SB 679, as introduced, Bates. 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, and his or her residence and possessions, subject to search and seizure by an agent of the supervising county agency or a peace officer at any time of the day or night, with or without a warrant and with or without cause.
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
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
P2 1committing the same offense under similar circumstances. The
2Legislature further finds and declares that the elimination of
3disparity and the provision of uniformity of sentences can best be
4achieved by determinate sentences fixed by statute in proportion
5to the seriousness of the offense as determined by the Legislature
6to be imposed by the court with specified discretion.
7(2) Notwithstanding paragraph (1), the Legislature further finds
8and declares that programs should be available for inmates,
9
including, but not limited to, educational programs, that are
10designed to prepare nonviolent felony offenders for successful
11reentry into the community. The Legislature encourages the
12development of policies and programs designed to educate and
13rehabilitate nonviolent felony offenders. In implementing this
14section, the Department of Corrections and Rehabilitation is
15encouraged to give priority enrollment in programs to promote
16successful return to the community to an inmate with a short
17remaining term of commitment and a release date that would allow
18him or her adequate time to complete the program.
19(3) In any case in which the punishment prescribed by statute
20for a person convicted of a public offense is a term of imprisonment
21in the state prison of any specification of three time periods, the
22court shall sentence the defendant to one of the terms of
23imprisonment specified unless the convicted person is given any
24other disposition provided by
law, including a fine, jail, probation,
25or the suspension of imposition or execution of sentence or is
26sentenced pursuant to subdivision (b) of Section 1168 because he
27or she had committed his or her crime prior to July 1, 1977. In
28sentencing the convicted person, the court shall apply the
29sentencing rules of the Judicial Council. The court, unless it
30determines that there are circumstances in mitigation of the
31punishment prescribed, shall also impose any other term that it is
32required by law to impose as an additional term. Nothing in this
33article shall affect any provision of law that imposes the death
34penalty, that authorizes or restricts the granting of probation or
35suspending the execution or imposition of sentence, or expressly
36provides for imprisonment in the state prison for life, except as
37provided in paragraph (2) of subdivision (d). In any case in which
38the amount of preimprisonment credit under Section 2900.5 or any
39other provision of law is equal to or exceeds any sentence imposed
40pursuant to
this chapter, the entire sentence shall be deemed to
P3 1have been served and the defendant shall not be actually delivered
2to the custody of the secretary. The court shall advise the defendant
3that he or she shall serve a period of parole and order the defendant
4to report to the parole office closest to the defendant’s last legal
5residence, unless the in-custody credits equal the total sentence,
6including both confinement time and the period of parole. The
7sentence shall be deemed a separate prior prison term under Section
8667.5, and a copy of the judgment and other necessary
9documentation shall be forwarded to the secretary.
10(b) When a judgment of imprisonment is to be imposed and the
11statute specifies three possible terms, the choice of the appropriate
12term shall rest within the sound discretion of the court. At least
13four days prior to the time set for imposition of judgment, either
14party or the victim, or the family of the victim if the victim
is
15deceased, may submit a statement in aggravation or mitigation. In
16determining the appropriate term, the court may consider the record
17in the case, the probation officer’s report, other reports, including
18reports received pursuant to Section 1203.03, and statements in
19aggravation or mitigation submitted by the prosecution, the
20defendant, or the victim, or the family of the victim if the victim
21is deceased, and any further evidence introduced at the sentencing
22hearing. The court shall select the term which, in the court’s
23discretion, best serves the interests of justice. The court shall set
24forth on the record the reasons for imposing the term selected and
25the court may not impose an upper term by using the fact of any
26enhancement upon which sentence is imposed under any provision
27of law. A term of imprisonment shall not be specified if imposition
28of sentence is suspended.
29(c) The court shall state the reasons for its sentence choice on
30the
record at the time of sentencing. The court shall also inform
31the defendant that as part of the sentence after expiration of the
32term he or she may be on parole for a period as provided in Section
333000.
34(d) (1) When a defendant subject to this section or subdivision
35(b) of Section 1168 has been sentenced to be imprisoned in the
36state prison and has been committed to the custody of the secretary,
37the court may, within 120 days of the date of commitment on its
38own motion, or at any time upon the recommendation of the
39secretary or the Board of Parole Hearings, recall the sentence and
40commitment previously ordered and resentence the defendant in
P4 1the same manner as if he or she had not previously been sentenced,
2provided the new sentence, if any, is no greater than the initial
3sentence. The court resentencing under this subdivision shall apply
4the sentencing rules of the Judicial Council so as to eliminate
5disparity of
sentences and to promote uniformity of sentencing.
