BILL ANALYSIS �
AB 560
Page 1
Date of Hearing: April 16, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 560 (Ammiano) - As Amended: March 21, 2013
SUMMARY : Requires all individuals who are sentenced to county
jail for specified felonies to serve at least the final six
months of their sentence under mandatory supervision.
Specifically, this bill :
1)Requires the court, when imposing a sentence of imprisonment
in the county jail, to suspend execution of the concluding
portion of the term for a minimum of six months during which
time the defendant shall be placed on mandatory supervision
for the remaining unserved portion of the sentence.
2)Provides when a defendant is sentenced to the county jail upon
conviction of a county jail eligible felony, the court may, at
any time, upon its own motion or upon the recommendation of
the sheriff who administers the county jail facility, 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 is no
greater than the initial sentence.
3)States that credit shall be given for time served.
4)Makes the following legislative findings and declarations:
a) The vast majority of misdemeanor and felony offenders
receive a sanction of probation for either all or part of
their terms. Research on best practices to reduce
recidivism demonstrates that a combination of probation and
effective rehabilitation treatment is the best sanction to
reduce recidivism for the majority of medium- to high-risk
offenders.
b) Based on these facts, it is clear that probation plays a
central role in the effective administration of
California's criminal justice system, and it is essential
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in reducing the high recidivism rates in California's
prisons and jails.
c) Effective probation has become even more important with
the implementation of the 2011 realignment legislation
addressing public safety.
d) Across the country, states and counties are using
research to enhance community supervision practices and
strengthen probation departments.
e) Research conducted by the National Institute of Justice
shows that reducing probation caseloads, when accompanied
by evidence-based probation practices, effectively reduces
criminal recidivism.
f) Research has shown that placing low-risk offenders in
intensive programs can actually increase criminal
recidivism and that focusing probation supervision
resources on higher risk probationers achieves better
outcomes for those probationers.
EXISTING LAW :
1)Provides when a defendant 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 of the California Department
of Corrections and Rehabilitation (CDCR) or the Board of
Parole Hearings (BPH), 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 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. [Penal Code Section 1170(d)(1).]
2)Allows 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, to submit to the sentencing court a petition for
recall and resentencing, after serving at least 15 years of
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that sentence. [Penal Code Section 1170(d)(2)(A)(i).]
3)Specifies where the defendant has a prior or current felony
conviction for a serious felony, or a prior or current
conviction for a violent felony, has a prior felony conviction
in another jurisdiction for an offense that has all the
elements of a serious felony or a violent felony, or is
required to register as a sex offender, or is convicted of a
crime and as part of the sentence a specified enhancement is
imposed, an executed sentence for a felony shall be served in
state prison. [Penal Code Section 1170(h)(3).]
4)Provides that a felony not specified in the above provision
shall be punishable by a term of imprisonment in the county
jail. [Penal Code Section 1170(h)(1) and (2).]
5)Authorizes the court, when imposing a sentence for a county
jail-eligible felony, to commit the defendant to county jail
as follows [Penal Code Section 1170(h)(5)]:
a) For a full term in custody as determined in accordance
with applicable sentencing law.
b) For a term as determined in accordance with the
applicable sentencing law, but suspend execution of a
concluding portion or the term selected in the court's
discretion, during which time defendant will be placed on
mandatory supervision 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 mandatory supervision, unless in
actual custody, the defendant shall be entitled to only
actual time credit against the term of imprisonment imposed
by the court.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Under
realignment, some low-level offenders are released into the
community without any supervision or guidance. This bill
would require that all people who serve time in a county jail
for a low level felony serve at least the last six months
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under mandatory supervision in the community. This would
allow these individuals to have some supervision and support
while reentering their communities.
"Research has long shown that receiving reentry services is a
pivotal part of reducing recidivism. A recent report done by
the Vera Institute of Justice shows that individuals leaving
jail have a number of wide-ranging concerns, from securing
employment and housing to mental health treatment. To try and
tackle these issues all at once without any support is a
recipe for failure. By providing support, guidance and
supervision during those first pivotal months of reentry, we
can provide for a smooth reentry and reduce the likelihood of
reoffending."
