Amended in Assembly September 6, 2013

Senate BillNo. 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 amended, 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, andbegin delete confirmend deletebegin insert sentencing generallyend insert, operative until January 1, 2014,begin delete generallyend delete 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 23 vote of the membership of each house, and therefore requires a 23 vote.

Vote: 23. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

P2    1

SECTION 1.  

Section 186.22 of the Penal Code, as amended
2by Section 1 of Chapter 361 of the Statutes of 2011, is amended
3to read:

4

186.22.  

(a) Any person who actively participates in any
5criminal street gang with knowledge that its members engage in
6or have engaged in a pattern of criminal gang activity, and who
7willfully promotes, furthers, or assists in any felonious criminal
8conduct by members of that gang, shall be punished by
9imprisonment in a county jail for a period not to exceed one year,
10or by imprisonment in the state prison for 16 months, or two or
11three years.

12(b) (1) Except as provided in paragraphs (4) and (5), any person
13who is convicted of a felony committed for the benefit of, at the
14direction of, or in association with any criminal street gang, with
15the specific intent to promote, further, or assist in any criminal
16conduct by gang members, shall, upon conviction of that felony,
17in addition and consecutive to the punishment prescribed for the
18felony or attempted felony of which he or she has been convicted,
19be punished as follows:

20(A) Except as provided in subparagraphs (B) and (C), the person
21shall be punished by an additional term of two, three, or four years
22at the court’s discretion.

23(B) If the felony is a serious felony, as defined in subdivision
24(c) of Section 1192.7, the person shall be punished by an additional
25term of five years.

26(C) If the felony is a violent felony, as defined in subdivision
27(c) of Section 667.5, the person shall be punished by an additional
28term of 10 years.

29(2) If the underlying felony described in paragraph (1) is
30committed on the grounds of, or within 1,000 feet of, a public or
31 private elementary, vocational, junior high, or high school, during
32hours in which the facility is open for classes or school-related
33programs or when minors are using the facility, that fact shall be
P3    1a circumstance in aggravation of the crime in imposing a term
2under paragraph (1).

3(3) The court shall select the sentence enhancement which, in
4the court’s discretion, best serves the interests of justice and shall
5state the reasons for its choice on the record at the time of the
6sentencing in accordance with the provisions of subdivision (d) of
7Section 1170.1.

8(4) Any person who is convicted of a felony enumerated in this
9paragraph committed for the benefit of, at the direction of, or in
10association with any criminal street gang, with the specific intent
11to promote, further, or assist in any criminal conduct by gang
12members, shall, upon conviction of that felony, be sentenced to
13an indeterminate term of life imprisonment with a minimum term
14of the indeterminate sentence calculated as the greater of:

15(A) The term determined by the court pursuant to Section 1170
16for the underlying conviction, including any enhancement
17applicable under Chapter 4.5 (commencing with Section 1170) of
18Title 7 of Part 2, or any period prescribed by Section 3046, if the
19felony is any of the offenses enumerated in subparagraph (B) or
20(C) of this paragraph.

21(B) Imprisonment in the state prison for 15 years, if the felony
22is a home invasion robbery, in violation of subparagraph (A) of
23paragraph (1) of subdivision (a) of Section 213; carjacking, as
24defined in Section 215; a felony violation of Section 246; or a
25violation of Section 12022.55.

26(C) Imprisonment in the state prison for seven years, if the
27felony is extortion, as defined in Section 519; or threats to victims
28and witnesses, as defined in Section 136.1.

29(5) Except as provided in paragraph (4), any person who violates
30this subdivision in the commission of a felony punishable by
31imprisonment in the state prison for life shall not be paroled until
32a minimum of 15 calendar years have been served.

33(c) If the court grants probation or suspends the execution of
34sentence imposed upon the defendant for a violation of subdivision
35(a), or in cases involving a true finding of the enhancement
36enumerated in subdivision (b), the court shall require that the
37defendant serve a minimum of 180 days in a county jail as a
38condition thereof.

39(d) Any person who is convicted of a public offense punishable
40as a felony or a misdemeanor, which is committed for the benefit
P4    1of, at the direction of, or in association with any criminal street
2gang, with the specific intent to promote, further, or assist in any
3criminal conduct by gang members, shall be punished by
4imprisonment inbegin delete theend deletebegin insert aend insert county jail not to exceed one year, or by
5imprisonment inbegin delete theend deletebegin insert aend insert state prison for one, two, or three years,
6provided that any person sentenced to imprisonment in the county
7jail shall be imprisoned for a period not to exceed one year, but
8not less than 180 days, and shall not be eligible for release upon
9completion of sentence, parole, or any other basis, until he or she
10has served 180 days. If the court grants probation or suspends the
11execution of sentence imposed upon the defendant, it shall require
12as a condition thereof that the defendant serve 180 days in a county
13jail.

14(e) As used in this chapter, “pattern of criminal gang activity”
15means the commission of, attempted commission of, conspiracy
16to commit, or solicitation of, sustained juvenile petition for, or
17 conviction of two or more of the following offenses, provided at
18least one of these offenses occurred after the effective date of this
19chapter and the last of those offenses occurred within three years
20after a prior offense, and the offenses were committed on separate
21occasions, or by two or more persons:

22(1) Assault with a deadly weapon or by means of force likely
23to produce great bodily injury, as defined in Section 245.

24(2) Robbery, as defined in Chapter 4 (commencing with Section
25211) of Title 8 of Part 1.

26(3) Unlawful homicide or manslaughter, as defined in Chapter
271 (commencing with Section 187) of Title 8 of Part 1.

28(4) The sale, possession for sale, transportation, manufacture,
29offer for sale, or offer to manufacture controlled substances as
30 defined in Sections 11054, 11055, 11056, 11057, and 11058 of
31the Health and Safety Code.

32(5) Shooting at an inhabited dwelling or occupied motor vehicle,
33as defined in Section 246.

34(6) Discharging or permitting the discharge of a firearm from
35a motor vehicle, as defined in subdivisions (a) and (b) of Section
3612034 until January 1, 2012, and, on or after that date, subdivisions
37(a) and (b) of Section 26100.

38(7) Arson, as defined in Chapter 1 (commencing with Section
39450) of Title 13.

P5    1(8) The intimidation of witnesses and victims, as defined in
2Section 136.1.

3(9) Grand theft, as defined in subdivision (a) or (c) of Section
4487.

5(10) Grand theft of any firearm, vehicle, trailer, or vessel.

6(11) Burglary, as defined in Section 459.

7(12) Rape, as defined in Section 261.

8(13) Looting, as defined in Section 463.

9(14) Money laundering, as defined in Section 186.10.

10(15) Kidnapping, as defined in Section 207.

11(16) Mayhem, as defined in Section 203.

12(17) Aggravated mayhem, as defined in Section 205.

13(18) Torture, as defined in Section 206.

14(19) Felony extortion, as defined in Sections 518 and 520.

15(20) Felony vandalism, as defined in paragraph (1) of
16subdivision (b) of Section 594.

17(21) Carjacking, as defined in Section 215.

18(22) The sale, delivery, or transfer of a firearm, as defined in
19Section 12072 until January 1, 2012, and, on or after that date,
20Article 1 (commencing with Section 27500) of Chapter 4 of
21Division 6 of Title 4 of Part 6.

22(23) Possession of a pistol, revolver, or other firearm capable
23of being concealed upon the person in violation of paragraph (1)
24of subdivision (a) of Section 12101 until January 1, 2012, and, on
25or after that date, Section 29610.

26(24) Threats to commit crimes resulting in death or great bodily
27 injury, as defined in Section 422.

28(25) Theft and unlawful taking or driving of a vehicle, as defined
29in Section 10851 of the Vehicle Code.

30(26) Felony theft of an access card or account information, as
31defined in Section 484e.

32(27) Counterfeiting, designing, using, or attempting to use an
33access card, as defined in Section 484f.

34(28) Felony fraudulent use of an access card or account
35information, as defined in Section 484g.

36(29) Unlawful use of personal identifying information to obtain
37credit, goods, services, or medical information, as defined in
38Section 530.5.

39(30) Wrongfully obtaining Department of Motor Vehicles
40 documentation, as defined in Section 529.7.

P6    1(31) Prohibited possession of a firearm in violation of Section
212021 until January 1, 2012, and on or after that date, Chapter 2
3(commencing with Section 29800) of Division 9 of Title 4 of Part
46.

5(32) Carrying a concealed firearm in violation of Section 12025
6until January 1, 2012, and, on or after that date, Section 25400.

7(33) Carrying a loaded firearm in violation of Section 12031
8until January 1, 2012, and, on or after that date, Section 25850.

9(f) As used in this chapter, “criminal street gang” means any
10ongoing organization, association, or group of three or more
11persons, whether formal or informal, having as one of its primary
12activities the commission of one or more of the criminal acts
13enumerated in paragraphs (1) to (25), inclusive, or (31) to (33),
14inclusive, of subdivision (e), having a common name or common
15identifying sign or symbol, and whose members individually or
16collectively engage in or have engaged in a pattern of criminal
17gang activity.

18(g) Notwithstanding any other law, the court may strike the
19additional punishment for the enhancements provided in this
20section or refuse to impose the minimum jail sentence for
21misdemeanors in an unusual case where the interests of justice
22would best be served, if the court specifies on the record and enters
23into the minutes the circumstances indicating that the interests of
24justice would best be served by that disposition.

25(h) Notwithstanding any other provision of law, for each person
26committed to thebegin insert Department of Corrections and Rehabilitation,end insert
27 Division of Juvenile Facilities for a conviction pursuant to
28subdivision (a) or (b) of this section, the offense shall be deemed
29one for which the state shall pay the rate of 100 percent of the per
30capita institutional cost of thebegin insert Department of Corrections and
31Rehabilitation,end insert
Division of Juvenile Facilities, pursuant to Section
32912.5 of the Welfare and Institutions Code.

33(i) In order to secure a conviction or sustain a juvenile petition,
34pursuant to subdivision (a) it is not necessary for the prosecution
35to prove that the person devotes all, or a substantial part, of his or
36her time or efforts to the criminal street gang, nor is it necessary
37to prove that the person is a member of the criminal street gang.
38Active participation in the criminal street gang is all that is
39required.

P7    1(j) A pattern of gang activity may be shown by the commission
2of one or more of the offenses enumerated in paragraphs (26) to
3(30), inclusive, of subdivision (e), and the commission of one or
4more of the offenses enumerated in paragraphs (1) to (25),
5inclusive, or (31) to (33), inclusive, of subdivision (e). A pattern
6of gang activity cannot be established solely by proof of
7commission of offenses enumerated in paragraphs (26) to (30),
8inclusive, of subdivision (e), alone.

9(k) This section shall remain in effect only until January 1, 2017,
10and as of that date is repealed, unless a later enacted statute, that
11is enacted before January 1, 2017, deletes or extends that date.

12

SEC. 2.  

Section 186.22 of the Penal Code, as amended by
13Section 2 of Chapter 361 of the Statutes of 2011, is amended to
14read:

15

186.22.  

(a) Any person who actively participates in any
16criminal street gang with knowledge that its members engage in
17or have engaged in a pattern of criminal gang activity, and who
18willfully promotes, furthers, or assists in any felonious criminal
19conduct by members of that gang, shall be punished by
20imprisonment in a county jail for a period not to exceed one year,
21or by imprisonment in the state prison for 16 months, or two or
22three years.

23(b) (1) Except as provided in paragraphs (4) and (5), any person
24who is convicted of a felony committed for the benefit of, at the
25direction of, or in association with any criminal street gang, with
26the specific intent to promote, further, or assist in any criminal
27conduct by gang members, shall, upon conviction of that felony,
28in addition and consecutive to the punishment prescribed for the
29felony or attempted felony of which he or she has been convicted,
30be punished as follows:

31(A) Except as provided in subparagraphs (B) and (C), the person
32shall be punished by an additional term of two, three, or four years
33at the court’s discretion.

34(B) If the felony is a serious felony, as defined in subdivision
35(c) of Section 1192.7, the person shall be punished by an additional
36term of five years.

37(C) If the felony is a violent felony, as defined in subdivision
38(c) of Section 667.5, the person shall be punished by an additional
39term of 10 years.

