AB 2590, as introduced, Weber. Sentencing: restorative justice.
Existing law provides legislative findings and declarations that the purpose of imprisonment for crime is punishment, and that 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. Existing law further provides that, notwithstanding those provisions, the Legislature 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. Existing law provides other legislative findings and declarations relating to the development of policies and programs.
This bill would instead provide legislative findings and declarations that the purpose of sentencing is public safety achieved through restorative justice and that this purpose is best served by taking into account the science of brain development and maturity and the effects of violence on individuals in disadvantaged neighborhoods, among other specified factors. This bill would provide other legislative findings and declarations, as specified.
Existing law, until January 1, 2017, provides that when a judgment of imprisonment is to be imposed and the statute specifies 3 possible terms, the choice of the appropriate term rests within the sound discretion of the court, in best serving the interests of justice. Existing law, commencing January 1, 2017, requires the court in that circumstance to order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime, as specified.
This bill would repeal the provisions that would have been operative on January 1, 2017, and would indefinitely extend the above authority granting the court discretion in determining the sentence. This bill would also grant, when a judgment of imprisonment is to be imposed and the statute specifies 3 possible terms, the court discretion to sentence as an alternative to incarceration the defendant to community-based punishment, as specified, so long as the court imposes a sentence in which the combined periods of incarceration and the alternative to incarceration total at least the minimum term of the 3 possible terms. The bill would prohibit a sentence that includes an alternative to incarceration from exceeding the length of the otherwise applicable upper term of incarceration. The bill would require that the sentence imposed be sufficient, but not greater than necessary, to achieve the purpose of sentencing as described above. This bill would make other conforming changes. By increasing the duties of local officials in operating those community-based punishment programs, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 1170 of the Penal Code, as amended by
2Section 1 of Chapter 378 of the Statutes of 2015, is amended to
3read:
(a) (1) The Legislature finds and declares that the
5purpose of imprisonment for crime is punishment. This purpose
6is 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,
10including, 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.
(a) (1) The Legislature finds and declares that the
21purpose of sentencing is public safety achieved through restorative
22justice. This purpose is best served by taking into account the
23science of brain development and maturity, the effects of violence
24on individuals in disadvantaged neighborhoods, the relationship
25between experiencing trauma and subsequent harmful behavior,
26opportunities to repair the harm, and other factors, including, but
27not limited to, those listed in Rule 4.423 of the California Rules
28of Court.
29(2) The Legislature further finds and
declares that educational,
30vocational, rehabilitative, treatment, and other programs should
31be made available to all inmates, in order to fully prepare them
32for successful reentry into the community.
33(3) In any case in which the punishment prescribed by statute
34for a person convicted of a public offense is a term of imprisonment
35in the state prison or a term pursuant to subdivision (h) of any
36specification of three time periods, the court shall sentence the
37defendant to one of the terms of imprisonment specified unless
38the convicted person is given any other disposition provided by
39law, including a fine, jail, probation, or the suspension of
40imposition or execution of sentence or is sentenced pursuant to
P4 1subdivision (b) of Section 1168 because he or she had committed
2his or her crime prior to July 1, 1977. In sentencing the convicted
3person, the court shall apply the sentencing rules of the Judicial
4Council.begin insert
The court also has discretion to sentence as an alternative
5to incarceration the defendant to community-based punishment,
6pursuant to paragraph (2) of subdivision (b).end insert The court, unless it
7determines that there are circumstances in mitigation of the
8punishment prescribed, shall also impose any other term that it is
9required by law to impose as an additional term. Nothing in this
10article shall affect any provision of law that imposes the death
11penalty, that authorizes or restricts the granting of probation or
12suspending the execution or imposition of sentence, or expressly
13provides for imprisonment in the state prison for life, except as
14provided in paragraph (2) of subdivision (d). In any case in which
15the amount of preimprisonment credit under Section 2900.5 or any
16other law is equal to or exceeds any sentence imposed pursuant to
17this chapter, except for the remaining portion of mandatory
18supervision pursuant to subparagraph (B) of paragraph (5) of
19subdivision (h), the entire
sentence shall be deemed to have been
20served, except for the remaining period of mandatory supervision,
21and the defendant shall not be actually delivered to the custody of
22the secretary or to the custody of the county correctional
23administrator. The court shall advise the defendant that he or she
24shall serve an applicable period of parole, postrelease community
25supervision, or mandatory supervision, and order the defendant to
26report to the parole or probation office closest to the defendant’s
27last legal residence, unless the in-custody credits equal the total
28sentence, including both confinement time and the period of parole,
29postrelease community supervision, or mandatory supervision.
30The sentence shall be deemed a separate prior prison term or a
31sentence of imprisonment in a county jail under subdivision (h)
32for purposes of Section 667.5, and a copy of the judgment and
33other necessary documentation shall be forwarded to the secretary.
