SB 1084, as amended, Hancock. Sentencing.
Existing law authorizes a prisoner who was under 18 years of age at the time of committing an offense for which the prisoner was sentenced to life without the possibility of parole to submit a petition for recall and resentencing after he or she has served at least 15 years of his or her sentence. Existing law prohibits a prisoner who tortured his or her victim or whose victim was a public safety official, as defined, from filing a petition for recall and resentencing. Existing law establishes certain criteria, at least one of which shall be asserted in the petition, to be considered when a court decides whether to conduct a hearing on the petition for recall and resentencing and additional criteria to be considered by the court when deciding whether to grant the petition. Existing law requires the court to hold a hearing if the court finds that the statements in the defendant’s petition are true, as specified, and grants the court discretion to recall and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.
This bill would instead authorize those prisoners to submit the petition for recall and resentencing after he or she has been committed to the custody of the Department of Corrections and Rehabilitation for 15 years. The bill would also require a court, if it finds by a preponderance of the evidence that one or more of the qualifying criteria is true, to recall the sentence previously ordered and hold a hearing to resentence the defendant. The bill would make other conforming changes.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 1170 of the Penal Code, as amended by
2Section 1 of Chapter 378 of the Statutes of 2015, is amended to
3read:
(a) (1) The Legislature finds and declares that the
5purpose of imprisonment for crime is punishment. This purpose
6is best served by terms proportionate to the seriousness of the
7offense with provision for uniformity in the sentences of offenders
8committing the same offense under similar circumstances. The
9Legislature further finds and declares that the elimination of
10disparity and the provision of uniformity of sentences can best be
11achieved by determinate sentences fixed by statute in proportion
12to the seriousness of the offense as determined by the Legislature
13to be imposed by the court with specified discretion.
14(2) Notwithstanding paragraph (1), the Legislature further
finds
15and declares that programs should be available for inmates,
16
including, but not limited to, educational programs, that are
17designed to prepare nonviolent felony offenders for successful
18reentry into the community. The Legislature encourages the
19development of policies and programs designed to educate and
20rehabilitate nonviolent felony offenders. In implementing this
21section, the Department of Corrections and Rehabilitation is
22encouraged to give priority enrollment in programs to promote
23successful return to the community to an inmate with a short
24remaining term of commitment and a release date that would allow
25him or her adequate time to complete the program.
26(3) In any case in which the punishment prescribed by statute
27for a person convicted of a public offense is a term of imprisonment
28in the state prison or a term pursuant to subdivision (h) of any
29specification of three time
periods, the court shall sentence the
30defendant to one of the terms of imprisonment specified unless
31the convicted person is given any other disposition provided by
32law, including a fine, jail, probation, or the suspension of
P3 1imposition or execution of sentence or is sentenced pursuant to
2subdivision (b) of Section 1168 because he or she had committed
3his or her crime prior to July 1, 1977. In sentencing the convicted
4person, the court shall apply the sentencing rules of the Judicial
5Council. The court, unless it determines that there are
6circumstances in mitigation of the punishment prescribed, shall
7also impose any other term that it is required by law to impose as
8an additional term. Nothing in this article shall affect any provision
9of law that imposes the death penalty, that authorizes or restricts
10the granting of probation or suspending the execution or imposition
11of sentence, or expressly
provides for imprisonment in the state
12prison for life, except as provided in paragraph (2) of subdivision
13(d). In any case in which the amount of preimprisonment credit
14under Section 2900.5 or any other law is equal to or exceeds any
15
sentence imposed pursuant to this chapter, except for the remaining
16portion of mandatory supervision pursuant to subparagraph (B) of
17paragraph (5) of subdivision (h), the entire sentence shall be
18deemed to have been served, except for the remaining period of
19mandatory supervision, and the defendant shall not be actually
20delivered to the custody of the secretary or to the custody of the
21county correctional administrator. The court shall advise the
22defendant that he or she shall serve an applicable period of parole,
23postrelease community supervision, or mandatory supervision,
24and order the defendant to report to the parole or probation office
25closest to the defendant’s last legal residence, unless the in-custody
26credits equal the total sentence, including both confinement time
27and the period of parole, postrelease community supervision, or
28mandatory supervision. The sentence shall be deemed
a separate
29prior prison term or a sentence of imprisonment in a county jail
30under subdivision (h) for purposes of Section 667.5, and a copy
31of the judgment and other necessary documentation shall be
32forwarded to the secretary.
