AB 2865, as introduced, O'Donnell. Sentencing.
Existing law provides for the sentencing and recall and resentencing of persons convicted of crimes.
This bill would make technical, nonsubstantive changes to those provisions.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 1170 of the Penal Code, as amended by
2Section 1 of Chapter 378 of the Statutes of 2015, is amended to
3read:
(a) (1) The Legislature finds and declares that the
5purpose of 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
P2 1proportion to the seriousness of the offense as determined by the
2Legislature to be imposed by the court with specified
discretion.
3(2) Notwithstanding paragraph (1), the Legislature further finds
4and declares that programs should be available for inmates,
5including, but not limited to, educational programs, that are
6designed to prepare nonviolent felony offenders for successful
7reentry into the community. The Legislature encourages the
8development of policies and programs designed to educate and
9rehabilitate nonviolent felony offenders. In implementing this
10section, the Department of Corrections and Rehabilitation is
11encouraged to give priority enrollment in programs to promote
12successful return to the community to an inmate with a short
13remaining term of commitment and a release date that would allow
14him or her adequate time to complete the program.
15(3) In any case in which the punishment prescribed by statute
16for a person convicted of a public offense is a term of imprisonment
17in the state
prison or a term pursuant to subdivision (h) of any
18specification of three time periods, the court shall sentence the
19defendant to one of the terms of imprisonment specified unless
20the convicted person is given any other disposition provided by
21law, including a fine, jail, probation, or the suspension of
22imposition or execution of sentence or is sentenced pursuant to
23subdivision (b) of Section 1168 because he or she had committed
24his or her crime prior to July 1, 1977. In sentencing the convicted
25person, the court shall apply the sentencing rules of the Judicial
26Council. The court, unless it determines that there are
27circumstances in mitigation of the punishment prescribed, shall
28also impose any other term that it is required by law to impose as
29an additional term. Nothing in this article shall affectbegin delete any provision begin insert aend insert
law that imposes the death penalty, that authorizes or restricts
30ofend delete
31the granting of probation or suspending the execution or imposition
32of sentence, or expressly provides for imprisonment in the state
33prison for life, except as provided in paragraph (2) of subdivision
34(d). In any case in which the amount of preimprisonment credit
35under Section 2900.5 or any other law is equal to or exceedsbegin delete anyend delete
36begin insert aend insert sentence imposed pursuant to this chapter, except for the
37remaining portion of mandatory supervision pursuant to
38subparagraph (B) of paragraph (5) of subdivision (h), the entire
39sentence shall be deemed to have been served, except for the
40remaining period of mandatory supervision, and the defendant
P3 1shall not be actually delivered to the custody of the secretary or to
2the custody of the county correctional administrator. The court
3
shall advise the defendant that he or she shall serve an applicable
4period of parole, postrelease community supervision, or mandatory
5supervision, and order the defendant to report to the parole or
6probation office closest to the defendant’s last legal residence,
7unless the in-custody credits equal the total sentence, including
8both confinement time and the period of parole, postrelease
9community supervision, or mandatory supervision. The sentence
10shall be deemed a separate prior prison term or a sentence of
11imprisonment in a county jail under subdivision (h) for purposes
12of Section 667.5, and a copy of the judgment and other necessary
13documentation shall be forwarded to the secretary.
14(b) When a judgment of imprisonment is to be imposed and the
15statute specifies three possible terms, the choice of the appropriate
16term shall rest within the sound discretion of the court. At least
17four days prior to the time set for imposition of judgment,
either
18party or the victim, or the family of the victim if the victim is
19deceased, may submit a statement in aggravation or mitigation. In
20determining the appropriate term, the court may consider the record
21in the case, the probation officer’s report, other reports, including
22reports received pursuant to Section 1203.03, and statements in
23aggravation or mitigation submitted by the prosecution, the
24defendant, or the victim, or the family of the victim if the victim
25is deceased, and any further evidence introduced at the sentencing
26hearing. The court shall select the termbegin delete which,end deletebegin insert that,end insert in the court’s
27discretion, best serves the interests of justice. The court shall set
28forth on the record the reasons for imposing the term selected and
29the court may not impose an upper term by using the fact ofbegin delete anyend delete
30begin insert
anend insert enhancement upon which sentence is imposed under any
31begin delete provision ofend delete law. A term of imprisonment shall not be specified
32if imposition of sentence is suspended.
