BILL NUMBER: SBX1 5 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY SEPTEMBER 2, 2011
INTRODUCED BY Committee on Budget and Fiscal Review
MAY 18, 2011
An act relating to the Budget Act of 2010.
An act to amend Sections 26605 and 30025 of the Government Code, to
amend Sections 11355 and 11382 of the Health and Safety Code, to
amend Sections 17, 18, 273d, 667.5, 800, 1170, 1170.1, 2933, 3000.08,
3000.09, 3001, 3003, 3056, 3057, 3060.7, 3067, 3073.1, 3450, 3453,
3454, 3455, 3456, 4000, 4019, 4501.1, 4530, 12021.5, and 12025 of, to
add Sections 1233.15, 3460, 3465, 4019.2, and 4115.56 to, and to
repeal and add Section 2932 of, the Penal Code, to amend Section 9 of
Chapter 136 of the Statutes of 2011, and to amend Item 5225-007-0001
of Section 2.00 of the Budget Act of 2011 (Chapter 33 of the
Statutes of 2011), relating to criminal justice realignment, and
making an appropriation therefor, to take effect immediately,
bill related to the budget.
LEGISLATIVE COUNSEL'S DIGEST
SB 5, as amended, Committee on Budget and Fiscal Review. Budget
Act of 2010.
(1) Existing law, if Chapter 15 of the Statutes of 2011 becomes
operative, provides that, except for persons with a prior or current
felony conviction for serious or violent felony, persons required to
register as sex offenders, or persons convicted of a crime as part of
a sentence enhancement, as specified, a felony punishable pursuant
to specified provisions where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment is a
county in a county jail for 16 months, or two or three years and a
felony punishable by a term of imprisonment described in the
underlying offense shall be punishable by imprisonment in a county
jail. Those persons excepted from this requirement are subject to
imprisonment in the state prison.
This bill would additionally require persons with a current or
prior felony conviction in another jurisdiction for an offense that
has all of the elements of a serious or violent felony, as specified,
and persons with prior juvenile adjudication where the defendant was
16 years of age or older at the time of the commission of a serious
or violent felony or a prior juvenile adjudication in another
jurisdiction for an offense that has all the elements of a serious
felony offense, as specified, to serve the term of imprisonment in
the state prison.
(2) Existing law provides that certain specified felonies,
including agreeing, consenting, or offering to unlawfully sell,
furnish, transport, or administer a specified controlled substance,
or "gassing" a peace officer are punishable by incarceration in state
prison. If Chapter 15 of the Statutes of 2011 becomes operative,
certain of those felonies shall instead be punishable by
incarceration in county jail.
This bill would make various technical and conforming changes to
provisions related to the incarceration of persons for felony
convictions in county jail. The bill would make certain felonies,
including agreeing, consenting, or offering to unlawfully sell,
furnish, transport, or administer a specified controlled substance,
or "gassing" a peace officer punishable by incarceration in county
jail pursuant to Chapter 15 of the Statutes of 2011 instead
punishable by incarceration in state prison.
(3) Existing law provides for the enhancement of prison terms for
new offenses because of prior prison terms, as specified. If Chapter
15 of the Statutes of 2011 becomes operative, a judge, when imposing
a sentence pursuant to these provisions, may order the defendant to
serve a term in a county jail for a period not to exceed the maximum
possible term of confinement or may impose a sentence that includes a
period of county jail time and a period of mandatory probation not
to exceed the maximum possible sentence.
This bill would provide that a term imposed under the
above-referenced provision, wherein a portion of the term is
suspended by the court to allow postrelease supervision, shall
qualify as a prior county jail term for the purposes of a specified
enhancement, and make conforming changes.
(4) Existing law provides that, except as specified, every felony
is punishable by imprisonment in any of the state prisons for 16
months, or 2 or 3 years. If Chapter 15 of the Statutes of 2011
becomes operative, a felony punishable pursuant to specified
provisions where the term is not specified in the underlying offense
shall be punishable by a term of imprisonment in a county jail for 16
months, or 2 or 3 years and where the term is specified for the term
described in the underlying offense. Chapter 15 of the Statutes of
2011 requires that the punishment for certain felonies be served in
state prison.
This bill would place specified parameters on the imposition of
sentences under the provisions added by Chapter 15 of the Statutes of
2011. The bill would provide that when imposing a sentence pursuant
to the above-reference provisions, the court may commit the defendant
for term served in custody, as specified, or for a term as
determined in accordance with the applicable sentencing law but
suspend execution of a concluding portion of the term selected in the
court's discretion, during which time the defendant shall be
supervised by the county probation officer, as specified.
(5) Existing law provides that the moneys in the District Attorney
and Public Defender Account shall be used exclusively to fund costs
associated with revocation proceedings involving persons subject to
state parole and the Postrelease Community Supervision Act of 2011.
Existing law requires that the moneys be allocated equally by the
county or city and county to the district attorney's office and the
county public defender's office.
This bill would require that where no public defender's office is
established, the moneys be allocated to the county for distribution
for the same purpose.
(6) Existing law, if Chapter 15 of the Statutes of 2011 becomes
operative, applies certain provisions relating to the denial of time
credits to persons confined in local facilities pursuant to
provisions added by Chapter 15 of the Statutes of 2011 providing for
the incarceration of felons in local facilities, as specified.
This bill would repeal the amendments made by Chapter 15 of the
Statutes of 2011, restore prior law, and instead subject these felons
to other credit provisions applicable to persons confined in a
county jail, industrial farm, or road camp, or a city jail,
industrial farm, or road camp, as specified. The bill would provide
that no credits may be earned for periods of flash incarceration, as
specified. The bill would provide that any inmate sentenced to county
jail assigned to a conservation camp who is eligible to earn one day
of credit for every one day of incarceration shall instead earn two
days of credit for every one day of service and make related changes.
(7) Existing law provides that, except as specified, a prisoner
sentenced to state prison under specified provisions, for whom the
sentence is executed shall have one day deducted from his or her
period of confinement for every day he or she served in a county
jail, city jail, industrial farm, or road camp from the date of
arrest until state prison credits are applicable to the prisoner.
This bill would delete the above-referenced provisions, thereby
making other time credit provisions applicable to prisoners confined
in or committed to specified local facilities applicable to the
above-referenced prisoners.
(8) Existing law, if Chapter 15 of the Statutes of 2011 becomes
operative, provides that, except as specified, when specified persons
who were not imprisoned for committing a violent felony, as defined,
who have been released on parole from the state prison, and who have
been on parole continuously for 6 months since release from
confinement, within 30 days, shall be discharged from parole.
This bill would additionally make the above provision related to
discharge from parole inapplicable to persons who were imprisoned for
committing a serious felony or who are required to register as a sex
offender, as specified.
(9) Existing law, if Chapter 15 of the Statutes of 2011 becomes
operative, subjects certain persons released from state prison to the
jurisdiction of and parole supervision by the Department of
Corrections and Rehabilitation, as specified.
This bill would provide that persons required to register as sex
offenders and persons subject to life-time parole, as specified, who
are released from state prison shall be subject to the jurisdiction
of, and parole supervision by, the Department of Corrections and
Rehabilitation for a period of parole up to 3 years or the parole
term the person was subject to at the time of the commission of the
offense. The bill would make other conforming and related changes
regarding the parole periods, revocations, search and seizure
requirements, and the release of high-risk parolees.
(10) Existing law, if Chapter 15 of the Statutes of 2011 becomes
operative, makes felons subject to postrelease supervision as
established by the Postrelease Community Supervision Act of 2011
eligible to participate in reentry court programs, as specified, and
would authorize counties to contract with the Department of
Corrections and Rehabilitation in order to obtain day treatment and
crisis care services for inmates with mental health problems who are
released on postrelease community supervision.
This bill would instead authorize counties to contract with the
department to obtain correctional clinical services. The bill would
make changes to the postrelease community supervision agreement,
require persons placed on postrelease supervision to be subject to
search and seizure, and make other related changes regarding
postrelease supervision sanctions, and revocations. The bill would
require a supervising agency, upon determining that a person subject
to postrelease supervision no longer permanently resides within its
jurisdiction, where a change in residence was either approved or did
not violate the terms and conditions of postrelease supervision, to
transmit, within 2 weeks, the prison release packet to the designated
supervising agency in the county in which the person permanently
resides. By imposing additional duties on local agencies, the bill
would create a state-mandated local program.
(11) Existing law provides that upon agreement with the sheriff or
director of the county department of corrections, a board of
supervisors may enter into a contract with other public agencies to
provide housing for inmates sentenced to county jail in community
correction facilities, as specified.
This bill would authorize, upon agreement with the sheriff or
director of the county department of corrections, a board of
supervisors to enter into a contract with the Department of
Corrections and Rehabilitation to house inmates who are within 60
days or less of release from the state prison to a county jail
facility for the purpose of reentry and community transition
purposes. The bill would provide that when housed in county
facilities, inmates shall be under the legal custody and jurisdiction
of local county facilities and not under the jurisdiction of the
Department of Corrections and Rehabilitation.
(12) Existing law provides that, except as specified, an inmate
who is released on parole or postrelease supervision shall be
returned to the county that was the last legal residence of the
inmate prior to his or her incarceration. Existing law requires that
specified information be released by the Department of Corrections
and Rehabilitation to local law enforcement agencies regarding a
paroled inmate or inmate placed on postrelease supervision. Existing
law provides that, except as specified, the department shall be the
agency primarily responsible for, and shall have control over, the
program, resources, and staff implementing the Law Enforcement
Automated Data System (LEADS) and, if Chapter 15 of the Statutes of
2011 becomes operative, requires county agencies supervising inmates
released to postrelease supervision to provide any information
requested by the department to ensure the availability of accurate
information regarding inmates released from state prison, as
specified.
This bill would additionally require the Department of Corrections
and Rehabilitation to submit, via electronic transfer, to the
Department of Justice data to be included in the supervised released
file of the California Law Enforcement Telecommunications System
(CLETS) so that law enforcement can be advised through CLETS of all
persons on postrelease community supervision and the county agency
designated to provide supervision.
(13) The Budget Act of 2011 reduced the amount appropriated,
$95,254,000, for support of the Department of Corrections and
Rehabilitation by $77,406,000 to reflect the portion of realignment
savings to be achieved through the reduction or elimination of
contracts with private entities for instate housing of state inmates.
This bill would instead reduced the amount appropriated by
$54,200,00 for those purposes.
(14) Existing law requires the Director of Finance, in
consultation with the Department of Corrections and Rehabilitation,
the Joint Legislative Budget Committee, the Chief Probation Officers,
and the Administrative Office of the Courts to make certain
calculations, including, among others, the cost to the state to
incarcerate in prison and supervise on parole a probationer sent to
prison and the statewide probation failure rate.
This bill would additionally require, except for the Joint
Legislative Budget Committee, the above-referenced entities to
develop a revised formula for the California Community Corrections
Performance Incentives Act of 2009 that takes into consideration the
significant changes to the eligibility of some felony probationers
for revocation to the state prison resulting from the implementation
of the 2011 public safety realignment.
(15) This bill would include additional changes proposed by SB 9
and SB 576 contingent on the enactment of those bills.
(16) This bill would appropriate $1,000 to the Department of
Corrections and Rehabilitation for the purpose of state operations.
(17) The bill would declare that it is to take effect immediately
as a bill providing for appropriations related to the Budget Bill.
(18) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
(19) The California Constitution authorizes the Governor to
declare a fiscal emergency and to call the Legislature into special
session for that purpose. Governor Schwarzenegger issued a
proclamation declaring a fiscal emergency, and calling a special
session for this purpose, on December 6, 2010. Governor Brown issued
a proclamation on January 20, 2011, declaring and reaffirming that a
fiscal emergency exists and stating that his proclamation supersedes
the earlier proclamation for purposes of that constitutional
provision.
This bill would state that it addresses the fiscal emergency
declared and reaffirmed by the Governor by proclamation issued on
January 20, 2011, pursuant to the California Constitution.
This bill would express the intent of the Legislature to enact
statutory changes relating to the Budget Act of 2010.
The California Constitution authorizes the Governor to declare a
fiscal emergency and to call the Legislature into special session for
that purpose. The Governor issued a proclamation declaring a fiscal
emergency, and calling a special session for this purpose, on
December 6, 2010.
This bill would state that it addresses the fiscal emergency
declared by the Governor by proclamation issued on December 6, 2010,
pursuant to the California Constitution.
Vote: majority. Appropriation: no yes
. Fiscal committee: no yes .
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act is titled and may be cited as
the 2011 realignment Legislation addressing public safety.
SEC. 2. Section 26605 of the Government
Code is amended to read:
26605. Notwithstanding any other provision of law, except in
counties in which the sheriff, as of July 1, 1993, is not in charge
of and the sole and exclusive authority to keep the county jail and
the prisoners in it, the sheriff shall take charge of and be the sole
and exclusive authority to keep the county jail and the prisoners in
it including persons confined to the county jail pursuant to
subdivision (b) of Section 3454 of the Penal Code for a violation of
the terms and conditions of their postrelease community supervision
, except for work furlough facilities where by county ordinance
the work furlough administrator is someone other than the sheriff.
SEC. 3. Section 30025 of the Government
Code is amended to read:
30025. (a) The Local Revenue Fund 2011 is hereby created in the
State Treasury and shall receive all revenues, less refunds, derived
from the taxes described in Sections 6051.15 and 6201.15; revenues as
may be allocated to the fund pursuant to Sections 11001.5 and 11005
of the Revenue and Taxation Code; and other moneys that may be
specifically appropriated to the fund.
(b) The Trial Court Security Account, the Local Community
Corrections Account, the Local Law Enforcement Services Account, the
Mental Health Account, the District Attorney and Public Defender
Account, the Juvenile Justice Account, the Health and Human Services
Account, and the Reserve Account are hereby created within the Local
Revenue Fund 2011.
(c) The Youthful Offender Block Grant Subaccount and the Juvenile
Reentry Grant Subaccount are hereby created within the Juvenile
Justice Account.
(d) The Adult Protective Services Subaccount, the Foster Care
Subaccount, the Child Welfare Services Subaccount, the Adoptions
Subaccount, the Adoption Assistance Program Subaccount, the Child
Abuse Prevention Subaccount, the Women and Children's Residential
Treatment Services Subaccount, the Drug Court Subaccount, the Nondrug
Medi-Cal Substance Abuse Treatment Services Subaccount, and the Drug
Medi-Cal Subaccount are hereby created within the Health and Human
Services Account within the Local Revenue Fund 2011.
(e) Funds transferred to the Local Revenue Fund 2011 and its
accounts and subaccounts are, notwithstanding Section 13340,
continuously appropriated and shall be allocated pursuant to statute
exclusively for Public Safety Services as defined in subdivision (h)
and as further limited by statute. The moneys derived from taxes
described in subdivision (a) and deposited in the Local Revenue Fund
2011 shall be available to reimburse the General Fund for moneys that
are advanced to the Local Revenue Fund 2011. Additionally, all funds
deposited in the Local Revenue Fund 2011 and its accounts shall be
available to pay for state costs incurred resulting from phasing in
the implementation of Chapter 15 of the Statutes of 2011 and to
reimburse the state for costs incurred on behalf of a local
governmental entity in providing Public Safety Services.
(f) (1) Each county treasurer, city and county treasurer, or other
appropriate official shall create a County Local Revenue Fund 2011
for the county or city and county and shall create the Local
Community Corrections Account, the Trial Court Security Account, the
District Attorney and Public Defender Account, the Juvenile Justice
Account, the Health and Human Services Account, and the Supplemental
Law Enforcement Account within the County Local Revenue Fund 2011 for
the county or city and county.
(2) The moneys in the County Local Revenue Fund 2011 for each
county or city and county and its accounts shall be exclusively used
for Public Safety Services as defined in subdivision (h) and as
further described in this section.
(3) The moneys in the Trial Court Security Account shall be used
exclusively to fund trial court security provided by county sheriffs.
No general county administrative costs may be charged to this
account, including, but not limited to, the costs of administering
the account.
(4) The moneys in the Local Community Corrections Account shall be
used exclusively to fund the provisions of Chapter 15 of the
Statutes of 2011. The moneys within this account shall not be used by
local agencies to supplant other funding for Public Safety Services.
This account shall be the source of funding for the Postrelease
Community Supervision Act of 2011, as enacted by Section 479 of
Chapter 15 of the Statutes of 2011, and to fund the housing of
parolees in county jails.
(5) The moneys in the District Attorney and Public Defender
Account shall be used exclusively to fund costs associated with
revocation proceedings involving persons subject to state parole and
the Postrelease Community Supervision Act of 2011 (Title 2.05
(commencing with Section 3450) of Part 3 of the Penal Code). The
moneys shall be allocated equally by the county or city and county to
the district attorney's office and county public defender's office
or, where no public defender's office is established, to the
county for distribution for the same purpose .
(6) The moneys in the Juvenile Justice Account shall only be used
to fund activities in connection with the grant programs described in
this paragraph.
(A) The Youthful Offender Block Grant Subaccount shall be used to
fund grants solely to enhance the capacity of county probation,
mental health, drug and alcohol, and other county departments to
provide appropriate rehabilitative, housing, and supervision services
to youthful offenders, subject to Sections 731.1, 733, 1766, and
1767.35 of the Welfare and Institutions Code. Counties, in expending
an allocation from this subaccount, shall provide all necessary
services related to the custody and parole of the offenders.
(B) The Juvenile Reentry Grant Subaccount shall be used to fund
grants exclusively to address local program needs for persons
discharged from the custody of the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities. County probation
departments, in expending the Juvenile Reentry Grant allocation,
shall provide evidence-based supervision and detention practices and
rehabilitative services to persons who are subject to the
jurisdiction of the juvenile court, and who were committed to and
discharged from the Department of Corrections and Rehabilitation,
Division of Juvenile Facilities. "Evidence-based" refers to
supervision and detention policies, procedures, programs, and
practices demonstrated by scientific research to reduce recidivism
among individuals on probation or under postrelease supervision. The
funds allocated from this subaccount shall supplement existing
services and shall not be used by local agencies to supplant any
existing funding for existing services provided by those entities.
The funding provided from this subaccount is intended to provide
payment in full for all local government costs of the supervision,
programming, education, incarceration, or any other cost resulting
from persons discharged from custody or held in local facilities
pursuant to the provisions of Chapter 729 of the Statutes of 2010.
(7) The Health and Human Services Account and its subaccounts
described in subdivision (d) shall be used only to fund activities
performed in connection with the programs described in this
subdivision. The subaccounts shall be used exclusively as follows:
(A) The Adult Protective Services Subaccount shall be used to fund
adult protective services described in statute and regulation.
(B) The Foster Care Subaccount shall be used to fund the
administrative costs and cost of foster care grants and services as
those services are described in statute and regulation, including the
costs for the Title IV-E Child Welfare Waiver Demonstration Capped
Allocation Project.
(C) The Child Welfare Services Subaccount shall be used to fund
the costs of child welfare services as those services are described
in statute and regulation.
(D) The Adoptions Subaccount shall be used to fund the costs
connected with providing adoptive services, including agency
adoptions, as described in statute and regulation, including the
costs incurred by the county or city and county if the county or city
and county elects to contract with the state to provide those
services.
(E) The Child Abuse Prevention Subaccount shall be used to fund
the costs of child abuse prevention, intervention, and treatment
services as those costs and services are described in statute and
regulation.
(F) The Adoption Assistance Program Subaccount shall be used to
fund the administrative costs and payments for families adopting
children with special needs.
(G) The Women and Children's Residential Treatment Services
Subaccount shall be used to fund the costs of residential perinatal
drug services and treatment as those services and treatment are
described in statute and regulation.
(H) The Drug Court Subaccount shall be used to fund the costs of
drug court operations and services as those costs are currently
permitted and described by statute and regulation.
(I) The Nondrug Medi-Cal Substance Abuse Treatment Services
Subaccount shall be used to fund the costs of nondrug Medi-Cal
substance abuse treatment programs, as described in statute and
regulation.
(J) The Drug Medi-Cal Subaccount shall be used to fund the costs
of the Drug Medi-Cal program as that program is described in statute,
regulation, or the current State Plan Amendment.
(g) The moneys in the Reserve Account shall be used to fund
entitlements paid from the Foster Care Subaccount, the Drug Medi-Cal
Subaccount and the Adoption Assistance Program Subaccount of the
Health and Human Services Account.
(h) For purposes of this section, "Public Safety Services" shall
include all of the following:
(1) Employing public safety officials, prosecutors, public
defenders, and court security staff.
(2) Managing local jails, housing and treating youthful offenders,
and providing services for, and overseeing the supervised release
of, offenders.
(3) Preventing child abuse, providing services to children who are
abused, neglected, or exploited, providing services to vulnerable
children and their families, and providing adult protective services.
(4) Providing mental health services to children and adults in
order to reduce failure in school, harm to themselves and others,
homelessness, and preventable incarceration.
(5) Preventing, treating, and providing recovery services for
alcohol and drug abuse.
