SB 6, as amended, Galgiani. Parole: medical parole: compassionate release.
Existing law provides that the Board of Parole Hearings or its successor in interest shall be the state’s parole authority. Existing law requires that a prisoner who is found to be permanently medically incapacitated, as specified, be granted medical parole, if the Board of Parole Hearings determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. Existing law exempts a prisoner sentenced to death, a prisoner sentenced to life without the possibility of parole, and a prisoner who is serving a sentence for which parole is prohibited by initiative statute, from medical parole eligibility.
Existing law authorizes a court to resentence or recall the sentence of a prisoner if the court finds that the prisoner is terminally ill, as specified, or the prisoner is permanently medically incapacitated, as specified, and, in either case, the conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety. Existing law exempts a prisoner sentenced to death or a term of life without the possibility of parole from eligibility for compassionate release pursuant to these provisions.
This bill would additionally exempt from medical parole eligibility and compassionate release eligibility a prisoner who was convicted of the first-degree murder of a peace officer or a person who had been a peace officer, as provided.
Vote: majority. Appropriation: no. Fiscal committee: yes. 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 sentences can best be
11achieved by determinate sentences fixed by statute in proportion
12to the seriousness of the offense as determined by the Legislature
13to 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,
16
including, 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) In any 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
P3 1defendant to one of the terms of imprisonment specified unless
2the convicted person is given any other disposition provided by
3law, including a fine, jail, probation, or the suspension of
4imposition or execution of sentence or is sentenced pursuant to
5subdivision (b) of Section 1168 because he or she had committed
6his or her crime prior to July 1, 1977. In sentencing the convicted
7person, the court shall apply the sentencing rules of the Judicial
8Council. The court, unless it determines that there are
9circumstances in mitigation of the punishment prescribed, shall
10also impose any other term that it is required by law to impose as
11an additional term. Nothing in this article shall affect any provision
12of law that imposes the death penalty, that authorizes or restricts
13the granting of probation or suspending the execution or imposition
14of sentence, or expressly
provides for imprisonment in the state
15prison for life, except as provided in paragraph (2) of subdivision
16(d). In any case in which the amount of preimprisonment credit
17under Section 2900.5 or any other law is equal to or exceeds any
18
sentence imposed pursuant to this chapter, except for the remaining
19portion of mandatory supervision pursuant to subparagraph (B) of
20paragraph (5) of subdivision (h), the entire sentence shall be
21deemed to have been served, except for the remaining period of
22mandatory supervision, and the defendant shall not be actually
23delivered to the custody of the secretary or to the custody of the
24county correctional administrator. The court shall advise the
25defendant that he or she shall serve an applicable period of parole,
26postrelease community supervision, or mandatory supervision,
27and order the defendant to report to the parole or probation office
28closest to the defendant’s last legal residence, unless the in-custody
29credits equal the total sentence, including both confinement time
30and the period of parole, postrelease community supervision, or
31mandatory supervision. The sentence shall be deemed a
separate
32prior prison term or a sentence of imprisonment in a county jail
33under subdivision (h) for purposes of Section 667.5, and a copy
34of the judgment and other necessary documentation shall be
35forwarded to the secretary.
36(b) When a judgment of imprisonment is to be imposed and the
37statute specifies three possible terms, the choice of the appropriate
38term shall rest within the sound discretion of the court. At least
39four days prior to the time set for imposition of judgment, either
40party or the victim, or the family of the victim if the victim is
P4 1deceased, may submit a statement in aggravation or mitigation. In
2determining the appropriate term, the court may consider the record
3in the case, the probation officer’s report, other reports, including
4reports received pursuant to Section 1203.03, and statements in
5aggravation or
mitigation submitted by the prosecution, the
6defendant, or the victim, or the family of the victim if the victim
7is deceased, and any further evidence introduced at the sentencing
8hearing. The court shall select the term which, in the court’s
9discretion, best serves the interests of justice. The court shall set
10forth on the record the reasons for imposing the term selected and
11the court may not impose an upper term by using the fact of any
12enhancement upon which sentence is imposed under any provision
13of law. A term of imprisonment shall not be specified if imposition
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,
P5 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
P6 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.
P7 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) (A) The court shall have the discretion to resentence or
33recall if the court finds that the facts described in clauses (i) and
34(ii) or clauses (ii) and (iii) exist:
35(i) 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(ii) The conditions under which the prisoner would be released
40or receive treatment do not pose a threat to public safety.
P8 1(iii) The prisoner is permanently medically incapacitated with
2a medical condition that renders him or her permanently unable
3to perform activities of basic daily living, and results in the prisoner
4requiring 24-hour total care, including, but not limited to, coma,
5persistent vegetative state, brain death, ventilator-dependency, loss
6of control of muscular or neurological function, and that
7incapacitation did not exist at the time of the original sentencing.