33(c) The court shall state the reasons for its sentence choice on
34the record at the time of sentencing. The court shall also inform
35the defendant that as part of the sentence after expiration of the
36term he or she may be on parole for a period as provided in Section
373000 or 3000.08 or postrelease community supervision for a period
38as provided in Section 3451.
39(d) (1) When a defendant subject to this section or subdivision
40(b) of Section 1168 has been sentenced to be imprisoned in the
P4 1state prison or county jail pursuant to subdivision (h) and has been
2committed to the custody of the
secretary or the county correctional
3administrator, the court may, within 120 days of the date of
4commitment on its own motion, or at any time upon the
5recommendation of the secretary or the Board of Parole Hearings
6in the case of state prison inmates, or the county correctional
7administrator in the case of county jail inmates, recall the sentence
8and commitment previously ordered and resentence the defendant
9in the same manner as if he or she had not previously been
10sentenced, provided the new sentence, if any, is no greater than
11the initial sentence. The court resentencing under this subdivision
12shall apply the sentencing rules of the Judicial Council so as to
13eliminate disparity of sentences and to promote uniformity of
14sentencing. Credit shall be given for time served.
15(2) (A) (i) When a defendant who was under 18 years of age
16at the time of the commission of the offense for which the
17defendant
was sentenced to imprisonment for life without the
18possibility of parole has served at least 15 years of that sentence,
19the defendant may submit to the sentencing court a petition for
20recall and resentencing.
21(ii) Notwithstanding clause (i), this paragraph shall not apply
22to defendants sentenced to life without parole for an offense where
23the defendant tortured, as described in Section 206, his or her
24victim or the victim was a public safety official, including any law
25enforcement personnel mentioned in Chapter 4.5 (commencing
26with Section 830) of Title 3, or any firefighter as described in
27Section 245.1, as well as any other officer in any segment of law
28enforcement who is employed by the federal government, the state,
29or any of its political subdivisions.
30(B) The defendant shall file the original petition with the
31sentencing court. A copy of the petition shall be served on the
32
agency that prosecuted the case. The petition shall include the
33defendant’s statement that he or she was under 18 years of age at
34the time of the crime and was sentenced to life in prison without
35the possibility of parole, the defendant’s statement describing his
36or her remorse and work towards rehabilitation, and the defendant’s
37statement that one of the following is true:
38(i) The defendant was convicted pursuant to felony murder or
39aiding and abetting murder provisions of law.
P5 1(ii) The defendant does not have juvenile felony adjudications
2for assault or other felony crimes with a significant potential for
3personal harm to victims prior to the offense for which the sentence
4is being considered for recall.
5(iii) The defendant committed the offense with at least one adult
6codefendant.
7(iv) The defendant has performed acts that tend to indicate
8rehabilitation or the potential for rehabilitation, including, but not
9limited to, availing himself or herself of rehabilitative, educational,
10or vocational programs, if those programs have been available at
11his or her classification level and facility, using self-study for
12self-improvement, or showing evidence of remorse.
13(C) If any of the information required in subparagraph (B) is
14missing from the petition, or if proof of service on the prosecuting
15agency is not provided, the court shall return the petition to the
16defendant and advise the defendant that the matter cannot be
17considered without the missing information.
18(D) A reply to the petition, if any, shall be filed with the court
19within 60 days of the date on which the prosecuting agency was
20served with
the petition, unless a continuance is granted for good
21cause.
22(E) If the court finds by a preponderance of the evidence that
23the statements in the petition are true, the court shall hold a hearing
24to consider whether to recall the sentence and commitment
25previously ordered and to resentence the defendant in the same
26manner as if the defendant had not previously been sentenced,
27provided that the new sentence, if any, is not greater than the initial
28sentence. Victims, or victim family members if the victim is
29deceased, shall retain the rights to participate in the hearing.