P8    1(2) If the underlying felony described in paragraph (1) is
2committed on the grounds of, or within 1,000 feet of, a public or
3 private elementary, vocational, junior high, or high school, during
4hours in which the facility is open for classes or school-related
5programs or when minors are using the facility, that fact shall be
6a circumstance in aggravation of the crime in imposing a term
7under paragraph (1).

8(3) The court shall order the imposition of the middle term of
9the sentence enhancement, unless there are circumstances in
10aggravation or mitigation. The court shall state the reasons for its
11choice of sentencing enhancements on the record at the time of
12the sentencing.

13(4) Any person who is convicted of a felony enumerated in this
14paragraph committed for the benefit of, at the direction of, or in
15association with any criminal street gang, with the specific intent
16to promote, further, or assist in any criminal conduct by gang
17members, shall, upon conviction of that felony, be sentenced to
18an indeterminate term of life imprisonment with a minimum term
19of the indeterminate sentence calculated as the greater of:

20(A) The term determined by the court pursuant to Section 1170
21for the underlying conviction, including any enhancement
22applicable under Chapter 4.5 (commencing with Section 1170) of
23Title 7 of Part 2, or any period prescribed by Section 3046, if the
24felony is any of the offenses enumerated in subparagraph (B) or
25(C) of this paragraph.

26(B) Imprisonment in the state prison for 15 years, if the felony
27is a home invasion robbery, in violation of subparagraph (A) of
28paragraph (1) of subdivision (a) of Section 213; carjacking, as
29defined in Section 215; a felony violation of Section 246; or a
30violation of Section 12022.55.

31(C) Imprisonment in the state prison for seven years, if the
32felony is extortion, as defined in Section 519; or threats to victims
33and witnesses, as defined in Section 136.1.

34(5) Except as provided in paragraph (4), any person who violates
35this subdivision in the commission of a felony punishable by
36imprisonment in the state prison for life shall not be paroled until
37a minimum of 15 calendar years have been served.

38(c) If the court grants probation or suspends the execution of
39sentence imposed upon the defendant for a violation of subdivision
40(a), or in cases involving a true finding of the enhancement
P9    1enumerated in subdivision (b), the court shall require that the
2defendant serve a minimum of 180 days in a county jail as a
3condition thereof.

4(d) Any person who is convicted of a public offense punishable
5as a felony or a misdemeanor, which is committed for the benefit
6of, at the direction of, or in association with any criminal street
7gang, with the specific intent to promote, further, or assist in any
8criminal conduct by gang members, shall be punished by
9imprisonment inbegin delete theend deletebegin insert aend insert county jail not to exceed one year, or by
10imprisonment inbegin delete theend deletebegin insert aend insert state prison for one, two, or three years,
11provided that any person sentenced to imprisonment in the county
12jail shall be imprisoned for a period not to exceed one year, but
13not less than 180 days, and shall not be eligible for release upon
14completion of sentence, parole, or any other basis, until he or she
15has served 180 days. If the court grants probation or suspends the
16execution of sentence imposed upon the defendant, it shall require
17as a condition thereof that the defendant serve 180 days in a county
18jail.

19(e) As used in this chapter, “pattern of criminal gang activity”
20means the commission of, attempted commission of, conspiracy
21to commit, or solicitation of, sustained juvenile petition for, or
22 conviction of two or more of the following offenses, provided at
23least one of these offenses occurred after the effective date of this
24chapter and the last of those offenses occurred within three years
25after a prior offense, and the offenses were committed on separate
26occasions, or by two or more persons:

27(1) Assault with a deadly weapon or by means of force likely
28to produce great bodily injury, as defined in Section 245.

29(2) Robbery, as defined in Chapter 4 (commencing with Section
30211) of Title 8 of Part 1.

31(3) Unlawful homicide or manslaughter, as defined in Chapter
321 (commencing with Section 187) of Title 8 of Part 1.

33(4) The sale, possession for sale, transportation, manufacture,
34offer for sale, or offer to manufacture controlled substances as
35 defined in Sections 11054, 11055, 11056, 11057, and 11058 of
36the Health and Safety Code.

37(5) Shooting at an inhabited dwelling or occupied motor vehicle,
38as defined in Section 246.

39(6) Discharging or permitting the discharge of a firearm from
40a motor vehicle, as defined in subdivisions (a) and (b) of Section
P10   112034 until January 1, 2012, and, on or after that date, subdivisions
2(a) and (b) of Section 26100.

3(7) Arson, as defined in Chapter 1 (commencing with Section
4450) of Title 13.

5(8) The intimidation of witnesses and victims, as defined in
6Section 136.1.

7(9) Grand theft, as defined in subdivision (a) or (c) of Section
8487.

9(10) Grand theft of any firearm, vehicle, trailer, or vessel.

10(11) Burglary, as defined in Section 459.

11(12) Rape, as defined in Section 261.

12(13) Looting, as defined in Section 463.

13(14) Money laundering, as defined in Section 186.10.

14(15) Kidnapping, as defined in Section 207.

15(16) Mayhem, as defined in Section 203.

16(17) Aggravated mayhem, as defined in Section 205.

17(18) Torture, as defined in Section 206.

18(19) Felony extortion, as defined in Sections 518 and 520.

19(20) Felony vandalism, as defined in paragraph (1) of
20subdivision (b) of Section 594.

21(21) Carjacking, as defined in Section 215.

22(22) The sale, delivery, or transfer of a firearm, as defined in
23Section 12072 until January 1, 2012, and, on or after that date,
24Article 1 (commencing with Section 27500) of Chapter 4 of
25Division 6 of Title 4 of Part 6.

26(23) Possession of a pistol, revolver, or other firearm capable
27of being concealed upon the person in violation of paragraph (1)
28of subdivision (a) of Section 12101 until January 1, 2012, and, on
29or after that date, Section 29610.

30(24) Threats to commit crimes resulting in death or great bodily
31 injury, as defined in Section 422.

32(25) Theft and unlawful taking or driving of a vehicle, as defined
33in Section 10851 of the Vehicle Code.

34(26) Felony theft of an access card or account information, as
35defined in Section 484e.

36(27) Counterfeiting, designing, using, or attempting to use an
37access card, as defined in Section 484f.

38(28) Felony fraudulent use of an access card or account
39information, as defined in Section 484g.

P11   1(29) Unlawful use of personal identifying information to obtain
2credit, goods, services, or medical information, as defined in
3Section 530.5.

4(30) Wrongfully obtaining Department of Motor Vehicles
5 documentation, as defined in Section 529.7.

6(31) Prohibited possession of a firearm in violation of Section
712021 until January 1, 2012, and, on or after that date, Chapter 2
8(commencing with Section 29800) of Division 9 of Title 4 of Part
96.

10(32) Carrying a concealed firearm in violation of Section 12025
11until January 1, 2012, and, on or after that date, Section 25400.

12(33) Carrying a loaded firearm in violation of Section 12031
13until January 1, 2012, and, on or after that date, Section 25850.

14(f) As used in this chapter, “criminal street gang” means any
15ongoing organization, association, or group of three or more
16persons, whether formal or informal, having as one of its primary
17activities the commission of one or more of the criminal acts
18enumerated in paragraphs (1) to (25), inclusive, or (31) to (33),
19inclusive, of subdivision (e), having a common name or common
20identifying sign or symbol, and whose members individually or
21collectively engage in or have engaged in a pattern of criminal
22gang activity.

23(g) Notwithstanding any other law, the court may strike the
24additional punishment for the enhancements provided in this
25section or refuse to impose the minimum jail sentence for
26misdemeanors in an unusual case where the interests of justice
27would best be served, if the court specifies on the record and enters
28into the minutes the circumstances indicating that the interests of
29justice would best be served by that disposition.

30(h) Notwithstanding any other provision of law, for each person
31committed to thebegin insert Department of Corrections and Rehabilitation,end insert
32 Division of Juvenile Facilities for a conviction pursuant to
33subdivision (a) or (b) of this section, the offense shall be deemed
34one for which the state shall pay the rate of 100 percent of the per
35capita institutional cost of thebegin insert Department of Corrections and
36Rehabilitation,end insert
Division of Juvenile Facilities, pursuant to Section
37912.5 of the Welfare and Institutions Code.

38(i) In order to secure a conviction or sustain a juvenile petition,
39pursuant to subdivision (a) it is not necessary for the prosecution
40to prove that the person devotes all, or a substantial part, of his or
P12   1her time or efforts to the criminal street gang, nor is it necessary
2to prove that the person is a member of the criminal street gang.
3Active participation in the criminal street gang is all that is
4required.

5(j) A pattern of gang activity may be shown by the commission
6of one or more of the offenses enumerated in paragraphs (26) to
7(30), inclusive, of subdivision (e), and the commission of one or
8more of the offenses enumerated in paragraphs (1) to (25),
9inclusive, or (31) to (33), inclusive, of subdivision (e). A pattern
10of gang activity cannot be established solely by proof of
11commission of offenses enumerated in paragraphs (26) to (30),
12inclusive, of subdivision (e), alone.

13(k) This section shall become operative on January 1, 2017.

14

SEC. 3.  

Section 186.33 of the Penal Code, as amended by
15Section 3 of Chapter 361 of the Statutes of 2011, is amended to
16read:

17

186.33.  

(a) Any person required to register pursuant to Section
18186.30 who knowingly violates any of its provisions is guilty of
19a misdemeanor.

20(b) (1) Any person who knowingly fails to register pursuant to
21Section 186.30 and is subsequently convicted of, or any person
22for whom a petition is subsequently sustained for a violation of,
23any of the offenses specified in Section 186.30, shall be punished
24by an additional term of imprisonment in the state prison for 16
25months, or two or three years. The court shall select the sentence
26enhancement which, in the court’s discretion, best serves the
27interests of justice and shall state the reasons for its choice on the
28record at the time of sentencing in accordance with the provisions
29of subdivision (d) of Section 1170.1.

30(2) The existence of any fact bringing a person under this
31subdivision shall be alleged in the information, indictment, or
32petition, and be either admitted by the defendant or minor in open
33court, or found to be true or not true by the trier of fact.

34(c) This section shall remain in effect only until January 1, 2017,
35and as of that date is repealed, unless a later enacted statute, that
36is enacted before January 1, 2017, deletes or extends that date.

37

SEC. 4.  

Section 186.33 of the Penal Code, as amended by
38Section 4 of Chapter 361 of the Statutes of 2011, is amended to
39read:

P13   1

186.33.  

(a) Any person required to register pursuant to Section
2186.30 who knowingly violates any of its provisions is guilty of
3a misdemeanor.

4(b) (1) Any person who knowingly fails to register pursuant to
5Section 186.30 and is subsequently convicted of, or any person
6for whom a petition is subsequently sustained for a violation of,
7any of the offenses specified in Section 186.30, shall be punished
8by an additional term of imprisonment in the state prison for 16
9months, or two or three years. The court shall order imposition of
10the middle term unless there are circumstances in aggravation or
11mitigation. The court shall state its reasons for the enhancement
12choice on the record at the time of sentencing.

13(2) The existence of any fact bringing a person under this
14subdivision shall be alleged in the information, indictment, or
15petition, and be either admitted by the defendant or minor in open
16court, or found to be true or not true by the trier of fact.

17(c) This section shall become operative on January 1, 2017.

18

SEC. 5.  

Section 1170 of the Penal Code, as amended by Section
191 of Chapter 828 of the Statutes of 2012, is amended to read:

20

1170.  

(a) (1) The Legislature finds and declares that the
21purpose of imprisonment for crime is punishment. This purpose
22is best served by terms proportionate to the seriousness of the
23offense with provision for uniformity in the sentences of offenders
24committing the same offense under similar circumstances. The
25Legislature further finds and declares that the elimination of
26disparity and the provision of uniformity of sentences can best be
27achieved by determinate sentences fixed by statute in proportion
28to the seriousness of the offense as determined by the Legislature
29to be imposed by the court with specified discretion.

30(2) Notwithstanding paragraph (1), the Legislature further finds
31and declares that programs should be available for inmates,
32 including, but not limited to, educational programs, that are
33designed to prepare nonviolent felony offenders for successful
34reentry into the community. The Legislature encourages the
35development of policies and programs designed to educate and
36rehabilitate nonviolent felony offenders. In implementing this
37section, the Department of Corrections and Rehabilitation is
38encouraged to give priority enrollment in programs to promote
39successful return to the community to an inmate with a short
P14   1remaining term of commitment and a release date that would allow
2him or her adequate time to complete the program.

