California Legislature—2015–16 Regular Session

Assembly BillNo. 2380


Introduced by Assembly Member Alejo

February 18, 2016


An act to add Article 5.8 (commencing with Section 1559.200) to Chapter 3 of Division 2 of the Health and Safety Code, and to amend Section 1170 of the Penal Code, relating to caregivers.

LEGISLATIVE COUNSEL’S DIGEST

AB 2380, as introduced, Alejo. Informal caregivers: background checks.

Existing law requires the State Department of Social Services to license and regulate community care facilities, including foster family homes, certified family homes of licensed foster family agencies, and group homes. Existing law requires that persons providing care or services at these homes or facilities obtain either a criminal record clearance or an exemption from disqualification from the department, as prescribed. Under existing law, a violation of these provisions is a crime.

This bill would additionally require an informal caregiver, as defined, to obtain a criminal records clearance or exemption from the department for each adult residing in, or regularly present in, the home, if the caregiver has been designated by a parent who has been convicted of a felony and sentenced to imprisonment for a period of at least one year. The bill would exempt from these requirements an adult sibling or an informal caregiver who began caring for the child before January 1, 2017. Because a violation of these requirements would be a crime, this bill would impose a state-mandated local program.

The bill would also require the court, when it sentences a person to a term of imprisonment of one year or more, to inform the person that an informal caregiver designated by the person to care for the person’s minor children may be required to obtain a criminal records clearance or exemption from the department.

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 no reimbursement is required by this act for a specified reason.

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

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

P2    1

SECTION 1.  

Article 5.8 (commencing with Section 1559.200)
2is added to Chapter 3 of Division 2 of the Health and Safety Code,
3to read:

4 

5Article 5.8.  Informal Caregivers
6

 

7

1559.200.  

(a) An informal caregiver shall obtain a criminal
8records clearance or exemption for each adult residing in, or
9regularly present in, the home, as set forth in Section 1522 of the
10Health and Safety Code, if the caregiver has been designated as
11the caregiver by a parent who has been convicted of a felony and
12sentenced to imprisonment for a period of at least one year.

13(b) This section does not apply to either of the following:

14(1) An informal caregiver who is an adult sibling of the child.

15(2) An informal caregiver who began caring for the child before
16January 1, 2017.

17(c) For purposes of this section, “informal caregiver” means a
18person who has assumed responsibility for the care and custody
19of a child, without the involvement of the court, child protective
20services agency, or other governmental agency.

21

SEC. 2.  

Section 1170 of the Penal Code, as amended by Section
222 of Chapter 378 of the Statutes of 2015, is amended to read:

23

1170.  

(a) (1) The Legislature finds and declares that the
24purpose of imprisonment for crime is punishment. This purpose
25is best served by terms proportionate to the seriousness of the
P3    1offense with provision for uniformity in the sentences of offenders
2committing the same offense under similar circumstances. The
3Legislature further finds and declares that the elimination of
4disparity and the provision of uniformity of sentences can best be
5achieved by determinate sentences fixed by statute in proportion
6to the seriousness of the offense as determined by the Legislature
7to be imposed by the court with specified discretion.

8(2) Notwithstanding paragraph (1), the Legislature further finds
9and declares that programs should be available for inmates,
10 including, but not limited to, educational programs, that are
11designed to prepare nonviolent felony offenders for successful
12reentry into the community. The Legislature encourages the
13development of policies and programs designed to educate and
14rehabilitate nonviolent felony offenders. In implementing this
15section, the Department of Corrections and Rehabilitation is
16encouraged to give priority enrollment in programs to promote
17successful return to the community to an inmate with a short
18remaining term of commitment and a release date that would allow
19him or her adequate time to complete the program.

20(3) In any case in which the punishment prescribed by statute
21for a person convicted of a public offense is a term of imprisonment
22in the state prison, or a term pursuant to subdivision (h), of any
23specification of three time periods, the court shall sentence the
24defendant to one of the terms of imprisonment specified unless
25the convicted person is given any other disposition provided by
26law, including a fine, jail, probation, or the suspension of
27imposition or execution of sentence or is sentenced pursuant to
28subdivision (b) of Section 1168 because he or she had committed
29his or her crime prior to July 1, 1977. In sentencing the convicted
30person, the court shall apply the sentencing rules of the Judicial
31Council. The court, unless it determines that there are
32circumstances in mitigation of the punishment prescribed, shall
33also impose any other term that it is required by law to impose as
34an additional term. Nothing in this article shall affect any provision
35of law that imposes the death penalty, that authorizes or restricts
36the granting of probation or suspending the execution or imposition
37of sentence, or expressly provides for imprisonment in the state
38prison for life, except as provided in paragraph (2) of subdivision
39(d). In any case in which the amount of preimprisonment credit
40under Section 2900.5 or any other provision of law is equal to or
P4    1 exceeds any sentence imposed pursuant to this chapter, except for
2a remaining portion of mandatory supervision imposed pursuant
3to subparagraph (B) of paragraph (5) of subdivision (h), the entire
4sentence shall be deemed to have been served, except for the
5remaining period of mandatory supervision, and the defendant
6shall not be actually delivered to the custody of the secretary or
7the county correctional administrator. The court shall advise the
8defendant that he or she shall serve an applicable period of parole,
9postrelease community supervision, or mandatory supervision and
10order the defendant to report to the parole or probation office
11closest to the defendant’s last legal residence, unless the in-custody
12credits equal the total sentence, including both confinement time
13and the period of parole, postrelease community supervision, or
14mandatory supervision. The sentence shall be deemed a separate
15prior prison term or a sentence of imprisonment in a county jail
16under subdivision (h) for purposes of Section 667.5, and a copy
17of the judgment and other necessary documentation shall be
18forwarded to the secretary.

