AB 2590, as amended, Weber. Sentencing: restorative justice.
Existing law provides legislative findings and declarations that the purpose of imprisonment for crime is 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 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 insteadbegin delete provideend deletebegin insert makeend insert
legislative findings and declarations that the purpose of sentencing is public safety achieved throughbegin delete accountability,end deletebegin insert
punishment,end insert rehabilitation, and restorative justice. The bill would amend the above legislative findings to state that programs should be available tobegin delete allend deletebegin insert eligibleend insert inmates and would encourage the department to allowbegin delete allend deletebegin insert eligibleend insert inmates the opportunity to enroll in programs that promote successful return to the community.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
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 sentencing is public safety achieved through
6begin delete accountability,end deletebegin insert punishment,end insert rehabilitation, and restorative justice.
7When a sentencebegin delete includes incarceration,end deletebegin insert of incarceration is
8imposed,end insert this purpose is best served bybegin insert (A) providing ongoing
9opportunities for
rehabilitation and (B)end insert terms that are proportionate
10to the seriousness of the offense with provision for uniformity in
11the sentences of offenders committing the same offense under
12similar circumstances. The Legislature further finds and declares
13that the elimination of disparity and the provision of uniformity
14of sentences can best be achieved by determinate sentences fixed
15by statute in proportion to the seriousness of the offense as
16determined by the Legislature to be imposed by the court with
17specified discretion.
18(2) The Legislature further finds and declares that programs
19should be available for inmates, including, but not limited to,
20educational programs that are designed to preparebegin delete allend deletebegin insert
eligibleend insert
21 offenders for successful reentry into the community. The
22Legislature encourages the development of policies and programs
23designed to educate and rehabilitatebegin delete allend delete offenders. In implementing
24this section, the Department of Corrections and Rehabilitation is
25encouraged to allowbegin delete allend deletebegin insert eligibleend insert inmates the opportunity to enroll
26in programs that promote successful return to the community.
27(3) In any case in which the sentence prescribed by statute for
28a person convicted of a public offense is a term of imprisonment
29in the state prison or a term pursuant to
subdivision (h) of any
30specification of three time periods, the court shall sentence the
31defendant to one of the terms of imprisonment specified unless
32the convicted person is given any other disposition provided by
P3 1law, including a fine, jail, probation, or the suspension of
2imposition or execution of sentence or is sentenced pursuant to
3subdivision (b) of Section 1168 because he or she had committed
4his or her crime prior to July 1, 1977. In sentencing the convicted
5person, the court shall apply the sentencing rules of the Judicial
6Council. The court, unless it determines that there are
7circumstances in mitigation of the sentence prescribed, shall also
8impose any other term that it is required by law to impose as an
9additional term. Nothing in this article shall affect any provision
10of law that imposes the death penalty, that authorizes or restricts
11the granting of probation or suspending the execution
or imposition
12of sentence, or expressly provides for imprisonment in the state
13prison for life, except as provided in paragraph (2) of subdivision
14(d). In any case in which the amount of preimprisonment credit
15under Section 2900.5 or any other law is equal to or exceeds any
16sentence imposed pursuant to this chapter, except for the remaining
17portion of mandatory supervision pursuant to subparagraph (B) of
18paragraph (5) of subdivision (h), the entire sentence shall be
19deemed to have been served, except for the remaining period of
20mandatory supervision, and the defendant shall not be actually
21delivered to the custody of the secretary or to the custody of the
22county correctional administrator. The court shall advise the
23defendant that he or she shall serve an applicable period of parole,
24postrelease community supervision, or mandatory supervision,
25and order the defendant to report to the parole or
probation office
26closest to the defendant’s last legal residence, unless the in-custody
27credits equal the total sentence, including both confinement time
28and the period of parole, postrelease community supervision, or
29mandatory supervision. The sentence shall be deemed a separate
30prior prison term or a sentence of imprisonment in a county jail
31under subdivision (h) for purposes of Section 667.5, and a copy
32of the judgment and other necessary documentation shall be
33forwarded to the secretary.
34(b) When a judgment of imprisonment is to be imposed and the
35
statute specifies three possible terms, the choice of the appropriate
36term shall rest within the sound discretion of the court. At least
37four days prior to the time set for imposition of judgment, either
38party or the victim, or the family of the victim if the victim is
39deceased, may submit a statement in aggravation or mitigation. In
40determining the appropriate term, the court may consider the record
P4 1in the case, the probation officer’s report, other reports, including
2reports received pursuant to Section 1203.03, and statements in
3aggravation or mitigation submitted by the prosecution, the
4defendant, or the victim, or the family of the victim if the victim
5is deceased, and any further evidence introduced at the sentencing
6hearing. The court shall select the term which, in the court’s
7discretion, best serves the interests of justice. The court shall set
8forth on the record the reasons for
imposing the term selected and
9the court may not impose an upper term by using the fact of any
10enhancement upon which sentence is imposed under any provision
11of law. A term of imprisonment shall not be specified if imposition
12of sentence is suspended.
