Amended in Senate August 19, 2016

Amended in Senate August 15, 2016

Amended in Assembly May 19, 2016

Amended in Assembly April 12, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 2590


Introduced by Assembly Member Weber

begin insert

(Principal coauthor: Senator Hancock)

end insert

(Coauthors: Assembly Members Atkins, Chu, and Mark Stone)

(Coauthor: Senator Beall)

February 19, 2016


An act to amend 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 isbegin delete punishment.end deletebegin insert punishment and 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 specified.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. 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 ofbegin delete commitment.end deletebegin insert commitment, as specified.end insert

This bill would instead make legislative findings and declarations that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice. The bill would amend the above legislative findingsbegin insert and declarationsend insert tobegin insert remove the provision relating to determinate sentences and toend insert state thatbegin insert educational, rehabilitative, and restorative justiceend insert programs should bebegin delete available to eligible inmatesend deletebegin insert available, as specified,end insert and would encourage the department to allowbegin insert allend insert eligible inmates the opportunity to enroll in programs that promote successful return to the community.

begin insert

This bill would also direct the department to establish a mission statement consistent with the principles described in the legislative findings and declarations.

end insert
begin insert

Under existing law, most felonies are punishable by a triad of terms of incarceration in the state prison, comprised of low, middle, and upper lengths of terms. Until January 1, 2017, the choice of the appropriate term that is to best serve the interests of justice rests within the sound discretion of the court. On and after January 1, 2017, existing law requires the court to impose the middle term, unless there are circumstances in aggravation or mitigation of the crime.

end insert
begin insert

This bill would extend to January 1, 2022, the authority of the court to, in its sound discretion, impose the appropriate term that best serves the interests of justice. The bill would, on and after January 1, 2022, require the court to impose the middle term, unless there are circumstances in aggravation or mitigation of the crime.

end insert
begin insert

This bill would incorporate additional changes to Section 1170 of the Penal Code, proposed by SB 1084, that would become operative only if this bill and SB 1084 are enacted and become effective on or before January 1, 2017, and this bill is chaptered last.

end insert

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

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

P2    1

SECTION 1.  

Section 1170 of the Penal Code, as amended by
2Section 1 of Chapter 378 of the Statutes of 2015, is amended to
3read:

4

1170.  

(a) (1) The Legislature finds and declares that the
5purpose of sentencing is public safety achieved through
P3    1punishment, rehabilitation, and restorative justice. When a sentence
2begin delete of incarceration is imposed,end deletebegin insert includes incarceration,end insert this purpose
3is best served bybegin delete (A) providing ongoing opportunities for
4rehabilitation and (B)end delete
terms that are proportionate to the seriousness
5of the offense with provision for uniformity in the sentences of
6offenders committing the same offense under similar
7 circumstances. begin delete The Legislature further finds and declares that the
8elimination of disparity and the provision of uniformity of
9sentences can best be achieved by determinate sentences fixed by
10statute in proportion to the seriousness of the offense as determined
11by the Legislature to be imposed by the court with specified
12discretion.end delete

13(2) The Legislature further finds and declares that programs
14should be available for inmates, including, but not limited to,
15begin delete educationalend deletebegin insert educational, rehabilitative, and restorative justiceend insert
16 programs that are designedbegin insert to promote behavior change andend insert to
17preparebegin insert allend insert eligible offenders for successful reentry into the
18community. The Legislature encourages the development of
19policies and programs designed to educate and rehabilitatebegin insert all
20eligibleend insert
offenders. In implementing this section, the Department
21of Corrections and Rehabilitation is encouraged to allowbegin insert allend insert eligible
22inmates the opportunity to enroll in programs that promote
23successful return to the community.begin insert end insertbegin insertThe Department of Corrections
24and Rehabilitation is directed to establish a mission statement
25consistent with these principles.end insert

26(3) In any case in which the sentence prescribed by statute for
27a person convicted of a public offense is a term of imprisonment
28in the state prison or a term pursuant to subdivision (h) of any
29specification of three time periods, the court shall sentence the
30defendant to one of the terms of imprisonment specified unless
31the convicted person is given any other disposition provided by
32law, including a fine, jail, probation, or the suspension of
33imposition or execution of sentence or is sentenced pursuant to
34subdivision (b) of Section 1168 because he or she had committed
35his or her crime prior to July 1, 1977. In sentencing the convicted
36person, the court shall apply the sentencing rules of the Judicial
37Council. The court, unless it determines that there are
38circumstances in mitigation of the sentence prescribed, shall also
39impose any other term that it is required by law to impose as an
40additional term. Nothing in this article shall affect any provision
P4    1of law that imposes the death penalty, that authorizes or restricts
2the granting of probation or suspending the execution or imposition
3of sentence, or expressly provides for imprisonment in the state
4prison for life, except as provided in paragraph (2) of subdivision
5(d). In any case in which the amount of preimprisonment credit
6under Section 2900.5 or any other law is equal to or exceeds any
7sentence imposed pursuant to this chapter, except for the remaining
8portion of mandatory supervision pursuant to subparagraph (B) of
9paragraph (5) of subdivision (h), the entire sentence shall be
10deemed to have been served, except for the remaining period of
11mandatory supervision, and the defendant shall not be actually
12delivered to the custody of the secretary or to the custody of the
13county correctional administrator. The court shall advise the
14defendant that he or she shall serve an applicable period of parole,
15postrelease community supervision, or mandatory supervision,
16and order the defendant to report to the parole or probation office
17closest to the defendant’s last legal residence, unless the in-custody
18credits equal the total sentence, including both confinement time
19and the period of parole, postrelease community supervision, or
20mandatory supervision. The sentence shall be deemed a separate
21prior prison term or a sentence of imprisonment in a county jail
22under subdivision (h) for purposes of Section 667.5, and a copy
23of the judgment and other necessary documentation shall be
24forwarded to the secretary.

25(b) When a judgment of imprisonment is to be imposed and the
26 statute specifies three possible terms, the choice of the appropriate
27term shall rest within the sound discretion of the court. At least
28four days prior to the time set for imposition of judgment, either
29party or the victim, or the family of the victim if the victim is
30deceased, may submit a statement in aggravation or mitigation. In
31determining the appropriate term, the court may consider the record
32in the case, the probation officer’s report, other reports, including
33reports received pursuant to Section 1203.03, and statements in
34aggravation or mitigation submitted by the prosecution, the
35defendant, or the victim, or the family of the victim if the victim
36is deceased, and any further evidence introduced at the sentencing
37hearing. The court shall select the term which, in the court’s
38discretion, best serves the interests of justice. The court shall set
39forth on the record the reasons for imposing the term selected and
40the court may not impose an upper term by using the fact of any
P5    1enhancement upon which sentence is imposed under any provision
2of law. A term of imprisonment shall not be specified if imposition
3of sentence is suspended.

4(c) The court shall state the reasons for its sentence choice on
5the record at the time of sentencing. The court shall also inform
6the defendant that as part of the sentence after expiration of the
7term he or she may be on parole for a period as provided in Section
83000 or 3000.08 or postrelease community supervision for a period
9as provided in Section 3451.

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

26(2) (A) (i) When a defendant who was under 18 years of age
27at the time of the commission of the offense for which the
28defendant was sentenced to imprisonment for life without the
29possibility of parole has served at least 15 years of that sentence,
30the defendant may submit to the sentencing court a petition for
31recall and resentencing.

32(ii) Notwithstanding clause (i), this paragraph shall not apply
33to defendants sentenced to life without parole for an offense where
34the defendant tortured, as described in Section 206, his or her
35victim or the victim was a public safety official, including any law
36enforcement personnel mentioned in Chapter 4.5 (commencing
37with Section 830) of Title 3, or any firefighter as described in
38Section 245.1, as well as any other officer in any segment of law
39enforcement who is employed by the federal government, the state,
40or any of its political subdivisions.

P6    1(B) The defendant shall file the original petition with the
2sentencing court. A copy of the petition shall be served on the
3agency that prosecuted the case. The petition shall include the
4 defendant’s statement that he or she was under 18 years of age at
5the time of the crime and was sentenced to life in prison without
6the possibility of parole, the defendant’s statement describing his
7or her remorse and work towards rehabilitation, and the defendant’s
8statement that one of the following is true:

9(i) The defendant was convicted pursuant to felony murder or
10aiding and abetting murder provisions of law.

11(ii) The defendant does not have juvenile felony adjudications
12for assault or other felony crimes with a significant potential for
13personal harm to victims prior to the offense for which the sentence
14is being considered for recall.

15(iii) The defendant committed the offense with at least one adult
16codefendant.

17(iv) The defendant has performed acts that tend to indicate
18rehabilitation or the potential for rehabilitation, including, but not
19limited to, availing himself or herself of rehabilitative, educational,
20or vocational programs, if those programs have been available at
21his or her classification level and facility, using self-study for
22self-improvement, or showing evidence of remorse.

23(C) If any of the information required in subparagraph (B) is
24missing from the petition, or if proof of service on the prosecuting
25agency is not provided, the court shall return the petition to the
26defendant and advise the defendant that the matter cannot be
27considered without the missing information.

28(D) A reply to the petition, if any, shall be filed with the court
29within 60 days of the date on which the prosecuting agency was
30served with the petition, unless a continuance is granted for good
31cause.