SEC. 4. Section 11355 of the Health and
Safety Code is amended to read:
11355. Every person who agrees, consents, or in any manner offers
to unlawfully sell, furnish, transport, administer, or give (1) any
controlled substance specified in subdivision (b), (c), or (e), or
paragraph (1) of subdivision (f) of Section 11054, specified in
paragraph (13), (14), (15), or (20) of subdivision (d) of Section
11054, or specified in subdivision (b) or (c) of Section 11055, or
specified in subdivision (h) of Section 11056, or (2) any controlled
substance classified in Schedule III, IV, or V which is a narcotic
drug to any person, or who offers, arranges, or negotiates to have
any such controlled substance unlawfully sold, delivered,
transported, furnished, administered, or given to any person and who
then sells, delivers, furnishes, transports, administers, or gives,
or offers, arranges, or negotiates to have sold, delivered,
transported, furnished, administered, or given to any person any
other liquid, substance, or material in lieu of any such controlled
substance shall be punished by imprisonment in the county jail for
not more than one year, or in the state prison
pursuant to subdivision (h) of Section 1170 of the Penal Code
.
SEC. 5. Section 11382 of the Health and
Safety Code is amended to read:
11382. Every person who agrees, consents, or in any manner offers
to unlawfully sell, furnish, transport, administer, or give any
controlled substance which is (1) (a)
classified in Schedule III, IV, or V and which is not a narcotic
drug, or (2) (b) specified in
subdivision (d) of Section 11054, except paragraphs (13), (14), (15),
and (20) of subdivision (d), specified in paragraph (11) of
subdivision (c) of Section 11056, or specified in subdivision (d),
(e), or (f) of Section 11055, to any person, or offers, arranges, or
negotiates to have that controlled substance unlawfully sold,
delivered, transported, furnished, administered, or given to any
person and then sells, delivers, furnishes, transports, administers,
or gives, or offers, or arranges, or negotiates to have sold,
delivered, transported, furnished, administered, or given to any
person any other liquid, substance, or material in lieu of that
controlled substance shall be punished by imprisonment in the county
jail for not more than one year, or in the state prison
pursuant to subdivision (h) of Section 1170 of the
Penal Code .
SEC. 6. Section 17 of the Penal Code
, as amended by Section 228 of Chapter 15 of the Statutes
of 2011, is amended to read:
17. (a) A felony is a crime that is punishable with death, by
imprisonment in the state prison, or notwithstanding any other
provision of law, by imprisonment in a county jail for more
than one year under the provision s of
subdivision (h) of Section 1170 . Every other crime or public
offense is a misdemeanor except those offenses that are classified as
infractions.
(b) When a crime is punishable, in the discretion of the court,
either by imprisonment in the state prison or imprisonment in a
county jail for more than one year under the
provisions of subdivision (h) of Section 1170 , or by fine or
imprisonment in the county jail, it is a misdemeanor for all purposes
under the following circumstances:
(1) After a judgment imposing a punishment other than imprisonment
in the state prison or imprisonment in a county jail for
more than one year under the provisions of subdivision
(h) of Section 1170 .
(2) When the court, upon committing the defendant to the
Youth Authority Division of Juvenile Justice ,
designates the offense to be a misdemeanor.
(3) When the court grants probation to a defendant without
imposition of sentence and at the time of granting probation, or on
application of the defendant or probation officer thereafter, the
court declares the offense to be a misdemeanor.
(4) When the prosecuting attorney files in a court having
jurisdiction over misdemeanor offenses a complaint specifying that
the offense is a misdemeanor, unless the defendant at the time of his
or her arraignment or plea objects to the offense being made a
misdemeanor, in which event the complaint shall be amended to charge
the felony and the case shall proceed on the felony complaint.
(5) When, at or before the preliminary examination or prior to
filing an order pursuant to Section 872, the magistrate determines
that the offense is a misdemeanor, in which event the case shall
proceed as if the defendant had been arraigned on a misdemeanor
complaint.
(c) When a defendant is committed to the Youth Authority
Division of Juvenile Justice for a crime
punishable, in the discretion of the court, either by imprisonment in
the state prison or imprisonment in a county jail for more
than one year under the provisions of subdivision (h)
of Section 1170 , or by fine or imprisonment in the county jail
not exceeding one year, the offense shall, upon the discharge of the
defendant from the Youth Authority Division
of Juvenile Justice , thereafter be deemed a misdemeanor for
all purposes.
(d) A violation of any code section listed in Section 19.8 is an
infraction subject to the procedures described in Sections 19.6 and
19.7 when:
(1) The prosecutor files a complaint charging the offense as an
infraction unless the defendant, at the time he or she is arraigned,
after being informed of his or her rights, elects to have the case
proceed as a misdemeanor, or;
(2) The court, with the consent of the defendant, determines that
the offense is an infraction in which event the case shall proceed as
if the defendant had been arraigned on an infraction complaint.
(e) Nothing in this section authorizes a judge to relieve a
defendant of the duty to register as a sex offender pursuant to
Section 290 if the defendant is charged with an offense for which
registration as a sex offender is required pursuant to Section 290,
and for which the trier of fact has found the defendant guilty.
SEC. 7. Section 18 of the Penal Code
, as amended by Section 230 of Chapter 15 of the Statutes
of 2011, is amended to read:
18. (a) Except in cases where a different punishment is
prescribed by any law of this state, every offense declared to be a
felony is punishable by imprisonment for 16 months, or two or three
years as provided in the state prison unless
the offense is punishable pursuant to subdivision (h) of
Section 1170.
(b) Every offense which is prescribed by any law of the state to
be a felony punishable by imprisonment or by a fine, but without an
alternate sentence to the county jail for a period not exceeding one
year, may be punishable by imprisonment in the county jail not
exceeding one year or by a fine, or by both.
SEC. 8. Section 273d of the Penal Code
, as amended by Section 312 of Chapter 15 of the Statutes
of 2011, is amended to read:
273d. (a) Any person who willfully inflicts upon a child any
cruel or inhuman corporal punishment or an injury resulting in a
traumatic condition is guilty of a felony and shall be punished by
imprisonment pursuant to subdivision (h) of Section 1170 for two,
four, or six years, or in a county jail for not more than one year,
by a fine of up to six thousand dollars ($6,000), or by both that
imprisonment and fine.
(b) Any person who is found guilty of violating subdivision (a)
shall receive a four-year enhancement for a prior conviction of that
offense provided that no additional term shall be imposed under this
subdivision for any prison term or term imposed under the
provisions of subdivision (h) of Section 1170 served prior to a
period of 10 years in which the defendant remained free of both the
commission of an offense that results in a felony conviction and
prison custody or custody for more than one year
in a county jail under the provisions of subdivision (h) of
Section 1170 .
(c) If a person is convicted of violating this section and
probation is granted, the court shall require the following minimum
conditions of probation:
(1) A mandatory minimum period of probation of 36 months.
(2) A criminal court protective order protecting the victim from
further acts of violence or threats, and, if appropriate, residence
exclusion or stay-away conditions.
(3) (A) Successful completion of no less than one year of a child
abuser's treatment counseling program. The defendant shall be ordered
to begin participation in the program immediately upon the grant of
probation. The counseling program shall meet the criteria specified
in Section 273.1. The defendant shall produce documentation of
program enrollment to the court within 30 days of enrollment, along
with quarterly progress reports.
(B) The terms of probation for offenders shall not be lifted until
all reasonable fees due to the counseling program have been paid in
full, but in no case shall probation be extended beyond the term
provided in subdivision (a) of Section 1203.1. If the court finds
that the defendant does not have the ability to pay the fees based on
the defendant's changed circumstances, the court may reduce or waive
the fees.
(4) If the offense was committed while the defendant was under the
influence of drugs or alcohol, the defendant shall abstain from the
use of drugs or alcohol during the period of probation and shall be
subject to random drug testing by his or her probation officer.
(5) The court may waive any of the above minimum conditions of
probation upon a finding that the condition would not be in the best
interests of justice. The court shall state on the record its reasons
for any waiver.
SEC. 9. Section 667.5 of the Penal Code
, as amended by Section 22 of Chapter 39 of the Statutes
of 2011, is amended to read:
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence or a sentence of imprisonment
in a county jail for more than one year
under subdivision (h) of Section 1170 is imposed or is not
suspended, in addition and consecutive to any other prison
terms sentence therefor, the court shall impose
a one-year term for each prior separate prison term or county jail
term of more than one year imposed imposed
under subdivision (h) of Section 1170 or when sentence is not
suspended for any felony; provided that no additional term shall be
imposed under this subdivision for any prison term or county jail
term of more than one year imposed under
subdivision (h) of Section 1170 or when sentence is not
suspended prior to a period of five years in which the defendant
remained free of both the commission of an offense which results in a
felony conviction, and prison custody or the imposition of a term of
jail custody of more than one year imposed
under subdivision (h) of Section 1170 or any felony sentence
that is not suspended. A term imposed under the provisions of
paragraph (5) of subdivision (h) of Section 1170, wherein a portion
of the term is suspended by the court to allow postrelease
supervision, shall qualify as a prior county jail term for
the purposes of the one-year enhancement.
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation as defined in subdivision (c) or (d) of
Section 288a.
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of
Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or
after July 1, 1977, or as specified prior to July 1, 1977, in
Sections 213, 264, and 461, or any felony in which the defendant uses
a firearm which use has been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 12308, 12309, or 12310.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418. The
Legislature finds and declares that these specified crimes merit
special consideration when imposing a sentence to display society's
condemnation for these extraordinary crimes of violence against the
person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison or in a county jail under
subdivision (h) of Section 1170 .
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison or
in county jail under subdivision (h) of Section 1170 if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served
one year or more in prison for the offense in
the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director of Corrections is
incarcerated at a facility operated by the Department of the Youth
Authority, that incarceration shall be deemed to be a term served in
state prison.
(k) (1) Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while
the defendant is temporarily removed from prison pursuant to Section
2690 or while the defendant is transferred to a community facility
pursuant to Section 3416, 6253, or 6263, or while the defendant is on
furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.
(2) This subdivision shall not apply when a full, separate, and
consecutive term is imposed pursuant to any other provision of law.
SEC. 10. Section 667.5 of the Penal
Code , as amended by Section 23 of Chapter 39 of the
Statutes of 2011, is amended to read:
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence or a sentence of imprisonment
in a county jail for more than one year
under subdivision (h) of Section 1170 is imposed or is not
suspended, in addition and consecutive to any other prison
terms sentence therefor, the court shall impose
a one-year term for each prior separate prison term or county jail
term of more than one year imposed under
subdivision (h) of Section 1170 or when sentence is
not suspended for any felony; provided that no additional term shall
be imposed under this subdivision for any prison term or county jail
term of more than one year imposed under
subdivision (h) of Section 1170 or when sentence is not
suspended prior to a period of five years in which the defendant
remained free of both the commission of an offense which results in a
felony conviction, and prison custody or the imposition of a term of
jail custody of more than one year imposed
under subdivision (h) of Section 1170 or any felony sentence
that is not suspended. A term imposed under the provisions of
paragraph (5) of subdivision (h) of Section 1170, wherein a portion
of the term is suspended by the court to allow postrelease
supervision, shall qualify as a prior county jail term for
the purposes of the one-year enhancement.
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation as defined in subdivision (c) or (d) of
Section 288a.
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of
Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or
after July 1, 1977, or as specified prior to July 1, 1977, in
Sections 213, 264, and 461, or any felony in which the defendant uses
a firearm which use has been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 18745, 18750, or 18755.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418. The
Legislature finds and declares that these specified crimes merit
special consideration when imposing a sentence to display society's
condemnation for these extraordinary crimes of violence against the
person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison or in county jail under
subdivision (h) of Section 1170 .
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison or
in county jail under subdivision (h) of Section 1170 if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director of Corrections is
incarcerated at a facility operated by the Department of the Youth
Authority, that incarceration shall be deemed to be a term served in
state prison.
(k) (1) Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while
the defendant is temporarily removed from prison pursuant to Section
2690 or while the defendant is transferred to a community facility
pursuant to Section 3416, 6253, or 6263, or while the defendant is on
furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.
(2) This subdivision shall not apply when a full, separate, and
consecutive term is imposed pursuant to any other provision of law.
SEC. 11. Section 800 of the Penal Code
, as amended by Section 24 of Chapter 39 of the Statutes
of 2011, is amended to read:
800. Except as provided in Section 799, prosecution for an
offense punishable by imprisonment in the state prison for eight
years or more or by imprisonment pursuant to subdivision (h)
of Section 1170 for eight years or more shall be commenced within six
years after commission of the offense.
SEC. 12. Section 1170 of the Penal Code
, as amended by Section 3 of Chapter 136 of
the Statutes of 2011, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing 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. In any case in which the amount of preimprisonment
credit under Section 2900.5 or any other provision of law is equal to
or exceeds any sentence imposed pursuant to this chapter, the entire
sentence shall be deemed to have been served and the defendant shall
not be actually delivered to the custody of the secretary. The court
shall advise the defendant that he or she shall serve a period of
parole and order the defendant to report to the parole office closest
to the defendant's last legal residence, unless the in-custody
credits equal the total sentence, including both confinement time and
the period of parole. The sentence shall be deemed a separate prior
prison term under Section 667.5, and a copy of the judgment and other
necessary documentation shall be forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court. At least
four days prior to the time set for imposition of judgment, either
party or the victim, or the family of the victim if the victim is
deceased, may submit a statement in aggravation or mitigation. In
determining the appropriate term, the court may consider the record
in the case, the probation officer's report, other reports, including
reports received pursuant to Section 1203.03, and statements in
aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim
is deceased, and any further evidence introduced at the sentencing
hearing. The court shall select the term which, in the court's
discretion, best serves the interests of justice. The court shall set
forth on the record the reasons for imposing the term selected and
the court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any provision of
law. A term of imprisonment shall not be specified if imposition of
sentence is suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.
(d) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the secretary, the court
may, within 120 days of the date of commitment on its own motion, or
at any time upon the recommendation of the secretary or the Board of
Parole Hearings, recall the sentence and commitment previously
ordered and resentence the defendant in the same manner as if he or
she had not previously been sentenced, provided the new sentence, if
any, is no greater than the initial sentence. The resentence under
this subdivision shall apply the sentencing rules of the Judicial
Council so as to eliminate disparity of sentences and to promote
uniformity of sentencing. Credit shall be given for time served.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious
felony described in subdivision (c) of Section 1192.7 or a
prior or current conviction for a violent felony described
in subdivision (c) of Section 667.5 , (B) has a prior
felony conviction in another jurisdiction for an offense that has all
of the elements of a serious felony described in subdivision (c) of
Section 1192.7 or a violent felony described in subdivision (c)
of Section 667.5, (C) has a prior juvenile adjudication where
the defendant was 16 years of age or older at the time he or she
committed the prior offense of a serious felony described in
subdivision (c) of Section 1192.7 or a violent felony described in
subdivision (c) of Section 667.5, a prior juvenile adjudication in
another jurisdiction for an offense that has all the elements of a
serious felony described in subdivision (c) of Section 1192.7 or a
violent felony described in subdivision (c) of Section 667.5, or a
felony described in subdivision (b) of Section 707 of the Welfare and
Institutions Code, (D) is required to register as a sex
offender pursuant to Chapter 5.5 (commencing with Section 290) of
Title 9 of Part 1, or (E) is convicted of a crime and as
part of the sentence an enhancement pursuant to Section 186.11 is
imposed, an executed sentence for a felony punishable pursuant to
this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) A judge, when imposing a sentence pursuant to paragraph (1),
may order the defendant to serve a term in a county jail for a period
not to exceed the maximum possible term of confinement or may impose
a sentence that includes a period of county jail time and a period
of mandatory probation not to exceed the maximum possible sentence.
(5) The court, when imposing a sentence pursuant to paragraph (1)
or (2) of this subdivision, may commit the defendant to county jail
as follows:
(A) For a full term in custody as determined in accordance with
the applicable sentencing law.
(B) For a term as determined in accordance with the applicable
sentencing law, but suspend execution of a concluding portion of the
term selected in the court's discretion, during which time the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. During the period when the defendant is under
such supervision, unless in actual custody related to the sentence
imposed by the court, the defendant shall be entitled to only actual
time credit against the term of imprisonment imposed by the court.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(i) This section shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before that date, deletes or extends that
date.
SEC. 12.1. Section 1170 of the Penal
Code , as amended by Section 3 of Chapter 136
of the Statutes of 2011, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the
sentences of offenders committing the same offense under
similar circumstances. The Legislature further finds and declares
that the elimination of disparity and the provision of uniformity of
sentences can best be achieved by determinate sentences fixed by
statute in proportion to the seriousness of the offense as determined
by the Legislature to be imposed by the court with specified
discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing 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. life, except as provided in
paragraph (2) of subdivision (d). In any case in which the
amount of preimprisonment credit under Section 2900.5 or any other
provision of law is equal to or exceeds any sentence imposed pursuant
to this chapter, the entire sentence shall be deemed to have been
served and the defendant shall not be actually delivered to the
custody of the secretary. The court shall advise the defendant that
he or she shall serve a period of parole and order the defendant to
report to the parole office closest to the defendant's last legal
residence, unless the in-custody credits equal the total sentence,
including both confinement time and the period of parole. The
sentence shall be deemed a separate prior prison term under Section
667.5, and a copy of the judgment and other necessary documentation
shall be forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court. At least
four days prior to the time set for imposition of judgment, either
party or the victim, or the family of the victim if the victim is
deceased, may submit a statement in aggravation or mitigation. In
determining the appropriate term, the court may consider the record
in the case, the probation officer's report, other reports, including
reports received pursuant to Section 1203.03, and statements in
aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim
is deceased, and any further evidence introduced at the sentencing
hearing. The court shall select the term which, in the court's
discretion, best serves the interests of justice. The court shall set
forth on the record the reasons for imposing the term selected and
the court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any provision of
law. A term of imprisonment shall not be specified if imposition of
sentence is suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.
(d) (1) When a defendant subject to this
section or subdivision (b) of Section 1168 has been sentenced to be
imprisoned in the state prison and has been committed to the custody
of the secretary, the court may, within 120 days of the date of
commitment on its own motion, or at any time upon the recommendation
of the secretary or the Board of Parole Hearings, recall the sentence
and commitment previously ordered and resentence the defendant in
the same manner as if he or she had not previously been sentenced,
provided the new sentence, if any, is no greater than the initial
sentence. The resentence court resentencing
under this subdivision shall apply the sentencing rules of the
Judicial Council so as to eliminate disparity of sentences and to
promote uniformity of sentencing. Credit shall be given for time
served.
(2) (A) 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 life without the possibility of parole
has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing.
(B) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) 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.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) 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.
(C) If any of the information required in subparagraph (B) 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
defendant and advise the defendant that the matter cannot be
considered without the missing information.
(D) 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.
(E) 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 previously been 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.
(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) 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.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) 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.
(G) The court shall have the 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. The discretion of the court shall be exercised in
consideration of the criteria in subparagraph (B). Victims, 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.
(H) 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
department for at least 20 years. If recall and resentencing is not
granted under that petition, 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.
(I) In addition to the criteria in subparagraph (F), 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.
(J) This subdivision shall have retroactive application.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious
felony described in subdivision (c) of Section 1192.7 or a
prior or current conviction for a violent felony described in
subdivision (c) of Section 667.5 , (B) has a prior felony
conviction in another jurisdiction for an offense that has all of the
elements of a serious felony described in subdivision (c) of Section
1192.7 or a violent felony described in subdivision (c) of
Section 667.5, (C) has a prior juvenile adjudication where the
defendant was 16 years of age or older at the time he or she
committed the prior offense of a serious felony described in
subdivision (c) of Section 1192.7 or a violent felony described in
subdivision (c) of Section 667.5, a prior juvenile adjudication in
another jurisdiction for an offense that has all the elements of a
serious felony described in subdivision (c) of Section
1192.7 or a violent felony described in subdivision (c) of
Section 667.5, or a felony described in subdivision (b) of Section
707 of the Welfare and Institutions Code, (D) is required to
register as a sex offender pursuant to Chapter 5.5 (commencing with
Section 290) of Title 9 of Part 1, or (E) is convicted of
a crime and as part of the sentence an enhancement pursuant to
Section 186.11 is imposed, an executed sentence for a felony
punishable pursuant to this subdivision shall be served in state
prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) A judge, when imposing a sentence pursuant to paragraph (1),
may order the defendant to serve a term in a county jail for a period
not to exceed the maximum possible term of confinement or may impose
a sentence that includes a period of county jail time and a period
of mandatory probation not to exceed the maximum possible sentence.
(5) The court, when imposing a sentence pursuant to paragraphs (1)
or (2) of this subdivision, may commit the defendant to county jail
as follows:
(A) For a full term in custody as determined in accordance with
the applicable sentencing law.
(B) For a term as determined in accordance with the applicable
sentencing law, but suspend execution of a concluding portion of the
term selected in the court's discretion, during which time the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervisions shall be mandatory, and may not be earlier terminated
except by court order. During the period when the defendant is under
such supervision, unless in actual custody related to the sentence
imposed by the court, the defendant shall be entitled to only actual
time credit against the term of imprisonment imposed by the court.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(i) This section shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before that date, deletes or extends that
date.
