SB 240, as introduced, Stone. Mandatory supervision.
Existing law authorizes a court, when sentencing a person to county jail for a felony, to commit the person to county jail for either the full term in custody, as specified, or to suspend the execution of a concluding portion of the term selected at the court’s discretion. Under existing law, this period of suspended execution is supervised by the county probation officer and is known as mandatory supervision.
This bill would make a defendant subject to mandatory supervision subject to search and seizure by a peace officer at any time of the day or night, with or without cause. The bill would also require the defendant to admit any peace officer designated by the sheriff or his or her designee or the county probation officer or his or her designee into the defendant’s residence at any time for purposes of verifying the defendant’s compliance with the conditions of his or her mandatory supervision.
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 612 of the Statutes of 2014, is amended to
3read:
(a) (1) The Legislature finds and declares that the
2purpose of imprisonment for crime is punishment. This purpose
3is best served by terms proportionate to the seriousness of the
4offense with provision for uniformity in the sentences of offenders
5committing the same offense under similar circumstances. The
6Legislature further finds and declares that the elimination of
7disparity and the provision of uniformity of sentences can best be
8achieved by determinate sentences fixed by statute in proportion
9to the seriousness of the offense as determined by the Legislature
10to be imposed by the court with specified discretion.
11(2) Notwithstanding paragraph (1), the Legislature further finds
12and declares that programs should be available for inmates,
13
including, but not limited to, educational programs, that are
14designed to prepare nonviolent felony offenders for successful
15reentry into the community. The Legislature encourages the
16development of policies and programs designed to educate and
17rehabilitate nonviolent felony offenders. In implementing this
18section, the Department of Corrections and Rehabilitation is
19encouraged to give priority enrollment in programs to promote
20successful return to the community to an inmate with a short
21remaining term of commitment and a release date that would allow
22him or her adequate time to complete the program.
23(3) In any case in which the punishment prescribed by statute
24for a person convicted of a public offense is a term of imprisonment
25in the state prison of any specification of three time periods, the
26court shall sentence the defendant to one of the terms of
27imprisonment specified unless the convicted person is given any
28other disposition provided by
law, including a fine, jail, probation,
29or the suspension of imposition or execution of sentence or is
30sentenced pursuant to subdivision (b) of Section 1168 because he
31or she had committed his or her crime prior to July 1, 1977. In
32sentencing the convicted person, the court shall apply the
33sentencing rules of the Judicial Council. The court, unless it
34determines that there are circumstances in mitigation of the
35punishment prescribed, shall also impose any other term that it is
36required by law to impose as an additional term. Nothing in this
37article shall affect any provision of law that imposes the death
38penalty, that authorizes or restricts the granting of probation or
39suspending the execution or imposition of sentence, or expressly
40provides for imprisonment in the state prison for life, except as
P3 1provided in paragraph (2) of subdivision (d). In any case in which
2the amount of preimprisonment credit under Section 2900.5 or any
3other provision of law is equal to or exceeds any sentence imposed
4pursuant to
this chapter, the entire sentence shall be deemed to
5have been served and the defendant shall not be actually delivered
6to the custody of the secretary. The court shall advise the defendant
7that he or she shall serve a period of parole and order the defendant
8to report to the parole office closest to the defendant’s last legal
9residence, unless the in-custody credits equal the total sentence,
10including both confinement time and the period of parole. The
11sentence shall be deemed a separate prior prison term under Section
12667.5, 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 term which, 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 of any
30enhancement upon which sentence is imposed under any provision
31of law. A term of imprisonment shall not be specified if imposition
32of 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.
38(d) (1) When a defendant subject to this section or subdivision
39(b) of Section 1168 has been sentenced to be imprisoned in the
40state prison and has been committed to the custody of the secretary,
P4 1the court may, within 120 days of the date of commitment on its
2own motion, or at any time upon the recommendation of the
3secretary or the Board of Parole Hearings, recall the sentence and
4commitment previously ordered and resentence the defendant in
5the same manner as if he or she had not previously been sentenced,
6provided the new sentence, if any, is no greater than the initial
7sentence. The court resentencing under this subdivision shall apply
8the sentencing rules of the Judicial Council so as to eliminate
9disparity of
sentences and to promote uniformity of sentencing.
10Credit shall be given for time served.
11(2) (A) (i) When a defendant who was under 18 years of age
12at the time of the commission of the offense for which the
13defendant was sentenced to imprisonment for life without the
14possibility of parole has served at least 15 years of that sentence,
15the defendant may submit to the sentencing court a petition for
16recall and resentencing.