32(E) If the court finds by a preponderance of the evidence that
33the statements in the petition are true, the court shall hold a hearing
34to consider whether to recall the sentence and commitment
35previously ordered and to resentence the defendant in the same
36manner as if the defendant had not previously been sentenced,
37provided that the new sentence, if any, is not greater than the initial
38sentence. Victims, or victim family members if the victim is
39deceased, shall retain the rights to participate in the hearing.

P7    1(F) The factors that the court may consider when determining
2whether to recall and resentence include, but are not limited to,
3the following:

4(i) The defendant was convicted pursuant to felony murder or
5aiding and abetting murder provisions of law.

6(ii) The defendant does not have juvenile felony adjudications
7for assault or other felony crimes with a significant potential for
8personal harm to victims prior to the offense for which the sentence
9is being considered for recall.

10(iii) The defendant committed the offense with at least one adult
11codefendant.

12(iv) Prior to the offense for which the sentence is being
13considered for recall, the defendant had insufficient adult support
14or supervision and had suffered from psychological or physical
15trauma, or significant stress.

16(v) The defendant suffers from cognitive limitations due to
17mental illness, developmental disabilities, or other factors that did
18not constitute a defense, but influenced the defendant’s
19involvement in the offense.

20(vi) The defendant has performed acts that tend to indicate
21rehabilitation or the potential for rehabilitation, including, but not
22limited to, availing himself or herself of rehabilitative, educational,
23or vocational programs, if those programs have been available at
24his or her classification level and facility, using self-study for
25self-improvement, or showing evidence of remorse.

26(vii) The defendant has maintained family ties or connections
27with others through letter writing, calls, or visits, or has eliminated
28contact with individuals outside of prison who are currently
29involved with crime.

30(viii) The defendant has had no disciplinary actions for violent
31activities in the last five years in which the defendant was
32determined to be the aggressor.

33(G) The court shall have the discretion to recall the sentence
34and commitment previously ordered and to resentence the
35defendant in the same manner as if the defendant had not
36previously been sentenced, provided that the new sentence, if any,
37is not greater than the initial sentence. The discretion of the court
38shall be exercised in consideration of the criteria in subparagraph
39(B). Victims, or victim family members if the victim is deceased,
P8    1shall be notified of the resentencing hearing and shall retain their
2rights to participate in the hearing.

3(H) If the sentence is not recalled, the defendant may submit
4another petition for recall and resentencing to the sentencing court
5when the defendant has been committed to the custody of the
6department for at least 20 years. If recall and resentencing is not
7granted under that petition, the defendant may file another petition
8after having served 24 years. The final petition may be submitted,
9and the response to that petition shall be determined, during the
1025th year of the defendant’s sentence.

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

16(J) This subdivision shall have retroactive application.

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

22(2) The court shall have the discretion to resentence or recall if
23the court finds that the facts described in subparagraphs (A) and
24(B) or subparagraphs (B) and (C) exist:

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

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

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

38The Board of Parole Hearings shall make findings pursuant to
39this subdivision before making a recommendation for resentence
P9    1or recall to the court. This subdivision does not apply to a prisoner
2sentenced to death or a term of life without the possibility of parole.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

20(i) This section shall remain in effect only until January 1,begin delete 2017,end delete
21begin insert 2022,end insert and as of that date is repealed, unless a later enacted statute,
22that is enacted before January 1,begin delete 2017,end deletebegin insert 2022,end insert deletes or extends
23that date.

24begin insert

begin insertSEC. 1.1.end insert  

end insert

begin insertSection 1170 of the end insertbegin insertPenal Codeend insertbegin insert, as amended by
25Section 1 of Chapter 378 of the Statutes of 2015, is amended to
26read:end insert

27

1170.  

(a) (1) The Legislature finds and declares that the
28purpose ofbegin delete imprisonment for crime is punishment. Thisend deletebegin insert sentencing
29is public safety achieved through punishment, rehabilitation, and
30restorative justice. When a sentence includes incarceration, thisend insert

31 purpose is best served by termsbegin insert that areend insert proportionate to the
32seriousness of the offense with provision for uniformity in the
33sentences of offenders committing the same offense under similar
34circumstances.begin delete The Legislature further finds and declares that the
35elimination of disparity and the provision of uniformity of
36sentences can best be achieved by determinate sentences fixed by
37statute in proportion to the seriousness of the offense as determined
38by the Legislature to be imposed by the court with specified
39discretion.end delete

P13   1(2) begin deleteNotwithstanding paragraph (1), the end deletebegin insertThe end insertLegislature further
2finds and declares that programs should be available for inmates,
3including, but not limited to,begin delete educational programs,end deletebegin insert educational,
4rehabilitative, and restorative justice programsend insert
that are designed
5begin insert to promote behavior change andend insert to preparebegin delete nonviolent felonyend deletebegin insert all
6eligibleend insert
offenders for successful reentry into the community. The
7Legislature encourages the development of policies and programs
8designed to educate and rehabilitatebegin delete nonviolent felonyend deletebegin insert all eligibleend insert
9 offenders. In implementing this section, the Department of
10Corrections and Rehabilitation is encouraged tobegin delete give priority
11enrollment in programs toend delete
begin insert allow all eligible inmates the opportunity
12to enroll in programs thatend insert
promote successful return to the
13
begin delete community to an inmate with a short remaining term of
14commitment and a release date that would allow him or her
15adequate time to complete the program.end delete
begin insert community.end insertbegin insert The
16Department of Corrections and Rehabilitation is directed to
17establish a mission statement consistent with these principles.end insert

18(3) In any case in which thebegin delete punishmentend deletebegin insert sentenceend insert prescribed by
19statute for a person convicted of a public offense is a term of
20imprisonment in the state prison or a term pursuant to subdivision
21(h) of any specification of three time periods, the court shall
22sentence the defendant to one of the terms of imprisonment
23specified unless the convicted person is given any other disposition
24provided by law, including a fine, jail, probation, or the suspension
25of imposition or execution of sentence or is sentenced pursuant to
26subdivision (b) of Section 1168 because he or she had committed
27his or her crime prior to July 1, 1977. In sentencing the convicted
28person, the court shall apply the sentencing rules of the Judicial
29Council. The court, unless it determines that there are
30circumstances in mitigation of thebegin delete punishmentend deletebegin insert sentenceend insert prescribed,
31shall also impose any other term that it is required by law to impose
32as an additional term. Nothing in this article shall affect any
33provision of law that imposes the death penalty, that authorizes or
34restricts the granting of probation or suspending the execution or
35imposition of sentence, or expressly provides for imprisonment in
36the state prison for life, except as provided in paragraph (2) of
37subdivision (d). In any case in which the amount of
38 preimprisonment credit under Section 2900.5 or any other law is
39equal to or exceeds any sentence imposed pursuant to this chapter,
40except for the remaining portion of mandatory supervision pursuant
P14   1to subparagraph (B) of paragraph (5) of subdivision (h), the entire
2sentence shall be deemed to have been served, except for the
3remaining period of mandatory supervision, and the defendant
4shall not be actually delivered to the custody of the secretary or to
5the custody of the county correctional administrator. The court
6shall advise the defendant that he or she shall serve an applicable
7period of parole, postrelease community supervision, or mandatory
8supervision, and order the defendant to report to the parole or
9probation office closest to the defendant’s last legal residence,
10unless the in-custody credits equal the total sentence, including
11both confinement time and the period of parole, postrelease
12community supervision, or mandatory supervision. The sentence
13shall be deemed a separate prior prison term or a sentence of
14imprisonment in a county jail under subdivision (h) for purposes
15of Section 667.5, and a copy of the judgment and other necessary
16documentation shall be forwarded to the secretary.

17(b) When a judgment of imprisonment is to be imposed and the
18statute specifies three possible terms, the choice of the appropriate
19term shall rest within the sound discretion of the court. At least
20four days prior to the time set for imposition of judgment, either
21party or the victim, or the family of the victim if the victim is
22deceased, may submit a statement in aggravation or mitigation. In
23determining the appropriate term, the court may consider the record
24in the case, the probation officer’s report, other reports, including
25reports received pursuant to Section 1203.03, and statements in
26aggravation or mitigation submitted by the prosecution, the
27defendant, or the victim, or the family of the victim if the victim
28is deceased, and any further evidence introduced at the sentencing
29hearing. The court shall select the term which, in the court’s
30discretion, best serves the interests of justice. The court shall set
31forth on the record the reasons for imposing the term selected and
32the court may not impose an upper term by using the fact of any
33enhancement upon which sentence is imposed under any provision
34of law. A term of imprisonment shall not be specified if imposition
35of sentence is suspended.

36(c) The court shall state the reasons for its sentence choice on
37the record at the time of sentencing. The court shall also inform
38the defendant that as part of the sentence after expiration of the
39term he or she may be on parole for a period as provided in Section
P15   13000 or 3000.08 or postrelease community supervision for a period
2as provided in Section 3451.