33(b) When a judgment of imprisonment is to be imposed and the
34statute specifies three possible terms, the choice of the appropriate
35term shall rest within the sound discretion of the court. At least
36four days prior to the time set for imposition of judgment, either
37party or the victim, or the family of the victim if the victim is
38deceased, may submit a statement in aggravation or mitigation. In
39determining the appropriate term, the court may consider the record
40in the case, the probation officer’s report, other reports, including
P4 1reports received pursuant to Section 1203.03, and statements in
2aggravation or
mitigation submitted by the prosecution, the
3defendant, or the victim, or the family of the victim if the victim
4is deceased, and any further evidence introduced at the sentencing
5hearing. The court shall select the term which, in the court’s
6discretion, best serves the interests of justice. The court shall set
7forth on the record the reasons for imposing the term selected and
8the court may not impose an upper term by using the fact of any
9enhancement upon which sentence is imposed under any provision
10of law. A term of imprisonment shall not be specified if imposition
11of sentence is suspended.
12(c) The court shall state the reasons for its sentence choice on
13the record at the time of sentencing. The court shall also inform
14the defendant that as part of the sentence after expiration of the
15term he or she may be on parole for a period as provided in
Section
163000 or 3000.08 or postrelease community supervision for a period
17as provided in Section 3451.
18(d) (1) When a defendant subject to this section or subdivision
19(b) of Section 1168 has been sentenced to be imprisoned in the
20state prison or county jail pursuant to subdivision (h) and has been
21committed to the custody of the secretary or the county correctional
22administrator, the court may, within 120 days of the date of
23commitment on its own motion, or at any time upon the
24recommendation of the secretary or the Board of Parole Hearings
25in the case of state prison inmates, or the county correctional
26administrator in the case of county jail inmates, recall the sentence
27and commitment previously ordered and resentence the defendant
28in the same manner as if he or she had not previously been
29sentenced, provided
the new sentence, if any, is no greater than
30the initial sentence. The court resentencing under this subdivision
31shall apply the sentencing rules of the Judicial Council so as to
32eliminate disparity of sentences and to promote uniformity of
33sentencing. Credit shall be given for time served.
34(2) (A) (i) When a defendant who was under 18 years of age
35at the time of the commission of the offense for which the
36defendant was sentenced to imprisonment for life without the
37possibility of parole has been committed to the custody of the
38department for at least 15 years, the defendant may submit to the
39sentencing court a petition for recall and resentencing.
P5 1(ii) Notwithstanding clause (i), this paragraph shall not apply
2to defendants
sentenced to life without parole for an offense where
3it was pled and proved that the defendant tortured, as described in
4Section 206, his or her victim or the victim was a public safety
5official, including any law enforcement personnel mentioned in
6Chapter 4.5 (commencing with Section 830) of Title 3, or any
7firefighter as described in Section 245.1, as well as any other officer
8in any segment of law enforcement who is employed by the federal
9government, the state, or any of its political subdivisions.
10(B) The defendant shall file the original petition with the
11sentencing court. A copy of the petition shall be served on the
12agency that prosecuted the case. The petition shall include the
13defendant’s statement that he or she was under 18 years of age at
14the time of the crime and was sentenced to life in prison without
15the possibility of parole, the
defendant’s statement describing his
16or her remorse and work towards rehabilitation, and the defendant’s
17statement that one of the following is true:
18(i) The defendant was convicted pursuant to felony murder or
19aiding and abetting murder provisions of law.
20(ii) The defendant does not have juvenile felony adjudications
21for assault or other felony crimes with a significant potential for
22personal harm to victims prior to the offense for which the sentence
23is being considered for recall.
24(iii) The defendant committed the offense with at least one adult
25codefendant.
26(iv) The defendant has performed acts that tend to indicate
27rehabilitation or the potential for
rehabilitation, including, but not
28limited to, availing himself or herself of rehabilitative, educational,
29or vocational programs, if those programs have been available at
30his or her classification level and facility, using self-study for
31self-improvement, or showing evidence of remorse.
32(C) If any of the information required in subparagraph (B) is
33missing from the petition, or if proof of service on the prosecuting
34agency is not provided, the court shall return the petition to the
35defendant and advise the defendant that the matter cannot be
36considered without the missing information.
37(D) A reply to the petition, if any, shall be filed with the court
38within 60 days of the date on which the prosecuting agency was
39served with the petition, unless a continuance is granted for good
40cause.
