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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