13(c) The court shall state the reasons for its sentence choice on
14the record at the time of sentencing. The court shall also inform
15the defendant that as part of the sentence after expiration of the
16term he or she may be on parole for a period as provided in Section
173000 or 3000.08 or postrelease community supervision for a period
18as provided in Section 3451.
19(d) (1) When a defendant subject to this section or subdivision
20(b) of Section 1168 has been sentenced to be imprisoned in the
21state prison or
county jail pursuant to subdivision (h) and has been
22committed to the custody of the secretary or the county correctional
23administrator, the court may, within 120 days of the date of
24commitment on its own motion, or at any time upon the
25recommendation of the secretary or the Board of Parole Hearings
26in the case of state prison inmates, or the county correctional
27administrator in the case of county jail inmates, recall the sentence
28and commitment previously ordered and resentence the defendant
29in the same manner as if he or she had not previously been
30sentenced, provided the new sentence, if any, is no greater than
31the initial sentence. The court resentencing under this subdivision
32shall apply the sentencing rules of the Judicial Council so as to
33eliminate disparity of sentences and to promote uniformity of
34sentencing. Credit shall be given for time served.
35(2) (A) (i) When a defendant who was under 18 years of age
36at the time of the commission of the offense for which the
37defendant was sentenced to imprisonment for life without the
38possibility of parole has served at least 15 years of that sentence,
39the defendant may submit to the sentencing court a petition for
40recall and resentencing.
P5 1(ii) Notwithstanding clause (i), this paragraph shall not apply
2to defendants sentenced to life without parole for an offense where
3the defendant tortured, as described in Section 206, his or her
4victim or the victim was a public safety official, including any law
5enforcement personnel mentioned in Chapter 4.5 (commencing
6with Section 830) of Title 3, or any firefighter as described in
7Section 245.1, as well as any other officer in any segment of law
8enforcement
who is employed by the federal government, the state,
9or any of its political subdivisions.
10(B) The defendant shall file the original petition with the
11sentencing court. A copy of the petition shall be served on the
12agency that prosecuted the case. The petition shall include the
13
defendant’s statement that he or she was under 18 years of age at
14the time of the crime and was sentenced to life in prison without
15the possibility of parole, the defendant’s statement describing his
16or her remorse and work towards rehabilitation, and the defendant’s
17statement that one of the following is true:
18(i) The defendant was convicted pursuant to felony murder or
19aiding and abetting murder provisions of law.
20(ii) The defendant does not have juvenile felony adjudications
21for assault or other felony crimes with a significant potential for
22personal harm to victims prior to the offense for which the sentence
23is being considered for recall.
24(iii) The defendant committed the offense with at least one adult
25codefendant.
26(iv) The defendant has performed acts that tend to indicate
27rehabilitation or the potential for rehabilitation, including, but not
28limited to, availing himself or herself of rehabilitative, educational,
29or vocational programs, if those programs have been available at
30his or her classification level and facility, using self-study for
31self-improvement, or showing evidence of remorse.
32(C) If any of the information required in subparagraph (B) is
33missing from the petition, or if proof of service on the prosecuting
34agency is not provided, the court shall return the petition to the
35defendant and advise the defendant that the matter cannot be
36considered without the missing information.
37(D) A reply to the petition, if any, shall be
filed with the court
38within 60 days of the date on which the prosecuting agency was
39served with the petition, unless a continuance is granted for good
40cause.
P6 1(E) If the court finds by a preponderance of the evidence that
2the statements in the petition are true, the court shall hold a hearing
3to consider whether to recall the sentence and commitment
4previously ordered and to resentence the defendant in the same
5manner as if the defendant had not previously been sentenced,
6provided that the new sentence, if any, is not greater than the initial
7sentence. Victims, or victim family members if the victim is
8deceased, shall retain the rights to participate in the hearing.
9(F) The factors that the court may consider when determining
10whether to recall and resentence include, but are not
limited to,
11the following:
12(i) The defendant was convicted pursuant to felony murder or
13aiding and abetting murder provisions of law.
14(ii) The defendant does not have juvenile felony adjudications
15for assault or other felony crimes with a significant potential for
16personal harm to victims prior to the offense for which the sentence
17is being considered for recall.
18(iii) The defendant committed the offense with at least one adult
19codefendant.
20(iv) Prior to the offense for which the sentence is being
21considered for recall, the defendant had insufficient adult support
22or supervision and had suffered from psychological or physical
23trauma, or significant
stress.
24(v) The defendant suffers from cognitive limitations due to
25mental illness, developmental disabilities, or other factors that did
26not constitute a defense, but influenced the defendant’s
27involvement in the offense.