17(ii) Notwithstanding clause (i), this paragraph shall not apply
18to defendants sentenced to life without parole for an offense where
19the defendant tortured, as described in Section 206, his or her
20victim or the victim was a public safety official, including any law
21enforcement personnel mentioned in Chapter 4.5 (commencing
22with Section 830) of Title 3, or any firefighter as described in
23Section 245.1, as well as any
other officer in any segment of law
24enforcement who is employed by the federal government, the state,
25or any of its political subdivisions.
26(B) The defendant shall file the original petition with the
27sentencing court. A copy of the petition shall be served on the
28agency that prosecuted the case. The petition shall include the
29defendant’s statement that he or she was under 18 years of age at
30the time of the crime and was sentenced to life in prison without
31the possibility of parole, the defendant’s statement describing his
32or her remorse and work towards rehabilitation, and the defendant’s
33statement that one of the following is true:
34(i) The defendant was convicted pursuant to felony murder or
35aiding and abetting murder provisions of law.
36(ii) The defendant does not have juvenile felony adjudications
37for assault or
other felony crimes with a significant potential for
38personal harm to victims prior to the offense for which the sentence
39is being considered for recall.
P5 1(iii) The defendant committed the offense with at least one adult
2codefendant.
3(iv) The defendant has performed acts that tend to indicate
4rehabilitation or the potential for rehabilitation, including, but not
5limited to, availing himself or herself of rehabilitative, educational,
6or vocational programs, if those programs have been available at
7his or her classification level and facility, using self-study for
8self-improvement, or showing evidence of remorse.
9(C) If any of the information required in subparagraph (B) is
10missing from the petition, or if proof of service on the prosecuting
11agency is not provided, the court shall return the petition to the
12defendant
and advise the defendant that the matter cannot be
13considered without the missing information.
14(D) A reply to the petition, if any, shall be filed with the court
15within 60 days of the date on which the prosecuting agency was
16served with the petition, unless a continuance is granted for good
17cause.
18(E) If the court finds by a preponderance of the evidence that
19the statements in the petition are true, the court shall hold a hearing
20to consider whether to recall the sentence and commitment
21previously ordered and to resentence the defendant in the same
22manner as if the defendant had not previously been sentenced,
23provided that the new sentence, if any, is not greater than the initial
24sentence. Victims, or victim family members if the victim is
25deceased, shall retain the rights to participate in the hearing.
26(F) The
factors that the court may consider when determining
27whether to recall and resentence include, but are not limited to,
28the following:
29(i) The defendant was convicted pursuant to felony murder or
30aiding and abetting murder provisions of law.
31(ii) The defendant does not have juvenile felony adjudications
32for assault or other felony crimes with a significant potential for
33personal harm to victims prior to the offense for which the sentence
34is being considered for recall.
35(iii) The defendant committed the offense with at least one adult
36codefendant.
37(iv) Prior to the offense for which the sentence is being
38considered for recall, the defendant had insufficient adult support
39or supervision and had suffered from psychological or physical
40trauma, or significant
stress.
P6 1(v) The defendant suffers from cognitive limitations due to
2mental illness, developmental disabilities, or other factors that did
3not constitute a defense, but influenced the defendant’s
4involvement in the offense.
5(vi) The defendant has performed acts that tend to indicate
6rehabilitation or the potential for rehabilitation, including, but not
7limited to, availing himself or herself of rehabilitative, educational,
8or vocational programs, if those programs have been available at
9his or her classification level and facility, using self-study for
10self-improvement, or showing evidence of remorse.
11(vii) The defendant has maintained family ties or connections
12with others through letter writing, calls, or visits, or has eliminated
13contact with individuals outside of prison who are currently
14involved with crime.
15(viii) The defendant has had no disciplinary actions for violent
16activities in the last five years in which the defendant was
17determined to be the aggressor.
18(G) The court shall have the discretion to recall the sentence
19and commitment previously ordered and to resentence the
20defendant in the same manner as if the defendant had not
21previously been sentenced, provided that the new sentence, if any,
22is not greater than the initial sentence. The discretion of the court
23shall be exercised in consideration of the criteria in subparagraph
24(B). Victims, or victim family members if the victim is deceased,
25shall be notified of the resentencing hearing and shall retain their
26rights to participate in the hearing.
27(H) If the sentence is not recalled, the defendant may submit
28another petition for recall and resentencing to the
sentencing court
29when the defendant has been committed to the custody of the
30department for at least 20 years. If recall and resentencing is not
31granted under that petition, the defendant may file another petition
32after having served 24 years. The final petition may be submitted,
33and the response to that petition shall be determined, during the
3425th year of the defendant’s sentence.