30(F) The factors that the court may consider when determining
31whether to recall and resentence include, but are not limited to,
32the following:
33(i) The defendant was convicted pursuant to felony murder or
34aiding and abetting murder provisions of
law.
35(ii) The defendant does not have juvenile felony adjudications
36for assault or other felony crimes with a significant potential for
37personal harm to victims prior to the offense for which the sentence
38is being considered for recall.
39(iii) The defendant committed the offense with at least one adult
40codefendant.
P6 1(iv) Prior to the offense for which the sentence is being
2considered for recall, the defendant had insufficient adult support
3or supervision and had suffered from psychological or physical
4trauma, or significant stress.
5(v) The defendant suffers from cognitive limitations due to
6mental illness, developmental disabilities, or other factors that did
7not constitute a defense, but influenced the defendant’s
8involvement in the offense.
9(vi) The defendant has performed acts that tend to indicate
10rehabilitation or the potential for rehabilitation, including, but not
11limited to, availing himself or herself of rehabilitative, educational,
12or vocational programs, if those programs have been available at
13his or her classification level and facility, using self-study for
14self-improvement, or showing evidence of remorse.
15(vii) The defendant has maintained family ties or connections
16with others through letter writing, calls, or visits, or has eliminated
17contact with individuals outside of prison who are currently
18involved with crime.
19(viii) The defendant has had no disciplinary actions for violent
20activities in the last five years in which the defendant was
21determined to be the aggressor.
22(G) The
court shall have the discretion to recall the sentence
23and commitment previously ordered and to resentence the
24defendant in the same manner as if the defendant had not
25previously been sentenced, provided that the new sentence, if any,
26is not greater than the initial sentence. The discretion of the court
27shall be exercised in consideration of the criteria in subparagraph
28(B). Victims, or victim family members if the victim is deceased,
29shall be notified of the resentencing hearing and shall retain their
30rights to participate in the hearing.
31(H) If the sentence is not recalled, the defendant may submit
32another petition for recall and resentencing to the sentencing court
33when the defendant has been committed to the custody of the
34department for at least 20 years. If recall and resentencing is not
35granted under that petition, the defendant may file another petition
36after having served 24 years. The final petition may be submitted,
37and the response
to that petition shall be determined, during the
3825th year of the defendant’s sentence.
39(I) In addition to the criteria in subparagraph (F), the court may
40consider any other criteria that the court deems relevant to its
P7 1decision, so long as the court identifies them on the record,
2provides a statement of reasons for adopting them, and states why
3the defendant does or does not satisfy the criteria.
4(J) This subdivision shall have retroactive application.
5(e) (1) Notwithstanding any other law and consistent with
6paragraph (1) of subdivision (a), if the secretary or the Board of
7Parole Hearings or both determine that a prisoner satisfies the
8criteria set forth in paragraph (2), the secretary or the board may
9recommend to the court that the prisoner’s sentence be recalled.
10(2) The court shall have the discretion to resentence or recall if
11the court finds that the facts described in subparagraphs (A) and
12(B) or subparagraphs (B) and (C) exist:
13(A) The prisoner is terminally ill with an incurable condition
14caused by an illness or disease that would produce death within
15six months, as determined by a physician employed by the
16department.
17(B) The conditions under which the prisoner would be released
18or receive treatment do not pose a threat to public safety.
19(C) begin insert(i)end insertbegin insert end insert The prisoner is permanently
medically incapacitated
20with a medical condition that renders him or her permanently
21unable to perform activities of basic daily living, and results in the
22prisoner requiring 24-hour total care, including, but not limited to,
23coma, persistent vegetative state, brain death,
24ventilator-dependency, loss of control of muscular or neurological
25function, and that incapacitation did not exist at the time of the
26original sentencing.