SEC. 12.2. Section 1170 of the Penal
Code , as amended by Section 3 of Chapter 136
of the Statutes of 2011, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing 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. In any case in which the amount of preimprisonment
credit under Section 2900.5 or any other provision of law is equal to
or exceeds any sentence imposed pursuant to this chapter, the entire
sentence shall be deemed to have been served and the defendant shall
not be actually delivered to the custody of the secretary. The court
shall advise the defendant that he or she shall serve a period of
parole and order the defendant to report to the parole office closest
to the defendant's last legal residence, unless the in-custody
credits equal the total sentence, including both confinement time and
the period of parole. The sentence shall be deemed a separate prior
prison term under Section 667.5, and a copy of the judgment and other
necessary documentation shall be forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court. At least
four days prior to the time set for imposition of judgment, either
party or the victim, or the family of the victim if the victim is
deceased, may submit a statement in aggravation or mitigation. In
determining the appropriate term, the court may consider the record
in the case, the probation officer's report, other reports, including
reports received pursuant to Section 1203.03, and statements in
aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim
is deceased, and any further evidence introduced at the sentencing
hearing. The court shall select the
term which, in the court's discretion, best serves the
interests of justice. The court shall set forth on the record the
reasons for imposing the term selected and the court may not impose
an upper term by using the fact of any enhancement upon which
sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is
suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.
(d) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the secretary, the court
may, within 120 days of the date of commitment on its own motion, or
at any time upon the recommendation of the secretary or the Board of
Parole Hearings, recall the sentence and commitment previously
ordered and resentence the defendant in the same manner as if he or
she had not previously been sentenced, provided the new sentence, if
any, is no greater than the initial sentence. The resentence under
this subdivision shall apply the sentencing rules of the Judicial
Council so as to eliminate disparity of sentences and to promote
uniformity of sentencing. Credit shall be given for time served.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious
felony described in subdivision (c) of Section 1192.7 or a
prior or current conviction for a violent felony described
in subdivision (c) of Section 667.5 , (B) has prior
felony conviction in another jurisdiction for an offense that has all
of the elements of a serious felony described in subdivision (c) of
Section 1192.7 or a violent felony described in subdivision (c)
of Section 667.5, (C) has a prior juvenile adjudication where
the defendant was 16 years of age or older at the time he or she
committed the prior offense of a serious felony described in
subdivision (c) of Section 1192.7 or a violent felony described in
subdivision (c) of Section 667.5, a prior juvenile adjudication in
another jurisdiction for an offense that has all the elements of a
serious felony described in subdivision (c) of Section 1192.7 or a
violent felony described in subdivision (c) of Section 667.5, or a
felony described in subdivision (b) of Section 707 of the Welfare and
Institutions Code, (D) is required to register as a sex
offender pursuant to Chapter 5.5 (commencing with Section 290) of
Title 9 of Part 1, or (E) is convicted of a crime and as
part of the sentence an enhancement pursuant to Section 186.11 is
imposed, an executed sentence for a felony punishable pursuant to
this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) A judge, when imposing a sentence pursuant to paragraph (1),
may order the defendant to serve a term in a county jail for a period
not to exceed the maximum possible term of confinement or may impose
a sentence that includes a period of county jail time and a period
of mandatory probation not to exceed the maximum possible sentence.
(5) The court, when imposing a sentence pursuant to paragraphs (1)
or (2) of this subdivision, may commit the defendant to county jail
as follows:
(A) For a full term in custody as determined in accordance with
the applicable sentencing law.
(B) For a term as determined in accordance with the applicable
sentencing law, but suspend execution of a concluding portion of the
term selected in the court's discretion, during which time the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. During the period when the defendant is under
such supervision, unless in actual custody related to the sentence
imposed by the court, the defendant shall be entitled to only actual
time credit against the term of imprisonment imposed by the court.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(i) This section shall remain in effect only until January 1,
2012 2014 , and as of that date is
repealed, unless a later enacted statute, that is enacted before that
date, deletes or extends that date.
SEC. 12.3. Section 1170 of the Penal
Code , as amended by Section 3 of Chapter 136
of the Statutes of 2011, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing 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. life, except as provided in
paragraph (2) of subdivision (d). In any case in which the
amount of preimprisonment credit under Section 2900.5 or any other
provision of law is equal to or exceeds any sentence imposed pursuant
to this chapter, the entire sentence shall be deemed to have been
served and the defendant shall not be actually delivered to the
custody of the secretary. The court shall advise the defendant that
he or she shall serve a period of parole and order the defendant to
report to the parole office closest to the defendant's last legal
residence, unless the in-custody credits equal the total sentence,
including both confinement time and the period of parole. The
sentence shall be deemed a separate prior prison term under Section
667.5, and a copy of the judgment and other necessary documentation
shall be forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court. At least
four days prior to the time set for imposition of judgment, either
party or the victim, or the family of the victim if the victim is
deceased, may submit a statement in aggravation or mitigation. In
determining the appropriate term, the court may consider the record
in the case, the probation officer's report, other reports, including
reports received pursuant to Section 1203.03, and statements in
aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim
is deceased, and any further evidence introduced at the sentencing
hearing. The court shall select the term which, in the court's
discretion, best serves the interests of justice. The court shall set
forth on the record the reasons for imposing the term selected and
the court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any provision of
law. A term of imprisonment shall not be specified if imposition of
sentence is suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.
(d) (1) When a defendant subject to this
section or subdivision (b) of Section 1168 has been sentenced to be
imprisoned in the state prison and has been committed to the custody
of the secretary, the court may, within 120 days of the date of
commitment on its own motion, or at any time upon the recommendation
of the secretary or the Board of Parole Hearings, recall the sentence
and commitment previously ordered and resentence the defendant in
the same manner as if he or she had not previously been sentenced,
provided the new sentence, if any, is no greater than the initial
sentence. The resentence court resentencing
under this subdivision shall apply the sentencing rules of the
Judicial Council so as to eliminate disparity of sentences and to
promote uniformity of sentencing. Credit shall be given for time
served.
(2) (A) 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 life without the possibility of parole
has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing.
(B) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) 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.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) 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.
(C) If any of the information required in subparagraph (B) 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
defendant and advise the defendant that the matter cannot be
considered without the missing information.
(D) 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.
(E) 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 previously been 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.
(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) 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.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) 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.
(G) The court shall have the 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. The discretion of the court shall be exercised in
consideration of the criteria in subparagraph (B). Victims, 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.
(H) 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
department for at least 20 years. If recall and resentencing is not
granted under that petition, 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.
(I) In addition to the criteria in subparagraph (F), 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.
(J) This subdivision shall have retroactive application.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's
representative shall contact the inmate's emergency contact
and provide the information described in paragraph (2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious
felony described in subdivision (c) of Section 1192.7 or a
prior or current conviction for a violent felony described in
subdivision (c) of Section 667.5 , (B) has a prior felony
conviction in another jurisdiction for an offense that has all of the
elements of a serious felony described in subdivision (c) of Section
1192.7 or a violent felony described in subdivision (c) of
Section 667.5, (C) has a prior juvenile adjudication where the
defendant was 16 years of age or older at the time he or she
committed the prior offense of a serious felony described in subdivi
sion (c) of Section 1192.7 or a violent felony described
in subdivision (c) of Section 667.5, a prior juvenile adjudication in
another jurisdiction for an offense that has all the elements of a
serious felony described in subdivision (c) of Section 1192.7 or a
violent felony described in subdivision (c) of Section 667.5, or a
felony described in subdivision (b) of Section 707 of the Welfare and
Institutions Code, (D) is required to register as a sex
offender pursuant to Chapter 5.5 (commencing with Section 290) of
Title 9 of Part 1, or (E) is convicted of a crime and as
part of the sentence an enhancement pursuant to Section 186.11 is
imposed, an executed sentence for a felony punishable pursuant to
this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) A judge, when imposing a sentence pursuant to paragraph (1),
may order the defendant to serve a term in a county jail for a period
not to exceed the maximum possible term of confinement or may impose
a sentence that includes a period of county jail time and a period
of mandatory probation not to exceed the maximum possible sentence.
(5) The court, when imposing a sentence pursuant to paragraphs (1)
or (2) of this subdivision, may commit the defendant to county jail
as follows:
(A) For a full term in custody as determined in accordance with
the applicable sentencing law.
(B) For a term as determined in accordance with the applicable
sentencing law, but suspend execution of a concluding portion of the
term selected in the court's discretion, during which time the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. During the period when the defendant is under
such supervision, unless in actual custody related to the sentence
imposed by the court, the defendant shall be entitled to only actual
time credit against the term of imprisonment imposed by the court.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(i) This section shall remain in effect only until January 1,
2012, 2014, and as of that date is
repealed, unless a later enacted statute, that is enacted before that
date, deletes or extends that date.
SEC. 12.4. Section 1170 of the Penal
Code , as amended by Section 4 of Chapter 136
of the Statutes of 2011, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing 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. In any case in which the amount of preimprisonment
credit under Section 2900.5 or any other provision of law is equal to
or exceeds any sentence imposed pursuant to this chapter, the entire
sentence shall be deemed to have been served and the defendant shall
not be actually delivered to the custody of the secretary. The court
shall advise the defendant that he or she shall serve a period of
parole and order the defendant to report to the parole office closest
to the defendant's last legal residence, unless the in-custody
credits equal the total sentence, including both confinement time and
the period of parole. The sentence shall be deemed a separate prior
prison term under Section 667.5, and a copy of the judgment and other
necessary documentation shall be forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall order
imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime. At least four days prior to
the time set for imposition of judgment, either party or the victim,
or the family of the victim if the victim is deceased, may submit a
statement in aggravation or mitigation to dispute facts in the record
or the probation officer's report, or to present additional facts.
In determining whether there are circumstances that justify
imposition of the upper or lower term, the court may consider the
record in the case, the probation officer's report, other reports,
including reports received pursuant to Section 1203.03, and
statements in aggravation or mitigation submitted by the prosecution,
the defendant, or the victim, or the family of the victim if the
victim is deceased, and any further evidence introduced at the
sentencing hearing. The court shall set forth on the record the facts
and reasons for imposing the upper or lower term. The court may not
impose an upper term by using the fact of any enhancement upon which
sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is
suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.
(d) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the secretary, the court
may, within 120 days of the date of commitment on its own motion, or
at any time upon the recommendation of the secretary or the Board of
Parole Hearings, recall the sentence and commitment previously
ordered and resentence the defendant in the same manner as if he or
she had not previously been sentenced, provided the new sentence, if
any, is no greater than the initial sentence. The resentence under
this subdivision shall apply the sentencing rules of the Judicial
Council so as to eliminate disparity of sentences and to promote
uniformity of sentencing. Credit shall be given for time served.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious
felony described in subdivision (c) of Section 1192.7 or a
prior or current conviction for a violent felony described in
subdivision (c) of Section 667.5 , (B) has a prior felony
conviction in another jurisdiction for an offense that has all of the
elements of a serious felony described in subdivision (c) of Section
1192.7 or a violent felony described in subdivision (c) of
Section 667.5, (C) has a prior juvenile adjudication where the
defendant was 16 years of age or older at the time he or she
committed the prior offense of a serious felony described in
subdivision (c) of Section 1192.7 or a violent felony described in
subdivision (c) of Section 667.5, a prior juvenile adjudication in
another jurisdiction for an offense that has all the elements of a
serious felony described in subdivision (c) of Section 1192.7 or a
violent felony described in subdivision (c) of Section 667.5, or a
felony described in subdivision (b) of Section 707 of the Welfare and
Institutions Code, (D) is required to register as a sex
offender pursuant to Chapter 5.5 (commencing with Section 290) of
Title 9 of Part 1, or (E) is convicted of a crime and as
part of the sentence an enhancement pursuant to Section 186.11 is
imposed, an executed sentence for a felony punishable pursuant to
this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) A judge, when imposing a sentence pursuant to paragraph (1),
may order the defendant to serve a term in a county jail for a period
not to exceed the maximum possible term of confinement or may impose
a sentence which includes a period of county jail time and a period
of mandatory probation not to exceed the maximum possible sentence.
(5) The court, when imposing a sentence pursuant to paragraph (1)
or (2) of this subdivision, may commit the defendant to county jail
as follows:
(A) For a full term in custody as determined in accordance with
the applicable sentencing law.
(B) For a term as determined in accordance with the applicable
sentencing law, but suspend execution of a concluding portion of the
term selected in the court's discretion, during which time the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. During the period when the defendant is under
such supervision, unless in actual custody related to the sentence
imposed by the court, the defendant shall be entitled to only actual
time credit against the term of imprisonment imposed by the court.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(i) This section shall become operative on January 1, 2012.
SEC. 12.5. Section 1170 of the Penal
Code , as amended by Section 4 of Chapter 136
of the Statutes of 2011, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing 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. life, except as provided in
paragraph (2) of subdivision (d). In any case in which the
amount of preimprisonment credit under Section 2900.5 or any other
provision of law is equal to or exceeds any sentence imposed pursuant
to this chapter, the entire sentence shall be deemed to have been
served and the defendant shall not be actually delivered to the
custody of the secretary. The court shall advise the defendant that
he or she shall serve a
period of parole and order the defendant to report to the parole
office closest to the defendant's last legal residence, unless the
in-custody credits equal the total sentence, including both
confinement time and the period of parole. The sentence shall be
deemed a separate prior prison term under Section 667.5, and a copy
of the judgment and other necessary documentation shall be forwarded
to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall order
imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime. At least four days prior to
the time set for imposition of judgment, either party or the victim,
or the family of the victim if the victim is deceased, may submit a
statement in aggravation or mitigation to dispute facts in the record
or the probation officer's report, or to present additional facts.
In determining whether there are circumstances that justify
imposition of the upper or lower term, the court may consider the
record in the case, the probation officer's report, other reports,
including reports received pursuant to Section 1203.03, and
statements in aggravation or mitigation submitted by the prosecution,
the defendant, or the victim, or the family of the victim if the
victim is deceased, and any further evidence introduced at the
sentencing hearing. The court shall set forth on the record the facts
and reasons for imposing the upper or lower term. The court may not
impose an upper term by using the fact of any enhancement upon which
sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is
suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.
(d) (1) When a defendant subject to this
section or subdivision (b) of Section 1168 has been sentenced to be
imprisoned in the state prison and has been committed to the custody
of the secretary, the court may, within 120 days of the date of
commitment on its own motion, or at any time upon the recommendation
of the secretary or the Board of Parole Hearings, recall the sentence
and commitment previously ordered and resentence the defendant in
the same manner as if he or she had not previously been sentenced,
provided the new sentence, if any, is no greater than the initial
sentence. The resentence court resentencing
under this subdivision shall apply the sentencing rules of the
Judicial Council so as to eliminate disparity of sentences and to
promote uniformity of sentencing. Credit shall be given for time
served.
(2) (A) 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 life without the possibility of parole
has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing.
(B) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) 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.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) 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.
(C) If any of the information required in subparagraph (B) 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
defendant and advise the defendant that the matter cannot be
considered without the missing information.
(D) 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.
(E) 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 previously been 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.
(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) 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.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) 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.
(G) The court shall have the 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. The discretion of the court shall be exercised in
consideration of the criteria in subparagraph (B). Victims, 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.
(H) 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
department for at least 20 years. If recall and resentencing is not
granted under that petition, 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.
(I) In addition to the criteria in subparagraph (F), 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.
(J) This subdivision shall have retroactive application.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious
felony described in subdivision (c) of Section 1192.7 or a
prior or current conviction for a violent felony described in
subdivision (c) of Section 667.5 , (B) has a prior felony
conviction in another jurisdiction for an offense that has all of the
elements of a serious felony described in subdivision (c)
of Section 1192.7 or a violent felony described in subdivision
(c) of Section 667.5, (C) has a prior juvenile adjudication
where the defendant was 16 years of age or older at the ti
me he or she committed the prior offense of a serious felony
described in subdivision (c) of Section 1192.7 or a violent felony
described in subdivision (c) of Section 667.5, a prior juvenile
adjudication in another jurisdiction for an offense that has all the
elements of a serious felony described in subdivision (c) of Section
1192.7 or a violent felony described in subdivision (c) of Section
667.5, or a felony described in subdivision (b) of Section 707 of the
Welfare and Institutions Code, (D) is required to register as
a sex offender pursuant to Chapter 5.5 (commencing with Section 290)
of Title 9 of Part 1, or (E) is convicted of a crime and
as part of the sentence an enhancement pursuant to Section 186.11 is
imposed, an executed sentence for a felony punishable pursuant to
this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) A judge, when imposing a sentence pursuant to paragraph (1),
may order the defendant to serve a term in a county jail for a period
not to exceed the maximum possible term of confinement or may impose
a sentence which includes a period of county jail time and a period
of mandatory probation not to exceed the maximum possible sentence.
(5) The court, when imposing a sentence pursuant to paragraphs (1)
or (2) of this subdivision, may commit the defendant to county jail
as follows:
(A) For a full term in custody as determined in accordance with
the applicable sentencing law.
(B) For a term as determined in accordance with the applicable
sentencing law, but suspend execution of a concluding portion of the
term selected in the court's discretion, during which time the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. During the period when the defendant is under
such supervision, unless in actual custody related to the sentence
imposed by the court, the defendant shall be entitled to only actual
time credit against the term of imprisonment imposed by the court.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(i) This section shall become operative on January 1, 2012.
SEC. 12.6. Section 1170 of the Penal
Code , as amended by Section 4 of Chapter 136
of the Statutes of 2011, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing 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. In any case in which the amount of preimprisonment
credit under Section 2900.5 or any other provision of law is equal to
or exceeds any sentence imposed pursuant to this chapter, the entire
sentence shall be deemed to have been served and the defendant shall
not be actually delivered to the custody of the secretary. The court
shall advise the defendant that he or she shall serve a period of
parole and order the defendant to report to the parole office closest
to the defendant's last legal residence, unless the in-custody
credits equal the total sentence, including both confinement time and
the period of parole. The sentence shall be deemed a separate prior
prison term under Section 667.5, and a copy of the judgment and other
necessary documentation shall be forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall order
imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime. At least four days prior to
the time set for imposition of judgment, either party or the victim,
or the family of the victim if the victim is deceased, may submit a
statement in aggravation or mitigation to dispute facts in the record
or the probation officer's report, or to present additional facts.
In determining whether there are circumstances that justify
imposition of the upper or lower term, the court may consider the
record in the case, the probation officer's report, other reports,
including reports received pursuant to Section 1203.03, and
statements in aggravation or mitigation submitted by the prosecution,
the defendant, or the victim, or the family of the victim if the
victim is deceased, and any further evidence introduced at the
sentencing hearing. The court shall set forth on the record the facts
and reasons for imposing the upper or lower term. The court may not
impose an upper term by using the fact of any enhancement upon which
sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is
suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.
(d) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the secretary, the court
may, within 120 days of the date of commitment on its own motion, or
at any time upon the recommendation of the secretary or the Board of
Parole Hearings, recall the sentence and commitment previously
ordered and resentence the defendant in the same manner as if he or
she had not previously been sentenced, provided the new sentence, if
any, is no greater than the initial sentence. The resentence under
this subdivision shall apply the sentencing rules of the Judicial
Council so as to eliminate disparity of sentences and to promote
uniformity of sentencing. Credit shall be given for time served.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of
muscular or neurological function, and that incapacitation did not
exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious
felony described in subdivision (c) of Section 1192.7 or a
prior or current conviction for a violent felony described in
subdivision (c) of Section 667.5 , (B) has a prior felony
conviction in another jurisdiction for an offense that has all of the
elements of a serious felony described in subdivision (c) of Section
1192.7 or a violent felony described in subdivision (c) of
Section 667.5, (C) has a prior juvenile adjudication where the
defendant was 16 years of age or older at the time he or she
committed the prior offense of a serious felony described in
subdivision (c) of Section 1192.7 or a violent felony described in
subdivision (c) of Section 667.5, a prior juvenile adjudication in
another jurisdiction for an offense that has all the elements of a
serious felony described in subdivision (c) of Section 1192.7 or a
violent felony described in subdivision (c) of Section 667.5, or a
felony described in subdivision (b) of Section 707 of the Welfare and
Institutions Code, (D) is required to register as a sex
offender pursuant to Chapter 5.5 (commencing with Section 290) of
Title 9 of Part 1, or (E) is convicted of a crime and as
part of the sentence an enhancement pursuant to Section 186.11 is
imposed, an executed sentence for a felony punishable pursuant to
this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) A judge, when imposing a sentence pursuant to paragraph (1),
may order the defendant to serve a term in a county jail for a period
not to exceed the maximum possible term of confinement or may impose
a sentence which includes a period of county jail time and a period
of mandatory probation not to exceed the maximum possible sentence.
(5) The court, when imposing a sentence pursuant to paragraphs (1)
or (2) of this subdivision, may commit the defendant to county jail
as follows:
(A) For a full term in custody as determined in accordance with
the applicable sentencing law.
(B) For a term as determined in accordance with the applicable
sentencing law, but suspend execution of a concluding portion of the
term selected in the court's discretion, during which time the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. During the period when the defendant is under
such supervision, unless in actual custody related to the sentence
imposed by the court, the defendant shall be entitled to only actual
time credit against the term of imprisonment imposed by the court.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(i) This section shall become operative on January 1,
2012. 2014.
