BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 260
                                                                  Page  1

          Date of Hearing:  July 2, 2013
          Counsel:       Stella Choe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    SB 260 (Hancock) - As Amended:  June 27, 2013


           SUMMARY  :  Establishes a parole process for persons sentenced to  
          lengthy prison terms for crimes committed before attaining 18  
          years of age.  Specifically,  this bill  :

          1)Requires the Board of Parole Hearings (BPH) to conduct a youth  
            opportunity review hearing to provide a meaningful opportunity  
            for release based on demonstrated growth and maturity.

          2)States that BPH must give great weight to mitigating factors  
            and circumstances attendant in the person's crime and life,  
            including:

             a)   The fundamental differences between juveniles and  
               adults, and a juvenile's diminished culpability compared to  
               that of an adult;

             b)   The hallmark features of youthfulness, including but not  
               limited to, immaturity, impetuosity, susceptibility to peer  
               pressure or the negative influence of older individuals,  
               and the failure to appreciate risks and consequences;

             c)   Childhood trauma, including but not limited to, extended  
               exposure to violence, dysfunctional or chaotic family or  
               home environment, and physical, sexual, or emotional abuse;

             d)   The person's physical and mental development at the time  
               of the offense and the impact of physical or mental  
               impairments in combination with youthfulness; and,

             e)   Growth, maturity, and rehabilitation during  
               incarceration and relative to the individual's age at the  
               time of the offense, age when he or she entered prison, and  
               his or her age at the time of parole consideration hearing.  










                                                                  SB 260
                                                                  Page  2

          3)States if any of the specified mitigating factors and  
            circumstances are in conflict with existing suitability or  
            unsuitability criteria, the mitigating factors listed shall  
            prevail.

          4)Provides in assessing the growth and maturity, if BPH uses  
            psychological evaluations and risk assessment instruments,  
            those evaluations and instruments shall be administered by  
            qualified professionals, provide reliable assessment of the  
            growth and maturity of individuals who committed a crime when  
            they were under 18 years of age, and include dynamic variables  
            associated with growth and maturity.

          5)States that family members, school personnel, faith leaders,  
            and representatives from community-based programs with  
            knowledge about the individual at the time of the crime or his  
            or her growth and maturity in prison shall be allowed to  
            attend and testify at the youth opportunity review hearing.

          6)Limits the parole period to 10 years, unless a longer parole  
            period is otherwise provided for in the law.

          7)States, if parole is not granted, BPH shall set the time for  
            the subsequent youth opportunity review hearing not more than  
            three years later and use the factors and circumstances  
            specified above.

          8)Specifies for nonhomicide offenses, attempted murder,  
            conspiracy to commit murder or manslaughter, BPH shall  
            consider the person for parole eligibility at a youth  
            opportunity review hearing:

             a)   During the 15th year of his or her incarceration if the  
               person was sentenced to a determinate term of 40 years or  
               less, or an indeterminate term with a base term of 40 years  
               or less; or,

             b)   During the 20th year of his or her incarceration if the  
               person was sentenced to a determinate term of more than 40  
               years, or an indeterminate term with a base term of more  
               than 40 years.

          9)Specifies for a homicide offense, BPH shall consider a person  
            for parole eligibility at a youth opportunity review hearing:









                                                                  SB 260
                                                                  Page  3

             a)   During the 15th year or his or her incarceration if his  
               or her primary offense was murder in the second degree; or,

             b)   During the 20th year of his or her incarceration if his  
               or her primary offense was murder in the first degree.

          10)Requires a BPH commissioner to meet with an individual five  
            years prior to eligibility for release under the provisions of  
            this bill for consultation and direction on the individual's  
            progress toward parole suitability.  During the meeting, the  
            commissioner shall provide the individual with information on  
            the parole process and the factors relevant to a suitability  
            determination at a youth opportunity review hearing.

          11)Requires, within 30 days of the meeting described above, BPH  
            to issue written recommendations to the individual addressing  
            any issues the individual will have to address prior to being  
            found suitable for release through a youth opportunity review  
            hearing and guidance on how to successfully address those  
            issues.