P6 1(E) If the court finds by a preponderance of the evidence that
2one or more of the statements specified in clauses (i) to (iv),
3inclusive, of subparagraph (B) is true, the court shall recall the
4sentence and commitment previously ordered and hold a hearing
5to resentence the defendant in the same manner as if the defendant
6had not previously been sentenced, provided that the new sentence,
7if any, is not greater than the initial sentence. Victims, or victim
8family members if the victim is deceased, shall retain the rights to
9participate in the hearing.
10(F) The factors that the court may consider when determining
11whether to resentence the defendant to a term of imprisonment
12with the possibility of parole include, but are not limited to, the
13following:
14(i) The defendant was convicted pursuant to felony murder or
15
aiding and abetting murder provisions of law.
16(ii) The defendant does not have juvenile felony adjudications
17for assault or other felony crimes with a significant potential for
18personal harm to victims prior to the offense for which thebegin delete sentence begin insert defendant was sentenced to life
19is being considered for recall.end delete
20without the possibility of parole.end insert
21(iii) The defendant committed the offense with at least one adult
22codefendant.
23(iv) Prior to the offense for which thebegin delete sentence is being begin insert
defendant was sentenced to life without the
24considered for recall,end delete
25possibility of parole,end insert the defendant had insufficient adult support
26or supervision and had suffered from psychological or physical
27trauma, or significant stress.
28(v) The defendant suffers from cognitive limitations due to
29mental illness, developmental disabilities, or other factors that did
30not constitute a defense, but influenced the defendant’s
31
involvement in the offense.
32(vi) The defendant has performed acts that tend to indicate
33rehabilitation or the potential for rehabilitation, including, but not
34limited to, availing himself or herself of rehabilitative, educational,
35or vocational programs, if those programs have been available at
36his or her classification level and facility, using self-study for
37self-improvement, or showing evidence of remorse.
38(vii) The defendant has maintained family ties or connections
39with others through letter writing, calls, or visits, or has eliminated
P7 1contact with individuals outside of prison who are currently
2involved with crime.
3(viii) The defendant has had no disciplinary actions for violent
4activities in
the last five years in which the defendant was
5determined to be the aggressor.
6(G) The court shall have the discretion to resentence the
7defendant in the same manner as if the defendant had not
8previously been sentenced, provided that the new sentence, if any,
9is not greater than the initial sentence. The discretion of the court
10shall be exercised in consideration of the criteria in subparagraph
11(F). Victims, or victim family members if the victim is deceased,
12shall be notified of the resentencing hearing and shall retain their
13rights to participate in the hearing.
14(H) If the sentence is not recalled or the defendant is resentenced
15to imprisonment for life without the possibility of parole, the
16defendant may submit another petition for recall and resentencing
17to the sentencing
court when the defendant has been committed
18to the custody of the department for at least 20 years. Ifbegin delete recall and begin insert the sentence is not recalled or the
19resentencing is not grantedend delete
20defendant is resentenced to imprisonment for life without the
21possibility of paroleend insert under that petition, the defendant may file
22another petition after having been committed to the custody of the
23department for 24 years. The final petition may be submitted, and
24the response to that petition shall be determined, during the 25th
25year of the defendant’s
commitment to the department.
26(I) In addition to the criteria in subparagraph (F), the court may
27consider any other criteria that the court deems relevant to its
28decision, so long as the court identifies them on the record,
29provides a statement of reasons for adopting them, and states why
30the defendant does or does not satisfy the criteria.
31(J) This subdivision shall have retroactive application.
begin insert
32
(K) Nothing in this paragraph is intended to diminish or
33abrogate any rights or remedies otherwise available to the
34defendant.
35(e) (1) Notwithstanding any
other law and consistent with
36paragraph (1) of subdivision (a), if the secretary or the Board of
37Parole Hearings or both determine that a prisoner satisfies the
38criteria set forth in paragraph (2), the secretary or the board may
39recommend to the court that the prisoner’s sentence be recalled.
P8 1(2) The court shall have the discretion to resentence or recall if
2the court finds that the facts described in subparagraphs (A) and
3(B) or subparagraphs (B) and (C) exist:
4(A) The prisoner is terminally ill with an incurable condition
5caused by an illness or disease that would produce death within
6six months, as determined by a physician employed by the
7department.
8(B) The conditions under which the prisoner would be released
9or
receive treatment do not pose a threat to public safety.
10(C) The prisoner is permanently medically incapacitated with
11a medical condition that renders him or her permanently unable
12to perform activities of basic daily living, and results in the prisoner
13requiring 24-hour total care, including, but not limited to, coma,
14persistent vegetative state, brain death, ventilator-dependency, loss
15of control of muscular or neurological function, and that
16incapacitation did not exist at the time of the original sentencing.