8(B) This subdivision does not apply to the following:
9(i) A prisoner sentenced to death or a
term of life without the
10possibility of parole.
11(ii) A prisoner who was convicted of first-degree murder if the
12
victim was a peace officer, as defined in Section 830.1, 830.2,
13830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37,
14830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed
15while engaged in the performance of his or her duties, and the
16individual knew, or reasonably should have known, that the victim
17was a peace officer engaged in the performance of his or her duties,
18or the victim was a peace officer or a former peace officer under
19any of the above-enumerated sections, and was intentionally killed
20in retaliation for the performance of his or her official duties.
21(C) The Board of Parole Hearings shall make findings pursuant
22to this subdivision before making a recommendation for resentence
23or recall to the court.
24(3) Within 10 days of receipt of a
positive recommendation by
25the secretary or the board, the court shall hold a hearing to consider
26whether the prisoner’s sentence should be recalled.
27(4) Any physician employed by the department who determines
28that a prisoner has six months or less to live shall notify the chief
29medical officer of the prognosis. If the chief medical officer
30concurs with the prognosis, he or she shall notify the warden.
31Within 48 hours of receiving notification, the warden or the
32warden’s representative shall notify the prisoner of the recall and
33resentencing procedures, and shall arrange for the prisoner to
34designate a family member or other outside agent to be notified
35as to the prisoner’s medical condition and prognosis, and as to the
36recall and resentencing procedures. If the inmate is deemed
37mentally unfit, the warden or the warden’s representative shall
38contact
the inmate’s emergency contact and provide the information
39described in paragraph (2).
P9 1(5) The warden or the warden’s representative shall provide the
2prisoner and his or her family member, agent, or emergency
3contact, as described in paragraph (4), updated information
4throughout the recall and resentencing process with regard to the
5prisoner’s medical condition and the status of the prisoner’s recall
6and resentencing proceedings.
7(6) Notwithstanding any other provisions of this section, the
8prisoner or his or her family member or designee may
9independently request consideration for recall and resentencing
10by contacting the chief medical officer at the prison or the
11secretary. Upon receipt of the request, the chief medical officer
12and the warden or the warden’s
representative shall follow the
13procedures described in paragraph (4). If the secretary determines
14that the prisoner satisfies the criteria set forth in paragraph (2), the
15secretary or board may recommend to the court that the prisoner’s
16sentence be recalled. The secretary shall submit a recommendation
17for release within 30 days in the case of inmates sentenced to
18determinate terms and, in the case of inmates sentenced to
19indeterminate terms, the secretary shall make a recommendation
20to the Board of Parole Hearings with respect to the inmates who
21have applied under this section. The board shall consider this
22information and make an independent judgment pursuant to
23paragraph (2) and make findings related thereto before rejecting
24the request or making a recommendation to the court. This action
25shall be taken at the next lawfully noticed board meeting.
26(7) Any
recommendation for recall submitted to the court by
27the secretary or the Board of Parole Hearings shall include one or
28more medical evaluations, a postrelease plan, and findings pursuant
29to paragraph (2).
30(8) If possible, the matter shall be heard before the same judge
31of the court who sentenced the prisoner.
32(9) If the court grants the recall and resentencing application,
33the prisoner shall be released by the department within 48 hours
34of receipt of the court’s order, unless a longer time period is agreed
35to by the inmate. At the time of release, the warden or the warden’s
36representative shall ensure that the prisoner has each of the
37following in his or her possession: a discharge medical summary,
38full medical records, state identification, parole or postrelease
39community
supervision medications, and all property belonging
P10 1to the prisoner. After discharge, any additional records shall be
2sent to the prisoner’s forwarding address.
3(10) The secretary shall issue a directive to medical and
4correctional staff employed by the department that details the
5guidelines and procedures for initiating a recall and resentencing
6procedure. The directive shall clearly state that any prisoner who
7is given a prognosis of six months or less to live is eligible for
8recall and resentencing consideration, and that recall and
9resentencing procedures shall be initiated upon that prognosis.
10(11) The provisions of this subdivision shall be available to an
11inmate who is sentenced to a county jail pursuant to subdivision
12(h). For purposes of those inmates, “secretary” or “warden”
shall
13mean the county correctional administrator and “chief medical
14officer” shall mean a physician designated by the county
15correctional administrator for this purpose.
16(f) Notwithstanding any other provision of this section, for
17purposes of paragraph (3) of subdivision (h), any allegation that
18a defendant is eligible for state prison due to a prior or current
19conviction, sentence enhancement, or because he or she is required
20to register as a sex offender shall not be subject to dismissal
21pursuant to Section 1385.
22(g) A sentence to state prison for a determinate term for which
23only one term is specified, is a sentence to state prison under this
24section.
25(h) (1) Except as provided in paragraph
(3), a felony punishable
26pursuant to this subdivision where the term is not specified in the
27underlying offense shall be punishable by a term of imprisonment
28in a county jail for 16 months, or two or three years.
