Amended in Assembly June 27, 2013

Amended in Senate May 24, 2013

Amended in Senate April 4, 2013

Amended in Senate March 18, 2013

Senate BillNo. 260


Introduced by Senator Hancock

(Coauthors: Senators De Leónbegin insert, Lara,end insert and Steinberg)

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(Coauthor: Assembly Member Hall)

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February 13, 2013


An act to addbegin delete Section 1170.195end deletebegin insert Sections 3051 and 3051.1end insert to the Penal Code, relating tobegin delete sentencingend deletebegin insert paroleend insert.

LEGISLATIVE COUNSEL’S DIGEST

SB 260, as amended, Hancock. begin deleteSentencing. end deletebegin insertYouth opportunity review hearings.end insert

Existing law provides that the Secretary of the Department of Corrections and Rehabilitation or the Board of Parole Hearings, or both, may, for specified reasons, recommend to the court that a prisoner’s sentence be recalled, and that a court may recall a prisoner’s sentence. When a defendant who was under 18 years of age at the time of the commission of a crime has served at least 15 years of his or her sentence, existing law allows the defendant to submit a petition for recall and resentencing, and authorizes the court, in its discretion, to recall the sentence and to resentence the defendant, provided that the new sentence is not greater than the initial sentence.

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This bill would state legislative intent regarding the following provisions, and would, except as specified, require a sentencing court to hold a hearing to review the sentence of a person who was under 18 years of age at the time of an offense and was prosecuted as an adult after the person has served 10 years in prison. After the review, the bill would allow the judge to suspend or stay all or a portion of the sentence, reduce the sentence to any sentence that could lawfully have been ordered at the time of the original judgment, or both reduce and suspend or stay all or a portion of the sentence. The bill would authorize the court to consider specified evidence, in conjunction with any other evidence the court deems relevant, in making this determination. The bill would permit each person granted review whose sentence is not suspended, stayed, or reduced, to file a petition 3 or more years after any review hearing, and would require the review hearing to be granted if the petition demonstrates a change in the circumstances, as specified, by a preponderance of the evidence. The bill would not apply to a person sentenced under specified provisions or sentenced to life imprisonment without the possibility of parole.

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This bill would require the Board of Parole Hearings to conduct a youth opportunity review hearing to consider release of offenders who committed specified crimes prior to being 18 years of age and who were sentenced to state prison and would require the board to give great weight to specified mitigating factors, including fundamental differences between juveniles and adults, and a juvenile’s diminished culpability as compared to that of an adult. The bill would require that, in assessing growth and maturity, psychological evaluations and risk assessment instruments, if used by the board, be administered by qualified professionals and provide reliable assessment of growth and maturity, and would require that family members, school personnel, faith leaders, and representatives from community-based programs with knowledge about the young person at the time of the crime or his or hers growth and maturity in prison to be permitted to attend and testify at the youth opportunity review hearing.

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Existing law, also added by Proposition 8, adopted June 8, 1982, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes Law, requires increased penalties for certain recidivist offenders in addition to any other enhancement or penalty provisions that may apply, including individuals with current and prior convictions of a serious felony, as specified.

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This bill would exempt from its provisions inmates who were sentenced pursuant to the Three Strikes Law.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P3    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertThe Legislature finds and declares that, as stated
2by the United States Supreme Court in Miller v. Alabama, “only
3a relatively small proportion of adolescents” who engage in illegal
4activity “develop entrenched patterns of problem behavior,” and
5that “developments in psychology and brain science continue to
6show fundamental differences between juvenile and adult minds,end insert
begin insert
7including “parts of the brain involved in behavior control.” The
8Legislature recognizes that youthfulness both lessens a juvenile’s
9 moral culpability and enhances the prospect that, as a youth
10matures into an adult and neurological development occurs, these
11individuals can become contributing members of society. It is the
12intent of the Legislature to create a process by which growth and
13maturity of youthful offenders can be assessed and a meaningful
14opportunity for release established.end insert

15begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 3051 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert

begin insert
16

begin insert3051.end insert  

(a) A person who was convicted of a nonhomicide
17offense, attempted murder, conspiracy to commit murder, or
18manslaughter that was committed before the person had attained
1918 years of age and was sentenced to state prison for a determinate
20term of 40 years or less, or an indeterminate term with a base term
21of 40 years or less, shall be considered for release on parole during
22his or her 15th year of incarceration at a youth opportunity review
23hearing.

24(b) A person who was convicted of a nonhomicide offense,
25attempted murder, conspiracy to commit murder, or manslaughter
26that was committed before the person had attained 18 years of age
27and was sentenced to state prison for a determinate term of more
28than 40 years, or an indeterminate term with a base term of more
29than 40 years, shall be considered for release on parole during
30his or her 20th year of incarceration at a youth opportunity review
31hearing.

