BILL NUMBER: AB 1156 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Brown
FEBRUARY 27, 2015
An act to amend Sections 1170, 1170.3, 3451, 4852.01, 4852.03,
4852.04, 4852.06, 4852.1, and 4852.21 of the Penal Code, and to amend
Section 41500 of the Vehicle Code, relating to crime.
LEGISLATIVE COUNSEL'S DIGEST
AB 1156, as introduced, Brown. Imprisonment in county jail.
(1) Existing law authorizes a court to recall a sentence of
imprisonment in the state prison and to resentence a defendant in the
same manner as if the defendant had not previously been sentenced,
upon the court's own motion or the recommendation of the Secretary of
the Department of Corrections and Rehabilitation or the Board of
Parole Hearings. Existing law prohibits the new sentence from being
greater than the initial sentence and requires that credit be given
for time served. Existing law provides for the resentencing or
recalling of a prisoner's sentence if the court finds that the
prisoner is terminally ill or the prisoner is permanently medically
incapacitated, as prescribed.
This bill would similarly authorize the court to recall a sentence
of imprisonment in a county jail for a felony, upon the court's own
motion or the recommendation of the county correctional
administrator, as specified. The bill would also extend the
provisions for recall or resentencing for medical reasons to
prisoners sentenced to county jail for a felony. By increasing the
duties of county correctional administrators, this bill would impose
a state-mandated local program.
(2) Existing law requires the Judicial Council to adopt rules
providing criteria for the consideration of the trial judge at the
time of sentencing, including the imposition of the lower, middle, or
upper prison term.
This bill would require the Judicial Council to also adopt rules
providing criteria for the imposition of the lower, middle, or upper
term for a person sentenced to county jail for a felony and rules to
determine the county or jurisdictional territory of incarceration
when the court is imposing a sentence in county jail concurrent or
consecutive to a sentence previously imposed in another county or
jurisdictional territory.
(3) Existing law provides that a person convicted of a felony who
is committed to a state prison or other state institution or agency
may file a petition for a certificate of rehabilitation and pardon
upon completion of a specified period of rehabilitation. Existing law
provides that the period of rehabilitation commences to run upon the
discharge from custody for completion of the sentence term or upon
the release on parole or probation, whichever is sooner. Existing law
also requires that any person to whom these provisions apply be
informed in writing by the official in charge prior to his or her
discharge from a state prison or other state penal institution or
agency of the right to petition for a certificate of rehabilitation
and pardon.
This bill would extend the right to petition for a certificate of
rehabilitation and pardon to persons convicted of a felony who were
committed to a county jail. The bill provides that the period of
rehabilitation in that case commences upon discharge from custody or
release on postrelease community supervision or mandatory
supervision, whichever is sooner. The bill would require that any
person to whom these provisions apply be informed in writing by the
official in charge prior to his or her discharge from a county jail
of the right to petition for a certificate of rehabilitation and
pardon. The bill would make additional nonsubstantive changes and
conforming changes, and would delete obsolete provisions. By
increasing the duties of local officials, this bill would create a
state-mandated local program.
(4) Existing law, subject to exceptions, prohibits a person
committed to the custody of the Secretary of the Department of
Corrections and Rehabilitation from being subject to prosecution for
a nonfelony offense that is pending against him or her at the time of
commitment arising out of, among other things, the operation of a
motor vehicle. Existing law also prohibits the driver's license of
that person from being suspended or revoked, or issuance or renewal
therefor denied, as a result of a nonfelony offense pending against
him or her at the time of commitment that occurred prior to the time
of commitment. Existing law excepts from those prohibitions an
offense committed by a person while temporarily released from custody
or on parole.
This bill would extend those provisions to persons committed to a
county jail for conviction of a felony. The bill would except from
those prohibitions an offense committed by a person while on
postrelease community supervision.
(5) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1170 of the Penal Code, as amended by Section 1
of Chapter 612 of the Statutes of 2014, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison or a term pursuant to subdivision (h) of
Section 1170 of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing in this article shall affect any provision
of law that imposes the death penalty, that authorizes or restricts
the granting of probation or suspending the execution or imposition
of sentence, or expressly provides for imprisonment in the state
prison for life, except as provided in paragraph (2) of subdivision
(d). In any case in which the amount of preimprisonment credit under
Section 2900.5 or any other provision of law is
equal to or exceeds any sentence imposed pursuant to this chapter,
except for the remaining portion of mandatory supervision
pursuant to subparagraph (B) of paragraph (5) of subdivision (h),
the entire sentence shall be deemed to have been served ,
except for the remaining period of mandatory supervision, and
the defendant shall not be actually delivered to the custody of the
secretary or to the custody of the county correctional
administrator . The court shall advise the defendant that he or
she shall serve a an applicable period
of parole , postrelease community supervision, or mandatory
supervision, and order the defendant to report to the parole
or probation office closest to the defendant's last legal
residence, unless the in-custody credits equal the total sentence,
including both confinement time and the period of parole ,
postrelease community supervision, or mandatory supervision .