27 The
end delete
28begin insert(ii)end insertbegin insert end insertbegin insertTheend insert Board of Parole Hearings shall make findings pursuant
29to this 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) begin deleteAny end deletebegin insertA end insertphysician employed by the department who
36determines that a prisoner has six months or less to live shall notify
37the chief medical officer of the prognosis. If the chief medical
38officer concurs with the prognosis, he or she shall notify the
39warden. Within 48 hours of receiving notification, the warden or
40the warden’s representative shall notify the prisoner of the recall
P8 1and resentencing 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) begin deleteAny end deletebegin insertA end insertrecommendation 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
P9 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 thatbegin delete anyend deletebegin insert aend insert 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),begin delete anyend deletebegin insert anend insert allegation
24that a 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
P10 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 that, in the interests of justice, 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.begin delete Anyend deletebegin insert Aend insert 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.begin delete Anyend deletebegin insert
Aend insert time periodbegin delete whichend deletebegin insert thatend insert is suspended because
38a person has absconded shall not be credited toward the period of
39supervision.
P11 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 remain in effect only until January 1, 2017,
9and as of that
date is repealed, unless a later enacted statute, that
10is enacted before that date, deletes or extends that date.
Section 1170 of the Penal Code, as amended by Section
122 of Chapter 378 of the Statutes of 2015, is amended to read:
(a) (1) The Legislature finds and declares that the
14purpose of imprisonment for crime is punishment. This purpose
15is best served by terms proportionate to the seriousness of the
16offense with provision for uniformity in the sentences of offenders
17committing the same offense under similar circumstances. The
18Legislature further finds and declares that the elimination of
19disparity and the provision of uniformity of sentencesbegin delete can best beend delete
20begin insert is bestend insert achieved by determinate sentences fixed by statute in
21proportion to the seriousness of the offense as determined by the
22Legislature to be imposed by the court with specified
discretion.
23(2) Notwithstanding paragraph (1), the Legislature further finds
24and declares that programs should be available for inmates,
25including, but not limited to, educational programs, that are
26designed to prepare nonviolent felony offenders for successful
27reentry into the community. The Legislature encourages the
28development of policies and programs designed to educate and
29rehabilitate nonviolent felony offenders. In implementing this
30section, the Department of Corrections and Rehabilitation is
31encouraged to give priority enrollment in programs to promote
32successful return to the community to an inmate with a short
33remaining term of commitment and a release date that would allow
34him or her adequate time to complete the program.
35(3) In any case in which the punishment prescribed by statute
36for a person convicted of a public offense is a term of imprisonment
37in the state
prison, or a term pursuant to subdivision (h), of any
38specification of three time periods, the court shall sentence the
39defendant to one of the terms of imprisonment specified unless
40the convicted person is given any other disposition provided by
P12 1law, including a fine, jail, probation, or the suspension of
2imposition or execution of sentence or is sentenced pursuant to
3subdivision (b) of Section 1168 because he or she had committed
4his or her crime prior to July 1, 1977. In sentencing the convicted
5person, the court shall apply the sentencing rules of the Judicial
6Council. The court, unless it determines that there are
7circumstances in mitigation of the punishment prescribed, shall
8also impose any other term that it is required by law to impose as
9an additional term. Nothing in this article shall affectbegin delete any provision begin insert aend insert
law that imposes the death penalty, that authorizes or restricts
10ofend delete
11the granting of probation or suspending the execution or imposition
12of sentence, or expressly provides for imprisonment in the state
13prison for life, except as provided in paragraph (2) of subdivision
14(d). In any case in which the amount of preimprisonment credit
15under Section 2900.5 or any otherbegin delete provision ofend delete law is equal to or
16exceedsbegin delete anyend deletebegin insert aend insert sentence imposed pursuant to this chapter, except
17for a remaining portion of mandatory supervision imposed pursuant
18to subparagraph (B) of paragraph (5) of subdivision (h), the entire
19sentence shall be deemed to have been served, except for the
20remaining period of mandatory supervision, and the defendant
21shall not be actually delivered
to the custody of the secretary or
22the county correctional administrator. The court shall advise the
23defendant that he or she shall serve an applicable period of parole,
24postrelease community supervision, or mandatory supervision and
25order the defendant to report to the parole or probation office
26closest to the defendant’s last legal residence, unless the in-custody
27credits equal the total sentence, including both confinement time
28and the period of parole, postrelease community supervision, or
29mandatory supervision. The sentence shall be deemed a separate
30prior prison term or a sentence of imprisonment in a county jail
31under subdivision (h) for purposes of Section 667.5, and a copy
32of the judgment and other necessary documentation shall be
33forwarded to the secretary.