SEC. 12.7. Section 1170 of the Penal
Code , as amended by Section 4 of Chapter 136
of the Statutes of 2011, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing 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 , except as provided in paragraph (2) of
subdivision (d) . In any case in which the amount of
preimprisonment credit under Section 2900.5 or any other provision of
law is equal to or exceeds any sentence imposed pursuant to this
chapter, the entire sentence shall be deemed to have been served and
the defendant shall not be actually delivered to the custody of the
secretary. The court shall advise the defendant that he or she shall
serve a period of parole and order the defendant to report to the
parole office closest to the defendant's last legal residence, unless
the in-custody credits equal the total sentence, including both
confinement time and the period of parole. The sentence shall be
deemed a separate prior prison term under Section 667.5, and a copy
of the judgment and other necessary documentation shall be forwarded
to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall order
imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime. At least four days prior to
the time set for imposition of judgment, either party or the victim,
or the family of the victim if the victim is deceased, may submit a
statement in aggravation or mitigation to dispute facts in the record
or the probation officer's report, or to present additional facts.
In determining whether there are circumstances that justify
imposition of the upper or lower term, the court may consider the
record in the case, the probation officer's report, other reports,
including reports received pursuant to Section 1203.03, and
statements in aggravation or mitigation submitted by the prosecution,
the defendant, or the victim, or the family of the victim if the
victim is deceased, and any further evidence introduced at the
sentencing hearing. The court shall set forth on the record the facts
and reasons for imposing the upper or lower term. The court may not
impose an upper term by using the fact of any enhancement upon which
sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is
suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.
(d) (1) When a defendant subject to this
section or subdivision (b) of Section 1168 has been sentenced to be
imprisoned in the state prison and has been committed to the custody
of the secretary, the court may, within 120 days of the date of
commitment on its own motion, or at any time upon the recommendation
of the secretary or the Board of Parole Hearings, recall the sentence
and commitment previously ordered and resentence the defendant in
the same manner as if he or she had not previously been sentenced,
provided the new sentence, if any, is no greater than the initial
sentence. The resentence court resentencing
under this subdivision shall apply the sentencing rules of the
Judicial Council so as to eliminate disparity of sentences and to
promote uniformity of sentencing. Credit shall be given for time
served.
(2) (A) 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 life without the possibility of parole
has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing.
(B) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) 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.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) 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.
(C) If any of the information required in subparagraph (B) 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
defendant and advise the defendant that the matter cannot be
considered without the missing information.
(D) 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.
(E) 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 previously been 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.
(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) 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.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) 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.
(G) The court shall have the 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. The discretion of the court shall be exercised in
consideration of the criteria in subparagraph (B). Victims, 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.
(H) 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
department for at least 20 years. If recall and resentencing is not
granted under that petition, 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.
(I) In addition to the criteria in subparagraph (F), 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.
(J) This subdivision shall have retroactive application.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The
secretary shall issue a directive to medical and correctional staff
employed by the department that details the guidelines and procedures
for initiating a recall and resentencing procedure. The directive
shall clearly state that any prisoner who is given a prognosis of six
months or less to live is eligible for recall and resentencing
consideration, and that recall and resentencing procedures shall be
initiated upon that prognosis.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious
felony described in subdivision (c) of Section 1192.7 or a
prior or current conviction for a violent felony described in
subdivision (c) of Section 667.5 , (B) has a prior felony
conviction in another jurisdiction for an offense that has all of the
elements of a serious felony described in subdivision (c) of Section
1192.7 or a violent felony described in subdivision (c) of
Section 667.5, (C) has a prior juvenile adjudication where the
defendant was 16 years of age or older at the time he or she
committed the prior offense of a serious felony described in
subdivision (c) of Section 1192.7 or a violent felo ny
described in subdivision (c) of Section 667.5, a prior juvenile
adjudication in another jurisdiction for an offense that has all the
elements of a serious felony described in subdivision (c) of Section
1192.7 or a violent felony described in subdivision (c) of
Section 667.5, or a felony described in subdivision (b) of Section
707 of the Welfare and Institutions Code, (D) is required to
register as a sex offender pursuant to Chapter 5.5 (commencing with
Section 290) of Title 9 of Part 1, or (E) is convicted of
a crime and as part of the sentence an enhancement pursuant to
Section 186.11 is imposed, an executed sentence for a felony
punishable pursuant to this subdivision shall be served in state
prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) A judge, when imposing a sentence pursuant to paragraph (1),
may order the defendant to serve a term in a county jail for a period
not to exceed the maximum possible term of confinement or may impose
a sentence which includes a period of county jail time and a period
of mandatory probation not to exceed the maximum possible sentence.
(5) The court, when imposing a sentence pursuant to paragraphs (1)
or (2) of this subdivision, may commit the defendant to county jail
as follows:
(A) For a full term in custody as determined in accordance with
the applicable sentencing law.
(B) For a term as determined in accordance with the applicable
sentencing law, but suspend execution of a concluding portion of the
term selected in the court's discretion, during which time the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. During the period when the defendant is under
such supervision, unless in actual custody related to the sentence
imposed by the court, the defendant shall be entitled to only actual
time credit against the term of imprisonment imposed by the court.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(i) This section shall become operative on January 1,
2012. 2014.
SEC. 13. Section 1170.1 of the Penal
Code , as amended by Section 29 of Chapter 39
of the Statutes of 2011, is amended to read:
1170.1. (a) Except as otherwise provided by law, and subject to
Section 654, when any person is convicted of two or more felonies,
whether in the same proceeding or court or in different proceedings
or courts, and whether by judgment rendered by the same or by a
different court, and a consecutive term of imprisonment is imposed
under Sections 669 and 1170, the aggregate term of imprisonment for
all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable
enhancements for prior convictions, prior prison terms, and Section
12022.1. The principal term shall consist of the greatest term of
imprisonment imposed by the court for any of the crimes, including
any term imposed for applicable specific enhancements. The
subordinate term for each consecutive offense shall consist of
one-third of the middle term of imprisonment prescribed for each
other felony conviction for which a consecutive term of imprisonment
is imposed, and shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.
Whenever a court imposes a term of imprisonment in the state prison,
whether the term is a principal or subordinate term, the aggregate
term shall be served in the state prison, regardless as to whether or
not one of the terms specifies imprisonment in the county jail
pursuant to subdivision (h) of Section 1170.
(b) If a person is convicted of two or more violations of
kidnapping, as defined in Section 207, involving separate victims,
the subordinate term for each consecutive offense of kidnapping shall
consist of the full middle term and shall include the full term
imposed for specific enhancements applicable to those subordinate
offenses.
(c) In the case of any person convicted of one or more felonies
committed while the person is confined in a state prison or is
subject to reimprisonment for escape from custody and the law either
requires the terms to be served consecutively or the court imposes
consecutive terms, the term of imprisonment for all the convictions
that the person is required to serve consecutively shall commence
from the time the person would otherwise have been released from
prison. If the new offenses are consecutive with each other, the
principal and subordinate terms shall be calculated as provided in
subdivision (a). This subdivision shall be applicable in cases of
convictions of more than one offense in the same or different
proceedings.
(d) When the court imposes a prison sentence
for a felony pursuant to Section 1170 or subdivision (b) of Section
1168, the court shall also impose, in addition and consecutive to the
offense of which the person has been convicted, the additional terms
provided for any applicable enhancements. If an enhancement is
punishable by one of three terms, the court shall, in its discretion,
impose the term that best serves the interest of justice, and state
the reasons for its sentence choice on the record at the time of
sentencing. The court shall also impose any other additional term
that the court determines in its discretion or as required by law
shall run consecutive to the term imposed under Section 1170 or
subdivision (b) of Section 1168. In considering the imposition of the
additional term, the court shall apply the sentencing rules of the
Judicial Council.
(e) All enhancements shall be alleged in the accusatory pleading
and either admitted by the defendant in open court or found to be
true by the trier of fact.
(f) When two or more enhancements may be imposed for being armed
with or using a dangerous or deadly weapon or a firearm in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for the infliction of great
bodily injury.
(g) When two or more enhancements may be imposed for the
infliction of great bodily injury on the same victim in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for being armed with or
using a dangerous or deadly weapon or a firearm.
(h) For any violation of an offense specified in Section 667.6,
the number of enhancements that may be imposed shall not be limited,
regardless of whether the enhancements are pursuant to this section,
Section 667.6, or some other provision of law. Each of the
enhancements shall be a full and separately served term.
(i) This section shall remain in effect only until January 1,
2012, 2014, and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2012, deletes or extends that date.
SEC. 13.1. Section 1170.1 of the Penal
Code , as amended by Section 29 of Chapter 39
of the Statutes of 2011, is amended to read:
1170.1. (a) Except as otherwise provided by law, and subject to
Section 654, when any person is convicted of two or more felonies,
whether in the same proceeding or court or in different proceedings
or courts, and whether by judgment rendered by the same or by a
different court, and a consecutive term of imprisonment is imposed
under Sections 669 and 1170, the aggregate term of imprisonment for
all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable
enhancements for prior convictions, prior prison terms, and Section
12022.1. The principal term shall consist of the greatest term of
imprisonment imposed by the court for any of the crimes, including
any term imposed for applicable specific enhancements. The
subordinate term for each consecutive offense shall consist of
one-third of the middle term of imprisonment prescribed for each
other felony conviction for which a consecutive term of imprisonment
is imposed, and shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.
Whenever a court imposes a term of imprisonment in the state prison,
whether the term is a principal or subordinate term, the aggregate
term shall be served in the state prison, regardless as to whether or
not one of the terms specifies imprisonment in the county jail
pursuant to subdivision (h) of Section 1170.
(b) If a person is convicted of two or more violations of
kidnapping, as defined in Section 207, involving separate victims,
the subordinate term for each consecutive offense of kidnapping shall
consist of the full middle term and shall include the full term
imposed for specific enhancements applicable to those subordinate
offenses.
(c) In the case of any person convicted of one or more felonies
committed while the person is confined in a state prison or is
subject to reimprisonment for escape from custody and the law either
requires the terms to be served consecutively or the court imposes
consecutive terms, the term of imprisonment for all the convictions
that the person is required to serve consecutively shall commence
from the time the person would otherwise have been released from
prison. If the new offenses are consecutive with each other, the
principal and subordinate terms shall be calculated as provided in
subdivision (a). This subdivision shall be applicable in cases of
convictions of more than one offense in the same or different
proceedings.
(d) When the court imposes a prison sentence
for a felony pursuant to Section 1170 or subdivision (b) of Section
1168, the court shall also impose, in addition and consecutive to the
offense of which the person has been convicted, the additional terms
provided for any applicable enhancements. If an enhancement is
punishable by one of three terms, the court shall, in its discretion,
impose the term that best serves the interest of justice, and state
the reasons for its sentence choice on the record at the time of
sentencing. The court shall also impose any other additional term
that the court determines in its discretion or as required by law
shall run consecutive to the term imposed under Section 1170 or
subdivision (b) of Section 1168. In considering the imposition of the
additional term, the court shall apply the sentencing rules of the
Judicial Council.
(e) All enhancements shall be alleged in the accusatory pleading
and either admitted by the defendant in open court or found to be
true by the trier of fact.
(f) When two or more enhancements may be imposed for being armed
with or using a dangerous or deadly weapon or a firearm in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for the infliction of great
bodily injury.
(g) When two or more enhancements may be imposed for the
infliction of great bodily injury on the same victim in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for being armed with or
using a dangerous or deadly weapon or a firearm.
(h) For any violation of an offense specified in Section 667.6,
the number of enhancements that may be imposed shall not be limited,
regardless of whether the enhancements are pursuant to this section,
Section 667.6, or some other provision of law. Each of the
enhancements shall be a full and separately served term.
(i) This section shall remain in effect only until January 1,
2012 2014 , and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2012, 2014, deletes or
extends that date.
SEC. 13.2. Section 1170.1 of the Penal
Code , as amended by Section 30 of Chapter 39
of the Statutes of 2011, is amended to read:
1170.1. (a) Except as otherwise provided by law, and subject to
Section 654, when any person is convicted of two or more felonies,
whether in the same proceeding or court or in different proceedings
or courts, and whether by judgment rendered by the same or by a
different court, and a consecutive term of imprisonment is imposed
under Sections 669 and 1170, the aggregate term of imprisonment for
all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable
enhancements for prior convictions, prior prison terms, and Section
12022.1. The principal term shall consist of the greatest term of
imprisonment imposed by the court for any of the crimes, including
any term imposed for applicable specific enhancements. The
subordinate term for each consecutive offense shall consist of
one-third of the middle term of imprisonment prescribed for each
other felony conviction for which a consecutive term of imprisonment
is imposed, and shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.
Whenever a court imposes a term of imprisonment in the state prison,
whether the term is a principal or subordinate term, the aggregate
term shall be served in the state prison, regardless as to whether or
not one of the terms specifies imprisonment in the county jail
pursuant to subdivision (h) of Section 1170.
(b) If a person is convicted of two or more violations of
kidnapping, as defined in Section 207, involving separate victims,
the subordinate term for each consecutive offense of kidnapping shall
consist of the full middle term and shall include the full term
imposed for specific enhancements applicable to those subordinate
offenses.
(c) In the case of any person convicted of one or more felonies
committed while the person is confined in a state prison or is
subject to reimprisonment for escape from custody and the law either
requires the terms to be served consecutively or the court imposes
consecutive terms, the term of imprisonment for all the convictions
that the person is required to serve consecutively shall commence
from the time the person would otherwise have been released from
prison. If the new offenses are consecutive with each other, the
principal and subordinate terms shall be calculated as provided in
subdivision (a). This subdivision shall be applicable in cases of
convictions of more than one offense in the same or different
proceedings.
(d) When the court imposes a prison sentence
for a felony pursuant to Section 1170 or subdivision (b) of Section
1168, the court shall also impose, in addition and consecutive to the
offense of which the person has been convicted, the additional terms
provided for any applicable enhancements. If an enhancement is
punishable by one of three terms, the court shall impose the middle
term unless there are circumstances in aggravation or mitigation, and
state the reasons for its sentence choice, other than the middle
term, on the record at the time of sentencing. The court shall also
impose any other additional term that the court determines in its
discretion or as required by law shall run consecutive to the term
imposed under Section 1170 or subdivision (b) of Section 1168. In
considering the imposition of the additional term, the court shall
apply the sentencing rules of the Judicial Council.
(e) All enhancements shall be alleged in the accusatory pleading
and either admitted by the defendant in open court or found to be
true by the trier of fact.
(f) When two or more enhancements may be imposed for being armed
with or using a dangerous or deadly weapon or a firearm in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for the infliction of great
bodily injury.
(g) When two or more enhancements may be imposed for the
infliction of great bodily injury on the same victim in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for being armed with or
using a dangerous or deadly weapon or a firearm.
(h) For any violation of an offense specified in Section 667.6,
the number of enhancements that may be imposed shall not be limited,
regardless of whether the enhancements are pursuant to this section,
Section 667.6, or some other provision of law. Each of the
enhancements shall be a full and separately served term.
(i) This section shall become operative on January 1, 2012.
SEC. 13.3. Section 1170.1 of the Penal
Code , as amended by Section 30 of Chapter 39
of the Statutes of 2011, is amended to read:
1170.1. (a) Except as otherwise provided by law, and subject to
Section 654, when any person is convicted of two or more felonies,
whether in the same proceeding or court or in different proceedings
or courts, and whether by judgment rendered by the same or by a
different court, and a consecutive term of imprisonment is imposed
under Sections 669 and 1170, the aggregate term of imprisonment for
all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable
enhancements for prior convictions, prior prison terms, and Section
12022.1. The principal term shall consist of the greatest term of
imprisonment imposed by the court for any of the crimes, including
any term imposed for applicable specific enhancements. The
subordinate term for each consecutive offense shall consist of
one-third of the middle term of imprisonment prescribed for each
other felony conviction for which a consecutive term of imprisonment
is imposed, and shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.
Whenever a court imposes a term of imprisonment in the state prison,
whether the term is a principal or subordinate term, the aggregate
term shall be served in the state prison, regardless as to whether or
not one of the terms specifies imprisonment in the county jail
pursuant to subdivision (h) of Section 1170.
(b) If a person is convicted of two or more violations of
kidnapping, as defined in Section 207, involving separate victims,
the subordinate term for each consecutive offense of kidnapping shall
consist of the full middle term and shall include the full term
imposed for specific enhancements applicable to those subordinate
offenses.
(c) In the case of any person convicted of one or more felonies
committed while the person is confined in a state prison or is
subject to reimprisonment for escape from custody and the law either
requires the terms to be served consecutively or the court imposes
consecutive terms, the term of imprisonment for all the convictions
that the person is required to serve consecutively shall commence
from the time the person would otherwise have been released from
prison. If the new offenses are consecutive with each other, the
principal and subordinate terms shall be calculated as provided in
subdivision (a). This subdivision shall be applicable in cases of
convictions of more than one offense in the same or different
proceedings.
(d) When the court imposes a prison sentence
for a felony pursuant to Section 1170 or subdivision (b) of Section
1168, the court shall also impose, in addition and consecutive to the
offense of which the person has been convicted, the additional terms
provided for any applicable enhancements. If an enhancement is
punishable by one of three terms, the court shall impose the middle
term unless there are circumstances in aggravation or mitigation, and
state the reasons for its sentence choice, other than the middle
term, on the record at the time of sentencing. The court shall also
impose any other additional term that the court determines in its
discretion or as required by law shall run consecutive to the term
imposed under Section 1170 or subdivision (b) of Section 1168. In
considering the imposition of the additional term, the court shall
apply the sentencing rules of the Judicial Council.
(e) All enhancements shall be alleged in the accusatory pleading
and either admitted by the defendant in open court or found to be
true by the trier of fact.
(f) When two or more enhancements may be imposed for being armed
with or using a dangerous or deadly weapon or a firearm in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for the infliction of great
bodily injury.
(g) When two or more enhancements may be imposed for the
infliction of great bodily injury on the same victim in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for being armed with or
using a dangerous or deadly weapon or a firearm.
(h) For any violation of an offense specified in Section 667.6,
the number of enhancements that may be imposed shall not be limited,
regardless of whether the enhancements are pursuant to this section,
Section 667.6, or some other provision of law. Each of the
enhancements shall be a full and separately served term.
(i) This section shall become operative on January 1,
2012. 2014.
SEC. 14. Section 1233.15 is added to the
Penal Code , to read:
1233.15. The Director of Finance, in consultation with the
Administrative Office of the Courts, the Department of Corrections
and Rehabilitation, and the Chief Probation Officers of California,
shall develop a revised formula for the California Community
Corrections Performance Incentives Act of 2009 that takes into
consideration the significant changes to the eligibility of some
felony probationers for revocation to the state prison resulting from
the implementation of the 2011 Public Safety realignment. The
revised formula may include adjustments to the baseline failure rate
for each county.
SEC. 15. Section 2932 of the Penal Code
, as amended by Section 35 of Chapter 39 of the
Statutes of 2011, is repealed.
2932. (a) (1) For any time credit accumulated pursuant to Section
2931, 2933, or 4019, not more than 360 days of credit may be denied
or lost for a single act of murder, attempted murder, solicitation of
murder, manslaughter, rape, sodomy, or oral copulation accomplished
against the victim's will, attempted rape, attempted sodomy, or
attempted oral copulation accomplished against the victim's will,
assault or battery causing serious bodily injury, assault with a
deadly weapon or caustic substance, taking of a hostage, escape with
force or violence, or possession or manufacture of a deadly weapon or
explosive device, whether or not prosecution is undertaken for
purposes of this
paragraph. Solicitation of murder shall be proved by the testimony of
two witnesses, or of one witness and corroborating circumstances.
(2) Not more than 180 days of credit may be denied or lost for a
single act of misconduct, except as specified in paragraph (1), which
could be prosecuted as a felony whether or not prosecution is
undertaken.
(3) Not more than 90 days of credit may be denied or lost for a
single act of misconduct which could be prosecuted as a misdemeanor,
whether or not prosecution is undertaken.
(4) Not more than 30 days of credit may be denied or lost for a
single act of misconduct defined by regulation as a serious
disciplinary offense by the Department of Corrections and
Rehabilitation. Any person confined due to a change in custodial
classification following the commission of any serious disciplinary
infraction shall, in addition to any loss of time credits, be
ineligible to receive participation or worktime credit for a period
not to exceed the number of days of credit which have been lost for
the act of misconduct or 180 days, whichever is less. Any person
confined in a secure housing unit for having committed any misconduct
specified in paragraph (1) in which great bodily injury is inflicted
upon a nonprisoner shall, in addition to any loss of time credits,
be ineligible to receive participation or worktime credit for a
period not to exceed the number of days of credit which have been
lost for that act of misconduct. In unusual cases, an inmate may be
denied the opportunity to participate in a credit qualifying
assignment for up to six months beyond the period specified in this
subdivision if the Secretary of the Department of Corrections and
Rehabilitation, or for prisoners confined in local facilities as
specified in Section 4019, the sheriff or director of the county
correctional department, finds, after a hearing, that no credit
qualifying program may be assigned to the inmate without creating a
substantial risk of physical harm to staff or other inmates. At the
end of the six-month period and of successive six-month periods, the
denial of the opportunity to participate in a credit qualifying
assignment may be renewed upon a hearing and finding by the
secretary, or for prisoners confined in local facilities as specified
in Section 4019, the sheriff or director of the county correctional
department.