The sentence shall be deemed a separate prior prison term
under or a sentence of imprisonment in a county
jail under subdivision (h) for purposes of Section 667.5,
and a copy of the judgment and other necessary documentation shall be
forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court. At least
four days prior to the time set for imposition of judgment, either
party or the victim, or the family of the victim if the victim is
deceased, may submit a statement in aggravation or mitigation. In
determining the appropriate term, the court may consider the record
in the case, the probation officer's report, other reports, including
reports received pursuant to Section 1203.03, and statements in
aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim
is deceased, and any further evidence introduced at the sentencing
hearing. The court shall select the term which, in the court's
discretion, best serves the interests of justice. The court shall set
forth on the record the reasons for imposing the term selected and
the court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any provision of
law. A term of imprisonment shall not be specified if imposition of
sentence is suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000
or 3000.08 or postrelease community supervision for a period as
provided in Section 3451 .
(d) (1) When a defendant subject to this section or subdivision
(b) of Section 1168 has been sentenced to be imprisoned in the state
prison or county jail pursuant to subdivision (h) and has
been committed to the custody of the secretary or the county
correctional administrator , the court may, within 120 days of
the date of commitment on its own motion, or at any time upon the
recommendation of the secretary or the Board of Parole Hearings
in the case of state prison inmates, or the county correctional
administrator in the case of county jail inmates , recall the
sentence and commitment previously ordered and resentence the
defendant in the same manner as if he or she had not previously been
sentenced, provided the new sentence, if any, is no greater than the
initial sentence. The court resentencing under this subdivision shall
apply the sentencing rules of the Judicial Council so as to
eliminate disparity of sentences and to promote uniformity of
sentencing. Credit shall be given for time served.
(2) (A) (i) When a defendant who was under 18 years of age at the
time of the commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of parole
has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing.
(ii) Notwithstanding clause (i), this paragraph shall not apply to
defendants sentenced to life without parole for an offense where the
defendant tortured, as described in Section 206, his or her victim
or the victim was a public safety official, including any law
enforcement personnel mentioned in Chapter 4.5 (commencing with
Section 830) of Title 3, or any firefighter as described in Section
245.1, as well as any other officer in any segment of law enforcement
who is employed by the federal government, the state, or any of its
political subdivisions.
(B) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(C) If any of the information required in subparagraph (B) is
missing from the petition, or if proof of service on the prosecuting
agency is not provided, the court shall return the petition to the
defendant and advise the defendant that the matter cannot be
considered without the missing information.
(D) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency was
served with the petition, unless a continuance is granted for good
cause.
(E) If the court finds by a preponderance of the evidence that the
statements in the petition are true, the court shall hold a hearing
to consider whether to recall the sentence and commitment previously
ordered and to resentence the defendant in the same manner as if the
defendant had not previously been sentenced, provided that the new
sentence, if any, is not greater than the initial sentence. Victims,
or victim family members if the victim is deceased, shall retain the
rights to participate in the hearing.
(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) Prior to the offense for which the sentence is being
considered for recall, the defendant had insufficient adult support
or supervision and had suffered from psychological or physical
trauma, or significant stress.
(v) The defendant suffers from cognitive limitations due to mental
illness, developmental disabilities, or other factors that did not
constitute a defense, but influenced the defendant's involvement in
the offense.
(vi) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(vii) The defendant has maintained family ties or connections with
others through letter writing, calls, or visits, or has eliminated
contact with individuals outside of prison who are currently involved
with crime.
(viii) The defendant has had no disciplinary actions for violent
activities in the last five years in which the defendant was
determined to be the aggressor.
(G) The court shall have the discretion to recall the sentence and
commitment previously ordered and to resentence the defendant in the
same manner as if the defendant had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence. The discretion of the court shall be exercised in
consideration of the criteria in subparagraph (B). Victims, or victim
family members if the victim is deceased, shall be notified of the
resentencing hearing and shall retain their rights to participate in
the hearing.