6Credit shall be given for time served.
7(2) (A) (i) When a defendant who was under 18 years of age
8at the time of the commission of the offense for which the
9defendant was sentenced to imprisonment for life without the
10possibility of parole has served at least 15 years of that sentence,
11the defendant may submit to the sentencing court a petition for
12recall and resentencing.
13(ii) Notwithstanding clause (i), this paragraph shall not apply
14to defendants sentenced to life without parole for an offense where
15the defendant tortured, as described in Section 206, his or her
16victim or the victim was a public safety official, including any law
17enforcement personnel mentioned in Chapter 4.5 (commencing
18with Section 830) of Title 3, or any firefighter as described in
19Section 245.1, as well as any
other officer in any segment of law
20enforcement who is employed by the federal government, the state,
21or any of its political subdivisions.
22(B) The defendant shall file the original petition with the
23sentencing court. A copy of the petition shall be served on the
24agency that prosecuted the case. The petition shall include the
25defendant’s statement that he or she was under 18 years of age at
26the time of the crime and was sentenced to life in prison without
27the possibility of parole, the defendant’s statement describing his
28or her remorse and work towards rehabilitation, and the defendant’s
29statement that one of the following is true:
30(i) The defendant was convicted pursuant to felony murder or
31aiding and abetting murder provisions of law.
32(ii) The defendant does not have juvenile felony adjudications
33for assault or
other felony crimes with a significant potential for
34personal harm to victims prior to the offense for which the sentence
35is being considered for recall.
36(iii) The defendant committed the offense with at least one adult
37codefendant.
38(iv) The defendant has performed acts that tend to indicate
39rehabilitation or the potential for rehabilitation, including, but not
40limited to, availing himself or herself of rehabilitative, educational,
P5 1or vocational programs, if those programs have been available at
2his or her classification level and facility, using self-study for
3self-improvement, or showing evidence of remorse.
4(C) If any of the information required in subparagraph (B) is
5missing from the petition, or if proof of service on the prosecuting
6agency is not provided, the court shall return the petition to the
7defendant
and advise the defendant that the matter cannot be
8considered without the missing information.
9(D) A reply to the petition, if any, shall be filed with the court
10within 60 days of the date on which the prosecuting agency was
11served with the petition, unless a continuance is granted for good
12cause.
13(E) If the court finds by a preponderance of the evidence that
14the statements in the petition are true, the court shall hold a hearing
15to consider whether to recall the sentence and commitment
16previously ordered and to resentence the defendant in the same
17manner as if the defendant had not previously been sentenced,
18provided that the new sentence, if any, is not greater than the initial
19sentence. Victims, or victim family members if the victim is
20deceased, shall retain the rights to participate in the hearing.
21(F) The
factors that the court may consider when determining
22whether to recall and resentence include, but are not limited to,
23the following:
24(i) The defendant was convicted pursuant to felony murder or
25aiding and abetting murder provisions of law.
26(ii) The defendant does not have juvenile felony adjudications
27for assault or other felony crimes with a significant potential for
28personal harm to victims prior to the offense for which the sentence
29is being considered for recall.
30(iii) The defendant committed the offense with at least one adult
31codefendant.
32(iv) Prior to the offense for which the sentence is being
33considered for recall, the defendant had insufficient adult support
34or supervision and had suffered from psychological or physical
35trauma, or significant
stress.
36(v) The defendant suffers from cognitive limitations due to
37mental illness, developmental disabilities, or other factors that did
38not constitute a defense, but influenced the defendant’s
39involvement in the offense.
P6 1(vi) The defendant has performed acts that tend to indicate
2rehabilitation or the potential for rehabilitation, including, but not
3limited to, availing himself or herself of rehabilitative, educational,
4or vocational programs, if those programs have been available at
5his or her classification level and facility, using self-study for
6self-improvement, or showing evidence of remorse.
7(vii) The defendant has maintained family ties or connections
8with others through letter writing, calls, or visits, or has eliminated
9contact with individuals outside of prison who are currently
10involved with crime.
11(viii) The defendant has had no disciplinary actions for violent
12activities in the last five years in which the defendant was
13determined to be the aggressor.
