Amended in Assembly March 30, 2016

Amended in Assembly March 28, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2205

Introduced by Assembly Member Dodd

February 18, 2016

An act to amend Sections 1170, 1203.2, and 3456 of the Penal Code, relating to supervised persons.

LEGISLATIVE COUNSEL’S DIGEST

AB 2205, as amended, Dodd. Supervised persons: credits.

Existing law, until January 1, 2017, requires that when a statute imposes 3 possible terms of imprisonment, the choice of the appropriate term to impose is within the court’s discretion. Existing law authorizes a court, when sentencing a person to county jail for a felony, to commit the person to county jail for either the full term in custody, as specified, or to suspend the execution of a concluding portion of the term selected at the court’s discretion. Under existing law, this period of suspended execution is supervised by the county probation officer and is known as mandatory supervision. Existing law prohibits any time period which is suspended because a person has absconded from being credited toward the period of supervision.

This bill would begin delete extend the operation of the sentencing term provisions described above until January 1, 2020. This bill would end delete revise those provisions to prohibit the period of time during any revocation, summary or otherwise, of mandatory supervision from bring credited toward any period of supervision, begin insert and would provide that a person not end insert remain in custody for a period longer than the term of supervision. The bill would also provide that the period of the stay of the sentence would not extend beyond 5 years from the date of the last summary revocation of supervision, subject to exception, and in no event would the stay be extended beyond 10 years from the date of the last summary revocation of supervision.

Existing law allows a probation officer, parole officer, or peace officer to arrest a person without warrant or other process during the period that a person is released on probation, conditional sentence or summary probation, or mandatory supervision, or when the person is subject to revocation of postrelease community supervision or parole supervision, if the officer has probable cause to believe that the supervised person is violating the terms of his or her supervision. Under existing law, the revocation of supervision, summary or otherwise, serves to toll the running of the period of supervision.

This bill would instead prohibit the period of time during any revocation, summary or otherwise, from being credited toward any period of supervision. The bill would also provide that the period of the stay of the sentence would not extend beyond 5 years from the date of the last summary revocation of supervision, subject to exception, and in no event would the stay be extended beyond 10 years from the date of the last summary revocation of supervision.

Existing law requires a county agency responsible for postrelease supervision to maintain postrelease supervision over a person subject to that supervision until one of several specified events occurs. Existing law prohibits the time during which a person on postrelease supervision is suspended because the person has absconded from being credited toward any period of postrelease supervision.

This bill would revise that prohibition to prohibit the period of time during any revocation, summary or otherwise, from being credited toward any period of supervision, provided however, that the person subject to postrelease supervision would not remain in custody for a period longer than the authorized term of supervision. The bill would also provide that the period of the stay of the sentence would not extend beyond 5 years from the date of the last summary revocation of supervision, subject to exception, and in no event would the stay be extended beyond 10 years from the date of the last summary revocation of supervision. The bill would make additional technical, nonsubstantive changes to those provisions.

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 378 of the Statutes of 2015, 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 is best
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 a 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 a 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 a case
in which the amount of preimprisonment credit under Section
2900.5 or any other law is equal to or exceeds a 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 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 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 that, 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 an
enhancement upon which sentence is imposed under any 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 a defendant 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 their 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) (i) 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, or loss of control of muscular or
neurological function, and that incapacitation did not exist at the
time of the original sentencing.

(ii) 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) A 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 provision 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) A 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 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 a 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), an 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. A 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 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. The period of time during any revocation, summary
or otherwise, shall not be credited toward any period of supervision,
provided, however, that the defendant shall not remain in custody
for a period longer than the term of supervision authorized under
this section and that the period of the stay shall not extend beyond
five years from the date of the last summary revocation of
supervision unless the court finds, based on the seriousness of the
defendant’s current conviction or the defendant’s past criminal
record, that it would be in the interests of justice to further extend
the stay. In no event shall the stay be extended beyond 10 years
from the date of the last summary revocation of supervision.

(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to a 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 a person
sentenced on or after January 1, 2015.

(i) This section shall remain in effect only until January 1, begin delete 2020, end delete
begin insert 2017, end insert and as of that date is repealed, unless a later enacted statute,
that is enacted before that date, deletes or extends that date.

SEC. 2.  

Section 1170 of the Penal Code, as amended by Section
2 of Chapter 378 of the Statutes of 2015, 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 is best
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 a 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 a 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 a case
in which the amount of preimprisonment credit under Section
2900.5 or any other provision of law is equal to or exceeds a
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 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 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 an enhancement
upon which sentence is imposed under any 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 a defendant 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 their 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) (i) 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, or loss of control of muscular or
neurological function, and that incapacitation did not exist at the
time of the original sentencing.

