Senate Bill No. 463

Introduced by Senator Pavley

February 21, 2013

An act to amend Sections 186.22, 186.33, 1170, 1170.1, 1170.3, 12021.5, 12022.2, and 12022.4 of the Penal Code, relating to sentencing.

LEGISLATIVE COUNSEL’S DIGEST

SB 463, as introduced, Pavley. Sentencing.

Existing law provides that most felonies are punishable by a triad of terms of incarceration in the state prison, comprised of low, middle, and upper terms. Previous law that required the court to impose the middle term, unless there were circumstances in aggravation or mitigation of the crime, was amended to provide that the choice of the appropriate term rests within the sound discretion of the court. Existing provisions related to sentence enhancements involving criminal street gang activity, firearms, and confirm, operative until January 1, 2014, generally specify that the appropriate term rests within the sound discretion of the court. Existing law, operative on and after January 1, 2014, instead requires the court to impose the middle term, unless there are circumstances in mitigation or aggravation of the crime.

This bill would extend to January 1, 2017, the provisions of law that provide that the court shall, in its discretion, impose the term or enhancement that best serves the interests of justice. The bill would also make conforming changes.

This bill would amend Proposition 21, an initiative statute adopted by the voters at the March 7, 2000, statewide primary election that provides that its provisions may be amended by the Legislature by a 2⁄3 vote of the membership of each house, and therefore requires a 2⁄3 vote.

Vote: ²⁄₃. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

SECTION 1.  

Section 186.22 of the Penal Code, as amended
by Section 1 of Chapter 361 of the Statutes of 2011, is amended
to read:

186.22.  

(a) Any person who actively participates in any
criminal street gang with knowledge that its members engage in
or have engaged in a pattern of criminal gang activity, and who
willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang, shall be punished by
imprisonment in a county jail for a period not to exceed one year,
or by imprisonment in the state prison for 16 months, or two or
three years.

(b) (1) Except as provided in paragraphs (4) and (5), any person
who is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal
conduct by gang members, shall, upon conviction of that felony,
in addition and consecutive to the punishment prescribed for the
felony or attempted felony of which he or she has been convicted,
be punished as follows:

(A) Except as provided in subparagraphs (B) and (C), the person
shall be punished by an additional term of two, three, or four years
at the court’s discretion.

(B) If the felony is a serious felony, as defined in subdivision
(c) of Section 1192.7, the person shall be punished by an additional
term of five years.

(C) If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5, the person shall be punished by an additional
term of 10 years.

(2) If the underlying felony described in paragraph (1) is
committed on the grounds of, or within 1,000 feet of, a public or
private elementary, vocational, junior high, or high school, during
hours in which the facility is open for classes or school-related
programs or when minors are using the facility, that fact shall be
a circumstance in aggravation of the crime in imposing a term
under paragraph (1).

(3) The court shall select the sentence enhancement which, in
the court’s discretion, best serves the interests of justice and shall
state the reasons for its choice on the record at the time of the
sentencing in accordance with the provisions of subdivision (d) of
Section 1170.1.

(4) Any person who is convicted of a felony enumerated in this
paragraph committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang
members, shall, upon conviction of that felony, be sentenced to
an indeterminate term of life imprisonment with a minimum term
of the indeterminate sentence calculated as the greater of:

(A) The term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement
applicable under Chapter 4.5 (commencing with Section 1170) of
Title 7 of Part 2, or any period prescribed by Section 3046, if the
felony is any of the offenses enumerated in subparagraph (B) or
(C) of this paragraph.

(B) Imprisonment in the state prison for 15 years, if the felony
is a home invasion robbery, in violation of subparagraph (A) of
paragraph (1) of subdivision (a) of Section 213; carjacking, as
defined in Section 215; a felony violation of Section 246; or a
violation of Section 12022.55.

(C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats to victims
and witnesses, as defined in Section 136.1.

(5) Except as provided in paragraph (4), any person who violates
this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until
a minimum of 15 calendar years have been served.

