BILL ANALYSIS Ó SB 9 Page 1 SENATE THIRD READING SB 9 (Yee) As Amended September 2, 2011 Majority vote SENATE VOTE :21-16 PUBLIC SAFETY 5-2 APPROPRIATIONS 9-6 ----------------------------------------------------------------- |Ayes:|Ammiano, Cedillo, Hill, |Ayes:|Fuentes, Blumenfield, | | |Mitchell, Skinner | |Bradford, Davis, Gatto, | | | | |Hall, Hill, Lara, | | | | |Mitchell | |-----+--------------------------+-----+--------------------------| |Nays:|Knight, Hagman |Nays:|Harkey, Charles Calderon, | | | | |Donnelly, Nielsen, Norby, | | | | |Wagner | ----------------------------------------------------------------- SUMMARY : 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 (LWOP) to submit a petition for recall and resentencing to the sentencing court, as specified. Specifically, this bill : 1)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 to LWOP has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and re-sentencing. 2)States that a defendant sentenced to LWOP for an offense where the defendant tortured his or her victim, or whose victim was a public safety official including law enforcement personnel, or a firefighter, or any other law enforcement officer who is employed by the federal government, the state, or any of its political subdivisions, are exempted from petitioning the court for recall and resentencing. 3)Requires the petition to include a statement from the defendant that he or she was under the age of 18 at the time of the crime and was sentenced to LWOP, describe his or her remorse and work towards rehabilitation, and that one of the SB 9 Page 2 following is true: a) The defendant was convicted of 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; or, 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 or 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. 4)Requires the original petition to be filed with the sentencing court and a copy of the petition to be served on the agency that prosecuted the case. 5)Provides that if any of the information required to be included in 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. 6)States that 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. 7)Provides that 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 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 SB 9 Page 3 the rights to participate in the hearing. 8)Provides factors the court may consider when determining whether to recall and resentence which 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 SB 9 Page 4 has eliminated contact with individuals outside of prison who are involved with crime; or, 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. 9)States that the court shall have 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. 10)Mandates the court, in exercising its discretion, must consider the criteria listed above. Victim, 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. 11)States that 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 California Department of Corrections and Rehabilitation for at least 20 years; and if not granted after 20 years, 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. 12)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. 13)States that this bill shall have retroactive application. EXISTING LAW : 1)States that 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 existing law has been found to be true, who was 16 years of age or older and under the age of 18 SB 9 Page 5 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life. 2)States that any person who is alleged, when he or she was 14 years of age or older, to have committed murder or one of the specified sex offenses, shall be prosecuted under the general law in a court of criminal jurisdiction. 3)States that with regard to a minor alleged to be a person described in provisions of law related to juvenile delinquency by reason of the violation, when he or she was 14 years of age or older, of any of the offenses listed in existing law, upon motion of the petitioner made prior to the attachment of jeopardy the court shall cause the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor being considered for a determination of unfitness. Following submission and consideration of the report, and of any other relevant evidence that the petitioner or the minor may wish to submit, the minor shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence, which evidence may be of extenuating or mitigating circumstances, that the minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court based upon an evaluation of each of the following criteria: a) The degree of criminal sophistication exhibited by the minor; b) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction; c) The minor's previous delinquent history; d) Success of previous attempts by the juvenile court to rehabilitate the minor; and, e) The circumstances and gravity of the offenses alleged in the petition to have been committed by the minor. 4)Provides that a minor within the jurisdiction of the juvenile delinquency court may be sentenced to the Department of SB 9 Page 6 Juvenile Facilities or tried as an adult, as specified, if he or she has been charged with one of the following: murder; arson, as specified; robbery; rape with force, violence, or threat of great bodily harm; sodomy by force, violence, duress, menace, or threat of great bodily harm; a lewd or lascivious act on a person under the age of 14; oral copulation by force, violence, duress, menace, or threat of great bodily harm; forcible sexual penetration, as specified; kidnapping for ransom; kidnapping for purposes of robbery; kidnapping with bodily harm; attempted murder; assault with a firearm or destructive device; assault by any means of force likely to produce great bodily injury; discharge of a firearm into an inhabited or occupied building; a specified violent crime against a person over the age of 60; use of a firearm in a crime, as specified; a felony offense in which the minor personally used a weapon specified in existing law; a felony offense of intimidating or dissuading a witness; manufacturing, compounding, or selling one-half ounce or more of a salt or solution of a depressant listed as a controlled substance; a violent felony or gang crime, as specified; escape, by the use of force or violence, from a county juvenile hall, home, ranch, camp, or forestry camp, as specified, if great bodily injury is intentionally inflicted upon an employee of the juvenile facility during the commission of the escape; torture; aggravated mayhem; carjacking, while armed with a dangerous or deadly weapon; kidnapping for purposes of sexual assault; kidnapping during the commission of a carjacking; discharging a firearm into a vehicle, as specified, or; voluntary manslaughter. 5)Allows a prosecuting agency to file an accusatory pleading in a court of criminal jurisdiction, without a motion or hearing, against a minor, who was 16 years of age or older at the time of committing one of the enumerated offenses listed above, if the minor has previously been found to be a ward of juvenile court for a violation of a felony offense when he or she was 14 years of age or older. FISCAL EFFECT : According to the Assembly Appropriations Committee: 1)Minor absorbable annual General Fund (GF) costs to the state trial courts, likely less than $20,000 per year, to review and respond to re-sentencing petitions, and to hold re-sentencing hearings for petitions deemed eligible. This assumes an SB 9 Page 7 average of about 20 petitions per year, and an average of about five hearings, at a cost of about $2,000 per hearing. These costs should be offset to a degree by an accompanying reduction in writs of Habeas Corpus, by which inmates challenge their convictions and/or sentences. 2)Potentially moderate annual out-year GF savings to the extent inmates are re-sentenced from LWOP to life with the possibility of parole. For example, if two inmates per year are re-sentenced annually and end up serving 30 years rather than life, with the first re-sentenced inmates leaving prison in 2027, the annual savings of about $190,000 per ward, will increase annually, reaching about $7 million in 2047. COMMENTS : According to the author, "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." Please see the policy committee analysis for a full discussion of this bill. Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744 FN: 0002615