34(b) begin insert(1)end insertbegin insert end insert When a judgment of imprisonment is to be imposed
35and the statute specifies three possible terms, the choice of the
36appropriate term shall rest within the sound discretion of the court.
37At least four days prior to the time set for imposition of judgment,
38either party or the victim, or the family of the victim if the victim
39is deceased, may submit a statement in aggravation or mitigation.
40In determining the appropriate term, the court may consider the
P5 1record in the case, the probation officer’s report, other reports,
2including reports received pursuant to Section 1203.03, and
3statements in aggravation or mitigation submitted by the
4prosecution, the defendant, or the victim, or the family of the victim
5if the victim is deceased, and any further evidence introduced at
6the sentencing hearing. The court shall select the term which, in
7the court’s discretion, best serves the interests of justice. The court
8shall set forth on the record the reasons for imposing the term
9
selected and the court may not impose an upper term by using the
10fact of any enhancement upon which sentence is imposed under
11any provision of law. A term of imprisonment shall not be specified
12if imposition of sentence is suspended.
13(2) In determining the appropriate term, pursuant to paragraph
14(1), the court has discretion to sentence as an alternative to
15incarceration the defendant to community-based punishment as
16described in Section 17.5, so long as the court imposes a sentence
17in which the combined periods of incarceration and the alternative
18to incarceration total at least the minimum term of the three
19possible terms. A sentence that includes an alternative to
20incarceration shall not exceed the length of the otherwise
21applicable upper term of incarceration. The sentence imposed
22shall be sufficient, but not greater than necessary, to achieve the
23purpose of
sentencing as described in paragraph (1) of subdivision
24(a).
25(c) begin deleteThe end deletebegin insertAt the time of sentencing, the end insertcourt shall statebegin insert
on the
26recordend insert the reasons for its sentence choicebegin delete on the record at the time begin insert of incarceration, an alternative to incarceration,
27of sentencing.end delete
28or both.end insert The court shall also inform the defendant that as part of
29the sentence after expiration of the term he or she may be on parole
30for a period as provided in Section 3000 or 3000.08 or postrelease
31community supervision for a period as provided in Section 3451.
32(d) (1) When a defendant subject to this section or subdivision
33(b) of Section 1168 has been sentenced to be imprisoned in the
34state prison or county jail pursuant to subdivision (h) and has been
35committed to the custody of the secretary or the county correctional
36administrator, the court may,
within 120 days of the date of
37commitment on its own motion, or at any time upon the
38recommendation of the secretary or the Board of Parole Hearings
39in the case of state prison inmates, or the county correctional
40administrator in the case of county jail inmates, recall the sentence
P6 1and commitment previously ordered and resentence the defendant
2in the same manner as if he or she had not previously been
3sentenced, provided the new sentence, if any, is no greater than
4the initial sentence. The court resentencing under this subdivision
5shall apply the sentencing rules of the Judicial Council so as to
6eliminate disparity of sentences and to promote uniformity of
7sentencing. Credit shall be given for time served.
8(2) (A) (i) When a defendant who was under 18 years of age
9at the time of the commission of the offense for which the
10defendant was sentenced to imprisonment for life without the
11possibility of
parole has served at least 15 years of that sentence,
12the defendant may submit to the sentencing court a petition for
13recall and resentencing.
14(ii) Notwithstanding clause (i), this paragraph shall not apply
15to defendants sentenced to life without parole for an offense where
16the defendant tortured, as described in Section 206, his or her
17victim or the victim was a public safety official, including any law
18enforcement personnel mentioned in Chapter 4.5 (commencing
19with Section 830) of Title 3, or any firefighter as described in
20Section 245.1, as well as any other officer in any segment of law
21enforcement who is employed by the federal government, the state,
22or any of its political subdivisions.
23(B) The defendant shall file the original petition with the
24sentencing court. A copy of the petition shall be served on the
25agency that prosecuted the case. The petition shall include the
26
defendant’s statement that he or she was under 18 years of age at
27the time of the crime and was sentenced to life in prison without
28the possibility of parole, the defendant’s statement describing his
29or her remorse and work towards rehabilitation, and the defendant’s
30statement that one of the following is true:
31(i) The defendant was convicted pursuant to felony murder or
32aiding and abetting murder provisions of law.
33(ii) The defendant does not have juvenile felony adjudications
34for assault or other felony crimes with a significant potential for
35personal harm to victims prior to the offense for which the sentence
36is being considered for recall.
37(iii) The defendant committed the offense with at least one adult
38codefendant.