35(I) In addition to the criteria in subparagraph (F), the court may
36consider any other criteria that the court deems relevant to its
37decision, so long as the court identifies them on the record,
38provides a statement of reasons for adopting them, and states why
39the defendant does or does not satisfy the criteria.
40(J) This subdivision shall have retroactive application.
P7 1(e) (1) Notwithstanding any other law and
consistent with
2paragraph (1) of subdivision (a), if the secretary or the Board of
3Parole Hearings or both determine that a prisoner satisfies the
4criteria set forth in paragraph (2), the secretary or the board may
5recommend to the court that the prisoner’s sentence be recalled.
6(2) The court shall have the discretion to resentence or recall if
7the court finds that the facts described in subparagraphs (A) and
8(B) or subparagraphs (B) and (C) exist:
9(A) The prisoner is terminally ill with an incurable condition
10caused by an illness or disease that would produce death within
11six months, as determined by a physician employed by the
12department.
13(B) The conditions under which the prisoner would be released
14or receive treatment do not pose a threat to public safety.
15(C) The prisoner is permanently medically incapacitated with
16a medical condition that renders him or her permanently unable
17to perform activities of basic daily living, and results in the prisoner
18requiring 24-hour total care, including, but not limited to, coma,
19persistent vegetative state, brain death, ventilator-dependency, loss
20of control of muscular or neurological function, and that
21incapacitation did not exist at the time of the original sentencing.
22The Board of Parole Hearings shall make findings pursuant to
23this subdivision before making a recommendation for resentence
24or recall to the court. This subdivision does not apply to a prisoner
25sentenced to death or a term of life without the possibility of parole.
26(3) Within 10 days of receipt of a positive recommendation by
27the secretary or the board, the court shall hold a hearing to
consider
28whether the prisoner’s sentence should be recalled.
29(4) Any physician employed by the department who determines
30that a prisoner has six months or less to live shall notify the chief
31medical officer of the prognosis. If the chief medical officer
32concurs with the prognosis, he or she shall notify the warden.
33Within 48 hours of receiving notification, the warden or the
34warden’s representative shall notify the prisoner of the recall and
35resentencing procedures, and shall arrange for the prisoner to
36designate a family member or other outside agent to be notified
37as to the prisoner’s medical condition and prognosis, and as to the
38recall and resentencing procedures. If the inmate is deemed
39mentally unfit, the warden or the warden’s representative shall
P8 1contact the inmate’s emergency contact and provide the information
2described in paragraph (2).
3(5) The warden or the warden’s
representative shall provide the
4prisoner and his or her family member, agent, or emergency
5contact, as described in paragraph (4), updated information
6throughout the recall and resentencing process with regard to the
7prisoner’s medical condition and the status of the prisoner’s recall
8and resentencing proceedings.
9(6) Notwithstanding any other provisions of this section, the
10prisoner or his or her family member or designee may
11independently request consideration for recall and resentencing
12by contacting the chief medical officer at the prison or the
13secretary. Upon receipt of the request, the chief medical officer
14and the warden or the warden’s representative shall follow the
15procedures described in paragraph (4). If the secretary determines
16that the prisoner satisfies the criteria set forth in paragraph (2), the
17secretary or board may recommend to the court that the prisoner’s
18sentence be recalled. The secretary shall submit a recommendation
19
for release within 30 days in the case of inmates sentenced to
20determinate terms and, in the case of inmates sentenced to
21indeterminate terms, the secretary shall make a recommendation
22to the Board of Parole Hearings with respect to the inmates who
23have applied under this section. The board shall consider this
24information and make an independent judgment pursuant to
25paragraph (2) and make findings related thereto before rejecting
26the request or making a recommendation to the court. This action
27shall be taken at the next lawfully noticed board meeting.
28(7) Any recommendation for recall submitted to the court by
29the secretary or the Board of Parole Hearings shall include one or
30more medical evaluations, a postrelease plan, and findings pursuant
31to paragraph (2).
32(8) If possible, the matter shall be heard before the same judge
33of the court who sentenced the prisoner.
34(9) If the court grants the recall and resentencing application,
35the prisoner shall be released by the department within 48 hours
36of receipt of the court’s order, unless a longer time period is agreed
37to by the inmate. At the time of release, the warden or the warden’s
38representative shall ensure that the prisoner has each of the
39following in his or her possession: a discharge medical summary,
40full medical records, state identification, parole medications, and
P9 1all property belonging to the prisoner. After discharge, any
2additional records shall be sent to the prisoner’s forwarding
3address.