32(c) Five years prior to eligibility for release, an individual
33subject to this section shall meet with a commissioner of the Board
34of Parole Hearings for consultation and direction on his or her
35progress toward parole suitability. During the meeting, the Board
36of Parole Hearings shall provide the individual with information
37on the parole process and the factors relevant to a suitability
38determination in a youth opportunity review hearing. Within 30
P4    1days of the meeting, the Board of Parole Hearings shall issue
2written recommendations to the individual identifying any issues
3that the individual will need to address prior to being found
4suitable for release through a youth opportunity review hearing
5and guidance on how to successfully address those issues.

6(d) The Board of Parole Hearings shall conduct a youth
7opportunity review hearing to consider release. At the youth
8opportunity review hearing, the board shall normally release the
9individual on parole as provided in Section 3041, except that the
10individual shall be released on parole based on the individual’s
11eligibility for parole as set forth in subdivision (a) or (b). The
12board shall give great weight to the mitigating factors set forth in
13subdivision (e), shall not rely on Section 2282 or 2403 of Title 15
14of the California Code of Regulations, and to the extent that any
15existing suitability or unsuitability criteria are in conflict with
16those mitigating factors, the mitigating factors shall prevail. Parole
17shall be for a period to be determined by the Board of Parole
18Hearings, but not to exceed 10 years unless a longer parole period
19is otherwise provided for by law.

20(e) The youth opportunity review hearing to consider release
21shall provide for a meaningful opportunity to obtain release based
22on demonstrated growth and maturity. The review process shall
23consider all mitigating circumstances attendant in the juveniles
24crime and life, including, but not limited to, all of the following:

25(1) The fundamental differences between juveniles and adults,
26and a juvenile’s diminished culpability as compared to that of an
27adult.

28(2) The hallmark features of youthfulness, including, but not
29limited to, immaturity, impetuosity, susceptibility to peer pressure
30or the negative influence of older individuals, and the failure to
31appreciate risks and consequences.

32(3) Childhood trauma, including, but not limited to, extended
33exposure to violence, dysfunctional or chaotic family or home
34environment, and physical, sexual, or emotional abuse.

35(4) The juvenile’s physical and mental development at the time
36of the offense and the impact of physical or mental impairments
37in combination with youthfulness.

38(5) Growth, maturity, and rehabilitation during incarceration
39and relative to the individual’s age at the time of the offense, age
P5    1when he or she entered prison, and his or her age at the time of
2the parole consideration hearing.

3(f) In assessing growth and maturity, psychological evaluations
4and risk assessment instruments, if used by the board, shall be
5administered by qualified professionals, provide reliable
6assessment of the growth and maturity of individuals who
7committed a crime when they were under 18 years of age, and
8include dynamic variables associated with growth and maturity.
9Family members, school personnel, faith leaders, and
10representatives from community-based programs with knowledge
11about the individual at the time of the crime or his or her growth
12and maturity in prison shall be permitted to attend and testify at
13the youth opportunity review hearing.

14(g) If parole is not granted, the board shall set the time for a
15subsequent youth opportunity review hearing not more than three
16years later, in accordance with Section 3041.5, and shall use the
17factors in subdivisions (e) to (g), inclusive.

18(h) Crimes covered by this statute include all nonhomicide
19convictions, attempted murder, conspiracy to commit murder, and
20manslaughter. This section shall not apply to cases where
21sentencing occurs pursuant to the Three Strikes law. Years of
22incarceration are subject to applicable credit reductions in existing
23law.

end insert
24begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 3051.1 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert

begin insert
25

begin insert3051.1.end insert  

(a) A person who was sentenced to state prison upon
26conviction for a homicide offense that was committed before the
27person had attained 18 years of age shall be eligible for review
28and release at a youth opportunity review hearing during his or
29her 15th year of incarceration if his or her primary offense was
30murder in the second degree, pursuant to Section 189.

31(b) A person who was sentenced to state prison upon conviction
32for a homicide offense that was committed before the person had
33attained 18 years of age shall be eligible for review at a youth
34opportunity review hearing during his or her 25th year of
35incarceration if his or her primary offense was murder in the first
36degree, pursuant to Section 189.

37(c) Five years prior to eligibility for release, an individual who
38is subject to this section shall meet with a commissioner of the
39Board of Parole Hearings for consultation and direction on his
40or her progress toward parole suitability. During the meeting, the
P6    1Board of Parole Hearings shall provide the individual with
2information on the parole process and the factors relevant to a
3suitability determination in a youth opportunity review hearing.
4Within 30 days of the meeting, the Board of Parole Hearings shall
5issue written recommendations to the individual identifying any
6issues that the individual will need to address prior to being found
7suitable for release through a youth opportunity review hearing
8guidance on how to successfully address those issues.

9(d) The Board of Parole Hearings shall conduct a youth
10opportunity review hearing to consider release. At the youth
11opportunity review hearing, the board shall normally release the
12individual on parole as provided in Section 3041, except that the
13individual shall be released on parole based on the individual’s
14eligibility for parole as set forth in subdivisions (a) and (b). The
15board shall give great weight to the mitigating factors set forth in
16subdivision (e), shall not rely on Section 2282 or 2403 of Title 15
17of the California Code of Regulations, and to the extent that any
18existing suitability or unsuitability criteria are in conflict with
19those mitigating factors, the mitigating factors shall prevail. Parole
20shall be for a period to be determined by the Board of Parole
21Hearings, but not to exceed 10 years unless a longer parole period
22is otherwise provided for by law subject to Section 3000.1.