39(iv) The defendant has performed
acts that tend to indicate
40rehabilitation or the potential for rehabilitation, including, but not
P7 1limited to, availing himself or herself of rehabilitative, educational,
2or vocational programs, if those programs have been available at
3his or her classification level and facility, using self-study for
4self-improvement, or showing evidence of remorse.
5(C) If any of the information required in subparagraph (B) is
6missing from the petition, or if proof of service on the prosecuting
7agency is not provided, the court shall return the petition to the
8defendant and advise the defendant that the matter cannot be
9considered without the missing information.
10(D) A reply to the petition, if any, shall be filed with the court
11within 60 days of the date on which the prosecuting agency was
12served with the petition, unless a continuance is granted for good
13cause.
14(E) If the court finds by a preponderance of the evidence that
15the statements in the petition are true, the court shall hold a hearing
16to consider whether to recall the sentence and commitment
17previously ordered and to resentence the defendant in the same
18manner as if the defendant had not previously been sentenced,
19provided that the new sentence, if any, is not greater than the initial
20sentence. Victims, or victim family members if the victim is
21deceased, shall retain the rights to participate in the hearing.
22(F) The factors that the court may consider when determining
23whether to recall and resentence include, but are not limited to,
24the following:
25(i) The defendant was convicted pursuant to felony murder or
26aiding and abetting murder provisions of law.
27(ii) The defendant does not have juvenile felony adjudications
28for assault or other felony crimes with a significant potential for
29personal harm to victims prior to the offense for which the sentence
30is being considered for recall.
31(iii) The defendant committed the offense with at least one adult
32codefendant.
33(iv) Prior to the offense for which the sentence is being
34considered for recall, the defendant had insufficient adult support
35or supervision and had suffered from psychological or physical
36trauma, or significant stress.
37(v) The defendant suffers from cognitive limitations due to
38mental illness, developmental disabilities, or other factors that did
39not constitute a defense, but influenced the defendant’s
40involvement in the offense.
P8 1(vi) The defendant has performed acts that tend to indicate
2rehabilitation or the potential for rehabilitation, including, but not
3limited to, availing himself or herself of rehabilitative, educational,
4or vocational programs, if those programs have been available at
5his or her classification level and facility, using self-study for
6self-improvement, or showing evidence of remorse.
7(vii) The defendant has maintained family ties or connections
8with others through letter writing, calls, or visits, or has eliminated
9contact with individuals outside of prison who are currently
10involved with crime.
11(viii) The defendant has had no disciplinary actions for violent
12activities in the last five years in which the defendant was
13determined to be the aggressor.
14(G) The court shall have the discretion to recall the
sentence
15and commitment previously ordered and to resentence the
16defendant in the same manner as if the defendant had not
17previously been sentenced, provided that the new sentence, if any,
18is not greater than the initial sentence. The discretion of the court
19shall be exercised in consideration of the criteria in subparagraph
20(B). Victims, or victim family members if the victim is deceased,
21shall be notified of the resentencing hearing and shall retain their
22rights to participate in the hearing.
23(H) If the sentence is not recalled, the defendant may submit
24another petition for recall and resentencing to the sentencing court
25when the defendant has been committed to the custody of the
26department for at least 20 years. If recall and resentencing is not
27granted under that petition, the defendant may file another petition
28after having served 24 years. The final petition may be submitted,
29and the response to that petition shall be determined, during
the
3025th year of the defendant’s sentence.
31(I) In addition to the criteria in subparagraph (F), the court may
32consider any other criteria that the court deems relevant to its
33decision, so long as the court identifies them on the record,
34provides a statement of reasons for adopting them, and states why
35the defendant does or does not satisfy the criteria.
36(J) This subdivision shall have retroactive application.
37(e) (1) Notwithstanding any other law and consistent with
38paragraph (1) of subdivision (a), if the secretary or the Board of
39Parole Hearings or both determine that a prisoner satisfies the
P9 1criteria set forth in paragraph (2), the secretary or the board may
2recommend to the court that the prisoner’s sentence be recalled.
3(2) The court shall have the discretion to resentence or recall if
4the court finds that the facts described in subparagraphs (A) and
5(B) or subparagraphs (B) and (C) exist:
6(A) The prisoner is terminally ill with an incurable condition
7caused by an illness or disease that would produce death within
8six months, as determined by a physician employed by the
9department.
10(B) The conditions under which the prisoner would be released
11or receive treatment do not pose a threat to public safety.
12(C) The prisoner is permanently medically incapacitated with
13a medical condition that renders him or her permanently unable
14to perform activities of basic daily living, and results in the prisoner
15requiring 24-hour total care, including, but not limited to, coma,
16persistent vegetative state, brain death,
ventilator-dependency, loss
17of control of muscular or neurological function, and that
18incapacitation did not exist at the time of the original sentencing.