4(10) The secretary shall issue a directive to medical and
5correctional staff employed by the department that details the
6guidelines and procedures for initiating a recall and resentencing
7procedure. The directive shall clearly state that any prisoner who
8is given a prognosis of six months or less
to live is eligible for
9recall and resentencing consideration, and that recall and
10resentencing procedures shall be initiated upon that prognosis.
11(f) Notwithstanding any other provision of this section, for
12purposes of paragraph (3) of subdivision (h), any allegation that
13a defendant is eligible for state prison due to a prior or current
14conviction, sentence enhancement, or because he or she is required
15to register as a sex offender shall not be subject to dismissal
16pursuant to Section 1385.
17(g) A sentence to state prison for a determinate term for which
18only one term is specified, is a sentence to state prison under this
19section.
20(h) (1) Except as provided in paragraph (3), a felony punishable
21pursuant to this subdivision where the term is not specified in the
22underlying offense shall be
punishable by a term of imprisonment
23in a county jail for 16 months, or two or three years.
24(2) Except as provided in paragraph (3), a felony punishable
25pursuant to this subdivision shall be punishable by imprisonment
26in a county jail for the term described in the underlying offense.
27(3) Notwithstanding paragraphs (1) and (2), where the defendant
28(A) has a prior or current felony conviction for a serious felony
29described in subdivision (c) of Section 1192.7 or a prior or current
30conviction for a violent felony described in subdivision (c) of
31Section 667.5, (B) has a prior felony conviction in another
32jurisdiction for an offense that has all the elements of a serious
33felony described in subdivision (c) of Section 1192.7 or a violent
34felony described in subdivision (c) of Section 667.5, (C) is required
35to register as a sex offender pursuant to Chapter 5.5 (commencing
36with Section
290) of Title 9 of Part 1, or (D) is convicted of a crime
37and as part of the sentence an enhancement pursuant to Section
38186.11 is imposed, an executed sentence for a felony punishable
39pursuant to this subdivision shall be served in state prison.
P10 1(4) Nothing in this subdivision shall be construed to prevent
2other dispositions authorized by law, including pretrial diversion,
3deferred entry of judgment, or an order granting probation pursuant
4to Section 1203.1.
5(5) (A) Unless the court finds that, in the interests of justice, it
6is not appropriate in a particular case, the court, when imposing a
7sentence pursuant to paragraph (1) or (2), shall suspend execution
8of a concluding portion of the term for a period selected at the
9court’s discretion.
10(B) The portion of a defendant’s sentenced term that
is
11suspended pursuant to this paragraph shall be known as mandatory
12supervision, and, unless otherwise ordered by the court, shall
13commence upon release from physical custody or an alternative
14custody program, whichever is later. During the period of
15mandatory supervision, the defendant shall be supervised by the
16county probation officer in accordance with the terms, conditions,
17and procedures generally applicable to persons placed on probation,
18for the remaining unserved portion of the sentence imposed by the
19court. The period of supervision shall be mandatory, and may not
20be earlier terminated except by court order. Any proceeding to
21revoke or modify mandatory supervision under this subparagraph
22shall be conducted pursuant to either subdivisions (a) and (b) of
23Section 1203.2 or Section 1203.3. During the period when the
24defendant is underbegin delete suchend deletebegin insert
thatend insert supervision, unless in actual custody
25related to the sentence imposed by the court, the defendant shall
26be entitled to only actual time credit against the term of
27imprisonment imposed by the court. Any time period which is
28suspended because a person has absconded shall not be credited
29toward the period of supervision.begin insert A defendant subject to mandatory
30supervision is subject to search and seizure by a peace officer at
31any time of the day or night, with or without cause. In addition,
32the defendant shall admit any peace officer designated by the
33sheriff or his or her designee or the county probation officer or
34his or her designee into the defendant’s residence at any time for
35purposes of verifying the defendant’s compliance with the
36conditions of his or her mandatory supervision.end insert
37(6) The sentencing
changes made by the act that added this
38subdivision shall be applied prospectively to any person sentenced
39on or after October 1, 2011.
P11 1(7) The sentencing changes made to paragraph (5) by the act
2that added this paragraph shall become effective and operative on
3January 1, 2015, and shall be applied prospectively to any person
4sentenced on or after January 1, 2015.
5(i) This section shall remain in effect only until January 1, 2017,
6and as of that date is repealed, unless a later enacted statute, that
7is enacted before that date, deletes or extends that date.