(H) If the sentence is not recalled, the defendant may submit
another petition for recall and resentencing to the sentencing court
when the defendant has been committed to the custody of the
department for at least 20 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 24 years. The final petition may be submitted,
and the response to that petition shall be determined, during the
25th year of the defendant's sentence.
(I) In addition to the criteria in subparagraph (F), the court may
consider any other criteria that the court deems relevant to its
decision, so long as the court identifies them on the record,
provides a statement of reasons for adopting them, and states why the
defendant does or does not satisfy the criteria.
(J) This subdivision shall have retroactive application.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole or postrelease
community supervision medications, and all property belonging
to the prisoner. After discharge, any additional records shall be
sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(11) The provisions of this subdivision shall be available to an
inmate who is sentenced to a county jail pursuant to subdivision (h).
For purposes of those inmates, "secretary" or "warden" shall mean
the county correctional administrator and "chief medical officer"
shall mean a physician designated by the county correctional
administrator for this purpose.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7 or a prior or current
conviction for a violent felony described in subdivision (c) of
Section 667.5, (B) has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a serious
felony described in subdivision (c) of Section 1192.7 or a violent
felony described in subdivision (c) of Section 667.5, (C) is required
to register as a sex offender pursuant to Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1, or (D) is convicted of a
crime and as part of the sentence an enhancement pursuant to Section
186.11 is imposed, an executed sentence for a felony punishable
pursuant to this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) (A) Unless the court finds that, in the interests of justice,
it is not appropriate in a particular case, the court, when imposing
a sentence pursuant to paragraph (1) or (2), shall suspend execution
of a concluding portion of the term for a period selected at the
court's discretion.
(B) The portion of a defendant's sentenced term that is suspended
pursuant to this paragraph shall be known as mandatory supervision,
and, unless otherwise ordered by the court, shall commence upon
release from physical custody or an alternative custody program,
whichever is later. During the period of mandatory supervision, the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. Any proceeding to revoke or modify mandatory
supervision under this subparagraph shall be conducted pursuant to
either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3.
During the period when the defendant is under such
that supervision, unless in actual custody related to the
sentence imposed by the court, the defendant shall be entitled to
only actual time credit against the term of imprisonment imposed by
the court. Any time period which is suspended because a person has
absconded shall not be credited toward the period of supervision.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(7) The sentencing changes made to paragraph (5) by the act that
added this paragraph shall become effective and operative on January
1, 2015, and shall be applied prospectively to any person sentenced
on or after January 1, 2015.
(i) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is enacted before that date, deletes or extends that
date.
SEC. 2. Section 1170 of the Penal Code, as amended by Section 2 of
Chapter 612 of the Statutes of 2014, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison , or a term pursuant to subdivision (h),
of any specification of three time periods, the court shall sentence
the defendant to one of the terms of imprisonment specified unless
the convicted person is given any other disposition provided by law,
including a fine, jail, probation, or the suspension of imposition or
execution of sentence or is sentenced pursuant to subdivision (b) of
Section 1168 because he or she had committed his or her crime prior
to July 1, 1977. In sentencing the convicted person, the court shall
apply the sentencing rules of the Judicial Council. The court, unless
it determines that there are circumstances in mitigation of the
punishment prescribed, shall also impose any other term that it is
required by law to impose as an additional term. Nothing in this
article shall affect any provision of law that imposes the death
penalty, that authorizes or restricts the granting of probation or
suspending the execution or imposition of sentence, or expressly
provides for imprisonment in the state prison for life, except as
provided in paragraph (2) of subdivision (d). In any case in which
the amount of preimprisonment credit under Section 2900.5 or any
other provision of law is equal to or exceeds any sentence imposed
pursuant to this chapter, except for a remaining portion of
mandatory supervision imposed pursuant to subparagraph (B) of
paragraph (5) of subdivision (h), the entire sentence shall be
deemed to have been served , except for the remaining period of
mandatory supervision, and the defendant shall not be actually
delivered to the custody of the secretary or the county
correctional administrator . The court shall advise the
defendant that he or she shall serve a an
applicable period of parole , postrelease community superv
ision, or mandatory supervision and order the
defendant to report to the parole
or probation office closest to the
defendant's last legal residence, unless the in-custody credits equal
the total sentence, including both confinement time and the period
of parole , postrelease community supervision, or mandatory
supervision . The sentence shall be deemed a separate prior
prison term under or a sentence of
imprisonment in a county jail under subdivision (h) for
purposes of Section 667.5, and a copy of the judgment and other
necessary documentation shall be forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall order
imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime. At least four days prior to
the time set for imposition of judgment, either party or the victim,
or the family of the victim if the victim is deceased, may submit a
statement in aggravation or mitigation to dispute facts in the record
or the probation officer's report, or to present additional facts.