3(3) In any case in which the punishment prescribed by statute
4for a person convicted of a public offense is a term of imprisonment
5in the state prison of any specification of three time periods, the
6court shall sentence the defendant to one of the terms of
7imprisonment specified unless the convicted person is given any
8other disposition provided by law, including a fine, jail, probation,
9or the suspension of imposition or execution of sentence or is
10sentenced pursuant to subdivision (b) of Section 1168 because he
11or she had committed his or her crime prior to July 1, 1977. In
12sentencing the convicted person, the court shall apply the
13sentencing rules of the Judicial Council. The court, unless it
14determines that there are circumstances in mitigation of the
15punishment prescribed, shall also impose any other term that it is
16required by law to impose as an additional term. Nothing in this
17article shall affect any provision of law that imposes the death
18penalty, that authorizes or restricts the granting of probation or
19suspending the execution or imposition of sentence, or expressly
20provides for imprisonment in the state prison for life, except as
21provided in paragraph (2) of subdivision (d). In any case in which
22the amount of preimprisonment credit under Section 2900.5 or any
23other provision of law is equal to or exceeds any sentence imposed
24pursuant to this chapter, the entire sentence shall be deemed to
25have been served and the defendant shall not be actually delivered
26to the custody of the secretary. The court shall advise the defendant
27that he or she shall serve a period of parole and order the defendant
28to report to the parole office closest to the defendant’s last legal
29residence, unless the in-custody credits equal the total sentence,
30including both confinement time and the period of parole. The
31sentence shall be deemed a separate prior prison term under Section
32667.5, and a copy of the judgment and other necessary
33documentation shall be forwarded to the secretary.

34(b) When a judgment of imprisonment is to be imposed and the
35statute specifies three possible terms, the choice of the appropriate
36term shall rest within the sound discretion of the court. At least
37four days prior to the time set for imposition of judgment, either
38party or the victim, or the family of the victim if the victim is
39deceased, may submit a statement in aggravation or mitigation. In
40determining the appropriate term, the court may consider the record
P15   1in the case, the probation officer’s report, other reports, including
2reports received pursuant to Section 1203.03, and statements in
3aggravation or mitigation submitted by the prosecution, the
4defendant, or the victim, or the family of the victim if the victim
5is deceased, and any further evidence introduced at the sentencing
6hearing. The court shall select the term which, in the court’s
7discretion, best serves the interests of justice. The court shall set
8forth on the record the reasons for imposing the term selected and
9the court may not impose an upper term by using the fact of any
10enhancement upon which sentence is imposed under any provision
11of law. A term of imprisonment shall not be specified if imposition
12of sentence is suspended.

13(c) The court shall state the reasons for its sentence choice on
14the record at the time of sentencing. The court shall also inform
15the defendant that as part of the sentence after expiration of the
16term he or she may be on parole for a period as provided in Section
173000.

18(d) (1) When a defendant subject to this section or subdivision
19(b) of Section 1168 has been sentenced to be imprisoned in the
20state prison and has been committed to the custody of the secretary,
21the court may, within 120 days of the date of commitment on its
22own motion, or at any time upon the recommendation of the
23secretary or the Board of Parole Hearings, recall the sentence and
24commitment previously ordered and resentence the defendant in
25the same manner as if he or she had not previously been sentenced,
26provided the new sentence, if any, is no greater than the initial
27sentence. The court resentencing under this subdivision shall apply
28the sentencing rules of the Judicial Council so as to eliminate
29disparity of sentences and to promote uniformity of sentencing.
30Credit shall be given for time served.

31(2) (A) (i) When a defendant who was under 18 years of age
32at the time of the commission of the offense for which the
33defendant was sentenced to imprisonment for life without the
34possibility of parole has served at least 15 years of that sentence,
35the defendant may submit to the sentencing court a petition for
36recall and resentencing.

37(ii) Notwithstanding clause (i), this paragraph shall not apply
38to defendants sentenced to life without parole for an offense where
39the defendant tortured, as described in Section 206, his or her
40victim or the victim was a public safety official, including any law
P16   1enforcement personnel mentioned in Chapter 4.5 (commencing
2with Section 830) of Title 3, or any firefighter as described in
3Section 245.1, as well as any other officer in any segment of law
4enforcement who is employed by the federal government, the state,
5or any of its political subdivisions.

6(B) The defendant shall file the original petition with the
7sentencing court. A copy of the petition shall be served on the
8agency that prosecuted the case. The petition shall include the
9defendant’s statement that he or she was under 18 years of age at
10the time of the crime and was sentenced to life in prison without
11the possibility of parole, the defendant’s statement describing his
12or her remorse and work towards rehabilitation, and the defendant’s
13statement that one of the following is true:

14(i) The defendant was convicted pursuant to felony murder or
15aiding and abetting murder provisions of law.

16(ii) The defendant does not have juvenile felony adjudications
17for assault or other felony crimes with a significant potential for
18personal harm to victims prior to the offense for which the sentence
19is being considered for recall.

20(iii) The defendant committed the offense with at least one adult
21codefendant.

22(iv) The defendant has performed acts that tend to indicate
23rehabilitation or the potential for rehabilitation, including, but not
24limited to, availing himself or herself of rehabilitative, educational,
25or vocational programs, if those programs have been available at
26his or her classification level and facility, using self-study for
27self-improvement, or showing evidence of remorse.

28(C) If any of the information required in subparagraph (B) is
29 missing from the petition, or if proof of service on the prosecuting
30agency is not provided, the court shall return the petition to the
31defendant and advise the defendant that the matter cannot be
32considered without the missing information.

33(D) A reply to the petition, if any, shall be filed with the court
34within 60 days of the date on which the prosecuting agency was
35served with the petition, unless a continuance is granted for good
36cause.

37(E) If the court finds by a preponderance of the evidence that
38the statements in the petition are true, the court shall hold a hearing
39to consider whether to recall the sentence and commitment
40previously ordered and to resentence the defendant in the same
P17   1manner as if the defendant had not previously been sentenced,
2provided that the new sentence, if any, is not greater than the initial
3sentence. Victims, or victim family members if the victim is
4deceased, shall retain the rights to participate in the hearing.

5(F) The factors that the court may consider when determining
6whether to recall and resentence include, but are not limited to,
7the following:

8(i) The defendant was convicted pursuant to felony murder or
9aiding and abetting murder provisions of law.

10(ii) The defendant does not have juvenile felony adjudications
11for assault or other felony crimes with a significant potential for
12personal harm to victims prior to the offense for which the sentence
13is being considered for recall.

14(iii) The defendant committed the offense with at least one adult
15codefendant.

16(iv) Prior to the offense for which the sentence is being
17considered for recall, the defendant had insufficient adult support
18or supervision and had suffered from psychological or physical
19trauma, or significant stress.

20(v) The defendant suffers from cognitive limitations due to
21mental illness, developmental disabilities, or other factors that did
22not constitute a defense, but influenced the defendant’s
23involvement in the offense.

24(vi) The defendant has performed acts that tend to indicate
25rehabilitation or the potential for rehabilitation, including, but not
26limited to, availing himself or herself of rehabilitative, educational,
27or vocational programs, if those programs have been available at
28his or her classification level and facility, using self-study for
29self-improvement, or showing evidence of remorse.

30(vii) The defendant has maintained family ties or connections
31with others through letter writing, calls, or visits, or has eliminated
32contact with individuals outside of prison who are currently
33involved with crime.

34(viii) The defendant has had no disciplinary actions for violent
35activities in the last five years in which the defendant was
36determined to be the aggressor.

37(G) The court shall have the discretion to recall the sentence
38and commitment previously ordered and to resentence the
39defendant in the same manner as if the defendant had not
40previously been sentenced, provided that the new sentence, if any,
P18   1is not greater than the initial sentence. The discretion of the court
2shall be exercised in consideration of the criteria in subparagraph
3(B). Victims, or victim family members if the victim is deceased,
4shall be notified of the resentencing hearing and shall retain their
5rights to participate in the hearing.

6(H) If the sentence is not recalled, the defendant may submit
7another petition for recall and resentencing to the sentencing court
8when the defendant has been committed to the custody of the
9department for at least 20 years. If recall and resentencing is not
10granted under that petition, the defendant may file another petition
11after having served 24 years. The final petition may be submitted,
12and the response to that petition shall be determined, during the
1325th year of the defendant’s sentence.

14(I) In addition to the criteria in subparagraph (F), the court may
15consider any other criteria that the court deems relevant to its
16decision, so long as the court identifies them on the record,
17provides a statement of reasons for adopting them, and states why
18the defendant does or does not satisfy the criteria.

19(J) This subdivision shall have retroactive application.

20(e) (1) Notwithstanding any other law and consistent with
21paragraph (1) of subdivision (a), if the secretary or the Board of
22Parole Hearings or both determine that a prisoner satisfies the
23criteria set forth in paragraph (2), the secretary or the board may
24recommend to the court that the prisoner’s sentence be recalled.

25(2) The court shall have the discretion to resentence or recall if
26the court finds that the facts described in subparagraphs (A) and
27(B) or subparagraphs (B) and (C) exist:

28(A) The prisoner is terminally ill with an incurable condition
29caused by an illness or disease that would produce death within
30six months, as determined by a physician employed by the
31department.

32(B) The conditions under which the prisoner would be released
33or receive treatment do not pose a threat to public safety.

34(C) The prisoner is permanently medically incapacitated with
35a medical condition that renders him or her permanently unable
36to perform activities of basic daily living, and results in the prisoner
37requiring 24-hour total care, including, but not limited to, coma,
38persistent vegetative state, brain death, ventilator-dependency, loss
39of control of muscular or neurological function, and that
40incapacitation did not exist at the time of the original sentencing.

P19   1The Board of Parole Hearings shall make findings pursuant to
2this subdivision before making a recommendation for resentence
3or recall to the court. This subdivision does not apply to a prisoner
4sentenced to death or a term of life without the possibility of parole.

5(3) Within 10 days of receipt of a positive recommendation by
6the secretary or the board, the court shall hold a hearing to consider
7whether the prisoner’s sentence should be recalled.

8(4) Any physician employed by the department who determines
9that a prisoner has six months or less to live shall notify the chief
10medical officer of the prognosis. If the chief medical officer
11concurs with the prognosis, he or she shall notify the warden.
12Within 48 hours of receiving notification, the warden or the
13warden’s representative shall notify the prisoner of the recall and
14resentencing procedures, and shall arrange for the prisoner to
15designate a family member or other outside agent to be notified
16as to the prisoner’s medical condition and prognosis, and as to the
17recall and resentencing procedures. If the inmate is deemed
18mentally unfit, the warden or the warden’s representative shall
19contact the inmate’s emergency contact and provide the information
20described in paragraph (2).

21(5) The warden or the warden’s representative shall provide the
22prisoner and his or her family member, agent, or emergency
23contact, as described in paragraph (4), updated information
24throughout the recall and resentencing process with regard to the
25prisoner’s medical condition and the status of the prisoner’s recall
26and resentencing proceedings.

27(6) Notwithstanding any other provisions of this section, the
28prisoner or his or her family member or designee may
29independently request consideration for recall and resentencing
30by contacting the chief medical officer at the prison or the
31secretary. Upon receipt of the request, the chief medical officer
32and the warden or the warden’s representative shall follow the
33procedures described in paragraph (4). If the secretary determines
34that the prisoner satisfies the criteria set forth in paragraph (2), the
35secretary or board may recommend to the court that the prisoner’s
36sentence be recalled. The secretary shall submit a recommendation
37 for release within 30 days in the case of inmates sentenced to
38determinate terms and, in the case of inmates sentenced to
39indeterminate terms, the secretary shall make a recommendation
40to the Board of Parole Hearings with respect to the inmates who
P20   1have applied under this section. The board shall consider this
2information and make an independent judgment pursuant to
3paragraph (2) and make findings related thereto before rejecting
4the request or making a recommendation to the court. This action
5shall be taken at the next lawfully noticed board meeting.

6(7) Any recommendation for recall submitted to the court by
7the secretary or the Board of Parole Hearings shall include one or
8more medical evaluations, a postrelease plan, and findings pursuant
9to paragraph (2).