Section 1170 of the Penal Code, as amended by Section
92 of Chapter 612 of the Statutes of 2014, is amended to read:
(a) (1) The Legislature finds and declares that the
11purpose of imprisonment for crime is punishment. This purpose
12is best served by terms proportionate to the seriousness of the
13offense with provision for uniformity in the sentences of offenders
14committing the same offense under similar circumstances. The
15Legislature further finds and declares that the elimination of
16disparity and the provision of uniformity of sentences can best be
17achieved by determinate sentences fixed by statute in proportion
18to the seriousness of the offense as determined by the Legislature
19to be imposed by the court with specified discretion.
20(2) Notwithstanding paragraph (1), the Legislature further finds
21and declares that programs should be available for inmates,
22
including, but not limited to, educational programs, that are
23designed to prepare nonviolent felony offenders for successful
24reentry into the community. The Legislature encourages the
25development of policies and programs designed to educate and
26rehabilitate nonviolent felony offenders. In implementing this
27section, the Department of Corrections and Rehabilitation is
28encouraged to give priority enrollment in programs to promote
29successful return to the community to an inmate with a short
30remaining term of commitment and a release date that would allow
31him or her adequate time to complete the program.
32(3) In any case in which the punishment prescribed by statute
33for a person convicted of a public offense is a term of imprisonment
34in the state prison of any specification of three time periods, the
35court shall sentence the defendant to one of the terms of
36imprisonment specified unless the convicted person is given any
37other disposition provided by
law, including a fine, jail, probation,
38or the suspension of imposition or execution of sentence or is
39sentenced pursuant to subdivision (b) of Section 1168 because he
40or she had committed his or her crime prior to July 1, 1977. In
P12 1sentencing the convicted person, the court shall apply the
2sentencing rules of the Judicial Council. The court, unless it
3determines that there are circumstances in mitigation of the
4punishment prescribed, shall also impose any other term that it is
5required by law to impose as an additional term. Nothing in this
6article shall affect any provision of law that imposes the death
7penalty, that authorizes or restricts the granting of probation or
8suspending the execution or imposition of sentence, or expressly
9provides for imprisonment in the state prison for life, except as
10provided in paragraph (2) of subdivision (d). In any case in which
11the amount of preimprisonment credit under Section 2900.5 or any
12other provision of law is equal to or exceeds any sentence imposed
13pursuant to
this chapter, the entire sentence shall be deemed to
14have been served and the defendant shall not be actually delivered
15to the custody of the secretary. The court shall advise the defendant
16that he or she shall serve a period of parole and order the defendant
17to report to the parole office closest to the defendant’s last legal
18residence, unless the in-custody credits equal the total sentence,
19including both confinement time and the period of parole. The
20sentence shall be deemed a separate prior prison term under Section
21667.5, and a copy of the judgment and other necessary
22documentation shall be forwarded to the secretary.
23(b) When a judgment of imprisonment is to be imposed and the
24statute specifies three possible terms, the court shall order
25imposition of the middle term, unless there are circumstances in
26aggravation or mitigation of the crime. At least four days prior to
27the time set for imposition of judgment, either party or the victim,
28or
the family of the victim if the victim is deceased, may submit
29a statement in aggravation or mitigation to dispute facts in the
30record or the probation officer’s report, or to present additional
31facts. In determining whether there are circumstances that justify
32imposition of the upper or lower term, the court may consider the
33record in the case, the probation officer’s report, other reports,
34including reports received pursuant to Section 1203.03, and
35statements in aggravation or mitigation submitted by the
36prosecution, the defendant, or the victim, or the family of the victim
37if the victim is deceased, and any further evidence introduced at
38the sentencing hearing. The court shall set forth on the record the
39facts and reasons for imposing the upper or lower term. The court
40may not impose an upper term by using the fact of any
P13 1enhancement upon which sentence is imposed under any provision
2of law. A term of imprisonment shall not be specified if imposition
3of sentence is suspended.
4(c) The court shall state the reasons for its sentence choice on
5the record at the time of sentencing. The court shall also inform
6the defendant that as part of the sentence after expiration of the
7term he or she may be on parole for a period as provided in Section
83000.
9(d) (1) When a defendant subject to this section or subdivision
10(b) of Section 1168 has been sentenced to be imprisoned in the
11state prison and has been committed to the custody of the secretary,
12the court may, within 120 days of the date of commitment on its
13own motion, or at any time upon the recommendation of the
14secretary or the Board of Parole Hearings, recall the sentence and
15commitment previously ordered and resentence the defendant in
16the same manner as if he or she had not previously been sentenced,
17provided the new sentence, if any, is no greater than the initial
18sentence. The court
resentencing under this subdivision shall apply
19the sentencing rules of the Judicial Council so as to eliminate
20disparity of sentences and to promote uniformity of sentencing.
