BILL NUMBER: SB 1363 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 21, 2014
AMENDED IN SENATE MARCH 25, 2014
INTRODUCED BY Senator Hancock
FEBRUARY 21, 2014
An act to amend Section 3041 of the Penal Code, relating to
sentencing.
LEGISLATIVE COUNSEL'S DIGEST
SB 1363, as amended, Hancock. Sentencing: parole.
Existing law requires the Board of Parole Hearings to meet with
each inmate during the 6th year prior to the inmate's minimum
eligible parole release date for the purposes of reviewing and
documenting the inmate's activities and conduct pertinent to both
parole eligibility and to the granting or withholding of
postconviction credit. During this consultation, the board is
required to provide the inmate with information about the parole
hearing process, legal factors relevant to his or her suitability or
unsuitability for parole, and individualized recommendations for the
inmate regarding his or her work assignments, rehabilitative
programs, and institutional behavior. Existing law requires the board
to issue its positive and negative findings and recommendations to
the inmate in writing, within 30 days following the consultation.
This bill would require the board to establish criteria for the
setting of the base term of incarceration. The criteria
shall include, but not be limited to, consideration of the number of
victims of the crime for which the inmate was sentenced and other
factors in mitigation or aggravation of the crime. The bill would
require the board to establish criteria for determining whether an
inmate is suitable for parole, and would require the board to
establish criteria for an inmate's adjusted base term of
incarceration, as adjusted by applicable enhancements or credits.
parole release dates. The bill would require an
inmate who is found suitable for parole to be paroled
regardless of whether the base term of incarceration, as adjusted,
has expired , subject to certain minimum term provisions
and specified review provisions.
Existing law requires that one year prior to the inmate's minimum
eligible parole release date a panel of 2 or more commissioners or
deputy commissioners acting for the board meet with the inmate and,
subject to exception, set a parole release date per specified
procedures.
The bill would require the panel meeting with the inmate to
establish the inmate's base term of incarceration by applying
the applicable factors set out in the board's regulations
and guidelines. The bill would require the board to adopt prior
determinations and findings of the sentencing court in establishing
the base term of incarceration. The bill would require that the base
term of incarceration be set in a manner that will, to the greatest
extent possible, provide proportionate and uniform terms for offenses
of similar gravity and magnitude with respect to their threat to the
public, that will comply with the sentencing rules that the Judicial
Council may issue, and with any sentencing information relevant to
the setting of the base term of incarceration. The bill would require
the board to also establish the inmate's adjusted base term of
incarceration by applying any adjustments to the base term of
incarceration based on the inmate's incarceration history.
specified factors. The bill provides that at the meeting
one year prior to the inmate's minimum eligible parole release date
the board will normally set a release date at the inmate's initial
parole hearing, but is not required to set a parole date in
every case. hearing.
Existing law requires the board to separately state reasons for
its decision to grant or deny parole.
The bill would require the board's stated reasons to demonstrate,
on the record, an individualized consideration of all relevant
factors. The bill would require that in the case of an inmate who has
served beyond his or her base term of incarceration, as
adjusted, a decision by the board to deny parole be
supported by substantial evidence and with respect to the entire
record.
The bill would require the board to collect and maintain
statistics that show, annually, the number of inmates in state prison
who are serving a term in excess of their base term of
incarceration, as adjusted by applicable enhancements or credits, and
the percentage of all cases decided each year in which the board, in
a final decision, by a panel or the board sitting en banc, has
declined to find an inmate suitable for parole, despite the fact that
the inmate has served a sentence beyond the base term of
incarceration, as adjusted by applicable enhancements or credits. The
bill would require the board to report the data to the Legislature
on or before January 1, 2016, and annually thereafter.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3041 of the Penal Code is amended to read:
3041. (a) The Board of Parole Hearings shall establish criteria
for the setting of the base term of incarceration. The criteria shall
include, but not be limited to, consideration of the number of
victims of the crime for which the inmate was sentenced and other
factors in mitigation or aggravation of the crime.