17The Board of Parole Hearings shall make findings pursuant to
18this subdivision before making a recommendation for resentence
19or recall to the court. This subdivision does not apply to a prisoner
20sentenced to death or a term of life without the possibility of parole.
21(3) Within 10 days of receipt of a positive recommendation by
22the secretary or the board, the court shall hold a hearing to consider
23whether the prisoner’s sentence should be recalled.
24(4) Any physician employed by the department who determines
25that a prisoner has six months or less to live shall notify the chief
26medical officer of the prognosis. If the chief medical officer
27concurs with the prognosis, he or she shall notify the warden.
28Within 48 hours of receiving notification, the warden or the
29warden’s representative shall notify the prisoner of the recall and
30resentencing procedures, and shall arrange for the prisoner to
31designate a family member or other outside agent to be notified
32as to the prisoner’s medical condition and prognosis, and as to the
33recall and resentencing procedures. If the inmate is deemed
34mentally unfit,
the warden or the warden’s representative shall
35contact the inmate’s emergency contact and provide the information
36described in paragraph (2).
37(5) The warden or the warden’s representative shall provide the
38prisoner and his or her family member, agent, or emergency
39contact, as described in paragraph (4), updated information
40throughout the recall and resentencing process with regard to the
P9 1prisoner’s medical condition and the status of the prisoner’s recall
2and resentencing proceedings.
3(6) Notwithstanding any other provisions of this section, the
4prisoner or his or her family member or designee may
5independently request consideration for recall and resentencing
6by contacting the chief medical officer at the prison or the
7secretary. Upon receipt of the request, the chief
medical officer
8and the warden or the warden’s representative shall follow the
9procedures described in paragraph (4). If the secretary determines
10that the prisoner satisfies the criteria set forth in paragraph (2), the
11secretary or board may recommend to the court that the prisoner’s
12sentence be recalled. The secretary shall submit a recommendation
13for release within 30 days in the case of inmates sentenced to
14determinate terms and, in the case of inmates sentenced to
15indeterminate terms, the secretary shall make a recommendation
16to the Board of Parole Hearings with respect to the inmates who
17have applied under this section. The board shall consider this
18
information and make an independent judgment pursuant to
19paragraph (2) and make findings related thereto before rejecting
20the request or making a recommendation to the court. This action
21shall be taken at the next lawfully noticed board meeting.
22(7) Any recommendation for recall submitted to the court by
23the secretary or the Board of Parole Hearings shall include one or
24more medical evaluations, a postrelease plan, and findings pursuant
25to paragraph (2).
26(8) If possible, the matter shall be heard before the same judge
27of the court who sentenced the prisoner.
28(9) If the court grants the recall and resentencing application,
29the prisoner shall be released by the department within 48 hours
30of receipt of the
court’s order, unless a longer time period is agreed
31to by the inmate. At the time of release, the warden or the warden’s
32representative shall ensure that the prisoner has each of the
33following in his or her possession: a discharge medical summary,
34full medical records, state identification, parole or postrelease
35community supervision medications, and all property belonging
36to the prisoner. After discharge, any additional records shall be
37sent to the prisoner’s forwarding address.
38(10) The secretary shall issue a directive to medical and
39correctional staff employed by the department that details the
40guidelines and procedures for initiating a recall and resentencing
P10 1procedure. The directive shall clearly state that any prisoner who
2is given a prognosis of six months or less to live is eligible for
3recall and resentencing consideration, and
that recall and
4resentencing procedures shall be initiated upon that prognosis.
5(11) The provisions of this subdivision shall be available to an
6inmate who is sentenced to a county jail pursuant to subdivision
7(h). For purposes of those inmates, “secretary” or “warden” shall
8mean the county correctional administrator and “chief medical
9officer” shall mean a physician designated by the county
10correctional administrator for this purpose.
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.
P11 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 under that supervision, unless in actual custody related
25to the sentence imposed by the court, the defendant shall be entitled
26to only actual time credit against the term of imprisonment imposed
27by the court. Any time period which is suspended because a person
28has absconded shall not be credited toward the period of
29supervision.