28(vi) The defendant has performed acts that tend to indicate
29rehabilitation or the potential for rehabilitation, including, but not
30limited to, availing himself or herself of rehabilitative, educational,
31or vocational programs, if those programs have been available at
32his or her classification level and facility, using self-study for
33self-improvement, or showing evidence of remorse.
34(vii) The defendant has maintained family ties or connections
35with others through letter writing, calls, or visits, or
has eliminated
36contact with individuals outside of prison who are currently
37involved with crime.
38(viii) The defendant has had no disciplinary actions for violent
39activities in the last five years in which the defendant was
40determined to be the aggressor.
P7 1(G) The court shall have the discretion to recall the sentence
2and commitment previously ordered and to resentence the
3defendant in the same manner as if the defendant had not
4previously been sentenced, provided that the new sentence, if any,
5is not greater than the initial sentence. The discretion of the court
6shall be exercised in consideration of the criteria in subparagraph
7(B). Victims, or victim family members if the victim is deceased,
8shall be notified of the resentencing hearing and shall retain their
9rights to
participate in the hearing.
10(H) If the sentence is not recalled, the defendant may submit
11another petition for recall and resentencing to the sentencing court
12when the defendant has been committed to the custody of the
13department for at least 20 years. If recall and resentencing is not
14granted under that petition, the defendant may file another petition
15after having served 24 years. The final petition may be submitted,
16and the response to that petition shall be determined, during the
1725th year of the defendant’s sentence.
18(I) In addition to the criteria in subparagraph (F), the court may
19consider any other criteria that the court deems relevant to its
20decision, so long as the court identifies them on the record,
21provides a statement of reasons for adopting them, and states why
22the
defendant does or does not satisfy the criteria.
23(J) This subdivision shall have retroactive application.
24(e) (1) Notwithstanding any other law and consistent with
25paragraph (1) of subdivision (a), if the secretary or the Board of
26Parole Hearings or both determine that a prisoner satisfies the
27criteria set forth in paragraph (2), the secretary or the board may
28recommend to the court that the prisoner’s sentence be recalled.
29(2) The court shall have the discretion to resentence or recall if
30the court finds that the facts described in subparagraphs (A) and
31(B) or subparagraphs (B) and (C) exist:
32(A) The prisoner is terminally ill with an incurable
condition
33caused by an illness or disease that would produce death within
34six months, as determined by a physician employed by the
35department.
36(B) The conditions under which the prisoner would be released
37or receive treatment do not pose a threat to public safety.
38(C) The prisoner is permanently medically incapacitated with
39a medical condition that renders him or her permanently unable
40to perform activities of basic daily living, and results in the prisoner
P8 1requiring 24-hour total care, including, but not limited to, coma,
2persistent vegetative state, brain death, ventilator-dependency, loss
3of control of muscular or neurological function, and that
4incapacitation did not exist at the time of the original sentencing.
5The Board of Parole Hearings
shall make findings pursuant to
6this subdivision before making a recommendation for resentence
7or recall to the court. This subdivision does not apply to a prisoner
8sentenced to death or a term of life without the possibility of parole.
9(3) Within 10 days of receipt of a positive recommendation by
10the secretary or the board, the court shall hold a hearing to consider
11whether the prisoner’s sentence should be recalled.
12(4) Any physician employed by the department who determines
13that a prisoner has six months or less to live shall notify the chief
14medical officer of the prognosis. If the chief medical officer
15concurs with the prognosis, he or she shall notify the warden.
16Within 48 hours of receiving notification, the warden or the
17warden’s representative shall notify the prisoner of the
recall and
18resentencing procedures, and shall arrange for the prisoner to
19designate a family member or other outside agent to be notified
20as to the prisoner’s medical condition and prognosis, and as to the
21recall and resentencing procedures. If the inmate is deemed
22mentally unfit, the warden or the warden’s representative shall
23contact the inmate’s emergency contact and provide the information
24described in paragraph (2).
25(5) The warden or the warden’s representative shall provide the
26prisoner and his or her family member, agent, or emergency
27contact, as described in paragraph (4), updated information
28throughout the recall and resentencing process with regard to the
29prisoner’s medical condition and the status of the prisoner’s recall
30and resentencing proceedings.
31(6) Notwithstanding any other provisions of this section, the
32prisoner or his or her family member or designee may
33independently request consideration for recall and resentencing
34by contacting the chief medical officer at the prison or the
35secretary. Upon receipt of the request, the chief medical officer
36and the warden or the warden’s representative shall follow the
37procedures described in paragraph (4). If the secretary determines
38that the prisoner satisfies the criteria set forth in paragraph (2), the
39secretary or board may recommend to the court that the prisoner’s
40sentence be recalled. The secretary shall submit a recommendation
P9 1for release within 30 days in the case of inmates sentenced to
2determinate terms and, in the case of inmates sentenced to
3indeterminate terms, the secretary shall make a recommendation
4to the Board of Parole Hearings with respect to the inmates who
5have applied
under this section. The board shall consider this
6information and make an independent judgment pursuant to
7
paragraph (2) and make findings related thereto before rejecting
8the request or making a recommendation to the court. This action
9shall be taken at the next lawfully noticed board meeting.