3(d) (1) When a defendant subject to this section or subdivision
4(b) of Section 1168 has been sentenced to be imprisoned in the
5state prison or county jail pursuant to subdivision (h) and has been
6committed to the custody of the secretary or the county correctional
7administrator, the court may, within 120 days of the date of
8commitment on its own motion, or at any time upon the
9recommendation of the secretary or the Board of Parole Hearings
10in the case of state prison inmates, or the county correctional
11administrator in the case of county jail inmates, recall the sentence
12and commitment previously ordered and resentence the defendant
13in the same manner as if he or she had not previously been
14sentenced, provided the new sentence, if any, is no greater than
15the initial sentence. The court resentencing under this subdivision
16shall apply the sentencing rules of the Judicial Council so as to
17eliminate disparity of sentences and to promote uniformity of
18sentencing. Credit shall be given for time served.

19(2) (A) (i) When a defendant who was under 18 years of age
20at the time of the commission of the offense for which the
21defendant was sentenced to imprisonment for life without the
22possibility of parole hasbegin delete servedend deletebegin insert been incarcerated forend insert at least 15
23begin delete years of that sentence,end deletebegin insert years,end insert the defendant may submit to the
24sentencing court a petition for recall and resentencing.

25(ii) Notwithstanding clause (i), this paragraph shall not apply
26to defendants sentenced to life without parole for an offense where
27begin insert it was pled and proved thatend insert the defendant tortured, as described
28in Section 206, his or her victim or the victim was a public safety
29official, including any law enforcement personnel mentioned in
30Chapter 4.5 (commencing with Section 830) of Title 3, or any
31firefighter as described in Section 245.1, as well as any other officer
32in any segment of law enforcement who is employed by the federal
33government, the state, or any of its political subdivisions.

34(B) The defendant shall file the original petition with the
35sentencing court. A copy of the petition shall be served on the
36agency that prosecuted the case. The petition shall include the
37defendant’s statement that he or she was under 18 years of age at
38the time of the crime and was sentenced to life in prison without
39the possibility of parole, the defendant’s statement describing his
P16   1or her remorse and work towards rehabilitation, and the defendant’s
2statement that one of the following is true:

3(i) The defendant was convicted pursuant to felony murder or
4aiding and abetting murder provisions of law.

5(ii) The defendant does not have juvenile felony adjudications
6 for assault or other felony crimes with a significant potential for
7personal harm to victims prior to the offense for which the sentence
8is being considered for recall.

9(iii) The defendant committed the offense with at least one adult
10codefendant.

11(iv) The defendant has performed acts that tend to indicate
12rehabilitation or the potential for rehabilitation, including, but not
13limited to, availing himself or herself of rehabilitative, educational,
14or vocational programs, if those programs have been available at
15his or her classification level and facility, using self-study for
16 self-improvement, or showing evidence of remorse.

17(C) If any of the information required in subparagraph (B) is
18missing from the petition, or if proof of service on the prosecuting
19agency is not provided, the court shall return the petition to the
20defendant and advise the defendant that the matter cannot be
21considered without the missing information.

22(D) A reply to the petition, if any, shall be filed with the court
23within 60 days of the date on which the prosecuting agency was
24served with the petition, unless a continuance is granted for good
25cause.

26(E) If the court finds by a preponderance of the evidence that
27begin insert one or more ofend insert the statementsbegin delete in the petition are true, the court
28shall hold a hearing to consider whether toend delete
begin insert specified in clauses (i)
29to (iv), inclusive, of subparagraph (B) is true, the court shallend insert
recall
30the sentence and commitment previously ordered andbegin insert hold a
31hearingend insert
to resentence the defendant in the same manner as if the
32defendant had not previously been sentenced, provided that the
33new sentence, if any, is not greater than the initial sentence.
34Victims, or victim family members if the victim is deceased, shall
35retain the rights to participate in the hearing.

36(F) The factors that the court may consider when determining
37whether tobegin delete recall andend delete resentencebegin insert the defendant to a term of
38imprisonment with the possibility of paroleend insert
include, but are not
39limited to, the following:

P17   1(i) The defendant was convicted pursuant to felony murder or
2aiding and abetting murder provisions of law.

3(ii) The defendant does not have juvenile felony adjudications
4for assault or other felony crimes with a significant potential for
5personal harm to victims prior to the offense for which thebegin delete sentence
6is being considered for recall.end delete
begin insert defendant was sentenced to life
7without the possibility of parole.end insert

8(iii) The defendant committed the offense with at least one adult
9codefendant.

10(iv) Prior to the offense for which thebegin delete sentence is being
11considered for recall,end delete
begin insert defendant was sentenced to life without the
12possibility of parole,end insert
the defendant had insufficient adult support
13or supervision and had suffered from psychological or physical
14trauma, or significant stress.

15(v) The defendant suffers from cognitive limitations due to
16mental illness, developmental disabilities, or other factors that did
17not constitute a defense, but influenced the defendant’s
18involvement in the offense.

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

25(vii) The defendant has maintained family ties or connections
26with others through letter writing, calls, or visits, or has eliminated
27contact with individuals outside of prison who are currently
28involved with crime.

29(viii) The defendant has had no disciplinary actions for violent
30activities in the last five years in which the defendant was
31determined to be the aggressor.

32(G) The court shall have the discretionbegin delete to recall the sentence
33and commitment previously ordered andend delete
to resentence the
34defendant in the same manner as if the defendant had not
35previously been sentenced, provided that the new sentence, if any,
36is not greater than the initial sentence. The discretion of the court
37shall be exercised in consideration of the criteria in subparagraph
38begin delete (B).end deletebegin insert (F).end insert Victims, or victim family members if the victim is
39deceased, shall be notified of the resentencing hearing and shall
40retain their rights to participate in the hearing.

P18   1(H) If the sentence is notbegin delete recalled,end deletebegin insert recalled or the defendant is
2resentenced to imprisonment for life without the possibility of
3parole,end insert
the defendant may submit another petition for recall and
4resentencing to the sentencing court when the defendant has been
5committed to the custody of the department for at least 20 years.
6Ifbegin delete recall and resentencing is not grantedend deletebegin insert end insertbegin insertthe sentence is not recalled
7or the defendant is resentenced to imprisonment for life without
8the possibility of paroleend insert
under that petition, the defendant may file
9another petition after having served 24 years. The final petition
10may be submitted, and the response to that petition shall be
11determined, during the 25th year of the defendant’s sentence.

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

17(J) This subdivision shall have retroactive application.

begin insert

18
(K) Nothing in this paragraph is intended to diminish or
19abrogate any rights or remedies otherwise available to the
20defendant.

end insert

21(e) (1) Notwithstanding any other law and consistent with
22paragraph (1) of subdivision (a), if the secretary or the Board of
23Parole Hearings or both determine that a prisoner satisfies the
24criteria set forth in paragraph (2), the secretary or the board may
25recommend to the court that the prisoner’s sentence be recalled.

26(2) The court shall have the discretion to resentence or recall if
27the court finds that the facts described in subparagraphs (A) and
28(B) or subparagraphs (B) and (C) exist:

29(A) The prisoner is terminally ill with an incurable condition
30caused by an illness or disease that would produce death within
31six months, as determined by a physician employed by the
32department.

33(B) The conditions under which the prisoner would be released
34or receive treatment do not pose a threat to public safety.

35(C) The prisoner is permanently medically incapacitated with
36a medical condition that renders him or her permanently unable
37to perform activities of basic daily living, and results in the prisoner
38requiring 24-hour total care, including, but not limited to, coma,
39persistent vegetative state, brain death, ventilator-dependency, loss
P19   1of control of muscular or neurological function, and that
2incapacitation did not exist at the time of the original sentencing.

3The Board of Parole Hearings shall make findings pursuant to
4this subdivision before making a recommendation for resentence
5or recall to the court. This subdivision does not apply to a prisoner
6sentenced to death or a term of life without the possibility of parole.

7(3) Within 10 days of receipt of a positive recommendation by
8the secretary or the board, the court shall hold a hearing to consider
9whether the prisoner’s sentence should be recalled.

10(4) Any physician employed by the department who determines
11that a prisoner has six months or less to live shall notify the chief
12medical officer of the prognosis. If the chief medical officer
13concurs with the prognosis, he or she shall notify the warden.
14Within 48 hours of receiving notification, the warden or the
15warden’s representative shall notify the prisoner of the recall and
16resentencing procedures, and shall arrange for the prisoner to
17designate a family member or other outside agent to be notified
18as to the prisoner’s medical condition and prognosis, and as to the
19recall and resentencing procedures. If the inmate is deemed
20mentally unfit, the warden or the warden’s representative shall
21contact the inmate’s emergency contact and provide the information
22described in paragraph (2).

23(5) The warden or the warden’s representative shall provide the
24prisoner and his or her family member, agent, or emergency
25contact, as described in paragraph (4), updated information
26throughout the recall and resentencing process with regard to the
27prisoner’s medical condition and the status of the prisoner’s recall
28and resentencing proceedings.

29(6) Notwithstanding any other provisions of this section, the
30prisoner or his or her family member or designee may
31independently request consideration for recall and resentencing
32by contacting the chief medical officer at the prison or the
33secretary. Upon receipt of the request, the chief medical officer
34and the warden or the warden’s representative shall follow the
35procedures described in paragraph (4). If the secretary determines
36that the prisoner satisfies the criteria set forth in paragraph (2), the
37secretary or board may recommend to the court that the prisoner’s
38sentence be recalled. The secretary shall submit a recommendation
39for release within 30 days in the case of inmates sentenced to
40determinate terms and, in the case of inmates sentenced to
P20   1indeterminate terms, the secretary shall make a recommendation
2to the Board of Parole Hearings with respect to the inmates who
3have applied under this section. The board shall consider this
4information and make an independent judgment pursuant to
5paragraph (2) and make findings related thereto before rejecting
6the request or making a recommendation to the court. This action
7shall be taken at the next lawfully noticed board meeting.