29(2) Except as provided in paragraph (3), a felony punishable
30pursuant to this subdivision shall be punishable by imprisonment
31in a county jail for the term described in the underlying offense.
32(3) Notwithstanding paragraphs (1) and (2), where the defendant
33(A) has a prior or current felony conviction for a serious felony
34described in subdivision (c) of Section 1192.7 or a prior or current
35conviction for a violent felony described in subdivision (c) of
36Section 667.5, (B) has a prior felony conviction in another
37jurisdiction for an offense that has all the elements of a serious
38felony
described in subdivision (c) of Section 1192.7 or a violent
39felony described in subdivision (c) of Section 667.5, (C) is required
40to register as a sex offender pursuant to Chapter 5.5 (commencing
P11 1with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
2and as part of the sentence an enhancement pursuant to Section
3186.11 is imposed, an executed sentence for a felony punishable
4pursuant to this subdivision shall be served in state prison.
5(4) Nothing in this subdivision shall be construed to prevent
6other dispositions authorized by law, including pretrial diversion,
7deferred entry of judgment, or an order granting probation pursuant
8to Section 1203.1.
9(5) (A) Unless the court finds that, in the interests of justice, it
10is not appropriate in a
particular case, the court, when imposing a
11sentence pursuant to paragraph (1) or (2), shall suspend execution
12of a concluding portion of the term for a period selected at the
13court’s discretion.
14(B) The portion of a defendant’s sentenced term that is
15suspended pursuant to this paragraph shall be known as mandatory
16supervision, and, unless otherwise ordered by the court, shall
17commence upon release from physical custody or an alternative
18custody program, whichever is later. During the period of
19mandatory supervision, the defendant shall be supervised by the
20county probation officer in accordance with the terms, conditions,
21and procedures generally applicable to persons placed on probation,
22for the remaining unserved portion of the sentence imposed by the
23court. The period of supervision shall be mandatory, and may not
24be earlier
terminated except by court order. Any proceeding to
25revoke or modify mandatory supervision under this subparagraph
26shall be conducted pursuant to either subdivisions (a) and (b) of
27Section 1203.2 or Section 1203.3. During the period when the
28defendant is under that supervision, unless in actual custody related
29to the sentence imposed by the court, the defendant shall be entitled
30to only actual time credit against the term of imprisonment imposed
31by the court. Any time period which is suspended because a person
32has absconded shall not be credited toward the period of
33supervision.
34(6) The sentencing changes made by the act that added this
35subdivision shall be applied prospectively to any person sentenced
36on or after October 1, 2011.
37(7) The sentencing changes made to paragraph (5)
by the act
38that added this paragraph shall become effective and operative on
39January 1, 2015, and shall be applied prospectively to any person
40sentenced on or after January 1, 2015.
P12 1(i) This section shall remain in effect only until January 1, 2017,
2and as of that date is repealed, unless a later enacted statute, that
3is enacted before that date, deletes or extends that date.
Section 1170 of the Penal Code, as amended by Section
52 of Chapter 378 of the Statutes of 2015, is amended to read:
(a) (1) The Legislature finds and declares that the
7purpose of imprisonment for crime is punishment. This purpose
8is best served by terms proportionate to the seriousness of the
9offense with provision for uniformity in the sentences of offenders
10committing the same offense under similar circumstances. The
11Legislature further finds and declares that the elimination of
12disparity and the provision of uniformity of sentences can best be
13achieved by determinate sentences fixed by statute in proportion
14to the seriousness of the offense as determined by the Legislature
15to be imposed by the court with specified discretion.
16(2) Notwithstanding paragraph (1), the Legislature
further finds
17and declares that programs should be available for inmates,
18
including, but not limited to, educational programs, that are
19designed to prepare nonviolent felony offenders for successful
20reentry into the community. The Legislature encourages the
21development of policies and programs designed to educate and
22rehabilitate nonviolent felony offenders. In implementing this
23section, the Department of Corrections and Rehabilitation is
24encouraged to give priority enrollment in programs to promote
25successful return to the community to an inmate with a short
26remaining term of commitment and a release date that would allow
27him or her adequate time to complete the program.