14(G) The court shall have the discretion to recall the sentence
15and commitment previously ordered and to resentence the
16defendant in the same manner as if the defendant had not
17previously been sentenced, provided that the new sentence, if any,
18is not greater than the initial sentence. The discretion of the court
19shall be exercised in consideration of the criteria in subparagraph
20(B). Victims, or victim family members if the victim is deceased,
21shall be notified of the resentencing hearing and shall retain their
22rights to participate in the hearing.
23(H) If the sentence is not recalled, the defendant may submit
24another petition for recall and resentencing to the
sentencing court
25when the defendant has been committed to the custody of the
26department for at least 20 years. If recall and resentencing is not
27granted under that petition, the defendant may file another petition
28after having served 24 years. The final petition may be submitted,
29and the response to that petition shall be determined, during the
3025th year of the defendant’s sentence.
31(I) In addition to the criteria in subparagraph (F), the court may
32consider any other criteria that the court deems relevant to its
33decision, so long as the court identifies them on the record,
34provides a statement of reasons for adopting them, and states why
35the defendant does or does not satisfy the criteria.
36(J) This subdivision shall have retroactive application.
37(e) (1) Notwithstanding any other law and
consistent with
38paragraph (1) of subdivision (a), if the secretary or the Board of
39Parole Hearings or both determine that a prisoner satisfies the
P7 1criteria set forth in paragraph (2), the secretary or the board may
2recommend to the court that the prisoner’s sentence be recalled.
3(2) The court shall have the discretion to resentence or recall if
4the court finds that the facts described in subparagraphs (A) and
5(B) or subparagraphs (B) and (C) exist:
6(A) The prisoner is terminally ill with an incurable condition
7caused by an illness or disease that would produce death within
8six months, as determined by a physician employed by the
9department.
10(B) The conditions under which the prisoner would be released
11or receive treatment do not pose a threat to public safety.
12(C) The prisoner is permanently medically incapacitated with
13a medical condition that renders him or her permanently unable
14to perform activities of basic daily living, and results in the prisoner
15requiring 24-hour total care, including, but not limited to, coma,
16persistent vegetative state, brain death, ventilator-dependency, loss
17of control of muscular or neurological function, and that
18incapacitation did not exist at the time of the original sentencing.
19The Board of Parole Hearings shall make findings pursuant to
20this subdivision before making a recommendation for resentence
21or recall to the court. This subdivision does not apply to a prisoner
22sentenced to death or a term of life without the possibility of parole.
23(3) Within 10 days of receipt of a positive recommendation by
24the secretary or the board, the court shall hold a hearing to
consider
25whether the prisoner’s sentence should be recalled.
26(4) Any physician employed by the department who determines
27that a prisoner has six months or less to live shall notify the chief
28medical officer of the prognosis. If the chief medical officer
29concurs with the prognosis, he or she shall notify the warden.
30Within 48 hours of receiving notification, the warden or the
31warden’s representative shall notify the prisoner of the recall and
32resentencing procedures, and shall arrange for the prisoner to
33designate a family member or other outside agent to be notified
34as to the prisoner’s medical condition and prognosis, and as to the
35recall and resentencing procedures. If the inmate is deemed
36mentally unfit, the warden or the warden’s representative shall
37contact the inmate’s emergency contact and provide the information
38described in paragraph (2).
39(5) The warden or the warden’s
representative shall provide the
40prisoner and his or her family member, agent, or emergency
P8 1contact, as described in paragraph (4), updated information
2throughout the recall and resentencing process with regard to the
3prisoner’s medical condition and the status of the prisoner’s recall
4and resentencing proceedings.
5(6) Notwithstanding any other provisions of this section, the
6prisoner or his or her family member or designee may
7independently request consideration for recall and resentencing
8by contacting the chief medical officer at the prison or the
9secretary. Upon receipt of the request, the chief medical officer
10and the warden or the warden’s representative shall follow the
11procedures described in paragraph (4). If the secretary determines
12that the prisoner satisfies the criteria set forth in paragraph (2), the
13secretary or board may recommend to the court that the prisoner’s
14sentence be recalled. The secretary shall submit a recommendation
15
for release within 30 days in the case of inmates sentenced to
16determinate terms and, in the case of inmates sentenced to
17indeterminate terms, the secretary shall make a recommendation
18to the Board of Parole Hearings with respect to the inmates who
19have applied under this section. The board shall consider this
20information and make an independent judgment pursuant to
21paragraph (2) and make findings related thereto before rejecting
22the request or making a recommendation to the court. This action
23shall be taken at the next lawfully noticed board meeting.
24(7) Any recommendation for recall submitted to the court by
25the secretary or the Board of Parole Hearings shall include one or
26more medical evaluations, a postrelease plan, and findings pursuant
27to paragraph (2).
