BILL NUMBER: AB 2590 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 12, 2016
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 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. punishment. 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. 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.
This bill would instead provide legislative findings and
declarations that the purpose of sentencing is public safety achieved
through accountability, rehabilitation, and 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. justice. The
bill would amend the above legislative findings to state that
programs should be available to all inmates and would encourage the
depart ment to allow all inmates the opportunity to enroll
in programs that promote successful return to the community.
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 no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1170 of the Penal Code, as amended by Section 1
of Chapter 378 of the Statutes of 2015, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of sentencing is public safety achieved through accountability,
rehabilitation, and restorative justice. 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. 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.
(2) The Legislature further finds and declares that
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.
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.
(3) In any case in which the punishment
sentence prescribed by statute for a person convicted of a
public offense is a term of imprisonment in the state prison or a
term pursuant to subdivision (h) of any specification of three time
periods, the court shall sentence the defendant to one of the terms
of imprisonment specified unless the convicted person is given any
other disposition provided by law, including a fine, jail, probation,
or the suspension of imposition or execution of sentence or is
sentenced pursuant to subdivision (b) of Section 1168 because he or
she had committed his or her crime prior to July 1, 1977. In
sentencing the convicted person, the court shall apply the sentencing
rules of the Judicial Council. The court also has
discretion to sentence as an alternative to incarceration the
defendant to community-based punishment, pursuant to paragraph (2) of
subdivision (b). The court, unless it determines that
there are circumstances in mitigation of the punishment
sentence 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) (1) 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.
(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).
(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.
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.