(5) The prisoner may appeal the decision through the department's
review procedure, or in the case of prisoners confined in local
facilities as specified in Section 4019, through the sheriff's or
director of the county correctional department's review procedure,
which shall include a review by an individual independent of the
institution who has supervisorial authority over the institution.
(b) For any credit accumulated pursuant to Section 2931, not more
than 30 days of participation credit may be denied or lost for a
single failure or refusal to participate. Any act of misconduct
described by the Department of Corrections and Rehabilitation, or for
prisoners confined in local facilities as specified in Section 4019,
the sheriff or director of the county correctional department, as a
serious disciplinary infraction if committed while participating in
work, educational, vocational, therapeutic, or other prison activity
shall be deemed a failure to participate.
(c) Any procedure not provided for by this section, but necessary
to carry out the purposes of this section, shall be those procedures
provided for by the Department of Corrections and Rehabilitation for
serious disciplinary infractions if those procedures are not in
conflict with this section, or in the case of prisoners confined in
local facilities as specified in Section 4019, by the sheriff or
director of the county correctional department.
(1) (A) The Department of Corrections and Rehabilitation, or in
the case of prisoners confined in local facilities as specified in
Section 4019, the sheriff or director of the county correctional
department, shall, using reasonable diligence to investigate, provide
written notice to the prisoner. The written notice shall be given
within 15 days after the discovery of information leading to charges
that may result in a possible denial of credit, except that if the
prisoner has escaped, the notice shall be given within 15 days of the
prisoner's return to the custody of the Secretary of the Department
of Corrections and Rehabilitation, or in the case of prisoners
confined in local facilities as specified in Section 4019, the
sheriff or director of the county correctional department. The
written notice shall include the specific charge, the date, the time,
the place that the alleged misbehavior took place, the evidence
relied upon, a written explanation of the procedures that will be
employed at the proceedings and the prisoner's rights at the hearing.
The hearing shall be conducted by an individual who shall be
independent of the case and shall take place within 30 days of the
written notice.
(B) The Secretary of the Department of Corrections and
Rehabilitation, or in the case of prisoners confined in local
facilities as specified in Section 4019, the sheriff or director of
the county correctional department, may delay written notice beyond
15 days when all of the following factors are true:
(i) An act of misconduct is involved which could be prosecuted as
murder, attempted murder, or assault on a prison employee, whether or
not prosecution is undertaken.
(ii) Further investigation is being undertaken for the purpose of
identifying other prisoners involved in the misconduct.
(iii) Within 15 days after the discovery of information leading to
charges that may result in a possible denial of credit, the
investigating officer makes a written request to delay notifying that
prisoner and states the reasons for the delay.
(iv) The warden of the institution, or for prisoners confined in
local facilities as specified in Section 4019, the sheriff or
director of the county correctional department, approves of the delay
in writing.
(C) The period of delay under this paragraph shall not exceed 30
days. The prisoner's hearing shall take place within 30 days of the
written notice.
(2) The prisoner may elect to be assigned an employee to assist in
the investigation, preparation, or presentation of a defense at the
disciplinary hearing if it is determined by the department, or for
prisoners confined in local facilities as specified in Section 4019,
the sheriff or director of the county correctional department, that:
(A) the prisoner is illiterate; or (B) the complexity of the issues
or the prisoner's confinement status makes it unlikely that the
prisoner can collect and present the evidence necessary for an
adequate comprehension of the case.
(3) The prisoner may request witnesses to attend the hearing and
they shall be called unless the person conducting the hearing has
specific reasons to deny this request. The specific reasons shall be
set forth in writing and a copy of the document shall be presented to
the prisoner.
(4) The prisoner has the right, under the direction of the person
conducting the hearing, to question all witnesses.
(5) At the conclusion of the hearing the charge shall be dismissed
if the facts do not support the charge, or the prisoner may be found
guilty on the basis of a preponderance of the evidence.
(d) If found guilty the prisoner shall be advised in writing of
the guilty finding and the specific evidence relied upon to reach
this conclusion and the amount of time-credit loss. The prisoner may
appeal the decision through the Department of Corrections and
Rehabilitation's review procedure, or in the case of prisoners
confined in local facilities as specified in Section 4019, the review
procedure established by the sheriff or the director of the county
correctional department, and may, upon final notification of appeal
denial, within 15 days of the notification demand review of the
denial of credit to the Board of Parole Hearings, or in the case of
prisoners confined in local facilities as specified in Section 4019,
through a procedure established by the sheriff or the director of the
county correctional department and the board or the local entity
acting for the county may affirm, reverse, or modify the decision or
grant a hearing before the board or the local entity at which hearing
the prisoner shall have the rights specified in Section 3041.5.
(e) Each prisoner subject to Section 2931 shall be notified of the
total amount of good behavior and participation credit which may be
credited pursuant to Section 2931, and his or her anticipated
time-credit release date. The prisoner shall be notified of any
change in the anticipated release date due to denial or loss of
credits, award of worktime credit, under Section 2933, or the
restoration of any credits previously forfeited.
(f) (1) If the conduct the prisoner is charged with also
constitutes a crime, the Department of Corrections and
Rehabilitation, or in the case of prisoners confined in local
facilities as specified in Section 4019, the sheriff or director of
the county correctional department, may refer the case to criminal
authorities for possible prosecution. The department, or in the case
of prisoners confined in local facilities as specified in Section
4019, the sheriff or director of the county correctional department,
shall notify the prisoner, who may request postponement of the
disciplinary proceedings pending the referral.
(2) The prisoner may revoke his or her request for postponement of
the disciplinary proceedings up until the filing of the accusatory
pleading. In the event of the revocation of the request for
postponement of the proceeding, the department or the local entity
shall hold the hearing within 30 days of the revocation.
(3) Notwithstanding the notification requirements in this
paragraph and subparagraphs (A) and (B) of paragraph (1) of
subdivision (c), in the event the case is referred to criminal
authorities for prosecution and the authority requests that the
prisoner not be notified so as to protect the confidentiality of its
investigation, no notice to the prisoner shall be required until an
accusatory pleading is filed with the court, or the authority
notifies the warden, in writing, that it will not prosecute or it
authorizes the notification of the prisoner. The notice exceptions
provided for in this paragraph shall only apply if the criminal
authority requests of the warden, in writing, and within the 15 days
provided in subparagraph (A) of paragraph (1) of subdivision (c),
that the prisoner not be notified. Any period of delay of notice to
the prisoner shall not exceed 30 days beyond the 15 days referred to
in subdivision (c). In the event that no prosecution is undertaken,
the procedures in subdivision (c) shall apply, and the time periods
set forth in that subdivision shall commence to run from the date the
warden is notified in writing of the decision not to prosecute. In
the event the authority either cancels its requests that the prisoner
not be notified before it makes a decision on prosecution or files
an accusatory pleading, the provisions of this paragraph shall apply
as if no request had been received, beginning from the date of the
cancellation or filing.
(4) In the case where the prisoner is prosecuted by the district
attorney, the Department of Corrections and Rehabilitation, or in the
case of prisoners confined in local facilities as specified in
Section 4019, the sheriff or the director of the county department of
corrections, shall not deny time credit where the prisoner is found
not guilty and may deny credit if the prisoner is found guilty, in
which case the procedures in subdivision (c) shall not apply.
(g) If time credit denial proceedings or criminal prosecution
prohibit the release of a prisoner who would have otherwise been
released, and the prisoner is found not guilty of the alleged
misconduct, the amount of time spent incarcerated, in excess of what
the period of incarceration would have been absent the alleged
misbehavior, shall be deducted from the prisoner's parole period.
(h) Nothing in the amendments to this section made at the 1981-82
Regular Session of the Legislature shall affect the granting or
revocation of credits attributable to that portion of the prisoner's
sentence served prior to January 1, 1983.
SEC. 15.5. Section 2932 is added to the
Penal Code , to read:
2932. (a) (1) For any time credit accumulated pursuant to Section
2931 or to Section 2933, not more than 360 days of credit may be
denied or lost for a single act of murder, attempted murder,
solicitation of murder, manslaughter, rape, sodomy, or oral
copulation accomplished against the victim's will, attempted rape,
attempted sodomy, or attempted oral copulation accomplished against
the victim's will, assault or battery causing serious bodily injury,
assault with a deadly weapon or caustic substance, taking of a
hostage, escape with force or violence, or possession or manufacture
of a deadly weapon or explosive device, whether or not prosecution is
undertaken for purposes of this paragraph. Solicitation of murder
shall be proved by the testimony of two witnesses, or of one witness
and corroborating circumstances.
(2) Not more than 180 days of credit may be denied or lost for a
single act of misconduct, except as specified in paragraph (1), which
could be prosecuted as a felony whether or not prosecution is
undertaken.
(3) Not more than 90 days of credit may be denied or lost for a
single act of misconduct which could be prosecuted as a misdemeanor,
whether or not prosecution is undertaken.
(4) Not more than 30 days of credit may be denied or lost for a
single act of misconduct defined by regulation as a serious
disciplinary offense by the Department of Corrections and
Rehabilitation. Any person confined due to a change in custodial
classification following the commission of any serious disciplinary
infraction shall, in addition to any loss of time credits, be
ineligible to receive participation or worktime credit for a period
not to exceed the number of days of credit which have been lost for
the act of misconduct or 180 days, whichever is less. Any person
confined in a secure housing unit for having committed any misconduct
specified in paragraph (1) in which great bodily injury is inflicted
upon a nonprisoner shall, in addition to any loss of time credits,
be ineligible to receive participation or worktime credit for a
period not to exceed the number of days of credit which have been
lost for that act of misconduct. In unusual cases, an inmate may be
denied the opportunity to participate in a credit qualifying
assignment for up to six months beyond the period specified in this
subdivision if the Secretary of the Department of Corrections and
Rehabilitation finds, after a hearing, that no credit qualifying
program may be assigned to the inmate without creating a substantial
risk of physical harm to staff or other inmates. At the end of the
six-month period and of successive six-month periods, the denial of
the opportunity to participate in a credit qualifying assignment may
be renewed upon a hearing and finding by the director.
(5) The prisoner may appeal the decision through the department's
review procedure, which shall include a review by an individual
independent of the institution who has supervisorial authority over
the institution.
(b) For any credit accumulated pursuant to Section 2931, not more
than 30 days of participation credit may be denied or lost for a
single failure or refusal to participate. Any act of misconduct
described by the Department of Corrections and Rehabilitation as a
serious disciplinary infraction if committed while participating in
work, educational, vocational, therapeutic, or other prison activity
shall be deemed a failure to participate.
(c) Any procedure not provided for by this section, but necessary
to carry out the purposes of this section, shall be those procedures
provided for by the Department of Corrections and Rehabilitation for
serious disciplinary infractions if those procedures are not in
conflict with this section.
(1) (A) The Department of Corrections and Rehabilitation shall,
using reasonable diligence to investigate, provide written notice to
the prisoner. The written notice shall be given within 15 days after
the discovery of information leading to charges that may result in a
possible denial of credit, except that if the prisoner has escaped,
the notice shall be given within 15 days of the prisoner's return to
the custody of the secretary. The written notice shall include the
specific charge, the date, the time, the place that the alleged
misbehavior took place, the evidence relied upon, a written
explanation of the procedures that will be employed at the
proceedings and the prisoner's rights at the hearing. The hearing
shall be conducted by an individual who shall be independent of the
case and shall take place within 30 days of the written notice.
(B) The Department of Corrections and Rehabilitation may delay
written notice beyond 15 days when all of the following factors are
true:
(i) An act of misconduct is involved which could be prosecuted as
murder, attempted murder, or assault on a prison employee, whether or
not prosecution is undertaken.
(ii) Further investigation is being undertaken for the purpose of
identifying other prisoners involved in the misconduct.
(iii) Within 15 days after the discovery of information leading to
charges that may result in a possible denial of credit, the
investigating officer makes a written request to delay notifying that
prisoner and states the reasons for the delay.
(iv) The warden of the institution approves of the delay in
writing.
The period of delay under this paragraph shall not exceed 30 days.
The prisoner's hearing shall take place within 30 days of the
written notice.
(2) The prisoner may elect to be assigned an employee to assist in
the investigation, preparation, or presentation of a defense at the
disciplinary hearing if it is determined by the department that: (i)
the prisoner is illiterate; or (ii) the complexity of the issues or
the prisoner's confinement status makes it unlikely that the prisoner
can collect and present the evidence necessary for an adequate
comprehension of the case.
(3) The prisoner may request witnesses to attend the hearing and
they shall be called unless the person conducting the hearing has
specific reasons to deny this request. The specific reasons shall be
set forth in writing and a copy of the document shall be presented to
the prisoner.
(4) The prisoner has the right, under the direction of the person
conducting the hearing, to question all witnesses.
(5) At the conclusion of the hearing the charge shall be dismissed
if the facts do not support the charge, or the prisoner may be found
guilty on the basis of a preponderance of the evidence.
(d) If found guilty the prisoner shall be advised in writing of
the guilty finding and the specific evidence relied upon to reach
this conclusion and the amount of time-credit loss. The prisoner may
appeal the decision through the department's review procedure, and
may, upon final notification of appeal denial, within 15 days of the
notification demand review of the department's denial of credit to
the Board of Prison Terms, and the board may affirm, reverse, or
modify the department's decision or grant a hearing before the board
at which hearing the prisoner shall have the rights specified in
Section 3041.5.
(e) Each prisoner subject to Section 2931 shall be notified of the
total amount of good behavior and participation credit which may be
credited pursuant to Section 2931, and his or her anticipated
time-credit release date. The prisoner shall be notified of any
change in the anticipated release date due to denial or loss of
credits, award of worktime credit, under Section 2933, or the
restoration of any credits previously forfeited.
(f) (1) If the conduct the prisoner is charged with also
constitutes a crime, the department may refer the case to criminal
authorities for possible prosecution. The department shall notify the
prisoner, who may request postponement of the disciplinary
proceedings pending the referral.
(2) The prisoner may revoke his or her request for postponement of
the disciplinary proceedings up until the filing of the accusatory
pleading. In the event of the revocation of the request for
postponement of the proceeding, the department shall hold the hearing
within 30 days of the revocation.
(3) Notwithstanding the notification requirements in this
paragraph and subparagraphs (A) and (B) of paragraph (1) of
subdivision (c), in the event the case is referred to criminal
authorities for prosecution and the authority requests that the
prisoner not be notified so as to protect the confidentiality of its
investigation, no notice to the prisoner shall be required until an
accusatory pleading is filed with the court, or the authority
notifies the warden, in writing, that it will not prosecute or it
authorizes the notification of the prisoner. The notice exceptions
provided for in this paragraph shall only apply if the criminal
authority requests of the warden, in writing, and within the 15 days
provided in subparagraph (A) of paragraph (1) of subdivision (c),
that the prisoner not be notified. Any period of delay of notice to
the prisoner shall not exceed 30 days beyond the 15 days referred to
in subdivision (c). In the event that no prosecution is undertaken,
the procedures in subdivision (c) shall apply, and the time periods
set forth in that subdivision shall commence to run from the date the
warden is notified in writing of the decision not to prosecute. In
the event the authority either cancels its requests that the prisoner
not be notified before it makes a decision on prosecution or files
an accusatory pleading, the provisions of this paragraph shall apply
as if no request had been received, beginning from the date of the
cancellation or filing.
(4) In the case where the prisoner is prosecuted by the district
attorney, the Department of Corrections and Rehabilitation shall not
deny time credit where the prisoner is found not guilty and may deny
credit if the prisoner is found guilty, in which case the procedures
in subdivision (c) shall not apply.
(g) If time credit denial proceedings or criminal prosecution
prohibit the release of a prisoner who would have otherwise been
released, and the prisoner is found not guilty of the alleged
misconduct, the amount of time spent incarcerated, in excess of what
the period of incarceration would have been absent the alleged
misbehavior, shall be deducted from the prisoner's parole period.
(h) Nothing in the amendments to this section made at the 1981-82
Regular Session of the Legislature shall affect the granting or
revocation of credits attributable to that portion of the prisoner's
sentence served prior to January 1, 1983.
SEC. 16. Section 2933 of the Penal Code
is amended to read:
2933. (a) It is the intent of the Legislature that persons
convicted of a crime and sentenced to the state prison under Section
1170 serve the entire sentence imposed by the court, except for a
reduction in the time served in the custody of the Secretary of the
Department of Corrections and Rehabilitation pursuant to this section
and Section 2933.05.
(b) For every six months of continuous incarceration, a prisoner
shall be awarded credit reductions from his or her term of
confinement of six months. A lesser amount of credit based on this
ratio shall be awarded for any lesser period of continuous
incarceration. Credit should be awarded pursuant to regulations
adopted by the secretary. Prisoners who are denied the opportunity to
earn credits pursuant to subdivision (a) of Section 2932 shall be
awarded no credit reduction pursuant to this section. Under no
circumstances shall any prisoner receive more than six months' credit
reduction for any six-month period under this section.
(c) Credit is a privilege, not a right. Credit must be earned and
may be forfeited pursuant to the provisions of Section 2932. Except
as provided in subdivision (a) of Section 2932, every eligible
prisoner shall have a reasonable opportunity to participate.
(d) Under regulations adopted by the Department of Corrections and
Rehabilitation, which shall require a period of not more than one
year free of disciplinary infractions, credit which has been
previously forfeited may be restored by the secretary. The
regulations shall provide for separate classifications of serious
disciplinary infractions as they relate to restoration of credits,
the time period required before forfeited credits or a portion
thereof may be restored, and the percentage of forfeited credits that
may be restored for these time periods. For credits forfeited as
specified in paragraph (1) of subdivision (a) of Section 2932, the
Department of Corrections and Rehabilitation may provide that up to
180 days of lost credit shall not be restored and up to 90 days of
credit shall not be restored for a forfeiture resulting from
conspiracy or attempts to commit one of those acts. No credits may be
restored if they were forfeited for a serious disciplinary
infraction in which the victim died or was permanently disabled. Upon
application of the prisoner and following completion of the required
time period free of disciplinary offenses, forfeited credits
eligible for restoration under the regulations for disciplinary
offenses other than serious disciplinary infractions punishable by a
credit loss of more than 90 days shall be restored unless, at a
hearing, it is found that the prisoner refused to accept or failed to
perform in a credit qualifying assignment, or extraordinary
circumstances are present that require that credits not be restored.
"Extraordinary circumstances" shall be defined in the regulations
adopted by the secretary. However, in any case in which credit was
forfeited for a serious disciplinary infraction punishable by a
credit loss of more than 90 days, restoration of credit shall be at
the discretion of the secretary.
The prisoner may appeal the finding through the Department of
Corrections and Rehabilitation's review procedure, which shall
include a review by an individual independent of the institution who
has supervisorial authority over the institution.
(e) (1) Notwithstanding Section 4019 and subject to the
limitations of this subdivision, a prisoner sentenced to the state
prison under Section 1170 for whom the sentence is executed shall
have one day deducted from his or her period of confinement for every
day he or she served in a county jail, city jail, industrial farm,
or road camp from the date of arrest until state prison credits
pursuant to this article are applicable to the prisoner.
(2) A prisoner may not receive the credit specified in paragraph
(1) if it appears by the record that the prisoner has refused to
satisfactorily perform labor as assigned by, or has not
satisfactorily complied with the reasonable rules and regulations
established by, the sheriff, chief of police, or superintendent of an
industrial farm or road camp.
(3) Section 4019, and not this subdivision, shall apply if the
prisoner is required to register as a sex offender, pursuant to
Chapter 5.5 (commencing with Section 290), was committed for a
serious felony, as defined in Section 1192.7, or has a prior
conviction for a serious felony, as defined in Section 1192.7, or a
violent felony, as defined in Section 667.5.
(f)
(e) The provisions of subdivision (d) shall also apply
in cases of credit forfeited under Section 2931 for offenses and
serious disciplinary infractions occurring on or after January 1,
1983.
SEC. 17. Section 3000.08 of the Penal
Code , as amended by Section 37 of Chapter 39
of the Statutes of 2011, is amended to read:
3000.08. (a) Persons released from state prison on or after
October 1, 2011, after serving a prison term or, whose sentence has
been deemed served pursuant to Section 2900.5, for any of the
following crimes shall be subject to the jurisdiction of and parole
supervision by the Department of Corrections and Rehabilitation:
(1) A serious felony as described in subdivision (c) of Section
1192.7.
(2) A violent felony as described in subdivision (c) of Section
667.5.
(3) A crime for which the person was sentenced pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12.
(4) Any crime where the person eligible for release from prison is
classified as a High Risk Sex Offender.
(5) Any crime where the person is required, as a condition of
parole, to undergo treatment by the Department of Mental Health
pursuant to Section 2962.