(ii) 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) A 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 provision 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) A 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 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 a 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), an 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. A 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 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. The period of time during any revocation, summary
or otherwise, shall not be credited toward any period of supervision,
provided, however, that the defendant shall not remain in custody
for a period longer than the term of supervision authorized under
this section and that the period of the stay shall not extend beyond
five years from the date of the last summary revocation of
supervision unless the court finds, based on the seriousness of the
defendant’s current conviction or the defendant’s past criminal
record, that it would be in the interests of justice to further extend
the stay. In no event shall the stay be extended beyond 10 years
from the date of the last summary revocation of supervision.

(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to a 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 a person
sentenced on or after January 1, 2015.

(i) This section shall become operative on January 1, begin delete 2020. end delete

begin insert 2017. end insert

SEC. 3.  

Section 1203.2 of the Penal Code is amended to read:

1203.2.  

(a) At any time during the period of supervision of a
person (1) released on probation under the care of a probation
officer pursuant to this chapter, (2) released on conditional sentence
or summary probation not under the care of a probation officer,
(3) placed on mandatory supervision pursuant to subparagraph (B)
of paragraph (5) of subdivision (h) of Section 1170, (4) subject to
revocation of postrelease community supervision pursuant to
Section 3455, or (5) subject to revocation of parole supervision
pursuant to Section 3000.08, if any probation officer, parole officer,
or peace officer has probable cause to believe that the supervised
person is violating any term or condition of his or her supervision,
the officer may, without warrant or other process and at any time
until the final disposition of the case, rearrest the supervised person
and bring him or her before the court or the court may, in its
discretion, issue a warrant for his or her rearrest. Notwithstanding
Section 3056, and unless the supervised person is otherwise serving
a period of flash incarceration, whenever a supervised person who
is subject to this section is arrested, with or without a warrant or
the filing of a petition for revocation as described in subdivision
(b), the court may order the release of a supervised person from
custody under any terms and conditions the court deems
appropriate. Upon rearrest, or upon the issuance of a warrant for
rearrest, the court may revoke and terminate the supervision of the
person if the interests of justice so require and the court, in its
judgment, has reason to believe from the report of the probation
or parole officer or otherwise that the person has violated any of
the conditions of his or her supervision, has become abandoned
to improper associates or a vicious life, or has subsequently
committed other offenses, regardless of whether he or she has been
prosecuted for those offenses. However, the court shall not
terminate parole pursuant to this section. Supervision shall not be
revoked for failure of a person to make restitution imposed as a
condition of supervision unless the court determines that the
defendant has willfully failed to pay and has the ability to pay.
Restitution shall be consistent with a person’s ability to pay. The
period of time during any revocation, summary or otherwise, shall
not be credited toward any period of supervision, provided,
however, that the period of the stay shall not extend beyond five
years from the date of the last summary revocation of supervision
unless the court finds, based on the seriousness of the defendant’s
current conviction or the defendant’s past criminal record, that it
would be in the interests of justice to further extend the stay. In
no event shall the stay be extended beyond 10 years from the date
of the last summary revocation of supervision.

(b) (1) Upon its own motion or upon the petition of the
supervised person, the probation or parole officer, or the district
attorney, the court may modify, revoke, or terminate supervision
of the person pursuant to this subdivision, except that the court
shall not terminate parole pursuant to this section. The court in the
county in which the person is supervised has jurisdiction to hear
the motion or petition, or for those on parole, either the court in
the county of supervision or the court in the county in which the
alleged violation of supervision occurred. A person supervised on
parole or postrelease community supervision pursuant to Section
3455 may not petition the court pursuant to this section for early
release from supervision, and a petition under this section shall
not be filed solely for the purpose of modifying parole. This section
does not prohibit the court in the county in which the person is
supervised or in which the alleged violation of supervision occurred
from modifying a person’s parole when acting on the court’s own
motion or a petition to revoke parole. The court shall give notice
of its motion, and the probation or parole officer or the district
attorney shall give notice of his or her petition to the supervised
person, his or her attorney of record, and the district attorney or
the probation or parole officer, as the case may be. The supervised
person shall give notice of his or her petition to the probation or
parole officer and notice of any motion or petition shall be given
to the district attorney in all cases. The court shall refer its motion
or the petition to the probation or parole officer. After the receipt
of a written report from the probation or parole officer, the court
shall read and consider the report and either its motion or the
petition and may modify, revoke, or terminate the supervision of
the supervised person upon the grounds set forth in subdivision
(a) if the interests of justice so require.