19The Board of Parole Hearings shall make findings pursuant to
20this subdivision before making a recommendation for resentence
21or recall to the court. This subdivision does not apply to a prisoner
22sentenced to death or a term of life without the possibility of parole.
23(3) Within 10 days of receipt of a positive recommendation by
24the secretary or the board, the court shall hold a hearing to consider
25whether the prisoner’s sentence should be recalled.
26(4) Any physician employed by the department who determines
27that a prisoner has six months or less to live shall notify the chief
28medical officer of the prognosis. If the chief medical officer
29concurs with the prognosis, he or she shall notify
the warden.
30Within 48 hours of receiving notification, the warden or the
31warden’s representative shall notify the prisoner of the recall and
32resentencing procedures, and shall arrange for the prisoner to
33designate a family member or other outside agent to be notified
34as to the prisoner’s medical condition and prognosis, and as to the
35recall and resentencing procedures. If the inmate is deemed
36mentally unfit, the warden or the warden’s representative shall
37contact the inmate’s emergency contact and provide the information
38described in paragraph (2).
39(5) The warden or the warden’s representative shall provide the
40prisoner and his or her family member, agent, or emergency
P10 1contact, as described in paragraph (4), updated information
2throughout the recall and resentencing process with regard to the
3prisoner’s medical condition and the status of the prisoner’s recall
4and resentencing proceedings.
5(6) Notwithstanding any other provisions of this section, the
6prisoner or his or her family member or designee may
7independently request consideration for recall and resentencing
8by contacting the chief medical officer at the prison or the
9secretary. Upon receipt of the request, the chief medical officer
10and the warden or the warden’s representative shall follow the
11procedures described in paragraph (4). If the secretary determines
12that the prisoner satisfies the criteria set forth in paragraph (2), the
13secretary or board may recommend to the court that the prisoner’s
14sentence be recalled. The secretary shall submit a recommendation
15for release within 30 days in the case of inmates sentenced to
16determinate terms and, in the case of inmates sentenced to
17indeterminate terms, the secretary shall make a recommendation
18to the Board of Parole Hearings with respect to the inmates who
19have applied under this section. The board shall consider this
20information and make an independent judgment pursuant to
21
paragraph (2) and make findings related thereto before rejecting
22the request or making a recommendation to the court. This action
23shall be taken at the next lawfully noticed board meeting.
24(7) Any recommendation for recall submitted to the court by
25the secretary or the Board of Parole Hearings shall include one or
26more medical evaluations, a postrelease plan, and findings pursuant
27to paragraph (2).
28(8) If possible, the matter shall be heard before the same judge
29of the court who sentenced the prisoner.
30(9) If the court grants the recall and resentencing application,
31the prisoner shall be released by the department within 48 hours
32of receipt of the court’s order, unless a longer time period is agreed
33to by the inmate. At the time of release, the warden or the warden’s
34representative shall ensure that the prisoner has
each of the
35following in his or her possession: a discharge medical summary,
36full medical records, state identification, parole or postrelease
37community supervision medications, and all property belonging
38to the prisoner. After discharge, any additional records shall be
39sent to the prisoner’s forwarding address.
P11 1(10) The secretary shall issue a directive to medical and
2correctional staff employed by the department that details the
3guidelines and procedures for initiating a recall and resentencing
4procedure. The directive shall clearly state that any prisoner who
5is given a prognosis of six months or less to live is eligible for
6recall and resentencing consideration, and that recall and
7resentencing procedures shall be initiated upon that prognosis.
8(11) The provisions of this subdivision shall be available to an
9inmate who is sentenced to a county jail pursuant to subdivision
10(h).
For purposes of those inmates, “secretary” or “warden” shall
11mean the county correctional administrator and “chief medical
12officer” shall mean a physician designated by the county
13correctional administrator for this purpose.
14(f) Notwithstanding any other provision of this section, for
15purposes of paragraph (3) of subdivision (h), any allegation that
16a defendant is eligible for state prison due to a prior or current
17conviction, sentence enhancement, or because he or she is required
18to register as a sex offender shall not be subject to dismissal
19pursuant to Section 1385.
20(g) A sentence to state prison for a determinate term for which
21only one term is specified, is a sentence to state prison under this
22section.
23(h) (1) Except as provided in paragraph (3), a felony punishable
24pursuant to this
subdivision where the term is not specified in the
25underlying offense shall be punishable by a term of imprisonment
26in a county jail for 16 months, or two or three years.
27(2) Except as provided in paragraph (3), a felony punishable
28pursuant to this subdivision shall be punishable by imprisonment
29in a county jail for the term described in the underlying offense.