          12)Excludes persons sentenced under the Three Strikes law or for  
            murder in the first degree with special circumstances.

          13)Makes various legislative declarations and findings.

           EXISTING LAW  : 

          1)Provides that minors age 14 and older can be subject to  
            prosecution in adult criminal court depending upon their  
            alleged offense and their criminal offense history.  [Welfare  
            and Institutions Code (WIC) Sections 602(b) and 707(d)(3).]

          2)Provides that a minor within the jurisdiction of the juvenile  
            delinquency court may be sentenced to the Department of  
            Juvenile Facilities or tried as an adult, as specified, if he  
            or she has been charged with one of the following:  murder;  
            arson, as specified; robbery; rape with force, violence, or  
            threat of great bodily harm; sodomy by force, violence,  
            duress, menace, or threat of great bodily harm; a lewd or  
            lascivious act on a person under the age of 14; oral  
            copulation by force, violence, duress, menace, or threat of  
            great bodily harm; forcible sexual penetration, as specified;  
            kidnapping for ransom; kidnapping for purposes of robbery;  
            kidnapping with bodily harm; attempted murder; assault with a  








                                                                  SB 260
                                                                  Page  4

            firearm or destructive device;  assault by any means of force  
            likely to produce great bodily injury; discharge of a firearm  
            into an inhabited or occupied building; a specified violent  
            crime against a person over the age of 60; use of a firearm in  
            a crime, as specified; a felony offense in which the minor  
            personally used a weapon specified in existing law; a felony  
            offense of intimidating or dissuading a witness;  
            manufacturing, compounding, or selling one-half ounce or more  
            of a salt or solution of a depressant listed as a controlled  
            substance; a violent felony or gang crime, as specified;  
            escape, by the use of force or violence, from a county  
            juvenile hall, home, ranch, camp, or forestry camp, as  
            specified, if great bodily injury is intentionally inflicted  
            upon an employee of the juvenile facility during the  
            commission of the escape; torture;  aggravated mayhem;  
            carjacking, while armed with a dangerous or deadly weapon;  
            kidnapping for purposes of sexual assault; kidnapping during  
            the commission of a carjacking; discharging a firearm into a  
            vehicle, as specified, or; voluntary manslaughter.  [WIC  
            Section 707(b)(1) to (30).]

          3)Specifies if prosecution is commenced against a minor as a  
            criminal case as a "direct file" case, which does not require  
            a prior fitness hearing in juvenile court, and the minor is  
            convicted of a "direct file" offense, the minor is required to  
            be sentenced as an adult.  [Penal Code Section 1170.17(a).]  

          4)Provides, with some exceptions, that when a defendant who was  
            under 18 years of age at the time of the commission of the  
            offense for which the defendant was sentenced to imprisonment  
            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 and  
            sets forth the requirements for filing and granting such a  
            petition.  [Penal Code Section 1170(d)(2).]

          5)Requires BPH to consider the views and interests of the victim  
            when scheduling parole rehearings, and provides that the  
            denial period between rehearings shall be 15, 10, 7, 5 or 3  
            years as specified.  An inmate may request BPH to exercise  
            discretion to advance a set hearing to an earlier date, by  
            submitting a written request to BPH which sets forth new  
            information or a change in circumstances.  BPH has the sole  
            discretion to determine whether to grant or deny a request.   
            An inmate is allowed to make one written request during each  








                                                                  SB 260
                                                                  Page  5

            three year period following a summary denial or decision of  
            BPH.  (Penal Code Section 3041.5.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Piecemeal  
            changes to California law since the 1990s have removed many  
            safeguards and points for review that once existed for youth  
            charged with crimes.  Currently, over 6,500 young people in  
            California prisons were under the age of 18 at the time of  
            their crime and prosecuted as adults - many are transferred to  
            the adult criminal justice system without careful  
            consideration of their amenability to rehabilitate and  
            demonstrate remorse.  The current system provides no viable  
            mechanism for reviewing a case after a young person has served  
            a substantial period of incarceration and can show maturity  
            and improvement.

