California Legislature—2015–16 Regular Session

Assembly BillNo. 2665


Introduced by Assembly Member Rodriguez

(Principal coauthor: Senator Galgiani)

(Coauthor: Assembly Member Cooley)

February 19, 2016


An act to amend Section 1170 of the Penal Code, relating to criminal punishment.

LEGISLATIVE COUNSEL’S DIGEST

AB 2665, as introduced, Rodriguez. Felons: incarceration in state prison.

Existing law provides that specified felonies are punishable by imprisonment in a county jail, but provides for imprisonment in the state prison for, among other offenses, a prior or current conviction for a serious or violent felony, or a felony requiring registration as a sex offender.

This bill would require imprisonment in the state prison for a 3rd separate felony conviction where the defendant has 2 prior separate felony convictions, and all 3 of the convictions are suffered on or after January 1, 2017. The bill would make additional technical, nonsubstantive changes.

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 imprisonment for crime is punishment. This purpose
6is best served by terms proportionate to the seriousness of the
7offense with provision for uniformity in the sentences of offenders
8committing the same offense under similar circumstances. The
9Legislature further finds and declares that the elimination of
10disparity and the provision of uniformity of sentencesbegin delete can best beend delete
11begin insert is bestend insert achieved by determinate sentences fixed by statute in
12proportion to the seriousness of the offense as determined by the
13Legislature to be imposed by the court with specified discretion.

14(2) Notwithstanding paragraph (1), the Legislature further finds
15and declares that programs should be available for inmates,
16including, but not limited to, educational programs, that are
17designed to prepare nonviolent felony offenders for successful
18reentry into the community. The Legislature encourages the
19development of policies and programs designed to educate and
20rehabilitate nonviolent felony offenders. In implementing this
21section, the Department of Corrections and Rehabilitation is
22encouraged to give priority enrollment in programs to promote
23successful return to the community to an inmate with a short
24remaining term of commitment and a release date that would allow
25him or her adequate time to complete the program.

26(3) Inbegin delete anyend deletebegin insert aend insert case in which the punishment prescribed by statute
27for a 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 punishment prescribed, shall
P3    1also impose any other term that it is required by law to impose as
2an additional term. Nothing in this article shall affectbegin delete any provision
3ofend delete
begin insert aend insert law that imposes the death penalty, that authorizes or restricts
4the granting of probation or suspending the execution or imposition
5of sentence, or expressly provides for imprisonment in the state
6prison for life, except as provided in paragraph (2) of subdivision
7(d). Inbegin delete anyend deletebegin insert aend insert case in which the amount of preimprisonment credit
8under Section 2900.5 or any other law is equal to or exceedsbegin delete anyend delete
9begin insert aend insert sentence imposed pursuant to this chapter, except for the
10remaining portion of mandatory supervision pursuant to
11subparagraph (B) of paragraph (5) of subdivision (h), the entire
12sentence shall be deemed to have been served, except for the
13remaining period of mandatory supervision, and the defendant
14shall not be actually delivered to the custody of the secretary or to
15the custody of the county correctional administrator. The court
16shall advise the defendant that he or she shall serve an applicable
17period of parole, postrelease community supervision, or mandatory
18supervision, and order the defendant to report to the parole or
19probation office closest to the defendant’s last legal residence,
20unless the in-custody credits equal the total sentence, including
21both confinement time and the period of parole, postrelease
22community supervision, or mandatory supervision. The sentence
23shall be deemed a separate prior prison term or a sentence of
24imprisonment in a county jail under subdivision (h) for purposes
25of Section 667.5, and a copy of the judgment and other necessary
26documentation shall be forwarded to the secretary.

27(b) When a judgment of imprisonment is to be imposed and the
28statute specifies three possible terms, the choice of the appropriate
29term shall rest within the sound discretion of the court. At least
30four days prior to the time set for imposition of judgment, either
31party or the victim, or the family of the victim if the victim is
32deceased, may submit a statement in aggravation or mitigation. In
33determining the appropriate term, the court may consider the record
34in the case, the probation officer’s report, other reports, including
35reports received pursuant to Section 1203.03, and statements in
36aggravation or mitigation submitted by the prosecution, the
37defendant, or the victim, or the family of the victim if the victim
38is deceased, and any further evidence introduced at the sentencing
39hearing. The court shall select the termbegin delete which,end deletebegin insert that,end insert in the court’s
40discretion, best serves the interests of justice. The court shall set
P4    1forth on the record the reasons for imposing the term selected and
2the court may not impose an upper term by using the fact ofbegin delete anyend delete
3begin insert anend insert enhancement upon which sentence is imposed under any
4begin delete provision ofend delete law. A term of imprisonment shall not be specified
5if imposition of sentence is suspended.

