Amended in Assembly May 19, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2765

Introduced by Assembly Member Weber

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(Principal coauthor: Assembly Member Bonta)

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(Principal coauthor: Senator Mitchell)

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February 19, 2016

An act to amend Section 1170.18 of the Penal Code, relating to sentencing.

LEGISLATIVE COUNSEL’S DIGEST

AB 2765, as amended, 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, begin delete 2017. end delete begin insert 2017, or at a later date upon a showing of good cause. end insert

Proposition 47 begin delete provides that end delete begin insert authorizes end insert its provisions begin delete may end delete begin insert to end insert 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.

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Because the

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begin insert This end insert bill would begin delete remove the time limitation for petitioning or applying end delete begin insert instead authorize a person to petition or apply end insert for a reduction of begin delete sentence, end delete begin insert sentence before November 4, 2022, end insert begin insert or at a later date upon a showing of good cause. Because end insert the bill would begin insert extend the period of time in which a person could file a petition or application without a showing of good cause, the bill would end insert 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 1.  

Section 1170.18 of the Penal Code is amended
to read:

1170.18.  

(a) A person begin delete currently end delete begin insert who, on November 5, 2014,
was end insert serving a sentence for a conviction, whether by trial or plea,
of a felony or felonies who would have been guilty of a
misdemeanor under the act that added this section (“this act”) had
this act been in effect at the time of the offense may petition for a
recall of sentence before the trial court that entered the judgment
of conviction in his or her case to request resentencing in
accordance with Sections 11350, 11357, or 11377 of the Health
and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666
of the Penal Code, as those sections have been amended or added
by this act.

(b) Upon receiving a petition under subdivision (a), the court
shall determine whether the petitioner satisfies the criteria in
subdivision (a). If the petitioner satisfies the criteria in subdivision
(a), the petitioner’s felony sentence shall be recalled and the
petitioner resentenced to a misdemeanor pursuant to Sections
11350, 11357, or 11377 of the Health and Safety Code, or Section
459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those
sections have been amended or added by this act, unless the court,
in its discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety. In exercising
its discretion, the court may consider all of the following:

(1) The petitioner’s criminal conviction history, including the
type of crimes committed, the extent of injury to victims, the length
of prior prison commitments, and the remoteness of the crimes.

(2) The petitioner’s disciplinary record and record of
rehabilitation while incarcerated.

(3) Any other evidence the court, within its discretion,
determines to be relevant in deciding whether a new sentence
would result in an unreasonable risk of danger to public safety.

(c) As used throughout this Code, “unreasonable risk of danger
to public safety” means an unreasonable risk that the petitioner
will commit a new violent felony within the meaning of clause
(iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667.

(d) A person who is resentenced pursuant to subdivision (b)
shall be given credit for time served and shall be subject to parole
for one year following completion of his or her sentence, unless
the court, in its discretion, as part of its resentencing order, releases
the person from parole. Such person is subject to Section 3000.08
parole supervision by the Department of Corrections and
Rehabilitation and the jurisdiction of the court in the county in
which the parolee is released or resides, or in which an alleged
violation of supervision has occurred, for the purpose of hearing
petitions to revoke parole and impose a term of custody.

(e) Under no circumstances may resentencing under this section
result in the imposition of a term longer than the original sentence.

(f) A person who has completed his or her sentence for a
conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under this act had this
act been in effect at the time of the offense, may file an application
before the trial court that entered the judgment of conviction in
his or her case to have the felony conviction or convictions
designated as misdemeanors.

(g) If the application satisfies the criteria in subdivision (f ), the
court shall designate the felony offense or offenses as a
misdemeanor.

(h) Unless requested by the applicant, no hearing is necessary
to grant or deny an application filed under subsection (f ).

(i) The provisions of this section shall not apply to persons who
have one or more prior convictions for an offense specified in
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
of Section 667 or for an offense requiring registration pursuant to
subdivision (c) of Section 290.

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(j) Any petition or application under this section shall be filed
on or before November 4, 2022, or at a later date upon showing
of good cause.

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(j)

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begin insert (k) end insert  Any felony conviction that is recalled and resentenced under
subdivision (b) or designated as a misdemeanor under subdivision
(g) shall be considered a misdemeanor for all purposes, except that
such resentencing shall not permit that person to own, possess, or
have in his or her custody or control any firearm or prevent his or
her conviction under Chapter 2 (commencing with Section 29800)
of Division 9 of Title 4 of Part 6.

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(k)

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begin insert (l) end insert  If the court that originally sentenced the petitioner is not
available, the presiding judge shall designate another judge to rule
on the petition or application.

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(l)

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begin insert (m) end insert  Nothing in this section is intended to diminish or abrogate
any rights or remedies otherwise available to the petitioner or
applicant.

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(m)

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begin insert (n) end insert  Nothing in this and related sections is intended to diminish
or abrogate the finality of judgments in any case not falling within
the purview of this act.

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(n)

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begin insert (o) end insert  A resentencing hearing ordered under this act shall constitute
a “post-conviction release proceeding” under paragraph (7) of
subdivision (b) of Section 28 of Article I of the California
Constitution (Marsy’s Law).