10(8) If possible, the matter shall be heard before the same judge
11of the court who sentenced the prisoner.

12(9) If the court grants the recall and resentencing application,
13the prisoner shall be released by the department within 48 hours
14of receipt of the court’s order, unless a longer time period is agreed
15to by the inmate. At the time of release, the warden or the warden’s
16representative shall ensure that the prisoner has each of the
17following in his or her possession: a discharge medical summary,
18full medical records, state identification, parole medications, and
19all property belonging to the prisoner. After discharge, any
20additional records shall be sent to the prisoner’s forwarding
21address.

22(10) The secretary shall issue a directive to medical and
23correctional staff employed by the department that details the
24guidelines and procedures for initiating a recall and resentencing
25procedure. The directive shall clearly state that any prisoner who
26is given a prognosis of six months or less to live is eligible for
27recall and resentencing consideration, and that recall and
28resentencing procedures shall be initiated upon that prognosis.

29(f) Notwithstanding any other provision of this section, for
30purposes of paragraph (3) of subdivision (h), any allegation that
31a defendant is eligible for state prison due to a prior or current
32conviction, sentence enhancement, or because he or she is required
33to register as a sex offender shall not be subject to dismissal
34pursuant to Section 1385.

35(g) A sentence to state prison for a determinate term for which
36only one term is specified, is a sentence to state prison under this
37section.

38(h) (1) Except as provided in paragraph (3), a felony punishable
39pursuant to this subdivision where the term is not specified in the
P21   1underlying offense shall be punishable by a term of imprisonment
2in a county jail for 16 months, or two or three years.

3(2) Except as provided in paragraph (3), a felony punishable
4pursuant to this subdivision shall be punishable by imprisonment
5in a county jail for the term described in the underlying offense.

6(3) Notwithstanding paragraphs (1) and (2), where the defendant
7(A) has a prior or current felony conviction for a serious felony
8described in subdivision (c) of Section 1192.7 or a prior or current
9conviction for a violent felony described in subdivision (c) of
10Section 667.5, (B) has a prior felony conviction in another
11jurisdiction for an offense that has all the elements of a serious
12felony described in subdivision (c) of Section 1192.7 or a violent
13felony described in subdivision (c) of Section 667.5, (C) is required
14to register as a sex offender pursuant to Chapter 5.5 (commencing
15with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
16and as part of the sentence an enhancement pursuant to Section
17186.11 is imposed, an executed sentence for a felony punishable
18pursuant to this subdivision shall be served in state prison.

19(4) Nothing in this subdivision shall be construed to prevent
20other dispositions authorized by law, including pretrial diversion,
21deferred entry of judgment, or an order granting probation pursuant
22to Section 1203.1.

23(5) The court, when imposing a sentence pursuant to paragraph
24(1) or (2) of this subdivision, may commit the defendant to county
25jail as follows:

26(A) For a full term in custody as determined in accordance with
27the applicable sentencing law.

28(B) (i) For a term as determined in accordance with the
29applicable sentencing law, but suspend execution of a concluding
30portion of the term selected in the court’s discretion, during which
31time the defendant shall be supervised by the county probation
32officer in accordance with the terms, conditions, and procedures
33generally applicable to persons placed on probation, for the
34remaining unserved portion of the sentence imposed by the court.
35The period of supervision shall be mandatory, and may not be
36earlier terminated except by court order. Any proceeding to revoke
37or modify mandatory supervision under this subparagraph shall
38be conducted pursuant to either subdivisions (a) and (b) of Section
391203.2 or Section 1203.3. During the period when the defendant
40is under such supervision, unless in actual custody related to the
P22   1sentence imposed by the court, the defendant shall be entitled to
2only actual time credit against the term of imprisonment imposed
3by the court. Any time period which is suspended because a person
4has absconded shall not be credited toward the period of
5supervision.

6(ii) The portion of a defendant’s sentenced term during which
7time he or she is supervised by the county probation officer
8pursuant to this subparagraph shall be known as mandatory
9supervision.

10(6) The sentencing changes made by the act that added this
11subdivision shall be applied prospectively to any person sentenced
12on or after October 1, 2011.

13(i) This section shall remain in effect only until January 1, 2017,
14and as of that date is repealed, unless a later enacted statute, that
15is enacted before that date, deletes or extends that date.

begin delete
16

SEC. 6.  

Section 1170 of the Penal Code, as amended by Section
172 of Chapter 828 of the Statutes of 2012, is amended to read:

18

1170.  

(a) (1) The Legislature finds and declares that the
19purpose of imprisonment for crime is punishment. This purpose
20is best served by terms proportionate to the seriousness of the
21offense with provision for uniformity in the sentences of offenders
22committing the same offense under similar circumstances. The
23Legislature further finds and declares that the elimination of
24disparity and the provision of uniformity of sentences can best be
25achieved by determinate sentences fixed by statute in proportion
26to the seriousness of the offense as determined by the Legislature
27to be imposed by the court with specified discretion.

28(2) Notwithstanding paragraph (1), the Legislature further finds
29and declares that programs should be available for inmates,
30 including, but not limited to, educational programs, that are
31designed to prepare nonviolent felony offenders for successful
32reentry into the community. The Legislature encourages the
33development of policies and programs designed to educate and
34rehabilitate nonviolent felony offenders. In implementing this
35section, the Department of Corrections and Rehabilitation is
36encouraged to give priority enrollment in programs to promote
37successful return to the community to an inmate with a short
38remaining term of commitment and a release date that would allow
39him or her adequate time to complete the program.

P23   1(3) In any case in which the punishment prescribed by statute
2for a person convicted of a public offense is a term of imprisonment
3in the state prison of any specification of three time periods, the
4court shall sentence the defendant to one of the terms of
5imprisonment specified unless the convicted person is given any
6other disposition provided by law, including a fine, jail, probation,
7or the suspension of imposition or execution of sentence or is
8sentenced pursuant to subdivision (b) of Section 1168 because he
9or she had committed his or her crime prior to July 1, 1977. In
10sentencing the convicted person, the court shall apply the
11sentencing rules of the Judicial Council. The court, unless it
12determines that there are circumstances in mitigation of the
13punishment prescribed, shall also impose any other term that it is
14required by law to impose as an additional term. Nothing in this
15article shall affect any provision of law that imposes the death
16penalty, that authorizes or restricts the granting of probation or
17suspending the execution or imposition of sentence, or expressly
18provides for imprisonment in the state prison for life, except as
19provided in paragraph (2) of subdivision (d). In any case in which
20the amount of preimprisonment credit under Section 2900.5 or any
21other provision of law is equal to or exceeds any sentence imposed
22pursuant to this chapter, the entire sentence shall be deemed to
23have been served and the defendant shall not be actually delivered
24to the custody of the secretary. The court shall advise the defendant
25that he or she shall serve a period of parole and order the defendant
26to report to the parole office closest to the defendant’s last legal
27residence, unless the in-custody credits equal the total sentence,
28including both confinement time and the period of parole. The
29sentence shall be deemed a separate prior prison term under Section
30667.5, and a copy of the judgment and other necessary
31documentation shall be forwarded to the secretary.

32(b) When a judgment of imprisonment is to be imposed and the
33statute specifies three possible terms, the court shall order
34imposition of the middle term, unless there are circumstances in
35aggravation or mitigation of the crime. At least four days prior to
36the time set for imposition of judgment, either party or the victim,
37or the family of the victim if the victim is deceased, may submit
38a statement in aggravation or mitigation to dispute facts in the
39record or the probation officer’s report, or to present additional
40facts. In determining whether there are circumstances that justify
P24   1imposition of the upper or lower term, the court may consider the
2record in the case, the probation officer’s report, other reports,
3including reports received pursuant to Section 1203.03, and
4statements in aggravation or mitigation submitted by the
5prosecution, the defendant, or the victim, or the family of the victim
6if the victim is deceased, and any further evidence introduced at
7the sentencing hearing. The court shall set forth on the record the
8facts and reasons for imposing the upper or lower term. The court
9may not impose an upper term by using the fact of any
10enhancement upon which sentence is imposed under any provision
11of law. A term of imprisonment shall not be specified if imposition
12of sentence is suspended.

13(c) The court shall state the reasons for its sentence choice on
14the record at the time of sentencing. The court shall also inform
15the defendant that as part of the sentence after expiration of the
16term he or she may be on parole for a period as provided in Section
173000.

18(d) (1) When a defendant subject to this section or subdivision
19(b) of Section 1168 has been sentenced to be imprisoned in the
20state prison and has been committed to the custody of the secretary,
21the court may, within 120 days of the date of commitment on its
22own motion, or at any time upon the recommendation of the
23secretary or the Board of Parole Hearings, recall the sentence and
24commitment previously ordered and resentence the defendant in
25the same manner as if he or she had not previously been sentenced,
26provided the new sentence, if any, is no greater than the initial
27sentence. The court resentencing under this subdivision shall apply
28the sentencing rules of the Judicial Council so as to eliminate
29disparity of sentences and to promote uniformity of sentencing.
30Credit shall be given for time served.

31(2) (A) (i) When a defendant who was under 18 years of age
32at the time of the commission of the offense for which the
33defendant was sentenced to imprisonment for life without the
34possibility of parole has served at least 15 years of that sentence,
35the defendant may submit to the sentencing court a petition for
36recall and resentencing.

37(ii) Notwithstanding clause (i), this paragraph shall not apply
38to defendants sentenced to life without parole for an offense where
39the defendant tortured, as described in Section 206, his or her
40victim or the victim was a public safety official, including any law
P25   1enforcement personnel mentioned in Chapter 4.5 (commencing
2with Section 830) of Title 3, or any firefighter as described in
3Section 245.1, as well as any other officer in any segment of law
4enforcement who is employed by the federal government, the state,
5or any of its political subdivisions.

6(B) The defendant shall file the original petition with the
7sentencing court. A copy of the petition shall be served on the
8agency that prosecuted the case. The petition shall include the
9defendant’s statement that he or she was under 18 years of age at
10the time of the crime and was sentenced to life in prison without
11the possibility of parole, the defendant’s statement describing his
12or her remorse and work towards rehabilitation, and the defendant’s
13statement that one of the following is true:

14(i) The defendant was convicted pursuant to felony murder or
15aiding and abetting murder provisions of law.

16(ii) The defendant does not have juvenile felony adjudications
17for assault or other felony crimes with a significant potential for
18personal harm to victims prior to the offense for which the sentence
19is being considered for recall.

20(iii) The defendant committed the offense with at least one adult
21codefendant.

22(iv) The defendant has performed acts that tend to indicate
23rehabilitation or the potential for rehabilitation, including, but not
24limited to, availing himself or herself of rehabilitative, educational,
25or vocational programs, if those programs have been available at
26his or her classification level and facility, using self-study for
27self-improvement, or showing evidence of remorse.

28(C) If any of the information required in subparagraph (B) is
29missing from the petition, or if proof of service on the prosecuting
30agency is not provided, the court shall return the petition to the
31defendant and advise the defendant that the matter cannot be
32considered without the missing information.

33(D) A reply to the petition, if any, shall be filed with the court
34within 60 days of the date on which the prosecuting agency was
35served with the petition, unless a continuance is granted for good
36cause.

37(E) If the court finds by a preponderance of the evidence that
38the statements in the petition are true, the court shall hold a hearing
39to consider whether to recall the sentence and commitment
40previously ordered and to resentence the defendant in the same
P26   1manner as if the defendant had not previously been sentenced,
2provided that the new sentence, if any, is not greater than the initial
3sentence. Victims, or victim family members if the victim is
4 deceased, shall retain the rights to participate in the hearing.

5(F) The factors that the court may consider when determining
6whether to recall and resentence include, but are not limited to,
7the following:

8(i) The defendant was convicted pursuant to felony murder or
9aiding and abetting murder provisions of law.

10(ii) The defendant does not have juvenile felony adjudications
11for assault or other felony crimes with a significant potential for
12personal harm to victims prior to the offense for which the sentence
13is being considered for recall.

14(iii) The defendant committed the offense with at least one adult
15codefendant.

16(iv) Prior to the offense for which the sentence is being
17considered for recall, the defendant had insufficient adult support
18or supervision and had suffered from psychological or physical
19trauma, or significant stress.