(c) If the court grants probation or suspends the execution of
sentence imposed upon the defendant for a violation of subdivision
(a), or in cases involving a true finding of the enhancement
enumerated in subdivision (b), the court shall require that the
defendant serve a minimum of 180 days in a county jail as a
condition thereof.

(d) Any person who is convicted of a public offense punishable
as a felony or a misdemeanor, which is committed for the benefit
of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall be punished by
imprisonment in the county jail not to exceed one year, or by
imprisonment in the state prison for one, two, or three years,
provided that any person sentenced to imprisonment in the county
jail shall be imprisoned for a period not to exceed one year, but
not less than 180 days, and shall not be eligible for release upon
completion of sentence, parole, or any other basis, until he or she
has served 180 days. If the court grants probation or suspends the
execution of sentence imposed upon the defendant, it shall require
as a condition thereof that the defendant serve 180 days in a county
jail.

(e) As used in this chapter, “pattern of criminal gang activity”
means the commission of, attempted commission of, conspiracy
to commit, or solicitation of, sustained juvenile petition for, or
conviction of two or more of the following offenses, provided at
least one of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three years
after a prior offense, and the offenses were committed on separate
occasions, or by two or more persons:

(1) Assault with a deadly weapon or by means of force likely
to produce great bodily injury, as defined in Section 245.

(2) Robbery, as defined in Chapter 4 (commencing with Section
211) of Title 8 of Part 1.

(3) Unlawful homicide or manslaughter, as defined in Chapter
1 (commencing with Section 187) of Title 8 of Part 1.

(4) The sale, possession for sale, transportation, manufacture,
offer for sale, or offer to manufacture controlled substances as
defined in Sections 11054, 11055, 11056, 11057, and 11058 of
the Health and Safety Code.

(5) Shooting at an inhabited dwelling or occupied motor vehicle,
as defined in Section 246.

(6) Discharging or permitting the discharge of a firearm from
a motor vehicle, as defined in subdivisions (a) and (b) of Section
12034 until January 1, 2012, and, on or after that date, subdivisions
(a) and (b) of Section 26100.

(7) Arson, as defined in Chapter 1 (commencing with Section
450) of Title 13.

(8) The intimidation of witnesses and victims, as defined in
Section 136.1.

(9) Grand theft, as defined in subdivision (a) or (c) of Section
487.

(10) Grand theft of any firearm, vehicle, trailer, or vessel.

(11) Burglary, as defined in Section 459.

(12) Rape, as defined in Section 261.

(13) Looting, as defined in Section 463.

(14) Money laundering, as defined in Section 186.10.

(15) Kidnapping, as defined in Section 207.

(16) Mayhem, as defined in Section 203.

(17) Aggravated mayhem, as defined in Section 205.

(18) Torture, as defined in Section 206.

(19) Felony extortion, as defined in Sections 518 and 520.

(20) Felony vandalism, as defined in paragraph (1) of
subdivision (b) of Section 594.

(21) Carjacking, as defined in Section 215.

(22) The sale, delivery, or transfer of a firearm, as defined in
Section 12072 until January 1, 2012, and, on or after that date,
Article 1 (commencing with Section 27500) of Chapter 4 of
Division 6 of Title 4 of Part 6.

(23) Possession of a pistol, revolver, or other firearm capable
of being concealed upon the person in violation of paragraph (1)
of subdivision (a) of Section 12101 until January 1, 2012, and, on
or after that date, Section 29610.

(24) Threats to commit crimes resulting in death or great bodily
injury, as defined in Section 422.

(25) Theft and unlawful taking or driving of a vehicle, as defined
in Section 10851 of the Vehicle Code.

(26) Felony theft of an access card or account information, as
defined in Section 484e.

(27) Counterfeiting, designing, using, or attempting to use an
access card, as defined in Section 484f.

(28) Felony fraudulent use of an access card or account
information, as defined in Section 484g.

(29) Unlawful use of personal identifying information to obtain
credit, goods, services, or medical information, as defined in
Section 530.5.

(30) Wrongfully obtaining Department of Motor Vehicles
documentation, as defined in Section 529.7.