30(3) Notwithstanding paragraphs (1) and (2), where the defendant
31(A) has a prior or current felony conviction for a serious felony
32described in subdivision (c) of Section 1192.7 or a prior or current
33conviction for a violent felony described in subdivision (c) of
34Section 667.5, (B) has a prior felony conviction in another
35jurisdiction for an offense that has all the elements of a serious
36felony described in subdivision (c) of Section 1192.7 or a violent
37felony described in subdivision (c) of Section 667.5, (C) is required
38to
register as a sex offender pursuant to Chapter 5.5 (commencing
39with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
40and as part of the sentence an enhancement pursuant to Section
P12 1186.11 is imposed, an executed sentence for a felony punishable
2pursuant to this subdivision shall be served in state prison.
3(4) Nothing in this subdivision shall be construed to prevent
4other dispositions authorized by law, including pretrial diversion,
5deferred entry of judgment, or an order granting probation pursuant
6to Section 1203.1.
7(5) (A) Unless the court finds that, in the interests of justice, it
8is not appropriate in a particular case, the court, when imposing a
9sentence pursuant to paragraph (1) or (2), shall suspend execution
10of a concluding portion of the term for a period selected at the
11court’s discretion.
12(B) The portion of a defendant’s sentenced term that is
13suspended pursuant to this paragraph shall be known as mandatory
14supervision, and, unless otherwise ordered by the court, shall
15commence upon release from physical custody or an alternative
16custody program, whichever is later. During the period of
17mandatory supervision, the defendant shall be supervised by the
18county probation officer in accordance with the terms, conditions,
19and procedures generally applicable to persons placed on probation,
20for the remaining unserved portion of the sentence imposed by the
21court. The period of supervision shall be mandatory, and may not
22be earlier terminated except by court order. Any proceeding to
23revoke or modify mandatory supervision under this subparagraph
24shall be conducted pursuant to either subdivisions (a) and (b) of
25Section 1203.2 or Section 1203.3. During the period when the
26defendant is under that supervision, unless in actual custody related
27to the
sentence imposed by the court, the defendant shall be entitled
28to only actual time credit against the term of imprisonment imposed
29by the court. Any time period which is suspended because a person
30has absconded shall not be credited toward the period of
31supervision.
32(6) The sentencing changes made by the act that added this
33subdivision shall be applied prospectively to any person sentenced
34on or after October 1, 2011.
35(7) The sentencing changes made to paragraph (5) by the act
36that added this paragraph shall become effective and operative on
37January 1, 2015, and shall be applied prospectively to any person
38sentenced on or after January 1, 2015.
P13 1(i) This section shall remain in effect only until January 1, 2017,
2and as of that date is repealed, unless a later enacted statute, that
3is enacted before that date, deletes
or extends that date.
Section 1170 of the Penal Code, as amended by Section
52 of Chapter 378 of the Statutes of 2015, is repealed.
(a) (1) The Legislature finds and declares that the
7purpose of imprisonment for crime is punishment. This purpose
8is best served by terms proportionate to the seriousness of the
9offense with provision for uniformity in the sentences of offenders
10committing the same offense under similar circumstances. The
11Legislature further finds and declares that the elimination of
12disparity and the provision of uniformity of sentences can best be
13achieved by determinate sentences fixed by statute in proportion
14to the seriousness of the offense as determined by the Legislature
15to be imposed by the court with specified discretion.
16(2) Notwithstanding paragraph (1), the Legislature further finds
17and declares that
programs should be available for inmates,
18including, but not limited to, educational programs, that are
19designed to prepare nonviolent felony offenders for successful
20reentry into the community. The Legislature encourages the
21development of policies and programs designed to educate and
22rehabilitate nonviolent felony offenders. In implementing this
23section, the Department of Corrections and Rehabilitation is
24encouraged to give priority enrollment in programs to promote
25successful return to the community to an inmate with a short
26remaining term of commitment and a release date that would allow
27him or her adequate time to complete the program.