10(7) Any recommendation for recall submitted to the court by
11the secretary or the Board of Parole Hearings shall include one or
12more medical evaluations, a postrelease plan, and findings pursuant
13to paragraph (2).
14(8) If possible, the matter shall be heard before the same judge
15of the court who sentenced the prisoner.
16(9) If the court grants the recall and resentencing application,
17 the prisoner shall be released by the department within 48 hours
18of receipt of the court’s order, unless a longer time period is agreed
19to by
the inmate. At the time of release, the warden or the warden’s
20representative shall ensure that the prisoner has each of the
21following in his or her possession: a discharge medical summary,
22full medical records, state identification, parole or postrelease
23community supervision medications, and all property belonging
24to the prisoner. After discharge, any additional records shall be
25sent to the prisoner’s forwarding address.
26(10) The secretary shall issue a directive to medical and
27correctional staff employed by the department that details the
28guidelines and procedures for initiating a recall and resentencing
29procedure. The directive shall clearly state that any prisoner who
30is given a prognosis of six months or less to live is eligible for
31recall and resentencing consideration, and that recall and
32resentencing procedures shall be
initiated upon that prognosis.
33(11) The provisions of this subdivision shall be available to an
34inmate who is sentenced to a county jail pursuant to subdivision
35(h). For purposes of those inmates, “secretary” or “warden” shall
36mean the county correctional administrator and “chief medical
37officer” shall mean a physician designated by the county
38correctional administrator for this purpose.
39(f) Notwithstanding any other provision of this section, for
40purposes of paragraph (3) of subdivision (h), any allegation that
P10 1a defendant is eligible for state prison due to a prior or current
2conviction, sentence enhancement, or because he or she is required
3to register as a sex offender shall not be subject to dismissal
4pursuant to Section 1385.
5(g) A sentence to state prison for a determinate term for which
6only one term is specified, is a sentence to state prison under this
7section.
8(h) (1) Except as provided in paragraph (3), a felony punishable
9pursuant to this subdivision where the term is not specified in the
10underlying offense shall be punishable by a term of imprisonment
11in a county jail for 16 months, or two or three years.
12(2) Except as provided in paragraph (3), a felony punishable
13pursuant to this subdivision shall be punishable by imprisonment
14in a county jail for the term described in the underlying offense.
15(3) Notwithstanding paragraphs (1) and (2), where the defendant
16(A) has a prior or current felony conviction for a
serious felony
17described in subdivision (c) of Section 1192.7 or a prior or current
18conviction for a violent felony described in subdivision (c) of
19Section 667.5, (B) has a prior felony conviction in another
20jurisdiction for an offense that has all the elements of a serious
21felony described in subdivision (c) of Section 1192.7 or a violent
22felony described in subdivision (c) of Section 667.5, (C) is required
23to register as a sex offender pursuant to Chapter 5.5 (commencing
24with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
25and as part of the sentence an enhancement pursuant to Section
26186.11 is imposed, an executed sentence for a felony punishable
27pursuant to this subdivision shall be served in state prison.
28(4) Nothing in this subdivision shall be construed to prevent
29other dispositions authorized by law, including
pretrial diversion,
30deferred entry of judgment, or an order granting probation pursuant
31to Section 1203.1.
32(5) (A) Unless the court finds that, in the interests of justice, it
33is not appropriate in a particular case, the court, when imposing a
34sentence pursuant to paragraph (1) or (2), shall suspend execution
35of a concluding portion of the term for a period selected at the
36court’s discretion.
37(B) The portion of a defendant’s sentenced term that is
38suspended pursuant to this paragraph shall be known as mandatory
39supervision, and, unless otherwise ordered by the court, shall
40commence upon release from physical custody or an alternative
P11 1custody program, whichever is later. During the period of
2mandatory supervision, the defendant shall be supervised by the
3county
probation officer in accordance with the terms, conditions,
4and procedures generally applicable to persons placed on probation,
5for the remaining unserved portion of the sentence imposed by the
6court. The period of supervision shall be mandatory, and may not
7be earlier terminated except by court order. Any proceeding to
8revoke or modify mandatory supervision under this subparagraph
9shall be conducted pursuant to either subdivisions (a) and (b) of
10Section 1203.2 or Section 1203.3. During the period when the
11defendant is under that supervision, unless in actual custody related
12to the sentence imposed by the court, the defendant shall be entitled
13to only actual time credit against the term of imprisonment imposed
14by the court. Any time period which is suspended because a person
15has absconded shall not be credited toward the period of
16supervision.
17(6) The sentencing changes made by the act that added this
18subdivision shall be applied prospectively to any person sentenced
19on or after October 1, 2011.