34(b) When a judgment of imprisonment is to be imposed and the
35statute specifies three possible terms, the court shall order
36imposition of the middle term, unless there are
circumstances in
37aggravation or mitigation of the crime. At least four days prior to
38the time set for imposition of judgment, either party or the victim,
39or the family of the victim if the victim is deceased, may submit
40a statement in aggravation or mitigation to dispute facts in the
P13 1record or the probation officer’s report, or to present additional
2facts. In determining whether there are circumstances that justify
3imposition of the upper or lower term, the court may consider the
4record in the case, the probation officer’s report, other reports,
5including reports received pursuant to Section 1203.03, and
6statements in aggravation or mitigation submitted by the
7prosecution, the defendant, or the victim, or the family of the victim
8if the victim is deceased, and any further evidence introduced at
9the sentencing hearing. The court shall set forth on the record the
10facts and reasons for imposing the upper or lower term. The court
11may not impose an upper term by using the fact ofbegin delete anyend deletebegin insert
anend insert
12
enhancement upon which sentence is imposed under anybegin delete provision law. A term of imprisonment shall not be specified if imposition
13ofend delete
14of sentence is suspended.
15(c) The court shall state the reasons for its sentence choice on
16the record at the time of sentencing. The court shall also inform
17the defendant that as part of the sentence after expiration of the
18term he or she may be on parole for a period as provided in Section
193000 or 3000.08 or postrelease community supervision for a period
20as provided in Section 3451.
21(d) (1) When a defendant subject to this section or subdivision
22(b) of Section 1168 has been sentenced to be imprisoned in the
23state prison or county jail pursuant to subdivision (h) and has been
24committed to the custody of the secretary or the county
correctional
25administrator, the court may, within 120 days of the date of
26commitment on its own motion, or at any time upon the
27recommendation of the secretary or the Board of Parole Hearings
28in the case of state prison inmates, or the county correctional
29administrator in the case of county jail inmates, recall the sentence
30and commitment previously ordered and resentence the defendant
31in the same manner as if he or she had not previously been
32sentenced, provided the new sentence, if any, is no greater than
33the initial sentence. The court resentencing under this subdivision
34shall apply the sentencing rules of the Judicial Council so as to
35eliminate disparity of sentences and to promote uniformity of
36sentencing. Credit shall be given for time served.
37(2) (A) (i) When a defendant who was under 18 years of age
38at the time of the commission of the offense for which the
39defendant was sentenced to
imprisonment for life without the
40possibility of parole has served at least 15 years of that sentence,
P14 1the defendant may submit to the sentencing court a petition for
2recall and resentencing.
3(ii) Notwithstanding clause (i), this paragraph shall not apply
4to defendants sentenced to life without parole for an offense where
5the defendant tortured, as described in Section 206, his or her
6victim or the victim was a public safety official, including any law
7enforcement personnel mentioned in Chapter 4.5 (commencing
8with Section 830) of Title 3, or any firefighter as described in
9Section 245.1, as well as any other officer in any segment of law
10enforcement who is employed by the federal government, the state,
11or any of its political subdivisions.
12(B) The defendant shall file the original petition with the
13sentencing court. A copy of the petition shall be served on the
14agency that
prosecuted the case. The petition shall include the
15defendant’s statement that he or she was under 18 years of age at
16the time of the crime and was sentenced to life in prison without
17the possibility of parole, the defendant’s statement describing his
18or her remorse and work towards rehabilitation, and the defendant’s
19statement that one of the following is true:
20(i) The defendant was convicted pursuant to felony murder or
21aiding and abetting murder provisions of law.
22(ii) The defendant does not have juvenile felony adjudications
23for assault or other felony crimes with a significant potential for
24personal harm to victims prior to the offense for which the sentence
25is being considered for recall.
26(iii) The defendant committed the offense with at least one adult
27codefendant.
28(iv) The defendant has performed acts that tend to indicate
29rehabilitation or the potential for rehabilitation, including, but not
30limited to, availing himself or herself of rehabilitative, educational,
31or vocational programs, if those programs have been available at
32his or her classification level and facility, using self-study for
33self-improvement, or showing evidence of remorse.