            "Existing sentencing laws do not distinguish youth from  
            adults, however, recent court decisions are moving in this  
            direction.  The US Supreme Court recently held  
            unconstitutional mandatory life without parole sentences for  
            people under the age of 18, and required courts to consider  
            the youthfulness of defendants facing that sentence (Miller v.  
            Alabama (2012).  The California Supreme Court recently ruled  
            in People v. Caballero (2012) that a sentence exceeding the  
            life expectancy of a juvenile is the equivalent of life  
            without parole, and unconstitutional in nonhomicide cases.   
            Specifically, the California Supreme Court called for  
            legislative action to establish a review process for cases  
            with lengthy sentences. 

            "Recent scientific evidence on adolescent development and  
            neuroscience show that certain areas of the brain,  
            particularly those that affect judgment and decision-making,  
            do not fully develop until the early 20's.  The US Supreme  
            Court stated in its 2005 Roper v. Simmons decision, '[t]he  
            reality that juveniles still struggle to define their identity  
            means it is less supportable to conclude that even a heinous  
            crime committed by a juvenile is evidence of irretrievably  
            depraved character.'  Moreover, the fact that young adults are  
            still developing means that they are uniquely situated for  
            personal growth and rehabilitation.








                                                                  SB 260
                                                                  Page  6


            "In the wake of the US and the California Supreme Courts'  
            decisions and consistent with neuroscientific research, SB 260  
            establishes a comprehensive Youth Opportunity Review process  
            to evaluate cases involving extreme sentences for juveniles.   
            SB 260 holds young people responsible for the crimes they  
            committed and creates a parole mechanism in which they must  
            demonstrate remorse and rehabilitation to merit any possible  
            release on parole as determined by the Board of Parole  
            Hearings."  
            
           2)Review of Case Law:  Juvenile Sentencing  :  In 2010, the United  
            States Supreme Court ruled that it is unconstitutional to  
            sentence a youth who did not commit homicide to a sentence of  
            life without the possibility of parole (LWOP).  [Graham v.  
            Florida (2010) 130 S.Ct. 2011.]  The Court discussed the  
            fundamental differences between a juvenile and adult offender  
            and reasserted its earlier findings from Roper v. Simmons  
            (2005) 543 U.S. 551, that juveniles have lessened culpability  
            than adults due to those differences.  The Court stated that  
            "life without parole is an especially harsh punishment for a  
            juvenile," noting that a juvenile offender "will on average  
            serve more years and a greater percentage of his life in  
            prison than an adult offender."  [Graham, supra, 130 S.Ct. at  
            2016.]  However, the Court stressed that "while the Eighth  
            Amendment forbids a State from imposing a life without parole  
            sentence on a juvenile nonhomicide offender, it does not  
            require the State to release that offender during his natural  
            life.  Those who commit truly horrifying crimes as juveniles  
            may turn out to be irredeemable, and thus deserving of  
            incarceration for the duration of their lives.  The Eighth  
            Amendment does not foreclose the possibility that persons  
            convicted of nonhomicide crimes committed before adulthood  
            will remain behind bars for life.  It does forbid States from  
            making the judgment at the outset that those offenders never  
            will be fit to reenter society."  (Id. at pg. 2031.)

          In 2012, the California Supreme Court ruled that sentencing a  
            juvenile offender for a non-homicide offense to a term of  
            years with a parole eligibility date that falls outside the  
            juvenile offender's natural life expectancy constitutes cruel  
            and unusual punishment in violation of the Eighth Amendment.   
            [People v. Caballero (2012) 55 Cal. 4th 262, 268.]  The Court  
            stated that "the state may not deprive [juveniles] at  
            sentencing of a meaningful opportunity to demonstrate their  








                                                                  SB 260
                                                                  Page  7

            rehabilitation and fitness to reenter society in the future."   
            [Ibid.]  Citing Graham, supra, the Court stated "the  
            sentencing court must consider all mitigating circumstances  
            attendant in the juvenile's crime and life, including but not  
            limited to his or her chronological age at the time of the  
            crime, whether the juvenile offender was a direct perpetrator  
            or an aider and abettor, and his or her physical and mental  
            development, so that it can impose a time when the juvenile  
            offender will be able to seek parole from the parole board."   
            (Id. at pp. 268-269.)  In Caballero, the defendant was  
            convicted of three counts of attempted murder and received a  
            sentence of 110-years-to-life.  Relying on the reasoning in  
            the Graham case, the Court found that while the juvenile did  
            not receive a sentence of LWOP, trial court's sentence  
            effectively deprives the defendant of any "realistic  
            opportunity to obtain release" from prison during his or her  
            expected lifetime, thus the sentence is a de facto LWOP  
            sentence and violates the Eighth Amendment's prohibition  
            against cruel and unusual punishment.  (Id. at pg. 268.)