20(7) The sentencing changes made to paragraph (5) by the act
21that added this paragraph shall become effective and operative on
22January 1, 2015, and shall be applied prospectively to any person
23sentenced on or after January 1, 2015.
24(i) This section shall remain in effect only until January 1, 2017,
25and as of that date is repealed, unless a later enacted statute, that
26is enacted before January 1, 2017, deletes or extends that date.
Section 1170 of the Penal Code, as amended by Section
282 of Chapter 378 of the Statutes of 2015, is amended to read:
(a) (1) The Legislature finds and declares that the
30purpose of sentencing is public safety achieved through
31begin delete accountability,end deletebegin insert punishment,end insert rehabilitation, and restorative justice.
32When a sentencebegin delete includes incarceration,end deletebegin insert of incarceration is
33imposed,end insert this purpose is best served bybegin insert (A) providing ongoing
34opportunities for
rehabilitation and (B)end insert terms that are proportionate
35to the seriousness of the offense with provision for uniformity in
36the sentences of offenders committing the same offense under
37similar circumstances. The Legislature further finds and declares
38that the
elimination of disparity and the provision of uniformity
39of sentences can best be achieved by determinate sentences fixed
40by statute in proportion to the seriousness of the offense as
P12 1determined by the Legislature to be imposed by the court with
2specified discretion.
3(2) The Legislature further finds and declares that programs
4should be available for inmates, including, but not limited to,
5educational programs that are designed to preparebegin delete allend deletebegin insert eligibleend insert
6 offenders for successful reentry into the community. The
7Legislature encourages the development of policies and programs
8designed to educate and rehabilitatebegin delete allend delete
offenders. In implementing
9this section, the Department of Corrections and Rehabilitation is
10encouraged to allowbegin delete allend deletebegin insert eligibleend insert inmates the opportunity to enroll
11in programs that promote a successful return to the
community.
12(3) In any case in which the sentence prescribed by statute for
13a person convicted of a public offense is a term of imprisonment
14in the state prison, or a term pursuant to subdivision (h), of any
15specification of three time periods, the court shall sentence the
16defendant to one of the terms of imprisonment specified unless
17the convicted person is given any other disposition provided by
18law, including a fine, jail, probation, or the suspension of
19imposition or execution of sentence or is sentenced pursuant to
20subdivision (b) of Section 1168 because he or she had committed
21his or her crime prior to July 1, 1977. In sentencing the convicted
22person, the court shall apply the sentencing rules of the Judicial
23Council. The court, unless it determines that there are
24circumstances in mitigation of the sentence
prescribed, shall also
25impose any other term that it is required by law to impose as an
26additional term. Nothing in this article shall affect any provision
27of law that imposes the death penalty, that authorizes or restricts
28the granting of probation or suspending the execution or imposition
29of sentence, or expressly provides for imprisonment in the state
30prison for life, except as provided in paragraph (2) of subdivision
31(d). In any case in which the amount of preimprisonment credit
32under Section 2900.5 or any other provision of law is equal to or
33exceeds any sentence imposed pursuant to this chapter, except for
34a remaining portion of mandatory supervision imposed pursuant
35to subparagraph (B) of paragraph (5) of subdivision (h), the entire
36sentence shall be deemed to have been served, except for the
37remaining period of mandatory supervision, and the defendant
38shall not be actually delivered to the
custody of the secretary or
39the county correctional administrator. The court shall advise the
40defendant that he or she shall serve an applicable period of parole,
P13 1postrelease community supervision, or mandatory supervision and
2order the defendant to report to the parole or probation office
3closest to the defendant’s last legal residence, unless the in-custody
4credits equal the total sentence, including both confinement time
5and the period of parole, postrelease community supervision, or
6mandatory supervision. The sentence shall be deemed a separate
7prior prison term or a sentence of imprisonment in a county jail
8under subdivision (h) for purposes of Section 667.5, and a copy
9of the judgment and other necessary documentation shall be
10forwarded to the secretary.
11(b) When a judgment of imprisonment is to be imposed and the
12statute specifies
three possible terms, the court shall order
13imposition of the middle term, unless there are circumstances in
14aggravation or mitigation of the crime. At least four days prior to
15the time set for imposition of judgment, either party or the victim,
16or the family of the victim if the victim is deceased, may submit
17a statement in aggravation or mitigation to dispute facts in the
18record or the probation officer’s report, or to present additional
19facts. In determining whether there are circumstances that justify
20imposition of the upper or lower term, the court may consider the
21record in the case, the probation officer’s report, other reports,
22including reports received pursuant to Section 1203.03, and
23statements in aggravation or mitigation submitted by the
24prosecution, the defendant, or the victim, or the family of the victim
25if the victim is deceased, and any further evidence introduced at
26the
sentencing hearing. The court shall set forth on the record the
27facts and reasons for imposing the upper or lower term. The court
28may not impose an upper term by using the fact of any
29enhancement upon which sentence is imposed under any provision
30of law. A term of imprisonment shall not be specified if imposition
31of sentence is suspended.