(b) Notwithstanding any other provision of law, all other
offenders released from prison shall be placed on postrelease
supervision pursuant to Title 2.05 (commencing with Section 3450).
(c) Notwithstanding subdivision (a), any of the following persons
released from state prison shall be subject to the jurisdiction of,
and parole supervision by, the Department of Corrections and
Rehabilitation for a period of parole up to three years or the parole
term the person was subject to at the time of the commission of the
offense, whichever is greater:
(1) The person is required to register as a sex offender pursuant
to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1,
and was subject to a period of parole exceeding three years at the
time he or she committed a felony for which they were convicted and
subsequently sentenced to state prison.
(2) The person was subject to parole for life pursuant to Section
3000.1 at the time of the commission of the offense that resulted in
a conviction and state prison sentence.
(d) Except as described in subdivision (c), any person who is
convicted of a felony that requires community supervision and who
still has a period of state parole to serve shall discharge from
state parole at the time of release to community supervision.
(c)
(e) This section shall operative only until July 1,
2013, and as of January 1, 2014 is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 18. Section 3000.08 of the Penal
Code , as amended by Section 5 of Chapter 136
of the Statutes of 2011, is amended to read:
3000.08. (a) Persons released from state prison prior to or on or
after July 1, 2013, after serving a prison term or, whose sentence
has been deemed served pursuant to Section 2900.5, for any of the
following crimes shall be subject to parole supervision by the
Department of Corrections and Rehabilitation and the jurisdiction of
the court in the county where the parolee is released or resides for
the purpose of hearing petitions to revoke parole and impose a term
of custody:
(1) A serious felony as described in subdivision (c) of Section
1192.7.
(2) A violent felony as described in subdivision (c) of Section
667.5.
(3) A crime for which the person was sentenced pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12.
(4) Any crime where the person eligible for release from prison is
classified as a High Risk Sex Offender.
(5) Any crime where the person is required, as a condition of
parole, to undergo treatment by the Department of Mental Health
pursuant to Section 2962.
(b) Notwithstanding any other provision of law, all other
offenders released from prison shall be placed on postrelease
supervision pursuant to Title 2.05 (commencing with Section 3450).
(c) At any time during the period of parole of a person subject to
this section, if any parole agent or peace officer has probable
cause to believe that the parolee is violating any term or condition
of his or her parole, the agent or officer may, without warrant or
other process and at any time until the final disposition of the
case, arrest the person and bring him or her before the parole
authority, or the parole authority may, in its discretion, issue a
warrant for that person's arrest.
(d) Upon review of the alleged violation and a finding of good
cause that the parolee has committed a violation of law or violated
his or her conditions of parole, the parole authority may impose
additional and appropriate conditions of supervision, including
rehabilitation and treatment services and appropriate incentives for
compliance, and impose immediate, structured, and intermediate
sanctions for parole violations, including flash incarceration in a
county jail. Periods of "flash incarceration," as defined in
subdivision (e) are encouraged as one method of punishment for
violations of a parolee's conditions of parole. Nothing in this
section is intended to preclude referrals to a reentry court pursuant
to Section 3015.
(e) "Flash incarceration" is a period of detention in county jail
due to a violation of a parolee's conditions of parole. The length of
the detention period can range between one and 10 consecutive days.
Shorter, but if necessary more frequent, periods of detention for
violations of a parolee's conditions of parole shall appropriately
punish a parolee while preventing the disruption in a work or home
establishment that typically arises from longer periods of detention.
(f) If the supervising parole agency has determined, following
application of its assessment processes, that intermediate sanctions
up to and including flash incarceration are not appropriate, the
supervising agency shall petition the revocation hearing officer
appointed pursuant to Section 71622.5 of the Government Code in the
county in which the parolee is being supervised to revoke parole. At
any point during the process initiated pursuant to this section, a
parolee may waive, in writing, his or her right to counsel, admit the
parole violation, waive a court hearing, and accept the proposed
parole modification. The petition shall include a written report that
contains additional information regarding the petition, including
the relevant terms and conditions of parole, the circumstances of the
alleged underlying violation, the history and background of the
parolee, and any recommendations. The Judicial Council shall adopt
forms and rules of court to establish uniform statewide procedures to
implement this subdivision, including the minimum contents of
supervision agency reports. Upon a finding that the person has
violated the conditions of parole, the revocation hearing officer
shall have authority to do any of the following:
(1) Return the person to parole supervision with modifications of
conditions, if appropriate, including a period of incarceration in
county jail.
(2) Revoke parole and order the person to confinement in the
county jail.
(3) Refer the person to a reentry court pursuant to Section 3015
or other evidence-based program in the court's discretion.
(g) Confinement pursuant to paragraphs (1) and (2) of subdivision
(f) shall not exceed a period of 180 days in the county jail.
(h) Notwithstanding any other provision of law, in any case where
Section 3000.1 applies to a person who is on parole and there is good
cause to believe that the person has committed a violation of law or
violated his or her conditions of parole, and there is imposed a
period of imprisonment of longer than 30 days, that person shall be
remanded to the custody of the Department of Corrections and
Rehabilitation and the jurisdiction of the Board of Parole Hearings
for the purpose of future parole consideration.
(i) Notwithstanding subdivision (a), any of the following persons
released from state prison shall be subject to the jurisdiction of,
and parole supervision by, the Department of Corrections and
Rehabilitation for a period of parole up to three years or the parole
term the person was subject to at the time of the commission of the
offense, whichever is greater:
(1) The person is required to register as a sex offender pursuant
to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1,
and was subject to a period of parole exceeding three years at the
time he or she committed a felony for which they were convicted and
subsequently sentenced to state prison.
(2) The person was subject to parole for life pursuant to Section
3000.1 at the time of the commission of the offense that resulted in
a conviction and state prison sentence.
(i)
(j) Parolees subject to this section who are being held
for a parole violation in a county jail on July 1, 2013, shall be
subject to the jurisdiction of the Board of Parole Hearings.
(j)
(k) Except as described in subdivision (c), any person who is
convicted of a felony that requires community supervision and who
still has a period of state parole to serve shall discharge from
state parole at the time of release to community supervision.
(l) This section shall become operative on July 1,
2013.
SEC. 19. Section 3000.09 of the Penal
Code is amended to read:
3000.09. (a) Notwithstanding any other law, any parolee who was
paroled from state prison prior to October 1, 2011, shall be subject
to this section.
(b) Parolees subject to this section shall remain under
supervision by the Department of Corrections and Rehabilitation until
one of the following occurs:
(1) Jurisdiction over the person is terminated by operation of
law.
(2) The supervising agent recommends to the parole authority that
the offender be discharged and the parole authority approves the
discharge.
(3) The offender , except an offender who if released
from prison after October 1, 2011, would be subject to parole based
on the criteria identified in subdivision (a) of Section 3000.08,
is subject to a period of parole of up to three years
pursuant to paragraph (1) of subdivision (b) of Section 3000 and was
not imprisoned for committing a violent felony, as defined
in subdivision (c) of Section 667.5, a serious felony, as defined by
subdivision (c) of Section 1192.7, or is required to register as a
sex offender pursuant to Section 290, and completes six
consecutive months of parole without violating their conditions, at
which time the supervising agent shall review and make a
recommendation on whether to discharge the offender to the parole
authority and the parole authority approves the discharge.
(c) Parolees subject to this section who are being held for a
parole violation in county jail state prison
on October 1, 2011, shall be subject to the
jurisdiction of the Board of Parole Hearings and may, upon
revocation, be remanded to the state prison. Upon upon
completion of a revocation term on or after November 1,
2011 , the parolee shall either remain under
parole supervision of the department pursuant to Section 3000.08 or
shall be placed on postrelease community supervision pursuant to
Title 2.05 (commencing with Section 3450). Notwithstanding
Section 3000.08, any parolee who is in a county jail serving a term
of parole revocation or being held pursuant to Section 3056 on
October 1, 2011, and is released directly from county jail without
returning to a state facility on or after October 1, 2011, shall
remain under the parole supervision of the departm ent.
Any parolee that is pending final adjudication of a parole revocation
charge prior to October 1, whether located in county jail
or state prison, may be returned to state prison and shall be
confined pursuant to subdivisions (a) to (d), inclusive, of Section
3057. Any subsequent parole revocations of a parolee on postrelease
community supervision shall be served in county jail pursuant to
Section 3056.
(d) Any parolee who was paroled prior to October 1, 2011, who
commits a violation of parole shall , until July 1, 2013,
be subject to parole revocation procedures in accordance with the
rules and regulations of the department consistent with Division
2 of Title 15 of the California Code of Regulations. On and after
July 1, 2013, any parolee who was paroled prior to October 1, 2011,
shall be subject to the procedures established under Section
3000.08.
SEC. 20. Section 3001 of the Penal Code
, as amended by Section 41 of Chapter 39 of
the Statutes of 2011, is amended to read:
3001. (a) Notwithstanding any other provision of law, when any
person referred to in paragraph (1) of subdivision (b) of Section
3000 who was not imprisoned for committing a violent felony, as
defined in subdivision (c) of Section 667.5, not imprisoned for
a serious felony, as defined by subdivision (c) of Section 1192.7, or
is not required to register as a sex offender pursuant to Section
290, has been released on parole from the state prison, and has
been on parole continuously for six months since release from
confinement, within 30 days, that person shall be discharged from
parole, unless the Department of Corrections and Rehabilitation
recommends to the Board of Parole Hearings that the person be
retained on parole and the board, for good cause, determines that the
person will be retained. Notwithstanding any other provision of law,
when any person referred to in paragraph (1) of subdivision (b) of
Section 3000 who was imprisoned for committing a violent felony, as
defined in subdivision (c) of Section 667.5, has been released on
parole from the state prison for a period not exceeding three years
and has been on parole continuously for two years since release from
confinement, or has been released on parole from the state prison for
a period not exceeding five years and has been on parole
continuously for three years since release from confinement, the
department shall discharge, within 30 days, that person from parole,
unless the department recommends to the board that the person be
retained on parole and the board, for good cause, determines that the
person will be retained. The board shall make a written record of
its determination and the department shall transmit a copy thereof to
the parolee.
(b) Notwithstanding any other provision of law, when any person
referred to in paragraph (2) of subdivision (b) of Section 3000 has
been released on parole from the state prison, and has been on parole
continuously for three years since release from confinement, the
board shall discharge, within 30 days, the person from parole, unless
the board, for good cause, determines that the person will be
retained on parole. The board shall make a written record of its
determination and the department shall transmit a copy of that
determination to the parolee.
(c) Notwithstanding any other provision of law, when any person
referred to in paragraph (3) of subdivision (b) of Section 3000 has
been released on parole from the state prison, and has been on parole
continuously for six years and six months since release from
confinement, the board shall discharge, within 30 days, the person
from parole, unless the board, for good cause, determines that the
person will be retained on parole. The board shall make a written
record of its determination and the department shall transmit a copy
thereof to the parolee.
(d) In the event of a retention on parole, the parolee shall be
entitled to a review by the parole authority each year thereafter
until the maximum statutory period of parole has expired.
(e) The amendments to this section made during the 1987-88 Regular
Session of the Legislature shall only be applied prospectively and
shall not extend the parole period for any person whose eligibility
for discharge from parole was fixed as of the effective date of those
amendments.
(f) The amendments made to subdivision (a) during the 2011-12
Regular Session and the First Extraordinary Session of the
Legislature shall apply prospectively from October 1, 2011, and no
person on parole prior to October 1, 2011, shall be discharged from
parole pursuant to subdivision (a) unless one of the following
circumstances exist:
(1) The person has been on parole continuously for six consecutive
months after October 1, 2011, and the person is not retained by the
Board of Parole Hearings for good cause.
(2) The person has, on or after October 1, 2011, been on parole
for one year and the Board of Parole Hearings does not retain the
person for good cause.
SEC. 21. Section 3003 of the Penal Code
, as amended by Section 473 of Chapter 39 of the Statutes
of 2011, is amended to read:
3003. (a) Except as otherwise provided in this section, an inmate
who is released on parole or postrelease supervision as provided by
Title 2.05 (commencing with Section 3450) shall be returned to the
county that was the last legal residence of the inmate prior to his
or her incarceration. For purposes of this subdivision, "last legal
residence" shall not be construed to mean the county wherein the
inmate committed an offense while confined in a state prison or local
jail facility or while confined for treatment in a state hospital.
(b) Notwithstanding subdivision (a), an inmate may be returned to
another county if that would be in the best interests of the public.
If the Board of Parole Hearings setting the conditions of parole for
inmates sentenced pursuant to subdivision (b) of Section 1168, as
determined by the parole consideration panel, or the Department of
Corrections and Rehabilitation setting the conditions of parole for
inmates sentenced pursuant to Section 1170, decides on a return to
another county, it shall place its reasons in writing in the parolee'
s permanent record and include these reasons in the notice to the
sheriff or chief of police pursuant to Section 3058.6. In making its
decision, the paroling authority shall consider, among others, the
following factors, giving the greatest weight to the protection of
the victim and the safety of the community:
(1) The need to protect the life or safety of a victim, the
parolee, a witness, or any other person.
(2) Public concern that would reduce the chance that the inmate's
parole would be successfully completed.
(3) The verified existence of a work offer, or an educational or
vocational training program.
(4) The existence of family in another county with whom the inmate
has maintained strong ties and whose support would increase the
chance that the inmate's parole would be successfully completed.
(5) The lack of necessary outpatient treatment programs for
parolees receiving treatment pursuant to Section 2960.
(c) The Department of Corrections and Rehabilitation, in
determining an out-of-county commitment, shall give priority to the
safety of the community and any witnesses and victims.
(d) In making its decision about an inmate who participated in a
joint venture program pursuant to Article 1.5 (commencing with
Section 2717.1) of Chapter 5, the paroling authority shall give
serious consideration to releasing him or her to the county where the
joint venture program employer is located if that employer states to
the paroling authority that he or she intends to employ the inmate
upon release.
(e) (1) The following information, if available, shall be released
by the Department of Corrections and Rehabilitation to local law
enforcement agencies regarding a paroled inmate or inmate placed on
postrelease supervision pursuant to Title 2.05 (commencing with
Section 3450) who is released in their jurisdictions:
(A) Last, first, and middle name.
(B) Birth date.
(C) Sex, race, height, weight, and hair and eye color.
(D) Date of parole and discharge.
(E) Registration status, if the inmate is required to register as
a result of a controlled substance, sex, or arson offense.
(F) California Criminal Information Number, FBI number, social
security number, and driver's license number.
(G) County of commitment.
(H) A description of scars, marks, and tattoos on the inmate.
(I) Offense or offenses for which the inmate was convicted that
resulted in parole in this instance.
(J) Address, including all of the following information:
(i) Street name and number. Post office box numbers are not
acceptable for purposes of this subparagraph.
(ii) City and ZIP Code.
(iii) Date that the address provided pursuant to this subparagraph
was proposed to be effective.
(K) Contact officer and unit, including all of the following
information:
(i) Name and telephone number of each contact officer.
(ii) Contact unit type of each contact officer such as units
responsible for parole, registration, or county probation.
(L) A digitized image of the photograph and
at least a single digit fingerprint of the
parolee.
(M) A geographic coordinate for the parolee's residence location
for use with a Geographical Information System (GIS) or comparable
computer program.
(2) The information required by this subdivision shall come from
the statewide parolee database. The information obtained from each
source shall be based on the same timeframe.
(3) All of the information required by this subdivision shall be
provided utilizing a computer-to-computer transfer in a format usable
by a desktop computer system. The transfer of this information shall
be continually available to local law enforcement agencies upon
request.
(4) The unauthorized release or receipt of the information
described in this subdivision is a violation of Section 11143.
(f) Notwithstanding any other provision of law, an inmate who is
released on parole shall not be returned to a location within 35
miles of the actual residence of a victim of, or a witness to, a
violent felony as defined in paragraphs (1) to (7), inclusive, and
paragraph (16) of subdivision (c) of Section 667.5 or a felony in
which the defendant inflicts great bodily injury on any person other
than an accomplice that has been charged and proved as provided for
in Section 12022.53, 12022.7, or 12022.9, if the victim or witness
has requested additional distance in the placement of the inmate on
parole, and if the Board of Parole Hearings or the Department of
Corrections and Rehabilitation finds that there is a need to protect
the life, safety, or well-being of a victim or witness.
(g) Notwithstanding any other law, an inmate who is released on
parole for a violation of Section 288 or 288.5 whom the Department of
Corrections and Rehabilitation determines poses a high risk to the
public shall not be placed or reside, for the duration of his or her
parole, within one-half mile of any public or private school
including any or all of kindergarten and grades 1 to 12, inclusive.
(h) Notwithstanding any other law, an inmate who is released on
parole for an offense involving stalking shall not be returned to a
location within 35 miles of the victim's actual residence or place of
employment if the victim or witness has requested additional
distance in the placement of the inmate on parole, and if the Board
of Parole Hearings or the Department of Corrections and
Rehabilitation finds that there is a need to protect the life,
safety, or well-being of the victim.
(i) The authority shall give consideration to the equitable
distribution of parolees and the proportion of out-of-county
commitments from a county compared to the number of commitments from
that county when making parole decisions.
(j) An inmate may be paroled to another state pursuant to any
other law. The Department of Corrections and Rehabilitation shall
coordinate with local entities regarding the placement of inmates
placed out of state on postrelease supervision pursuant to Title 2.05
(commencing with Section 3450).
(k) (1) Except as provided in paragraph (2), the Department of
Corrections and Rehabilitation shall be the agency primarily
responsible for, and shall have control over, the program, resources,
and staff implementing the Law Enforcement Automated Data System
(LEADS) in conformance with subdivision (e). County agencies
supervising inmates released to postrelease supervision pursuant to
Title 2.05 (commencing with Section 3450) shall provide any
information requested by the department to ensure the availability of
accurate information regarding inmates released from state prison.
This information may include the issuance of warrants, revocations,
or the termination of postrelease supervision. On or before August 1,
2011, county agencies designated to supervise inmates released to
postrelease supervision shall notify the department that the county
agencies have been designated as the local entity responsible for
providing that supervision.
(2) Notwithstanding paragraph (1), the Department of Justice shall
be the agency primarily responsible for the proper release of
information under LEADS that relates to fingerprint cards.
(l) In addition to the requirements under subdivision (k), the
Department of Corrections and Rehabilitation shall submit to the
Department of Justice data to be included in the supervised release
file of the California Law Enforcement Telecommunications System
(CLETS) so that law enforcement can be advised through CLETS of all
persons on postrelease community supervision and the county agency
designated to provide supervision. The data required by this
subdivision shall be provided via electronic transfer.
SEC. 22. Section 3056 of the Penal Code
, as amended by Section 44 of Chapter 39 of the
Statutes of 2011, is amended to read:
3056. (a) Prisoners on parole shall remain under the supervision
of the department but shall not be returned to prison except as
provided in subdivision (b) or as provided by subdivision (c) of
Section 3000.09 . Except as provided by subdivision (c) of
Section 3000.09, upon revocation of parole, a parolee may be housed
in a county jail for a maximum of 180 days. When housed in county
facilities, parolees shall be under the legal custody and
jurisdiction of local county facilities. When released from custody,
parolees shall be returned to the parole supervision of the
department for the duration of parole.
(b) Inmates paroled pursuant to Section 3000.1 may be returned to
prison following the revocation of parole by the Board of Parole
Hearings until July 1, 2013, and thereafter by a court pursuant to
Section 3000.08.
SEC. 23. Section 3057 of the Penal Code
, as amended by Section 45 of Chapter 39 of
the Statutes of 2011, is amended to read:
3057. (a) Confinement pursuant to a revocation of parole in the
absence of a new conviction and commitment to prison under other
provisions of law, shall not exceed 12 months, except as provided in
subdivision (c).
(b) Upon completion of confinement pursuant to parole revocation
without a new commitment to prison, the inmate shall be released on
parole for a period which shall not extend beyond that portion of the
maximum statutory period of parole specified by Section 3000 which
was unexpired at the time of each revocation.
(c) Notwithstanding the limitations in subdivision (a) and in
Section 3060.5 upon confinement pursuant to a parole revocation, the
parole authority may extend the confinement pursuant to parole
revocation for a maximum of an additional 12 months for subsequent
acts of misconduct committed by the parolee while confined pursuant
to that parole revocation. Upon a finding of good cause to believe
that a parolee has committed a subsequent act of misconduct and
utilizing procedures governing parole revocation proceedings, the
parole authority may extend the period of confinement pursuant to
parole revocation as follows: (1) not more than 180 days for an act
punishable as a felony, whether or not prosecution is undertaken, (2)
not more than 90 days for an act punishable as a misdemeanor,
whether or not prosecution is undertaken, and (3) not more than 30
days for an act defined as a serious disciplinary offense pursuant to
subdivision (a) of Section 2932.
(d) (1) Except for parolees specified in paragraph (2), any
revocation period imposed under subdivision (a) may be reduced in the
same manner and to the same extent as a term of imprisonment may be
reduced by worktime credits under Section 2933. Worktime credit must
be earned and may be forfeited pursuant to the provisions of Section
2932.
Worktime credit forfeited shall not be restored.