6(c) The court shall state the reasons for its sentence choice on
7the record at the time of sentencing. The court shall also inform
8the defendant that as part of the sentence after expiration of the
9term he or she may be on parole for a period as provided in Section
103000 or 3000.08 or postrelease community supervision for a period
11as provided in Section 3451.

12(d) (1) When a defendant subject to this section or subdivision
13(b) of Section 1168 has been sentenced to be imprisoned in the
14state prison or county jail pursuant to subdivision (h) and has been
15committed to the custody of the secretary or the county correctional
16administrator, the court may, within 120 days of the date of
17commitment on its own motion, or at any time upon the
18recommendation of the secretary or the Board of Parole Hearings
19in the case of state prison inmates, or the county correctional
20administrator in the case of county jail inmates, recall the sentence
21and commitment previously ordered and resentence the defendant
22in the same manner as if he or she had not previously been
23sentenced, provided the new sentence, if any, is no greater than
24the initial sentence. The court resentencing under this subdivision
25shall apply the sentencing rules of the Judicial Council so as to
26eliminate disparity of sentences and to promote uniformity of
27sentencing. Credit shall be given for time served.

28(2) (A) (i) When a defendant who was under 18 years of age
29at the time of the commission of the offense for which the
30defendant was sentenced to imprisonment for life without the
31possibility of parole has served at least 15 years of that sentence,
32the defendant may submit to the sentencing court a petition for
33recall and resentencing.

34(ii) Notwithstanding clause (i), this paragraph shall not apply
35tobegin delete defendantsend deletebegin insert a defendantend insert sentenced to life without parole for an
36offense where the defendant tortured, as described in Section 206,
37his or herbegin delete victimend deletebegin insert victim,end insert or the victim was a public safety official,
38including any law enforcement personnel mentioned in Chapter
394.5 (commencing with Section 830) of Title 3, or any firefighter
40as described in Section 245.1, as well as any other officer in any
P5    1segment of law enforcement who is employed by the federal
2government, the state, or any of its political subdivisions.

3(B) The defendant shall file the original petition with the
4sentencing court. A copy of the petition shall be served on the
5agency that prosecuted the case. The petition shall include the
6defendant’s statement that he or she was under 18 years of age at
7the time of the crime and was sentenced to life in prison without
8the possibility of parole, the defendant’s statement describing his
9or her remorse and work towards rehabilitation, and the defendant’s
10statement that one of the following is true:

11(i) The defendant was convicted pursuant to felony murder or
12aiding and abetting murder provisions of law.

13(ii) The defendant does not have juvenile felony adjudications
14for assault or other felony crimes with a significant potential for
15personal harm to victims prior to the offense for which the sentence
16is being considered for recall.

17(iii) The defendant committed the offense with at least one adult
18codefendant.

19(iv) 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(C) If any of the information required in subparagraph (B) is
26missing from the petition, or if proof of service on the prosecuting
27agency is not provided, the court shall return the petition to the
28defendant and advise the defendant that the matter cannot be
29considered without the missing information.

30(D) A reply to the petition, if any, shall be filed with the court
31within 60 days of the date on which the prosecuting agency was
32served with the petition, unless a continuance is granted for good
33cause.

34(E) If the court finds by a preponderance of the evidence that
35the statements in the petition are true, the court shall hold a hearing
36to consider whether to recall the sentence and commitment
37previously ordered and to resentence the defendant in the same
38manner as if the defendant had not previously been sentenced,
39provided that the new sentence, if any, is not greater than the initial
P6    1sentence. Victims, or victim family members if the victim is
2deceased, shall retainbegin delete theend deletebegin insert theirend insert rights to participate in the hearing.

3(F) The factors that the court may consider when determining
4whether to recall and resentence include, but are not limited to,
5the following:

6(i) The defendant was convicted pursuant to felony murder or
7aiding and abetting murder provisions of law.

8(ii) The defendant does not have juvenile felony adjudications
9for assault or other felony crimes with a significant potential for
10personal harm to victims prior to the offense for which the sentence
11is being considered for recall.

12(iii) The defendant committed the offense with at least one adult
13codefendant.

14(iv) Prior to the offense for which the sentence is being
15considered for recall, the defendant had insufficient adult support
16or supervision and had suffered from psychological or physical
17trauma, or significant stress.

18(v) The defendant suffers from cognitive limitations due to
19mental illness, developmental disabilities, or other factors that did
20not constitute a defense, but influenced the defendant’s
21involvement in the offense.

