BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 9
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          SENATE THIRD READING
          SB 9 (Yee)
          As Amended  February 2, 2012
          Majority vote

           SENATE VOTE  :21-16  
           
           PUBLIC SAFETY       5-2         APPROPRIATIONS      9-6         
           
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          |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                    |
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           PUBLIC SAFETY       4-0                                          
                                          
           
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          |Ayes:|Ammiano, Cedillo, Hill,   |     |                          |
          |     |Mitchell                  |     |                          |
          |     |                          |     |                          |
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           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 resentencing.

          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 








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            political subdivisions, is exempt 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 
            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 








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            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 
            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 








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               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 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.








                                                                  SB 9
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           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 
            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 








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               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 
            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.  









                                                                  SB 9
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           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 
            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: 0003102










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