In determining whether there are circumstances that justify
imposition of the upper or lower term, the court may consider the
record in the case, the probation officer's report, other reports,
including reports received pursuant to Section 1203.03, and
statements in aggravation or mitigation submitted by the prosecution,
the defendant, or the victim, or the family of the victim if the
victim is deceased, and any further evidence introduced at the
sentencing hearing. The court shall set forth on the record the facts
and reasons for imposing the upper or lower term. The court may not
impose an upper term by using the fact of any enhancement upon which
sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is
suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000
or 3000.08 or postrelease community supervision for a period as
provided in Section 3451 .
(d) (1) When a defendant subject to this section or subdivision
(b) of Section 1168 has been sentenced to be imprisoned in the state
prison or county jail pursuant to subdivision (h) and has
been committed to the custody of the secretary or the county
correctional administrator , the court may, within 120 days of
the date of commitment on its own motion, or at any time upon the
recommendation of the secretary or the Board of Parole Hearings
in the case of state prison inmates, or the county correctional
administrator in the case of county jail inmates , recall the
sentence and commitment previously ordered and resentence the
defendant in the same manner as if he or she had not previously been
sentenced, provided the new sentence, if any, is no greater than the
initial sentence. The court resentencing under this subdivision shall
apply the sentencing rules of the Judicial Council so as to
eliminate disparity of sentences and to promote uniformity of
sentencing. Credit shall be given for time served.
(2) (A) (i) When a defendant who was under 18 years of age at the
time of the commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of parole
has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing.
(ii) Notwithstanding clause (i), this paragraph shall not apply to
defendants sentenced to life without parole for an offense where the
defendant tortured, as described in Section 206, his or her victim
or the victim was a public safety official, including any law
enforcement personnel mentioned in Chapter 4.5 (commencing with
Section 830) of Title 3, or any firefighter as described in Section
245.1, as well as any other officer in any segment of law enforcement
who is employed by the federal government, the state, or any of its
political subdivisions.
(B) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(C) If any of the information required in subparagraph (B) is
missing from the petition, or if proof of service on the prosecuting
agency is not provided, the court shall return the petition to the
defendant and advise the defendant that the matter cannot be
considered without the missing information.
(D) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency was
served with the petition, unless a continuance is granted for good
cause.
(E) If the court finds by a preponderance of the evidence that the
statements in the petition are true, the court shall hold a hearing
to consider whether to recall the sentence and commitment previously
ordered and to resentence the defendant in the same manner as if the
defendant had not previously been sentenced, provided that the new
sentence, if any, is not greater than the initial sentence. Victims,
or victim family members if the victim is deceased, shall retain the
rights to participate in the hearing.
(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) Prior to the offense for which the sentence is being
considered for recall, the defendant had insufficient adult support
or supervision and had suffered from psychological or physical
trauma, or significant stress.
(v) The defendant suffers from cognitive limitations due to mental
illness, developmental disabilities, or other factors that did not
constitute a defense, but influenced the defendant's involvement in
the offense.
(vi) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(vii) The defendant has maintained family ties or connections with
others through letter writing, calls, or visits, or has eliminated
contact with individuals outside of prison who are currently involved
with crime.
(viii) The defendant has had no disciplinary actions for violent
activities in the last five years in which the defendant was
determined to be the aggressor.
(G) The court shall have the discretion to recall the sentence and
commitment previously ordered and to resentence the defendant in the
same manner as if the defendant had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence. The discretion of the court shall be exercised in
consideration of the criteria in subparagraph (B). Victims, or victim
family members if the victim is deceased, shall be notified of the
resentencing hearing and shall retain their rights to participate in
the hearing.
(H) If the sentence is not recalled, the defendant may submit
another petition for recall and resentencing to the sentencing court
when the defendant has been committed to the custody of the
department for at least 20 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 24 years. The final petition may be submitted,
and the response to that petition shall be determined, during the
25th year of the defendant's sentence.
