California Legislature—2015–16 Regular Session

Assembly Bill No. 1456

Introduced by Assembly Member Thurmond

February 27, 2015

An act to amend Section 1170 of the Penal Code, relating to criminal punishment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1456, as introduced, Thurmond. Crimes: sentencing.

Existing law generally requires that felonies punishable by imprisonment in a county jail be punished either by the term described in the underlying offense or by a term of 16 months, or 2 or 3 years if the term is not specified. Existing law requires an executed sentence for these felonies to be punished in state prison if the defendant has a prior or current felony conviction for a serious or violent felony, is required to register as a sex offender, or is convicted of a crime for which the white collar crime enhancement is imposed as part of the sentence.

This bill would make technical, nonsubstantive changes to that provision.

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

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 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 begin delete provision of end delete 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 begin delete provision of end delete law is equal to or exceeds begin delete any end delete begin insert a end insert sentence
imposed pursuant to this chapter, the entire sentence shall be
deemed to have been served and the defendant shall not be actually
delivered to the custody of the secretary. The court shall advise
the defendant that he or she shall serve a period of parole and order
the defendant to report to the parole office closest to the defendant’s
last legal residence, unless the in-custody credits equal the total
sentence, including both confinement time and the period of parole.
The sentence shall be deemed a separate prior prison term under
Section 667.5, and a copy of the judgment and other necessary
documentation shall be forwarded to the secretary.

(b)  begin delete When end delete begin insert If end insert a judgment of imprisonment is to be imposed and
the statute specifies three possible terms, the choice of the
appropriate term begin delete shall rest end delete begin insert rests end insert 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 begin delete provision of end delete law. A term of imprisonment shall not be specified
if imposition of sentence is suspended.

(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform
the defendant that as part of the sentence after expiration of the
term he or she may be on parole for a period as provided in Section
3000.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(H) If the sentence is not recalled, the defendant may submit
another petition for recall and resentencing to the sentencing court
when the defendant has been committed to the custody of the
department for at least 20 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 24 years. The final petition may be submitted,
and the response to that petition shall be determined, during the
25th year of the defendant’s sentence.

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

(J) This subdivision shall have retroactive application.

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

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

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

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

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

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

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

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

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

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

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

(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), begin delete any end delete begin insert an end insert 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), begin delete where end delete begin insert if end insert 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. begin delete Any end delete begin insert A end insert proceeding to
revoke or modify mandatory supervision under this subparagraph
shall be conducted pursuant to either subdivisions (a) and (b) of
Section 1203.2 or Section 1203.3. During the period when the
defendant is under such supervision, unless in actual custody
related to the sentence imposed by the court, the defendant shall
be entitled to only actual time credit against the term of
imprisonment imposed by the court. Any time period which is
suspended because a person has absconded shall not be credited
toward the period of supervision.

(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.