19(b) When a judgment of imprisonment is to be imposed and the
20statute specifies three possible terms, the court shall order
21imposition of the middle term, unless there are circumstances in
22aggravation or mitigation of the crime. At least four days prior to
23the time set for imposition of judgment, either party or the victim,
24or the family of the victim if the victim is deceased, may submit
25a statement in aggravation or mitigation to dispute facts in the
26record or the probation officer’s report, or to present additional
27facts. In determining whether there are circumstances that justify
28imposition of the upper or lower term, the court may consider the
29record in the case, the probation officer’s report, other reports,
30including reports received pursuant to Section 1203.03, and
31statements in aggravation or mitigation submitted by the
32prosecution, the defendant, or the victim, or the family of the victim
33if the victim is deceased, and any further evidence introduced at
34the sentencing hearing. The court shall set forth on the record the
35facts and reasons for imposing the upper or lower term. The court
36may not impose an upper term by using the fact of any
37enhancement upon which sentence is imposed under any provision
38of law. A term of imprisonment shall not be specified if imposition
39of sentence is suspended.

P5    1(c) begin insert(1)end insertbegin insertend insertThe court shall state the reasons for its sentence choice
2on the record at the time of sentencing. The court shall also inform
3the defendant that as part of the sentence after expiration of the
4term he or she may be on parole for a period as provided in Section
53000 or 3000.08 or postrelease community supervision for a period
6as provided in Section 3451.

begin insert

7(2) When the court sentences a person to a term of imprisonment
8of one year or more, it shall inform the person that an informal
9caregiver designated by the person to care for the person’s minor
10child may be subject to the requirements of Section 1559.200 of
11the Health and Safety Code.

end insert

12(d) (1) When a defendant subject to this section or subdivision
13(b) of Section 1168 has been sentenced to be imprisoned in the
14state prison or county jail pursuant to subdivision (h) and has been
15committed to the custody of the secretary or the county correctional
16administrator, the court may, within 120 days of the date of
17commitment on its own motion, or at any time upon the
18recommendation of the secretary or the Board of Parole Hearings
19in the case of state prison inmates, or the county correctional
20administrator in the case of county jail inmates, recall the sentence
21and commitment previously ordered and resentence the defendant
22in the same manner as if he or she had not previously been
23sentenced, provided the new sentence, if any, is no greater than
24the initial sentence. The court resentencing under this subdivision
25shall apply the sentencing rules of the Judicial Council so as to
26eliminate disparity of sentences and to promote uniformity of
27sentencing. Credit shall be given for time served.

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

34(ii) Notwithstanding clause (i), this paragraph shall not apply
35to defendants sentenced to life without parole for an offense where
36the defendant tortured, as described in Section 206, his or her
37victim or the victim was a public safety official, including any law
38enforcement personnel mentioned in Chapter 4.5 (commencing
39with Section 830) of Title 3, or any firefighter as described in
40Section 245.1, as well as any other officer in any segment of law
P6    1enforcement who is employed by the federal government, the state,
2or any of its political subdivisions.

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

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

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

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

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

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

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

34(E) If the court finds by a preponderance of the evidence that
35the statements in the petition are true, the court shall hold a hearing
36to consider whether to recall the sentence and commitment
37previously ordered and to resentence the defendant in the same
38manner as if the defendant had not previously been sentenced,
39provided that the new sentence, if any, is not greater than the initial
P7    1sentence. Victims, or victim family members if the victim is
2deceased, shall retain the rights to participate in the hearing.

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

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

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

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

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

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

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

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

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

35(G) The court shall have the discretion to recall the sentence
36and commitment previously ordered and to resentence the
37defendant in the same manner as if the defendant had not
38previously been sentenced, provided that the new sentence, if any,
39 is not greater than the initial sentence. The discretion of the court
40shall be exercised in consideration of the criteria in subparagraph
P8    1 (B). Victims, or victim family members if the victim is deceased,
2shall be notified of the resentencing hearing and shall retain their
3rights to participate in the hearing.

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

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

17(J) This subdivision shall have retroactive application.

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

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

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

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

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

39The Board of Parole Hearings shall make findings pursuant to
40this subdivision before making a recommendation for resentence
P9    1or recall to the court. This subdivision does not apply to a prisoner
2sentenced to death or a term of life without the possibility of parole.