28(3) In any case in which the punishment prescribed by statute
29for a person convicted of a public offense is a term of imprisonment
30in the state prison, or a term pursuant to subdivision (h), of any
31specification of three time periods, the court shall sentence the
32defendant to one of the terms of imprisonment
specified unless
33the convicted person is given any other disposition provided by
34law, including a fine, jail, probation, or the suspension of
35imposition or execution of sentence or is sentenced pursuant to
36subdivision (b) of Section 1168 because he or she had committed
37his or her crime prior to July 1, 1977. In sentencing the convicted
38person, the court shall apply the sentencing rules of the Judicial
39Council. The court, unless it determines that there are
40circumstances in mitigation of the punishment prescribed, shall
P14 1also impose any other term that it is required by law to impose as
2an additional term. Nothing in this article shall affect any provision
3of law that imposes the death penalty, that authorizes or restricts
4the granting of probation or suspending the execution or imposition
5of sentence, or expressly provides for imprisonment in the state
6prison for life, except as provided in paragraph (2) of subdivision
7(d). In any case in which the amount of preimprisonment credit
8under Section 2900.5 or any
other provision of law is equal to or
9exceeds any sentence imposed pursuant to this chapter, except for
10a remaining portion of mandatory supervision imposed pursuant
11to subparagraph (B) of paragraph (5) of subdivision (h), the entire
12sentence shall be deemed to have been served, except for the
13remaining period of mandatory supervision, and the defendant
14shall not be actually delivered to the custody of the secretary or
15the county correctional administrator. The court shall advise the
16defendant that he or she shall serve an applicable period of parole,
17postrelease community supervision, or mandatory supervision and
18order the defendant to report to the parole or probation office
19closest to the defendant’s last legal residence, unless the in-custody
20credits equal the total sentence, including both confinement time
21and the period of parole, postrelease community supervision, or
22mandatory supervision. The sentence shall be deemed a separate
23prior prison term or a sentence of imprisonment in a county jail
24under
subdivision (h) for purposes of Section 667.5, and a copy
25of the judgment and other necessary documentation shall be
26forwarded to the secretary.
27(b) When a judgment of imprisonment is to be imposed and the
28statute specifies three possible terms, the court shall order
29imposition of the middle term, unless there are circumstances in
30aggravation or mitigation of the crime. At least four days prior to
31the time set for imposition of judgment, either party or the victim,
32or the family of the victim if the victim is deceased, may submit
33a statement in aggravation or mitigation to dispute facts in the
34record or the probation officer’s report, or to present additional
35facts. In determining whether there are circumstances that justify
36imposition of the upper or lower term, the court may consider the
37record in the case, the probation officer’s report, other reports,
38including reports received pursuant to Section 1203.03, and
39statements in aggravation or
mitigation submitted by the
40prosecution, the defendant, or the victim, or the family of the victim
P15 1if the victim is deceased, and any further evidence introduced at
2the sentencing hearing. The court shall set forth on the record the
3facts and reasons for imposing the upper or lower term. The court
4may not impose an upper term by using the fact of any
5enhancement upon which sentence is imposed under any provision
6of law. A term of imprisonment shall not be specified if imposition
7of sentence is suspended.
8(c) The court shall state the reasons for its sentence choice on
9the record at the time of sentencing. The court shall also inform
10the defendant that as part of the sentence after expiration of the
11term he or she may be on parole for a period as provided in Section
123000 or 3000.08 or postrelease community supervision for a period
13as provided in Section 3451.
14(d) (1) When a defendant subject to this section or subdivision
15(b) of Section 1168 has been sentenced to be imprisoned in the
16state prison or county jail pursuant to subdivision (h) and has been
17committed to the custody of the secretary or the county correctional
18administrator, the court may, within 120 days of the date of
19commitment on its own motion, or at any time upon the
20recommendation of the secretary or the Board of Parole Hearings
21in the case of state prison inmates, or the county correctional
22administrator in the case of county jail inmates, recall the sentence
23and commitment previously ordered and resentence the defendant
24in the same manner as if he or she had not previously been
25sentenced, provided the new sentence, if any, is no greater than
26the initial sentence. The court resentencing under this subdivision
27shall apply the sentencing rules of the Judicial Council so as to
28eliminate disparity of sentences and to promote uniformity of
29sentencing. Credit shall be given for time
served.
30(2) (A) (i) When a defendant who was under 18 years of age
31at the time of the commission of the offense for which the
32defendant was sentenced to imprisonment for life without the
33possibility of parole has served at least 15 years of that sentence,
34the defendant may submit to the sentencing court a petition for
35recall and resentencing.
36(ii) Notwithstanding clause (i), this paragraph shall not apply
37to defendants sentenced to life without parole for an offense where
38the defendant tortured, as described in Section 206, his or her
39victim or the victim was a public safety official, including any law
40enforcement personnel mentioned in Chapter 4.5 (commencing
P16 1with Section 830) of Title 3, or any firefighter as described in
2Section 245.1, as well as any other officer in any segment of law
3enforcement who is employed by the federal
government, the state,
4or any of its political subdivisions.
5(B) The defendant shall file the original petition with the
6sentencing court. A copy of the petition shall be served on the
7agency that prosecuted the case. The petition shall include the
8defendant’s statement that he or she was under 18 years of age at
9the time of the crime and was sentenced to life in prison without
10the possibility of parole, the defendant’s statement describing his
11or her remorse and work towards rehabilitation, and the defendant’s
12statement that one of the following is true:
13(i) The defendant was convicted pursuant to felony murder or
14aiding and abetting murder provisions of law.