          The court in Caballero, supra, advised that "[d]efendants who  
            were sentenced for crimes they committed as juveniles who seek  
            to modify life without parole or equivalent de facto sentences  
            already imposed may file petitions for writs of habeas corpus  
            in the trial court in order to allow the court to weigh the  
            mitigating evidence in determining the extent of incarceration  
            required before parole hearings."  (Id. at p. 269.)  While the  
            Court did not provide a precise timeframe for setting these  
            future parole hearings, the Court stressed that "the sentence  
            must not violate the defendant's Eighth Amendment rights and  
            must provide [the defendant with] a 'meaningful opportunity to  
            obtain release based on demonstrated maturity and  
            rehabilitation' under Graham's mandate."  (Ibid.)

          While the court in Caballero pointed out that these inmates may  
            file petitions for writs of habeas corpus in the trial court,  
            the court also urged the Legislature to establish a parole  
            eligibility mechanism for an individual sentenced to a de  
            facto life term for crimes committed as a juvenile.  This bill  
            establishes a parole process for inmates who were sentenced to  
            lengthy prison terms for crimes committed when they were under  
            the age of 18, without requiring the inmate to file a writ of  
            habeas corpus and appear before the trial court for  
            resentencing.  









                                                                  SB 260
                                                                  Page  8

          For defendants serving indeterminate prison terms, i.e.  
            110-years-to-life, even if he or she were to successfully  
            petition a court for resentencing, the court would only be  
            authorized to resentence the inmate to another indeterminate  
            term, requiring the inmate to have to appear before BPH to  
            determine parole eligibility after serving the base term.  For  
            inmates sentenced to a determinate term under current law, the  
            inmate does not have to appear before BPH to determine  
            eligibility for release because the inmate is automatically  
            released when his or her sentence has been served.  This bill  
            requires eligible inmates who are sentenced to both  
            indeterminate terms and determinate terms to have a youth  
            opportunity review hearing before the BPH.  This creates a new  
            process for BPH to consider the release of inmates serving  
            determinate sentences.

           3)SB 9 (Yee) Chapter 828, Statutes of 2012  :  SB 9 allows an  
            inmate who was under 18 years of age at the time of committing  
            an offense for which the prisoner was sentenced to LWOP to  
            submit a petition for recall and resentencing to the  
            sentencing court after serving 15 years of that sentence.  The  
            new law requires the person to submit a petition to the court  
            which includes the defendant's statement that he or she was  
            under 18 years of age at the time of the crime and was  
            sentenced to LWOP, the defendant's statement describing his or  
            her remorse and work towards rehabilitation, and other  
            specified information.  If the court finds 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.  [Penal Code Section 1170(d)(2).]

          The court has the discretion to recall the sentence and  
            resentence the defendant.  If the petition is denied, the  
            inmate may petition the court for recall and resentencing  
            after he or she has served 20 years of the current sentence.   
            If that petition is denied, the new law allows the inmate to  
            submit a new petition after serving 24 years; if that is  
            denied, then the new law allows a final petition to be  
            submitted during the 25th year of his or her petition.  [Penal  
            Code Section 1170(d)(2)(H).]