28(3) In any case in which the punishment prescribed by statute
29for a person convicted of a public offense is a term of imprisonment
30in the state prison, or a term pursuant to subdivision (h), of any
31specification of three time
periods, the court shall sentence the
32defendant to one of the terms of imprisonment specified unless
33the convicted person is given any other disposition provided by
34law, including a fine, jail, probation, or the suspension of
35imposition or execution of sentence or is sentenced pursuant to
36subdivision (b) of Section 1168 because he or she had committed
37his or her crime prior to July 1, 1977. In sentencing the convicted
38person, the court shall apply the sentencing rules of the Judicial
39Council. The court, unless it determines that there are
40circumstances in mitigation of the punishment prescribed, shall
P13 1also impose any other term that it is required by law to impose as
2an additional term. Nothing in this article shall affect any provision
3of 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). In any case in which the amount of preimprisonment credit
8under Section 2900.5 or any other provision of law is equal to or
9
exceeds any sentence imposed pursuant to this chapter, except for
10a remaining portion of mandatory supervision imposed pursuant
11to subparagraph (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
15the county correctional administrator. The court shall advise the
16defendant that he or she shall serve an applicable period of parole,
17postrelease community supervision, or mandatory supervision and
18order the defendant to report to the parole or probation office
19closest to the defendant’s last legal residence, unless the in-custody
20credits equal the total sentence, including both confinement time
21and the period of parole, postrelease community supervision, or
22mandatory supervision. The sentence shall be deemed a
separate
23prior prison term or a sentence of imprisonment in a county jail
24under subdivision (h) for purposes of Section 667.5, and a copy
25of the judgment and other necessary documentation shall be
26forwarded to the secretary.
27(b) When a judgment of imprisonment is to be imposed and the
28statute specifies three possible terms, the court shall order
29imposition of the middle term, unless there are circumstances in
30aggravation or mitigation of the crime. At least four days prior to
31the time set for imposition of judgment, either party or the victim,
32or the family of the victim if the victim is deceased, may submit
33a statement in aggravation or mitigation to dispute facts in the
34record or the probation officer’s report, or to present additional
35facts. In determining whether there are circumstances that justify
36imposition of the upper or
lower term, the court may consider the
37record in the case, the probation officer’s report, other reports,
38including reports received pursuant to Section 1203.03, and
39statements in aggravation or mitigation submitted by the
40prosecution, the defendant, or the victim, or the family of the victim
P14 1if the victim is deceased, and any further evidence introduced at
2the sentencing hearing. The court shall set forth on the record the
3facts and reasons for imposing the upper or lower term. The court
4may not impose an upper term by using the fact of any
5enhancement upon which sentence is imposed under any provision
6of law. A term of imprisonment shall not be specified if imposition
7of sentence is suspended.
8(c) The court shall state the reasons for its sentence choice on
9the record at the time of sentencing. The court shall also inform
10the
defendant that as part of the sentence after expiration of the
11term he or she may be on parole for a period as provided in Section
123000 or 3000.08 or postrelease community supervision for a period
13as provided in Section 3451.
14(d) (1) When a defendant subject to this section or subdivision
15(b) of Section 1168 has been sentenced to be imprisoned in the
16state prison or county jail pursuant to subdivision (h) and has been
17committed to the custody of the secretary or the county correctional
18administrator, the court may, within 120 days of the date of
19commitment on its own motion, or at any time upon the
20recommendation of the secretary or the Board of Parole Hearings
21in the case of state prison inmates, or the county correctional
22administrator in the case of county jail inmates, recall the sentence
23and commitment previously
ordered and resentence the defendant
24in the same manner as if he or she had not previously been
25sentenced, provided the new sentence, if any, is no greater than
26the initial sentence. The court resentencing under this subdivision
27shall apply the sentencing rules of the Judicial Council so as to
28eliminate disparity of sentences and to promote uniformity of
29sentencing. Credit shall be given for time served.
30(2) (A) (i) When a defendant who was under 18 years of age
31at the time of the commission of the offense for which the
32defendant was sentenced to imprisonment for life without the
33possibility of parole has served at least 15 years of that sentence,
34the defendant may submit to the sentencing court a petition for
35recall and resentencing.
36(ii) Notwithstanding clause (i), this paragraph shall not apply
37to defendants sentenced to life without parole for an offense where
38the defendant tortured, as described in Section 206, his or her
39victim or the victim was a public safety official, including any law
40enforcement personnel mentioned in Chapter 4.5 (commencing
P15 1with Section 830) of Title 3, or any firefighter as described in
2Section 245.1, as well as any other officer in any segment of law
3enforcement who is employed by the federal government, the state,
4or any of its political subdivisions.
5(B) The defendant shall file the original petition with the
6sentencing court. A copy of the petition shall be served on the
7agency that prosecuted the case. The petition shall include the
8defendant’s statement that he or she was under 18 years of age at
9the time of the crime and was
sentenced to life in prison without
10the possibility of parole, the defendant’s statement describing his
11or her remorse and work towards rehabilitation, and the defendant’s
12statement that one of the following is true:
13(i) The defendant was convicted pursuant to felony murder or
14aiding and abetting murder provisions of law.
15(ii) The defendant does not have juvenile felony adjudications
16for assault or other felony crimes with a significant potential for
17personal harm to victims prior to the offense for which the sentence
18is being considered for recall.
19(iii) The defendant committed the offense with at least one adult
20codefendant.