32(c) The court shall state the reasons for its sentence choice on
33the record at the time of sentencing. The court shall also inform
34the defendant that as part of the sentence after expiration of the
35term he or she may be on parole for a period as provided in Section
363000 or 3000.08 or postrelease community supervision for a period
37as provided in Section 3451.
38(d) (1) When a defendant subject to this section or subdivision
39(b) of
Section 1168 has been sentenced to be imprisoned in the
40state prison or county jail pursuant to subdivision (h) and has been
P14 1committed to the custody of the secretary or the county correctional
2administrator, the court may, within 120 days of the date of
3commitment on its own motion, or at any time upon the
4recommendation of the secretary or the Board of Parole Hearings
5in the case of state prison inmates, or the county correctional
6administrator in the case of county jail inmates, recall the sentence
7and commitment previously ordered and resentence the defendant
8in the same manner as if he or she had not previously been
9sentenced, provided the new sentence, if any, is no greater than
10the initial sentence. The court resentencing under this subdivision
11shall apply the sentencing rules of the Judicial Council so as to
12eliminate disparity of sentences and to promote uniformity of
13sentencing. Credit
shall be given for time served.
14(2) (A) (i) When a defendant who was under 18 years of age
15at the time of the commission of the offense for which the
16defendant was sentenced to imprisonment for life without the
17possibility of parole has served at least 15 years of that sentence,
18the defendant may submit to the sentencing court a petition for
19recall and resentencing.
20(ii) Notwithstanding clause (i), this paragraph shall not apply
21to defendants sentenced to life without parole for an offense where
22the defendant tortured, as described in Section 206, his or her
23victim or the victim was a public safety official, including any law
24enforcement personnel mentioned in Chapter 4.5 (commencing
25with Section 830) of Title 3, or any firefighter as
described in
26Section 245.1, as well as any other officer in any segment of law
27enforcement who is employed by the federal government, the state,
28or any of its political subdivisions.
29(B) The defendant shall file the original petition with the
30sentencing court. A copy of the petition shall be served on the
31agency that prosecuted the case. The petition shall include the
32defendant’s statement that he or she was under 18 years of age at
33the time of the crime and was sentenced to life in prison without
34the possibility of parole, the defendant’s statement describing his
35or her remorse and work towards rehabilitation, and the defendant’s
36statement that one of the following is true:
37(i) The defendant was convicted pursuant to felony murder or
38aiding and abetting murder provisions of law.
39(ii) The defendant does not have juvenile felony adjudications
40for assault or other felony crimes with a significant potential for
P15 1personal harm to victims prior to the offense for which the sentence
2is being considered for recall.
3(iii) The defendant committed the offense with at least one adult
4codefendant.
5(iv) The defendant has performed acts that tend to indicate
6rehabilitation or the potential for rehabilitation, including, but not
7limited to, availing himself or herself of rehabilitative, educational,
8or vocational programs, if those programs have been available at
9his or her classification level and facility, using self-study for
10self-improvement, or showing evidence of remorse.
11(C) If any of the information required in subparagraph (B) is
12missing from the petition, or if proof of service on the prosecuting
13agency is not provided, the court shall return the petition to the
14defendant and advise the defendant that the matter cannot be
15 considered without the missing information.
16(D) A reply to the petition, if any, shall be filed with the court
17within 60 days of the date on which the prosecuting agency was
18served with the petition, unless a continuance is granted for good
19cause.
20(E) If the court finds by a preponderance of the evidence that
21the statements in the petition are true, the court shall hold a hearing
22to consider whether to recall the sentence and commitment
23previously ordered and to
resentence the defendant in the same
24manner as if the defendant had not previously been sentenced,
25provided that the new sentence, if any, is not greater than the initial
26sentence. Victims, or victim family members if the victim is
27deceased, shall retain the rights to participate in the hearing.
28(F) The factors that the court may consider when determining
29whether to recall and resentence include, but are not limited to,
30the following:
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) Prior to the offense for which the sentence is being
40considered for recall, the defendant had insufficient adult support
P16 1or supervision and had suffered from psychological or physical
2trauma, or significant stress.
3(v) The defendant suffers from cognitive limitations due to
4mental illness, developmental disabilities, or other factors that did
5not constitute a defense, but influenced the defendant’s
6involvement in the offense.
7(vi) The defendant has performed acts that tend to indicate
8rehabilitation or the potential for
rehabilitation, including, but not
9limited to, availing himself or herself of rehabilitative, educational,
10or vocational programs, if those programs have been available at
11his or her classification level and facility, using self-study for
12self-improvement, or showing evidence of remorse.