(31) Prohibited possession of a firearm in violation of Section
12021 until January 1, 2012, and on or after that date, Chapter 2
(commencing with Section 29800) of Division 9 of Title 4 of Part
6.

(32) Carrying a concealed firearm in violation of Section 12025
until January 1, 2012, and, on or after that date, Section 25400.

(33) Carrying a loaded firearm in violation of Section 12031
until January 1, 2012, and, on or after that date, Section 25850.

(f) As used in this chapter, “criminal street gang” means any
ongoing organization, association, or group of three or more
persons, whether formal or informal, having as one of its primary
activities the commission of one or more of the criminal acts
enumerated in paragraphs (1) to (25), inclusive, or (31) to (33),
inclusive, of subdivision (e), having a common name or common
identifying sign or symbol, and whose members individually or
collectively engage in or have engaged in a pattern of criminal
gang activity.

(g) Notwithstanding any other law, the court may strike the
additional punishment for the enhancements provided in this
section or refuse to impose the minimum jail sentence for
misdemeanors in an unusual case where the interests of justice
would best be served, if the court specifies on the record and enters
into the minutes the circumstances indicating that the interests of
justice would best be served by that disposition.

(h) Notwithstanding any other provision of law, for each person
committed to the Division of Juvenile Facilities for a conviction
pursuant to subdivision (a) or (b) of this section, the offense shall
be deemed one for which the state shall pay the rate of 100 percent
of the per capita institutional cost of the Division of Juvenile
Facilities, pursuant to Section 912.5 of the Welfare and Institutions
Code.

(i) In order to secure a conviction or sustain a juvenile petition,
pursuant to subdivision (a) it is not necessary for the prosecution
to prove that the person devotes all, or a substantial part, of his or
her time or efforts to the criminal street gang, nor is it necessary
to prove that the person is a member of the criminal street gang.
Active participation in the criminal street gang is all that is
required.

(j) A pattern of gang activity may be shown by the commission
of one or more of the offenses enumerated in paragraphs (26) to
(30), inclusive, of subdivision (e), and the commission of one or
more of the offenses enumerated in paragraphs (1) to (25),
inclusive, or (31) to (33), inclusive, of subdivision (e). A pattern
of gang activity cannot be established solely by proof of
commission of offenses enumerated in paragraphs (26) to (30),
inclusive, of subdivision (e), alone.

(k) This section shall remain in effect only until January 1, begin delete 2014 end delete
begin insert 2017 end insert , and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, begin delete 2014 end delete begin insert 2017 end insert , deletes or extends
that date.

SEC. 2.  

Section 186.22 of the Penal Code, as amended by
Section 2 of Chapter 361 of the Statutes of 2011, is amended to
read:

186.22.  

(a) Any person who actively participates in any
criminal street gang with knowledge that its members engage in
or have engaged in a pattern of criminal gang activity, and who
willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang, shall be punished by
imprisonment in a county jail for a period not to exceed one year,
or by imprisonment in the state prison for 16 months, or two or
three years.

(b) (1) Except as provided in paragraphs (4) and (5), any person
who is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal
conduct by gang members, shall, upon conviction of that felony,
in addition and consecutive to the punishment prescribed for the
felony or attempted felony of which he or she has been convicted,
be punished as follows:

(A) Except as provided in subparagraphs (B) and (C), the person
shall be punished by an additional term of two, three, or four years
at the court’s discretion.

(B) If the felony is a serious felony, as defined in subdivision
(c) of Section 1192.7, the person shall be punished by an additional
term of five years.

(C) If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5, the person shall be punished by an additional
term of 10 years.

(2) If the underlying felony described in paragraph (1) is
committed on the grounds of, or within 1,000 feet of, a public or
private elementary, vocational, junior high, or high school, during
hours in which the facility is open for classes or school-related
programs or when minors are using the facility, that fact shall be
a circumstance in aggravation of the crime in imposing a term
under paragraph (1).

(3) The court shall order the imposition of the middle term of
the sentence enhancement, unless there are circumstances in
aggravation or mitigation. The court shall state the reasons for its
choice of sentencing enhancements on the record at the time of
the sentencing.