22(vi) The defendant has performed acts that tend to indicate
23rehabilitation or the potential for rehabilitation, including, but not
24limited to, availing himself or herself of rehabilitative, educational,
25or vocational programs, if those programs have been available at
26his or her classification level and facility, using self-study for
27self-improvement, or showing evidence of remorse.

28(vii) The defendant has maintained family ties or connections
29with others through letter writing, calls, or visits, or has eliminated
30contact with individuals outside of prison who are currently
31involved with crime.

32(viii) The defendant has had no disciplinary actions for violent
33activities in the last five years in which the defendant was
34determined to be the aggressor.

35(G) The court shall have the discretion to recall the sentence
36and commitment previously ordered and to resentence the
37defendant in the same manner as if the defendant had not
38previously been sentenced, provided that the new sentence, if any,
39is not greater than the initial sentence. The discretion of the court
40shall be exercised in consideration of the criteria in subparagraph
P7    1(B). Victims, or victim family members if the victim is deceased,
2shall be notified of the resentencing hearing and shall retain their
3rights to participate in the hearing.

4(H) If the sentence is not recalled, the defendant may submit
5another petition for recall and resentencing to the sentencing court
6when the defendant has been committed to the custody of the
7department for at least 20 years. If recall and resentencing is not
8granted under that petition, the defendant may file another petition
9after having served 24 years. The final petition may be submitted,
10and the response to that petition shall be determined, during the
1125th 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.

18(e) (1) Notwithstanding any other law and consistent with
19paragraph (1) of subdivision (a), if the secretary or the Board of
20Parole Hearings or both determine that a prisoner satisfies the
21criteria set forth in paragraph (2), the secretary or the board may
22recommend to the court that the prisoner’s sentence be recalled.

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

26(A) The prisoner is terminally ill with an incurable condition
27caused by an illness or disease that would produce death within
28six months, as determined by a physician employed by the
29department.

30(B) The conditions under which the prisoner would be released
31or receive treatment do not pose a threat to public safety.

32(C) begin insert(i)end insertbegin insertend insert The prisoner is permanently medically incapacitated
33with a medical condition that renders him or her permanently
34unable to perform activities of basic daily living, and results in the
35prisoner requiring 24-hour total care, including, but not limited to,
36coma, persistent vegetative state, brain death,
37ventilator-dependency,begin insert orend insert loss of control of muscular or
38neurological function, and that incapacitation did not exist at the
39time of the original sentencing.

begin delete

40The

end delete

P8    1begin insert(ii)end insertbegin insertend insertbegin insertThe end insertBoard of Parole Hearings shall make findings pursuant
2to this subdivision before making a recommendation for resentence
3or recall to the court. This subdivision does not apply to a prisoner
4sentenced to death or a term of life without the possibility of parole.

5(3) Within 10 days of receipt of a positive recommendation by
6the secretary or the board, the court shall hold a hearing to consider
7whether the prisoner’s sentence should be recalled.

8(4) begin deleteAny end deletebegin insertA end insertphysician employed by the department who
9determines that a prisoner has six months or less to live shall notify
10the chief medical officer of the prognosis. If the chief medical
11officer concurs with the prognosis, he or she shall notify the
12warden. Within 48 hours of receiving notification, the warden or
13the warden’s representative shall notify the prisoner of the recall
14and resentencing procedures, and shall arrange for the prisoner to
15designate a family member or other outside agent to be notified
16as to the prisoner’s medical condition and prognosis, and as to the
17recall and resentencing procedures. If the inmate is deemed
18mentally unfit, the warden or the warden’s representative shall
19contact the inmate’s emergency contact and provide the information
20described in paragraph (2).

21(5) The warden or the warden’s representative shall provide the
22prisoner and his or her family member, agent, or emergency
23contact, as described in paragraph (4), updated information
24throughout the recall and resentencing process with regard to the
25prisoner’s medical condition and the status of the prisoner’s recall
26and resentencing proceedings.

27(6) Notwithstanding any otherbegin delete provisionsend deletebegin insert provisionend insert of this
28section, the prisoner or his or her family member or designee may
29independently request consideration for recall and resentencing
30by contacting the chief medical officer at the prison or the
31secretary. Upon receipt of the request, the chief medical officer
32and the warden or the warden’s representative shall follow the
33procedures described in paragraph (4). If the secretary determines
34that the prisoner satisfies the criteria set forth in paragraph (2), the
35secretary or board may recommend to the court that the prisoner’s
36sentence be recalled. The secretary shall submit a recommendation
37for release within 30 days in the case of inmates sentenced to
38determinate terms and, in the case of inmates sentenced to
39indeterminate terms, the secretary shall make a recommendation
40to the Board of Parole Hearings with respect to the inmates who
P9    1have applied under this section. The board shall consider this
2information and make an independent judgment pursuant to
3 paragraph (2) and make findings related thereto before rejecting
4the request or making a recommendation to the court. This action
5shall be taken at the next lawfully noticed board meeting.