21Credit shall be given for time served.
22(2) (A) (i) When a defendant who was under 18 years of age
23at the time of the commission of the offense for which the
24defendant was sentenced to imprisonment for life without the
25possibility of parole has served at least 15 years of that sentence,
26the defendant may submit to the sentencing court a petition for
27recall and resentencing.
28(ii) Notwithstanding clause (i), this paragraph shall not apply
29to defendants sentenced to life without parole for an offense where
30the defendant tortured, as described in Section 206, his or her
31victim or the victim was a public safety official, including any law
32enforcement personnel mentioned
in Chapter 4.5 (commencing
33with Section 830) of Title 3, or any firefighter as described in
34Section 245.1, as well as any other officer in any segment of law
35enforcement who is employed by the federal government, the state,
36or any of its political subdivisions.
37(B) The defendant shall file the original petition with the
38sentencing court. A copy of the petition shall be served on the
39agency that prosecuted the case. The petition shall include the
40defendant’s statement that he or she was under 18 years of age at
P14 1the time of the crime and was sentenced to life in prison without
2the possibility of parole, the defendant’s statement describing his
3or her remorse and work towards rehabilitation, and the defendant’s
4statement that one of the following is true:
5(i) The defendant was convicted pursuant to felony murder or
6aiding and abetting murder provisions of law.
7(ii) The defendant does not have juvenile felony adjudications
8for assault or other felony crimes with a significant potential for
9personal harm to victims prior to the offense for which the sentence
10is being considered for recall.
11(iii) The defendant committed the offense with at least one adult
12codefendant.
13(iv) The defendant has performed acts that tend to indicate
14rehabilitation or the potential for rehabilitation, including, but not
15limited to, availing himself or herself of rehabilitative, educational,
16or vocational programs, if those programs have been available at
17his or her classification level and facility, using self-study for
18self-improvement, or showing evidence of remorse.
19(C) If any of the information required in subparagraph (B) is
20missing
from the petition, or if proof of service on the prosecuting
21agency is not provided, the court shall return the petition to the
22defendant and advise the defendant that the matter cannot be
23considered without the missing information.
24(D) A reply to the petition, if any, shall be filed with the court
25within 60 days of the date on which the prosecuting agency was
26served with the petition, unless a continuance is granted for good
27cause.
28(E) If the court finds by a preponderance of the evidence that
29the statements in the petition are true, the court shall hold a hearing
30to consider whether to recall the sentence and commitment
31previously ordered and to resentence the defendant in the same
32manner as if the defendant had not previously been sentenced,
33provided that the new sentence, if any, is not greater than the initial
34sentence. Victims, or victim family members if the victim is
35
deceased, shall retain the rights to participate in the hearing.
36(F) The factors that the court may consider when determining
37whether to recall and resentence include, but are not limited to,
38the following:
39(i) The defendant was convicted pursuant to felony murder or
40aiding and abetting murder provisions of law.
P15 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) Prior to the offense for which the sentence is being
8considered for
recall, the defendant had insufficient adult support
9or supervision and had suffered from psychological or physical
10trauma, or significant stress.
11(v) The defendant suffers from cognitive limitations due to
12mental illness, developmental disabilities, or other factors that did
13not constitute a defense, but influenced the defendant’s
14involvement in the offense.
15(vi) The defendant has performed acts that tend to indicate
16rehabilitation or the potential for rehabilitation, including, but not
17limited to, availing himself or herself of rehabilitative, educational,
18or vocational programs, if those programs have been available at
19his or her classification level and facility, using self-study for
20self-improvement, or showing evidence of remorse.
21(vii) The defendant has maintained family ties or connections
22with others through
letter writing, calls, or visits, or has eliminated
23contact with individuals outside of prison who are currently
24involved with crime.
25(viii) The defendant has had no disciplinary actions for violent
26activities in the last five years in which the defendant was
27determined to be the aggressor.
28(G) The court shall have the discretion to recall the sentence
29and commitment previously ordered and to resentence the
30defendant in the same manner as if the defendant had not
31previously been sentenced, provided that the new sentence, if any,
32is not greater than the initial sentence. The discretion of the court
33shall be exercised in consideration of the criteria in subparagraph
34(B). Victims, or victim family members if the victim is deceased,
35shall be notified of the resentencing hearing and shall retain their
36rights to participate in the hearing.
