BILL NUMBER: SB 796 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 29, 2011
INTRODUCED BY Senator Blakeslee
FEBRUARY 18, 2011
An act to amend Section 3041 of the Penal Code
add Section 4139 to the Welfare and Institutions Code ,
relating to inmates state hospitals .
LEGISLATIVE COUNSEL'S DIGEST
SB 796, as amended, Blakeslee. Inmates: parole.
State hospitals: prohibited items: misdemeanor penalty.
Existing law provides for state mental hospitals for the treatment
of mentally disordered persons. Existing law places these hospitals
are under the jurisdiction of the State Department of Mental Health,
and authorizes the department to adopt uniform rules and regulations
regarding the conduct and management of these facilities, including
prohibiting patients from possessing certain items.
This bill would make the possession with the intent to deliver, or
delivery, to a patient in a state hospital any item that has been
prohibited for possession by a patient either by statute or by
regulation a misdemeanor, punishable by a fine not to exceed $5,000
for each item. The bill would also require the confiscation from a
visitor of an item prohibited for possession by a patient if
discovered upon being searched or subjected to a metal detector and
would require, unless the item is held as evidence, the return of the
item the same day.
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 no reimbursement is required by this
act for a specified reason.
Existing law provides that, one year prior to the minimum eligible
parole release date of an inmate serving an indeterminate sentence,
a panel of 2 or more commissioners or deputy commissioners of the
Board of Parole Hearings shall meet with the inmate and set a parole
release date, as specified. Existing law provides that in the event
of a tie vote, the matter shall be referred to the board for an en
banc review limited to the record, as specified, that was before the
panel that rendered the tie vote. Existing law requires the board to
vote, upon the en banc review of the record, to either grant or deny
parole and render a statement of decision. Existing law requires the
board to separately state reasons for its decision to grant or deny
parole and requires that the commissioners involved in the tie vote
be recused from consideration of the matter in the en banc review.
This bill would make nonsubstantive changes to a provision on the
subject of parole.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4139 is added to the
Welfare and Institutions Code , to read:
4139. (a) Except as otherwise authorized by law, or when
authorized by the director of the state hospital, and except as
provided in subdivision (b), a person who possesses with the intent
to deliver, or delivers, to a patient in a state hospital any item
that has been prohibited for possession by a patient either by
statute or by regulation is guilty of a misdemeanor, punishable by a
fine not to exceed five thousand dollars ($5,000) for each item.
(b) If a person visiting a patient in a state hospital, upon being
searched or subjected to a metal detector, is found to be in
possession of an item prohibited for patient possession, the item
shall be subject to confiscation but shall be returned on the same
day the person visits the inmate or ward, unless the item is held as
evidence in a case where the person is cited for a violation of
subdivision (a). If, upon investigation, it is determined that no
prosecution will take place, the item shall be returned to the owner
at the owner's expense. Notice of this provision shall be posted in
all areas where visitors are searched prior to visitation with a
patient.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 3041 of the Penal Code is
amended to read:
3041. (a) In the case of an inmate sentenced pursuant to any
provision of law, other than Chapter 4.5 (commencing with Section
1170) of Title 7 of Part 2, the Board of Parole Hearings shall meet
with each inmate during the third year of incarceration for the
purposes of reviewing the inmate's file, making recommendations, and
documenting activities and conduct pertinent to granting or
withholding postconviction credit. One year prior to the inmate's
minimum eligible parole release date, a panel of two or more
commissioners or deputy commissioners shall again meet with the
inmate and shall normally set a parole release date as provided in
Section 3041.5. No more than one member of the panel shall be a
deputy commissioner. In the event of a tie vote, the matter shall be
referred for an en banc review of the record that was before the
panel that rendered the tie vote. Upon en banc review, the board
shall vote to either grant or deny parole and render a statement of
decision. The en banc review shall be conducted pursuant to
subdivision (e). The release date shall be set in a manner that will
provide uniform terms for offenses of similar gravity and magnitude
with respect to their threat to the public, and that will comply with
the sentencing rules that the Judicial Council may issue and any
sentencing information relevant to the setting of parole release
dates. The board shall establish criteria for the setting of parole
release dates and in doing so shall consider the number of victims of
the crime for which the inmate was sentenced and other factors in
mitigation or aggravation of the crime. At least one commissioner of
the panel shall have been present at the last preceding meeting,
unless it is not feasible to do so or where the last preceding
meeting was the initial meeting. Any person on the hearing panel may
request review of any decision regarding parole for an en banc
hearing by the board. In case of a review, a majority vote in favor
of parole by the board members participating in an en banc review is
required to grant parole to any inmate.
(b) The panel or the board, sitting en banc, shall set a release
date unless it determines that the gravity of the current convicted
offense or offenses, or the timing and gravity of current or past
convicted offense or offenses, is such that consideration of the
public safety requires a more lengthy period of incarceration for
this individual, and that a parole date, therefore, cannot be fixed
at this meeting. After the effective date of this subdivision, any
decision of the parole panel finding an inmate suitable for parole
shall become final within 120 days of the date of the hearing. During
that period, the board may review the panel's decision. The panel's
decision shall become final pursuant to this subdivision unless the
board finds that the panel made an error of law, or that the panel's
decision was based on an error of fact, or that new information
should be presented to the board, any of which when corrected or
considered by the board has a substantial likelihood of resulting in
a substantially different decision upon a rehearing. In making this
determination, the board shall consult with the commissioners who
conducted the parole consideration hearing. No decision of the parole
panel shall be disapproved and referred for rehearing except by a
majority vote of the board, sitting en banc, following a public
meeting.
(c) For the purpose of reviewing the suitability for parole of
those inmates eligible for parole under prior law at a date earlier
than that calculated under Section 1170.2, the board shall appoint
panels of at least two persons to meet annually with each inmate
until the time the person is released pursuant to proceedings or
reaches the expiration of his or her term as calculated under Section
1170.2.
(d) It is the intent of the Legislature that, during times when
there is no backlog of inmates awaiting parole hearings, life parole
consideration hearings, or life rescission hearings, hearings will be
conducted by a panel of three or more members, the majority of whom
shall be commissioners. The board shall report monthly on the number
of cases where an inmate has not received a completed initial or
subsequent parole consideration hearing within 30 days of the hearing
date required by subdivision (a) of Section 3041.5 or paragraph (2)
of subdivision (b) of Section 3041.5, unless the inmate has waived
the right to those timeframes. That report shall be considered the
backlog of cases for purposes of this section, and shall include
information on the progress toward eliminating the backlog, and on
the number of inmates who have waived their right to the above
timeframes. The report shall be made public at a regularly scheduled
meeting of the board and a written report shall be made available to
the public and transmitted to the Legislature quarterly.
(e) For purposes of this section, an en banc review by the board
means a review conducted by a majority of commissioners holding
office on the date the matter is heard by the board. An en banc
review shall be conducted in compliance with the following:
(1) The commissioners conducting the review shall consider the
entire record of the hearing that resulted in the tie vote.
(2) The review shall be limited to the record of the hearing. The
record shall consist of the transcript or audiotape of the hearing,
written or electronically recorded statements actually considered by
the panel that produced the tie vote, and any other material actually
considered by the panel. New evidence or comments shall not be
considered in the en banc proceeding.
(3) The board shall separately state reasons for its decision to
grant or deny parole.
(4) A commissioner who was involved in the tie vote shall be
recused from consideration of the matter in the en banc review.