28(8) If possible, the matter shall be heard before the same judge
29of the court who sentenced the prisoner.
30(9) If the court grants the recall and resentencing application,
31the prisoner shall be released by the department within 48 hours
32of receipt of the court’s order, unless a longer time period is agreed
33to by the inmate. At the time of release, the warden or the warden’s
34representative shall ensure that the prisoner has each of the
35following in his or her possession: a discharge medical summary,
36full medical records, state identification, parole medications, and
37all property belonging to the prisoner. After discharge, any
38additional records shall be sent to the prisoner’s forwarding
39address.
P9 1(10) The secretary shall issue a directive to medical and
2correctional staff employed by the department that details the
3guidelines and procedures for initiating a recall and resentencing
4procedure. The directive shall clearly state that any prisoner who
5is given a prognosis of six months or less
to live is eligible for
6recall and resentencing consideration, and that recall and
7resentencing procedures shall be initiated upon that prognosis.
8(f) Notwithstanding any other provision of this section, for
9purposes of paragraph (3) of subdivision (h), any allegation that
10a defendant is eligible for state prison due to a prior or current
11conviction, sentence enhancement, or because he or she is required
12to register as a sex offender shall not be subject to dismissal
13pursuant to Section 1385.
14(g) A sentence to state prison for a determinate term for which
15only one term is specified, is a sentence to state prison under this
16section.
17(h) (1) Except as provided in paragraph (3), a felony punishable
18pursuant to this subdivision where the term is not specified in the
19underlying offense shall be
punishable by a term of imprisonment
20in a county jail for 16 months, or two or three years.
21(2) Except as provided in paragraph (3), a felony punishable
22pursuant to this subdivision shall be punishable by imprisonment
23in a county jail for the term described in the underlying offense.
24(3) Notwithstanding paragraphs (1) and (2), where the defendant
25(A) has a prior or current felony conviction for a serious felony
26described in subdivision (c) of Section 1192.7 or a prior or current
27conviction for a violent felony described in subdivision (c) of
28Section 667.5, (B) has a prior felony conviction in another
29jurisdiction for an offense that has all the elements of a serious
30felony described in subdivision (c) of Section 1192.7 or a violent
31felony described in subdivision (c) of Section 667.5, (C) is required
32to register as a sex offender pursuant to Chapter 5.5 (commencing
33with Section
290) of Title 9 of Part 1, or (D) is convicted of a crime
34and as part of the sentence an enhancement pursuant to Section
35186.11 is imposed, an executed sentence for a felony punishable
36pursuant to this subdivision shall be served in state prison.
37(4) Nothing in this subdivision shall be construed to prevent
38other dispositions authorized by law, including pretrial diversion,
39deferred entry of judgment, or an order granting probation pursuant
40to Section 1203.1.
P10 1(5) (A) Unless the court finds that, in the interests of justice, 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 underbegin delete suchend deletebegin insert
thatend insert supervision, unless in actual custody
21related to the sentence imposed by the court, the defendant shall
22be entitled to only actual time credit against the term of
23imprisonment imposed by the court. Any time period which is
24suspended because a person has absconded shall not be credited
25toward the period of supervision.begin insert During the period of mandatory
26supervision, the defendant, and his or her residence and
27possessions, are subject to search and seizure at any time of the
28day or night, with or without a warrant and with or without cause,
29by an agent of the supervising county agency or by a peace officer.end insert
30(6) The sentencing changes made by the act that added this
31subdivision shall be applied prospectively to any person sentenced
32on or after October 1, 2011.
33(7) The sentencing changes made to paragraph (5) by the act
34that added this paragraph shall become effective and operative on
35January 1, 2015, and shall be applied prospectively to any person
36sentenced on or after January 1, 2015.
37(i) This section shall remain in effect only until January 1, 2017,
38and as of that date is repealed, unless a later enacted statute, that
39is enacted before that date, deletes or extends that date.
Section 1170 of the Penal Code, as amended by Section
22 of Chapter 612 of the Statutes of 2014, is amended to read:
(a) (1) The Legislature finds and declares that the
4purpose of imprisonment for crime is punishment. This purpose
5is best served by terms proportionate to the seriousness of the
6offense with provision for uniformity in the sentences of offenders
7committing the same offense under similar circumstances. The
8Legislature further finds and declares that the elimination of
9disparity and the provision of uniformity of sentences can best be
10achieved by determinate sentences fixed by statute in proportion
11to the seriousness of the offense as determined by the Legislature
12to be imposed by the court with specified discretion.