6(7) begin deleteAny end deletebegin insertA end insertrecommendation for recall submitted to the court by
7the secretary or the Board of Parole Hearings shall include one or
8more medical evaluations, a postrelease plan, and findings pursuant
9to paragraph (2).

10(8) If possible, the matter shall be heard before the same judge
11of the court who sentenced the prisoner.

12(9) If the court grants the recall and resentencing application,
13the prisoner shall be released by the department within 48 hours
14of receipt of the court’s order, unless a longer time period is agreed
15to by the inmate. At the time of release, the warden or the warden’s
16representative shall ensure that the prisoner hasbegin delete each of the
17followingend delete
in his or herbegin delete possession:end deletebegin insert possession,end insert a discharge medical
18summary, full medical records, state identification, parole or
19postrelease community supervision medications, and all property
20belonging to the prisoner. After discharge, any additional records
21shall be sent to the prisoner’s forwarding address.

22(10) The secretary shall issue a directive to medical and
23correctional staff employed by the department that details the
24guidelines and procedures for initiating a recall and resentencing
25procedure. The directive shall clearly state thatbegin delete anyend deletebegin insert aend insert prisoner who
26is given a prognosis of six months or less to live is eligible for
27recall and resentencing consideration, and that recall and
28resentencing procedures shall be initiated upon that prognosis.

29(11) The provisions of this subdivision shall be available to an
30inmate who is sentenced to a county jail pursuant to subdivision
31(h). For purposes of those inmates, “secretary” or “warden” shall
32mean the county correctional administrator and “chief medical
33officer” shall mean a physician designated by the county
34correctional administrator for this purpose.

35(f) Notwithstanding any other provision of this section, for
36purposes of paragraph (3) of subdivision (h),begin delete anyend deletebegin insert anend insert allegation
37that a defendant is eligible for state prison due to a prior or current
38conviction, sentence enhancement, or because he or she is required
39to register as a sex offender shall not be subject to dismissal
40pursuant to Section 1385.

P10   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,begin delete orend delete (D) is convicted of a crime
21and as part of the sentence an enhancement pursuant to Section
22186.11 is imposed,begin insert or (E) upon conviction of a third separate
23felony where the defendant has two prior separate felony
24convictions, and all three of the convictions are suffered on or
25after January 1, 2017,end insert
an executed sentence for a felony punishable
26pursuant to this subdivision shall be served in state prison.

27(4) Nothing in this subdivision shall be construed to prevent
28other dispositions authorized by law, including pretrial diversion,
29deferred entry of judgment, or an order granting probation pursuant
30to Section 1203.1.

31(5) (A) Unless the court finds that, in the interests of justice, it
32is not appropriate in a particular case, the court, when imposing a
33sentence pursuant to paragraph (1) or (2), shall suspend execution
34of a concluding portion of the term for a period selected at the
35court’s discretion.

36(B) The portion of a defendant’s sentenced term that is
37suspended pursuant to this paragraph shall be known as mandatory
38supervision, and, unless otherwise ordered by the court, shall
39commence upon release from physical custody or an alternative
40custody program, whichever is later. During the period of
P11   1mandatory supervision, the defendant shall be supervised by the
2county probation officer in accordance with the terms, conditions,
3and procedures generally applicable to persons placed on probation,
4for the remaining unserved portion of the sentence imposed by the
5court. The period of supervision shall be mandatory, and may not
6be earlier terminated except by court order.begin delete Anyend deletebegin insert Aend insert proceeding to
7revoke or modify mandatory supervision under this subparagraph
8shall be conducted pursuant to either subdivisions (a) and (b) of
9Section 1203.2 or Section 1203.3. During the period when the
10defendant is under that supervision, unless in actual custody related
11to the sentence imposed by the court, the defendant shall be entitled
12to only actual time credit against the term of imprisonment imposed
13by the court.begin delete Anyend deletebegin insert Aend insert time periodbegin delete whichend deletebegin insert thatend insert is suspended because
14a person has absconded shall not be credited toward the period of
15supervision.