(4) Any person who is convicted of a felony enumerated in this
paragraph committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang
members, shall, upon conviction of that felony, be sentenced to
an indeterminate term of life imprisonment with a minimum term
of the indeterminate sentence calculated as the greater of:

(A) The term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement
applicable under Chapter 4.5 (commencing with Section 1170) of
Title 7 of Part 2, or any period prescribed by Section 3046, if the
felony is any of the offenses enumerated in subparagraph (B) or
(C) of this paragraph.

(B) Imprisonment in the state prison for 15 years, if the felony
is a home invasion robbery, in violation of subparagraph (A) of
paragraph (1) of subdivision (a) of Section 213; carjacking, as
defined in Section 215; a felony violation of Section 246; or a
violation of Section 12022.55.

(C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats to victims
and witnesses, as defined in Section 136.1.

(5) Except as provided in paragraph (4), any person who violates
this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until
a minimum of 15 calendar years have been served.

(c) If the court grants probation or suspends the execution of
sentence imposed upon the defendant for a violation of subdivision
(a), or in cases involving a true finding of the enhancement
enumerated in subdivision (b), the court shall require that the
defendant serve a minimum of 180 days in a county jail as a
condition thereof.

(d) Any person who is convicted of a public offense punishable
as a felony or a misdemeanor, which is committed for the benefit
of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall be punished by
imprisonment in the county jail not to exceed one year, or by
imprisonment in the state prison for one, two, or three years,
provided that any person sentenced to imprisonment in the county
jail shall be imprisoned for a period not to exceed one year, but
not less than 180 days, and shall not be eligible for release upon
completion of sentence, parole, or any other basis, until he or she
has served 180 days. If the court grants probation or suspends the
execution of sentence imposed upon the defendant, it shall require
as a condition thereof that the defendant serve 180 days in a county
jail.

(e) As used in this chapter, “pattern of criminal gang activity”
means the commission of, attempted commission of, conspiracy
to commit, or solicitation of, sustained juvenile petition for, or
conviction of two or more of the following offenses, provided at
least one of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three years
after a prior offense, and the offenses were committed on separate
occasions, or by two or more persons:

(1) Assault with a deadly weapon or by means of force likely
to produce great bodily injury, as defined in Section 245.

(2) Robbery, as defined in Chapter 4 (commencing with Section
211) of Title 8 of Part 1.

(3) Unlawful homicide or manslaughter, as defined in Chapter
1 (commencing with Section 187) of Title 8 of Part 1.

(4) The sale, possession for sale, transportation, manufacture,
offer for sale, or offer to manufacture controlled substances as
defined in Sections 11054, 11055, 11056, 11057, and 11058 of
the Health and Safety Code.

(5) Shooting at an inhabited dwelling or occupied motor vehicle,
as defined in Section 246.

(6) Discharging or permitting the discharge of a firearm from
a motor vehicle, as defined in subdivisions (a) and (b) of Section
12034 until January 1, 2012, and, on or after that date, subdivisions
(a) and (b) of Section 26100.

(7) Arson, as defined in Chapter 1 (commencing with Section
450) of Title 13.

(8) The intimidation of witnesses and victims, as defined in
Section 136.1.

(9) Grand theft, as defined in subdivision (a) or (c) of Section
487.

(10) Grand theft of any firearm, vehicle, trailer, or vessel.

(11) Burglary, as defined in Section 459.

(12) Rape, as defined in Section 261.

(13) Looting, as defined in Section 463.

(14) Money laundering, as defined in Section 186.10.

(15) Kidnapping, as defined in Section 207.

(16) Mayhem, as defined in Section 203.

(17) Aggravated mayhem, as defined in Section 205.

(18) Torture, as defined in Section 206.

(19) Felony extortion, as defined in Sections 518 and 520.

(20) Felony vandalism, as defined in paragraph (1) of
subdivision (b) of Section 594.

(21) Carjacking, as defined in Section 215.