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 378 of the Statutes of 2015, 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, or a term pursuant to subdivision (h), of any
28specification of three time
periods, the court shall sentence the
29defendant to one of the terms of imprisonment specified unless
30the convicted person is given any other disposition provided by
31law, including a fine, jail, probation, or the suspension of
32imposition or execution of sentence or is sentenced pursuant to
33subdivision (b) of Section 1168 because he or she had committed
34his or her crime prior to July 1, 1977. In sentencing the convicted
35person, the court shall apply the sentencing rules of the Judicial
36Council. The court, unless it determines that there are
37circumstances in mitigation of the punishment prescribed, shall
38also impose any other term that it is required by law to impose as
39an additional term. Nothing in this article shall affect any provision
40of law that imposes the death penalty, that authorizes or restricts
P13 1the granting of probation or suspending the execution or imposition
2of sentence, or expressly
provides for imprisonment in the state
3prison for life, except as provided in paragraph (2) of subdivision
4(d). In any case in which the amount of preimprisonment credit
5under Section 2900.5 or any other provision of law is equal to or
6
exceeds any sentence imposed pursuant to this chapter, except for
7a remaining portion of mandatory supervision imposed pursuant
8to subparagraph (B) of paragraph (5) of subdivision (h), the entire
9sentence shall be deemed to have been served, except for the
10remaining period of mandatory supervision, and the defendant
11shall not be actually delivered to the custody of the secretary or
12the county correctional administrator. The court shall advise the
13defendant that he or she shall serve an applicable period of parole,
14postrelease community supervision, or mandatory supervision and
15order the defendant to report to the parole or probation office
16closest to the defendant’s last legal residence, unless the in-custody
17credits equal the total sentence, including both confinement time
18and the period of parole, postrelease community supervision, or
19mandatory supervision. The sentence shall be deemed a
separate
20prior prison term or a sentence of imprisonment in a county jail
21under subdivision (h) for purposes of Section 667.5, and a copy
22of the judgment and other necessary documentation shall be
23forwarded to the secretary.
24(b) When a judgment of imprisonment is to be imposed and the
25statute specifies three possible terms, the court shall order
26imposition of the middle term, unless there are circumstances in
27aggravation or mitigation of the crime. At least four days prior to
28the time set for imposition of judgment, either party or the victim,
29or the family of the victim if the victim is deceased, may submit
30a statement in aggravation or mitigation to dispute facts in the
31record or the probation officer’s report, or to present additional
32facts. In determining whether there are circumstances that justify
33imposition of the upper or
lower term, the court may consider the
34record in the case, the probation officer’s report, other reports,
35including reports received pursuant to Section 1203.03, and
36statements in aggravation or mitigation submitted by the
37prosecution, the defendant, or the victim, or the family of the victim
38if the victim is deceased, and any further evidence introduced at
39the sentencing hearing. The court shall set forth on the record the
40facts and reasons for imposing the upper or lower term. The court
P14 1may not impose an upper term by using the fact of any
2enhancement upon which sentence is imposed under any provision
3of law. A term of imprisonment shall not be specified if imposition
4of sentence is suspended.
5(c) The court shall state the reasons for its sentence choice on
6the record at the time of sentencing. The court shall also inform
7the
defendant that as part of the sentence after expiration of the
8term he or she may be on parole for a period as provided in Section
93000 or 3000.08 or postrelease community supervision for a period
10as provided in Section 3451.
11(d) (1) When a defendant subject to this section or subdivision
12(b) of Section 1168 has been sentenced to be imprisoned in the
13state prison or county jail pursuant to subdivision (h) and has been
14committed to the custody of the secretary or the county correctional
15administrator, the court may, within 120 days of the date of
16commitment on its own motion, or at any time upon the
17recommendation of the secretary or the Board of Parole Hearings
18in the case of state prison inmates, or the county correctional
19administrator in the case of county jail inmates, recall the sentence
20and commitment previously ordered
and resentence the defendant
21in the same manner as if he or she had not previously been
22sentenced, provided the new sentence, if any, is no greater than
23the initial sentence. The court resentencing under this subdivision
24shall apply the sentencing rules of the Judicial Council so as to
25eliminate disparity of sentences and to promote uniformity of
26sentencing. Credit shall be given for time served.
27(2) (A) (i) When a defendant who was under 18 years of age
28at the time of the commission of the offense for which the
29defendant was sentenced to imprisonment for life without the
30possibility of parole has been committed to the custody of the
31department for at least 15 years, the defendant may submit to the
32sentencing court a petition for recall and resentencing.
33(ii) Notwithstanding clause (i), this paragraph shall not apply
34to defendants sentenced to life without parole for an offense where
35it was pled and proved that the defendant tortured, as described in
36Section 206, his or her victim or the victim was a public safety
37official, including any law enforcement personnel mentioned in
38Chapter 4.5 (commencing with Section 830) of Title 3, or any
39firefighter as described in Section 245.1, as well as any other officer
P15 1in any segment of law enforcement who is employed by the federal
2government, the state, or any of its political subdivisions.