13(2) Notwithstanding paragraph (1), the Legislature further finds
14and declares that programs should be available for inmates,
15
including, but not limited to, educational programs, that are
16designed to prepare nonviolent felony offenders for successful
17reentry into the community. The Legislature encourages the
18development of policies and programs designed to educate and
19rehabilitate nonviolent felony offenders. In implementing this
20section, the Department of Corrections and Rehabilitation is
21encouraged to give priority enrollment in programs to promote
22successful return to the community to an inmate with a short
23remaining term of commitment and a release date that would allow
24him or her adequate time to complete the program.
25(3) In any case in which the punishment prescribed by statute
26for a person convicted of a public offense is a term of imprisonment
27in the state prison of any specification of three time periods, the
28court shall sentence the defendant to one of the terms of
29imprisonment specified unless the convicted person is given any
30other disposition provided by
law, including a fine, jail, probation,
31or the suspension of imposition or execution of sentence or is
32sentenced pursuant to subdivision (b) of Section 1168 because he
33or she had committed his or her crime prior to July 1, 1977. In
34sentencing the convicted person, the court shall apply the
35sentencing rules of the Judicial Council. The court, unless it
36determines that there are circumstances in mitigation of the
37punishment prescribed, shall also impose any other term that it is
38required by law to impose as an additional term. Nothing in this
39article shall affect any provision of law that imposes the death
40penalty, that authorizes or restricts the granting of probation or
P12 1suspending the execution or imposition of sentence, or expressly
2provides for imprisonment in the state prison for life, except as
3provided in paragraph (2) of subdivision (d). In any case in which
4the amount of preimprisonment credit under Section 2900.5 or any
5other provision of law is equal to or exceeds any sentence imposed
6pursuant to
this chapter, the entire sentence shall be deemed to
7have been served and the defendant shall not be actually delivered
8to the custody of the secretary. The court shall advise the defendant
9that he or she shall serve a period of parole and order the defendant
10to report to the parole office closest to the defendant’s last legal
11residence, unless the in-custody credits equal the total sentence,
12including both confinement time and the period of parole. The
13sentence shall be deemed a separate prior prison term under Section
14667.5, and a copy of the judgment and other necessary
15documentation shall be forwarded to the secretary.
16(b) When a judgment of imprisonment is to be imposed and the
17statute specifies three possible terms, the court shall order
18imposition of the middle term, unless there are circumstances in
19aggravation or mitigation of the crime. At least four days prior to
20the time set for imposition of judgment, either party or the victim,
21or
the family of the victim if the victim is deceased, may submit
22a statement in aggravation or mitigation to dispute facts in the
23record or the probation officer’s report, or to present additional
24facts. In determining whether there are circumstances that justify
25imposition of the upper or lower term, the court may consider the
26record in the case, the probation officer’s report, other reports,
27including reports received pursuant to Section 1203.03, and
28statements in aggravation or mitigation submitted by the
29prosecution, the defendant, or the victim, or the family of the victim
30if the victim is deceased, and any further evidence introduced at
31the sentencing hearing. The court shall set forth on the record the
32facts and reasons for imposing the upper or lower term. The court
33may not impose an upper term by using the fact of any
34enhancement upon which sentence is imposed under any provision
35of law. A term of imprisonment shall not be specified if imposition
36of sentence is suspended.
37(c) The court shall state the reasons for its sentence choice on
38the record at the time of sentencing. The court shall also inform
39the defendant that as part of the sentence after expiration of the
P13 1term he or she may be on parole for a period as provided in Section
23000.
3(d) (1) When a defendant subject to this section or subdivision
4(b) of Section 1168 has been sentenced to be imprisoned in the
5state prison and has been committed to the custody of the secretary,
6the court may, within 120 days of the date of commitment on its
7own motion, or at any time upon the recommendation of the
8secretary or the Board of Parole Hearings, recall the sentence and
9commitment previously ordered and resentence the defendant in
10the same manner as if he or she had not previously been sentenced,
11provided the new sentence, if any, is no greater than the initial
12sentence. The court
resentencing under this subdivision shall apply
13the sentencing rules of the Judicial Council so as to eliminate
14disparity of sentences and to promote uniformity of sentencing.
15Credit shall be given for time served.