21(iv) The defendant has performed
acts that tend to indicate
22rehabilitation or the potential for rehabilitation, including, but not
23limited to, availing himself or herself of rehabilitative, educational,
24or vocational programs, if those programs have been available at
25his or her classification level and facility, using self-study for
26self-improvement, or showing evidence of remorse.
27(C) If any of the information required in subparagraph (B) is
28missing from the petition, or if proof of service on the prosecuting
29agency is not provided, the court shall return the petition to the
30defendant and advise the defendant that the matter cannot be
31considered without the missing information.
32(D) A reply to the petition, if any, shall be filed with the court
33within 60 days of the date on which the prosecuting agency was
34served
with the petition, unless a continuance is granted for good
35cause.
36(E) If the court finds by a preponderance of the evidence that
37the statements in the petition are true, the court shall hold a hearing
38to consider whether to recall the sentence and commitment
39previously ordered and to resentence the defendant in the same
40manner as if the defendant had not previously been sentenced,
P16 1provided that the new sentence, if any, is not greater than the initial
2sentence. Victims, or victim family members if the victim is
3deceased, shall retain the rights to participate in the hearing.
4(F) The factors that the court may consider when determining
5whether to recall and resentence include, but are not limited to,
6the following:
7(i) The defendant was convicted pursuant to felony murder or
8aiding and abetting murder provisions of law.
9(ii) The defendant does not have juvenile felony adjudications
10for assault or other felony crimes with a significant potential for
11personal harm to victims prior to the offense for which the sentence
12is being considered for recall.
13(iii) The defendant committed the offense with at least one adult
14codefendant.
15(iv) Prior to the offense for which the sentence is being
16considered for recall, the defendant had insufficient adult support
17or supervision and had suffered from psychological or physical
18trauma, or significant stress.
19(v) The defendant
suffers from cognitive limitations due to
20
mental illness, developmental disabilities, or other factors that did
21not constitute a defense, but influenced the defendant’s
22involvement in the offense.
23(vi) The defendant has performed acts that tend to indicate
24rehabilitation or the potential for rehabilitation, including, but not
25limited to, availing himself or herself of rehabilitative, educational,
26or vocational programs, if those programs have been available at
27his or her classification level and facility, using self-study for
28self-improvement, or showing evidence of remorse.
29(vii) The defendant has maintained family ties or connections
30with others through letter writing, calls, or visits, or has eliminated
31contact with individuals outside of prison who are currently
32involved with crime.
33(viii) The defendant has had no disciplinary actions for violent
34
activities in the last five years in which the defendant was
35determined to be the aggressor.
36(G) The court shall have the discretion to recall the sentence
37and commitment previously ordered and to resentence the
38defendant in the same manner as if the defendant had not
39previously been sentenced, provided that the new sentence, if any,
40is not greater than the initial sentence. The discretion of the court
P17 1shall be exercised in consideration of the criteria in subparagraph
2(B). Victims, or victim family members if the victim is deceased,
3shall be notified of the resentencing hearing and shall retain their
4rights to participate in the hearing.
5(H) If the sentence is not recalled, the defendant may submit
6another petition for recall and resentencing to the sentencing court
7when
the defendant has been committed to the custody of the
8department for at least 20 years. If recall and resentencing is not
9granted under that petition, the defendant may file another petition
10after having served 24 years. The final petition may be submitted,
11and the response to that petition shall be determined, during the
1225th year of the defendant’s sentence.
13(I) In addition to the criteria in subparagraph (F), the court may
14consider any other criteria that the court deems relevant to its
15decision, so long as the court identifies them on the record,
16provides a statement of reasons for adopting them, and states why
17the defendant does or does not satisfy the criteria.
18(J) This subdivision shall have retroactive application.
19(e) (1) Notwithstanding any other law and consistent with
20paragraph (1) of subdivision (a), if the secretary or the Board of
21Parole Hearings or both determine that a prisoner satisfies the
22criteria set forth in paragraph (2), the secretary or the board may
23recommend to the court that the prisoner’s sentence be recalled.
24(2) (A) The court shall have the discretion to resentence or
25recall if the court finds that the facts described in clauses (i) and
26(ii) or clauses (ii) and (iii) exist:
27(i) The prisoner is terminally ill with an incurable condition
28caused by an illness or disease that would produce death within
29six months, as determined by a physician employed by the
30department.
31(ii) The conditions under which the prisoner would be released
32or receive treatment do not pose a threat to public safety.
33(iii) The prisoner is permanently medically incapacitated with
34a medical condition that renders him or her permanently unable
35to perform activities of basic daily living, and results in the prisoner
36requiring 24-hour total care, including, but not limited to, coma,
37persistent vegetative state, brain death, ventilator-dependency, loss
38of control of muscular or neurological function, and that
39incapacitation did not exist at the time of the original sentencing.