(I) In addition to the criteria in subparagraph (F), the court may
consider any other criteria that the court deems relevant to its
decision, so long as the court identifies them on the record,
provides a statement of reasons for adopting them, and states why the
defendant does or does not satisfy the criteria.
(J) This subdivision shall have retroactive application.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole or postrelease
community supervision medications, and all property belonging
to the prisoner. After discharge, any additional records shall be
sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(11) The provisions of this subdivision shall be available to an
inmate who is sentenced to a county jail pursuant to subdivision (h).
For purposes of those inmates, "secretary" or "warden" shall mean
the county correctional administrator and "chief medical officer"
shall mean a physician designated by the county correctional
administrator for this purpose.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7 or a prior or current
conviction for a violent felony described in subdivision (c) of
Section 667.5, (B) has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a serious
felony described in subdivision (c) of Section 1192.7 or a violent
felony described in subdivision (c) of Section 667.5, (C) is required
to register as a sex offender pursuant to Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1, or (D) is convicted of a
crime and as part of the sentence an enhancement pursuant to Section
186.11 is imposed, an executed sentence for a felony punishable
pursuant to this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) (A) Unless the court finds, in the interest of justice, that
it is not appropriate in a particular case, the court, when imposing
a sentence pursuant to paragraph (1) or (2), shall suspend execution
of a concluding portion of the term for a period selected at the
court's discretion.
(B) The portion of a defendant's sentenced term that is suspended
pursuant to this paragraph shall be known as mandatory supervision,
and, unless otherwise ordered by the court, shall commence upon
release from physical custody or an alternative custody program,
whichever is later. During the period of mandatory supervision, the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. Any proceeding to revoke or modify mandatory
supervision under this subparagraph shall be conducted pursuant to
either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3.
During the period when the defendant is under such
that supervision, unless in actual custody related to the
sentence imposed by the court, the defendant shall be entitled to
only actual time credit against the term of imprisonment imposed by
the court. Any time period which is suspended because a person has
absconded shall not be credited toward the period of supervision.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(7) The sentencing changes made to paragraph (5) by the act that
added this paragraph shall become effective and operative on January
1, 2015, and shall be applied prospectively to any person sentenced
on or after January 1, 2015.
(i) This section shall become operative on January 1, 2017.
SEC. 3. Section 1170.3 of the Penal Code, as amended by Section 19
of Chapter 26 of the Statutes of 2014, is amended to read:
1170.3. The Judicial Council shall seek to promote uniformity in
sentencing under Section 1170 by:
(a) The adoption of rules providing criteria for the consideration
of the trial judge at the time of sentencing regarding the court's
decision to:
(1) Grant or deny probation.
(2) Impose the lower, middle, or upper prison term.
(3) Impose the lower, middle, or upper term pursuant to paragraph
(1) or (2) of subdivision (h) of Section 1170.
(3)
(4) Impose concurrent or consecutive sentences.
(4)
(5) Determine whether or not to impose an enhancement
where that determination is permitted by law.
(5)
(6) Deny a period of mandatory supervision in the
interests of justice under paragraph (5) of subdivision (h) of
Section 1170 or determine the appropriate period and conditions of
mandatory supervision. The rules implementing this paragraph shall be
adopted no later than January 1, 2015.
(7) Determine the county or jurisdictional territory of
incarceration when the court is imposing a sentence pursuant to
subdivision (h) of Section 1170 concurrent or consecutive to a
sentence previously imposed pursuant to subdivision (h) of Section
1170 in another county or jurisdictional territory.
(b) The adoption of rules standardizing the minimum content and
the sequential presentation of material in probation officer reports
submitted to the court regarding probation and mandatory supervision
under paragraph (5) of subdivision (h) of Section 1170.
(c) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2017, deletes or extends
that date.
SEC. 4. Section 1170.3 of the Penal Code, as amended by Section 20
of Chapter 26 of the Statutes of 2014, is amended to read:
1170.3. The Judicial Council shall seek to promote uniformity in
sentencing under Section 1170 by:
(a) The adoption of rules providing criteria for the consideration
of the trial judge at the time of sentencing regarding the court's
decision to:
(1) Grant or deny probation.
(2) Impose the lower or upper prison term.
(3) Impose the lower or upper term pursuant to paragraph (1) or
(2) of subdivision (h) of Section 1170.
(3)
(4) Impose concurrent or consecutive sentences.
(4)
(5) Determine whether or not to impose an enhancement
where that determination is permitted by law.