(2) The notice required by this subdivision may be given to the
supervised person upon his or her first court appearance in the
proceeding. Upon the agreement by the supervised person in
writing to the specific terms of a modification or termination of a
specific term of supervision, any requirement that the supervised
person make a personal appearance in court for the purpose of a
modification or termination shall be waived. Prior to the
modification or termination and waiver of appearance, the
supervised person shall be informed of his or her right to consult
with counsel, and if indigent the right to secure court appointed
counsel. If the supervised person waives his or her right to counsel
a written waiver shall be required. If the supervised person consults
with counsel and thereafter agrees to a modification, revocation,
or termination of the term of supervision and waiver of personal
appearance, the agreement shall be signed by counsel showing
approval for the modification or termination and waiver.

(c) Upon any revocation and termination of probation the court
may, if the sentence has been suspended, pronounce judgment for
any time within the longest period for which the person might have
been sentenced. However, if the judgment has been pronounced
and the execution thereof has been suspended, the court may revoke
the suspension and order that the judgment shall be in full force
and effect. In either case, the person shall be delivered over to the
proper officer to serve his or her sentence, less any credits herein
provided for.

(d) In any case of revocation and termination of probation,
including, but not limited to, cases in which the judgment has been
pronounced and the execution thereof has been suspended, upon
the revocation and termination, the court may, in lieu of any other
sentence, commit the person to the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities if he or she is
otherwise eligible for that commitment.

(e) If probation has been revoked before the judgment has been
pronounced, the order revoking probation may be set aside for
good cause upon motion made before pronouncement of judgment.
If probation has been revoked after the judgment has been
pronounced, the judgment and the order which revoked the
probation may be set aside for good cause within 30 days after the
court has notice that the execution of the sentence has commenced.
If an order setting aside the judgment, the revocation of probation,
or both is made after the expiration of the probationary period, the
court may again place the person on probation for that period and
with those terms and conditions as it could have done immediately
following conviction.

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

(1) “Court” means a judge, magistrate, or revocation hearing
officer described in Section 71622.5 of the Government Code.

(2) “Probation officer” means a probation officer as described
in Section 1203 or an officer of the agency designated by the board
of supervisors of a county to implement postrelease community
supervision pursuant to Section 3451.

(3) “Supervised person” means a person who satisfies any of
the following:

(A) He or she is released on probation subject to the supervision
of a probation officer.

(B) He or she is released on conditional sentence or summary
probation not under the care of a probation officer.

(C) He or she is subject to mandatory supervision pursuant to
subparagraph (B) of paragraph (5) of subdivision (h) of Section
1170.

(D) He or she is subject to revocation of postrelease community
supervision pursuant to Section 3455.

(E) He or she is subject to revocation of parole pursuant to
Section 3000.08.

(g) This section does not affect the authority of the supervising
agency to impose intermediate sanctions, including flash
incarceration, to persons supervised on parole pursuant to Section
3000.8 or postrelease community supervision pursuant to Part 3
(commencing with Section 3450) of Title 2.05.

SEC. 4.  

Section 3456 of the Penal Code is amended to read:

3456.  

(a) The county agency responsible for postrelease
supervision, as established by the county board of supervisors
pursuant to subdivision (a) of Section 3451, shall maintain
postrelease supervision over a person under postrelease supervision
pursuant to this title until one of the following events occurs:

(1) The person has been subject to postrelease supervision
pursuant to this title for three years at which time the offender shall
be immediately discharged from postrelease supervision.

(2) The person who has been on postrelease supervision
continuously for one year with no violations of his or her conditions
of postrelease supervision that result in a custodial sanction shall
be discharged from supervision within 30 days.

(3) Jurisdiction over the person has been terminated by operation
of law.

(4) Jurisdiction is transferred to another supervising county
agency.

(5) Jurisdiction is terminated by the revocation hearing officer
upon a petition to revoke and terminate supervision by the
supervising county agency.

(b) A person on postrelease supervision for six consecutive
months with no violations of his or her conditions of postrelease
supervision that result in a custodial sanction may be considered
for immediate discharge by the supervising county.

(c) The period of time during any revocation, summary or
otherwise, shall not be credited toward any period of supervision,
provided, however, that the person subject to postrelease
supervision shall not remain in custody for a period longer than
the term of supervision authorized under this section and that the
period of the stay shall not extend beyond five years from the date
of the last summary revocation of supervision unless the court
finds, based on the seriousness of the defendant’s current
conviction or the defendant’s past criminal record, that it would
be in the interests of justice to further extend the stay. In no event
shall the stay be extended beyond 10 years from the date of the
last summary revocation of supervision.