16(6) The sentencing changes made by the act that added this
17subdivision shall be applied prospectively tobegin delete anyend deletebegin insert aend insert person
18sentenced on or after October 1, 2011.

19(7) The sentencing changes made to paragraph (5) by the act
20that added this paragraph shall become effective and operative on
21January 1, 2015, and shall be applied prospectively tobegin delete anyend deletebegin insert aend insert person
22sentenced on or after January 1, 2015.

23(i) This section shall remain in effect only until January 1, 2017,
24and as of that date is repealed, unless a later enacted statute, that
25is enacted before that date, deletes or extends that 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 imprisonment for crime is punishment. This purpose
30is best served by terms proportionate to the seriousness of the
31offense with provision for uniformity in the sentences of offenders
32committing the same offense under similar circumstances. The
33Legislature further finds and declares that the elimination of
34disparity and the provision of uniformity of sentencesbegin delete can best beend delete
35begin insert is bestend insert achieved by determinate sentences fixed by statute in
36proportion to the seriousness of the offense as determined by the
37Legislature to be imposed by the court with specified discretion.

38(2) Notwithstanding paragraph (1), the Legislature further finds
39and declares that programs should be available for inmates,
40including, but not limited to, educational programs, that are
P12   1designed to prepare nonviolent felony offenders for successful
2reentry into the community. The Legislature encourages the
3development of policies and programs designed to educate and
4rehabilitate nonviolent felony offenders. In implementing this
5section, the Department of Corrections and Rehabilitation is
6encouraged to give priority enrollment in programs to promote
7successful return to the community to an inmate with a short
8remaining term of commitment and a release date that would allow
9him or her adequate time to complete the program.

10(3) Inbegin delete anyend deletebegin insert aend insert case in which the punishment prescribed by statute
11for a person convicted of a public offense is a term of imprisonment
12in the state prison, or a term pursuant to subdivision (h), of any
13specification of three time periods, the court shall sentence the
14defendant to one of the terms of imprisonment specified unless
15the convicted person is given any other disposition provided by
16law, including a fine, jail, probation, or the suspension of
17imposition or execution of sentence or is sentenced pursuant to
18subdivision (b) of Section 1168 because he or she had committed
19his or her crime prior to July 1, 1977. In sentencing the convicted
20person, the court shall apply the sentencing rules of the Judicial
21Council. The court, unless it determines that there are
22circumstances in mitigation of the punishment prescribed, shall
23also impose any other term that it is required by law to impose as
24an additional term. Nothing in this article shall affectbegin delete any provision
25ofend delete
begin insert aend insert law that imposes the death penalty, that authorizes or restricts
26the granting of probation or suspending the execution or imposition
27of sentence, or expressly provides for imprisonment in the state
28prison for life, except as provided in paragraph (2) of subdivision
29(d). Inbegin delete anyend deletebegin insert aend insert case in which the amount of preimprisonment credit
30under Section 2900.5 or any other provision of law is equal to or
31exceedsbegin delete anyend deletebegin insert aend insert sentence imposed pursuant to this chapter, except
32for a remaining portion of mandatory supervision imposed pursuant
33to subparagraph (B) of paragraph (5) of subdivision (h), the entire
34 sentence shall be deemed to have been served, except for the
35remaining period of mandatory supervision, and the defendant
36shall not be actually delivered to the custody of the secretary or
37the county correctional administrator. The court shall advise the
38defendant that he or she shall serve an applicable period of parole,
39postrelease community supervision, or mandatory supervision and
40order the defendant to report to the parole or probation office
P13   1closest to the defendant’s last legal residence, unless the in-custody
2credits equal the total sentence, including both confinement time
3and the period of parole, postrelease community supervision, or
4mandatory supervision. The sentence shall be deemed a separate
5prior prison term or a sentence of imprisonment in a county jail
6under subdivision (h) for purposes of Section 667.5, and a copy
7of the judgment and other necessary documentation shall be
8forwarded to the secretary.

9(b) When a judgment of imprisonment is to be imposed and the
10statute specifies three possible terms, the court shall order
11imposition of the middle term, unless there are circumstances in
12aggravation or mitigation of the crime. At least four days prior to
13the time set for imposition of judgment, either party or the victim,
14or the family of the victim if the victim is deceased, may submit
15a statement in aggravation or mitigation to dispute facts in the
16record or the probation officer’s report, or to present additional
17facts. In determining whether there are circumstances that justify
18imposition of the upper or lower term, the court may consider the
19record in the case, the probation officer’s report, other reports,
20including reports received pursuant to Section 1203.03, and
21statements in aggravation or mitigation submitted by the
22prosecution, the defendant, or the victim, or the family of the victim
23if the victim is deceased, and any further evidence introduced at
24the sentencing hearing. The court shall set forth on the record the
25 facts and reasons for imposing the upper or lower term. The court
26may not impose an upper term by using the fact ofbegin delete anyend deletebegin insert anend insert
27 enhancement upon which sentence is imposed under anybegin delete provision
28ofend delete
law. A term of imprisonment shall not be specified if imposition
29of sentence is suspended.