37(H) If the sentence is not recalled, the defendant may submit
38another petition for recall and resentencing to the sentencing court
39when the defendant has been committed to the custody of the
40department for at least 20 years. If recall and resentencing is not
P16 1granted under that petition, the defendant may file another petition
2after having served 24 years. The final petition may be submitted,
3and the response to that petition shall be determined, during the
425th year of the defendant’s sentence.
5(I) In addition to the criteria in subparagraph (F), the court may
6consider any other criteria that the court deems relevant to its
7decision, so long as the court identifies them on the record,
8provides a statement of reasons for adopting them, and states why
9the defendant does or does not satisfy the criteria.
10(J) This subdivision shall have retroactive application.
11(e) (1) Notwithstanding any other law and consistent with
12paragraph (1) of subdivision (a), if the secretary or the Board of
13Parole Hearings or both determine that a prisoner satisfies the
14criteria set forth in paragraph (2), the secretary or the board may
15recommend to the court that the prisoner’s sentence be recalled.
16(2) The court shall have the discretion to resentence or recall if
17the court finds that the facts described in subparagraphs (A) and
18(B) or subparagraphs (B) and (C) exist:
19(A) The prisoner is terminally ill with an incurable condition
20caused by an illness or disease that would produce death within
21six months, as determined by a physician employed by the
22department.
23(B) The
conditions under which the prisoner would be released
24or receive treatment do not pose a threat to public safety.
25(C) The prisoner is permanently medically incapacitated with
26a medical condition that renders him or her permanently unable
27to perform activities of basic daily living, and results in the prisoner
28requiring 24-hour total care, including, but not limited to, coma,
29persistent vegetative state, brain death, ventilator-dependency, loss
30of control of muscular or neurological function, and that
31incapacitation did not exist at the time of the original sentencing.
32The Board of Parole Hearings shall make findings pursuant to
33this subdivision before making a recommendation for resentence
34or recall to the court. This subdivision does not apply to a prisoner
35sentenced to death or a term of life without the possibility of parole.
36(3) Within 10 days of receipt of a positive recommendation by
37the secretary or the board, the court shall hold a hearing to consider
38whether the prisoner’s sentence should be recalled.
39(4) Any physician employed by the department who determines
40that a prisoner has six months or less to live shall notify the chief
P17 1medical officer of the prognosis. If the chief medical officer
2concurs with the prognosis, he or she shall notify the warden.
3Within 48 hours of receiving notification, the warden or the
4warden’s representative shall notify the prisoner of the recall and
5resentencing procedures, and shall arrange for the prisoner to
6designate a family member or other outside agent to be notified
7as to the prisoner’s medical condition and prognosis, and as to the
8recall and resentencing procedures. If the inmate is deemed
9mentally unfit, the warden or the warden’s representative shall
10contact the inmate’s emergency contact and provide the
information
11described in paragraph (2).
12(5) The warden or the warden’s representative shall provide the
13prisoner and his or her family member, agent, or emergency
14contact, as described in paragraph (4), updated information
15throughout the recall and resentencing process with regard to the
16prisoner’s medical condition and the status of the prisoner’s recall
17and resentencing proceedings.
18(6) Notwithstanding any other provisions of this section, the
19prisoner or his or her family member or designee may
20independently request consideration for recall and resentencing
21by contacting the chief medical officer at the prison or the
22secretary. Upon receipt of the request, the chief medical officer
23and the warden or the warden’s representative shall follow the
24procedures described in paragraph (4). If the secretary determines
25that the prisoner satisfies the criteria set forth in paragraph (2),
the
26secretary or board may recommend to the court that the prisoner’s
27sentence be recalled. The secretary shall submit a recommendation
28for release within 30 days in the case of inmates sentenced to
29determinate terms and, in the case of inmates sentenced to
30indeterminate terms, the secretary shall make a recommendation
31to the Board of Parole Hearings with respect to the inmates who
32have applied under this section. The board shall consider this
33information and make an independent judgment pursuant to
34paragraph (2) and make findings related thereto before rejecting
35the request or making a recommendation to the court. This action
36shall be taken at the next lawfully noticed board meeting.
37(7) Any recommendation for recall submitted to the court by
38the secretary or the Board of Parole Hearings shall include one or
39more medical evaluations, a postrelease plan, and findings pursuant
40to paragraph (2).
P18 1(8) If possible, the matter shall be heard before the same judge
2of the court who sentenced the prisoner.