15(ii) The defendant does not have juvenile felony adjudications
16for assault or other felony crimes with a significant potential for
17personal harm to victims
prior to the offense for which the sentence
18is being considered for recall.
19(iii) The defendant committed the offense with at least one adult
20codefendant.
21(iv) The defendant has performed acts that tend to indicate
22rehabilitation or the potential for rehabilitation, including, but not
23limited to, availing himself or herself of rehabilitative, educational,
24or vocational programs, if those programs have been available at
25his or her classification level and facility, using self-study for
26self-improvement, or showing evidence of remorse.
27(C) If any of the information required in subparagraph (B) is
28missing from the petition, or if proof of service on the prosecuting
29agency is not provided, the court shall return the petition to the
30defendant and advise the defendant that the matter cannot be
31considered without the
missing information.
32(D) A reply to the petition, if any, shall be filed with the court
33within 60 days of the date on which the prosecuting agency was
34served with the petition, unless a continuance is granted for good
35cause.
36(E) If the court finds by a preponderance of the evidence that
37the statements in the petition are true, the court shall hold a hearing
38to consider whether to recall the sentence and commitment
39previously ordered and to resentence the defendant in the same
40manner as if the defendant had not previously been sentenced,
P17 1provided that the new sentence, if any, is not greater than the initial
2sentence. Victims, or victim family members if the victim is
3deceased, shall retain the rights to participate in the hearing.
4(F) The factors that the court may consider when determining
5whether to recall and
resentence include, but are not limited to,
6the following:
7(i) The defendant was convicted pursuant to felony murder or
8aiding and abetting murder provisions of law.
9(ii) The defendant does not have juvenile felony adjudications
10for assault or other felony crimes with a significant potential for
11personal harm to victims prior to the offense for which the sentence
12is being considered for recall.
13(iii) The defendant committed the offense with at least one adult
14codefendant.
15(iv) Prior to the offense for which the sentence is being
16considered for recall, the defendant had insufficient adult support
17or supervision and had suffered from psychological or physical
18trauma, or significant stress.
19(v) The defendant suffers from cognitive limitations due to
20mental illness, developmental disabilities, or other factors that did
21not constitute a defense, but influenced the defendant’s
22involvement in the offense.
23(vi) The defendant has performed acts that tend to indicate
24rehabilitation or the potential for rehabilitation, including, but not
25limited to, availing himself or herself of rehabilitative, educational,
26or vocational programs, if those programs have been available at
27his or her classification level and facility, using self-study for
28self-improvement, or showing evidence of remorse.
29(vii) The defendant has maintained family ties or connections
30with others through letter writing, calls, or visits, or has eliminated
31contact with individuals outside of prison who are currently
32involved with crime.
33(viii) The defendant has had no disciplinary actions for violent
34activities in the last five years in which the defendant was
35determined to be the aggressor.
36(G) The court shall have the discretion to recall the sentence
37and commitment previously ordered and to resentence the
38defendant in the same manner as if the defendant had not
39previously been sentenced, provided that the new sentence, if any,
40is not greater than the initial sentence. The discretion of the court
P18 1shall be exercised in consideration of the criteria in subparagraph
2(B). Victims, or victim family members if the victim is deceased,
3shall be notified of the resentencing hearing and shall retain their
4rights to participate in the hearing.
5(H) If the sentence is not recalled, the defendant may submit
6another petition for recall and resentencing to the sentencing court
7when the defendant has been committed to
the custody of the
8department for at least 20 years. If recall and resentencing is not
9granted under that petition, the defendant may file another petition
10after having served 24 years. The final petition may be submitted,
11and the response to that petition shall be determined, during the
1225th year of the defendant’s sentence.
13(I) In addition to the criteria in subparagraph (F), the court may
14consider any other criteria that the court deems relevant to its
15decision, so long as the court identifies them on the record,
16provides a statement of reasons for adopting them, and states why
17the defendant does or does not satisfy the criteria.
18(J) This subdivision shall have retroactive application.
19(e) (1) Notwithstanding any other law and consistent with
20paragraph (1) of subdivision (a), if the secretary
or the Board of
21Parole Hearings or both determine that a prisoner satisfies the
22criteria set forth in paragraph (2), the secretary or the board may
23recommend to the court that the prisoner’s sentence be recalled.
24(2) The court shall have the discretion to resentence or recall if
25the court finds that the facts described in subparagraphs (A) and
26(B) or subparagraphs (B) and (C) exist:
27(A) The prisoner is terminally ill with an incurable condition
28caused by an illness or disease that would produce death within
29six months, as determined by a physician employed by the
30department.
31(B) The conditions under which the prisoner would be released
32or receive treatment do not pose a threat to public safety.