          SB 9 applies to defendants sentenced to LWOP for a crime  








                                                                  SB 260
                                                                  Page  9

            committed when the defendant was under the age of 18.  Only a  
            juvenile convicted of first-degree murder with special  
            circumstances, as specified, may be sentenced to a term of  
            LWOP or, in the alternative, a term of years sentence of  
            25-years-to-life.  [See Penal Code Section 190.5(b), Graham v.  
            Florida, supra, 130 S.Ct. 2011.]  "First-degree murder" is  
            defined as all murder perpetrated by means of a destructive  
            device or explosive; a weapon of mass destruction; knowing use  
            of ammunition designed primarily to penetrate metal or armor;  
            poison; lying in wait; torture; or by any other kind of  
            willful, deliberate, and premeditated killing; or which is  
            committed in the perpetration of, or attempt to perpetrate,  
            arson, rape, carjacking, robbery, burglary, mayhem,  
            kidnapping, train wrecking; or any act punishable as a violent  
            sex offense, as specified; or any murder which is perpetrated  
            by means of discharging a firearm from a motor vehicle,  
            intentionally at another person outside of the vehicle with  
            the intent to inflict death.  (Penal Code Section 189.)  One  
            of the enumerated special circumstances must be shown in  
            addition to the elements of first-degree murder in order to  
            sentence a defendant to a term of LWOP.  [Penal Code Section  
            190.2(a).]

          The offense for which a juvenile can be sentenced to LWOP is  
            first-degree murder with special circumstances; and under SB  
            9, this category of inmates can petition the court for recall  
            and resentencing after serving 15 years of his or her  
            sentence.  The court may, within its discretion, resentence  
            the defendant to the only statutorily authorized alternative,  
            which is 25-years-to-life.  After the resentenced inmate  
            serves 25 years, he or she will have the opportunity to appear  
            before BPH to determine parole eligibility.  This bill will  
            address parole eligibility and release of persons convicted of  
            crimes as a juvenile and sentenced to lengthy prison terms for  
            non-LWOP and non-Three Strikes Law sentences.

           4)Argument in Support  :  The  Friends Committee on Legislation of  
            California  (a co-sponsor of this bill) states, "Changes in  
            California law have eroded legal safeguards for young people  
            and in some cases mandate that juveniles be tried as adults.   
            There are now more than 6,500 people serving sentences in  
            California's adult prisons for an offense committed under the  
            age 18. More than 90 percent of them are people of color and  
            more than half are serving life sentences.









                                                                  SB 260
                                                                  Page  10

          "Federal law and recent course cases increasingly recognize that  
            minors are physically and psychologically different than  
            adults. In Roper v. Simmons (2005), the U.S. Supreme Court  
            recognized a large body of scientific and sociological  
            research pointing to the diminished culpability of youth as  
                                                                                  well as their capacity for rehabilitation.  For the most part,  
            California law still fails to distinguish these very real  
            differences.  People who cannot vote, serve on juries, or  
            legally purchase alcohol or tobacco are nevertheless  
            considered as culpable as adults when convicted of certain  
            crimes.

          "While society wants young people who commit crimes to be  
            punished, rehabilitation, redemption and the belief in second  
            chances reflect our nation's core values.  SB 260 will require  
            the Board of Parole Hearings to consider objective criteria  
            consistent with the California Supreme Court's ruling in  
            People v. Caballero and the U.S. Supreme Court in Miller v.  
            Alabama and Graham v. Florida in determining whether to grant  
            parole.  Youth will be held accountable while creating  
            incentives for their rehabilitation."

           5)Argument in Opposition  :  The  California District Attorney's  
            Office  (CDAA) writes, "We have many concerns with this bill,  
            and paramount among them is the fact that this bill will  
            potentially result in the early release of many serious  
            offenders. . . .  This represents a severe risk to public  
            safety and is insulting to victims who were promised justice  
            through meaningful incarceration.

          "For reference, CDAA is opposed to this bill for many of the  
            same reasons that it opposed SB 9 last year and its  
            predecessors in prior years.  There are many safeguards and  
            opportunities to argue for lesser sentences, appeal  
            convictions, and seek executive clemency.  SB 260 gives  
            serious offenders yet another chance to avoid deserved  
            punishment."

           6)Related Legislation  :  AB 1276 (Bloom) establishes a parole  
            mechanism for a person convicted of a non-homicide offense  
            that was committed before the person had attained 18 years of  
            age.  AB 1276 will be heard by Senate Committee on Public  
            Safety today.

