Amended in Assembly April 12, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2590

Introduced by Assembly Member Weber

February 19, 2016

An act to amend and repeal Section 1170 of the Penal Code, relating to sentencing.

LEGISLATIVE COUNSEL’S DIGEST

AB 2590, as amended, Weber. Sentencing: restorative justice.

Existing law provides legislative findings and declarations that the purpose of imprisonment for crime is begin delete 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. end delete begin insert punishment. end insert 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. begin delete Existing law provides other legislative findings and declarations relating to the development of policies and programs. end delete begin insert Existing law encourages the Department of Corrections and Rehabilitation to give priority to enrollment in programs to promote successful return to the community to inmates with short remaining terms of commitment. end insert

This bill would instead provide legislative findings and declarations that the purpose of sentencing is public safety achieved through begin insert accountability, rehabilitation, and end insert restorative begin delete 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. end delete begin insert justice. The bill would amend the above legislative findings to state that programs should be available to all inmates and would encourage the department to allow all inmates the opportunity to enroll in programs that promote successful return to the community. end insert

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. begin delete 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. end delete

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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.

end delete begin delete

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.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete yes end delete begin insert no end insert .

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 sentencing is public safety achieved through
begin insert accountability, rehabilitation, and end insert restorative justice. begin delete This purpose
is best served by taking into account the science of brain
development and maturity, the effects of violence on individuals
in disadvantaged neighborhoods, the relationship between
experiencing trauma and subsequent harmful behavior,
opportunities to repair the harm, and other factors, including, but
not limited to, those listed in Rule 4.423 of the California Rules
of Court. end delete begin insert When a sentence includes incarceration, this purpose is
best served by terms that are proportionate to the seriousness of
the offense with provision for uniformity in the sentences of
offenders committing the same offense under similar circumstances.
The Legislature further finds and declares that the elimination of
disparity and the provision of uniformity of sentences can best be
achieved by determinate sentences fixed by statute in proportion
to the seriousness of the offense as determined by the Legislature
to be imposed by the court with specified discretion. end insert

(2) The Legislature further finds and declares that begin delete educational,
vocational, rehabilitative, treatment, and other programs should
be made available to all inmates, in order to fully prepare them for
successful reentry into the community. end delete begin insert programs should be
available for inmates, including, but not limited to, educational
programs that are designed to prepare all offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate all offenders. In implementing this section, the
Department of Corrections and Rehabilitation is encouraged to
allow all inmates the opportunity to enroll in programs that
promote successful return to the community. end insert

(3) In any case in which the begin delete punishment end delete begin insert sentence end insert 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. begin delete The court also has discretion to sentence as an alternative
to incarceration the defendant to community-based punishment,
pursuant to paragraph (2) of subdivision (b). end delete The court, unless it
determines that there are circumstances in mitigation of the
begin delete punishment end delete begin insert sentence end insert prescribed, shall also impose any other term
that it is required by law to impose as an additional term. Nothing
in this article shall affect any provision of law that imposes the
death penalty, that authorizes or restricts the granting of probation
or suspending the execution or imposition of sentence, or expressly
provides for imprisonment in the state prison for life, except as
provided in paragraph (2) of subdivision (d). In any case in which
the amount of preimprisonment credit under Section 2900.5 or any
other law is equal to or exceeds any sentence imposed pursuant to
this chapter, except for the remaining portion of mandatory
supervision pursuant to subparagraph (B) of paragraph (5) of
subdivision (h), the entire sentence shall be deemed to have been
served, except for the remaining period of mandatory supervision,
and the defendant shall not be actually delivered to the custody of
the secretary or to the custody of the county correctional
administrator. The court shall advise the defendant that he or she
shall serve 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)  begin delete (1) end delete begin delete   end delete When a judgment of imprisonment is to be imposed and
the statute specifies three possible terms, the choice of the
appropriate term shall rest within the sound discretion of the court.
At least four days prior to the time set for imposition of judgment,
either party or the victim, or the family of the victim if the victim
is deceased, may submit a statement in aggravation or mitigation.
In determining the appropriate term, the court may consider the
record in the case, the probation officer’s report, other reports,
including reports received pursuant to Section 1203.03, and
statements in aggravation or mitigation submitted by the
prosecution, the defendant, or the victim, or the family of the victim
if the victim is deceased, and any further evidence introduced at
the sentencing hearing. The court shall select the term which, in
the court’s discretion, best serves the interests of justice. The court
shall set forth on the record the reasons for imposing the term
selected and the court may not impose an upper term by using the
fact of any enhancement upon which sentence is imposed under
any provision of law. A term of imprisonment shall not be specified
if imposition of sentence is suspended.

begin delete

(2) In determining the appropriate term, pursuant to paragraph
(1), the court has discretion to sentence as an alternative to
incarceration the defendant to community-based punishment as
described in Section 17.5, 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 three
possible terms. A sentence that includes an alternative to
incarceration shall not exceed the length of the otherwise applicable
upper term of incarceration. The sentence imposed shall be
sufficient, but not greater than necessary, to achieve the purpose
of sentencing as described in paragraph (1) of subdivision (a).

end delete

(c) At the time of sentencing, the court shall state on the record
the reasons for its sentence choice of incarceration, an alternative
to incarceration, or both. The court shall also inform the defendant
that as part of the sentence after expiration of the term he or she
may be on parole for a period as provided in Section 3000 or
3000.08 or postrelease community supervision for a period as
provided in Section 3451.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(J) This subdivision shall have retroactive application.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SEC. 2.  

Section 1170 of the Penal Code, as amended by Section
2 of Chapter 378 of the Statutes of 2015, is repealed.

begin delete

SEC. 3.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

end delete