16(2) (A) (i) When a defendant who was under 18 years of age
17at the time of the commission of the offense for which the
18defendant was sentenced to imprisonment for life without the
19possibility of parole has served at least 15 years of that sentence,
20the defendant may submit to the sentencing court a petition for
21recall and resentencing.
22(ii) Notwithstanding clause (i), this paragraph shall not apply
23to defendants sentenced to life without parole for an offense where
24the defendant tortured, as described in Section 206, his or her
25victim or the victim was a public safety official, including any law
26enforcement personnel mentioned
in Chapter 4.5 (commencing
27with Section 830) of Title 3, or any firefighter as described in
28Section 245.1, as well as any other officer in any segment of law
29enforcement who is employed by the federal government, the state,
30or any of its political subdivisions.
31(B) The defendant shall file the original petition with the
32sentencing court. A copy of the petition shall be served on the
33agency that prosecuted the case. The petition shall include the
34defendant’s statement that he or she was under 18 years of age at
35the time of the crime and was sentenced to life in prison without
36the possibility of parole, the defendant’s statement describing his
37or her remorse and work towards rehabilitation, and the defendant’s
38statement that one of the following is true:
39(i) The defendant was convicted pursuant to felony murder or
40aiding and abetting murder provisions of law.
P14 1(ii) The defendant does not have juvenile felony adjudications
2for assault or other felony crimes with a significant potential for
3personal harm to victims prior to the offense for which the sentence
4is being considered for recall.
5(iii) The defendant committed the offense with at least one adult
6codefendant.
7(iv) The defendant has performed acts that tend to indicate
8rehabilitation or the potential for rehabilitation, including, but not
9limited to, availing himself or herself of rehabilitative, educational,
10or vocational programs, if those programs have been available at
11his or her classification level and facility, using self-study for
12self-improvement, or showing evidence of remorse.
13(C) If any of the information required in subparagraph (B) is
14missing
from the petition, or if proof of service on the prosecuting
15agency is not provided, the court shall return the petition to the
16defendant and advise the defendant that the matter cannot be
17considered without the missing information.
18(D) A reply to the petition, if any, shall be filed with the court
19within 60 days of the date on which the prosecuting agency was
20served with the petition, unless a continuance is granted for good
21cause.
22(E) If the court finds by a preponderance of the evidence that
23the statements in the petition are true, the court shall hold a hearing
24to consider whether to recall the sentence and commitment
25previously ordered and to resentence the defendant in the same
26manner as if the defendant had not previously been sentenced,
27provided that the new sentence, if any, is not greater than the initial
28sentence. Victims, or victim family members if the victim is
29
deceased, shall retain the rights to participate in the hearing.
30(F) The factors that the court may consider when determining
31whether to recall and resentence include, but are not limited to,
32the following:
33(i) The defendant was convicted pursuant to felony murder or
34aiding and abetting murder provisions of law.
35(ii) The defendant does not have juvenile felony adjudications
36for assault or other felony crimes with a significant potential for
37personal harm to victims prior to the offense for which the sentence
38is being considered for recall.
39(iii) The defendant committed the offense with at least one adult
40codefendant.
P15 1(iv) Prior to the offense for which the sentence is being
2considered for
recall, the defendant had insufficient adult support
3or supervision and had suffered from psychological or physical
4trauma, or significant stress.
5(v) The defendant suffers from cognitive limitations due to
6mental illness, developmental disabilities, or other factors that did
7not constitute a defense, but influenced the defendant’s
8involvement in the offense.
9(vi) The defendant has performed acts that tend to indicate
10rehabilitation or the potential for rehabilitation, including, but not
11limited to, availing himself or herself of rehabilitative, educational,
12or vocational programs, if those programs have been available at
13his or her classification level and facility, using self-study for
14self-improvement, or showing evidence of remorse.
15(vii) The defendant has maintained family ties or connections
16with others through
letter writing, calls, or visits, or has eliminated
17contact with individuals outside of prison who are currently
18involved with crime.
19(viii) The defendant has had no disciplinary actions for violent
20activities in the last five years in which the defendant was
21determined to be the aggressor.
22(G) The court shall have the discretion to recall the sentence
23and commitment previously ordered and to resentence the
24defendant in the same manner as if the defendant had not
25previously been sentenced, provided that the new sentence, if any,
26is not greater than the initial sentence. The discretion of the court
27shall be exercised in consideration of the criteria in subparagraph
28(B). Victims, or victim family members if the victim is deceased,
29shall be notified of the resentencing hearing and shall retain their
30rights to participate in the hearing.
