AB 2765, as introduced, Weber. Proposition 47: sentence reduction.
Existing law, the Safe Neighborhoods and Schools Act, enacted by Proposition 47, as approved by the voters at the November 4, 2014, statewide general election, reduced the penalties for various crimes. Under the provisions of the act, a person currently convicted of a felony or felonies who would have been guilty of a misdemeanor under the act if the act had been in effect at the time of the conviction may petition or apply to have the sentence reduced in accordance with the act. That act requires that this petition or application be filed before November 4, 2017.
Proposition 47 provides that its provisions may be amended by a statute that is consistent with and furthers its intent and that is passed by a 2⁄3 vote of each house of the Legislature and is signed by the Governor. Proposition 47 also provides that the Legislature may, by majority vote, amend, add, or repeal provisions to further reduce the penalties for offenses it addresses.
Because the bill would remove the time limitation for petitioning or applying for a reduction of sentence, the bill would amend the act and would require a 2⁄3 vote of the Legislature.
Vote: 2⁄3. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 1170.18 of the Penal Code is amended
2to read:
(a) A person currently serving a sentence for a
4conviction, whether by trial or plea, of a felony or felonies who
5would have been guilty of a misdemeanor under the act that added
6this section (“this act”) had this act been in effect at the time of
7the offense may petition for a recall of sentence before the trial
8court that entered the judgment of conviction in his or her case to
9request resentencing in accordance with Sections 11350, 11357,
10or 11377 of the Health and Safety Code, or Section 459.5, 473,
11476a, 490.2, 496, or 666 of the Penal Code, as those sections have
12been amended or added by this act.
13(b) Upon receiving a petition under subdivision (a), the court
14shall determine whether the petitioner satisfies the criteria in
15subdivision (a). If the petitioner
satisfies the criteria in subdivision
16(a), the petitioner’s felony sentence shall be recalled and the
17petitioner resentenced to a misdemeanor pursuant to Sections
1811350, 11357, or 11377 of the Health and Safety Code, or Section
19459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code,begin insert asend insert those
20sections have been amended or added by this act, unless the court,
21in its discretion, determines that resentencing the petitioner would
22pose an unreasonable risk of danger to public safety. In exercising
23its discretion, the court may consider all of the following:
24(1) The petitioner’s criminal conviction history, including the
25type of crimes committed, the extent of injury to victims, the length
26of prior prison commitments, and the remoteness of the crimes.
27(2) The petitioner’s
disciplinary record and record of
28rehabilitation while incarcerated.
29(3) Any other evidence the court, within its discretion,
30determines to be relevant in deciding whether a new sentence
31would result in an unreasonable risk of danger to public safety.
32(c) As used throughout this Code, “unreasonable risk of danger
33to public safety” means an unreasonable risk that the petitioner
34will commit a new violent felony within the meaning of clause
35(iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
36Section 667.
37(d) A person who is resentenced pursuant to subdivision (b)
38shall be given credit for time served and shall be subject to parole
P3 1for one year following completion of his or her sentence, unless
2the court, in its discretion, as part of its resentencing order, releases
3the person from parole. Such person is
subject to Section 3000.08
4parole supervision by the Department of Corrections and
5Rehabilitation and the jurisdiction of the court in the county in
6which the parolee is released or resides, or in which an alleged
7violation of supervision has occurred, for the purpose of hearing
8petitions to revoke parole and impose a term of custody.
9(e) Under no circumstances may resentencing under this section
10result in the imposition of a term longer than the original sentence.
11(f) A person who has completed his or her sentence for a
12conviction, whether by trial or plea, of a felony or felonies who
13would have been guilty of a misdemeanor under this act had this
14act been in effect at the time of the offense, may file an application
15before the trial court that entered the judgment of conviction in
16his or her case to have the felony conviction or convictions
17designated as misdemeanors.
18(g) If the application satisfies the criteria in subdivision (f ), the
19court shall designate the felony offense or offenses as a
20misdemeanor.
21(h) Unless requested by the applicant, no hearing is necessary
22to grant or deny an application filed under subsection (f ).
23(i) The provisions of this section shall not apply to persons who
24have one or more prior convictions for an offense specified in
25clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
26of Section 667 or for an offense requiring registration pursuant to
27subdivision (c) of Section 290.
28(j) Any petition or application under this section shall be filed
29within three years after the effective date of the act that added this
30section or at a later date upon a showing of good cause.
31(k)
end delete
32begin insert(j)end insert Any felony conviction that is recalled and resentenced under
33subdivision (b) or designated as a misdemeanor under subdivision
34(g) shall be considered a misdemeanor for all purposes, except that
35such resentencing shall not permit that person to own, possess, or
36have in his or her custody or control any firearm or prevent his or
37her conviction under Chapter 2 (commencing with Section 29800)
38of Division 9 of Title 4 of Part 6.
39(l)
end delete
P4 1begin insert(k)end insert If the court that originally sentenced the
petitioner is not
2available, the presiding judge shall designate another judge to rule
3on the petition or application.
4(m)
end delete
5begin insert(l)end insert Nothing in this section is intended to diminish or abrogate
6any rights or remedies otherwise available to the petitioner or
7applicant.
8(n)
end delete
9begin insert(m)end insert Nothing in this and related sections is intended to diminish
10or abrogate
the finality of judgments in any case not falling within
11the purview of this act.
12(o)
end delete
13begin insert(n)end insert A resentencing hearing ordered under this act shall constitute
14a “post-conviction release proceeding” under paragraph (7) of
15subdivision (b) of Section 28 of Article I of the California
16Constitution (Marsy’s Law).
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