8(7) Any recommendation for recall submitted to the court by
9the secretary or the Board of Parole Hearings shall include one or
10more medical evaluations, a postrelease plan, and findings pursuant
11to paragraph (2).

12(8) If possible, the matter shall be heard before the same judge
13of the court who sentenced the prisoner.

14(9) If the court grants the recall and resentencing application,
15the prisoner shall be released by the department within 48 hours
16of receipt of the court’s order, unless a longer time period is agreed
17to by the inmate. At the time of release, the warden or the warden’s
18representative shall ensure that the prisoner has each of the
19following in his or her possession: a discharge medical summary,
20full medical records, state identification, parole or postrelease
21community supervision medications, and all property belonging
22to the prisoner. After discharge, any additional records shall be
23sent to the prisoner’s forwarding address.

24(10) The secretary shall issue a directive to medical and
25correctional staff employed by the department that details the
26guidelines and procedures for initiating a recall and resentencing
27procedure. The directive shall clearly state that any prisoner who
28is given a prognosis of six months or less to live is eligible for
29recall and resentencing consideration, and that recall and
30resentencing procedures shall be initiated upon that prognosis.

31(11) The provisions of this subdivision shall be available to an
32inmate who is sentenced to a county jail pursuant to subdivision
33(h). For purposes of those inmates, “secretary” or “warden” shall
34mean the county correctional administrator and “chief medical
35officer” shall mean a physician designated by the county
36correctional administrator for this purpose.

37(f) Notwithstanding any other provision of this section, for
38purposes of paragraph (3) of subdivision (h), any allegation that
39a defendant is eligible for state prison due to a prior or current
40conviction, sentence enhancement, or because he or she is required
P21   1to register as a sex offender shall not be subject to dismissal
2pursuant to Section 1385.

3(g) A sentence to state prison for a determinate term for which
4only one term is specified, is a sentence to state prison under this
5section.

6(h) (1) Except as provided in paragraph (3), a felony punishable
7pursuant to this subdivision where the term is not specified in the
8underlying offense shall be punishable by a term of imprisonment
9in a county jail for 16 months, or two or three years.

10(2) Except as provided in paragraph (3), a felony punishable
11pursuant to this subdivision shall be punishable by imprisonment
12in a county jail for the term described in the underlying offense.

13(3) Notwithstanding paragraphs (1) and (2), where the defendant
14(A) has a prior or current felony conviction for a serious felony
15described in subdivision (c) of Section 1192.7 or a prior or current
16conviction for a violent felony described in subdivision (c) of
17Section 667.5, (B) has a prior felony conviction in another
18jurisdiction for an offense that has all the elements of a serious
19felony described in subdivision (c) of Section 1192.7 or a violent
20felony described in subdivision (c) of Section 667.5, (C) is required
21to register as a sex offender pursuant to Chapter 5.5 (commencing
22with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
23and as part of the sentence an enhancement pursuant to Section
24186.11 is imposed, an executed sentence for a felony punishable
25pursuant to this subdivision shall be served in state prison.

26(4) Nothing in this subdivision shall be construed to prevent
27other dispositions authorized by law, including pretrial diversion,
28deferred entry of judgment, or an order granting probation pursuant
29to Section 1203.1.

30(5) (A) Unless the court finds that, in the interests of justice, it
31is not appropriate in a particular case, the court, when imposing a
32sentence pursuant to paragraph (1) or (2), shall suspend execution
33of a concluding portion of the term for a period selected at the
34court’s discretion.

35(B) The portion of a defendant’s sentenced term that is
36suspended pursuant to this paragraph shall be known as mandatory
37supervision, and, unless otherwise ordered by the court, shall
38commence upon release from physical custody or an alternative
39custody program, whichever is later. During the period of
40mandatory supervision, the defendant shall be supervised by the
P22   1county probation officer in accordance with the terms, conditions,
2and procedures generally applicable to persons placed on probation,
3for the remaining unserved portion of the sentence imposed by the
4court. The period of supervision shall be mandatory, and may not
5be earlier terminated except by court order. Any proceeding to
6revoke or modify mandatory supervision under this subparagraph
7shall be conducted pursuant to either subdivisions (a) and (b) of
8Section 1203.2 or Section 1203.3. During the period when the
9defendant is under that supervision, unless in actual custody related
10to the sentence imposed by the court, the defendant shall be entitled
11to only actual time credit against the term of imprisonment imposed
12by the court. Any time period which is suspended because a person
13has absconded shall not be credited toward the period of
14supervision.

15(6) The sentencing changes made by the act that added this
16subdivision shall be applied prospectively to any person sentenced
17on or after October 1, 2011.

18(7) The sentencing changes made to paragraph (5) by the act
19that added this paragraph shall become effective and operative on
20January 1, 2015, and shall be applied prospectively to any person
21sentenced on or after January 1, 2015.

22(i) This section shall remain in effect only until January 1,begin delete 2017,end delete
23begin insert 2022,end insert and as of that date is repealed, unless a later enacted statute,
24that is enacted beforebegin delete that date,end deletebegin insert January 1, 2022,end insert deletes or extends
25that date.

26

SEC. 2.  

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

28

1170.  

(a) (1) The Legislature finds and declares that the
29purpose of sentencing is public safety achieved through
30punishment, rehabilitation, and restorative justice. When a sentence
31begin delete of incarceration is imposed,end deletebegin insert includes incarceration,end insert this purpose
32is best served bybegin delete (A) providing ongoing opportunities for
33rehabilitation and (B)end delete
terms that are proportionate to the seriousness
34of the offense with provision for uniformity in the sentences of
35offenders committing the same offense under similar
36circumstances. begin delete The Legislature further finds and declares that the
37elimination of disparity and the provision of uniformity of
38sentences can best be achieved by determinate sentences fixed by
39statute in proportion to the seriousness of the offense as determined
P23   1 by the Legislature to be imposed by the court with specified
2discretion.end delete

3(2) The Legislature further finds and declares that programs
4should be available for inmates, including, but not limited to,
5begin delete educationalend deletebegin insert educational, rehabilitative, and restorative justiceend insert
6 programs that are designedbegin insert to promote behavior change andend insert to
7preparebegin insert allend insert eligible offenders for successful reentry into the
8community. The Legislature encourages the development of
9policies and programs designed to educate and rehabilitatebegin insert all
10eligibleend insert
offenders. In implementing this section, the Department
11of Corrections and Rehabilitation is encouraged to allowbegin insert allend insert eligible
12inmates the opportunity to enroll in programs that promote a
13successful return to the community.begin insert The Department of Corrections
14and Rehabilitation is directed to establish a mission statement
15consistent with these principles.end insert

16(3) In any case in which the sentence prescribed by statute for
17a person convicted of a public offense is a term of imprisonment
18in the state prison, or a term pursuant to subdivision (h), of any
19specification of three time periods, the court shall sentence the
20defendant to one of the terms of imprisonment specified unless
21the convicted person is given any other disposition provided by
22law, including a fine, jail, probation, or the suspension of
23imposition or execution of sentence or is sentenced pursuant to
24subdivision (b) of Section 1168 because he or she had committed
25his or her crime prior to July 1, 1977. In sentencing the convicted
26person, the court shall apply the sentencing rules of the Judicial
27Council. The court, unless it determines that there are
28circumstances in mitigation of the sentence prescribed, shall also
29impose any other term that it is required by law to impose as an
30additional term. Nothing in this article shall affect any provision
31of law that imposes the death penalty, that authorizes or restricts
32the granting of probation or suspending the execution or imposition
33of sentence, or expressly provides for imprisonment in the state
34prison for life, except as provided in paragraph (2) of subdivision
35(d). In any case in which the amount of preimprisonment credit
36under Section 2900.5 or any other provision of law is equal to or
37exceeds any sentence imposed pursuant to this chapter, except for
38a remaining portion of mandatory supervision imposed pursuant
39to subparagraph (B) of paragraph (5) of subdivision (h), the entire
40sentence shall be deemed to have been served, except for the
P24   1remaining period of mandatory supervision, and the defendant
2shall not be actually delivered to the custody of the secretary or
3the county correctional administrator. The court shall advise the
4defendant that he or she shall serve an applicable period of parole,
5postrelease community supervision, or mandatory supervision and
6order the defendant to report to the parole or probation office
7closest to the defendant’s last legal residence, unless the in-custody
8credits equal the total sentence, including both confinement time
9and the period of parole, postrelease community supervision, or
10mandatory supervision. The sentence shall be deemed a separate
11prior prison term or a sentence of imprisonment in a county jail
12under subdivision (h) for purposes of Section 667.5, and a copy
13of the judgment and other necessary documentation shall be
14forwarded to the secretary.