30(c) The court shall state the reasons for its sentence choice on
31the record at the time of sentencing. The court shall also inform
32the defendant that as part of the sentence after expiration of the
33term he or she may be on parole for a period as provided in Section
343000 or 3000.08 or postrelease community supervision for a period
35as provided in Section 3451.

36(d) (1) When a defendant subject to this section or subdivision
37(b) of Section 1168 has been sentenced to be imprisoned in the
38state prison or county jail pursuant to subdivision (h) and has been
39committed to the custody of the secretary or the county correctional
40administrator, the court may, within 120 days of the date of
P14   1commitment on its own motion, or at any time upon the
2recommendation of the secretary or the Board of Parole Hearings
3in the case of state prison inmates, or the county correctional
4administrator in the case of county jail inmates, recall the sentence
5and commitment previously ordered and resentence the defendant
6in the same manner as if he or she had not previously been
7sentenced, provided the new sentence, if any, is no greater than
8the initial sentence. The court resentencing under this subdivision
9shall apply the sentencing rules of the Judicial Council so as to
10eliminate disparity of sentences and to promote uniformity of
11sentencing. Credit shall be given for time served.

12(2) (A) (i) When a defendant who was under 18 years of age
13at the time of the commission of the offense for which the
14defendant was sentenced to imprisonment for life without the
15possibility of parole has served at least 15 years of that sentence,
16the defendant may submit to the sentencing court a petition for
17recall and resentencing.

18(ii) Notwithstanding clause (i), this paragraph shall not apply
19tobegin delete defendantsend deletebegin insert a defendantend insert sentenced to life without parole for an
20offense where the defendant tortured, as described in Section 206,
21his or herbegin delete victimend deletebegin insert victim,end insert or the victim was a public safety official,
22including any law enforcement personnel mentioned in Chapter
234.5 (commencing with Section 830) of Title 3, or any firefighter
24as described in Section 245.1, as well as any other officer in any
25segment of law enforcement who is employed by the federal
26government, the state, or any of its political subdivisions.

27(B) The defendant shall file the original petition with the
28sentencing court. A copy of the petition shall be served on the
29agency that prosecuted the case. The petition shall include the
30defendant’s statement that he or she was under 18 years of age at
31the time of the crime and was sentenced to life in prison without
32the possibility of parole, the defendant’s statement describing his
33or her remorse and work towards rehabilitation, and the defendant’s
34statement that one of the following is true:

35(i) The defendant was convicted pursuant to felony murder or
36aiding and abetting murder provisions of law.

37(ii) The defendant does not have juvenile felony adjudications
38for assault or other felony crimes with a significant potential for
39personal harm to victims prior to the offense for which the sentence
40is being considered for recall.

P15   1(iii) The defendant committed the offense with at least one adult
2codefendant.

3(iv) The defendant has performed acts that tend to indicate
4rehabilitation or the potential for rehabilitation, including, but not
5limited to, availing himself or herself of rehabilitative, educational,
6or vocational programs, if those programs have been available at
7his or her classification level and facility, using self-study for
8self-improvement, or showing evidence of remorse.

9(C) If any of the information required in subparagraph (B) is
10missing from the petition, or if proof of service on the prosecuting
11agency is not provided, the court shall return the petition to the
12defendant and advise the defendant that the matter cannot be
13considered without the missing information.

14(D) A reply to the petition, if any, shall be filed with the court
15within 60 days of the date on which the prosecuting agency was
16served with the petition, unless a continuance is granted for good
17cause.

18(E) If the court finds by a preponderance of the evidence that
19the statements in the petition are true, the court shall hold a hearing
20to consider whether to recall the sentence and commitment
21previously ordered and to resentence the defendant in the same
22manner as if the defendant had not previously been sentenced,
23 provided that the new sentence, if any, is not greater than the initial
24sentence. Victims, or victim family members if the victim is
25deceased, shall retainbegin delete theend deletebegin insert theirend insert rights to participate in the hearing.