31(H) If the sentence is not recalled, the defendant may submit
32another petition for recall and resentencing to the sentencing court
33when the defendant has been committed to the custody of the
34department for at least 20 years. If recall and resentencing is not
35granted under that petition, the defendant may file another petition
36after having served 24 years. The final petition may be submitted,
37and the response to that petition shall be determined, during the
3825th year of the defendant’s sentence.
39(I) In addition to the criteria in subparagraph (F), the court may
40consider any other criteria that the court deems relevant to its
P16 1decision, so long as the court identifies them on the record,
2provides a statement of reasons for adopting them, and states why
3the defendant does or does not satisfy the criteria.
4(J) This subdivision shall have retroactive application.
5(e) (1) Notwithstanding any other law and consistent with
6paragraph (1) of subdivision (a), if the secretary or the Board of
7Parole Hearings or both determine that a prisoner satisfies the
8criteria set forth in paragraph (2), the secretary or the board may
9recommend to the court that the prisoner’s sentence be recalled.
10(2) The court shall have the discretion to resentence or recall if
11the court finds that the facts described in subparagraphs (A) and
12(B) or subparagraphs (B) and (C) exist:
13(A) The prisoner is terminally ill with an incurable condition
14caused by an illness or disease that would produce death within
15six months, as determined by a physician employed by the
16department.
17(B) The
conditions under which the prisoner would be released
18or receive treatment do not pose a threat to public safety.
19(C) The prisoner is permanently medically incapacitated with
20a medical condition that renders him or her permanently unable
21to perform activities of basic daily living, and results in the prisoner
22requiring 24-hour total care, including, but not limited to, coma,
23persistent vegetative state, brain death, ventilator-dependency, loss
24of control of muscular or neurological function, and that
25incapacitation did not exist at the time of the original sentencing.
26The Board of Parole Hearings shall make findings pursuant to
27this subdivision before making a recommendation for resentence
28or recall to the court. This subdivision does not apply to a prisoner
29sentenced to death or a term of life without the possibility of parole.
30(3) Within 10 days of receipt of a positive recommendation by
31the secretary or the board, the court shall hold a hearing to consider
32whether the prisoner’s sentence should be recalled.
33(4) Any physician employed by the department who determines
34that a prisoner has six months or less to live shall notify the chief
35medical officer of the prognosis. If the chief medical officer
36concurs with the prognosis, he or she shall notify the warden.
37Within 48 hours of receiving notification, the warden or the
38warden’s representative shall notify the prisoner of the recall and
39resentencing procedures, and shall arrange for the prisoner to
40designate a family member or other outside agent to be notified
P17 1as to the prisoner’s medical condition and prognosis, and as to the
2recall and resentencing procedures. If the inmate is deemed
3mentally unfit, the warden or the warden’s representative shall
4contact the inmate’s emergency contact and provide the
information
5described in paragraph (2).
6(5) The warden or the warden’s representative shall provide the
7prisoner and his or her family member, agent, or emergency
8contact, as described in paragraph (4), updated information
9throughout the recall and resentencing process with regard to the
10prisoner’s medical condition and the status of the prisoner’s recall
11and resentencing proceedings.
12(6) Notwithstanding any other provisions of this section, the
13prisoner or his or her family member or designee may
14independently request consideration for recall and resentencing
15by contacting the chief medical officer at the prison or the
16secretary. Upon receipt of the request, the chief medical officer
17and the warden or the warden’s representative shall follow the
18procedures described in paragraph (4). If the secretary determines
19that the prisoner satisfies the criteria set forth in paragraph (2),
the
20secretary or board may recommend to the court that the prisoner’s
21sentence be recalled. The secretary shall submit a recommendation
22for release within 30 days in the case of inmates sentenced to
23determinate terms and, in the case of inmates sentenced to
24indeterminate terms, the secretary shall make a recommendation
25to the Board of Parole Hearings with respect to the inmates who
26have applied under this section. The board shall consider this
27information and make an independent judgment pursuant to
28paragraph (2) and make findings related thereto before rejecting
29the request or making a recommendation to the court. This action
30shall be taken at the next lawfully noticed board meeting.
31(7) Any recommendation for recall submitted to the court by
32the secretary or the Board of Parole Hearings shall include one or
33more medical evaluations, a postrelease plan, and findings pursuant
34to paragraph (2).
35(8) If possible, the matter shall be heard before the same judge
36of the court who sentenced the prisoner.