15(b) When a judgment of imprisonment is to be imposed and the
16statute specifies three possible terms, the court shall order
17imposition of the middle term, unless there are circumstances in
18aggravation or mitigation of the crime. At least four days prior to
19the time set for imposition of judgment, either party or the victim,
20or the family of the victim if the victim is deceased, may submit
21a statement in aggravation or mitigation to dispute facts in the
22record or the probation officer’s report, or to present additional
23facts. In determining whether there are circumstances that justify
24imposition of the upper or lower term, the court may consider the
25record in the case, the probation officer’s report, other reports,
26including reports received pursuant to Section 1203.03, and
27statements in aggravation or mitigation submitted by the
28prosecution, the defendant, or the victim, or the family of the victim
29if the victim is deceased, and any further evidence introduced at
30the sentencing hearing. The court shall set forth on the record the
31facts and reasons for imposing the upper or lower term. The court
32may not impose an upper term by using the fact of any
33enhancement upon which sentence is imposed under any provision
34of law. A term of imprisonment shall not be specified if imposition
35of sentence is suspended.

36(c) The court shall state the reasons for its sentence choice on
37the record at the time of sentencing. The court shall also inform
38the defendant that as part of the sentence after expiration of the
39term he or she may be on parole for a period as provided in Section
P25   13000 or 3000.08 or postrelease community supervision for a period
2as provided in Section 3451.

3(d) (1) When a defendant subject to this section or subdivision
4(b) of Section 1168 has been sentenced to be imprisoned in the
5state prison or county jail pursuant to subdivision (h) and has been
6committed to the custody of the secretary or the county correctional
7administrator, the court may, within 120 days of the date of
8commitment on its own motion, or at any time upon the
9recommendation of the secretary or the Board of Parole Hearings
10in the case of state prison inmates, or the county correctional
11administrator in the case of county jail inmates, recall the sentence
12and commitment previously ordered and resentence the defendant
13in the same manner as if he or she had not previously been
14sentenced, provided the new sentence, if any, is no greater than
15the initial sentence. The court resentencing under this subdivision
16shall apply the sentencing rules of the Judicial Council so as to
17eliminate disparity of sentences and to promote uniformity of
18sentencing. Credit shall be given for time served.

19(2) (A) (i) When a defendant who was under 18 years of age
20at the time of the commission of the offense for which the
21defendant was sentenced to imprisonment for life without the
22possibility of parole has served at least 15 years of that sentence,
23the defendant may submit to the sentencing court a petition for
24recall and resentencing.

25(ii) Notwithstanding clause (i), this paragraph shall not apply
26to defendants sentenced to life without parole for an offense where
27the defendant tortured, as described in Section 206, his or her
28victim or the victim was a public safety official, including any law
29enforcement personnel mentioned in Chapter 4.5 (commencing
30with Section 830) of Title 3, or any firefighter as described in
31Section 245.1, as well as any other officer in any segment of law
32enforcement who is employed by the federal government, the state,
33or any of its political subdivisions.

34(B) The defendant shall file the original petition with the
35sentencing court. A copy of the petition shall be served on the
36agency that prosecuted the case. The petition shall include the
37defendant’s statement that he or she was under 18 years of age at
38the time of the crime and was sentenced to life in prison without
39the possibility of parole, the defendant’s statement describing his
P26   1or her remorse and work towards rehabilitation, and the defendant’s
2statement that one of the following is true:

3(i) The defendant was convicted pursuant to felony murder or
4aiding and abetting murder provisions of law.

5(ii) The defendant does not have juvenile felony adjudications
6for assault or other felony crimes with a significant potential for
7personal harm to victims prior to the offense for which the sentence
8is being considered for recall.

9(iii) The defendant committed the offense with at least one adult
10codefendant.

11(iv) The defendant has performed acts that tend to indicate
12rehabilitation or the potential for rehabilitation, including, but not
13limited to, availing himself or herself of rehabilitative, educational,
14or vocational programs, if those programs have been available at
15his or her classification level and facility, using self-study for
16self-improvement, or showing evidence of remorse.

17(C) If any of the information required in subparagraph (B) is
18missing from the petition, or if proof of service on the prosecuting
19agency is not provided, the court shall return the petition to the
20defendant and advise the defendant that the matter cannot be
21considered without the missing information.

22(D) A reply to the petition, if any, shall be filed with the court
23within 60 days of the date on which the prosecuting agency was
24served with the petition, unless a continuance is granted for good
25cause.

26(E) If the court finds by a preponderance of the evidence that
27the statements in the petition are true, the court shall hold a hearing
28to consider whether to recall the sentence and commitment
29previously ordered and to resentence the defendant in the same
30manner as if the defendant had not previously been sentenced,
31provided that the new sentence, if any, is not greater than the initial
32sentence. Victims, or victim family members if the victim is
33deceased, shall retain the rights to participate in the hearing.

34(F) The factors that the court may consider when determining
35whether to recall and resentence include, but are not limited to,
36the following:

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
P27   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) Prior to the offense for which the sentence is being
6considered for recall, the defendant had insufficient adult support
7or supervision and had suffered from psychological or physical
8trauma, or significant stress.

9(v) The defendant suffers from cognitive limitations due to
10mental illness, developmental disabilities, or other factors that did
11not constitute a defense, but influenced the defendant’s
12involvement in the offense.

13(vi) The defendant has performed acts that tend to indicate
14rehabilitation or the potential for rehabilitation, including, but not
15limited to, availing himself or herself of rehabilitative, educational,
16or vocational programs, if those programs have been available at
17his or her classification level and facility, using self-study for
18self-improvement, or showing evidence of remorse.

19(vii) The defendant has maintained family ties or connections
20with others through letter writing, calls, or visits, or has eliminated
21contact with individuals outside of prison who are currently
22involved with crime.

23(viii) The defendant has had no disciplinary actions for violent
24activities in the last five years in which the defendant was
25determined to be the aggressor.

26(G) The court shall have the discretion to recall the sentence
27and commitment previously ordered and to resentence the
28defendant in the same manner as if the defendant had not
29previously been sentenced, provided that the new sentence, if any,
30is not greater than the initial sentence. The discretion of the court
31shall be exercised in consideration of the criteria in subparagraph
32(B). Victims, or victim family members if the victim is deceased,
33shall be notified of the resentencing hearing and shall retain their
34rights to participate in the hearing.

35(H) If the sentence is not recalled, the defendant may submit
36another petition for recall and resentencing to the sentencing court
37when the defendant has been committed to the custody of the
38department for at least 20 years. If recall and resentencing is not
39granted under that petition, the defendant may file another petition
40after having served 24 years. The final petition may be submitted,
P28   1and the response to that petition shall be determined, during the
225th year of the defendant’s sentence.

3(I) In addition to the criteria in subparagraph (F), the court may
4consider any other criteria that the court deems relevant to its
5decision, so long as the court identifies them on the record,
6provides a statement of reasons for adopting them, and states why
7the defendant does or does not satisfy the criteria.

8(J) This subdivision shall have retroactive application.

9(e) (1) Notwithstanding any other law and consistent with
10paragraph (1) of subdivision (a), if the secretary or the Board of
11Parole Hearings or both determine that a prisoner satisfies the
12criteria set forth in paragraph (2), the secretary or the board may
13recommend to the court that the prisoner’s sentence be recalled.

14(2) The court shall have the discretion to resentence or recall if
15the court finds that the facts described in subparagraphs (A) and
16(B) or subparagraphs (B) and (C) exist:

17(A) The prisoner is terminally ill with an incurable condition
18caused by an illness or disease that would produce death within
19six months, as determined by a physician employed by the
20department.

21(B) The conditions under which the prisoner would be released
22or receive treatment do not pose a threat to public safety.

23(C) The prisoner is permanently medically incapacitated with
24a medical condition that renders him or her permanently unable
25to perform activities of basic daily living, and results in the prisoner
26requiring 24-hour total care, including, but not limited to, coma,
27persistent vegetative state, brain death, ventilator-dependency, loss
28of control of muscular or neurological function, and that
29incapacitation did not exist at the time of the original sentencing.

30The Board of Parole Hearings shall make findings pursuant to
31this subdivision before making a recommendation for resentence
32or recall to the court. This subdivision does not apply to a prisoner
33sentenced to death or a term of life without the possibility of parole.

34(3) Within 10 days of receipt of a positive recommendation by
35the secretary or the board, the court shall hold a hearing to consider
36whether the prisoner’s sentence should be recalled.

37(4) Any physician employed by the department who determines
38that a prisoner has six months or less to live shall notify the chief
39medical officer of the prognosis. If the chief medical officer
40concurs with the prognosis, he or she shall notify the warden.
P29   1Within 48 hours of receiving notification, the warden or the
2warden’s representative shall notify the prisoner of the recall and
3resentencing procedures, and shall arrange for the prisoner to
4designate a family member or other outside agent to be notified
5as to the prisoner’s medical condition and prognosis, and as to the
6recall and resentencing procedures. If the inmate is deemed
7mentally unfit, the warden or the warden’s representative shall
8contact the inmate’s emergency contact and provide the information
9described in paragraph (2).

10(5) The warden or the warden’s representative shall provide the
11prisoner and his or her family member, agent, or emergency
12contact, as described in paragraph (4), updated information
13throughout the recall and resentencing process with regard to the
14prisoner’s medical condition and the status of the prisoner’s recall
15and resentencing proceedings.