26(F) The factors that the court may consider when determining
27whether to recall and resentence include, but are not limited to,
28the following:

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

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

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

37(iv) Prior to the offense for which the sentence is being
38considered for recall, the defendant had insufficient adult support
39or supervision and had suffered from psychological or physical
40trauma, or significant stress.

P16   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 discretion to recall the sentence
19and commitment previously ordered and 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
24(B). Victims, or victim family members if the victim is deceased,
25shall be notified of the resentencing hearing and shall retain their
26rights to participate in the hearing.

27(H) If the sentence is not recalled, the defendant may submit
28another petition for recall and resentencing to the sentencing court
29when the defendant has been committed to the custody of the
30department for at least 20 years. If recall and resentencing is not
31granted under that petition, the defendant may file another petition
32after having served 24 years. The final petition may be submitted,
33and the response to that petition shall be determined, during the
3425th year of the defendant’s sentence.

35(I) In addition to the criteria in subparagraph (F), the court may
36consider any other criteria that the court deems relevant to its
37decision, so long as the court identifies them on the record,
38provides a statement of reasons for adopting them, and states why
39the defendant does or does not satisfy the criteria.

40(J) This subdivision shall have retroactive application.

P17   1(e) (1) Notwithstanding any other law and consistent with
2paragraph (1) of subdivision (a), if the secretary or the Board of
3Parole Hearings or both determine that a prisoner satisfies the
4criteria set forth in paragraph (2), the secretary or the board may
5recommend to the court that the prisoner’s sentence be recalled.

6(2) The court shall have the discretion to resentence or recall if
7the court finds that the facts described in subparagraphs (A) and
8(B) or subparagraphs (B) and (C) exist:

9(A) The prisoner is terminally ill with an incurable condition
10caused by an illness or disease that would produce death within
11six months, as determined by a physician employed by the
12department.

13(B) The conditions under which the prisoner would be released
14or receive treatment do not pose a threat to public safety.

15(C) begin insert(i)end insertbegin insertend insert The prisoner is permanently medically incapacitated
16with a medical condition that renders him or her permanently
17unable to perform activities of basic daily living, and results in the
18prisoner requiring 24-hour total care, including, but not limited to,
19coma, persistent vegetative state, brain death,
20ventilator-dependency,begin insert orend insert loss of control of muscular or
21neurological function, and that incapacitation did not exist at the
22time of the original sentencing.

begin delete

23The

end delete

24begin insert (ii)end insertbegin insertend insertbegin insertThe end insertBoard of Parole Hearings shall make findings pursuant
25to this subdivision before making a recommendation for resentence
26or recall to the court. This subdivision does not apply to a prisoner
27sentenced to death or a term of life without the possibility of parole.

28(3) Within 10 days of receipt of a positive recommendation by
29the secretary or the board, the court shall hold a hearing to consider
30whether the prisoner’s sentence should be recalled.

31(4) begin deleteAny end deletebegin insertA end insertphysician employed by the department who
32determines that a prisoner has six months or less to live shall notify
33the chief medical officer of the prognosis. If the chief medical
34officer concurs with the prognosis, he or she shall notify the
35warden. Within 48 hours of receiving notification, the warden or
36the warden’s representative shall notify the prisoner of the recall
37and resentencing procedures, and shall arrange for the prisoner to
38designate a family member or other outside agent to be notified
39as to the prisoner’s medical condition and prognosis, and as to the
40recall and resentencing procedures. If the inmate is deemed
P18   1mentally unfit, the warden or the warden’s representative shall
2contact the inmate’s emergency contact and provide the information
3described in paragraph (2).

4(5) The warden or the warden’s representative shall provide the
5prisoner and his or her family member, agent, or emergency
6contact, as described in paragraph (4), updated information
7throughout the recall and resentencing process with regard to the
8prisoner’s medical condition and the status of the prisoner’s recall
9and resentencing proceedings.

10(6) Notwithstanding any otherbegin delete provisionsend deletebegin insert provisionend insert of this
11section, the prisoner or his or her family member or designee may
12independently request consideration for recall and resentencing
13by contacting the chief medical officer at the prison or the
14secretary. Upon receipt of the request, the chief medical officer
15and the warden or the warden’s representative shall follow the
16procedures described in paragraph (4). If the secretary determines
17that the prisoner satisfies the criteria set forth in paragraph (2), the
18secretary or board may recommend to the court that the prisoner’s
19sentence be recalled. The secretary shall submit a recommendation
20for release within 30 days in the case of inmates sentenced to
21determinate terms and, in the case of inmates sentenced to
22indeterminate terms, the secretary shall make a recommendation
23to the Board of Parole Hearings with respect to the inmates who
24have applied under this section. The board shall consider this
25information and make an independent judgment pursuant to
26paragraph (2) and make findings related thereto before rejecting
27the request or making a recommendation to the court. This action
28shall be taken at the next lawfully noticed board meeting.