(5)
(6) Deny a period of mandatory supervision in the
interests of justice under paragraph (5) of subdivision (h) of
Section 1170 or determine the appropriate period and conditions of
mandatory supervision. The rules implementing this paragraph shall be
adopted no later than January 1, 2015.
(7) Determine the county or jurisdictional territory of
incarceration when the court is imposing a sentence pursuant to
subdivision (h) of Section 1170 concurrent or consecutive to a
sentence previously imposed pursuant to subdivision (h) of Section
1170 in another county or jurisdictional territory.
(b) The adoption of rules standardizing the minimum content and
the sequential presentation of material in probation officer reports
submitted to the court regarding probation and mandatory supervision
under paragraph (5) of subdivision (h) of Section 1170.
(c) This section shall become operative on January 1, 2017.
SEC. 5. Section 3451 of the Penal Code is amended to read:
3451. (a) Notwithstanding any other law and except for persons
serving a prison term for any crime described in subdivision (b), all
persons released from prison on and after October 1, 2011, or, whose
sentence has been deemed served pursuant to Section 2900.5 after
serving a prison term for a felony shall, upon release from prison
and for a period not exceeding three years immediately following
release, be subject to community supervision provided by a
county agency designated by each county's board of supervisors
the probation department of the county to which the
person is being released which is consistent with
evidence-based practices, including, but not limited to, supervision
policies, procedures, programs, and practices demonstrated by
scientific research to reduce recidivism among individuals under
postrelease supervision.
(b) This section shall not apply to any person released from
prison after having served a prison term for any of the following:
(1) A serious felony described in subdivision (c) of Section
1192.7.
(2) A violent felony described in subdivision (c) of Section
667.5.
(3) A crime for which the person was sentenced pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12.
(4) Any crime for which the person is classified as a high risk
sex offender.
(5) Any crime for which the person is required, as a condition of
parole, to undergo treatment by the State Department of State
Hospitals pursuant to Section 2962.
(c) (1) Postrelease supervision under this title shall be
implemented by a county agency the county
probation department according to a postrelease strategy
designated by each county's board of supervisors.
(2) The Department of Corrections and Rehabilitation shall inform
every prisoner subject to the provisions of this title, upon release
from state prison, of the requirements of this title and of his or
her responsibility to report to the county agency
responsible for serving that inmate probation
department . The department or probation department
shall also inform persons serving a term of parole or
postrelease community supervision for a felony offense who are
subject to this section of the requirements of this title and of his
or her responsibility to report to the county agency
responsible for serving that parolee probation
department . Thirty days prior to the release of any person
subject to postrelease supervision by a county, the department shall
notify the county of all information that would otherwise be required
for parolees under subdivision (e) of Section 3003.
(d) Any A person released
to postrelease community supervision pursuant to subdivision (a)
shall, regardless of any subsequent determination that the person
should have been released to parole pursuant to Section 3000.08,
remain subject to subdivision (a) after having served 60 days under
supervision pursuant to subdivision (a).
SEC. 6. Section 4852.01 of the Penal Code is amended to read:
4852.01. (a) Any person convicted of a felony who has
been released from a state prison or other state penal institution or
agency in California, whether discharged on completion of the term
for which he or she was sentenced or released on parole prior to May
13, 1943, who has not been
incarcerated in a state prison or other state penal
institution or agency since his or her release, and who presents
satisfactory evidence of a three-year residence in this state
immediately prior to the filing of the petition for a certificate of
rehabilitation and pardon provided for by this chapter, may file the
petition pursuant to the provisions of this chapter.
(b) Any
A person convicted of a felony who, on
May 13, 1943, was confined in a state prison or other institution or
agency to which he or she was committed and any person convicted of
a felony after that date who is committed to a state prison
or other institution or agency agency,
including commitment to a county jail pursuant to subdivision
(h) of Section 1170, may file a petition for a certificate of
rehabilitation and pardon pursuant to the provisions of this chapter.
(c) Any
(b) A person convicted of a
felony or any a person who is convicted
of a misdemeanor violation of any sex offense specified in Section
290, the accusatory pleading of which has been dismissed pursuant to
Section 1203.4, may file a petition for certificate of rehabilitation
and pardon pursuant to the provisions of this chapter if the
petitioner has not been incarcerated in any a
prison, jail, detention facility, or other penal institution
or agency since the dismissal of the accusatory pleading and
pleading, is not on probation for the
commission of any other felony, and the petitioner presents
satisfactory evidence of five years years
' residence in this state prior to the filing of the
petition.