(2) The following parolees shall not be eligible for credit under
this subdivision:
(A) Parolees who are sentenced under Section 1168 with a maximum
term of life imprisonment.
(B) Parolees who violated a condition of parole relating to
association with specified persons, entering prohibited areas,
attendance at parole outpatient clinics, or psychiatric attention.
(C) Parolees who were revoked for conduct described in, or that
could be prosecuted under any of the following sections, whether or
not prosecution is undertaken: Section 189, Section 191.5,
subdivision (a) of Section 192, subdivision (a) of Section 192.5,
Section 203, 207, 211, 215, 217.1, or 220, subdivision (b) of Section
241, Section 244, paragraph (1) or (2) of subdivision (a) of Section
245, paragraph (2) or (6) of subdivision (a) of Section 261,
paragraph (1) or (4) of subdivision (a) of Section 262, Section
264.1, subdivision (c) or (d) of Section 286, Section 288,
subdivision (c) or (d) of Section 288a, subdivision (a) of Section
289, 347, or 404, subdivision (a) of Section 451, Section 12022,
12022.5, 12022.53, 12022.7, 12022.8, or 25400, Chapter 2 (commencing
with Section 29800) of Division 9 of Title 4 of Part 6, any provision
listed in Section 16590, or Section 664 for any attempt to engage in
conduct described in or that could be prosecuted under any of the
above-mentioned sections.
(D) Parolees who were revoked for any reason if they had been
granted parole after conviction of any of the offenses specified in
subparagraph (C).
(E) Parolees who the parole authority finds at a revocation
hearing to be unsuitable for reduction of the period of confinement
because of the circumstances and gravity of the parole violation, or
because of prior criminal history.
(e) Commencing October 1, 2011, this section shall only apply to
inmates sentenced to a term of life imprisonment or parolees
that on or before September 30, 2011, are pending a final
adjudication of a parole revocation charge and subject to subdivision
(c) of Section 3000.09 .
SEC. 24. Section 3060.7 of the Penal
Code is amended to read:
3060.7. (a) (1) Notwithstanding any other
law, the parole authority shall notify any person released on parole
or postrelease community supervision pursuant to Title 2.05
(commencing with Section 3450) of Part 3 who has been
classified by the Department of Corrections as included within the
highest control or risk classification that he or she shall be
required to report to his or her assigned parole officer or
designated local supervising agency within two days of release
from the state prison.
This
(2) This section shall not
prohibit the parole authority or local supervising agency
from requiring any person released on parole or post
release community supervision to report to his or her assigned
parole officer within a time period that is less than two days from
the time of release.
(b) The parole authority, within 24 hours of a parolee's failure
to report as required by this section, shall issue a written order
suspending the parole of that parolee, pending a hearing before the
parole authority, and shall issue a warrant for the parolee's arrest.
(c) Upon the issuance of an arrest warrant for a parolee who has
been classified within the highest control or risk classification,
the assigned parole officer shall continue to carry the parolee on
his or her regular caseload and shall continue to search for the
parolee's whereabouts.
(d) With regard to any inmate subject to this section, the
Department of Corrections and Rehabilitation shall release
an inmate sentenced prior to the effective date of this section one
or two days before his or her scheduled release date if the inmate's
release date falls on the day before a holiday or weekend.
(e) With regard to any inmate subject to this section, the
Department of Corrections and Rehabilitation shall release
an inmate one or two days after his or her scheduled release date if
the release date falls on the day before a holiday or weekend.
This subdivision shall not apply to an inmate sentenced
prior to the effective date of this section.
SEC. 25. Section 3067 of the Penal Code
is amended to read:
3067. (a) Any inmate who is eligible for release on parole
pursuant to this chapter or postrelease community supervision
pursuant to Title 2.05 (commencing with Section 3450) of Part 3
shall agree in writing to be subject to search or seizure by a
parole officer or other peace officer at any time of the day or
night, with or without a search warrant and with or without cause.
(b) Any inmate who does not comply with the provision of
subdivision (a) shall lose worktime credit earned pursuant to Article
2.5 (commencing with Section 2930) of Chapter 7 on a day-for-day
basis and shall not be released until he or she either complies with
the provision of subdivision (a) or has no remaining worktime credit,
whichever occurs earlier.
(c) This section shall only apply to an inmate who is eligible for
release on parole for an offense committed on or after January 1,
1997.
(d) It is not the intent of the Legislature to authorize law
enforcement officers to conduct searches for the sole purpose of
harassment.
(e) This section does not affect the power of the
Director Secretary of the Department of
Corrections and Rehabilitation to prescribe and
amend rules and regulations pursuant to Section 5058.
SEC. 26. Section 3073.1 of the Penal
Code is amended to read:
3073.1. Counties are hereby authorized to contract with the
Department of Corrections and Rehabilitation in order to obtain
day treatment and crisis care correctional
clinical services for inmates with mental health problems who
are released on postrelease community supervision with mental health
problems.
SEC. 27. Section 3450 of the Penal Code
is amended to read:
3450. (a) This act shall be known and may be cited as the
Postrelease Community Supervision Act of 2011.
(b) The Legislature finds and declares all of the following:
(1) The Legislature reaffirms its commitment to reducing
recidivism among criminal offenders.
(2) Despite the dramatic increase in corrections spending over the
past two decades, national reincarceration rates for people released
from prison remain unchanged or have worsened. National data show
that about 40 percent of released individuals are reincarcerated
within three years. In California, the recidivism rate for persons
who have served time in prison is even greater than the national
average.
(3) Criminal justice policies that rely on the reincarceration of
parolees for technical violations do not result in improved public
safety.
(4) California must reinvest its criminal justice resources to
support community corrections programs and evidence-based practices
that will achieve improved public safety returns on this state's
substantial investment in its criminal justice system.
(5) Realigning the postrelease supervision of certain felons
reentering the community after serving a prison term to local
community corrections programs, which are strengthened through
community-based punishment, evidence-based practices, and improved
supervision strategies, will improve public safety outcomes among
adult felon parolees and will facilitate their successful
reintegration back into society.
(6) Community corrections programs require a partnership between
local public safety entities and the county to provide and expand the
use of community-based punishment for offenders paroled from state
prison. Each county's local Community Corrections Partnership, as
established in paragraph (2) of subdivision (b) of Section 1230,
should play a critical role in developing programs and ensuring
appropriate outcomes for persons subject to postrelease community
supervision.
(7) Fiscal policy and correctional practices should align to
promote a justice reinvestment strategy that fits each county.
"Justice reinvestment" is a data-driven approach to reduce
corrections and related criminal justice spending and reinvest
savings in strategies designed to increase public safety. The purpose
of justice reinvestment is to manage and allocate criminal justice
populations more cost effectively, generating savings that can be
reinvested in evidence-based strategies that increase public safety
while holding offenders accountable.
(8) "Community-based punishment" means evidence-based correctional
sanctions and programming encompassing a range of custodial and
noncustodial responses to criminal or noncompliant offender activity.
Intermediate sanctions may be provided by local public safety
entities directly or through public or private correctional service
providers and include, but are not limited to, the following:
(A) Short-term "flash" incarceration in jail for a period of not
more than seven 10 days.
(B) Intensive community supervision.
(C) Home detention with electronic monitoring or GPS monitoring.
(D) Mandatory community service.
(E) Restorative justice programs, such as mandatory victim
restitution and victim-offender reconciliation.
(F) Work, training, or education in a furlough program pursuant to
Section 1208.
(G) Work, in lieu of confinement, in a work release program
pursuant to Section 4024.2.
(H) Day reporting.
(I) Mandatory residential or nonresidential substance abuse
treatment programs.
(J) Mandatory random drug testing.
(K) Mother-infant care programs.
(L) Community-based residential programs offering structure,
supervision, drug treatment, alcohol treatment, literacy programming,
employment counseling, psychological counseling, mental health
treatment, or any combination of these and other interventions.
(9) "Evidence-based practices" refers to supervision policies,
procedures, programs, and practices demonstrated by scientific
research to reduce recidivism among individuals under probation,
parole, or postrelease supervision.
SEC. 28. Section 3453 of the Penal Code
is amended to read:
3453. A postrelease community supervision agreement shall include
the following conditions:
(a) The person shall sign and agree to the conditions of release.
(b) The person shall obey all laws.
(c) The person shall report to the supervising county agency
within two working days of release from custody.
(d) The person shall follow the directives and instructions of the
supervising county agency.
(e) The person shall report to the supervising county agency as
directed by that agency.
(f) The person, and his or her residence and possessions, shall be
subject to search at any time of the day or night, with or without a
warrant, by an agent of the supervising county agency or by a peace
officer.
(g) The person shall waive extradition if found outside the state.
(h) The person shall inform the supervising county agency of the
person's place of residence, employment, education, or training.
(i) (1) The person shall inform the supervising county agency of
any pending or anticipated changes in residence, employment,
education, or training.
(2) If the person enters into new employment, he or she shall
inform the supervising county agency of the new employment within
three business days of that entry.
(j) The person shall immediately inform the supervising county
agency if he or she is arrested or receives a citation.
(k) The person shall obtain the permission of the supervising
county agency to travel more than 50 miles from the person's place of
residence.
(l) The person shall obtain a travel pass from the supervising
county agency before he or she may leave the county or state for more
than two days.
(m) The person shall not be in the presence of a firearm or
ammunition, or any item that appears to be a firearm or ammunition.
(n) The person shall not possess, use, or have access to any
weapon listed in Section 12020, 16140, subdivision (c) of Section
16170, Section 16220, 16260, 16320, 16330, or 16340, subdivision (b)
of Section 16460, Section 16470, subdivision (f) of Section 16520, or
Section 16570, 16740, 16760, 16830, 16920, 16930, 16940, 17090,
17125, 17160, 17170, 17180, 17190, 17200, 17270, 17280, 17330, 17350,
17360, 17700, 17705, 17710, 17715, 17720, 17725, 17730, 17735,
17740, 17745, 19100, 19200, 19205, 20200, 20310, 20410, 20510, 20611,
20710, 20910, 21110, 21310, 21810, 22010, 22015, 22210, 22215,
22410, 32430, 24310, 24410, 24510, 24610, 24680, 24710, 30210, 30215,
31500, 32310, 32400, 32405, 32410, 32415, 32420, 32425, 32435,
32440, 32445, 32450, 32900, 33215, 33220, 33225, or 33600.
(o) (1) Except as provided in paragraph (2) and subdivision (p),
the person shall not possess a knife with a blade longer than two
inches.
(2) The person may possess a kitchen knife with a blade longer
than two inches if the knife is used and kept only in the kitchen of
the person's residence.
(p) The person may use a knife with a blade longer than two
inches, if the use is required for that person's employment, the use
has been approved in a document issued by the supervising county
agency, and the person possesses the document of approval at all
times and makes it available for inspection.
(q) The person agrees to waive any right to a court hearing prior
to the imposition of a period of "flash incarceration" in a county
jail of not more than 10 consecutive days for any violation of his or
her postrelease supervision conditions.
(r) The person agrees to participate in rehabilitation programming
as recommended by the supervising county agency.
(s) The person agrees that he or she may be subject to arrest with
or without a warrant by a peace officer employed by the supervising
county agency or, at the direction of the supervising county agency,
by any peace officer when there is probable cause to believe the
person has violated the terms and conditions of his or her release.
SEC. 29. Section 3454 of the Penal Code
is amended to read:
3454. (a) Each supervising county agency, as established by the
county board of supervisors pursuant to subdivision (a) of Section
3451, shall establish a review process for assessing and refining a
person's program of postrelease supervision. Any additional
postrelease supervision conditions shall be reasonably related to the
underlying offense for which the offender spent time in prison, or
to the offender's risk of recidivism, and the offender's criminal
history, and be otherwise consistent with law.
(b) Each county agency responsible for postrelease supervision, as
established by the county board of supervisors pursuant to
subdivision (a) of Section 3451, may determine additional appropriate
conditions of supervision listed in Section 3453 consistent with
public safety, including the use of continuous electronic
monitoring as defined in Section 1210.7, order the provision of
appropriate rehabilitation and treatment services, determine
appropriate incentives, and determine and order appropriate responses
to alleged violations, which can include, but shall not be limited
to, immediate, structured, and immediate
intermediate sanctions up to and including referral to a
reentry court pursuant to Section 3015, or flash incarceration in a
county jail. Periods of flash incarceration are encouraged as one
method of punishment for violations of an offender's condition of
postrelease supervision.
(c) "Flash incarceration" is a period of detention in county jail
due to a violation of an offender's conditions of postrelease
supervision. The length of the detention period can range between one
and 10 consecutive days. Flash incarceration is a tool that may be
used by each county agency responsible for postrelease supervision.
Shorter, but if necessary more frequent, periods of detention for
violations of an offender's postrelease supervision conditions shall
appropriately punish an offender while preventing the disruption in a
work or home establishment that typically arises from longer term
revocations.
SEC. 30. Section 3455 of the Penal Code
is amended to read:
3455. (a) If the supervising county agency has determined,
following application of its assessment processes, that intermediate
sanctions as authorized in subdivision (b) of Section 3454 are not
appropriate, the supervising county agency shall petition the
revocation hearing officer appointed pursuant to Section 71622.5 of
the Government Code to revoke and terminate postrelease supervision.
At any point during the process initiated pursuant to this section, a
person may waive, in writing, his or her right to counsel, admit the
parole violation of his or her
postrelease supervision , waive a court hearing, and accept the
proposed parole modification of his or her
postrelease supervision . The petition shall include a written
report that contains additional information regarding the petition,
including the relevant terms and conditions of postrelease
supervision, the circumstances of the alleged underlying violation,
the history and background of the violator, and any recommendations.
The Judicial Council shall adopt forms and rules of court to
establish uniform statewide procedures to implement this subdivision,
including the minimum contents of supervision agency reports. Upon a
finding that the person has violated the conditions of postrelease
supervision, the revocation hearing officer shall have authority to
do all of the following:
(1) Return the person to parole
postrelease supervision with modifications of conditions, if
appropriate, including a period of incarceration in county jail.
(2) Revoke parole postrelease supervision
and order the person to confinement in the county jail.
(3) Refer the person to a reentry court pursuant to Section 3015
or other evidence-based program in the court's discretion.
(4) At any time during the period of postrelease supervision, if
any peace officer has probable cause to believe a person subject to
postrelease community supervision is violating any term or condition
of his or her release, the officer may, without a warrant or other
process, arrest the person and bring him or her before the
supervising county agency established by the county board of
supervisors pursuant to subdivision (a) of Section 3451.
Additionally, an officer employed by the supervising county agency
may seek a warrant and a court or its designated hearing officer
appointed pursuant to Section 71622.5 of the Government Code shall
have the authority to issue a warrant for that
person's arrest.
(5) The court or its designated hearing officer shall have the
authority to issue a warrant for any person who is the subject of a
petition filed under this section who has failed to appear for a
hearing on the petition or for any reason in the interests of
justice, or to remand to custody a person who does appear at a
hearing on the petition for any reason in the interests of justice.
(b) The revocation hearing shall be held within a reasonable time
after the filing of the revocation petition. Based upon a showing of
a preponderance of the evidence that a person under supervision poses
an unreasonable risk to public safety, or the person may not appear
if released from custody, or for any reason in the interests of
justice, the supervising county agency shall have the authority to
make a determination whether the person should remain in custody
pending a revocation hearing, and upon that determination, may order
the person confined pending a revocation hearing.
(b)
(c) Confinement pursuant to paragraphs (1) and (2) of
subdivision (a) shall not exceed a period of 180 days in the county
jail.
(c) In no case shall a person be under supervision or in custody
pursuant to this title on or after three years from the date of the
person's initial entry onto postrelease supervision.
(d) A person shall not remain under supervision or in custody
pursuant to this title on or after three years from the date of the
person's initial entry onto postrelease supervision, except when a
bench or arrest warrant has been issued by a court or its designated
hearing officer and the person has not appeared. During the time the
warrant is outstanding the supervision period shall be tolled and
when the person appears before the court or its designated hearing
officer the supervision period may be extended for a period
equivalent to the time tolled.
SEC. 31. Section 3456 of the Penal Code
is amended to read:
3456. (a) The county agency responsible for
postrelease supervision, as established by the county board of
supervisors pursuant to subdivision (a) of Section 3451, shall
maintain postrelease supervision over a person under postrelease
supervision pursuant to this title until one of the following events
occurs:
(a)
(1) The person has been subject to postrelease
supervision pursuant to this title for three years at which time the
offender shall be immediately discharged from postrelease
supervision.
(b)
(2) Any person on postrelease supervision for six
consecutive months with no violations of his or her conditions of
postrelease supervision that result in a custodial sanction
may be considered for immediate discharge by the supervising
county.
(c)
(3) The person who has been on postrelease supervision
continuously for one year with no violations of his or her conditions
of postrelease supervision that result in a custodial sanction
shall be discharged from supervision within 30 days.
(d)
(4) Jurisdiction over the person has been terminated by
operation of law.
(e)
(5) Jurisdiction is transferred to another supervising
county agency.
(f)
(6) Jurisdiction is terminated by the revocation
hearing officer upon a petition to revoke and terminate supervision
by the supervising county agency.
(b) Time during which a person on postrelease supervision is
suspended because the person has absconded shall not be credited
toward any period of postrelease supervision.
SEC. 32. Section 3460 is added to the
Penal Code , to read:
3460. (a) Whenever a supervising agency determines that a person
subject to postrelease supervision pursuant to this chapter no longer
permanently resides within its jurisdiction, and a change in
residence was either approved by the supervising agency or did not
violate the terms and conditions of postrelease supervision, the
supervising agency shall transmit, within two weeks, any information
the agency received from the Department of Corrections and
Rehabilitation prior to the release of the person in that
jurisdiction to the designated supervising agency in the county in
which the person permanently resides.
(b) Upon verification of permanent residency, the receiving
supervising agency shall accept jurisdiction and supervision of the
person on postrelease supervision.
(c) For purposes of this section, residence means the place where
the person customarily lives exclusive of employment, school, or
other special or temporary purpose. A person may have only one
residence.
(d) No supervising agency shall be required to transfer
jurisdiction to another county unless the person demonstrates an
ability to establish permanent residency within another county
without violating the terms and conditions of postrelease
supervision.
SEC. 33. Section 3465 is added to the
Penal Code , to read:
3465. Every person placed on postrelease community supervision,
and his or her residence and possessions, shall be subject to search
or seizure at any time of the day or night, with or without a
warrant, by an agent of the supervising county agency or by a peace
officer.
SEC. 34. Section 4000 of the Penal Code
is amended to read:
4000. The common jails in the several counties of this State are
kept by the sheriffs of the counties in which they are respectively
situated, and are used as follows:
1. For the detention of persons committed in order to secure their
attendance as witnesses in criminal cases;
2. For the detention of persons charged with crime and committed
for trial;
3. For the confinement of persons committed for contempt, or upon
civil process, or by other authority of law;
4. For the confinement of persons sentenced to imprisonment
therein upon a conviction for crime.
5. For the confinement of persons pursuant to subdivision (b) of
Section 3454 for a violation of the terms and conditions of their
postrelease community supervision.
SEC. 35. Section 4019 of the Penal Code
, as amended by Section 53 of Chapter 39 of the Statutes
of 2011, is amended to read:
4019. (a) The provisions of this section shall apply in all of
the following cases:
(1) When a prisoner is confined in or committed to a county jail,
industrial farm, or road camp, or any city jail, industrial farm, or
road camp, including all days of custody from the date of arrest to
the date on which the serving of the sentence commences, under a
judgment of imprisonment, or a fine and imprisonment until the fine
is paid in a criminal action or proceeding.
(2) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial
farm, or road camp as a condition of probation after suspension of
imposition of a sentence or suspension of execution of sentence, in a
criminal action or proceeding.
(3) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial
farm, or road camp for a definite period of time for contempt
pursuant to a proceeding, other than a criminal action or proceeding.
(4) When a prisoner is confined in a county jail, industrial farm,
or road camp, or a city jail, industrial farm, or road camp
following arrest and prior to the imposition of sentence for a felony
conviction.
(5) When a prisoner is confined in a county jail, industrial farm,
or road camp, or a city jail, industrial farm, or road camp as part
of custodial sanction imposed following a violation of postrelease
community supervision or parole.
(6) When a prisoner is confined in a county jail, industrial farm,
or road camp, or a city jail, industrial farm, or road camp as a
result of a sentence imposed pursuant to subdivision (h) of Section
1170.
(b) Subject to the provisions of subdivision (d), for each
four-day period in which a prisoner is confined in or committed to a
facility as specified in this section, one day shall be deducted from
his or her period of confinement unless it appears by the record
that the prisoner has refused to satisfactorily perform labor as
assigned by the sheriff, chief of police, or superintendent of an
industrial farm or road camp.
(c) For each four-day period in which a prisoner is confined in or
committed to a facility as specified in this section, one day shall
be deducted from his or her period of confinement unless it appears
by the record that the prisoner has not satisfactorily complied with
the reasonable rules and regulations established by the sheriff,
chief of police, or superintendent of an industrial farm or road
camp.