29(7) begin deleteAny end deletebegin insertA end insertrecommendation for recall submitted to the court by
30the secretary or the Board of Parole Hearings shall include one or
31more medical evaluations, a postrelease plan, and findings pursuant
32to paragraph (2).

33(8) If possible, the matter shall be heard before the same judge
34of the court who sentenced the prisoner.

35(9) If the court grants the recall and resentencing application,
36the prisoner shall be released by the department within 48 hours
37of receipt of the court’s order, unless a longer time period is agreed
38to by the inmate. At the time of release, the warden or the warden’s
39representative shall ensure that the prisoner hasbegin delete each of the
40followingend delete
in his or herbegin delete possession:end deletebegin insert possession,end insert a discharge medical
P19   1summary, full medical records, state identification, parole or
2postrelease community supervision medications, and all property
3belonging to the prisoner. After discharge, any additional records
4shall be sent to the prisoner’s forwarding address.

5(10) The secretary shall issue a directive to medical and
6correctional staff employed by the department that details the
7guidelines and procedures for initiating a recall and resentencing
8procedure. The directive shall clearly state thatbegin delete anyend deletebegin insert aend insert prisoner who
9is given a prognosis of six months or less to live is eligible for
10recall and resentencing consideration, and that recall and
11resentencing procedures shall be initiated upon that prognosis.

12(11) The provisions of this subdivision shall be available to an
13inmate who is sentenced to a county jail pursuant to subdivision
14(h). For purposes of those inmates, “secretary” or “warden” shall
15mean the county correctional administrator and “chief medical
16officer” shall mean a physician designated by the county
17correctional administrator for this purpose.

18(f) Notwithstanding any other provision of this section, for
19purposes of paragraph (3) of subdivision (h),begin delete anyend deletebegin insert anend insert allegation
20that a defendant is eligible for state prison due to a prior or current
21conviction, sentence enhancement, or because he or she is required
22to register as a sex offender shall not be subject to dismissal
23pursuant to Section 1385.

24(g) A sentence to state prison for a determinate term for which
25only one term is specified, is a sentence to state prison under this
26section.

27(h) (1) Except as provided in paragraph (3), a felony punishable
28pursuant to this subdivision where the term is not specified in the
29underlying offense shall be punishable by a term of imprisonment
30in a county jail for 16 months, or two or three years.

31(2) Except as provided in paragraph (3), a felony punishable
32pursuant to this subdivision shall be punishable by imprisonment
33in a county jail for the term described in the underlying offense.

34(3) Notwithstanding paragraphs (1) and (2), where the defendant
35(A) has a prior or current felony conviction for a serious felony
36described in subdivision (c) of Section 1192.7 or a prior or current
37conviction for a violent felony described in subdivision (c) of
38Section 667.5, (B) has a prior felony conviction in another
39jurisdiction for an offense that has all the elements of a serious
40felony described in subdivision (c) of Section 1192.7 or a violent
P20   1felony described in subdivision (c) of Section 667.5, (C) is required
2to register as a sex offender pursuant to Chapter 5.5 (commencing
3with Section 290) of Title 9 of Part 1,begin delete orend delete (D) is convicted of a crime
4and as part of the sentence an enhancement pursuant to Section
5186.11 is imposed,begin insert end insertbegin insertor (E) upon conviction of a third separate
6felony where the defendant has two prior separate felony
7convictions, and all three of the convictions are suffered on or
8after January 1, 2017,end insert
an executed sentence for a felony punishable
9pursuant to this subdivision shall be served in state prison.

10(4) Nothing in this subdivision shall be construed to prevent
11other dispositions authorized by law, including pretrial diversion,
12deferred entry of judgment, or an order granting probation pursuant
13to Section 1203.1.

14(5) (A) Unless the court finds, in the interest of justice, that it
15is not appropriate in a particular case, the court, when imposing a
16sentence pursuant to paragraph (1) or (2), shall suspend execution
17of a concluding portion of the term for a period selected at the
18court’s discretion.

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

P21   1(6) The sentencing changes made by the act that added this
2subdivision shall be applied prospectively tobegin delete anyend deletebegin insert aend insert person
3sentenced on 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 tobegin delete anyend deletebegin insert aend insert person
7sentenced on or after January 1, 2015.

8(i) This section shall become operative on January 1, 2017.



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