20(v) The defendant suffers from cognitive limitations due to
21mental illness, developmental disabilities, or other factors that did
22not constitute a defense, but influenced the defendant’s
23involvement in the offense.

24(vi) The defendant has performed acts that tend to indicate
25rehabilitation or the potential for rehabilitation, including, but not
26limited to, availing himself or herself of rehabilitative, educational,
27or vocational programs, if those programs have been available at
28his or her classification level and facility, using self-study for
29self-improvement, or showing evidence of remorse.

30(vii) The defendant has maintained family ties or connections
31with others through letter writing, calls, or visits, or has eliminated
32contact with individuals outside of prison who are currently
33involved with crime.

34(viii) The defendant has had no disciplinary actions for violent
35activities in the last five years in which the defendant was
36determined to be the aggressor.

37(G) The court shall have the discretion to recall the sentence
38and commitment previously ordered and to resentence the
39defendant in the same manner as if the defendant had not
40previously been sentenced, provided that the new sentence, if any,
P27   1is not greater than the initial sentence. The discretion of the court
2shall be exercised in consideration of the criteria in subparagraph
3(B). Victims, or victim family members if the victim is deceased,
4shall be notified of the resentencing hearing and shall retain their
5rights to participate in the hearing.

6(H) If the sentence is not recalled, the defendant may submit
7another petition for recall and resentencing to the sentencing court
8when the defendant has been committed to the custody of the
9department for at least 20 years. If recall and resentencing is not
10granted under that petition, the defendant may file another petition
11after having served 24 years. The final petition may be submitted,
12and the response to that petition shall be determined, during the
1325th year of the defendant’s sentence.

14(I) In addition to the criteria in subparagraph (F), the court may
15consider any other criteria that the court deems relevant to its
16decision, so long as the court identifies them on the record,
17provides a statement of reasons for adopting them, and states why
18the defendant does or does not satisfy the criteria.

19(J) This subdivision shall have retroactive application.

20(e) (1) Notwithstanding any other law and consistent with
21paragraph (1) of subdivision (a), if the secretary or the Board of
22Parole Hearings or both determine that a prisoner satisfies the
23criteria set forth in paragraph (2), the secretary or the board may
24recommend to the court that the prisoner’s sentence be recalled.

25(2) The court shall have the discretion to resentence or recall if
26the court finds that the facts described in subparagraphs (A) and
27(B) or subparagraphs (B) and (C) exist:

28(A) The prisoner is terminally ill with an incurable condition
29caused by an illness or disease that would produce death within
30six months, as determined by a physician employed by the
31department.

32(B) The conditions under which the prisoner would be released
33or receive treatment do not pose a threat to public safety.

34(C) The prisoner is permanently medically incapacitated with
35a medical condition that renders him or her permanently unable
36to perform activities of basic daily living, and results in the prisoner
37requiring 24-hour total care, including, but not limited to, coma,
38persistent vegetative state, brain death, ventilator-dependency, loss
39of control of muscular or neurological function, and that
40incapacitation did not exist at the time of the original sentencing.

P28   1The Board of Parole Hearings shall make findings pursuant to
2this subdivision before making a recommendation for resentence
3or recall to the court. This subdivision does not apply to a prisoner
4sentenced to death or a term of life without the possibility of parole.

5(3) Within 10 days of receipt of a positive recommendation by
6the secretary or the board, the court shall hold a hearing to consider
7whether the prisoner’s sentence should be recalled.

8(4) Any physician employed by the department who determines
9that a prisoner has six months or less to live shall notify the chief
10medical officer of the prognosis. If the chief medical officer
11concurs with the prognosis, he or she shall notify the warden.
12Within 48 hours of receiving notification, the warden or the
13warden’s representative shall notify the prisoner of the recall and
14resentencing procedures, and shall arrange for the prisoner to
15designate a family member or other outside agent to be notified
16as to the prisoner’s medical condition and prognosis, and as to the
17recall and resentencing procedures. If the inmate is deemed
18mentally unfit, the warden or the warden’s representative shall
19contact the inmate’s emergency contact and provide the information
20described in paragraph (2).

21(5) The warden or the warden’s representative shall provide the
22prisoner and his or her family member, agent, or emergency
23contact, as described in paragraph (4), updated information
24throughout the recall and resentencing process with regard to the
25prisoner’s medical condition and the status of the prisoner’s recall
26and resentencing proceedings.

27(6) Notwithstanding any other provisions of this section, the
28prisoner or his or her family member or designee may
29independently request consideration for recall and resentencing
30by contacting the chief medical officer at the prison or the
31secretary. Upon receipt of the request, the chief medical officer
32and the warden or the warden’s representative shall follow the
33procedures described in paragraph (4). If the secretary determines
34that the prisoner satisfies the criteria set forth in paragraph (2), the
35secretary or board may recommend to the court that the prisoner’s
36sentence be recalled. The secretary shall submit a recommendation
37for release within 30 days in the case of inmates sentenced to
38determinate terms and, in the case of inmates sentenced to
39indeterminate terms, the secretary shall make a recommendation
40to the Board of Parole Hearings with respect to the inmates who
P29   1have applied under this section. The board shall consider this
2information and make an independent judgment pursuant to
3paragraph (2) and make findings related thereto before rejecting
4the request or making a recommendation to the court. This action
5shall be taken at the next lawfully noticed board meeting.

6(7) Any recommendation for recall submitted to the court by
7the secretary or the Board of Parole Hearings shall include one or
8more medical evaluations, a postrelease plan, and findings pursuant
9to paragraph (2).

10(8) If possible, the matter shall be heard before the same judge
11of the court who sentenced the prisoner.

12(9) If the court grants the recall and resentencing application,
13the prisoner shall be released by the department within 48 hours
14of receipt of the court’s order, unless a longer time period is agreed
15to by the inmate. At the time of release, the warden or the warden’s
16representative shall ensure that the prisoner has each of the
17following in his or her possession: a discharge medical summary,
18full medical records, state identification, parole medications, and
19all property belonging to the prisoner. After discharge, any
20additional records shall be sent to the prisoner’s forwarding
21address.

22(10) The secretary shall issue a directive to medical and
23correctional staff employed by the department that details the
24guidelines and procedures for initiating a recall and resentencing
25procedure. The directive shall clearly state that any prisoner who
26is given a prognosis of six months or less to live is eligible for
27recall and resentencing consideration, and that recall and
28resentencing procedures shall be initiated upon that prognosis.

29(f) Notwithstanding any other provision of this section, for
30purposes of paragraph (3) of subdivision (h), any allegation that
31a defendant is eligible for state prison due to a prior or current
32conviction, sentence enhancement, or because he or she is required
33to register as a sex offender shall not be subject to dismissal
34pursuant to Section 1385.

35(g) A sentence to state prison for a determinate term for which
36only one term is specified, is a sentence to state prison under this
37section.

38(h) (1) Except as provided in paragraph (3), a felony punishable
39pursuant to this subdivision where the term is not specified in the
P30   1underlying offense shall be punishable by a term of imprisonment
2in a county jail for 16 months, or two or three years.

3(2) Except as provided in paragraph (3), a felony punishable
4pursuant to this subdivision shall be punishable by imprisonment
5in a county jail for the term described in the underlying offense.

6(3) Notwithstanding paragraphs (1) and (2), where the defendant
7(A) has a prior or current felony conviction for a serious felony
8described in subdivision (c) of Section 1192.7 or a prior or current
9conviction for a violent felony described in subdivision (c) of
10Section 667.5, (B) has a prior felony conviction in another
11jurisdiction for an offense that has all the elements of a serious
12felony described in subdivision (c) of Section 1192.7 or a violent
13felony described in subdivision (c) of Section 667.5, (C) is required
14to register as a sex offender pursuant to Chapter 5.5 (commencing
15with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
16and as part of the sentence an enhancement pursuant to Section
17186.11 is imposed, an executed sentence for a felony punishable
18pursuant to this subdivision shall be served in state prison.

19(4) Nothing in this subdivision shall be construed to prevent
20other dispositions authorized by law, including pretrial diversion,
21deferred entry of judgment, or an order granting probation pursuant
22to Section 1203.1.

23(5) The court, when imposing a sentence pursuant to paragraph
24(1) or (2) of this subdivision, may commit the defendant to county
25jail as follows:

26(A) For a full term in custody as determined in accordance with
27the applicable sentencing law.

28(B) (i) For a term as determined in accordance with the
29applicable sentencing law, but suspend execution of a concluding
30portion of the term selected in the court’s discretion, during which
31time the defendant shall be supervised by the county probation
32officer in accordance with the terms, conditions, and procedures
33generally applicable to persons placed on probation, for the
34remaining unserved portion of the sentence imposed by the court.
35The period of supervision shall be mandatory, and may not be
36earlier terminated except by court order. Any proceeding to revoke
37or modify mandatory supervision under this subparagraph shall
38be conducted pursuant to either subdivisions (a) and (b) of Section
391203.2 or Section 1203.3. During the period when the defendant
40is under such supervision, unless in actual custody related to the
P31   1sentence imposed by the court, the defendant shall be entitled to
2only actual time credit against the term of imprisonment imposed
3by the court. Any time period which is suspended because a person
4has absconded shall not be credited toward the period of
5supervision.

6(ii) The portion of a defendant’s sentenced term during which
7time he or she is supervised by the county probation officer
8pursuant to this subparagraph shall be known as mandatory
9supervision.

10(6) The sentencing changes made by the act that added this
11subdivision shall be applied prospectively to any person sentenced
12on or after October 1, 2011.

13(i) This section shall become operative on January 1, 2017.

end delete
14begin insert

begin insertSEC. 6.end insert  

end insert

begin insertSection 1170 of the end insertbegin insertPenal Codeend insertbegin insert, as amended by Section
156 of Chapter 32 of the Statutes of 2013, is amended to read:end insert

16

1170.  

(a) (1) The Legislature finds and declares that the
17purpose of imprisonment for crime is punishment. This purpose
18is best served by terms proportionate to the seriousness of the
19offense with provision for uniformity in the sentences of offenders
20committing the same offense under similar circumstances. The
21Legislature further finds and declares that the elimination of
22disparity and the provision of uniformity of sentences can best be
23achieved by determinate sentences fixed by statute in proportion
24to the seriousness of the offense as determined by the Legislature
25to be imposed by the court with specified discretion.

26(2) Notwithstanding paragraph (1), the Legislature further finds
27and declares that programs should be available for inmates,
28 including, but not limited to, educational programs, that are
29designed to prepare nonviolent felony offenders for successful
30reentry into the community. The Legislature encourages the
31development of policies and programs designed to educate and
32rehabilitate nonviolent felony offenders. In implementing this
33section, the Department of Corrections and Rehabilitation is
34encouraged to give priority enrollment in programs to promote
35successful return to the community to an inmate with a short
36remaining term of commitment and a release date that would allow
37him or her adequate time to complete the program.

38(3) In any case in which the punishment prescribed by statute
39for a person convicted of a public offense is a term of imprisonment
40in the state prison of any specification of three time periods, the
P32   1court shall sentence the defendant to one of the terms of
2imprisonment specified unless the convicted person is given any
3other disposition provided by law, including a fine, jail, probation,
4or the suspension of imposition or execution of sentence or is
5sentenced pursuant to subdivision (b) of Section 1168 because he
6or she had committed his or her crime prior to July 1, 1977. In
7sentencing the convicted person, the court shall apply the
8sentencing rules of the Judicial Council. The court, unless it
9determines that there are circumstances in mitigation of the
10punishment prescribed, shall also impose any other term that it is
11required by law to impose as an additional term. Nothing in this
12article shall affect any provision of law that imposes the death
13penalty, that authorizes or restricts the granting of probation or
14suspending the execution or imposition of sentence, or expressly
15provides for imprisonment in the state prison for life, except as
16provided in paragraph (2) of subdivision (d). In any case in which
17the amount of preimprisonment credit under Section 2900.5 or any
18other provision of law is equal to or exceeds any sentence imposed
19pursuant to this chapter, the entire sentence shall be deemed to
20have been served and the defendant shall not be actually delivered
21to the custody of the secretary. The court shall advise the defendant
22that he or she shall serve a period of parole and order the defendant
23to report to the parole office closest to the defendant’s last legal
24residence, unless the in-custody credits equal the total sentence,
25including both confinement time and the period of parole. The
26sentence shall be deemed a separate prior prison term under Section
27667.5, and a copy of the judgment and other necessary
28documentation shall be forwarded to the secretary.