3(B) The defendant shall file the original petition with the
4sentencing court. A copy of the petition shall be served on the
5agency that prosecuted the case. The petition shall include the
6defendant’s statement that he or she was under 18 years of age at
7the
time of the crime and was sentenced to life in prison without
8the possibility of parole, the defendant’s statement describing his
9or her remorse and work towards rehabilitation, and the defendant’s
10statement that one of the following is true:
11(i) The defendant was convicted pursuant to felony murder or
12aiding and abetting murder provisions of law.
13(ii) The defendant does not have juvenile felony adjudications
14for assault or other felony crimes with a significant potential for
15personal harm to victims prior to the offense for which the sentence
16is being considered for recall.
17(iii) The defendant committed the offense with at least one adult
18codefendant.
19(iv) The
defendant has performed acts that tend to indicate
20rehabilitation or the potential for rehabilitation, including, but not
21limited to, availing himself or herself of rehabilitative, educational,
22or vocational programs, if those programs have been available at
23his or her classification level and facility, using self-study for
24
self-improvement, or showing evidence of remorse.
25(C) If any of the information required in subparagraph (B) is
26missing from the petition, or if proof of service on the prosecuting
27agency is not provided, the court shall return the petition to the
28defendant and advise the defendant that the matter cannot be
29considered without the missing information.
30(D) A reply to the petition, if any, shall be filed with the court
31within 60 days of the date on which the prosecuting agency was
32served with the petition, unless a continuance is granted for good
33cause.
34(E) If the court finds by a preponderance of the evidence that
35one or more of the statements specified in clauses (i) to (iv),
36inclusive, of subparagraph (B)
is true, the court shall recall the
37sentence and commitment previously ordered and hold a hearing
38to resentence the defendant in the same manner as if the defendant
39had not previously been sentenced, provided that the new sentence,
40if any, is not greater than the initial sentence. Victims, or victim
P16 1family members if the victim is deceased, shall retain the rights to
2participate in the hearing.
3(F) The factors that the court may consider when determining
4whether to resentence the defendant to a term of imprisonment
5with the possibility of parole include, but are not limited to, the
6following:
7(i) The defendant was convicted pursuant to felony murder or
8aiding and abetting murder provisions of law.
9(ii) The
defendant does not have juvenile felony adjudications
10for assault or other felony crimes with a significant potential for
11personal harm to victims prior to the offense for which thebegin delete sentence begin insert defendant was sentenced to life
12is being considered for recall.end delete
13without the possibility of parole.end insert
14(iii) The defendant committed the offense with at least one adult
15codefendant.
16(iv) Prior to the offense for which thebegin delete sentence is being begin insert defendant was
sentenced to life without the
17considered for recall,end delete
18possibility of parole,end insert the defendant had insufficient adult support
19or supervision and had suffered from psychological or physical
20trauma, or significant stress.
21(v) The defendant suffers from cognitive limitations due to
22mental illness, developmental disabilities, or other factors that did
23not constitute a defense, but influenced the defendant’s
24involvement in the offense.
25(vi) The defendant has performed acts that tend to indicate
26rehabilitation or the potential for rehabilitation, including, but not
27limited to, availing himself or herself of rehabilitative, educational,
28or vocational programs, if those programs have been available at
29his or her classification level and facility, using self-study for
30self-improvement, or showing
evidence of remorse.
31(vii) The defendant has maintained family ties or connections
32with others through letter writing, calls, or visits, or has eliminated
33contact with individuals outside of prison who are currently
34involved with crime.
35(viii) The defendant has had no disciplinary actions for violent
36activities in the last five years in which the defendant was
37determined to be the aggressor.
38(G) The court shall have the discretion to resentence the
39defendant in the same manner as if the defendant had not
40previously been sentenced, provided that the new sentence, if any,
P17 1is not greater than the initial sentence. The discretion of the court
2shall be exercised in consideration of the criteria in subparagraph
3
(F). Victims, or victim family members if the victim is deceased,
4shall be notified of the resentencing hearing and shall retain their
5rights to participate in the hearing.
6(H) If the sentence is not recalled or the defendant is resentenced
7to imprisonment for life without the possibility of parole, the
8defendant may submit another petition for recall and resentencing
9to the sentencing court when the defendant has been committed
10to the custody of the department for at least 20 years. Ifbegin delete recall and begin insert the sentence is not recalled or the
11resentencing is not grantedend delete
12defendant is resentenced to imprisonment for life without the
13possibility of paroleend insert under that petition, the defendant
may file
14another petition after having been committed to the custody of the
15department for 24 years. The final petition may be submitted, and
16the response to that petition shall be determined, during the 25th
17year of the defendant’s
commitment to the department.
