standard for eligibility is an 
            affront to justice and disrespectful of the victims of 
            these crimes."


          RJG:mw  5/31/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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