16(6) Notwithstanding any other provisions of this section, the
17prisoner or his or her family member or designee may
18independently request consideration for recall and resentencing
19by contacting the chief medical officer at the prison or the
20secretary. Upon receipt of the request, the chief medical officer
21and the warden or the warden’s representative shall follow the
22procedures described in paragraph (4). If the secretary determines
23that the prisoner satisfies the criteria set forth in paragraph (2), the
24secretary or board may recommend to the court that the prisoner’s
25sentence be recalled. The secretary shall submit a recommendation
26for release within 30 days in the case of inmates sentenced to
27determinate terms and, in the case of inmates sentenced to
28indeterminate terms, the secretary shall make a recommendation
29to the Board of Parole Hearings with respect to the inmates who
30have applied under this section. The board shall consider this
31information and make an independent judgment pursuant to
32paragraph (2) and make findings related thereto before rejecting
33the request or making a recommendation to the court. This action
34shall be taken at the next lawfully noticed board meeting.

35(7) Any recommendation for recall submitted to the court by
36the secretary or the Board of Parole Hearings shall include one or
37more medical evaluations, a postrelease plan, and findings pursuant
38to paragraph (2).

39(8) If possible, the matter shall be heard before the same judge
40of the court who sentenced the prisoner.

P30   1(9) If the court grants the recall and resentencing application,
2the prisoner shall be released by the department within 48 hours
3of receipt of the court’s order, unless a longer time period is agreed
4to by the inmate. At the time of release, the warden or the warden’s
5representative shall ensure that the prisoner has each of the
6following in his or her possession: a discharge medical summary,
7full medical records, state identification, parole or postrelease
8community supervision medications, and all property belonging
9to the prisoner. After discharge, any additional records shall be
10sent to the prisoner’s forwarding address.

11(10) The secretary shall issue a directive to medical and
12correctional staff employed by the department that details the
13guidelines and procedures for initiating a recall and resentencing
14procedure. The directive shall clearly state that any prisoner who
15is given a prognosis of six months or less to live is eligible for
16recall and resentencing consideration, and that recall and
17resentencing procedures shall be initiated upon that prognosis.

18(11) The provisions of this subdivision shall be available to an
19inmate who is sentenced to a county jail pursuant to subdivision
20(h). For purposes of those inmates, “secretary” or “warden” shall
21mean the county correctional administrator and “chief medical
22officer” shall mean a physician designated by the county
23correctional administrator for this purpose.

24(f) Notwithstanding any other provision of this section, for
25purposes of paragraph (3) of subdivision (h), any allegation that
26a defendant is eligible for state prison due to a prior or current
27conviction, sentence enhancement, or because he or she is required
28to register as a sex offender shall not be subject to dismissal
29pursuant to Section 1385.

30(g) A sentence to state prison for a determinate term for which
31only one term is specified, is a sentence to state prison under this
32section.

33(h) (1) Except as provided in paragraph (3), a felony punishable
34pursuant to this subdivision where the term is not specified in the
35underlying offense shall be punishable by a term of imprisonment
36in a county jail for 16 months, or two or three years.

37(2) Except as provided in paragraph (3), a felony punishable
38pursuant to this subdivision shall be punishable by imprisonment
39in a county jail for the term described in the underlying offense.

P31   1(3) Notwithstanding paragraphs (1) and (2), where the defendant
2(A) has a prior or current felony conviction for a serious felony
3described in subdivision (c) of Section 1192.7 or a prior or current
4conviction for a violent felony described in subdivision (c) of
5Section 667.5, (B) has a prior felony conviction in another
6jurisdiction for an offense that has all the elements of a serious
7felony described in subdivision (c) of Section 1192.7 or a violent
8felony described in subdivision (c) of Section 667.5, (C) is required
9to register as a sex offender pursuant to Chapter 5.5 (commencing
10with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
11and as part of the sentence an enhancement pursuant to Section
12186.11 is imposed, an executed sentence for a felony punishable
13pursuant to this subdivision shall be served in state prison.

14(4) Nothing in this subdivision shall be construed to prevent
15other dispositions authorized by law, including pretrial diversion,
16deferred entry of judgment, or an order granting probation pursuant
17to Section 1203.1.

18(5) (A) Unless the court finds, in the interest of justice, that it
19is not appropriate in a particular case, the court, when imposing a
20sentence pursuant to paragraph (1) or (2), shall suspend execution
21of a concluding portion of the term for a period selected at the
22court’s discretion.

23(B) The portion of a defendant’s sentenced term that is
24suspended pursuant to this paragraph shall be known as mandatory
25supervision, and, unless otherwise ordered by the court, shall
26commence upon release from physical custody or an alternative
27custody program, whichever is later. During the period of
28mandatory supervision, the defendant shall be supervised by the
29county probation officer in accordance with the terms, conditions,
30and procedures generally applicable to persons placed on probation,
31for the remaining unserved portion of the sentence imposed by the
32court. The period of supervision shall be mandatory, and may not
33be earlier terminated except by court order. Any proceeding to
34revoke or modify mandatory supervision under this subparagraph
35shall be conducted pursuant to either subdivisions (a) and (b) of
36Section 1203.2 or Section 1203.3. During the period when the
37defendant is under that supervision, unless in actual custody related
38to the sentence imposed by the court, the defendant shall be entitled
39to only actual time credit against the term of imprisonment imposed
40by the court. Any time period which is suspended because a person
P32   1has absconded shall not be credited toward the period of
2supervision.

3(6) The sentencing changes made by the act that added this
4subdivision shall be applied prospectively to any person sentenced
5on or after October 1, 2011.

6(7) The sentencing changes made to paragraph (5) by the act
7that added this paragraph shall become effective and operative on
8January 1, 2015, and shall be applied prospectively to any person
9sentenced on or after January 1, 2015.

10(i) This section shall become operative on January 1,begin delete 2017.end delete
11
begin insert 2022.end insert

12begin insert

begin insertSEC. 2.1.end insert  

end insert

begin insertSection 1170 of the end insertbegin insertPenal Codeend insertbegin insert, as amended by
13Section 2 of Chapter 378 of the Statutes of 2015, is amended to
14read:end insert

15

1170.  

(a) (1) The Legislature finds and declares that the
16purpose ofbegin delete imprisonment for crime is punishment. Thisend deletebegin insert sentencing
17is public safety achieved through punishment, rehabilitation, and
18restorative justice. When a sentence includes incarceration, thisend insert

19 purpose is best served by termsbegin insert that areend insert proportionate to the
20seriousness of the offense with provision for uniformity in the
21sentences of offenders committing the same offense under similar
22circumstances.begin delete The Legislature further finds and declares that the
23elimination of disparity and the provision of uniformity of
24sentences can best be achieved by determinate sentences fixed by
25statute in proportion to the seriousness of the offense as determined
26by the Legislature to be imposed by the court with specified
27discretion.end delete

28(2) begin deleteNotwithstanding paragraph (1), the end deletebegin insertThe end insertLegislature further
29finds and declares that programs should be available for inmates,
30including, but not limited to,begin delete educational programs,end deletebegin insert educational,
31rehabilitative, and restorative justice programsend insert
that are designed
32begin insert to promote behavior change andend insert to preparebegin delete nonviolent felonyend deletebegin insert all
33eligibleend insert
offenders for successful reentry into the community. The
34Legislature encourages the development of policies and programs
35designed to educate and rehabilitatebegin delete nonviolent felonyend deletebegin insert all eligibleend insert
36 offenders. In implementing this section, the Department of
37Corrections and Rehabilitation is encouraged tobegin delete give priority
38enrollment in programs toend delete
begin insert allow all eligible inmates the opportunity
39to enroll in programs thatend insert
promote successful return to the
40
begin delete community to an inmate with a short remaining term of
P33   1commitment and a release date that would allow him or her
2adequate time to complete the program.end delete
begin insert community. The
3Department of Corrections and Rehabilitation is directed to
4establish a mission statement consistent with these principles.end insert

5(3) In any case in which thebegin delete punishmentend deletebegin insert sentenceend insert prescribed by
6statute for a person convicted of a public offense is a term of
7imprisonment in the state prison, or a term pursuant to subdivision
8(h), of any specification of three time periods, the court shall
9sentence the defendant to one of the terms of imprisonment
10specified unless the convicted person is given any other disposition
11provided by law, including a fine, jail, probation, or the suspension
12of imposition or execution of sentence or is sentenced pursuant to
13subdivision (b) of Section 1168 because he or she had committed
14his or her crime prior to July 1, 1977. In sentencing the convicted
15person, the court shall apply the sentencing rules of the Judicial
16Council. The court, unless it determines that there are
17circumstances in mitigation of thebegin delete punishmentend deletebegin insert sentenceend insert prescribed,
18shall also impose any other term that it is required by law to impose
19as an additional term. Nothing in this article shall affect any
20provision of law that imposes the death penalty, that authorizes or
21restricts the granting of probation or suspending the execution or
22imposition of sentence, or expressly provides for imprisonment in
23the state prison for life, except as provided in paragraph (2) of
24subdivision (d). In any case in which the amount of
25preimprisonment credit under Section 2900.5 or any other provision
26of law is equal to or exceeds any sentence imposed pursuant to
27this chapter, except for a remaining portion of mandatory
28supervision imposed pursuant to subparagraph (B) of paragraph
29(5) of subdivision (h), the entire sentence shall be deemed to have
30been served, except for the remaining period of mandatory
31supervision, and the defendant shall not be actually delivered to
32the custody of the secretary or the county correctional
33administrator. The court shall advise the defendant that he or she
34shall serve an applicable period of parole, postrelease community
35supervision, or mandatory supervision and order the defendant to
36report to the parole or probation office closest to the defendant’s
37last legal residence, unless the in-custody credits equal the total
38sentence, including both confinement time and the period of parole,
39postrelease community supervision, or mandatory supervision.
40The sentence shall be deemed a separate prior prison term or a
P34   1sentence of imprisonment in a county jail under subdivision (h)
2for purposes of Section 667.5, and a copy of the judgment and
3other necessary documentation shall be forwarded to the secretary.