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

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

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

25(6) Notwithstanding any other provisions of this section, the
26prisoner or his or her family member or designee may
27independently request consideration for recall and resentencing
28by contacting the chief medical officer at the prison or the
29secretary. Upon receipt of the request, the chief medical officer
30and the warden or the warden’s representative shall follow the
31procedures described in paragraph (4). If the secretary determines
32that the prisoner satisfies the criteria set forth in paragraph (2), the
33secretary or board may recommend to the court that the prisoner’s
34sentence be recalled. The secretary shall submit a recommendation
35for release within 30 days in the case of inmates sentenced to
36determinate terms and, in the case of inmates sentenced to
37indeterminate terms, the secretary shall make a recommendation
38to the Board of Parole Hearings with respect to the inmates who
39have applied under this section. The board shall consider this
40information and make an independent judgment pursuant to
P10   1paragraph (2) and make findings related thereto before rejecting
2the request or making a recommendation to the court. This action
3shall be taken at the next lawfully noticed board meeting.

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

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

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

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

27(11) The provisions of this subdivision shall be available to an
28inmate who is sentenced to a county jail pursuant to subdivision
29(h). For purposes of those inmates, “secretary” or “warden” shall
30mean the county correctional administrator and “chief medical
31officer” shall mean a physician designated by the county
32 correctional administrator for this purpose.

33(f) Notwithstanding any other provision of this section, for
34purposes of paragraph (3) of subdivision (h), any allegation that
35a defendant is eligible for state prison due to a prior or current
36conviction, sentence enhancement, or because he or she is required
37to register as a sex offender shall not be subject to dismissal
38pursuant to Section 1385.

P11   1(g) A sentence to state prison for a determinate term for which
2only one term is specified, is a sentence to state prison under this
3section.

4(h) (1) Except as provided in paragraph (3), a felony punishable
5pursuant to this subdivision where the term is not specified in the
6underlying offense shall be punishable by a term of imprisonment
7in a county jail for 16 months, or two or three years.

8(2) Except as provided in paragraph (3), a felony punishable
9pursuant to this subdivision shall be punishable by imprisonment
10in a county jail for the term described in the underlying offense.

11(3) Notwithstanding paragraphs (1) and (2), where the defendant
12(A) has a prior or current felony conviction for a serious felony
13described in subdivision (c) of Section 1192.7 or a prior or current
14conviction for a violent felony described in subdivision (c) of
15Section 667.5, (B) has a prior felony conviction in another
16jurisdiction for an offense that has all the elements of a serious
17felony described in subdivision (c) of Section 1192.7 or a violent
18felony described in subdivision (c) of Section 667.5, (C) is required
19to register as a sex offender pursuant to Chapter 5.5 (commencing
20with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
21and as part of the sentence an enhancement pursuant to Section
22186.11 is imposed, an executed sentence for a felony punishable
23pursuant to this subdivision shall be served in state prison.

24(4) Nothing in this subdivision shall be construed to prevent
25other dispositions authorized by law, including pretrial diversion,
26deferred entry of judgment, or an order granting probation pursuant
27to Section 1203.1.

28(5) (A) Unless the court finds, in the interest of justice, that it
29is not appropriate in a particular case, the court, when imposing a
30sentence pursuant to paragraph (1) or (2), shall suspend execution
31of a concluding portion of the term for a period selected at the
32court’s discretion.

33(B) The portion of a defendant’s sentenced term that is
34suspended pursuant to this paragraph shall be known as mandatory
35supervision, and, unless otherwise ordered by the court, shall
36commence upon release from physical custody or an alternative
37custody program, whichever is later. During the period of
38mandatory supervision, the defendant shall be supervised by the
39county probation officer in accordance with the terms, conditions,
40and procedures generally applicable to persons placed on probation,
P12   1for the remaining unserved portion of the sentence imposed by the
2court. The period of supervision shall be mandatory, and may not
3be earlier terminated except by court order. Any proceeding to
4revoke or modify mandatory supervision under this subparagraph
5shall be conducted pursuant to either subdivisions (a) and (b) of
6Section 1203.2 or Section 1203.3. During the period when the
7defendant is under that supervision, unless in actual custody related
8to the sentence imposed by the court, the defendant shall be entitled
9to only actual time credit against the term of imprisonment imposed
10by the court. Any time period which is suspended because a person
11 has absconded shall not be credited toward the period of
12supervision.

13(6) The sentencing changes made by the act that added this
14subdivision shall be applied prospectively to any person sentenced
15on or after October 1, 2011.

16(7) The sentencing changes made to paragraph (5) by the act
17that added this paragraph shall become effective and operative on
18January 1, 2015, and shall be applied prospectively to any person
19sentenced on or after January 1, 2015.

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

21

SEC. 3.  

No reimbursement is required by this act pursuant to
22Section 6 of Article XIII B of the California Constitution because
23the only costs that may be incurred by a local agency or school
24district will be incurred because this act creates a new crime or
25infraction, eliminates a crime or infraction, or changes the penalty
26for a crime or infraction, within the meaning of Section 17556 of
27the Government Code, or changes the definition of a crime within
28the meaning of Section 6 of Article XIII B of the California
29Constitution.



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