(d) Nothing in this section shall be construed to require the
sheriff, chief of police, or superintendent of an industrial farm or
road camp to assign labor to a prisoner if it appears from the record
that the prisoner has refused to satisfactorily perform labor as
assigned or that the prisoner has not satisfactorily complied with
the reasonable rules and regulations of the sheriff, chief of police,
or superintendent of any industrial farm or road camp.
(e) No deduction may be made under this section unless the person
is committed for a period of four days or longer.
(f) It is the intent of the Legislature that if all days are
earned under this section, a term of four days will be deemed to have
been served for every two days spent in actual custody.
(g) The changes in this section as enacted by the act that added
this subdivision shall apply to prisoners who are confined to a
county jail, city jail, industrial farm, or road camp for a crime
committed on or after the effective date of that act.
(h) The changes to this section enacted by the act that added this
subdivision shall apply prospectively and shall apply to prisoners
who are confined to a county jail, city jail, industrial farm, or
road camp for a crime committed on or after October 1, 2011. Any days
earned by a prisoner prior to October 1, 2011, shall be calculated
at the rate required by the prior law.
(i) This section shall not apply, and no credits may be earned,
for periods of flash incarceration imposed pursuant to Section
3000.08 or 3454.
SEC. 36. Section 4019.2 is added to the
Penal Code , to read:
4019.2. (a) Notwithstanding any other law, any inmate sentenced
to county jail assigned to a conservation camp by a sheriff and who
is eligible to earn one day of credit for every one day of
incarceration pursuant to Section 4019 shall instead earn two days of
credit for every one day of service.
(b) Notwithstanding any other law, any inmate who has completed
training for assignment to a conservation camp or to a state or
county facility as an inmate firefighter or who is assigned to a
county or state correctional institution as an inmate firefighter and
who is eligible to earn one day of credit for every one day of
incarceration pursuant to Section 4019 shall instead earn two days of
credit for every one day served in that assignment or after
completing that training.
(c) In addition to credits granted pursuant to subdivision (a) or
(b), inmates who have successfully completed training for firefighter
assignments shall receive a credit reduction from his or her term of
confinement.
(d) The credits authorized in subdivisions (b) and (c) shall only
apply to inmates who are eligible after October 1, 2011.
SEC. 37. Section 4115.56 is added to the
Penal Code , to read:
4115.56. (a) Upon agreement with the sheriff or director of the
county department of corrections, a board of supervisors may enter
into a contract with the Department of Corrections and Rehabilitation
to house inmates who are within 60 days or less of release from the
state prison to a county jail facility for the purpose of reentry and
community transition purposes.
(b) When housed in county facilities, inmates shall be under the
legal custody and jurisdiction of local county facilities and not
under the jurisdiction of the Department of Corrections and
Rehabilitation.
SEC. 38. Section 4501.1 of the Penal
Code , as amended by Section 484 of Chapter 15 of the
Statutes of 2011, is amended to read:
4501.1. (a) Every person confined in the state prison who commits
a battery by gassing upon the person of any peace officer, as
defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2, or employee of the state prison is guilty of aggravated
battery and shall be punished by imprisonment in a county jail or by
imprisonment pursuant to subdivision (h) of Section 1170
in the state prison for two, three, or four
years. Every state prison inmate convicted of a felony under this
section shall serve his or her term of imprisonment as prescribed in
Section 4501.5.
(b) For purposes of this section, "gassing" means intentionally
placing or throwing, or causing to be placed or thrown, upon the
person of another, any human excrement or other bodily fluids or
bodily substances or any mixture containing human excrement or other
bodily fluids or bodily substances that results in actual contact
with the person's skin or membranes.
(c) The warden or other person in charge of the state prison shall
use every available means to immediately investigate all reported or
suspected violations of subdivision (a), including, but not limited
to, the use of forensically acceptable means of preserving and
testing the suspected gassing substance to confirm the presence of
human excrement or other bodily fluids or bodily substances. If there
is probable cause to believe that the inmate has violated
subdivision (a), the chief medical officer of the state prison or his
or her designee, may, when he or she deems it medically necessary to
protect the health of an officer or employee who may have been
subject to a violation of this section, order the inmate to receive
an examination or test for hepatitis or tuberculosis or both
hepatitis and tuberculosis on either a voluntary or involuntary basis
immediately after the event, and periodically thereafter as
determined to be necessary by the medical officer in order to ensure
that further hepatitis or tuberculosis transmission does not occur.
These decisions shall be consistent with an occupational exposure as
defined by the Center for Disease Control and Prevention. The results
of any examination or test shall be provided to the officer or
employee who has been subject to a reported or suspected violation of
this section. Nothing in this subdivision shall be construed to
otherwise supersede the operation of Title 8 (commencing with Section
7500). Any person performing tests, transmitting test results, or
disclosing information pursuant to this section shall be immune from
civil liability for any action taken in accordance with this section.
(d) The warden or other person in charge of the state prison shall
refer all reports for which there is probable cause to believe that
the inmate has violated subdivision (a) to the local district
attorney for prosecution.
(e) The Department of Corrections and Rehabilitation shall report
to the Legislature, by January 1, 2000, its findings and
recommendations on gassing incidents at the state prison and the
medical testing authorized by this section. The report shall include,
but not be limited to, all of the following:
(1) The total number of gassing incidents at each state prison
facility up to the date of the report.
(2) The disposition of each gassing incident, including the
administrative penalties imposed, the number of incidents that are
prosecuted, and the results of those prosecutions, including any
penalties imposed.
(3) A profile of the inmates who commit the aggravated batteries,
including the number of inmates who have one or more prior serious or
violent felony convictions.
(4) Efforts that the department has taken to limit these
incidents, including staff training and the use of protective
clothing and goggles.
(5) The results and costs of the medical testing authorized by
this section.
(f) Nothing in this section shall preclude prosecution under both
this section and any other provision of law.
SEC. 39. Section 4530 of the Penal Code
, as amended by Section 486 of Chapter 15 of the Statutes
of 2011, is amended to read:
4530. (a) Every prisoner confined in a state prison who, by force
or violence, escapes or attempts to escape therefrom and every
prisoner committed to a state prison who, by force or violence,
escapes or attempts to escape while being conveyed to or from that
prison or any other state prison, or any prison road camp, prison
forestry camp, or other prison camp or prison farm or any other place
while under the custody of prison officials, officers or employees;
or who, by force or violence, escapes or attempts to escape from any
prison road camp, prison forestry camp, or other prison camp or
prison farm or other place while under the custody of prison
officials, officers or employees; or who, by force or violence,
escapes or attempts to escape while at work outside or away from
prison under custody of prison officials, officers, or employees, is
punishable by imprisonment pursuant to subdivision (h) of
Section 1170 in the state prison for a term of
two, four, or six years. The second term of imprisonment of a person
convicted under this subdivision shall commence from the time he or
she would otherwise have been discharged from prison. No additional
probation report shall be required with respect to that offense.
(b) Every prisoner who commits an escape or attempts an escape as
described in subdivision (a), without force or violence, is
punishable by imprisonment pursuant to subdivision (h) of
Section 1170 in the state prison for 16 months,
or two or three years to be served consecutively. No additional
probation report shall be required with respect to such offense.
(c) The willful failure of a prisoner who is employed or
continuing his education, or who is authorized to secure employment
or education, or who is temporarily released pursuant to Section
2690, 2910, or 6254, or Section 3306 of the Welfare and Institutions
Code, to return to the place of confinement not later than the
expiration of a period during which he or she is authorized to be
away from the place of confinement, is an escape from the place of
confinement punishable as provided in this section. A conviction of a
violation of this subdivision, not involving force or violence,
shall not be charged as a prior felony conviction in any subsequent
prosecution for a public offense.
SEC. 40. Section 12021.5 of the Penal
Code , as amended by Section 504 of Chapter 15 of the
Statutes of 2011, is amended to read:
12021.5. (a) Every person who carries a loaded or unloaded
firearm on his or her person, or in a vehicle, during the commission
or attempted commission of any street gang crimes described in
subdivision (a) or (b) of Section 186.22, shall, upon conviction of
the felony or attempted felony, be punished by an additional term of
imprisonment pursuant to subdivision (h) of Section 1170 for one,
two, or three years in the court's discretion. The court shall impose
the middle term unless there are circumstances in aggravation or
mitigation. The court shall state the reasons for its enhancement
choice on the record at the time of sentence.
(b) Every person who carries a loaded or unloaded firearm together
with a detachable shotgun magazine, a detachable pistol magazine, a
detachable magazine, or a belt-feeding device on his or her person,
or in a vehicle, during the commission or attempted commission of any
street gang crimes described in subdivision (a) or (b) of Section
186.22, shall, upon conviction of the felony or attempted felony, be
punished by an additional term of imprisonment pursuant to
subdivision (h) of Section 1170 in the state prison
for two, three, or four years in the court's discretion. The
court shall impose the middle term unless there are circumstances in
aggravation or mitigation. The court shall state the reasons for its
enhancement choice on the record at the time of sentence.
(c) As used in this section, the following definitions shall
apply:
(1) "Detachable magazine" means a device that is designed or
redesigned to do all of the following:
(A) To be attached to a rifle that is designed or redesigned to
fire ammunition.
(B) To be attached to, and detached from, a rifle that is designed
or redesigned to fire ammunition.
(C) To feed ammunition continuously and directly into the loading
mechanism of a rifle that is designed or redesigned to fire
ammunition.
(2) "Detachable pistol magazine" means a device that is designed
or redesigned to do all of the following:
(A) To be attached to a semiautomatic firearm that is not a rifle
or shotgun that is designed or redesigned to fire ammunition.
(B) To be attached to, and detached from, a firearm that is not a
rifle or shotgun that is designed or redesigned to fire ammunition.
(C) To feed ammunition continuously and directly into the loading
mechanism of a firearm that is not a rifle or a shotgun that is
designed or redesigned to fire ammunition.
(3) "Detachable shotgun magazine" means a device that is designed
or redesigned to do all of the following:
(A) To be attached to a firearm that is designed or redesigned to
fire a fixed shotgun shell through a smooth or rifled bore.
(B) To be attached to, and detached from, a firearm that is
designed or redesigned to fire a fixed shotgun shell through a smooth
bore.
(C) To feed fixed shotgun shells continuously and directly into
the loading mechanism of a firearm that is designed or redesigned to
fire a fixed shotgun shell.
(4) "Belt-feeding device" means a device that is designed or
redesigned to continuously feed ammunition into the loading mechanism
of a machinegun or a semiautomatic firearm.
(5) "Rifle" shall have the same meaning as specified in
paragraph (20) of subdivision (c) of Section 12020
Section 17090 .
(6) "Shotgun" shall have the same meaning as specified in
paragraph (21) of subdivision (c) of Section 12020
Section 17190 .
(d) This section shall become operative on January 1, 2012.
SEC. 41. Section 12025 of the Penal
Code , as amended by Section 63 of Chapter 39
of the Statutes of 2011, is amended to read:
12025. (a) A person is guilty of carrying a concealed firearm
when he or she does any of the following:
(1) Carries concealed within any vehicle which is under his or her
control or direction any pistol, revolver, or other firearm capable
of being concealed upon the person.
(2) Carries concealed upon his or her person any pistol, revolver,
or other firearm capable of being concealed upon the person.
(3) Causes to be carried concealed within any vehicle in which he
or she is an occupant any pistol, revolver, or other firearm capable
of being concealed upon the person.
(b) Carrying a concealed firearm in violation of this section is
punishable, as follows:
(1) Where the person previously has been convicted of any felony,
or of any crime made punishable by this chapter, as a felony
punishable by imprisonment pursuant to subdivision (h) of Section
1170.
(2) Where the firearm is stolen and the person knew or had
reasonable cause to believe that it was stolen, as a felony
punishable by imprisonment pursuant to subdivision (h) of Section
1170.
(3) Where the person is an active participant in a criminal street
gang, as defined in subdivision (a) of Section 186.22, under the
Street Terrorism Enforcement and Prevention Act (Chapter 11
(commencing with Section 186.20) of Title 7 of Part 1), as a felony.
(4) Where the person is not in lawful possession of the firearm,
as defined in this section, or the person is within a class of
persons prohibited from possessing or acquiring a firearm pursuant to
Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the
Welfare and Institutions Code, as a felony punishable by
imprisonment pursuant to subdivision (h) of Section 1170
in the state prison .
(5) Where the person has been convicted of a crime against a
person or property, or of a narcotics or dangerous drug violation, by
imprisonment pursuant to subdivision (h) of Section 1170, or by
imprisonment in a county jail not to exceed one year, by a fine not
to exceed one thousand dollars ($1,000), or by both that imprisonment
and fine.
(6) By imprisonment pursuant to subdivision (h) of Section 1170,
or by imprisonment in a county jail not to exceed one year, by a fine
not to exceed one thousand dollars ($1,000), or by both that fine
and imprisonment if both of the following conditions are met:
(A) Both the pistol, revolver, or other firearm capable of being
concealed upon the person and the unexpended ammunition capable of
being discharged from that firearm are either in the immediate
possession of the person or readily accessible to that person, or the
pistol, revolver, or other firearm capable of being concealed upon
the person is loaded as defined in subdivision (g) of Section 12031.
(B) The person is not listed with the Department of Justice
pursuant to paragraph (1) of subdivision (c) of Section 11106, as the
registered owner of that pistol, revolver, or other firearm capable
of being concealed upon the person.
(7) In all cases other than those specified in paragraphs (1) to
(6), inclusive, by imprisonment in a county jail not to exceed one
year, by a fine not to exceed one thousand dollars ($1,000), or by
both that imprisonment
and fine.
(c) A peace officer may arrest a person for a violation of
paragraph (6) of subdivision (b) if the peace officer has probable
cause to believe that the person is not listed with the Department of
Justice pursuant to paragraph (1) of subdivision (c) of Section
11106 as the registered owner of the pistol, revolver, or other
firearm capable of being concealed upon the person, and one or more
of the conditions in subparagraph (A) of paragraph (6) of subdivision
(b) is met.
(d) (1) Every person convicted under this section who previously
has been convicted of a misdemeanor offense enumerated in Section
12001.6 shall be punished by imprisonment in a county jail for at
least three months and not exceeding six months, or, if granted
probation, or if the execution or imposition of sentence is
suspended, it shall be a condition thereof that he or she be
imprisoned in a county jail for at least three months.
(2) Every person convicted under this section who has previously
been convicted of any felony, or of any crime made punishable by this
chapter, if probation is granted, or if the execution or imposition
of sentence is suspended, it shall be a condition thereof that he or
she be imprisoned in a county jail for not less than three months.
(e) The court shall apply the three-month minimum sentence as
specified in subdivision (d), except in unusual cases where the
interests of justice would best be served by granting probation or
suspending the imposition or execution of sentence without the
minimum imprisonment required in subdivision (d) or by granting
probation or suspending the imposition or execution of sentence with
conditions other than those set forth in subdivision (d), in which
case, the court shall specify on the record and shall enter on the
minutes the circumstances indicating that the interests of justice
would best be served by that disposition.
(f) Firearms carried openly in belt holsters are not concealed
within the meaning of this section.
(g) For purposes of this section, "lawful possession of the
firearm" means that the person who has possession or custody of the
firearm either lawfully owns the firearm or has the permission of the
lawful owner or a person who otherwise has apparent authority to
possess or have custody of the firearm. A person who takes a firearm
without the permission of the lawful owner or without the permission
of a person who has lawful custody of the firearm does not have
lawful possession of the firearm.
(h) (1) The district attorney of each county shall submit annually
a report on or before June 30, to the Attorney General consisting of
profiles by race, age, gender, and ethnicity of any person charged
with a felony or a misdemeanor under this section and any other
offense charged in the same complaint, indictment, or information.
(2) The Attorney General shall submit annually, a report on or
before December 31, to the Legislature compiling all of the reports
submitted pursuant to paragraph (1).
(3) This subdivision shall remain operative until January 1, 2005,
and as of that date shall be repealed.
SEC. 42. Item 5225-007-0001 of Section 2.00 of the
Budget Act of 2011 is amended to read:
5225-007-0001--For support of Department of 95,254,00
Corrections and Rehabilitation............... 0
Provisions:
1. The Director of Finance shall
reduce this item by $ 77, 5
4 ,20 0 6
,000
to reflect the portion of
realignment savings to be
achieved through the reduction
or elimination of contracts
with private entities for in-
state housing of state inmates.
No other item of appropriation
may be used to pay for the
costs of those contracts.
SEC. 43. Section 9 of Chapter 136 of the Statutes
of 2011 is amended to read:
SEC. 9. (a) Section 6 7 of this act
shall remain operative until July 1, 2012.
(b) Section 7 8 of this act shall
become operative on July 1, 2012.
SEC. 44. An amount of one thousand dollars ($1,000)
is provided to the Department of Corrections and Rehabilitation for
the purpose of state operations in the 2011-12 fiscal year, payable
from the General Fund.
SEC. 45. It is the intent of the Legislature to
allow the Department of Corrections and Rehabilitation additional
flexibility in managing its adult population following the enactment
of 2011 Realignment Legislation. Enactment of this measure shall
constitute the approval required by Section 2 of Chapter 706 of the
statutes of 2007.
SEC. 46. This act shall not become operative until
October 1, 2011, and only if Chapter 15 of the statutes of 2011
becomes operative.
SEC. 47. This act is a bill providing for
appropriations related to the Budget Bill within the meaning of
subdivision (e) of Section 12 of Article IV of the California
Constitution, has been identified as related to the budget in the
Budget Bill, and shall take effect immediately.
SEC. 48. (a) Section 12.1 of this bill
incorporates amendments to Section 1170 of the Penal Code proposed by
both this bill and Senate Bill 9. It shall only become operative if
(1) both bills are enacted and become effective on or before January
1, 2012, (2) each bill amends Section 1170 of the Penal Code, and (3)
Senate Bill 576 is not enacted or as enacted does not amend that
section, and (4) this bill is enacted after Senate Bill 9, in which
case Sections 12, 12.2, and 12.3 of this bill shall not become
operative.
(b) Section 12.2 of this bill incorporates amendments to Section
1170 of the Penal Code proposed by both this bill and Senate Bill
576. It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2012, (2) each bill amends
Section 1170 of the Penal Code, (3) Senate Bill 9 is not enacted or
as enacted does not amend that section, and (4) this bill is enacted
after Senate Bill 576 in which case Sections 12, 12.1, and 12.3 of
this bill shall not become operative.
(c) Section 12.3 of this bill incorporates amendments to Section
1170 of the Penal Code proposed by this bill, Senate Bill 9, and
Senate Bill 576. It shall only become operative if (1) all three
bills are enacted and become effective on or before January 1, 2012,
(2) all three bills amend Section 1170 of the Penal Code, and (3)
this bill is enacted after Senate Bill 9 and Senate Bill 576, in
which case Sections 12, 12.1, and 12.2 of this bill shall not become
operative.
SEC. 49. (a) Section 12.5 of this bill incorporates
amendments to Section 1170 of the Penal Code proposed by both this
bill and Senate Bill 9. It shall only become operative if (1) both
bills are enacted and become effective on or before January 1, 2012,
(2) each bill amends Section 1170 of the Penal Code, and (3) Senate
Bill 576 is not enacted or as enacted does not amend that section,
and (4) this bill is enacted after Senate Bill 9, in which case
Sections 12.4, 12.6, and 12.7 of this bill shall not become
operative.
(b) Section 12.6 of this bill incorporates amendments to Section
1170 of the Penal Code proposed by both this bill and Senate Bill
576. It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2012, (2) each bill amends
Section 1170 of the Penal Code, (3) Senate Bill 9 is not enacted or
as enacted does not amend that section, and (4) this bill is enacted
after Senate Bill 576 in which case Sections 12.4, 12.5, and 12.7 of
this bill shall not become operative.
(c) Section 12.7 of this bill incorporates amendments to Section
1170 of the Penal Code proposed by this bill, Senate Bill 9, and
Senate Bill 576. It shall only become operative if (1) all three
bills are enacted and become effective on or before January 1, 2012,
(2) all three bills amend Section 1170 of the Penal Code, and (3)
this bill is enacted after Senate Bill 9 and Senate Bill 576, in
which case Sections 12.4, 12.5 and 12.6 of this bill shall not become
operative.
SEC. 50. Sections 13.1 and 13.3 of this bill
incorporate amendments to Section 1170.1 of the Penal Code proposed
by both this bill and Senate Bill 576. Those sections shall only
become operative if (1) both bills are enacted and become effective
on or before January 1, 2012, (2) each bill amends Section 1170.1 of
the Penal Code, and (3) this bill is enacted after Senate Bill 576,
in which case Sections 13 and 13.2 of this bill shall not become
operative.
SEC. 51. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SEC. 52. This act addresses the fiscal emergency
declared and reaffirmed by the Governor by proclamation on January
20, 2011, pursuant to subdivision (f) of Section 10 of Article IV of
the California Constitution.
SECTION 1. It is the intent of the Legislature
to enact statutory changes relating to the Budget Act of 2010.
SEC. 2. This act addresses the fiscal emergency
declared by the Governor by proclamation on December 6, 2010,
pursuant to subdivision (f) of Section 10 of Article IV of the
California Constitution.