29(b) When a judgment of imprisonment is to be imposed and the
30statute specifies three possible terms, the court shall order
31imposition of the middle term, unless there are circumstances in
32aggravation or mitigation of the crime. At least four days prior to
33the time set for imposition of judgment, either party or the victim,
34or the family of the victim if the victim is deceased, may submit
35a statement in aggravation or mitigation to dispute facts in the
36record or the probation officer’s report, or to present additional
37facts. In determining whether there are circumstances that justify
38imposition of the upper or lower term, the court may consider the
39record in the case, the probation officer’s report, other reports,
40including reports received pursuant to Section 1203.03, and
P33   1statements in aggravation or mitigation submitted by the
2prosecution, the defendant, or the victim, or the family of the victim
3if the victim is deceased, and any further evidence introduced at
4the sentencing hearing. The court shall set forth on the record the
5facts and reasons for imposing the upper or lower term. The court
6may not impose an upper term by using the fact of any
7enhancement upon which sentence is imposed under any provision
8of law. A term of imprisonment shall not be specified if imposition
9of sentence is suspended.

10(c) The court shall state the reasons for its sentence choice on
11the record at the time of sentencing. The court shall also inform
12the defendant that as part of the sentence after expiration of the
13term he or she may be on parole for a period as provided in Section
143000.

15(d) (1) When a defendant subject to this section or subdivision
16(b) of Section 1168 has been sentenced to be imprisoned in the
17state prison and has been committed to the custody of the secretary,
18the court may, within 120 days of the date of commitment on its
19own motion, or at any time upon the recommendation of the
20secretary or the Board of Parole Hearings, recall the sentence and
21commitment previously ordered and resentence the defendant in
22the same manner as if he or she had not previously been sentenced,
23provided the new sentence, if any, is no greater than the initial
24sentence. The court resentencing under this subdivision shall apply
25the sentencing rules of the Judicial Council so as to eliminate
26disparity of sentences and to promote uniformity of sentencing.
27Credit shall be given for time served.

28(2) (A) (i) When a defendant who was under 18 years of age
29at the time of the commission of the offense for which the
30defendant was sentenced to imprisonment for life without the
31possibility of parole has served at least 15 years of that sentence,
32the defendant may submit to the sentencing court a petition for
33recall and resentencing.

34(ii) Notwithstanding clause (i), this paragraph shall not apply
35to defendants sentenced to life without parole for an offense where
36the defendant tortured, as described in Section 206, his or her
37victim or the victim was a public safety official, including any law
38enforcement personnel mentioned in Chapter 4.5 (commencing
39with Section 830) of Title 3, or any firefighter as described in
40Section 245.1, as well as any other officer in any segment of law
P34   1enforcement who is employed by the federal government, the state,
2or any of its political subdivisions.

3(B) The defendant shall file the original petition with the
4sentencing court. A copy of the petition shall be served on the
5agency that prosecuted the case. The petition shall include the
6defendant’s statement that he or she was under 18 years of age at
7the time of the crime and was sentenced to life in prison without
8the possibility of parole, the defendant’s statement describing his
9or her remorse and work towards rehabilitation, and the defendant’s
10statement that one of the following is true:

11(i) The defendant was convicted pursuant to felony murder or
12aiding and abetting murder provisions of law.

13(ii) The defendant does not have juvenile felony adjudications
14for assault or other felony crimes with a significant potential for
15personal harm to victims prior to the offense for which the sentence
16is being considered for recall.

17(iii) The defendant committed the offense with at least one adult
18codefendant.

19(iv) The defendant has performed acts that tend to indicate
20rehabilitation or the potential for rehabilitation, including, but not
21limited to, availing himself or herself of rehabilitative, educational,
22or vocational programs, if those programs have been available at
23his or her classification level and facility, using self-study for
24self-improvement, or showing evidence of remorse.

25(C) If any of the information required in subparagraph (B) is
26missing from the petition, or if proof of service on the prosecuting
27agency is not provided, the court shall return the petition to the
28defendant and advise the defendant that the matter cannot be
29considered without the missing information.

30(D) A reply to the petition, if any, shall be filed with the court
31within 60 days of the date on which the prosecuting agency was
32served with the petition, unless a continuance is granted for good
33cause.

34(E) If the court finds by a preponderance of the evidence that
35the statements in the petition are true, the court shall hold a hearing
36to consider whether to recall the sentence and commitment
37previously ordered and to resentence the defendant in the same
38manner as if the defendant had not previously been sentenced,
39provided that the new sentence, if any, is not greater than the initial
P35   1sentence. Victims, or victim family members if the victim is
2 deceased, shall retain the rights to participate in the hearing.

3(F) The factors that the court may consider when determining
4whether to recall and resentence include, but are not limited to,
5the following:

6(i) The defendant was convicted pursuant to felony murder or
7aiding and abetting murder provisions of law.

8(ii) The defendant does not have juvenile felony adjudications
9for assault or other felony crimes with a significant potential for
10personal harm to victims prior to the offense for which the sentence
11is being considered for recall.

12(iii) The defendant committed the offense with at least one adult
13codefendant.

14(iv) Prior to the offense for which the sentence is being
15considered for recall, the defendant had insufficient adult support
16or supervision and had suffered from psychological or physical
17trauma, or significant stress.

18(v) The defendant suffers from cognitive limitations due to
19mental illness, developmental disabilities, or other factors that did
20not constitute a defense, but influenced the defendant’s
21involvement in the offense.

22(vi) The defendant has performed acts that tend to indicate
23rehabilitation or the potential for rehabilitation, including, but not
24limited to, availing himself or herself of rehabilitative, educational,
25or vocational programs, if those programs have been available at
26his or her classification level and facility, using self-study for
27self-improvement, or showing evidence of remorse.

28(vii) The defendant has maintained family ties or connections
29with others through letter writing, calls, or visits, or has eliminated
30contact with individuals outside of prison who are currently
31involved with crime.

32(viii) The defendant has had no disciplinary actions for violent
33activities in the last five years in which the defendant was
34determined to be the aggressor.

35(G) The court shall have the discretion to recall the sentence
36and commitment previously ordered and to resentence the
37defendant in the same manner as if the defendant had not
38previously been sentenced, provided that the new sentence, if any,
39is not greater than the initial sentence. The discretion of the court
40shall be exercised in consideration of the criteria in subparagraph
P36   1(B). Victims, or victim family members if the victim is deceased,
2shall be notified of the resentencing hearing and shall retain their
3rights to participate in the hearing.

4(H) If the sentence is not recalled, the defendant may submit
5another petition for recall and resentencing to the sentencing court
6when the defendant has been committed to the custody of the
7department for at least 20 years. If recall and resentencing is not
8granted under that petition, the defendant may file another petition
9after having served 24 years. The final petition may be submitted,
10and the response to that petition shall be determined, during the
1125th year of the defendant’s sentence.

12(I) In addition to the criteria in subparagraph (F), the court may
13consider any other criteria that the court deems relevant to its
14decision, so long as the court identifies them on the record,
15provides a statement of reasons for adopting them, and states why
16the defendant does or does not satisfy the criteria.

17(J) This subdivision shall have retroactive application.

18(e) (1) Notwithstanding any other law and consistent with
19paragraph (1) of subdivision (a), if the secretary or the Board of
20Parole Hearings or both determine that a prisoner satisfies the
21criteria set forth in paragraph (2), the secretary or the board may
22recommend to the court that the prisoner’s sentence be recalled.

23(2) The court shall have the discretion to resentence or recall if
24the court finds that the facts described in subparagraphs (A) and
25(B) or subparagraphs (B) and (C) exist:

26(A) The prisoner is terminally ill with an incurable condition
27caused by an illness or disease that would produce death within
28six months, as determined by a physician employed by the
29department.

30(B) The conditions under which the prisoner would be released
31or receive treatment do not pose a threat to public safety.

32(C) The prisoner is permanently medically incapacitated with
33a medical condition that renders him or her permanently unable
34to perform activities of basic daily living, and results in the prisoner
35requiring 24-hour total care, including, but not limited to, coma,
36persistent vegetative state, brain death, ventilator-dependency, loss
37of control of muscular or neurological function, and that
38incapacitation did not exist at the time of the original sentencing.

39The Board of Parole Hearings shall make findings pursuant to
40this subdivision before making a recommendation for resentence
P37   1or recall to the court. This subdivision does not apply to a prisoner
2sentenced to death or a term of life without the possibility of parole.

3(3) Within 10 days of receipt of a positive recommendation by
4the secretary or the board, the court shall hold a hearing to consider
5whether the prisoner’s sentence should be recalled.

6(4) Any physician employed by the department who determines
7that a prisoner has six months or less to live shall notify the chief
8medical officer of the prognosis. If the chief medical officer
9concurs with the prognosis, he or she shall notify the warden.
10Within 48 hours of receiving notification, the warden or the
11warden’s representative shall notify the prisoner of the recall and
12resentencing procedures, and shall arrange for the prisoner to
13designate a family member or other outside agent to be notified
14as to the prisoner’s medical condition and prognosis, and as to the
15recall and resentencing procedures. If the inmate is deemed
16mentally unfit, the warden or the warden’s representative shall
17contact the inmate’s emergency contact and provide the information
18described in paragraph (2).

19(5) The warden or the warden’s representative shall provide the
20prisoner and his or her family member, agent, or emergency
21contact, as described in paragraph (4), updated information
22throughout the recall and resentencing process with regard to the
23prisoner’s medical condition and the status of the prisoner’s recall
24and resentencing proceedings.

25(6) Notwithstanding any other provisions of this section, the
26prisoner or his or her family member or designee may
27independently request consideration for recall and resentencing
28by contacting the chief medical officer at the prison or the
29secretary. Upon receipt of the request, the chief medical officer
30and the warden or the warden’s representative shall follow the
31procedures described in paragraph (4). If the secretary determines
32that the prisoner satisfies the criteria set forth in paragraph (2), the
33secretary or board may recommend to the court that the prisoner’s
34sentence be recalled. The secretary shall submit a recommendation
35for release within 30 days in the case of inmates sentenced to
36determinate terms and, in the case of inmates sentenced to
37indeterminate terms, the secretary shall make a recommendation
38to the Board of Parole Hearings with respect to the inmates who
39have applied under this section. The board shall consider this
40information and make an independent judgment pursuant to
P38   1paragraph (2) and make findings related thereto before rejecting
2the request or making a recommendation to the court. This action
3shall be taken at the next lawfully noticed board meeting.

4(7) Any recommendation for recall submitted to the court by
5the secretary or the Board of Parole Hearings shall include one or
6more medical evaluations, a postrelease plan, and findings pursuant
7to paragraph (2).

8(8) If possible, the matter shall be heard before the same judge
9of the court who sentenced the prisoner.

10(9) If the court grants the recall and resentencing application,
11the prisoner shall be released by the department within 48 hours
12of receipt of the court’s order, unless a longer time period is agreed
13to by the inmate. At the time of release, the warden or the warden’s
14representative shall ensure that the prisoner has each of the
15following in his or her possession: a discharge medical summary,
16full medical records, state identification, parole medications, and
17all property belonging to the prisoner. After discharge, any
18additional records shall be sent to the prisoner’s forwarding
19address.

20(10) The secretary shall issue a directive to medical and
21correctional staff employed by the department that details the
22guidelines and procedures for initiating a recall and resentencing
23procedure. The directive shall clearly state that any prisoner who
24is given a prognosis of six months or less to live is eligible for
25recall and resentencing consideration, and that recall and
26resentencing procedures shall be initiated upon that prognosis.

27(f) Notwithstanding any other provision of this section, for
28purposes of paragraph (3) of subdivision (h), any allegation that
29a defendant is eligible for state prison due to a prior or current
30conviction, sentence enhancement, or because he or she is required
31to register as a sex offender shall not be subject to dismissal
32pursuant to Section 1385.

33(g) A sentence to state prison for a determinate term for which
34only one term is specified, is a sentence to state prison under this
35section.

36(h) (1) Except as provided in paragraph (3), a felony punishable
37pursuant to this subdivision where the term is not specified in the
38underlying offense shall be punishable by a term of imprisonment
39in a county jail for 16 months, or two or three years.

