BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 9|
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UNFINISHED BUSINESS
Bill No: SB 9
Author: Yee (D), et al.
Amended: 7/2/12
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
SENATE FLOOR : 21-16, 6/1/11
AYES: Alquist, Calderon, Corbett, De León, DeSaulnier,
Evans, Hancock, Hernandez, Kehoe, Leno, Liu, Lowenthal,
Negrete McLeod, Padilla, Pavley, Price, Simitian,
Steinberg, Vargas, Wright, Yee
NOES: Anderson, Berryhill, Blakeslee, Cannella, Correa,
Dutton, Fuller, Gaines, Harman, Huff, La Malfa, Lieu,
Runner, Strickland, Walters, Wyland
NO VOTE RECORDED: Emmerson, Rubio, Wolk
ASSEMBLY FLOOR : 41-34, 8/16/12 - See last page for vote
SUBJECT : Sentencing
SOURCE : Human Rights Watch
National Center for Youth Law
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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 (LWOP) to submit a petition for recall and
re-sentencing to the sentencing court, as specified.
Assembly Amendments (1) delete double-jointing language,
(2) prohibit a prisoner who tortured a victim or whose
victim was a public official from filing a petition for
recall of sentencing, and (3) provide that a prisoner must
have served at least 15 years of sentence before
eligibility to file for recall of sentence.
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.
ANALYSIS :
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/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/she was 14 years of age or older, of any of the
offenses listed in existing law, upon motion of the
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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 Juvenile Facilities or tried as an adult,
as specified, if he/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
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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/she was 14 years
of age or older.
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/her victim, or whose
victim was a public safety official including law
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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, is exempt from petitioning the court for
recall and resentencing.
3. Requires the petition to include a statement from the
defendant that he/she was under the age of 18 at the
time of the crime and was sentenced to LWOP, describe
his/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/herself or 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.
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.
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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 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
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offense;
F. 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;
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
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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.
14.Incorporates the language of this bill into the recently
amended section which was enacted as part of the Budget
Act to avoid chaptering issues.
Prior legislation . SB 399 (Yee, 2009) passed the Senate
(23-15) on June 2, 2009, but failed passage on the Assembly
Floor in 2010. SB 999 (Yee, 2007) died on the Senate
Floor. SB 1223 (Kuehl, 2003) 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
upGeneral
to $25 per inmate per year
* Trial Court Trust Fund
SUPPORT : (Verified 8/16/12)
Human Rights Watch (co-source)
National Center for Youth Law (co-source)
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Advancement Project
AFSCME
Alliance for a Better District 6
American Civil Liberties
American Probation and Parole Association
American Psychiatric Association
Bar Association of San Francisco
Books Not Bars
Buddhist Peace Fellowship
California Academy of Child & Adolescent Psychiatry
California Attorneys for Criminal Justice
California Catholic Conference
California Church Impact
California Coalition for Women Prisoners
California Communities United Institute
California Medical Association
California Mental Health Directors Association
California Psychiatric Association
California Psychological Association
California Public Defenders Association
Californians United for a Responsible Budget
Campaign for the Fair Sentencing of Youth
Child Welfare League of America
Children's Law Center
Children's Advocacy Institute: University of San Diego
Children's Defense Fund
City and county of SF: District Attorney
Commonweal: Juvenile Justice Program
Disability Rights California
Disability Rights Legal Center
Dolores Mission Catholic Church
Equal Justice Initiative
Every Child Foundation
Feminist Majority
Friends Committee on Legislation of California
Friends Outside
Healing Justice Coalition
Human Rights Advocates
International Community Corrections Association
John Burton Foundation for Children without Homes
Just Detention International
Justice Now
Justice Policy Institute
Juvenile Law Center
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Law Offices of the LA County Alternate Public Defender
League of United Latin American Citizens
Legal Services for Children
Legal Services for Prisoners with Children
Life Support Alliance
Los Angeles County Democratic Party
Loyola Law School: Center for Juvenile Law & Policy
Lutheran Office of Public Policy-California
Mexican American Legal Defense and Educational Fund
NAACP Legal Defense and Educational Fund
National African American Drug Policy Coalition
National Alliance on Mental Illness
National Center for Lesbian Rights
National Organization of Women
Office of Restorative Justice: Archdiocese of LA
Pacific Juvenile Defender Center
People of Faith Support Fair Sentencing for Youth
Prison Fellowship
Prison Law Office
Progressive Christians Uniting
Public Council Law Center
Sacred Heart Church
SEIU Local 1000
Sentencing Project Research and Advocacy for Reform
Sisters of St. Joseph of Orange
Southern Poverty Law Center
St. Mark Presbyterian Church
United Church of Christ
United Methodist Church
University of San Francisco
University of Southern California Gould School of Law
W. Haywood Burns Institute
Youth Justice Coalition
Youth Law Center
OPPOSITION : (Verified 8/16/12)
Association for Los Angeles Deputy Sheriffs
California Association of Highway Patrolmen
California Coalition of Law Enforcement Associations
California District Attorneys Association
California Narcotic Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
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Crime Victims Action Alliance
Crime Victims United of California
Los Angeles County District Attorney's Office
Los Angeles Police Protective League
National Organization of Victims of Juvenile Lifers
Peace Officers Research Association of California
Sacramento County District Attorney's Office
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.
"In addition to our general concern with the intent of
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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."
ASSEMBLY FLOOR : 41-34, 8/16/12
AYES: Allen, Ammiano, Atkins, Beall, Blumenfield, Bonilla,
Bradford, Brownley, Butler, Charles Calderon, Carter,
Cedillo, Chesbro, Davis, Dickinson, Eng, Feuer, Fong,
Fuentes, Furutani, Gatto, Gordon, Hall, Hayashi, Roger
Hernández, Hill, Hueso, Huffman, Lara, Bonnie Lowenthal,
Mendoza, Mitchell, Monning, Pan, V. Manuel Pérez,
Skinner, Swanson, Wieckowski, Williams, Yamada, John A.
Pérez
NOES: Achadjian, Bill Berryhill, Block, Conway, Cook,
Donnelly, Fletcher, Beth Gaines, Galgiani, Garrick,
Gorell, Grove, Hagman, Halderman, Harkey, Jeffries,
Jones, Knight, Logue, Ma, Mansoor, Miller, Morrell,
Nestande, Nielsen, Norby, Olsen, Perea, Portantino,
Silva, Smyth, Torres, Valadao, Wagner
NO VOTE RECORDED: Alejo, Buchanan, Campos, Huber, Solorio
RJG:m 8/17/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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