(22) The sale, delivery, or transfer of a firearm, as defined in
Section 12072 until January 1, 2012, and, on or after that date,
Article 1 (commencing with Section 27500) of Chapter 4 of
Division 6 of Title 4 of Part 6.

(23) Possession of a pistol, revolver, or other firearm capable
of being concealed upon the person in violation of paragraph (1)
of subdivision (a) of Section 12101 until January 1, 2012, and, on
or after that date, Section 29610.

(24) Threats to commit crimes resulting in death or great bodily
injury, as defined in Section 422.

(25) Theft and unlawful taking or driving of a vehicle, as defined
in Section 10851 of the Vehicle Code.

(26) Felony theft of an access card or account information, as
defined in Section 484e.

(27) Counterfeiting, designing, using, or attempting to use an
access card, as defined in Section 484f.

(28) Felony fraudulent use of an access card or account
information, as defined in Section 484g.

(29) Unlawful use of personal identifying information to obtain
credit, goods, services, or medical information, as defined in
Section 530.5.

(30) Wrongfully obtaining Department of Motor Vehicles
documentation, as defined in Section 529.7.

(31) Prohibited possession of a firearm in violation of Section
12021 until January 1, 2012, and, on or after that date, Chapter 2
(commencing with Section 29800) of Division 9 of Title 4 of Part
6.

(32) Carrying a concealed firearm in violation of Section 12025
until January 1, 2012, and, on or after that date, Section 25400.

(33) Carrying a loaded firearm in violation of Section 12031
until January 1, 2012, and, on or after that date, Section 25850.

(f) As used in this chapter, “criminal street gang” means any
ongoing organization, association, or group of three or more
persons, whether formal or informal, having as one of its primary
activities the commission of one or more of the criminal acts
enumerated in paragraphs (1) to (25), inclusive, or (31) to (33),
inclusive, of subdivision (e), having a common name or common
identifying sign or symbol, and whose members individually or
collectively engage in or have engaged in a pattern of criminal
gang activity.

(g) Notwithstanding any other law, the court may strike the
additional punishment for the enhancements provided in this
section or refuse to impose the minimum jail sentence for
misdemeanors in an unusual case where the interests of justice
would best be served, if the court specifies on the record and enters
into the minutes the circumstances indicating that the interests of
justice would best be served by that disposition.

(h) Notwithstanding any other provision of law, for each person
committed to the Division of Juvenile Facilities for a conviction
pursuant to subdivision (a) or (b) of this section, the offense shall
be deemed one for which the state shall pay the rate of 100 percent
of the per capita institutional cost of the Division of Juvenile
Facilities, pursuant to Section 912.5 of the Welfare and Institutions
Code.

(i) In order to secure a conviction or sustain a juvenile petition,
pursuant to subdivision (a) it is not necessary for the prosecution
to prove that the person devotes all, or a substantial part, of his or
her time or efforts to the criminal street gang, nor is it necessary
to prove that the person is a member of the criminal street gang.
Active participation in the criminal street gang is all that is
required.

(j) A pattern of gang activity may be shown by the commission
of one or more of the offenses enumerated in paragraphs (26) to
(30), inclusive, of subdivision (e), and the commission of one or
more of the offenses enumerated in paragraphs (1) to (25),
inclusive, or (31) to (33), inclusive, of subdivision (e). A pattern
of gang activity cannot be established solely by proof of
commission of offenses enumerated in paragraphs (26) to (30),
inclusive, of subdivision (e), alone.

(k) This section shall become operative on January 1, begin delete 2014 end delete
begin insert 2017 end insert .

SEC. 3.  

Section 186.33 of the Penal Code, as amended by
Section 3 of Chapter 361 of the Statutes of 2011, is amended to
read:

186.33.  

(a) Any person required to register pursuant to Section
186.30 who knowingly violates any of its provisions is guilty of
a misdemeanor.

(b) (1) Any person who knowingly fails to register pursuant to
Section 186.30 and is subsequently convicted of, or any person
for whom a petition is subsequently sustained for a violation of,
any of the offenses specified in Section 186.30, shall be punished
by an additional term of imprisonment in the state prison for 16
months, or two or three years. The court shall select the sentence
enhancement which, in the court’s discretion, best serves the
interests of justice and shall state the reasons for its choice on the
record at the time of sentencing in accordance with the provisions
of subdivision (d) of Section 1170.1.