34(C) If any of the information required in subparagraph (B) is
35missing from the petition, or if proof of service on the prosecuting
36agency is not provided, the court shall return the petition to the
37defendant and advise the defendant that the matter cannot be
38considered without the missing information.
39(D) A reply to the petition, if any, shall be filed with the court
40within 60 days of the date on which the prosecuting agency was
P15 1served with the
petition, unless a continuance is granted for good
2cause.
3(E) If the court finds by a preponderance of the evidence that
4the statements in the petition are true, the court shall hold a hearing
5to consider whether to recall the sentence and commitment
6previously ordered and to resentence the defendant in the same
7manner as if the defendant had not previously been sentenced,
8provided that the new sentence, if any, is not greater than the initial
9sentence. Victims, or victim family members if the victim is
10deceased, shall retain the rights to participate in the hearing.
11(F) The factors that the court may consider when determining
12whether to recall and resentence include, but are not limited to,
13the following:
14(i) The defendant was convicted pursuant to felony murder or
15aiding and abetting murder provisions of law.
16(ii) The defendant does not have juvenile felony adjudications
17for assault or other felony crimes with a significant potential for
18personal harm to victims prior to the offense for which the sentence
19is being considered for recall.
20(iii) The defendant committed the offense with at least one adult
21codefendant.
22(iv) Prior to the offense for which the sentence is being
23considered for recall, the defendant had insufficient adult support
24or supervision and had suffered from psychological or physical
25trauma, or significant stress.
26(v) The defendant suffers from cognitive limitations due to
27mental illness, developmental disabilities, or other factors that did
28not constitute a defense, but influenced the defendant’s
29involvement in the offense.
30(vi) The defendant has performed acts that tend to indicate
31rehabilitation or the potential for rehabilitation, including, but not
32limited to, availing himself or herself of rehabilitative, educational,
33or vocational programs, if those programs have been available at
34his or her classification level and facility, using self-study for
35self-improvement, or showing evidence of remorse.
36(vii) The defendant has maintained family ties or connections
37with others through letter writing, calls, or visits, or has eliminated
38contact with individuals outside of prison who are currently
39involved with crime.
P16 1(viii) The defendant has had no disciplinary actions for violent
2activities in the last five years in which the defendant was
3determined to be the aggressor.
4(G) The
court shall have the discretion to recall the sentence
5and commitment previously ordered and to resentence the
6defendant in the same manner as if the defendant had not
7previously been sentenced, provided that the new sentence, if any,
8is not greater than the initial sentence. The discretion of the court
9shall be exercised in consideration of the criteria in subparagraph
10(B). Victims, or victim family members if the victim is deceased,
11shall be notified of the resentencing hearing and shall retain their
12rights to participate in the hearing.
13(H) If the sentence is not recalled, the defendant may submit
14another petition for recall and resentencing to the sentencing court
15when the defendant has been committed to the custody of the
16department for at least 20 years. If recall and resentencing is not
17granted under that petition, the defendant may file another petition
18after having served 24 years. The final petition may be submitted,
19and the response
to that petition shall be determined, during the
2025th year of the defendant’s sentence.
21(I) In addition to the criteria in subparagraph (F), the court may
22consider any other criteria that the court deems relevant to its
23decision, so long as the court identifies them on the record,
24provides a statement of reasons for adopting them, and states why
25the defendant does or does not satisfy the criteria.
26(J) This subdivision shall have retroactive application.
27(e) (1) Notwithstanding any other law and consistent with
28paragraph (1) of subdivision (a), if the secretary or the Board of
29Parole Hearings or both determine that a prisoner satisfies the
30criteria set forth in paragraph (2), the secretary or the board may
31recommend to the court that the prisoner’s sentence be recalled.
32(2) The court shall have the discretion to resentence or recall if
33the court finds that the facts described in subparagraphs (A) and
34(B) or subparagraphs (B) and (C) exist:
35(A) The prisoner is terminally ill with an incurable condition
36caused by an illness or disease that would produce death within
37six months, as determined by a physician employed by the
38department.