(d)
( c) This chapter shall
does not apply to persons serving a mandatory life parole,
persons committed under death sentences, persons convicted of a
violation of Section 269, subdivision (c) of Section 286, Section
288, subdivision (c) of Section 288a, Section 288.5, Section 288.7,
or subdivision (j) of Section 289, or persons in military service.
(e)
( d) Notwithstanding any other law, the
Governor has the right to pardon a person convicted of a violation of
Section 269, subdivision (c) of Section 286, Section 288,
subdivision (c) of Section 288a, Section 288.5, Section 288.7, or
subdivision (j) of Section 289, if there are extraordinary
circumstances.
SEC. 7. Section 4852.03 of the Penal Code is amended to read:
4852.03. (a) The period of rehabilitation shall begin to
run commences upon the discharge of the
petitioner from custody due to his or her completion of the term to
which he or she was sentenced or upon his or her release on parole
, postrelease community supervision, mandatory supervision,
or probation, whichever is sooner. For purposes of this
chapter, the period of rehabilitation shall constitute five years'
residence in this state, plus a period of time determined by the
following rules:
(1) To the five years there shall be added
An additional four years in the case of any
a person convicted of violating Section 187, 209, 219,
4500, or 18755 of this code, or subdivision (a) of Section 1672 of
the Military and Veterans Code, or of committing any other offense
which carries a life sentence.
(2) To the five years there shall be added
An additional five years in the case of any
a person convicted of committing any
an offense or attempted offense for which sex offender
registration is required pursuant to Section 290, except for
convictions for violations that in the case of a
person convicted of a violation of subdivision (b), (c), or (d)
of Section 311.2, or of Section 311.3, 311.10, or 314. For
those convictions, two years shall be added to the five years imposed
by this section. 314, an additional two years.
(3) To the five years there shall be added
An additional two years in the case of any
a person convicted of committing any
an offense that is not listed in paragraph (1) or
paragraph (2) and that does not carry a life sentence.
(4) The trial court hearing the application for the certificate of
rehabilitation may, if the defendant was ordered to serve
consecutive sentences, order that his or her
the statutory period of rehabilitation be extended for an
additional period of time which when combined with the time already
served will not exceed the period prescribed by statute for the sum
of the maximum penalties for all the crimes.
(5) Any person who was discharged after completion of his or her
term or was released on parole before May 13, 1943, is not subject to
the periods of rehabilitation set forth in these rules.
(b) Unless and until the period of rehabilitation , as
stipulated in this section, required by subdivision
(a) has passed, the petitioner shall be ineligible to file his
or her petition for a certificate of rehabilitation with the court.
Any A certificate of rehabilitation
that is issued and under which the petitioner has not fulfilled the
requirements of this chapter shall be void.
(c) A change of residence within this state does not interrupt the
period of rehabilitation prescribed by this section.
SEC. 8. Section 4852.04 of the Penal Code is amended to read:
4852.04. Each person who may initiate the proceedings provided
for in this chapter shall be entitled to receive counsel and
assistance from all rehabilitative agencies, including the adult
probation officer of the county and all state parole officers, and,
in the case of persons under the age of 30 years,
30 years of age, from the Youth Authority.
Department of Corrections and Rehabilitation, Division
of Juvenile Facilities.
SEC. 9. Section 4852.06 of the Penal Code is amended to read:
4852.06. Except as provided in subdivision (a) of
Section 4852.01, after After the expiration of
the minimum period of rehabilitation applicable to him or her
(and, in the case of persons released upon parole or
probation, and after the termination of
parole or probation), each parole, probation,
postrelease supervision, or mandatory supervision, a person who
has complied with the requirements of Section 4852.05 may file in
the superior court of the county in which he or she then resides a
petition for ascertainment and declaration of the fact of his or her
rehabilitation and of matters incident thereto, and for a certificate
of rehabilitation under this chapter. No petition shall
A petition shall not be filed until and unless
the petitioner has continuously resided in this state, after leaving
prison or jail , for a period of not less than five years
immediately preceding the date of filing the petition.
SEC. 10. Section 4852.1 of the Penal Code is amended to read:
4852.1. (a) The court in which the petition
is filed may require such testimony as it deems
necessary, and the production, for the use of the court and without
expense of any kind to the petitioner, of all records and reports
relating to the petitioner and the crime of which he or she
was convicted, including the following:
(1) The record of the
trial, the trial.