40(B) This subdivision does not apply to the following:
P18 1(i) A prisoner sentenced to death or a term of life without the
2possibility of
parole.
3(ii) A prisoner who was convicted of first-degree murder if the
4victim was a peace officer, as defined in Section 830.1, 830.2,
5830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37,
6830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed
7while engaged in the performance of his or her duties, and the
8individual knew, or reasonably should have known, that the victim
9was a peace officer engaged in the performance of his or her duties,
10or the victim was a peace officer or a former peace officer under
11any of the above-enumerated sections, and was intentionally killed
12in retaliation for the performance of his or her official duties.
13(C) The Board of Parole Hearings shall make findings pursuant
14to this subdivision before making a recommendation for resentence
15or
recall to the court.
16(3) Within 10 days of receipt of a positive recommendation by
17the secretary or the board, the court shall hold a hearing to consider
18whether the prisoner’s sentence should be recalled.
19(4) Any physician employed by the department who determines
20that a prisoner has six months or less to live shall notify the chief
21medical officer of the prognosis. If the chief medical officer
22concurs with the prognosis, he or she shall notify the warden.
23Within 48 hours of receiving notification, the warden or the
24
warden’s representative shall notify the prisoner of the recall and
25resentencing procedures, and shall arrange for the prisoner to
26designate a family member or other outside agent to be notified
27as to the prisoner’s medical condition and prognosis, and as to the
28recall and resentencing procedures. If the inmate is deemed
29mentally unfit, the warden or the warden’s representative shall
30contact the inmate’s emergency contact and provide the information
31described in paragraph (2).
32(5) The warden or the warden’s representative shall provide the
33prisoner and his or her family member, agent, or emergency
34contact, as described in paragraph (4), updated information
35throughout the recall and resentencing process with regard to the
36prisoner’s medical condition and the status of the prisoner’s recall
37and resentencing proceedings.
38(6) Notwithstanding any other provisions of this section, the
39
prisoner or his or her family member or designee may
40independently request consideration for recall and resentencing
P19 1by contacting the chief medical officer at the prison or the
2secretary. Upon receipt of the request, the chief medical officer
3and the warden or the warden’s representative shall follow the
4procedures described in paragraph (4). If the secretary determines
5that the prisoner satisfies the criteria set forth in paragraph (2), the
6secretary or board may recommend to the court that the prisoner’s
7sentence be recalled. The secretary shall submit a recommendation
8for release within 30 days in the case of inmates sentenced to
9determinate terms and, in the case of inmates sentenced to
10indeterminate terms, the secretary shall make a recommendation
11to the Board of Parole Hearings with respect to the inmates who
12have applied under this section. The board shall consider this
13information
and make an independent judgment pursuant to
14paragraph (2) and make findings related thereto before rejecting
15the request or making a recommendation to the court. This action
16shall be taken at the next lawfully noticed board meeting.
17(7) Any recommendation for recall submitted to the court by
18the secretary or the Board of Parole Hearings shall include one or
19more medical evaluations, a postrelease plan, and findings pursuant
20to paragraph (2).
21(8) If possible, the matter shall be heard before the same judge
22of the court who sentenced the prisoner.
23(9) If the court grants the recall and resentencing application,
24the prisoner shall be released by the department within 48 hours
25of receipt of the court’s order, unless a longer
time period is agreed
26to by the inmate. At the time of release, the warden or the warden’s
27representative shall ensure that the prisoner has each of the
28following in his or her possession: a discharge medical summary,
29full medical records, state identification, parole or postrelease
30community supervision medications, and all property belonging
31to the prisoner. After discharge, any additional records shall be
32sent to the prisoner’s forwarding address.
33(10) The secretary shall issue a directive to medical and
34correctional staff employed by the department that details the
35guidelines and procedures for initiating a recall and resentencing
36procedure. The directive shall clearly state that any prisoner who
37is given a prognosis of six months or less to live is eligible for
38recall and resentencing consideration, and that recall and
39resentencing
procedures shall be initiated upon that prognosis.
P20 1(11) The provisions of this subdivision shall be available to an
2inmate who is sentenced to a county jail pursuant to subdivision
3(h). For purposes of those inmates, “secretary” or “warden” shall
4mean the county correctional administrator and “chief medical
5officer” shall mean a physician designated by the county
6correctional administrator for this purpose.
7(f) Notwithstanding any other provision of this section, for
8purposes of paragraph (3) of subdivision (h), any allegation that
9a defendant is eligible for state prison due to a prior or current
10conviction, sentence enhancement, or because he or she is required
11to register as a sex offender shall not be subject to dismissal
12pursuant to Section 1385.
13(g) A sentence to state prison for a determinate term for which
14only one term is specified, is a sentence to state prison under this
15section.
16(h) (1) Except as provided in paragraph (3), a felony punishable
17pursuant to this subdivision where the term is not specified in the
18underlying offense shall be punishable by a term of imprisonment
19in a county jail for 16 months, or two or three years.