33(C) The prisoner is permanently medically incapacitated
with
34a medical condition that renders him or her permanently unable
35to perform activities of basic daily living, and results in the prisoner
36requiring 24-hour total care, including, but not limited to, coma,
37persistent vegetative state, brain death, ventilator-dependency, loss
38of control of muscular or neurological function, and that
39incapacitation did not exist at the time of the original sentencing.
P19 1The Board of Parole Hearings shall make findings pursuant to
2this subdivision before making a recommendation for resentence
3or recall to the court. This subdivision does not apply to a prisoner
4sentenced to death or a term of life without the possibility of parole.
5(3) Within 10 days of receipt of a positive recommendation by
6the secretary or the board, the court shall hold a hearing to consider
7whether the prisoner’s sentence should be recalled.
8(4) Any physician employed by the department who determines
9that a prisoner has six months or less to live shall notify the chief
10medical officer of the prognosis. If the chief medical officer
11concurs with the prognosis, he or she shall notify the warden.
12Within 48 hours of receiving notification, the warden or the
13warden’s representative shall notify the prisoner of the recall and
14resentencing procedures, and shall arrange for the prisoner to
15designate a family member or other outside agent to be notified
16as to the prisoner’s medical condition and prognosis, and as to the
17recall and resentencing procedures. If the inmate is deemed
18mentally unfit, the warden or the warden’s representative shall
19contact the inmate’s emergency contact and provide the information
20described in paragraph (2).
21(5) The warden or the warden’s representative shall provide the
22prisoner and his or her family member, agent, or emergency
23contact, as described
in paragraph (4), updated information
24throughout the recall and resentencing process with regard to the
25prisoner’s medical condition and the status of the prisoner’s recall
26and resentencing proceedings.
27(6) Notwithstanding any other provisions of this section, the
28prisoner or his or her family member or designee may
29independently request consideration for recall and resentencing
30by contacting the chief medical officer at the prison or the
31secretary. Upon receipt of the request, the chief medical officer
32and the warden or the warden’s representative shall follow the
33procedures described in paragraph (4). If the secretary determines
34that the prisoner satisfies the criteria set forth in paragraph (2), the
35secretary or board may recommend to the court that the prisoner’s
36sentence be recalled. The secretary shall submit a recommendation
37for release within 30 days in the case of inmates sentenced to
38determinate terms and, in the case of inmates
sentenced to
39indeterminate terms, the secretary shall make a recommendation
40to the Board of Parole Hearings with respect to the inmates who
P20 1have applied under this section. The board shall consider this
2information and make an independent judgment pursuant to
3paragraph (2) and make findings related thereto before rejecting
4the request or making a recommendation to the court. This action
5shall be taken at the next lawfully noticed board meeting.
6(7) Any recommendation for recall submitted to the court by
7the secretary or the Board of Parole Hearings shall include one or
8more medical evaluations, a postrelease plan, and findings pursuant
9to paragraph (2).
10(8) If possible, the matter shall be heard before the same judge
11of the court who sentenced the prisoner.
12(9) If the court grants the recall and resentencing
application,
13the prisoner shall be released by the department within 48 hours
14of receipt of the court’s order, unless a longer time period is agreed
15to by the inmate. At the time of release, the warden or the warden’s
16representative shall ensure that the prisoner has each of the
17following in his or her possession: a discharge medical summary,
18full medical records, state identification, parole or postrelease
19community supervision medications, and all property belonging
20to the prisoner. After discharge, any additional records shall be
21sent to the prisoner’s forwarding address.
22(10) The secretary shall issue a directive to medical and
23correctional staff employed by the department that details the
24guidelines and procedures for initiating a recall and resentencing
25procedure. The directive shall clearly state that any prisoner who
26is given a prognosis of six months or less to live is eligible for
27recall and resentencing consideration, and that recall
and
28resentencing procedures shall be initiated upon that prognosis.
29(11) The provisions of this subdivision shall be available to an
30inmate who is sentenced to a county jail pursuant to subdivision
31(h). For purposes of those inmates, “secretary” or “warden” shall
32mean the county correctional administrator and “chief medical
33officer” shall mean a physician designated by the county
34correctional administrator for this purpose.
35(f) Notwithstanding any other provision of this section, for
36purposes of paragraph (3) of subdivision (h), any allegation that
37a defendant is eligible for state prison due to a prior or current
38conviction, sentence enhancement, or because he or she is required
39to register as a sex offender shall not be subject to dismissal
40pursuant to Section 1385.
P21 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
15
Section 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,
P22 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
11has 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.
If the Commission on State Mandates determines that
22this act contains costs mandated by the state, reimbursement to
23local agencies and school districts for those costs shall be made
24pursuant to Part 7 (commencing with Section 17500) of Division
254 of Title 2 of the Government Code.
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