(2) The existence of any fact bringing a person under this
subdivision shall be alleged in the information, indictment, or
petition, and be either admitted by the defendant or minor in open
court, or found to be true or not true by the trier of fact.

(c) This section shall remain in effect only until January 1, begin delete 2014 end delete
begin insert 2017 end insert , and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, begin delete 2014 end delete begin insert 2017 end insert , deletes or extends
that date.

SEC. 4.  

Section 186.33 of the Penal Code, as amended by
Section 4 of Chapter 361 of the Statutes of 2011, is amended to
read:

186.33.  

(a) Any person required to register pursuant to Section
186.30 who knowingly violates any of its provisions is guilty of
a misdemeanor.

(b) (1) Any person who knowingly fails to register pursuant to
Section 186.30 and is subsequently convicted of, or any person
for whom a petition is subsequently sustained for a violation of,
any of the offenses specified in Section 186.30, shall be punished
by an additional term of imprisonment in the state prison for 16
months, or two or three years. The court shall order imposition of
the middle term unless there are circumstances in aggravation or
mitigation. The court shall state its reasons for the enhancement
choice on the record at the time of sentencing.

(2) The existence of any fact bringing a person under this
subdivision shall be alleged in the information, indictment, or
petition, and be either admitted by the defendant or minor in open
court, or found to be true or not true by the trier of fact.

(c) This section shall become operative on January 1, begin delete 2014 end delete
begin insert 2017 end insert .

SEC. 5.  

Section 1170 of the Penal Code, as amended by Section
1 of Chapter 828 of the Statutes of 2012, 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 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 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) (i) 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.

(ii) Notwithstanding clause (i), this paragraph shall not apply
to defendants sentenced to life without parole for an offense where
the defendant tortured, as described in Section 206, his or her
victim or the victim was a public safety official, including any law
enforcement personnel mentioned in Chapter 4.5 (commencing
with Section 830) of Title 3, or any firefighter as described in
Section 245.1, as well as any other officer in any segment of law
enforcement who is employed by the federal government, the state,
or any of its political subdivisions.

(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 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) is required
to register as a sex offender pursuant to Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1, or (D) 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) 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) (i) 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. Any proceeding to revoke
or modify mandatory supervision under this subparagraph shall
be conducted pursuant to either subdivisions (a) and (b) of Section
1203.2 or Section 1203.3. 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. Any time period which is suspended because a person
has absconded shall not be credited toward the period of
supervision.

(ii) The portion of a defendant’s sentenced term during which
time he or she is supervised by the county probation officer
pursuant to this subparagraph shall be known as mandatory
supervision.

(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, begin delete 2014 end delete
begin insert 2017 end insert , and as of that date is repealed, unless a later enacted statute,
that is enacted before that date, deletes or extends that date.

SEC. 6.  

Section 1170 of the Penal Code, as amended by Section
2 of Chapter 828 of the Statutes of 2012, 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 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) (i) 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.

(ii) Notwithstanding clause (i), this paragraph shall not apply
to defendants sentenced to life without parole for an offense where
the defendant tortured, as described in Section 206, his or her
victim or the victim was a public safety official, including any law
enforcement personnel mentioned in Chapter 4.5 (commencing
with Section 830) of Title 3, or any firefighter as described in
Section 245.1, as well as any other officer in any segment of law
enforcement who is employed by the federal government, the state,
or any of its political subdivisions.

(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 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) is required
to register as a sex offender pursuant to Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1, or (D) 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) 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) (i) 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. Any proceeding to revoke
or modify mandatory supervision under this subparagraph shall
be conducted pursuant to either subdivisions (a) and (b) of Section
1203.2 or Section 1203.3. 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. Any time period which is suspended because a person
has absconded shall not be credited toward the period of
supervision.

(ii) The portion of a defendant’s sentenced term during which
time he or she is supervised by the county probation officer
pursuant to this subparagraph shall be known as mandatory
supervision.