20(2) Except as provided in paragraph (3), a felony punishable
21pursuant to this subdivision shall be punishable by imprisonment
22in a county jail for the term described in the underlying offense.
23(3) Notwithstanding paragraphs (1) and (2), where the defendant
24(A)
has a prior or current felony conviction for a serious felony
25described in subdivision (c) of Section 1192.7 or a prior or current
26conviction for a violent felony described in subdivision (c) of
27Section 667.5, (B) has a prior felony conviction in another
28jurisdiction for an offense that has all the elements of a serious
29felony described in subdivision (c) of Section 1192.7 or a violent
30felony described in subdivision (c) of Section 667.5, (C) is required
31to register as a sex offender pursuant to Chapter 5.5 (commencing
32with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
33and as part of the sentence an enhancement pursuant to Section
34186.11 is imposed, an executed sentence for a felony punishable
35pursuant to this subdivision shall be served in state prison.
36(4) Nothing in this subdivision shall be construed to prevent
37other
dispositions authorized by law, including pretrial diversion,
38deferred entry of judgment, or an order granting probation pursuant
39to Section 1203.1.
P21 1(5) (A) Unless the court finds, in the interest of justice, that it
2is not appropriate in a particular case, the court, when imposing a
3sentence pursuant to paragraph (1) or (2), shall suspend execution
4of a concluding portion of the term for a period selected at the
5court’s discretion.
6(B) The portion of a defendant’s sentenced term that is
7suspended pursuant to this paragraph shall be known as mandatory
8supervision, and, unless otherwise ordered by the court, shall
9commence upon release from physical custody or an alternative
10custody program, whichever is later. During the period of
11mandatory supervision,
the defendant shall be supervised by the
12county probation officer in accordance with the terms, conditions,
13and procedures generally applicable to persons placed on probation,
14for the remaining unserved portion of the sentence imposed by the
15court. The period of supervision shall be mandatory, and may not
16be earlier terminated except by court order. Any proceeding to
17revoke or modify mandatory supervision under this subparagraph
18shall be conducted pursuant to either subdivisions (a) and (b) of
19Section 1203.2 or Section 1203.3. During the period when the
20defendant is under that supervision, unless in actual custody related
21to the sentence imposed by the court, the defendant shall be entitled
22to only actual time credit against the term of imprisonment imposed
23by the court. Any time period which is suspended because a person
24has absconded shall not be credited toward the period of
25supervision.
26(6) The sentencing changes made by the act that added this
27subdivision shall be applied prospectively to any person sentenced
28on or after October 1, 2011.
29(7) The sentencing changes made to paragraph (5) by the act
30that added this paragraph shall become effective and operative on
31January 1, 2015, and shall be applied prospectively to any person
32sentenced on or after January 1, 2015.
33(i) This section shall become operative on January 1, 2017.
Section 3550 of the Penal Code is amended to read:
(a) Notwithstanding any otherbegin delete provision ofend delete law, except
36as provided in subdivision (b), if the head physician of an
37institution in which a prisoner is incarcerated determines, as
38provided in this section, that the prisoner is permanently medically
39incapacitated with a medical condition that renders him or her
40permanently unable to perform activities of basic daily living, and
P22 1results in the prisoner requiring 24-hour care, and that
2incapacitation did not exist at the time of sentencing, the prisoner
3shall be granted medical parole if the Board of Parole Hearings
4determines that the conditions under which he or she would be
5released would not reasonably pose a threat to
public safety.
6(b) This section does not alter or diminish the rights conferred
7under the Victims’ Bill of Rights Act of 2008 (Marsy’s Law).
8Subdivision (a) does not apply to any of the following:
9(1) A prisoner sentenced to death or life in prison without
10possibility of parole.
11(2) A prisoner who is serving a sentence for which parole,
12pursuant to subdivision (a), is prohibited by any initiative statute.
13(3) A prisoner who was convicted of
first-degree murder if the
14victim was a peace officer, as defined in Section 830.1, 830.2,
15830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37,
16830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed
17while engaged in the performance of his or her duties, and the
18individual knew, or reasonably should have known, that the victim
19was a peace officer engaged in the performance of his or her duties,
20or the victim was a peace officer or a former peace officer under
21any of the above-enumerated sections, and was intentionally killed
22in retaliation for the performance of his or her official duties.
23(c) When a physician employed by the Department of
24Corrections and Rehabilitation who is the primary care provider
25for a prisoner identifies a prisoner that he or she believes meets
26the medical criteria for medical
parole specified in subdivision (a),
27the primary care physician shall recommend to the head physician
28of the institution where the prisoner is located that the prisoner be
29referred to the Board of Parole Hearings for consideration for
30medical parole. Within 30 days of receiving that recommendation,
31if the head physician of the institution concurs in the
32recommendation of the primary care physician, he or she shall
33refer the matter to the Board of Parole Hearings using a
34standardized form and format developed by the department, and
35if the head physician of the institution does not concur in the
36recommendation, he or she shall provide the primary care physician
37with a written explanation of the reasons for denying the referral.