23(e) The youth opportunity review hearing to consider release
24will provide for a meaningful opportunity to obtain release based
25on demonstrated growth and maturity. The review process must
26consider all mitigating circumstances attendant in the juveniles
27crime and life, including, but not limited to, all of the following:

28(1) The fundamental differences between juveniles and adults,
29and a juvenile’s diminished culpability as compared to that of an
30adult.

31(2) The hallmark features of youthfulness, including, but not
32limited to, immaturity, impetuosity, susceptibility to peer pressure
33or the negative influence of older individuals, and the failure to
34appreciate risks and consequences.

35(3) Childhood trauma, including, but not limited to, extended
36exposure to violence, dysfunctional or chaotic family or home
37environment, and physical, sexual, or emotional abuse.

38(4) The juvenile’s physical and mental development at the time
39of the offense and the impact of physical or mental impairments
40in combination with youthfulness.

P7    1(5) Growth, maturity, and rehabilitation during incarceration
2and relative to the individual’s age at the time of the offense, age
3when he or she entered prison, and his or her age at the time of
4the parole consideration hearing.

5(f) In assessing growth and maturity, psychological evaluations
6and risk assessment instruments, if used by the board, shall be
7administered by qualified professionals, provide reliable
8assessment of the growth and maturity of individuals who
9committed a crime when they were under 18 years of age, and
10include dynamic variables associated with growth and maturity.
11Family members, school personnel, faith leaders, and
12representatives from community-based programs with knowledge
13about the young person at the time of the crime or his or her growth
14and maturity in prison shall be permitted to attend and testify at
15the youth opportunity review hearing.

16(g) If parole is not granted, the board shall set the time for a
17subsequent youth opportunity review hearing not more than three
18years later, in accordance with Section 3041.5, and shall use the
19factors in subdivisions (d) to (f), inclusive.

20(h) Persons serving sentences under the Three Strikes law or
21for murder in the first degree with special circumstances cases
22under Section 190.5 are excluded. Years of incarceration are
23subject to applicable credit reductions in existing law.

end insert
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24

SECTION 1.  

It is the intent of the Legislature to provide a
25judicial mechanism for reconsidering the sentences of adults who
26have served a significant amount of time in state prison for the
27conviction of crimes they committed as children.

28

SEC. 2.  

Section 1170.195 is added to the Penal Code, to read:

29

1170.195.  

(a) Notwithstanding any other law, upon motion
30and after 60 days’ notice to the prosecution, the sentencing court
31shall hold a hearing to review the sentence of a person who was
32under 18 years of age at the time of the offense and was prosecuted
33as an adult, after the person has served 10 years in prison.

34(b) After reviewing the sentence, the judge may suspend or stay
35all or a portion of the sentence, reduce the sentence to any sentence
36that could lawfully have been ordered at the time of the original
37judgment, or both reduce and suspend or stay all or a portion of
38the sentence, provided that the person at the time of the hearing
39meets the eligibility criteria of the alternative disposition.

P8    1(c) For purposes of this determination, the court may consider,
2in conjunction with any other evidence the court deems relevant,
3the person’s record of serious disciplinary violations, whether the
4person has performed acts that tend to indicate rehabilitation or
5the capacity for rehabilitation, including, but not limited to, availing
6himself or herself of any rehabilitative, educational, or vocational
7programs available at his or her classification level and facility,
8the person’s use of self-study for self-improvement, the person’s
9statement describing his or her remorse and work towards
10rehabilitation, the person’s youth at the time of the crime, including
11his or her immaturity, impulsiveness, failure to appreciate risks
12and consequences, family and home environment, intellectual
13functioning, mental disorder, or disabilities, the circumstances of
14the offense, including the extent of participation in the offense and
15the way familial and peer pressures may have affected him or her,
16and whether the person might have been charged and convicted
17of a lesser offense if not for the lesser abilities of youth, including,
18but not limited to, an inability to effectively deal with police
19officers or prosecutors, or a limited capacity to fully understand
20the proceedings or to assist his or her attorney.

21(d) The court shall identify on the record the criteria relied on,
22and shall provide a statement of reasons for adopting those criteria.
23The court shall state why the defendant does or does not satisfy
24the criteria.

25(e) Victims, or victim family members if the victim is deceased,
26shall be notified of the resentencing hearing and shall retain their
27rights to participate in the hearing.

28(f) Each person granted review pursuant to this section whose
29sentence is not suspended, stayed, or reduced, may file a petition
30with the sentencing court three or more years after any review
31hearing. A review hearing on any subsequent petition shall be
32granted if the petition demonstrates, by a preponderance of the
33evidence, a change in the circumstances specified in subdivision
34(c).

35(g) This section does not apply to a person who was sentenced
36pursuant to Section 190.4 or 190.5, subdivisions (b) to (i),
37inclusive, of Section 667, or Section 1170.12, or to life
38imprisonment without the possibility of parole.

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