18(I) In addition to the criteria in subparagraph (F), the court may
19consider any other criteria that the court deems relevant to its
20decision, so long as the court identifies them on the record,
21provides a statement of reasons for adopting them, and states why
22the defendant does or does not satisfy the criteria.
23(J) This subdivision shall have retroactive application.
begin insert
24
(K) Nothing in this paragraph is intended to diminish or
25abrogate any rights or remedies otherwise available to the
26defendant.
27(e) (1) Notwithstanding any
other law and consistent with
28paragraph (1) of subdivision (a), if the secretary or the Board of
29Parole Hearings or both determine that a prisoner satisfies the
30criteria set forth in paragraph (2), the secretary or the board may
31recommend to the court that the prisoner’s sentence be recalled.
32(2) The court shall have the discretion to resentence or recall if
33the court finds that the facts described in subparagraphs (A) and
34(B) or subparagraphs (B) and (C) exist:
35(A) The prisoner is terminally ill with an incurable condition
36caused by an illness or disease that would produce death within
37six months, as determined by a physician employed by the
38department.
39(B) The conditions under which the prisoner would be released
40or
receive treatment do not pose a threat to public safety.
P18 1(C) The prisoner is permanently medically incapacitated with
2a medical condition that renders him or her permanently unable
3to perform activities of basic daily living, and results in the prisoner
4requiring 24-hour total care, including, but not limited to, coma,
5persistent vegetative state, brain death, ventilator-dependency, loss
6of control of muscular or neurological function, and that
7incapacitation did not exist at the time of the original sentencing.
8The Board of Parole Hearings shall make findings pursuant to
9this subdivision before making a recommendation for resentence
10or recall to the court. This subdivision does not apply to a prisoner
11sentenced to death or a term of life without the possibility of parole.
12(3) Within 10 days of receipt of a positive recommendation by
13the secretary or the board, the court shall hold a hearing to consider
14whether the prisoner’s sentence should be recalled.
15(4) Any physician employed by the department who determines
16that a prisoner has six months or less to live shall notify the chief
17medical officer of the prognosis. If the chief medical officer
18concurs with the prognosis, he or she shall notify the warden.
19Within 48 hours of receiving notification, the warden or the
20warden’s representative shall notify the prisoner of the recall and
21resentencing procedures, and shall arrange for the prisoner to
22designate a family member or other outside agent to be notified
23as to the prisoner’s medical condition and prognosis, and as to the
24recall and resentencing
procedures. If the inmate is deemed
25mentally unfit, the warden or the warden’s representative shall
26contact the inmate’s emergency contact and provide the information
27described in paragraph (2).
28(5) The warden or the warden’s representative shall provide the
29prisoner and his or her family member, agent, or emergency
30contact, as described in paragraph (4), updated information
31throughout the recall and resentencing process with regard to the
32prisoner’s medical condition and the status of the prisoner’s recall
33and resentencing proceedings.
34(6) Notwithstanding any other provisions of this section, the
35prisoner or his or her family member or designee may
36independently request consideration for recall and resentencing
37by contacting the chief medical officer at the prison or the
38secretary.
Upon receipt of the request, the chief medical officer
39and the warden or the warden’s representative shall follow the
40procedures described in paragraph (4). If the secretary determines
P19 1that the prisoner satisfies the criteria set forth in paragraph (2), the
2secretary or board may recommend to the court that the prisoner’s
3sentence be recalled. The secretary shall submit a recommendation
4for release within 30 days in the case of inmates sentenced to
5determinate terms and, in the case of inmates sentenced to
6indeterminate terms, the secretary shall make a recommendation
7to the Board of Parole Hearings with respect to the inmates who
8have applied under this section. The board shall consider this
9
information and make an independent judgment pursuant to
10paragraph (2) and make findings related thereto before rejecting
11the request or making a recommendation to the court. This action
12shall be taken at the next lawfully noticed board meeting.
13(7) Any recommendation for recall submitted to the court by
14the secretary or the Board of Parole Hearings shall include one or
15more medical evaluations, a postrelease plan, and findings pursuant
16to paragraph (2).
17(8) If possible, the matter shall be heard before the same judge
18of the court who sentenced the prisoner.