P39   1(2) Except as provided in paragraph (3), a felony punishable
2pursuant to this subdivision shall be punishable by imprisonment
3in a county jail for the term described in the underlying offense.

4(3) Notwithstanding paragraphs (1) and (2), where the defendant
5(A) has a prior or current felony conviction for a serious felony
6described in subdivision (c) of Section 1192.7 or a prior or current
7conviction for a violent felony described in subdivision (c) of
8Section 667.5, (B) has a prior felony conviction in another
9jurisdiction for an offense that has all the elements of a serious
10felony described in subdivision (c) of Section 1192.7 or a violent
11felony described in subdivision (c) of Section 667.5, (C) is required
12to register as a sex offender pursuant to Chapter 5.5 (commencing
13with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
14and as part of the sentence an enhancement pursuant to Section
15186.11 is imposed, an executed sentence for a felony punishable
16pursuant to this subdivision shall be served in state prison.

17(4) Nothing in this subdivision shall be construed to prevent
18other dispositions authorized by law, including pretrial diversion,
19deferred entry of judgment, or an order granting probation pursuant
20to Section 1203.1.

21(5) The court, when imposing a sentence pursuant to paragraph
22(1) or (2) of this subdivision, may commit the defendant to county
23jail as follows:

24(A) For a full term in custody as determined in accordance with
25the applicable sentencing law.

26(B) (i) For a term as determined in accordance with the
27applicable sentencing law, but suspend execution of a concluding
28portion of the term selected in the court’s discretion, during which
29time the defendant shall be supervised by the county probation
30officer in accordance with the terms, conditions, and procedures
31generally applicable to persons placed on probation, for the
32remaining unserved portion of the sentence imposed by the court.
33The period of supervision shall be mandatory, and may not be
34earlier terminated except by court order. Any proceeding to revoke
35or modify mandatory supervision under this subparagraph shall
36be conducted pursuant to either subdivisions (a) and (b) of Section
371203.2 or Section 1203.3. During the period when the defendant
38is under such supervision, unless in actual custody related to the
39sentence imposed by the court, the defendant shall be entitled to
40only actual time credit against the term of imprisonment imposed
P40   1by the court. Any time period which is suspended because a person
2has absconded shall not be credited toward the period of
3supervision.

4(ii) The portion of a defendant’s sentenced term during which
5time he or she is supervised by the county probation officer
6pursuant to this subparagraph shall be known as mandatory
7supervision, and shall begin upon release from custody.

8(6) The sentencing changes made by the act that added this
9subdivision shall be applied prospectively to any person sentenced
10on or after October 1, 2011.

11(i) This section shall become operative on January 1,begin delete 2014.end delete
12begin insert 2017.end insert

13

SEC. 7.  

Section 1170.1 of the Penal Code, as amended by
14Section 8.7 of Chapter 361 of the Statutes of 2011, is amended to
15read:

16

1170.1.  

(a) Except as otherwise provided by law, and subject
17to Section 654, when any person is convicted of two or more
18felonies, whether in the same proceeding or court or in different
19proceedings or courts, and whether by judgment rendered by the
20same or by a different court, and a consecutive term of
21imprisonment is imposed under Sections 669 and 1170, the
22aggregate term of imprisonment for all these convictions shall be
23the sum of the principal term, the subordinate term, and any
24additional term imposed for applicable enhancements for prior
25convictions, prior prison terms, and Section 12022.1. The principal
26term shall consist of the greatest term of imprisonment imposed
27by the court for any of the crimes, including any term imposed for
28applicable specific enhancements. The subordinate term for each
29consecutive offense shall consist of one-third of the middle term
30of imprisonment prescribed for each other felony conviction for
31which a consecutive term of imprisonment is imposed, and shall
32include one-third of the term imposed for any specific
33enhancements applicable to those subordinate offenses. Whenever
34a court imposes a term of imprisonment in the state prison, whether
35the term is a principal or subordinate term, the aggregate term shall
36be served in the state prison, regardless as to whether or not one
37of the terms specifies imprisonment inbegin delete theend deletebegin insert aend insert county jail pursuant
38to subdivision (h) of Section 1170.

39(b) If a person is convicted of two or more violations of
40kidnapping, as defined in Section 207, involving separate victims,
P41   1the subordinate term for each consecutive offense of kidnapping
2shall consist of the full middle term and shall include the full term
3imposed for specific enhancements applicable to those subordinate
4offenses.

5(c) In the case of any person convicted of one or more felonies
6committed while the person is confined inbegin delete aend deletebegin insert theend insert state prison or is
7subject to reimprisonment for escape from custody and the law
8either requires the terms to be served consecutively or the court
9imposes consecutive terms, the term of imprisonment for all the
10convictions that the person is required to serve consecutively shall
11commence from the time the person would otherwise have been
12released from prison. If the new offenses are consecutive with each
13other, the principal and subordinate terms shall be calculated as
14provided in subdivision (a). This subdivision shall be applicable
15in cases of convictions of more than one offense in the same or
16different proceedings.

17(d) When the court imposes a sentence for a felony pursuant to
18Section 1170 or subdivision (b) of Section 1168, the court shall
19also impose, in addition and consecutive to the offense of which
20the person has been convicted, the additional terms provided for
21any applicable enhancements. If an enhancement is punishable by
22one of three terms, the court shall, in its discretion, impose the
23term that best serves the interest of justice, and state the reasons
24for its sentence choice on the record at the time of sentencing. The
25court shall also impose any other additional term that the court
26determines in its discretion or as required by law shall run
27consecutive to the term imposed under Section 1170 or subdivision
28(b) of Section 1168. In considering the imposition of the additional
29term, the court shall apply the sentencing rules of the Judicial
30Council.

31(e) All enhancements shall be alleged in the accusatory pleading
32and either admitted by the defendant in open court or found to be
33true by the trier of fact.

34(f) When two or more enhancements may be imposed for being
35armed with or using a dangerous or deadly weapon or a firearm
36in the commission of a single offense, only the greatest of those
37enhancements shall be imposed for that offense. This subdivision
38shall not limit the imposition of any other enhancements applicable
39to that offense, including an enhancement for the infliction of great
40bodily injury.

P42   1(g) When two or more enhancements may be imposed for the
2infliction of great bodily injury on the same victim in the
3commission of a single offense, only the greatest of those
4enhancements shall be imposed for that offense. This subdivision
5shall not limit the imposition of any other enhancements applicable
6to that offense, including an enhancement for being armed with
7or using a dangerous or deadly weapon or a firearm.

8(h) For any violation of an offense specified in Section 667.6,
9the number of enhancements that may be imposed shall not be
10limited, regardless of whether the enhancements are pursuant to
11this section, Section 667.6, or some other provision of law. Each
12of the enhancements shall be a full and separately served term.

13(i) This section shall remain in effect only until January 1, 2017,
14and as of that date is repealed, unless a later enacted statute, that
15is enacted before January 1, 2017, deletes or extends that date.

16

SEC. 8.  

Section 1170.1 of the Penal Code, as amended by
17Section 9.7 of Chapter 361 of the Statutes of 2011, is amended to
18read:

19

1170.1.  

(a) Except as otherwise provided by law, and subject
20to Section 654, when any person is convicted of two or more
21felonies, whether in the same proceeding or court or in different
22proceedings or courts, and whether by judgment rendered by the
23same or by a different court, and a consecutive term of
24imprisonment is imposed under Sections 669 and 1170, the
25aggregate term of imprisonment for all these convictions shall be
26the sum of the principal term, the subordinate term, and any
27additional term imposed for applicable enhancements for prior
28convictions, prior prison terms, and Section 12022.1. The principal
29term shall consist of the greatest term of imprisonment imposed
30by the court for any of the crimes, including any term imposed for
31applicable specific enhancements. The subordinate term for each
32consecutive offense shall consist of one-third of the middle term
33of imprisonment prescribed for each other felony conviction for
34which a consecutive term of imprisonment is imposed, and shall
35include one-third of the term imposed for any specific
36enhancements applicable to those subordinate offenses. Whenever
37a court imposes a term of imprisonment in the state prison, whether
38the term is a principal or subordinate term, the aggregate term shall
39be served in the state prison, regardless as to whether or not one
P43   1of the terms specifies imprisonment inbegin delete theend deletebegin insert aend insert county jail pursuant
2to subdivision (h) of Section 1170.

3(b) If a person is convicted of two or more violations of
4kidnapping, as defined in Section 207, involving separate victims,
5the subordinate term for each consecutive offense of kidnapping
6shall consist of the full middle term and shall include the full term
7imposed for specific enhancements applicable to those subordinate
8offenses.

9(c) In the case of any person convicted of one or more felonies
10committed while the person is confined inbegin delete aend deletebegin insert theend insert state prison or is
11subject to reimprisonment for escape from custody and the law
12either requires the terms to be served consecutively or the court
13imposes consecutive terms, the term of imprisonment for all the
14convictions that the person is required to serve consecutively shall
15commence from the time the person would otherwise have been
16released from prison. If the new offenses are consecutive with each
17other, the principal and subordinate terms shall be calculated as
18provided in subdivision (a). This subdivision shall be applicable
19in cases of convictions of more than one offense in the same or
20different proceedings.

21(d) When the court imposes a sentence for a felony pursuant to
22Section 1170 or subdivision (b) of Section 1168, the court shall
23also impose, in addition and consecutive to the offense of which
24the person has been convicted, the additional terms provided for
25any applicable enhancements. If an enhancement is punishable by
26one of three terms, the court shall impose the middle term unless
27there are circumstances in aggravation or mitigation, and state the
28reasons for its sentence choice, other than the middle term, on the
29record at the time of sentencing. The court shall also impose any
30other additional term that the court determines in its discretion or
31as required by law shall run consecutive to the term imposed under
32Section 1170 or subdivision (b) of Section 1168. In considering
33the imposition of the additional term, the court shall apply the
34sentencing rules of the Judicial Council.

35(e) All enhancements shall be alleged in the accusatory pleading
36and either admitted by the defendant in open court or found to be
37true by the trier of fact.

38(f) When two or more enhancements may be imposed for being
39armed with or using a dangerous or deadly weapon or a firearm
40in the commission of a single offense, only the greatest of those
P44   1enhancements shall be imposed for that offense. This subdivision
2shall not limit the imposition of any other enhancements applicable
3to that offense, including an enhancement for the infliction of great
4bodily injury.

5(g) When two or more enhancements may be imposed for the
6infliction of great bodily injury on the same victim in the
7commission of a single offense, only the greatest of those
8enhancements shall be imposed for that offense. This subdivision
9shall not limit the imposition of any other enhancements applicable
10to that offense, including an enhancement for being armed with
11or using a dangerous or deadly weapon or a firearm.

12(h) For any violation of an offense specified in Section 667.6,
13the number of enhancements that may be imposed shall not be
14limited, regardless of whether the enhancements are pursuant to
15this section, Section 667.6, or some other provision of law. Each
16of the enhancements shall be a full and separately served term.

17(i) This section shall become operative on January 1, 2017.

18

SEC. 9.  

Section 1170.3 of the Penal Code, as amended by
19Section 10 of Chapter 361 of the Statutes of 2011, is amended to
20read:

21

1170.3.  

The Judicial Council shall seek to promote uniformity
22in sentencing under Section 1170 by:

23(a) The adoption of rules providing criteria for the consideration
24of the trial judge at the time of sentencing regarding the court’s
25decision to:

26(1) Grant or deny probation.

27(2) Impose the lower, middle, or upper prison term.

28(3) Impose concurrent or consecutive sentences.

29(4) Determine whether or not to impose an enhancement where
30that determination is permitted by law.

31(b) The adoption of rules standardizing the minimum content
32and the sequential presentation of material in probation officer
33reports submitted to the court.

34(c) This section shall remain in effect only until January 1, 2017,
35and as of that date is repealed, unless a later enacted statute, that
36is enacted before January 1, 2017, deletes or extends that date.

37

SEC. 10.  

Section 1170.3 of the Penal Code, as amended by
38Section 11 of Chapter 361 of the Statutes of 2011, is amended to
39read:

P45   1

1170.3.  