(2) The report of the probation
officer, if any, the any.
(3) The records of the prison,
jail, detention facility , or other penal institution from
which the petitioner has been released showing his or her
conduct during the time he or she was there,
including the records of the penal institution or
institution, jail, or agency doctor and
psychiatrist, the psychiatrist.
(4) The records of the parole
officer concerning him if he the petitioner
if the petitioner was released on parole, records of the
probation officer concerning the petitioner if the petitioner was
released on postrelease community supervision or mandatory
supervision, or the records of the Youth Authority
Department of Corrections and
Rehabilitation, Division of Juvenile Facilities concerning
him if he has the petitioner if the
petitioner had been committed to the authority, and
that authority.
(5) The written reports or
records of any other law enforcement agency concerning the conduct of
the petitioner since his the petitioner's
release on probation or probation,
parole , postrelease community supervision, or mandatory
supervision, or discharge from custody. All persons
(b) A person having custody of
any such of the records described
in subdivision (a) shall make them available for the use of the
court in the proceeding.
SEC. 11. Section 4852.21 of the Penal Code is amended to read:
4852.21. (a) Any A person to whom
this chapter applies shall, prior to his discharge
or release on parole from a state prison or other state penal
institution or agency, or prior to discharge or release on
postrelease community supervision or mandatory supervision
from a county jail, be informed in writing by the official in
charge of the place of confinement of his the
person's right to petition for, and of the procedure for
filing the petition for , and obtaining, a
certificate of rehabilitation and pardon pursuant to this chapter.
(b) Prior to dismissal of the accusatory pleading pursuant to
Section 1203.4, the defendant shall be informed in writing by the
clerk of the court dismissing the accusatory pleading of the
defendant's right, if any, to petition for, and of the procedure for
filing a petition for , and obtaining, a
certificate of rehabilitation and pardon pursuant to this chapter.
SEC. 12. Section 41500 of the Vehicle Code is amended to read:
41500. (a) No A person shall
not be subject to prosecution for any a
nonfelony offense arising out of the operation of a motor
vehicle or violation of this code as a pedestrian which
that is pending against him or her at
the time of his or her commitment to the custody of the
of Corrections or the Department of the Youth Authority
Secretary of the Department of Corrections and
Rehabilitation, the Division of Juvenile Justice in the Department of
Corrections and Rehabilitation, or to a county jail pursuant to
subdivision (h) of Section 1170 of the Penal Code .
(b) Notwithstanding any other provisions of law to the
contrary, no law, a driver's license shall
not be suspended or revoked, nor shall
and the issuance or renewal of a license shall not
be refused as a result of a pending nonfelony offense occurring prior
to the time a person was committed to the custody of the
Director of Corrections or the Department of the Youth Authority
Secretary of the Department of Corrections and
Rehabilitation, the Division of Juvenile Justice of the Department of
Corrections and Rehabilitation, or a county jail pursuant to
subdivision (h) of Section 1170 of the Penal Code, or as a
result of a notice received by the department pursuant to subdivision
(a) of Section 40509 when the offense which
that gave rise to the notice occurred prior to the time a
person was committed to the custody of the Director of
Corrections or the Department of the Youth Authority
Secretary of the Department of Corrections and Rehabilitation or the
Division of Juvenile Justice of the Department of Corrections and
Rehabilitation .
(c) The department shall remove from its records any
notice received by it pursuant to subdivision (a) of
Section 40509 upon receipt of satisfactory evidence that a person was
committed to the custody of the Director of Corrections or
the Department of the Youth Authority Secretary of the
Department of Corrections and Rehabilitation, the Division of
Juvenile Justice of the Department of Corrections and
Rehabilitation, or a county jail pursuant to subdivision (h) of
Section 1170 of the Penal Code, after the offense
which that gave rise to the notice occurred.
(d) The provisions of this section shall not apply to any
a nonfelony offense wherein
if the department is required by this code to immediately
revoke or suspend the privilege of any a
person to drive a motor vehicle upon receipt of a duly
certified abstract of the record of any a
court showing that the person has been convicted of that
nonfelony offense.
(e) The provisions of subdivisions (a), (b), and (c) do not apply
to any an offense committed by a person
while he or she is temporarily released from custody
pursuant to law or while he or she is on parole or
postrelease community supervision .
(f) The provisions of subdivisions (a), (b), and (c) do not apply
if the pending offense is a violation of Section 23103, 23152, or
23153.
SEC. 13. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.