37(9) If the court grants the recall and resentencing application,
38the prisoner shall be released by the department within 48 hours
39of receipt of the court’s order, unless a longer time period is agreed
40to by the inmate. At the time of release, the warden or the warden’s
P18 1representative shall ensure that the prisoner has each of the
2following in his or her possession: a discharge medical summary,
3full medical records, state identification, parole medications, and
4all property belonging to the prisoner. After discharge, any
5additional records shall be sent to the prisoner’s forwarding
6address.
7(10) The secretary shall issue a directive to medical and
8correctional staff employed by the department that details the
9guidelines and procedures for initiating a recall and
resentencing
10procedure. The directive shall clearly state that any prisoner who
11is given a prognosis of six months or less to live is eligible for
12recall and resentencing consideration, and that recall and
13resentencing procedures shall be initiated upon that prognosis.
14(f) Notwithstanding any other provision of this section, for
15purposes of paragraph (3) of subdivision (h), any allegation that
16a defendant is eligible for state prison due to a prior or current
17conviction, sentence enhancement, or because he or she is required
18to register as a sex offender shall not be subject to dismissal
19pursuant to Section 1385.
20(g) A sentence to state prison for a determinate term for which
21only one term is specified, is a sentence to state prison under this
22section.
23(h) (1) Except as provided in paragraph
(3), a felony punishable
24pursuant to this subdivision where the term is not specified in the
25underlying offense shall be punishable by a term of imprisonment
26in a county jail for 16 months, or two or three years.
27(2) Except as provided in paragraph (3), a felony punishable
28pursuant to this subdivision shall be punishable by imprisonment
29in a county jail for the term described in the underlying offense.
30(3) Notwithstanding paragraphs (1) and (2), where the defendant
31(A) has a prior or current felony conviction for a serious felony
32described in subdivision (c) of Section 1192.7 or a prior or current
33conviction for a violent felony described in subdivision (c) of
34Section 667.5, (B) has a prior felony conviction in another
35jurisdiction for an offense that has all the elements of a serious
36felony described in subdivision (c) of Section 1192.7 or a violent
37felony described in
subdivision (c) of Section 667.5, (C) is required
38to register as a sex offender pursuant to Chapter 5.5 (commencing
39with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
40and as part of the sentence an enhancement pursuant to Section
P19 1186.11 is imposed, an executed sentence for a felony punishable
2pursuant to this subdivision shall be served in state prison.
3(4) Nothing in this subdivision shall be construed to prevent
4other dispositions authorized by law, including pretrial diversion,
5deferred entry of judgment, or an order granting probation pursuant
6to Section 1203.1.
7(5) (A) Unless the court finds, in the interest of justice, that it
8is not appropriate in a particular case, the court, when imposing a
9sentence pursuant to paragraph (1) or (2), shall suspend execution
10of a concluding portion of the term for a period selected at the
11court’s
discretion.
12(B) The portion of a defendant’s sentenced term that is
13suspended pursuant to this paragraph shall be known as mandatory
14supervision, and, unless otherwise ordered by the court, shall
15commence upon release from physical custody or an alternative
16custody program, whichever is later. During the period of
17mandatory supervision, the defendant shall be supervised by the
18county probation officer in accordance with the terms, conditions,
19and procedures generally applicable to persons placed on probation,
20for the remaining unserved portion of the sentence imposed by the
21court. The period of supervision shall be mandatory, and may not
22be earlier terminated except by court order. Any proceeding to
23revoke or modify mandatory supervision under this subparagraph
24shall be conducted pursuant to either subdivisions (a) and (b) of
25Section 1203.2 or Section 1203.3. During the period when the
26defendant is underbegin delete suchend deletebegin insert
thatend insert supervision, unless in actual custody
27related to the sentence imposed by the court, the defendant shall
28be entitled to only actual time credit against the term of
29imprisonment imposed by the court. Any time period which is
30suspended because a person has absconded shall not be credited
31toward the period of supervision.begin insert During the period of mandatory
32supervision, the defendant, and his or her residence and
33possessions, are subject to search and seizure at any time of the
34day or night, with or without a warrant and with or without cause,
35by an agent of the supervising county agency or by a peace officer.end insert
36(6) The sentencing changes made by the act that added this
37subdivision shall be applied prospectively to any person sentenced
38on or after October 1, 2011.
39(7) The sentencing changes made to paragraph (5) by the act
40that added this paragraph shall become effective and operative on
P20 1January 1, 2015, and shall be applied prospectively to any person
2sentenced on or after January 1, 2015.
3(i) This section shall become operative on January 1, 2017.
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