(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, begin delete 2014 end delete begin insert 2017 end insert .

SEC. 7.  

Section 1170.1 of the Penal Code, as amended by
Section 8.7 of Chapter 361 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 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, begin delete 2014 end delete
begin insert 2017 end insert , and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, begin delete 2014 end delete begin insert 2017 end insert , deletes or extends
that date.

SEC. 8.  

Section 1170.1 of the Penal Code, as amended by
Section 9.7 of Chapter 361 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 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, begin delete 2014 end delete begin insert 2017 end insert .

SEC. 9.  

Section 1170.3 of the Penal Code, as amended by
Section 10 of Chapter 361 of the Statutes of 2011, is amended to
read:

1170.3.  

The Judicial Council shall seek to promote uniformity
in sentencing under Section 1170 by:

(a) The adoption of rules providing criteria for the consideration
of the trial judge at the time of sentencing regarding the court’s
decision to:

(1) Grant or deny probation.

(2) Impose the lower, middle, or upper prison term.

(3) Impose concurrent or consecutive sentences.

(4) Determine whether or not to impose an enhancement where
that determination is permitted by law.

(b) The adoption of rules standardizing the minimum content
and the sequential presentation of material in probation officer
reports submitted to the court.

(c) This section shall remain in effect only until January 1, begin delete 2014 end delete
begin insert 2017 end insert , and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, begin delete 2014 end delete begin insert 2017 end insert , deletes or extends
that date.

SEC. 10.  

Section 1170.3 of the Penal Code, as amended by
Section 11 of Chapter 361 of the Statutes of 2011, is amended to
read:

1170.3.  

The Judicial Council shall seek to promote uniformity
in sentencing under Section 1170 by:

(a) The adoption of rules providing criteria for the consideration
of the trial judge at the time of sentencing regarding the court’s
decision to:

(1) Grant or deny probation.

(2) Impose the lower or upper prison term.

(3) Impose concurrent or consecutive sentences.

(4) Determine whether or not to impose an enhancement where
that determination is permitted by law.

(b) The adoption of rules standardizing the minimum content
and the sequential presentation of material in probation officer
reports submitted to the court.

(c) This section shall become operative on January 1, begin delete 2014 end delete
begin insert 2017 end insert .

SEC. 11.  

Section 12021.5 of the Penal Code, as added by
Section 13 of Chapter 361 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 in the state prison for one, two, or three years.
The court shall select the sentence enhancement which, in the
court’s discretion, best serves the interests of justice and shall state
the reasons for its choice on the record at the time of sentence, in
accordance with the provisions of subdivision (d) of Section
1170.1.

(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 in the state prison for two, three, or four years. The
court shall select the sentence enhancement which, in the court’s
discretion, best serves the interests of justice and shall state the
reasons for its choice on the record at the time of sentence, in
accordance with the provisions of subdivision (d) of Section
1170.1.

(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 until January
1, 2012, and, on or after that date, Section 17090.

(6) “Shotgun” shall have the same meaning as specified in
paragraph (21) of subdivision (c) of Section 12020 until January
1, 2012, and, on or after that date, Section 17190.

(d) This section shall remain in effect only until January 1, begin delete 2014 end delete
begin insert 2017 end insert , and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, begin delete 2014 end delete begin insert 2017 end insert , deletes or extends
that date.

SEC. 12.  

Section 12021.5 of the Penal Code, as amended by
Section 12.3 of Chapter 361 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 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 Section
17090.

(6) “Shotgun” shall have the same meaning as specified in
Section 17190.

(d) This section shall become operative on January 1, begin delete 2014 end delete
begin insert 2017 end insert .

SEC. 13.  

Section 12022.2 of the Penal Code, as added by
Section 15 of Chapter 361 of the Statutes of 2011, is amended to
read:

12022.2.  