13(vii) The defendant has maintained family ties or connections
14with others through letter writing, calls, or visits, or has eliminated
15contact with individuals outside of prison who are currently
16involved with crime.
17(viii) The defendant has had no disciplinary actions for violent
18activities in the last five years in which the defendant was
19determined to be the aggressor.
20(G) The court shall have the discretion to recall the sentence
21and
commitment previously ordered and to resentence the
22defendant in the same manner as if the defendant had not
23previously been sentenced, provided that the new sentence, if any,
24is not greater than the initial sentence. The discretion of the court
25shall be exercised in consideration of the criteria in subparagraph
26(B). Victims, or victim family members if the victim is deceased,
27shall be notified of the resentencing hearing and shall retain their
28rights to participate in the hearing.
29(H) If the sentence is not recalled, the defendant may submit
30another petition for recall and resentencing to the sentencing court
31when the defendant has been committed to the custody of the
32department for at least 20 years. If recall and resentencing is not
33granted under that petition, the defendant may file another petition
34after having served 24 years. The final
petition may be submitted,
35and the response to that petition shall be determined, during the
3625th year of the defendant’s sentence.
37(I) In addition to the criteria in subparagraph (F), the court may
38consider any other criteria that the court deems relevant to its
39decision, so long as the court identifies them on the record,
P17 1provides a statement of reasons for adopting them, and states why
2the defendant does or does not satisfy the criteria.
3(J) This subdivision shall have retroactive application.
4(e) (1) Notwithstanding any other law and consistent with
5paragraph (1) of subdivision (a), if the secretary or the Board of
6Parole Hearings or both determine that a prisoner satisfies the
7criteria set forth
in paragraph (2), the secretary or the board may
8recommend to the court that the prisoner’s sentence be recalled.
9(2) The court shall have the discretion to resentence or recall if
10the court finds that the facts described in subparagraphs (A) and
11(B) or subparagraphs (B) and (C) exist:
12(A) The prisoner is terminally ill with an incurable condition
13caused by an illness or disease that would produce death within
14six months, as determined by a physician employed by the
15department.
16(B) The conditions under which the prisoner would be released
17or receive treatment do not pose a threat to public safety.
18(C) The prisoner is permanently medically incapacitated with
19a
medical condition that renders him or her permanently unable
20to perform activities of basic daily living, and results in the prisoner
21requiring 24-hour total care, including, but not limited to, coma,
22persistent vegetative state, brain death, ventilator-dependency, loss
23of control of muscular or neurological function, and that
24incapacitation did not exist at the time of the original sentencing.
25The Board of Parole Hearings shall make findings pursuant to
26this subdivision before making a recommendation for resentence
27or recall to the court. This subdivision does not apply to a prisoner
28sentenced to death or a term of life without the possibility of parole.
29(3) Within 10 days of receipt of a positive recommendation by
30the secretary or the board, the court shall hold a hearing to consider
31whether the
prisoner’s sentence should be recalled.
32(4) Any physician employed by the department who determines
33that a prisoner has six months or less to live shall notify the chief
34medical officer of the prognosis. If the chief medical officer
35concurs with the prognosis, he or she shall notify the warden.
36Within 48 hours of receiving notification, the warden or the
37warden’s representative shall notify the prisoner of the recall and
38resentencing procedures, and shall arrange for the prisoner to
39designate a family member or other outside agent to be notified
40as to the prisoner’s medical condition and prognosis, and as to the
P18 1recall and resentencing procedures. If the inmate is deemed
2mentally unfit, the warden or the warden’s representative shall
3contact the inmate’s emergency contact and provide the information
4described in paragraph (2).
5(5) The warden or the warden’s representative shall provide the
6prisoner and his or her family member, agent, or emergency
7contact, as described in paragraph (4), updated information
8throughout the recall and resentencing process with regard to the
9prisoner’s medical condition and the status of the prisoner’s recall
10and resentencing proceedings.
11(6) Notwithstanding any other provisions of this section, the
12prisoner or his or her family member or designee may
13independently request consideration for recall and resentencing
14by contacting the chief medical officer at the prison or the
15secretary. Upon receipt of the request, the chief medical officer
16and the warden or the warden’s representative shall follow the
17procedures described in paragraph (4). If the secretary determines
18that
the prisoner satisfies the criteria set forth in paragraph (2), the
19secretary or board may recommend to the court that the prisoner’s
20sentence be recalled. The secretary shall submit a recommendation
21for release within 30 days in the case of inmates sentenced to
22determinate terms and, in the case of inmates sentenced to
23indeterminate terms, the secretary shall make a recommendation
24to the Board of Parole Hearings with respect to the inmates who
25have applied under this section. The board shall consider this
26information and make an independent judgment pursuant to
27paragraph (2) and make findings related thereto before rejecting
28the request or making a recommendation to the court. This action
29shall be taken at the next lawfully noticed board meeting.