2)Criminal Justice Realignment Act of 2011 : Criminal justice
realignment created two classifications of felonies: those
punishable in county jail and those punishable in state
prison. Realignment limited which felons can be sent to state
prison, thus requiring that more felons serve their sentences
in county jails. The new law applies to qualified defendants
who commit qualifying offenses and who were sentenced on or
after October 1, 2011. Specifically, sentences to state
prison are now mainly limited to registered sex offenders and
individuals with a current or prior serious or violent
offense. In addition to the serious, violent registerable
offenses eligible for state prison incarceration, there are
approximately 70 felonies which have be specifically excluded
from eligibility for local custody (i.e., the sentence for
which must be served in state prison).
Under realignment, a court has the authority to sentence a
defendant to either a full term in custody [Penal Code Section
1170(h)(5)(A)], or split the sentence between time in custody
and mandatory supervision in the community in any proportion
the court deems appropriate [Penal Code Section
1170(h)(5)(B).] The authority to impose split sentences
provides courts with discretion on how to manage longer
sentences prescribed in statutes. However, a recent report by
the California Probation Officers of California (CPOC)
revealed that many counties are not utilizing split
sentencing. At the time of the report, over 21,500 felony
offenders had been sentenced to local prison terms using
realignment. Of the 21,500, approximately 5,000, or 23% of
offenders sentenced to local prison terms had received split
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sentences. CPOC found that the use of split sentencing is
varied across California, with some counties using it for
nearly all local prison offenders, and some using it very
rarely. [See CPOC Issue Brief, Mandatory Supervision: The
Benefits of Evidence Based Supervision under Public Safety
Realignment (Winter 2012).]
The report noted that the remaining offenders sentenced to a
full term of incarceration in the county jail are released,
once their time is served, with no supervision and no
assistance reintegrating into the community. "This is the
period when recidivism is most likely, and the research is
clear - these offenders will have a higher likelihood of
committing more crimes than those who were given a split
sentence. These facts have two conclusions. First,
sentencing offenders to straight time increases capacity need
in our jails. Secondly and more importantly, based on
research, people coming out of incarceration without any
treatment have a lower likelihood of succeeding and are more
likely to recidivate than those who are supervised and case
managed." (CPOC Issue Brief, Mandatory Supervision: The
Benefits of Evidence Based Supervision under Public Safety
Realignment, p. 3; footnote omitted.)
3)Recall of Sentence : Generally, the trial court loses
jurisdiction to resentence a defendant upon commencement of
execution of his or her sentence. [Dix v. Superior Court
(1991) 53 Cal. 3d 442, 455.] However, the Legislature has
created limited statutory exceptions allowing a court to
recall a defendant's sentence and resentence him or her.
These exceptions include the authority to recall the sentence
of terminally ill defendants [Penal Code Section 1170(e)] and
defendants who were under the age of 18 at the time of the
commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of
parole [Penal Code Section 1170(d)(2)(A)(i)].
The court may also recall the sentence of a defendant who has
been sentenced to state prison, and resentence the defendant
provided the new sentence, if any, is no greater than the
initial sentence. [Penal Code Section 1170(d).] This statute
specifies that the court may recall a defendant on its own
motion within 120 days of the date of commitment, or upon the
recommendation of the Secretary of CDCR or the BPH. The
120-day limit does not apply to recommendations for recall by
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the Secretary of CDCR or BPH. [Ibid.; CEB, Cal. Criminal Law
Procedure and Practice (2012) Recall of Sentence; Correction
of Judgment �35.10, p. 1016.] The trial court may recall a
sentence for any reason rationally related to lawful
sentencing and impose any otherwise lawful sentence suggested
by the facts available at the time of resentencing. [Dix v.