4(b) When a judgment of imprisonment is to be imposed and the
5statute specifies three possible terms, the court shall order
6imposition of the middle term, unless there are circumstances in
7aggravation or mitigation of the crime. At least four days prior to
8the time set for imposition of judgment, either party or the victim,
9or the family of the victim if the victim is deceased, may submit
10a statement in aggravation or mitigation to dispute facts in the
11record or the probation officer’s report, or to present additional
12facts. In determining whether there are circumstances that justify
13imposition of the upper or lower term, the court may consider the
14record in the case, the probation officer’s report, other reports,
15including reports received pursuant to Section 1203.03, and
16statements in aggravation or mitigation submitted by the
17prosecution, the defendant, or the victim, or the family of the victim
18if the victim is deceased, and any further evidence introduced at
19the sentencing hearing. The court shall set forth on the record the
20facts and reasons for imposing the upper or lower term. The court
21may not impose an upper term by using the fact of any
22enhancement upon which sentence is imposed under any provision
23of law. A term of imprisonment shall not be specified if imposition
24of sentence is suspended.

25(c) The court shall state the reasons for its sentence choice on
26the record at the time of sentencing. The court shall also inform
27the defendant that as part of the sentence after expiration of the
28term he or she may be on parole for a period as provided in Section
293000 or 3000.08 or postrelease community supervision for a period
30as provided in Section 3451.

31(d) (1) When a defendant subject to this section or subdivision
32 (b) of Section 1168 has been sentenced to be imprisoned in the
33state prison or county jail pursuant to subdivision (h) and has been
34committed to the custody of the secretary or the county correctional
35administrator, the court may, within 120 days of the date of
36commitment on its own motion, or at any time upon the
37recommendation of the secretary or the Board of Parole Hearings
38in the case of state prison inmates, or the county correctional
39administrator in the case of county jail inmates, recall the sentence
40and commitment previously ordered and resentence the defendant
P35   1in the same manner as if he or she had not previously been
2sentenced, provided the new sentence, if any, is no greater than
3the initial sentence. The court resentencing under this subdivision
4shall apply the sentencing rules of the Judicial Council so as to
5eliminate disparity of sentences and to promote uniformity of
6sentencing. Credit shall be given for time served.

7(2) (A) (i) When a defendant who was under 18 years of age
8at the time of the commission of the offense for which the
9defendant was sentenced to imprisonment for life without the
10possibility of parole hasbegin delete servedend deletebegin insert been incarcerated forend insert at least 15
11begin delete years of that sentence,end deletebegin insert years,end insert the defendant may submit to the
12sentencing court a petition for recall and resentencing.

13(ii) Notwithstanding clause (i), this paragraph shall not apply
14to defendants sentenced to life without parole for an offense where
15begin insert it was pled and proved thatend insert the defendant tortured, as described
16in Section 206, his or her victim or the victim was a public safety
17official, including any law enforcement personnel mentioned in
18Chapter 4.5 (commencing with Section 830) of Title 3, or any
19firefighter as described in Section 245.1, as well as any other officer
20in any segment of law enforcement who is employed by the federal
21government, the state, or any of its political subdivisions.

22(B) The defendant shall file the original petition with the
23sentencing court. A copy of the petition shall be served on the
24agency that prosecuted the case. The petition shall include the
25defendant’s statement that he or she was under 18 years of age at
26the time of the crime and was sentenced to life in prison without
27the possibility of parole, the defendant’s statement describing his
28or her remorse and work towards rehabilitation, and the defendant’s
29 statement that one of the following is true:

30(i) The defendant was convicted pursuant to felony murder or
31aiding and abetting murder provisions of law.

32(ii) The defendant does not have juvenile felony adjudications
33for assault or other felony crimes with a significant potential for
34personal harm to victims prior to the offense for which the sentence
35is being considered for recall.

36(iii) The defendant committed the offense with at least one adult
37codefendant.

38(iv) The defendant has performed acts that tend to indicate
39rehabilitation or the potential for rehabilitation, including, but not
40limited to, availing himself or herself of rehabilitative, educational,
P36   1or vocational programs, if those programs have been available at
2his or her classification level and facility, using self-study for
3self-improvement, or showing evidence of remorse.

4(C) If any of the information required in subparagraph (B) is
5missing from the petition, or if proof of service on the prosecuting
6agency is not provided, the court shall return the petition to the
7defendant and advise the defendant that the matter cannot be
8considered without the missing information.

9(D) A reply to the petition, if any, shall be filed with the court
10within 60 days of the date on which the prosecuting agency was
11served with the petition, unless a continuance is granted for good
12cause.

13(E) If the court finds by a preponderance of the evidence that
14begin insert one or more ofend insert the statementsbegin delete in the petition are true, the court
15shall hold a hearing to consider whether toend delete
begin insert specified in clauses (i)
16to (iv), inclusive, of subparagraph (B) is true, the court shallend insert
recall
17the sentence and commitment previously ordered andbegin insert hold a
18hearingend insert
to resentence the defendant in the same manner as if the
19defendant had not previously been sentenced, provided that the
20new sentence, if any, is not greater than the initial sentence.
21Victims, or victim family members if the victim is deceased, shall
22retain the rights to participate in the hearing.

23(F) The factors that the court may consider when determining
24whether tobegin delete recall andend delete resentencebegin insert the defendant to a term of
25imprisonment with the possibility of paroleend insert
include, but are not
26limited to, the following:

27(i) The defendant was convicted pursuant to felony murder or
28aiding and abetting murder provisions of law.

29(ii) The defendant does not have juvenile felony adjudications
30for assault or other felony crimes with a significant potential for
31personal harm to victims prior to the offense for which thebegin delete sentence
32is being considered for recall.end delete
begin insert defendant was sentenced to life
33without the possibility of parole.end insert

34(iii) The defendant committed the offense with at least one adult
35codefendant.

36(iv) Prior to the offense for which thebegin delete sentence is being
37considered for recall,end delete
begin insert defendant was sentenced to life without the
38possibility of parole,end insert
the defendant had insufficient adult support
39or supervision and had suffered from psychological or physical
40trauma, or significant stress.

P37   1(v) The defendant suffers from cognitive limitations due to
2mental illness, developmental disabilities, or other factors that did
3not constitute a defense, but influenced the defendant’s
4involvement in the offense.

5(vi) 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(vii) The defendant has maintained family ties or connections
12with others through letter writing, calls, or visits, or has eliminated
13contact with individuals outside of prison who are currently
14involved with crime.

15(viii) The defendant has had no disciplinary actions for violent
16activities in the last five years in which the defendant was
17determined to be the aggressor.

18(G) The court shall have the discretionbegin delete to recall the sentence
19and commitment previously ordered andend delete
to resentence the
20defendant in the same manner as if the defendant had not
21previously been sentenced, provided that the new sentence, if any,
22is not greater than the initial sentence. The discretion of the court
23shall be exercised in consideration of the criteria in subparagraph
24begin delete (B).end deletebegin insert (F).end insert Victims, or victim family members if the victim is
25deceased, shall be notified of the resentencing hearing and shall
26retain their rights to participate in the hearing.

27(H) If the sentence is notbegin delete recalled,end deletebegin insert recalled or the defendant is
28resentenced to imprisonment for life without the possibility of
29parole,end insert
the defendant may submit another petition for recall and
30resentencing to the sentencing court when the defendant has been
31committed to the custody of the department for at least 20 years.
32Ifbegin delete recall and resentencing is not grantedend deletebegin insert the sentence is not recalled
33or the defendant is resentenced to imprisonment for life without
34the possibility of paroleend insert
under that petition, the defendant may file
35another petition after having served 24 years. The final petition
36may be submitted, and the response to that petition shall be
37determined, during the 25th year of the defendant’s sentence.

38(I) In addition to the criteria in subparagraph (F), the court may
39consider any other criteria that the court deems relevant to its
40decision, so long as the court identifies them on the record,
P38   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.

begin insert

4
(K) Nothing in this paragraph is intended to diminish or
5abrogate any rights or remedies otherwise available to the
6defendant.

end insert

7(e) (1) Notwithstanding any other law and consistent with
8paragraph (1) of subdivision (a), if the secretary or the Board of
9Parole Hearings or both determine that a prisoner satisfies the
10criteria set forth in paragraph (2), the secretary or the board may
11recommend to the court that the prisoner’s sentence be recalled.