39(B) The conditions under which the prisoner would be released
40or receive treatment do not pose a threat to public safety.
P17 1(C) begin insert(i)end insertbegin insert end insert The prisoner is permanently
medically incapacitated
2with a medical condition that renders him or her permanently
3unable to perform activities of basic daily living, and results in the
4prisoner requiring 24-hour total care, including, but not limited to,
5coma, persistent vegetative state, brain death,
6ventilator-dependency, loss of control of muscular or neurological
7function, and that incapacitation did not exist at the time of the
8original sentencing.
9 The
end delete
10begin insert(ii)end insertbegin insert end insertbegin insertTheend insert Board of Parole Hearings shall make findings pursuant
11to this subdivision before making a recommendation for resentence
12or recall to the court. This subdivision
does not apply to a prisoner
13sentenced to death or a term of life without the possibility of parole.
14(3) Within 10 days of receipt of a positive recommendation by
15the secretary or the board, the court shall hold a hearing to consider
16whether the prisoner’s sentence should be recalled.
17(4) begin deleteAny end deletebegin insertA end insertphysician employed by the department who
18determines that a prisoner has six months or less to live shall notify
19the chief medical officer of the prognosis. If the chief medical
20officer concurs with the prognosis, he or she shall notify the
21warden. Within 48 hours of receiving notification, the warden or
22the warden’s representative shall notify the prisoner of the recall
23and resentencing procedures, and
shall arrange for the prisoner to
24designate a family member or other outside agent to be notified
25as to the prisoner’s medical condition and prognosis, and as to the
26recall and resentencing procedures. If the inmate is deemed
27mentally unfit, the warden or the warden’s representative shall
28contact the inmate’s emergency contact and provide the information
29described in paragraph (2).
30(5) The warden or the warden’s representative shall provide the
31prisoner and his or her family member, agent, or emergency
32contact, as described in paragraph (4), updated information
33throughout the recall and resentencing process with regard to the
34prisoner’s medical condition and the status of the prisoner’s recall
35and resentencing proceedings.
36(6) Notwithstanding any other provisions of this section, the
37prisoner or his or her family member or designee may
38independently request consideration for
recall and resentencing
39by contacting the chief medical officer at the prison or the
40secretary. Upon receipt of the request, the chief medical officer
P18 1and the warden or the warden’s representative shall follow the
2procedures described in paragraph (4). If the secretary determines
3that the prisoner satisfies the criteria set forth in paragraph (2), the
4secretary or board may recommend to the court that the prisoner’s
5sentence be recalled. The secretary shall submit a recommendation
6for release within 30 days in the case of inmates sentenced to
7determinate terms and, in the case of inmates sentenced to
8indeterminate terms, the secretary shall make a recommendation
9to the Board of Parole Hearings with respect to the inmates who
10have applied under this section. The board shall consider this
11information and make an independent judgment pursuant to
12paragraph (2) and make findings related thereto before rejecting
13the request or making a recommendation to the court. This action
14shall be taken at the next lawfully
noticed board meeting.
15(7) begin deleteAny end deletebegin insertA end insertrecommendation for recall submitted to the court by
16the secretary or the Board of Parole Hearings shall include one or
17more medical evaluations, a postrelease plan, and findings pursuant
18to paragraph (2).
19(8) If possible, the matter shall be heard before the same judge
20of the court who sentenced the prisoner.
21(9) If the court grants the recall and resentencing application,
22the prisoner shall be released by the department within 48 hours
23of receipt of the court’s order, unless a longer time period is agreed
24to by the inmate. At the time of release, the warden or the warden’s
25representative shall
ensure that the prisoner has each of the
26following in his or her possession: a discharge medical summary,
27full medical records, state identification, parole or postrelease
28community supervision medications, and all property belonging
29to the prisoner. After discharge, any additional records shall be
30sent to the prisoner’s forwarding address.
31(10) The secretary shall issue a directive to medical and
32correctional staff employed by the department that details the
33guidelines and procedures for initiating a recall and resentencing
34procedure. The directive shall clearly state that any prisoner who
35is given a prognosis of six months or less to live is eligible for
36recall and resentencing consideration, and that recall and
37resentencing procedures shall be initiated upon that prognosis.