The Judicial Council shall seek to promote uniformity
2in sentencing under Section 1170 by:

3(a) The adoption of rules providing criteria for the consideration
4of the trial judge at the time of sentencing regarding the court’s
5decision to:

6(1) Grant or deny probation.

7(2) Impose the lower or upper prison term.

8(3) Impose concurrent or consecutive sentences.

9(4) Determine whether or not to impose an enhancement where
10that determination is permitted by law.

11(b) The adoption of rules standardizing the minimum content
12and the sequential presentation of material in probation officer
13reports submitted to the court.

14(c) This section shall become operative on January 1, 2017.

15

SEC. 11.  

Section 12021.5 of the Penal Code, as added by
16Section 13 of Chapter 361 of the Statutes of 2011, is amended to
17read:

18

12021.5.  

(a) Every person who carries a loaded or unloaded
19firearm on his or her person, or in a vehicle, during the commission
20or attempted commission of any street gang crimes described in
21subdivision (a) or (b) of Section 186.22, shall, upon conviction of
22the felony or attempted felony, be punished by an additional term
23of imprisonment in the state prison for one, two, or three years.
24The court shall select the sentence enhancement which, in the
25court’s discretion, best serves the interests of justice and shall state
26the reasons for its choice on the record at the time of sentence, in
27accordance with the provisions of subdivision (d) of Section
281170.1.

29(b) Every person who carries a loaded or unloaded firearm
30together with a detachable shotgun magazine, a detachable pistol
31magazine, a detachable magazine, or a belt-feeding device on his
32or her person, or in a vehicle, during the commission or attempted
33commission of any street gang crimes described in subdivision (a)
34or (b) of Section 186.22, shall, upon conviction of the felony or
35attempted felony, be punished by an additional term of
36imprisonment in the state prison for two, three, or four years. The
37court shall select the sentence enhancement which, in the court’s
38discretion, best serves the interests of justice and shall state the
39reasons for its choice on the record at the time of sentence, in
P46   1accordance with the provisions of subdivision (d) of Section
21170.1.

3(c) As used in this section, the following definitions shall apply:

4(1) “Detachable magazine” means a device that is designed or
5redesigned to do all of the following:

6(A) To be attached to a rifle that is designed or redesigned to
7fire ammunition.

8(B) To be attached to, and detached from, a rifle that is designed
9or redesigned to fire ammunition.

10(C) To feed ammunition continuously and directly into the
11loading mechanism of a rifle that is designed or redesigned to fire
12ammunition.

13(2) “Detachable pistol magazine” means a device that is
14designed or redesigned to do all of the following:

15(A) To be attached to a semiautomatic firearm that is not a rifle
16or shotgun that is designed or redesigned to fire ammunition.

17(B) To be attached to, and detached from, a firearm that is not
18a rifle or shotgun that is designed or redesigned to fire ammunition.

19(C) To feed ammunition continuously and directly into the
20loading mechanism of a firearm that is not a rifle or a shotgun that
21is designed or redesigned to fire ammunition.

22(3) “Detachable shotgun magazine” means a device that is
23designed or redesigned to do all of the following:

24(A) To be attached to a firearm that is designed or redesigned
25to fire a fixed shotgun shell through a smooth or rifled bore.

26(B) To be attached to, and detached from, a firearm that is
27designed or redesigned to fire a fixed shotgun shell through a
28smooth bore.

29(C) To feed fixed shotgun shells continuously and directly into
30the loading mechanism of a firearm that is designed or redesigned
31to fire a fixed shotgun shell.

32(4) “Belt-feeding device” means a device that is designed or
33redesigned to continuously feed ammunition into the loading
34mechanism of a machinegun or a semiautomatic firearm.

35(5) “Rifle” shall have the same meaning as specified in
36paragraph (20) of subdivision (c) of Section 12020 until January
371, 2012, and, on or after that date, Section 17090.

38(6) “Shotgun” shall have the same meaning as specified in
39paragraph (21) of subdivision (c) of Section 12020 until January
401, 2012, and, on or after that date, Section 17190.

P47   1(d) This section shall remain in effect only until January 1, 2017,
2and as of that date is repealed, unless a later enacted statute, that
3is enacted before January 1, 2017, deletes or extends that date.

4

SEC. 12.  

Section 12021.5 of the Penal Code, as amended by
5Section 12.3 of Chapter 361 of the Statutes of 2011, is amended
6to read:

7

12021.5.  

(a) Every person who carries a loaded or unloaded
8firearm on his or her person, or in a vehicle, during the commission
9or attempted commission of any street gang crimes described in
10subdivision (a) or (b) of Section 186.22, shall, upon conviction of
11the felony or attempted felony, be punished by an additional term
12of imprisonment pursuant to subdivision (h) of Section 1170 for
13one, two, or three years in the court’s discretion. The court shall
14impose the middle term unless there are circumstances in
15aggravation or mitigation. The court shall state the reasons for its
16enhancement choice on the record at the time of sentence.

17(b) Every person who carries a loaded or unloaded firearm
18together with a detachable shotgun magazine, a detachable pistol
19magazine, a detachable magazine, or a belt-feeding device on his
20or her person, or in a vehicle, during the commission or attempted
21commission of any street gang crimes described in subdivision (a)
22or (b) of Section 186.22, shall, upon conviction of the felony or
23attempted felony, be punished by an additional term of
24imprisonment in the state prison for two, three, or four years in
25the court’s discretion. The court shall impose the middle term
26unless there are circumstances in aggravation or mitigation. The
27court shall state the reasons for its enhancement choice on the
28record at the time of sentence.

29(c) As used in this section, the following definitions shall apply:

30(1) “Detachable magazine” means a device that is designed or
31redesigned to do all of the following:

32(A) To be attached to a rifle that is designed or redesigned to
33 fire ammunition.

34(B) To be attached to, and detached from, a rifle that is designed
35or redesigned to fire ammunition.

36(C) To feed ammunition continuously and directly into the
37loading mechanism of a rifle that is designed or redesigned to fire
38ammunition.

39(2) “Detachable pistol magazine” means a device that is
40designed or redesigned to do all of the following:

P48   1(A) To be attached to a semiautomatic firearm that is not a rifle
2or shotgun that is designed or redesigned to fire ammunition.

3(B) To be attached to, and detached from, a firearm that is not
4a rifle or shotgun that is designed or redesigned to fire ammunition.

5(C) To feed ammunition continuously and directly into the
6loading mechanism of a firearm that is not a rifle or a shotgun that
7is designed or redesigned to fire ammunition.

8(3) “Detachable shotgun magazine” means a device that is
9designed or redesigned to do all of the following:

10(A) To be attached to a firearm that is designed or redesigned
11to fire a fixed shotgun shell through a smooth or rifled bore.

12(B) To be attached to, and detached from, a firearm that is
13designed or redesigned to fire a fixed shotgun shell through a
14smooth bore.

15(C) To feed fixed shotgun shells continuously and directly into
16the loading mechanism of a firearm that is designed or redesigned
17to fire a fixed shotgun shell.

18(4) “Belt-feeding device” means a device that is designed or
19redesigned to continuously feed ammunition into the loading
20mechanism of a machinegun or a semiautomatic firearm.

21(5) “Rifle” shall have the same meaning as specified in Section
2217090.

23(6) “Shotgun” shall have the same meaning as specified in
24Section 17190.

25(d) This section shall become operative on January 1, 2017.

26

SEC. 13.  

Section 12022.2 of the Penal Code, as added by
27Section 15 of Chapter 361 of the Statutes of 2011, is amended to
28read:

29

12022.2.  

(a) Any person who, while armed with a firearm in
30the commission or attempted commission of any felony, has in his
31or her immediate possession ammunition for the firearm designed
32primarily to penetrate metal or armor, shall upon conviction of
33that felony or attempted felony, in addition and consecutive to the
34punishment prescribed for the felony or attempted felony, be
35punished by an additional term of 3, 4, or 10 years. The court shall
36select the sentence enhancement which, in the court’s discretion,
37best serves the interests of justice and shall state the reasons for
38its choice on the record at the time of the sentence in accordance
39with the provisions of subdivision (d) of Section 1170.1.

P49   1(b) Any person who wears a body vest in the commission or
2attempted commission of a violent offense, as defined in
3subdivision (b) of Section 12021.1, until January 1, 2012, and, on
4or after that date, Section 29905, shall, upon conviction of that
5felony or attempted felony, in addition and consecutive to the
6punishment prescribed for the felony or attempted felony of which
7he or she has been convicted, be punished by an additional term
8of one, two, or five years. The court shall select the sentence
9enhancement which, in the court’s discretion, best serves the
10interests of justice and shall state the reasons for its choice on the
11record at the time of the sentence in accordance with the provisions
12of subdivision (d) of Section 1170.1.

13(c) As used in this section, “body vest” means any
14bullet-resistant material intended to provide ballistic and trauma
15protection for the wearer.

16(d) This section shall remain in effect only until January 1, 2017,
17and as of that date is repealed, unless a later enacted statute, that
18is enacted before January 1, 2017, deletes or extends that date.

19

SEC. 14.  

Section 12022.2 of the Penal Code, as amended by
20Section 14 of Chapter 361 of the Statutes of 2011, is amended to
21read:

22

12022.2.  

(a) Any person who, while armed with a firearm in
23the commission or attempted commission of any felony, has in his
24or her immediate possession ammunition for the firearm designed
25primarily to penetrate metal or armor, shall upon conviction of
26that felony or attempted felony, in addition and consecutive to the
27punishment prescribed for the felony or attempted felony, be
28punished by an additional term of 3, 4, or 10 years. The court shall
29order the middle term unless there are circumstances in aggravation
30or mitigation. The court shall state the reasons for its enhancement
31choice on the record at the time of the sentence.

32(b) Any person who wears a body vest in the commission or
33attempted commission of a violent offense, as defined in Section
3429905, shall, upon conviction of that felony or attempted felony,
35in addition and consecutive to the punishment prescribed for the
36felony or attempted felony of which he or she has been convicted,
37be punished by an additional term of one, two, or five years. The
38court shall order the middle term unless there are circumstances
39in aggravation or mitigation. The court shall state the reasons for
40its enhancement choice on the record at the time of the sentence.

P50   1(c) As used in this section, “body vest” means any
2bullet-resistant material intended to provide ballistic and trauma
3protection for the wearer.

4(d) This section shall become operative on January 1, 2017.

5

SEC. 15.  

Section 12022.4 of the Penal Code, as added by
6Section 17 of Chapter 361 of the Statutes of 2011, is amended to
7read:

8

12022.4.  

(a) Any person who, during the commission or
9attempted commission of a felony, furnishes or offers to furnish
10a firearm to another for the purpose of aiding, abetting, or enabling
11that person or any other person to commit a felony shall, in addition
12and consecutive to the punishment prescribed by the felony or
13attempted felony of which the person has been convicted, be
14punished by an additional term of one, two, or three years in the
15state prison. The court shall select the sentence enhancement which,
16in the court’s discretion, best serves the interests of justice and
17shall state the reasons for its choice on the record at the time of
18the sentence, in accordance with the provisions of subdivision (d)
19of Section 1170.1. The additional term provided in this section
20shall not be imposed unless the fact of the furnishing is charged
21 in the accusatory pleading and admitted or found to be true by the
22trier of fact.

23(b) This section shall remain in effect only until January 1, 2017,
24and as of that date is repealed, unless a later enacted statute, that
25is enacted before January 1, 2017, deletes or extends that date.

26

SEC. 16.  

Section 12022.4 of the Penal Code, as amended by
27Section 16 of Chapter 361 of the Statutes of 2011, is amended to
28read:

29

12022.4.  

(a) Any person who, during the commission or
30attempted commission of a felony, furnishes or offers to furnish
31a firearm to another for the purpose of aiding, abetting, or enabling
32that person or any other person to commit a felony shall, in addition
33and consecutive to the punishment prescribed by the felony or
34attempted felony of which the person has been convicted, be
35punished by an additional term of one, two, or three years in the
36state prison. The court shall order the middle term unless there are
37circumstances in aggravation or mitigation. The court shall state
38the reasons for its enhancement choice on the record at the time
39of the sentence. The additional term provided in this section shall
40not be imposed unless the fact of the furnishing is charged in the
P51   1accusatory pleading and admitted or found to be true by the trier
2 of fact.

3(b) This section shall become operative on January 1, 2017.



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