Superior Court, supra, 53 Cal. 3d at p. 456.] The trial court
retains the power to recall a defendant's sentence
notwithstanding the pendency of an appeal. [Portillo v.
Superior Court (1992) 10 Cal. App. 4th 1829, 1836.]
4)Argument in Support : Californians for Safety and Justice (the
sponsor of this bill) states, "The Public Safety Realignment
Act of 2011 authorized a period of mandatory supervision
through county probation departments following a felony jail
sentence, also known as a "split sentence." Realignment gave
the courts this authority to split the sentence in any
proportion they deem appropriate. Split sentences were
designed to allow counties tailor sentences to strategies that
most effectively reduce recidivism. The use of these split
sentences widely varies across the state. In some counties,
the majority of people convicted of low-level offenses receive
some time under mandatory supervision. In other counties,
almost every person receives a straight jail-time sentence
with no period of supervised transition back into the
community.
"The transition from incarceration to release is a critical time
in strategies to reduce recidivism. Research suggests that the
majority of individuals who re-offend post-release do so
within the first year of release. A recent report done by the
Vera Institute of Justice shows that individuals leaving jail
have a number of wide-ranging concerns from securing
employment and housing to receiving mental health treatment.
By providing support, guidance and supervision during those
first pivotal months of reentry, we can provide for a smooth
reentry and reducing the likelihood of reoffending.
"The second component of this bill that authorizes the
sentencing court, on its own motion or at the request of the
county sheriff, to recall and resentence any individual
sentenced under 1170(h) is designed to give the courts and
counties another tool to help manage their jail population,
and encourage the use of split sentences for those individuals
currently serving 1170 (h) sentences in county jails."
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5)Argument in Opposition : The California District Attorneys
Association argues, "In simple terms, this bill reduces the
potential custodial sentence for hundreds of felony offenses
by at least six months. Additionally, AB 560 casts aside a
major part of realignment by removing judicial discretion
regarding the propriety of split sentences. Obviously, we are
vehemently opposed to the blanket reduction in custodial time
this bill represents and urge you to reconsider this massive
penalty-cutting measure.
"AB 560 also allows a court to reduce any felony realignment
sentence at the court's discretion, for any reason whatsoever.
In doing so, the bill delivers this massive blow to
truth-in-sentencing without any direction to courts as to when
such an act is appropriate. Courts would be empowered to
indiscriminately reduce lawful and deserved criminal sentences
for whatever reason they seem fit."
6)Related Legislation : SB 706 (Correa) would require an
individual released from county jail after serving all or part
of a sentence for a felony to be placed on Community
Reintegration and Transitional Status, and would prohibit an
individual from being returned to county jail or being subject
to any revocation process, unless he or she is arrested or
convicted of a new offense. AB 706 is pending hearing by the
Senate Committee on Public Safety.
7)Prior Legislation :
a) AB 109 (Committee on Budget), Chapter 15, Statutes of
2011, realigned responsibilities for certain parolees and
newly convicted offenders who are deemed to be non-violent,
non-serious and non-sex offenders from state to local
jurisdictions.
b) SB 9 (Yee), Chapter 828, Statutes of 2012, authorizes a
prisoner who was under 18 years of age at the time of
committing an offense for which the prisoner was sentenced
to life without the possibility of parole to submit a
petition for recall and resentencing to the sentencing
court, as specified.
c) AB 593 (Ma), Chapter 803, Statutes of 2012, would have
authorized recall and resentencing of a defendant who was
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convicted of one or more violent felonies as specified and
who suffered intimate partner battering and its effects at
the time of the offense. AB 593 was later amended to
affect a writ of habeas corpus based on intimate partner
battering.
REGISTERED SUPPORT / OPPOSITION :
Support
Californians for Safety and Justice (Sponsor)
American Civil Liberties Union
California Attorneys for Criminal Justice
Chief Probation Officers of California
Legal Services for Prisoners with Children
Taxpayers for Increasing Public Safety
Opposition
California District Attorneys Association
Crime Victims United of California
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744