3(9) If the court grants the recall and resentencing application,
4the prisoner shall be released by the department within 48 hours
5of receipt of the court’s order, unless a longer time period is agreed
6to by the inmate. At the time of release, the warden or the warden’s
7representative shall ensure that the prisoner has each of the
8following in his or her possession: a discharge medical summary,
9full medical records, state identification, parole medications, and
10all property belonging to the prisoner. After discharge, any
11additional records shall be sent to the prisoner’s forwarding
12address.
13(10) The secretary shall issue a directive to medical and
14correctional staff employed by the department that details the
15guidelines and procedures for initiating a recall and
resentencing
16procedure. The directive shall clearly state that any prisoner who
17is given a prognosis of six months or less to live is eligible for
18recall and resentencing consideration, and that recall and
19resentencing procedures shall be initiated upon that prognosis.
20(f) Notwithstanding any other provision of this section, for
21purposes of paragraph (3) of subdivision (h), any allegation that
22a defendant is eligible for state prison due to a prior or current
23conviction, sentence enhancement, or because he or she is required
24to register as a sex offender shall not be subject to dismissal
25pursuant to Section 1385.
26(g) A sentence to state prison for a determinate term for which
27only one term is specified, is a sentence to state prison under this
28section.
29(h) (1) Except as provided in paragraph
(3), a felony punishable
30pursuant to this subdivision where the term is not specified in the
31underlying offense shall be punishable by a term of imprisonment
32in a county jail for 16 months, or two or three years.
33(2) Except as provided in paragraph (3), a felony punishable
34pursuant to this subdivision shall be punishable by imprisonment
35in a county jail for the term described in the underlying offense.
36(3) Notwithstanding paragraphs (1) and (2), where the defendant
37(A) has a prior or current felony conviction for a serious felony
38described in subdivision (c) of Section 1192.7 or a prior or current
39conviction for a violent felony described in subdivision (c) of
40Section 667.5, (B) has a prior felony conviction in another
P19 1jurisdiction for an offense that has all the elements of a serious
2felony described in subdivision (c) of Section 1192.7 or a violent
3felony described in
subdivision (c) of Section 667.5, (C) is required
4to register as a sex offender pursuant to Chapter 5.5 (commencing
5with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
6and as part of the sentence an enhancement pursuant to Section
7186.11 is imposed, an executed sentence for a felony punishable
8pursuant to this subdivision shall be served in state prison.
9(4) Nothing in this subdivision shall be construed to prevent
10other dispositions authorized by law, including pretrial diversion,
11deferred entry of judgment, or an order granting probation pursuant
12to Section 1203.1.
13(5) (A) Unless the court finds, in the interest of justice, that it
14is not appropriate in a particular case, the court, when imposing a
15sentence pursuant to paragraph (1) or (2), shall suspend execution
16of a concluding portion of the term for a period selected at the
17court’s
discretion.
18(B) The portion of a defendant’s sentenced term that is
19suspended pursuant to this paragraph shall be known as mandatory
20supervision, and, unless otherwise ordered by the court, shall
21commence upon release from physical custody or an alternative
22custody program, whichever is later. During the period of
23mandatory supervision, the defendant shall be supervised by the
24county probation officer in accordance with the terms, conditions,
25and procedures generally applicable to persons placed on probation,
26for the remaining unserved portion of the sentence imposed by the
27court. The period of supervision shall be mandatory, and may not
28be earlier terminated except by court order. Any proceeding to
29revoke or modify mandatory supervision under this subparagraph
30shall be conducted pursuant to either subdivisions (a) and (b) of
31Section 1203.2 or Section 1203.3. During the period when the
32defendant is underbegin delete suchend deletebegin insert
thatend insert supervision, unless in actual custody
33related to the sentence imposed by the court, the defendant shall
34be entitled to only actual time credit against the term of
35imprisonment imposed by the court. Any time period which is
36suspended because a person has absconded shall not be credited
37toward the period of supervision.begin insert A defendant subject to mandatory
38supervision is subject to search and seizure by a peace officer at
39any time of the day or night, with or without cause. In addition,
40the defendant shall admit any peace officer designated by the
P20 1sheriff or his or her designee or the county probation officer or
2his or her designee into the defendant’s residence at any time for
3purposes of verifying the defendant’s compliance with the
4conditions of his or her mandatory supervision.end insert
5(6) The sentencing
changes made by the act that added this
6subdivision shall be applied prospectively to any person sentenced
7on or after October 1, 2011.
8(7) The sentencing changes made to paragraph (5) by the act
9that added this paragraph shall become effective and operative on
10January 1, 2015, and shall be applied prospectively to any person
11sentenced on or after January 1, 2015.
12(i) This section shall become operative on January 1, 2017.
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