30(7) Any recommendation for recall submitted to the court by
31the secretary or the Board of
Parole Hearings shall include one or
32more medical evaluations, a postrelease plan, and findings pursuant
33to paragraph (2).
34(8) If possible, the matter shall be heard before the same judge
35of the court who sentenced the prisoner.
36(9) If the court grants the recall and resentencing application,
37the prisoner shall be released by the department within 48 hours
38of receipt of the court’s order, unless a longer time period is agreed
39to by the inmate. At the time of release, the warden or the warden’s
40representative shall ensure that the prisoner has each of the
P19 1following in his or her possession: a discharge medical summary,
2full medical records, state identification, parole or postrelease
3community supervision medications, and all property belonging
4to the prisoner. After discharge, any
additional records shall be
5sent to the prisoner’s forwarding address.
6(10) The secretary shall issue a directive to medical and
7correctional staff employed by the department that details the
8guidelines and procedures for initiating a recall and resentencing
9procedure. The directive shall clearly state that any prisoner who
10is given a prognosis of six months or less to live is eligible for
11recall and resentencing consideration, and that recall and
12resentencing procedures shall be initiated upon that prognosis.
13(11) The provisions of this subdivision shall be available to an
14inmate who is sentenced to a county jail pursuant to subdivision
15(h). For purposes of those inmates, “secretary” or “warden” shall
16mean the county correctional administrator and “chief medical
17officer” shall
mean a physician designated by the county
18correctional administrator for this purpose.
19(f) Notwithstanding any other provision of this section, for
20purposes of paragraph (3) of subdivision (h), any allegation that
21a defendant is eligible for state prison due to a prior or current
22conviction, sentence enhancement, or because he or she is required
23to register as a sex offender shall not be subject to dismissal
24pursuant to Section 1385.
25(g) A sentence to state prison for a determinate term for which
26only one term is specified, is a sentence to state prison under this
27section.
28(h) (1) Except as provided in paragraph (3), a felony punishable
29pursuant to this subdivision where the term is not specified
in the
30underlying offense shall be punishable by a term of imprisonment
31in a county jail for 16 months, or two or three years.
32(2) Except as provided in paragraph (3), a felony punishable
33pursuant to this subdivision shall be punishable by imprisonment
34in a county jail for the term described in the underlying offense.
35(3) Notwithstanding paragraphs (1) and (2), where the defendant
36(A) has a prior or current felony conviction for a serious felony
37described in subdivision (c) of Section 1192.7 or a prior or current
38conviction for a violent felony described in subdivision (c) of
39Section 667.5, (B) has a prior felony conviction in another
40jurisdiction for an offense that has all the elements of a serious
P20 1felony described in subdivision (c) of Section 1192.7 or a violent
2felony described
in subdivision (c) of Section 667.5, (C) is required
3to register as a sex offender pursuant to Chapter 5.5 (commencing
4with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
5and as part of the sentence an enhancement pursuant to Section
6186.11 is imposed, an executed sentence for a felony punishable
7pursuant to this subdivision shall be served in state prison.
8(4) Nothing in this subdivision shall be construed to prevent
9other dispositions authorized by law, including pretrial diversion,
10deferred entry of judgment, or an order granting probation pursuant
11to Section 1203.1.
12(5) (A) Unless the court finds, in the interest of justice, that it
13is not appropriate in a particular case, the court, when imposing a
14sentence pursuant to paragraph (1) or (2),
shall suspend execution
15of a concluding portion of the term for a period selected at the
16court’s discretion.
17(B) The portion of a defendant’s sentenced term that is
18suspended pursuant to this paragraph shall be known as mandatory
19supervision, and, unless otherwise ordered by the court, shall
20commence upon release from physical custody or an alternative
21custody program, whichever is later. During the period of
22mandatory supervision, the defendant shall be supervised by the
23county probation officer in accordance with the terms, conditions,
24and procedures generally applicable to persons placed on probation,
25for the remaining unserved portion of the sentence imposed by the
26court. The period of supervision shall be mandatory, and may not
27be earlier terminated except by court order. Any proceeding to
28revoke or modify mandatory
supervision under this subparagraph
29shall be conducted pursuant to either subdivisions (a) and (b) of
30Section 1203.2 or Section 1203.3. During the period when the
31defendant is under that supervision, unless in actual custody related
32to the sentence imposed by the court, the defendant shall be entitled
33to only actual time credit against the term of imprisonment imposed
34by the court. Any time period which is suspended because a person
35has absconded shall not be credited toward the period of
36supervision.
37(6) The sentencing changes made by the act that added this
38subdivision shall be applied prospectively to any person sentenced
39on or after October 1, 2011.
P21 1(7) The sentencing changes made to paragraph (5) by the act
2that added this paragraph shall become effective and operative on
3January
1, 2015, and shall be applied prospectively to any person
4sentenced on or after January 1, 2015.
5(i) This section shall become operative on January 1, 2017.
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