           7)Prior Legislation  :  








                                                                  SB 260
                                                                  Page  11


             a)   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 LWOP to submit a petition for recall and resentencing to  
               the sentencing court, and to the prosecuting agency, as  
               specified.

             b)   SB 399 (Yee), of the 2009-10 Legislative Session, was  
               substantially similar to SB 9.  SB 399 failed passage on  
               Assembly Floor.  

             c)   SB 999 (Yee), of the 2007-08 Legislative Session, would  
               have eliminated the LWOP sentence thus making the sentence  
               for first-degree murder with special circumstances by a  
               defendant under 18 years of age 25-years-to-life.  SB 999  
               failed passage on Senate Floor.

             d)   SB 1223 (Kuehl), of the 2003-04 Legislative Session,  
               would have authorized a court to review the sentence of a  
               person convicted as a minor in adult criminal court and  
               sentenced to state prison after the person has either  
               served 10 years or attained the age of 25.  SB 1223 failed  
               passage in Assembly Appropriations Committee.

          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Friends Committee on Legislation of California (Co-Sponsor)
          Human Rights Watch (Co-Sponsor)
          Youth Justice Coalition (Co-Sponsor)
          A Place Called Home
          Advancement Project
          All of Us or None
          All Saints Church Foster Care Project
          American Civil Liberties Union
          American Friends Service Committee
          American Probation and Parole Association
          Amnesty International
          Bar Association of San Francisco
          Berkeley Organizing Congregations for Action
          Black Organizing Project
          Boys and Girls Club of San Gabriel Valley
          California Attorneys for Criminal Justice 








                                                                  SB 260
                                                                  Page  12

          California Catholic Conference
          California Church IMPACT
          California Coalition for Women Prisoners
          California Coalition for Youth
          California Committees United Institute
          California Families to Abolish Solitary Confinement
          California Fund for Youth Organizing
          California National Organization for Women
          California Public Defenders Association
          California Teachers Association
          Californians for Safety and Justice
          Californians United for a Responsible Budget
          Campaign for the Fair Sentencing of Youth
          Center for Juvenile Law and Policy at Loyola Law School
          Center on Juvenile and Criminal Justice
          Children's Defense Fund - CA
          Children's Rights Project at Public Counsel
          City and County of San Francisco
          Day One
          Disability Rights Education and Defense Fund
          Disability Rights of California
          Dolores Mission 
          East Bay Children's Law Offices
          Equal Justice Society
          Everychild Foundation
          Friends Outside
          Healing Justice Coalition
          Healing Justice Coalition
          Human Rights Advocates of the University of San Francisco School  
          of Law
          Jesuits of the California Province of the Society of Jesus
          Just Detention International
          Justice Not Jails
          Justice Now
          Juvenile Law Center
          Law Office of Donald R. Hammond
          Legal Services for Children
          Legal Services for Prisoners with Children
          Life Support Alliance
          Los Angeles Community Action Network
          Los Angeles County Sheriff's Department
          Mexican American Legal Defense and Educational Fund
          National Center for Lesbian Rights
          National Center for Youth Law
          National Juvenile Justice Network








                                                                  SB 260
                                                                  Page  13

          National Partnership for Juvenile Services
          Office of Restorative Justice of the Archdiocese of Los Angeles
          Post-Conviction Justice Project, USC Gould School of Law
          Pacific Juvenile Defender Center
          Post-Conviction Justice Project, USC Gould School of Law
          Prison Law Office
          Religious Sisters of Charity
          Santa Clara University
          Service Employees International Union, Local 1000
          Sisters of Mercy U.S. Province
          Sisters of the Company of Mary
          Taxpayers for Improving Public Safety
          The W. Hayward Burns Institute
          United Methodists in California-Nevada Conference
          University Synagogue
          Violence Prevention Coalition of Greater Los Angeles
          Women's Foundation
          Yolo County Public Defender's Office
          Yolo County Office of Education
          Youth Justice
          Youth Law Center
          2,991 Private Individuals

           Opposition 
           
          California District Attorneys Association
          Los Angeles County District Attorney's Office
           
          Analysis Prepared by  :    Stella Choe / PUB. S. / (916) 319-3744