(a) Any person who, while armed with a firearm in
the commission or attempted commission of any felony, has in his
or her immediate possession ammunition for the firearm designed
primarily to penetrate metal or armor, shall upon conviction of
that felony or attempted felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony, be
punished by an additional term of 3, 4, or 10 years. The court shall
select the sentence enhancement which, in the court’s discretion,
best serves the interests of justice and shall state the reasons for
its choice on the record at the time of the sentence in accordance
with the provisions of subdivision (d) of Section 1170.1.

(b) Any person who wears a body vest in the commission or
attempted commission of a violent offense, as defined in
subdivision (b) of Section 12021.1, until January 1, 2012, and, on
or after that date, Section 29905, shall, upon conviction of that
felony or attempted felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of which
he or she has been convicted, be punished by an additional term
of one, two, or five years. The court shall select the sentence
enhancement which, in the court’s discretion, best serves the
interests of justice and shall state the reasons for its choice on the
record at the time of the sentence in accordance with the provisions
of subdivision (d) of Section 1170.1.

(c) As used in this section, “body vest” means any
bullet-resistant material intended to provide ballistic and trauma
protection for the wearer.

(d) This section shall remain in effect only until January 1, begin delete 2014 end delete
begin insert 2017 end insert , and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, begin delete 2014 end delete begin insert 2017 end insert , deletes or extends
that date.

SEC. 14.  

Section 12022.2 of the Penal Code, as amended by
Section 14 of Chapter 361 of the Statutes of 2011, is amended to
read:

12022.2.  

(a) Any person who, while armed with a firearm in
the commission or attempted commission of any felony, has in his
or her immediate possession ammunition for the firearm designed
primarily to penetrate metal or armor, shall upon conviction of
that felony or attempted felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony, be
punished by an additional term of 3, 4, or 10 years. The court shall
order 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 the sentence.

(b) Any person who wears a body vest in the commission or
attempted commission of a violent offense, as defined in Section
29905, shall, upon conviction of that felony or attempted felony,
in addition and consecutive to the punishment prescribed for the
felony or attempted felony of which he or she has been convicted,
be punished by an additional term of one, two, or five years. The
court shall order 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 the sentence.

(c) As used in this section, “body vest” means any
bullet-resistant material intended to provide ballistic and trauma
protection for the wearer.

(d) This section shall become operative on January 1, begin delete 2014 end delete
begin insert 2017 end insert .

SEC. 15.  

Section 12022.4 of the Penal Code, as added by
Section 17 of Chapter 361 of the Statutes of 2011, is amended to
read:

12022.4.  

(a) Any person who, during the commission or
attempted commission of a felony, furnishes or offers to furnish
a firearm to another for the purpose of aiding, abetting, or enabling
that person or any other person to commit a felony shall, in addition
and consecutive to the punishment prescribed by the felony or
attempted felony of which the person has been convicted, be
punished by an additional term of one, two, or three years in the
state prison. The court shall select the sentence enhancement which,
in the court’s discretion, best serves the interests of justice and
shall state the reasons for its choice on the record at the time of
the sentence, in accordance with the provisions of subdivision (d)
of Section 1170.1. The additional term provided in this section
shall not be imposed unless the fact of the furnishing is charged
in the accusatory pleading and admitted or found to be true by the
trier of fact.

(b) This section shall remain in effect only until January 1, begin delete 2014 end delete
begin insert 2017 end insert , and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, begin delete 2014 end delete begin insert 2017 end insert , deletes or extends
that date.

SEC. 16.  

Section 12022.4 of the Penal Code, as amended by
Section 16 of Chapter 361 of the Statutes of 2011, is amended to
read:

12022.4.  

(a) Any person who, during the commission or
attempted commission of a felony, furnishes or offers to furnish
a firearm to another for the purpose of aiding, abetting, or enabling
that person or any other person to commit a felony shall, in addition
and consecutive to the punishment prescribed by the felony or
attempted felony of which the person has been convicted, be
punished by an additional term of one, two, or three years in the
state prison. The court shall order 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 the sentence. The additional term provided in this section shall
not be imposed unless the fact of the furnishing is charged in the
accusatory pleading and admitted or found to be true by the trier
of fact.

(b) This section shall become operative on January 1, begin delete 2014 end delete
begin insert 2017 end insert .