12(2) The court shall have the discretion to resentence or recall if
13the court finds that the facts described in subparagraphs (A) and
14(B) or subparagraphs (B) and (C) exist:

15(A) The prisoner is terminally ill with an incurable condition
16caused by an illness or disease that would produce death within
17six months, as determined by a physician employed by the
18department.

19(B) The conditions under which the prisoner would be released
20or receive treatment do not pose a threat to public safety.

21(C) The prisoner is permanently medically incapacitated with
22a medical condition that renders him or her permanently unable
23to perform activities of basic daily living, and results in the prisoner
24requiring 24-hour total care, including, but not limited to, coma,
25persistent vegetative state, brain death, ventilator-dependency, loss
26of control of muscular or neurological function, and that
27incapacitation did not exist at the time of the original sentencing.

28The Board of Parole Hearings shall make findings pursuant to
29this subdivision before making a recommendation for resentence
30or recall to the court. This subdivision does not apply to a prisoner
31sentenced to death or a term of life without the possibility of parole.

32(3) Within 10 days of receipt of a positive recommendation by
33the secretary or the board, the court shall hold a hearing to consider
34whether the prisoner’s sentence should be recalled.

35(4) Any physician employed by the department who determines
36that a prisoner has six months or less to live shall notify the chief
37medical officer of the prognosis. If the chief medical officer
38concurs with the prognosis, he or she shall notify the warden.
39Within 48 hours of receiving notification, the warden or the
40warden’s representative shall notify the prisoner of the recall and
P39   1resentencing procedures, and shall arrange for the prisoner to
2designate a family member or other outside agent to be notified
3as to the prisoner’s medical condition and prognosis, and as to the
4recall and resentencing procedures. If the inmate is deemed
5mentally unfit, the warden or the warden’s representative shall
6contact the inmate’s emergency contact and provide the information
7described in paragraph (2).

8(5) The warden or the warden’s representative shall provide the
9prisoner and his or her family member, agent, or emergency
10contact, as described in paragraph (4), updated information
11throughout the recall and resentencing process with regard to the
12prisoner’s medical condition and the status of the prisoner’s recall
13and resentencing proceedings.

14(6) Notwithstanding any other provisions of this section, the
15prisoner or his or her family member or designee may
16independently request consideration for recall and resentencing
17by contacting the chief medical officer at the prison or the
18secretary. Upon receipt of the request, the chief medical officer
19and the warden or the warden’s representative shall follow the
20procedures described in paragraph (4). If the secretary determines
21that the prisoner satisfies the criteria set forth in paragraph (2), the
22secretary or board may recommend to the court that the prisoner’s
23sentence be recalled. The secretary shall submit a recommendation
24for release within 30 days in the case of inmates sentenced to
25determinate terms and, in the case of inmates sentenced to
26indeterminate terms, the secretary shall make a recommendation
27to the Board of Parole Hearings with respect to the inmates who
28have applied under this section. The board shall consider this
29information and make an independent judgment pursuant to
30paragraph (2) and make findings related thereto before rejecting
31the request or making a recommendation to the court. This action
32shall be taken at the next lawfully noticed board meeting.

33(7) Any recommendation for recall submitted to the court by
34the secretary or the Board of Parole Hearings shall include one or
35more medical evaluations, a postrelease plan, and findings pursuant
36to paragraph (2).

37(8) If possible, the matter shall be heard before the same judge
38of the court who sentenced the prisoner.

39(9) If the court grants the recall and resentencing application,
40the prisoner shall be released by the department within 48 hours
P40   1of receipt of the court’s order, unless a longer time period is agreed
2to by the inmate. At the time of release, the warden or the warden’s
3representative shall ensure that the prisoner has each of the
4following in his or her possession: a discharge medical summary,
5full medical records, state identification, parole or postrelease
6community supervision medications, and all property belonging
7to the prisoner. After discharge, any additional records shall be
8sent to the prisoner’s forwarding address.

9(10) The secretary shall issue a directive to medical and
10correctional staff employed by the department that details the
11guidelines and procedures for initiating a recall and resentencing
12procedure. The directive shall clearly state that any prisoner who
13is given a prognosis of six months or less to live is eligible for
14recall and resentencing consideration, and that recall and
15resentencing procedures shall be initiated upon that prognosis.

16(11) The provisions of this subdivision shall be available to an
17inmate who is sentenced to a county jail pursuant to subdivision
18(h). For purposes of those inmates, “secretary” or “warden” shall
19mean the county correctional administrator and “chief medical
20officer” shall mean a physician designated by the county
21correctional administrator for this purpose.

22(f) Notwithstanding any other provision of this section, for
23purposes of paragraph (3) of subdivision (h), any allegation that
24a defendant is eligible for state prison due to a prior or current
25conviction, sentence enhancement, or because he or she is required
26to register as a sex offender shall not be subject to dismissal
27pursuant to Section 1385.

28(g) A sentence to state prison for a determinate term for which
29only one term is specified, is a sentence to state prison under this
30section.

31(h) (1) Except as provided in paragraph (3), a felony punishable
32pursuant to this subdivision where the term is not specified in the
33underlying offense shall be punishable by a term of imprisonment
34in a county jail for 16 months, or two or three years.

35(2) Except as provided in paragraph (3), a felony punishable
36pursuant to this subdivision shall be punishable by imprisonment
37in a county jail for the term described in the underlying offense.

38(3) Notwithstanding paragraphs (1) and (2), where the defendant
39(A) has a prior or current felony conviction for a serious felony
40described in subdivision (c) of Section 1192.7 or a prior or current
P41   1conviction for a violent felony described in subdivision (c) of
2Section 667.5, (B) has a prior felony conviction in another
3jurisdiction for an offense that has all the elements of a serious
4felony described in subdivision (c) of Section 1192.7 or a violent
5felony described in subdivision (c) of Section 667.5, (C) is required
6to register as a sex offender pursuant to Chapter 5.5 (commencing
7with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
8and as part of the sentence an enhancement pursuant to Section
9186.11 is imposed, an executed sentence for a felony punishable
10pursuant to this subdivision shall be served in state prison.

11(4) Nothing in this subdivision shall be construed to prevent
12other dispositions authorized by law, including pretrial diversion,
13deferred entry of judgment, or an order granting probation pursuant
14to Section 1203.1.

15(5) (A) Unless the court finds, in the interest of justice, that it
16is not appropriate in a particular case, the court, when imposing a
17sentence pursuant to paragraph (1) or (2), shall suspend execution
18of a concluding portion of the term for a period selected at the
19court’s discretion.

20(B) The portion of a defendant’s sentenced term that is
21suspended pursuant to this paragraph shall be known as mandatory
22supervision, and, unless otherwise ordered by the court, shall
23commence upon release from physical custody or an alternative
24custody program, whichever is later. During the period of
25mandatory supervision, the defendant shall be supervised by the
26county probation officer in accordance with the terms, conditions,
27and procedures generally applicable to persons placed on probation,
28for the remaining unserved portion of the sentence imposed by the
29court. The period of supervision shall be mandatory, and may not
30be earlier terminated except by court order. Any proceeding to
31revoke or modify mandatory supervision under this subparagraph
32shall be conducted pursuant to either subdivisions (a) and (b) of
33Section 1203.2 or Section 1203.3. During the period when the
34defendant is under that supervision, unless in actual custody related
35to the sentence imposed by the court, the defendant shall be entitled
36to only actual time credit against the term of imprisonment imposed
37by the court. Any time period which is suspended because a person
38has absconded shall not be credited toward the period of
39supervision.

P42   1(6) The sentencing changes made by the act that added this
2subdivision shall be applied prospectively to any person sentenced
3on or after October 1, 2011.

4(7) The sentencing changes made to paragraph (5) by the act
5that added this paragraph shall become effective and operative on
6January 1, 2015, and shall be applied prospectively to any person
7sentenced on or after January 1, 2015.

8(i) This section shall become operative on January 1,begin delete 2017.end delete
9
begin insert 2022.end insert

10begin insert

begin insertSEC. 3.end insert  

end insert
begin insert

Section 1.1 of this bill incorporates amendments to
11Section 1170 of the Penal Code, as amended by Section 1 of
12Chapter 378 of the Statutes of 2015, proposed by both this bill and
13Senate Bill 1084. It shall only become operative if (1) both bills
14are enacted and become effective on or before January 1, 2017,
15(2) each bill amends Section 1170 of the Penal Code, as amended
16by Section 1 of Chapter 378 of the Statutes of 2015, and (3) this
17bill is enacted after Senate Bill 1084, in which case Section 1 of
18this bill shall not become operative.

end insert
19begin insert

begin insertSEC. 4.end insert  

end insert
begin insert

Section 2.1 of this bill incorporates amendments to
20Section 1170 of the Penal Code, as amended by Section 2 of
21Chapter 378 of the Statutes of 2015, proposed by both this bill and
22Senate Bill 1084. It shall only become operative if (1) both bills
23are enacted and become effective on or before January 1, 2017,
24(2) each bill amends Section 1170 of the Penal Code, as amended
25by Section 2 of Chapter 378 of the Statutes of 2015, and (3) this
26bill is enacted after Senate Bill 1084, in which case Section 2 of
27this bill shall not become operative.

end insert


O

    95