(b) The board shall establish criteria for determining whether an
inmate is suitable for parole. The board shall establish criteria for
an inmate's base term of incarceration, as adjusted by applicable
enhancements or credits, that shall be relevant but not dispositive
of whether an inmate is suitable for parole.
(c) The board has the discretion to determine the suitability for
parole of any inmate who is eligible for parole, giving paramount
consideration to public safety. An inmate who is found suitable for
parole shall be paroled regardless of whether the base term of
incarceration, as adjusted, has expired, subject to the minimum term
provisions in Section 3046, as applicable, and to the review
provisions in subdivision (c), and Sections 3041.1 and 3041.2, and
subdivision (b) of Section 8 of Article V of the California
Constitution. This section does not affect the Governor's independent
authority to review, under Sections 3041.1 and 3041.2 and under
subdivision (b) of Section 8 of Article V of the California
Constitution, a parole decision by the board.
(d)
3041. (a) (1) In the
case of any inmate sentenced pursuant to any law, other than Chapter
4.5 (commencing with Section 1170) of Title 7 of Part 2, the Board of
Parole Hearings shall meet with each inmate during the sixth year
prior to the inmate's minimum eligible parole release date for the
purposes of reviewing and documenting the inmate's activities and
conduct pertinent to both parole eligibility and to the granting or
withholding of postconviction credit. During this consultation, the
board shall provide the inmate information about the parole hearing
process, legal factors relevant to his or her suitability or
unsuitability for parole, and individualized recommendations for the
inmate regarding his or her work assignments, rehabilitative
programs, and institutional behavior. Within 30 days following the
consultation, the board shall issue its positive and negative
findings and recommendations to the inmate in writing.
(2) The board shall establish criteria for the setting of parole
release dates and in doing so shall consider:
(A) The gravity and magnitude of the offense with respect to the
threat to the public.
(B) The number of victims of the crime for which the inmate was
sentenced and other factors in mitigation or aggravation of the
crime.
(C) The abstract of judgment.
(e)
(3) One year prior to the inmate's minimum eligible
parole release date a panel of two or more commissioners or deputy
commissioners shall again meet with the inmate , shall, except
as provided in subdivision (b), normally set a parole release date as
provided in Section 3041.5, and shall in every case establish
the inmate's base term of incarceration by applying the
applicable factors set out in the board's regulations and guidelines.
The board shall adopt prior determinations and findings of the
sentencing court in establishing the base term of incarceration. The
base term of incarceration shall be set in a manner that will, to the
greatest extent possible, provide proportionate and uniform terms
for offenses of similar gravity and magnitude with respect to their
threat to the public, and that will comply with the sentencing rules
that the Judicial Council may issue, and with any sentencing
information relevant to the setting of the base term of
incarceration. The board shall also establish the inmate's adjusted
base term of incarceration by applying any adjustments to the base
term of incarceration based on the inmate's incarceration history.
The board shall normally set a release date at the inmate's initial
parole hearing, as provided in Section 3014.5, but is not required to
set a parole date in every case. criteria
set forth in paragraph (2).
(f)
(4) No more than one member of the panel shall be a
deputy commissioner. In the event of a tie vote, the matter shall be
referred for an en banc review of the record that was before the
panel that rendered the tie vote. Upon en banc review, the board
shall vote to either grant or deny parole and render a statement of
decision. The en banc review shall be conducted pursuant to
subdivision (l) (g) .
(g)
(5) At least one commissioner of the panel shall have
been present at the last preceding meeting, unless it is not feasible
to do so or where the last preceding meeting was the initial
meeting. Any person on the hearing panel may request review of any
decision regarding parole for an en banc hearing by the board. In
case of a review, a majority vote in favor of parole by the board
members participating in an en banc review is required to grant
parole to any inmate.
(h)
(b) The panel or the board, sitting en banc, shall set
a release date unless it determines that the gravity of the current
convicted offense or offenses, or the timing and gravity of current
or past convicted offense or offenses, is such that consideration of
the public safety requires a more lengthy period of
incarceration beyond the base term for this
individual, as adjusted, and that a parole date,
therefore, cannot be fixed at this meeting.