19(9) If the court grants the recall and resentencing application,
20the prisoner shall be released by the department within 48 hours
21of receipt of the court’s
order, unless a longer time period is agreed
22to by the inmate. At the time of release, the warden or the warden’s
23representative shall ensure that the prisoner has each of the
24following in his or her possession: a discharge medical summary,
25full medical records, state identification, parole or postrelease
26community supervision medications, and all property belonging
27to the prisoner. After discharge, any additional records shall be
28sent to the prisoner’s forwarding address.
29(10) The secretary shall issue a directive to medical and
30correctional staff employed by the department that details the
31guidelines and procedures for initiating a recall and resentencing
32procedure. The directive shall clearly state that any prisoner who
33is given a prognosis of six months or less to live is eligible for
34recall and resentencing consideration, and that recall
and
35resentencing procedures shall be initiated upon that prognosis.
36(11) The provisions of this subdivision shall be available to an
37inmate who is sentenced to a county jail pursuant to subdivision
38(h). For purposes of those inmates, “secretary” or “warden” shall
39mean the county correctional administrator and “chief medical
P20 1officer” shall mean a physician designated by the county
2correctional administrator for this purpose.
3(f) Notwithstanding any other provision of this section, for
4purposes of paragraph (3) of subdivision (h), any allegation that
5a defendant is eligible for state prison due to a prior or current
6conviction, sentence enhancement, or because he or she is required
7to register as a sex offender shall not be subject to dismissal
8pursuant to Section 1385.
9(g) A sentence to state prison for a determinate term for which
10only one term is specified, is a sentence to state prison under this
11section.
12(h) (1) Except as provided in paragraph (3), a felony punishable
13pursuant to this subdivision where the term is not specified in the
14underlying offense shall be punishable by a term of imprisonment
15in a county jail for 16 months, or two or three years.
16(2) Except as provided in paragraph (3), a felony punishable
17pursuant to this subdivision shall be punishable by imprisonment
18in a county jail for the term described in the underlying offense.
19(3) Notwithstanding paragraphs (1) and (2), where the defendant
20(A)
has a prior or current felony conviction for a serious felony
21described in subdivision (c) of Section 1192.7 or a prior or current
22conviction for a violent felony described in subdivision (c) of
23Section 667.5, (B) has a prior felony conviction in another
24jurisdiction for an offense that has all the elements of a serious
25felony described in subdivision (c) of Section 1192.7 or a violent
26felony described in subdivision (c) of Section 667.5, (C) is required
27to register as a sex offender pursuant to Chapter 5.5 (commencing
28with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
29and as part of the sentence an enhancement pursuant to Section
30186.11 is imposed, an executed sentence for a felony punishable
31pursuant to this subdivision shall be served in state prison.
32(4) Nothing in this subdivision shall be construed to prevent
33other
dispositions authorized by law, including pretrial diversion,
34deferred entry of judgment, or an order granting probation pursuant
35to Section 1203.1.
36(5) (A) Unless the court finds, in the interest of justice, that it
37is not appropriate in a particular case, the court, when imposing a
38sentence pursuant to paragraph (1) or (2), shall suspend execution
39of a concluding portion of the term for a period selected at the
40court’s discretion.
P21 1(B) The portion of a defendant’s sentenced term that is
2suspended pursuant to this paragraph shall be known as mandatory
3supervision, and, unless otherwise ordered by the court, shall
4commence upon release from physical custody or an alternative
5custody program, whichever is later. During the period of
6mandatory supervision, the
defendant shall be supervised by the
7county probation officer in accordance with the terms, conditions,
8and procedures generally applicable to persons placed on probation,
9for the remaining unserved portion of the sentence imposed by the
10court. The period of supervision shall be mandatory, and may not
11be earlier terminated except by court order. Any proceeding to
12revoke or modify mandatory supervision under this subparagraph
13shall be conducted pursuant to either subdivisions (a) and (b) of
14Section 1203.2 or Section 1203.3. During the period when the
15defendant is under that supervision, unless in actual custody related
16to the sentence imposed by the court, the defendant shall be entitled
17to only actual time credit against the term of imprisonment imposed
18by the court. Any time period which is suspended because a person
19has absconded shall not be credited toward the period of
20supervision.
21(6) The sentencing changes made by the act that added this
22subdivision shall be applied prospectively to any person sentenced
23on or after October 1, 2011.
24(7) The sentencing changes made to paragraph (5) by the act
25that added this paragraph shall become effective and operative on
26January 1, 2015, and shall be applied prospectively to any person
27sentenced on or after January 1, 2015.
28(i) This section shall become operative on January 1, 2017.
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