38(11) The provisions of this subdivision shall be available to an
39inmate who is sentenced to a county jail
pursuant to subdivision
40(h). For purposes of those inmates, “secretary” or “warden” shall
P19 1mean the county correctional administrator and “chief medical
2officer” shall mean a physician designated by the county
3correctional administrator for this purpose.
4(f) Notwithstanding any other provision of this section, for
5purposes of paragraph (3) of subdivision (h),begin delete anyend deletebegin insert
anend insert allegation
6that a defendant is eligible for state prison due to a prior or current
7conviction, sentence enhancement, or because he or she is required
8to register as a sex offender shall not be subject to dismissal
9pursuant to Section 1385.
10(g) A sentence to state prison for a determinate term for which
11only one term is specified, is a sentence to state prison under this
12section.
13(h) (1) Except as provided in paragraph (3), a felony punishable
14pursuant to this subdivision where the term is not specified in the
15underlying offense shall be punishable by a term of imprisonment
16in a county jail for 16 months, or two or three years.
17(2) Except as provided in paragraph (3), a felony punishable
18pursuant to this subdivision shall be punishable by imprisonment
19in
a county jail for the term described in the underlying offense.
20(3) Notwithstanding paragraphs (1) and (2), where the defendant
21(A) has a prior or current felony conviction for a serious felony
22described in subdivision (c) of Section 1192.7 or a prior or current
23conviction for a violent felony described in subdivision (c) of
24Section 667.5, (B) has a prior felony conviction in another
25jurisdiction for an offense that has all the elements of a serious
26felony described in subdivision (c) of Section 1192.7 or a violent
27felony described in subdivision (c) of Section 667.5, (C) is required
28to register as a sex offender pursuant to Chapter 5.5 (commencing
29with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
30and as part of the sentence an enhancement pursuant to Section
31186.11 is imposed, an executed sentence for a felony punishable
32pursuant to this subdivision shall be served in state prison.
33(4) Nothing in this subdivision shall be construed to prevent
34other dispositions authorized by law, including pretrial diversion,
35deferred entry of judgment, or an order granting probation pursuant
36to Section 1203.1.
37(5) (A) Unless the court finds, in the interest of justice, that it
38is not appropriate in a particular case, the court, when imposing a
39sentence pursuant to paragraph (1) or (2), shall suspend execution
P20 1of a concluding portion of the term for a period selected at the
2court’s discretion.
3(B) The portion of a defendant’s sentenced term that is
4suspended pursuant to this paragraph shall be known as mandatory
5supervision, and, unless otherwise ordered by the court, shall
6commence upon release from physical custody or an alternative
7custody program, whichever is later. During the period of
8
mandatory supervision, the defendant shall be supervised by the
9county probation officer in accordance with the terms, conditions,
10and procedures generally applicable to persons placed on probation,
11for the remaining unserved portion of the sentence imposed by the
12court. The period of supervision shall be mandatory, and may not
13be earlier terminated except by court order.begin delete Anyend deletebegin insert Aend insert proceeding to
14revoke or modify mandatory supervision under this subparagraph
15shall be conducted pursuant to either subdivisions (a) and (b) of
16Section 1203.2 or Section 1203.3. During the period when the
17defendant is under that supervision, unless in actual custody related
18to the sentence imposed by the court, the defendant shall be entitled
19to only actual time credit against the term of imprisonment imposed
20by the court.begin delete Anyend deletebegin insert
Aend insert time periodbegin delete whichend deletebegin insert
thatend insert is suspended because
21a person has absconded shall not be credited toward the period of
22supervision.
23(6) The sentencing changes made by the act that added this
24subdivision shall be applied prospectively to any person sentenced
25on or after October 1, 2011.
26(7) The sentencing changes made to paragraph (5) by the act
27that added this paragraph shall become effective and operative on
28January 1, 2015, and shall be applied prospectively to any person
29sentenced on or after January 1, 2015.
30(i) This section shall become operative on January 1, 2017.
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99