(i)
(c) After July 31, 2001, any decision of the parole
panel finding an inmate suitable for parole shall become final within
120 days of the date of the hearing. During that period, the board
may review the panel's decision. The panel's decision shall become
final pursuant to this subdivision unless the board finds that the
panel made an error of law, or that the panel's decision was based on
an error of fact, or that new information should be presented to the
board, any of which when corrected or considered by the board has a
substantial likelihood of resulting in a substantially different
decision upon a rehearing. In making this determination, the board
shall consult with the commissioners who conducted the parole
consideration hearing. A decision of the parole panel shall not be
disapproved and referred for rehearing by the board except by a
majority vote of the commissioners reviewing the decision
, sitting en banc, following a public meeting.
(d) An inmate found suitable for parole shall be paroled subject
to subdivision (b) and Sections 3041.1 and 3042.2, as applicable.
(j)
(e) For the purpose of reviewing the suitability for
parole of those inmates eligible for parole under prior law at a date
earlier than that calculated under Section 1170.2, the board shall
appoint panels of at least two persons to meet annually with each
inmate until the time the person is released pursuant to proceedings
or reaches the expiration of his or her term as calculated under
Section 1170.2.
(k)
(f) It is the intent of the Legislature that, during
times when there is no backlog of inmates awaiting parole hearings,
life parole consideration hearings, or life rescission hearings,
hearings will be conducted by a panel of three or more members, the
majority of whom shall be commissioners. The board shall report
monthly on the number of cases where an inmate has not received a
completed initial or subsequent parole consideration hearing within
30 days of the hearing date required by subdivision (a) of Section
3041.5 or paragraph (2) of subdivision (b) of Section 3041.5, unless
the inmate has waived the right to those timeframes. That report
shall be considered the backlog of cases for purposes of this
section, and shall include information on the progress toward
eliminating the backlog, and on the number of inmates who have waived
their right to the above timeframes. The report shall be made public
at a regularly scheduled meeting of the board and a written report
shall be made available to the public and transmitted to the
Legislature quarterly.
(l)
(g) For purposes of this section, an en banc review by
the board means a review conducted by a majority of commissioners
holding office on the date the matter is heard by the board. An en
banc review shall be conducted in compliance with the following:
(1) The commissioners conducting the review shall consider the
entire record of the hearing that resulted in the tie vote.
(2) The review shall be limited to the record of the hearing. The
record shall consist of the transcript or audiotape of the hearing,
written or electronically recorded statements actually considered by
the panel that produced the tie vote, and any other material actually
considered by the panel. New evidence or comments shall not be
considered in the en banc proceeding.
(3) The board shall separately state reasons for its decision to
grant or deny parole. The board's stated reasons shall demonstrate,
on the record, an individualized consideration of all relevant
factors. In the case of an inmate who has served beyond his or her
base term of incarceration, as adjusted, a
decision by the board to deny parole shall be supported by
substantial evidence and with respect to the entire record.
(4) A commissioner who was involved in the tie vote shall be
recused from consideration of the matter in the en banc review.
(m)
(h) (1) The board shall collect and maintain statistics
that show, annually, the number of inmates in state prison who are
serving a term in excess of their base term of incarceration, as
adjusted by applicable enhancements or credits, and the percentage of
all cases decided each year in which the board, in a final decision,
by a panel or the board sitting en banc, has declined to find an
inmate suitable for parole, despite the fact that the inmate has
served a sentence beyond the base term of incarceration, as adjusted
by applicable enhancements or credits.
(2) The board shall submit a report to the Legislature detailing
the information collected pursuant to paragraph (1) and shall submit
the report on or before January 1, 2016, and annually thereafter,
notwithstanding Section 10231.5 of the Government Code.
(3) The report required by this subdivision shall be submitted
pursuant to Section 9795 of the Government Code.