38(d) Notwithstanding any other provisions of this section, the
39prisoner or his or her family member or designee
may
40independently request consideration for medical parole by
P23 1contacting the head physician at the prison or the department.
2Within 30 days of receiving the request, the head physician of the
3institution shall, in consultation with the prisoner’s primary care
4physician, make a determination regarding whether the prisoner
5meets the criteria for medical parole as specified in subdivision
6(a) and, if the head physician of the institution determines that the
7prisoner satisfies the criteria set forth in subdivision (a), he or she
8shall refer the matter to the Board of Parole Hearings using a
9standardized form and format developed by the department. If the
10head physician of the institution does not concur in the
11recommendation, he or she shall provide the prisoner or his or her
12family member or designee with a written explanation of the
13reasons for denying the application.
14(e) The Department of Corrections and Rehabilitation shall
15complete parole plans for inmates referred to the Board of Parole
16Hearings for medical parole consideration. The parole plans shall
17include, but not be limited to, the inmate’s plan for residency and
18medical care.
19(f) Notwithstanding any other law, medical parole hearings shall
20be conducted by two-person panels consisting of at least one
21commissioner. In the event of a tie vote, the matter shall be referred
22to the full board for a decision. Medical parole hearings may be
23heard in absentia.
24(g) Upon receiving a recommendation from the head physician
25of the institution where a prisoner is located for the prisoner to be
26granted medical parole pursuant to
subdivision (c) or (d), the board,
27as specified in subdivision (f), shall make an independent judgment
28regarding whether the conditions under which the inmate would
29be released pose a reasonable threat to public safety, and make
30written findings related thereto.
31(h) Notwithstanding any otherbegin delete provision ofend delete law, the board or
32the Division of Adult Parole Operations shall have the authority
33to impose any reasonable conditions on prisoners subject to medical
34parole supervision pursuant to subdivision (a), including, but not
35limited to, the requirement that the parolee submit to electronic
36monitoring. As a further condition of medical parole, pursuant to
37subdivision (a), the parolee may be required to submit to an
38examination by a physician selected by the board for
the purpose
39of diagnosing the parolee’s current medical condition. In the event
40such an examination takes place, a report of the examination and
P24 1diagnosis shall be submitted to the board by the examining
2physician. If the board determines, based on that medical
3examination, that the person’s medical condition has improved to
4the extent that the person no longer qualifies for medical parole,
5the board shall return the person to the custody of the department.
6(1) Notwithstanding any otherbegin delete provision ofend delete law establishing
7maximum periods for parole, a prisoner sentenced to a determinate
8term who is placed on medical parole supervision prior to the
9earliest possible release date and who remains eligible for medical
10parole, shall remain on medical parole, pursuant to subdivision
11(a),
until that earliest possible release date, at which time the
12parolee shall commence serving that period of parole provided by,
13and under the provisions of, Chapter 8 (commencing with Section
143000) of Title 1.
15(2) Notwithstanding any otherbegin delete provisions ofend delete law establishing
16maximum periods for parole, a prisoner sentenced to an
17indeterminate term who is placed on medical parole supervision
18prior to the prisoner’s minimum eligible parole date, and who
19remains eligible for medical parole, shall remain on medical parole
20pursuant to subdivision (a) until that minimum eligible parole date,
21at which time the parolee shall be eligible for parole consideration
22under all other provisions of Chapter 8 (commencing with Section
233000) of Title 1.
24(i) The Department of Corrections and Rehabilitation shall, at
25the time a prisoner is placed on medical parole supervision pursuant
26to subdivision (a), ensure that the prisoner has applied for any
27federal entitlement programs for which the prisoner is eligible,
28and has in his or her possession a discharge medical summary, full
29medical records, parole medications, and all property belonging
30to the prisoner that was under the control of the department. Any
31additional records shall be sent to the prisoner’s forwarding address
32after release to health care-related parole supervision.
33(j) The provisions for medical parole set forth in this title shall
34not affect an inmate’s eligibility for any other form of parole or
35release provided by law.
36(k) (1) Notwithstanding any otherbegin delete provision ofend delete law, the
37Department of Corrections and Rehabilitation shall give notice to
38the county of commitment and the proposed county of release, if
39that county is different than the county of commitment, of any
P25 1medical parole hearing as described in subdivision (f), and of any
2medical parole release as described in subdivision (g).
3(2) Notice shall be made at least 30 days, or as soon as feasible,
4prior to the time any medical parole hearing or medical parole
5release is scheduled for an inmate receiving medical parole
6consideration, regardless of whether the inmate is sentenced either
7determinately or indeterminately.
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